Case Note & Summary
The petitioner, ALJ Residency Co-operative Housing Society Ltd., filed a writ petition under Article 227 of the Constitution of India challenging the order dated 30 January 2017 passed by the Competent Authority (District Deputy Registrar of Co-operative Societies, Mumbai) rejecting its application for deemed conveyance under Section 11(3) of the Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). The society was constructed on land owned by one Abdulla Khan Jamruddin Khan, who died in 1976. In 1980, respondent No.3 was granted Letters of Administration. In 1993, an agreement was executed between the administrator and respondent No.22 (developer) for development. The society was registered on 20 January 2004. Alleging non-compliance of Section 11 of MOFA, the society filed an application on 8 May 2015 for deemed conveyance. The application was opposed by the legal heirs of the deceased owner. The Competent Authority rejected the application on grounds that the copy of the agreement for sale was not annexed (only a Permanent Alternate Accommodation Agreement was annexed), the occupation certificate and commencement certificate were not annexed, the architect's certificate indicated illegal upper floors, there was discrepancy in CTS numbers, and there was pending litigation. The High Court allowed the petition, setting aside the impugned order and directing the Competent Authority to decide the application afresh. The court held that once notice was issued under Rule 13 of the Maharashtra Ownership of Flats (Regulation of Promotion of Construction etc.) Rules, 1964, it implies the application is complete, and the Authority cannot reject it on that ground. The court further held that the lack of occupation certificate is not a bar to grant of deemed conveyance, as Section 11(3) uses the expression 'if any'. The promoter's failure to obtain the certificate cannot be used as a defence. The legal heirs of the original owner fall within the definition of 'promoter' under Section 2(c) of MOFA and are bound to convey the property. The court also noted that the society needs deemed conveyance to apply for regularization or redevelopment. The petition was allowed with no order as to costs.
Headnote
A) MOFA - Deemed Conveyance - Section 11(3) of Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Rejection of Application - The Competent Authority rejected the application for deemed conveyance on grounds that the application was defective as it was not accompanied by the agreement for sale and occupation certificate, and that there were discrepancies in CTS numbers and pending litigation. The High Court held that once notice was issued under Rule 13 of the Maharashtra Ownership of Flats (Regulation of Promotion of Construction etc.) Rules, 1964, it implies the application is complete, and the Authority cannot later reject it on that ground. (Paras 5, 11-12)
B) MOFA - Occupation Certificate - Section 11(3) of MOFA - The provision uses the expression 'if any' with respect to occupation certificate, indicating that grant of deemed conveyance is not contingent upon production of occupation certificate. The promoter's failure to obtain occupation certificate cannot be used as a defence to oppose deemed conveyance. (Paras 6, 13-14)
C) MOFA - Promoter - Definition under Section 2(c) of MOFA - The legal heirs of the original owner who opposed the application fall within the definition of 'promoter' and are bound by the obligation to convey the property within four months of registration of the society. (Paras 6, 15)
D) MOFA - Deemed Conveyance - Purpose - Grant of deemed conveyance is necessary for the society to apply for regularization of unauthorized construction or redevelopment, and the promoter's default cannot be used to defeat the society's right. (Paras 6, 16)
Issue of Consideration
Whether the Competent Authority under Section 11(3) of MOFA can reject an application for deemed conveyance on the grounds that the application was not accompanied by all requisite documents, including the occupation certificate, and whether the lack of occupation certificate is a bar to grant of deemed conveyance.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 30 January 2017, and directed the Competent Authority to decide the application for deemed conveyance afresh in accordance with law, after giving an opportunity of hearing to all parties. No order as to costs.
Law Points
- Deemed conveyance under Section 11 of MOFA
- Competent Authority's power to reject application after notice
- Effect of missing documents
- Occupation certificate not mandatory for deemed conveyance
- Promoter's obligation to convey property
- Definition of promoter under MOFA
Case Details
2024 LawText (BOM) (11) 250
Writ Petition No. 406 of 2018
Mr. Mayur Khandeparkar, Mr. Tushar Gujjar, Mr. Deep Madnanai i/b SL Partners for the Petitioner; Ms. A. A. Nadkarni, AGP for the Respondent-State; Mr. Jay Yadav i/b J. R. Vakil & Associates for Respondent No. 3; Mr. C. K. Tripathi and Ms. Induprakash Tripathi for Respondent No. 6
ALJ Residency Co-operative Housing Society Ltd.
State of Maharashtra, District Deputy Registrar of Co-operative Societies (3) Mumbai, Mr. Ebrahim Abdullah Khan, Mr. Abdul Rehman Khan, Mrs. Zubaida Mukarab Khan (deleted), Mr. Majhar Mukarab Khan, Mr. Afsar Mukarab Khan, Ms. Fayyaz Mukarab Khan, Mr. Ayaz Mukarab Khan, Mr. Elyas Mukarab Khan, Mr. Riyza Mukarab Khan, Mrs. Feroza Salim Khan, Mrs. Hafeeza Danish Ansari, Mrs. Bhauri Y. Khan, Mrs. Hamida A. Khan, Mrs. Kamru Lal Khan, Mrs. Mehar Banoo A. Khan, Mrs. Jameela Abdul Sattar Khan, Mr. Ibrar Abdul Sattar Khan, Mr. Ishrar Abdul Sattar Khan, Mr. Farhan Abdul Sattar Khan, M/s. Bhati Homes Pvt. Ltd.
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging the order of the Competent Authority rejecting an application for deemed conveyance under Section 11(3) of MOFA.
Remedy Sought
The petitioner-society sought quashing of the order dated 30 January 2017 and a direction to the Competent Authority to grant deemed conveyance.
Filing Reason
The Competent Authority rejected the society's application for deemed conveyance on grounds of missing documents, lack of occupation certificate, and other issues.
Previous Decisions
The Competent Authority rejected the application on 30 January 2017. The society also filed a complaint before the State Consumer Dispute Redressal Commission, which on 31 August 2018 directed the developer to obtain completion certificate and convey the property.
Issues
Whether the Competent Authority can reject an application for deemed conveyance under Section 11(3) of MOFA on the ground that the application was not accompanied by all requisite documents, after having issued notice under Rule 13 of the MOFA Rules, 1964?
Whether the lack of occupation certificate is a bar to the grant of deemed conveyance under Section 11(3) of MOFA?
Submissions/Arguments
Petitioner argued that once notice was issued under Rule 13, the application is deemed complete; the PAAA agreement was a MOFA agreement; commencement certificate was produced; occupation certificate is not mandatory as per Section 11(3) using 'if any'; the promoter's default cannot be used as defence; the legal heirs are 'promoters' under Section 2(c); and the society needs deemed conveyance for regularization/redevelopment.
Respondent No.6 argued that the application was defective as the agreement for sale was not annexed; no sanctioned plan was produced; commencement certificate was only up to plinth; construction was illegal; and the PAAA agreement did not clarify ownership.
Ratio Decidendi
The Competent Authority cannot reject an application for deemed conveyance under Section 11(3) of MOFA on the ground that the application was not accompanied by all requisite documents after having issued notice under Rule 13 of the MOFA Rules, 1964, as the issuance of notice implies the application is complete. Further, the lack of occupation certificate is not a bar to the grant of deemed conveyance, as Section 11(3) uses the expression 'if any', indicating that the certificate is not mandatory. The promoter's failure to obtain the occupation certificate cannot be used as a defence to oppose the application.
Judgment Excerpts
The provisions of Rule 13 of Maharashtra Ownership of Flats (Regulation of Promotion of Construction etc) Rules, 1964 provides for scrutiny of an application and issuance of notice to the parties only upon satisfaction that the application is complete in all respects. He submits that once notice has been issued, the same implies that the application is complete in all respects and thereafter it is not open for the Competent Authority to reject the application on the said ground.
He points Section 11(3) of MOFA and would submit that the said provision provides for all relevant documents to be annexed to the application including the occupation certificate, if any. He submits that use of the expression 'if any' would contemplate that irrespective of grant of occupation certificate, the power to grant deemed convenance can be exercised by the Competent Authority.
Procedural History
The petitioner-society filed an application under Section 11(3) of MOFA on 8 May 2015 before the Competent Authority for deemed conveyance. The application was opposed by the legal heirs of the deceased owner. The Competent Authority rejected the application on 30 January 2017. The society then filed the present writ petition under Article 227 of the Constitution of India on an unspecified date. The petition was reserved for judgment on 21 November 2024 and pronounced on 25 November 2024.
Acts & Sections
- Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963: Section 2(c), Section 3, Section 6, Section 11, Section 11(3), Section 16
- Maharashtra Ownership of Flats (Regulation of Promotion of Construction etc.) Rules, 1964: Rule 13
- Constitution of India: Article 227
