Case Note & Summary
The petitioner, Swastik Promoters and Developers, challenged an order dated 26th July 2021 passed by the Competent Authority (District Deputy Registrar of Cooperative Societies, Pune) granting unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) in favour of respondent No.2, Ganga Cypress Co-operative Housing Society Limited. The deemed conveyance pertained to land admeasuring 13718.26 sq. mtrs. and construction admeasuring 12048.83 sq. mtrs. at Mouje Tathavade, Taluka Mulshi, District Pune. The petitioner was the promoter and developer of the scheme. The members of respondent No.2 purchased units based on a sanctioned plan dated 24th December 2010, which permitted FSI of 12,086.87 sq. mtrs. and 219 units. The petitioner revised the plan on 4th April 2014 without the society's consent. Respondent No.2 filed Special Civil Suit No.1482 of 2019 seeking specific performance, declaration that revised layouts were illegal, and injunction against revision of the plan without consent. The petitioner contested the deemed conveyance application on the ground that the civil suit involved overlapping issues of title and contractual obligations, and that conveyance was contingent upon completion of all seven buildings as per a mutual understanding. The Competent Authority held that the society was entitled to deemed conveyance under Section 11 MOFA, as the statutory right operates independently of civil proceedings. The petitioner argued that the application was premature and that the Competent Authority failed to consider the MoU dated 30th July 2015 and Government Resolution dated 26th July 2018. Respondent No.2 contended that the sanctioned plan was the foundational document, that the petitioner had exhausted the FSI, and that the MoU did not constitute informed consent under Section 7 MOFA. The court, relying on Dosti Corporation v. Sea Flama Cooperative Housing Society Ltd., held that the Competent Authority's order was valid, as the statutory right to conveyance under Section 11 MOFA is independent of contractual disputes, and the civil suit does not bar the deemed conveyance proceedings. The court dismissed the writ petition, upholding the deemed conveyance order.
Headnote
A) MOFA - Deemed Conveyance - Section 11 - Independent Statutory Right - The Competent Authority under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA) has jurisdiction to grant deemed conveyance despite pendency of a civil suit for specific performance and damages, as the statutory right to conveyance operates independently of contractual disputes. (Paras 5, 7, 9) B) MOFA - Informed Consent - Section 7 - Blanket Consent Invalid - A clause in an agreement granting the promoter unilateral rights to alter construction plans without specific disclosure constitutes blanket consent and is not 'informed consent' under Section 7 of MOFA, rendering it invalid. (Paras 8, 9) C) MOFA - Sanctioned Plan - Binding Nature - The sanctioned plan dated 24th December 2010, annexed to purchase agreements, is the foundational document governing parties' rights, and any deviation requires informed consent under Section 7 MOFA. (Paras 7, 8) D) MOFA - Deemed Conveyance - Prematurity - An application for deemed conveyance is not premature if the promoter has exhausted the sanctioned FSI and completed construction of buildings, even if the entire project is not complete, as the right to conveyance crystallizes upon fulfillment of obligations under the sanctioned plan. (Paras 5, 6, 7)
Issue of Consideration
Whether the Competent Authority under Section 11 of the Maharashtra Ownership Flats Act, 1963 is barred from granting deemed conveyance due to pendency of a civil suit for specific performance and damages, and whether the application for deemed conveyance was premature.
Final Decision
The writ petition is dismissed. The order dated 26th July 2021 passed by the Competent Authority granting deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963 is upheld.
Law Points
- Deemed conveyance under Section 11 MOFA is independent of civil suit
- Pendency of civil suit does not bar Competent Authority from granting deemed conveyance
- Clause 11(g) granting unilateral alteration rights is not informed consent under Section 7 MOFA
- MoU cannot override sanctioned plan without informed consent
- Government Resolution dated 26th July 2018 not applicable as project not composite with separate societies
