Case Note & Summary
By this writ petition, the petitioner challenged an order and certificate of deemed conveyance both dated 17 October 2019 passed by the District Deputy Registrar Co-operative Societies, Mumbai, as Competent Authority under Section 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sales Management and Transfer) Act, 1963 (MOFA), on an application filed by the third respondent society. The petitioner claimed to be successor in interest of the partnership firm Venisons, which had taken a lease of the building 'Quetta Terrace' and land Plot No.10, Cadastral Survey No.427 of Malabar Hill Division in D Ward under a Deed of Assignment and Transfer dated 14 November 1979. Members of the third respondent society were originally tenants in the building. After the building became dilapidated, Venisons decided to redevelop it and entered into various agreements with tenants from 1991. The Bombay Building Repair and Reconstruction Board granted NOC dated 9 March 1993 subject to condition that a co-operative housing society along with at least 70% old occupiers be formed before occupation. In 1994 and 1997, Venisons entered into agreements allocating new flats and settling terms for formation of a society. The agreement dated 15 January 1997 was central; Clause 4 stated that the agreement and relations would be governed by MOFA and the Maharashtra Housing and Area Development Act, while Clause 6 provided that landlords would remain exclusive owners of the land, future FSI, open spaces, terrace, basement, parking, etc., and the society would have only ownership of the building. The society filed an application for deemed conveyance under Section 11 of MOFA in 2018, and the Competent Authority allowed it on 17 October 2019. The petitioner contended that the agreement did not confer any land rights on the society; that Venisons was not a promoter under Section 2(c) because it never sold flats but only received construction costs; that the agreement did not comply with Section 4 and Form V of MOFA Rules; and that the Competent Authority could not adjudicate title and civil rights in a deemed conveyance application, relying on Mazda Constructions and Marathon Next Gen. The third respondent contended that the agreement was squarely governed by MOFA as stated in Clause 4 and that the society members were originally tenants and entitled to ownership of premises. The court heard submissions but the provided text ends during the third respondent's arguments, so the court's analysis, reasoning, and final decision are not available in the excerpt. The petition was reserved for judgment on 27 April 2023 and pronounced on 3 July 2023.
Headnote
A) MOFA - Deemed Conveyance - Section 11 - Competent Authority's jurisdiction to adjudicate title - Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sales Management and Transfer) Act, 1963, Section 11 - The petitioner contended that in an application for deemed conveyance, the Competent Authority cannot adjudicate upon issues of title and civil rights, relying on Mazda Constructions Company v. Sultanabad Darshan CHS Ltd. and Marathon Next Gen Realty Limited v. The Competent Authority, District Dy. Registrar of Co-operative Societies. The agreement's Clause 6 expressly retained land rights with the landlord, so the authority allegedly exceeded its jurisdiction in granting deemed conveyance (Paras 11-12). B) MOFA - Definition of Promoter - Section 2(c) - Whether a person who receives only construction cost without selling flats is a promoter - Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sales Management and Transfer) Act, 1963, Section 2(c) - Petitioner argued that Venisons never sold any flat for monetary consideration; tenants only paid construction cost, so Venisons was not a promoter as defined under Section 2(c). Respondent contended that the agreement was squarely governed by MOFA and the society members were entitled to ownership of premises (Paras 10, 13, 15). C) MOFA - Agreement Requirements - Section 4 and Form V - Validity of agreement not in prescribed form - Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sales Management and Transfer) Act, 1963, Section 4 - Petitioner submitted that the agreement was ex-facie not in accordance with Section 4 and not in Form V of MOFA Rules, hence not governed by MOFA; Respondent relied on Clause 4 which explicitly stated that the agreement and relations would be governed by MOFA and MHADA (Paras 11, 13, 15-16). D) Contract Law - Interpretation of Redevelopment Agreement - Clause 6 - Landlord's retained rights to land and future FSI - The agreement dated 15 January 1997 contained Clause 6 providing that landlords remain exclusive owners of land, future FSI, open spaces, terrace, basement, parking, etc., and tenants only receive ownership of flats. This clause was central to the dispute over whether deemed conveyance could be granted; no final decision is available in the provided excerpt (Paras 7, 9).
Issue of Consideration
Whether the agreement dated 15 January 1997 is governed by the Maharashtra Ownership of Flats Act, 1963; whether Venisons is a promoter under Section 2(c) of MOFA when it did not sell flats but only received construction costs; whether the Competent Authority under Section 11 of MOFA can adjudicate issues of title and civil rights; whether deemed conveyance can be granted despite Clause 6 of the agreement retaining land rights with the landlord; whether the agreement must be in Form V prescribed under MOFA Rules to be valid under Section 4
Law Points
- Deemed conveyance under Section 11 of MOFA
- Competent Authority cannot adjudicate title and civil rights
- definition of promoter under Section 2(c) requires sale of flats
- agreement must comply with Section 4 and Form V of MOFA Rules
- Clause 4 of agreement governs by MOFA and MHADA
- contractual interpretation of Clause 6 retaining land rights with landlord
