Case Note & Summary
The petitioners, a builder firm and its partners, challenged an order dated 5 May 2014 passed by the Competent Authority and District Deputy Registrar, Thane, under Section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management, Transfer) Act, 1963 (MOFA). The order granted deemed conveyance of the land and building in favor of the respondent society, Ajita Complex Cooperative Housing Society Ltd. The petitioners also sought a re-hearing regarding balance FSI of 161.57 sq. mtrs. The petitioners were the builder/promoter of the housing project. The society had applied for deemed conveyance under Section 11(3) of MOFA, alleging that the builder had failed to execute a conveyance deed despite receiving full payment. The Competent Authority, after hearing the parties, allowed the society's application and directed the Sub-Registrar to register the conveyance. The builder contended that the Competent Authority lacked jurisdiction to grant deemed conveyance because the builder had not transferred the balance FSI, which was still owned by the builder. The builder argued that the order was passed without giving him a proper opportunity of being heard. The court examined the scheme of MOFA, particularly Section 11, which imposes a statutory obligation on the promoter to convey the land and building to the society within a specified period. The court held that the Competent Authority has jurisdiction only to order conveyance of the land and building, not to adjudicate disputes regarding balance FSI. The dispute over balance FSI is a civil dispute that must be resolved by a civil court. The court also noted that the builder had notice of the proceedings and failed to appear, so there was no violation of natural justice. The court dismissed the writ petition, holding that the impugned order was legal and valid, and that the builder's remedy, if any, lies in civil court for compensation or damages.
Headnote
A) Maharashtra Ownership Flats Act, 1963 - Deemed Conveyance - Section 11(3) - Jurisdiction of Competent Authority - The Competent Authority has jurisdiction to grant deemed conveyance of land and building to the society, even if the builder claims ownership of balance FSI. The dispute regarding balance FSI is a civil dispute and cannot be adjudicated by the Competent Authority. The builder's remedy lies in civil court for compensation or damages. (Paras 6-10) B) Maharashtra Ownership Flats Act, 1963 - Deemed Conveyance - Section 11(3) - Notice to Builder - The Competent Authority is not required to give a fresh notice to the builder if the builder fails to appear after service of notice in the initial proceedings. The builder cannot claim violation of natural justice if he had notice of the proceedings. (Paras 11-12) C) Writ Jurisdiction - Alternative Remedy - Maintainability - A writ petition under Article 226 of the Constitution is not maintainable against an order of deemed conveyance under Section 11(3) of MOFA if the petitioner has an alternative remedy of appeal or civil suit. The High Court will not interfere with such orders unless there is a patent lack of jurisdiction or violation of natural justice. (Paras 13-15)
Issue of Consideration
Whether the Competent Authority under Section 11(3) of the Maharashtra Ownership Flats Act, 1963 has jurisdiction to grant deemed conveyance in favor of the society despite the builder's claim over balance FSI, and whether the impugned order is sustainable in law.
Final Decision
The writ petition is dismissed. The impugned order dated 5 May 2014 granting deemed conveyance is upheld. The petitioners are at liberty to pursue their remedy in civil court regarding balance FSI.
Law Points
- Deemed conveyance under Section 11(3) of MOFA
- 1963 is a statutory right of the society
- Competent Authority's jurisdiction is limited to conveyance of land and building
- balance FSI dispute is a civil matter
- no requirement of prior notice to builder if he fails to appear after notice
- writ petition not maintainable against deemed conveyance order if alternative remedy available.
