Case Note & Summary
The petitioners, Marathon Next Gen Realty Limited and Marathon Realty Private Limited, are the owners and developers of a large parcel of land admeasuring 35499.83 sq. mtrs. in Lower Parel, Mumbai. They challenged an order and certificate dated 22 November 2013 passed by the Competent Authority (Respondent No.1) under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). The impugned order allowed an application filed by Respondent No.2, Marathon Era Cooperative Housing Society Limited, for unilateral deemed conveyance of the entire land. The petitioners contended that the Competent Authority overlooked the fact that the remaining projects/buildings named 'Innova' and 'Icon' and others, which are also part of the same land, were incomplete. Additionally, the flat owners of those other buildings had agreed to be governed by the Maharashtra Apartment Ownership Act, 1970 (MAO), and their rights and entitlements were required to be taken into consideration before ordering conveyance. The court examined the provisions of MOFA and MAO and the powers of the Competent Authority. The court held that the Competent Authority cannot grant unilateral deemed conveyance of the entire land to one society when the development is incomplete and other buildings are governed by a different enactment. The order was quashed and set aside, and the matter was remanded for fresh consideration after hearing all parties.
Headnote
A) Maharashtra Ownership Flats Act, 1963 - Deemed Conveyance - Section 11 - Incomplete Development - The Competent Authority cannot grant unilateral deemed conveyance of the entire land to one society when other buildings on the same land remain incomplete and are governed by the Maharashtra Apartment Ownership Act, 1970. The rights of other flat owners who have agreed to be governed by MAO must be considered. (Paras 2-3)
B) Maharashtra Ownership Flats Act, 1963 - Deemed Conveyance - Section 11 - Unilateral Application - A cooperative housing society cannot seek deemed conveyance of the entire land unilaterally without the consent of other flat owners or developers, especially when the development is ongoing and other projects are incomplete. (Paras 2-3)
Issue of Consideration
Whether the Competent Authority under MOFA can grant unilateral deemed conveyance of the entire land to one cooperative housing society when the development is incomplete and other buildings on the same land are governed by the Maharashtra Apartment Ownership Act, 1970.
Final Decision
The impugned order and certificate dated 22 November 2013 are quashed and set aside. The matter is remanded to the Competent Authority for fresh consideration after hearing all parties.
Law Points
- Deemed conveyance under MOFA cannot be granted for entire land when development is incomplete and other buildings are governed by MAO
- Unilateral application for conveyance without consent of other flat owners is impermissible
- Competent Authority must consider rights of all parties before ordering conveyance
Case Details
2015 LawText (BOM) (04) 38
WRIT PETITION NO. 11802 OF 2013 WITH CIVIL APPLICATION NO. 3068 OF 2013 AND CIVIL APPLICATION NO. 1780 OF 2014
Mr. Pravin Samdhani, Senior Advocate a/w Mr. Karl Tamboly, Mr. Kunal Vajani, Ms. Pranaya Goyal, Mr. Raghav Gupta and Ms. Dhwani Shah with Mr. Sumanth Anchan i/by Wadia Ghandy & Co. for the Petitioners. Ms. M.S. Bane, 'B' Panel counsel and Mrs. Vaishali Nimbalkar, AGP for Respondent No.1. Mr. V.A. Thorat, Senior Advocate a/w Mr. Chirag S. Balsara, Mr. H.N. Vakil, Mr. S. Patel i/by M/s. Mulla and Mulla & C.B. & C. for Respondent No.2. Mr. P.S. Dani, Senior Advocate a/w Mr. Suraj Iyer i/by Ganesh & Co. for Respondent No.3.
Marathon Next Gen Realty Limited and Marathon Realty Private Limited
The Competent Authority, Marathon Era Cooperative Housing Society Limited, Maplewood Trading Pvt. Ltd.
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Nature of Litigation
Writ petition challenging order of Competent Authority granting unilateral deemed conveyance of entire land to a cooperative housing society under MOFA.
Remedy Sought
Quashing of order and certificate dated 22 November 2013 passed by the Competent Authority.
Filing Reason
The Competent Authority allowed unilateral deemed conveyance of the entire land to Respondent No.2 society without considering that other buildings on the same land were incomplete and governed by MAO.
Previous Decisions
Order dated 22 November 2013 by Competent Authority granting deemed conveyance.
Issues
Whether the Competent Authority under MOFA can grant unilateral deemed conveyance of the entire land to one cooperative housing society when the development is incomplete and other buildings on the same land are governed by the Maharashtra Apartment Ownership Act, 1970.
Submissions/Arguments
Petitioners argued that the Competent Authority overlooked the fact that remaining projects/buildings 'Innova' and 'Icon' and others were incomplete and part of the whole land, and that the rights of members of other flats governed by MAO were required to be considered.
Respondent No.2 society sought deemed conveyance of the entire land.
Ratio Decidendi
The Competent Authority under MOFA cannot grant unilateral deemed conveyance of the entire land to one cooperative housing society when the development is incomplete and other buildings on the same land are governed by the Maharashtra Apartment Ownership Act, 1970. The rights of all flat owners and the developer must be considered before ordering conveyance.
Judgment Excerpts
The PetitionersOwnersDevelopers of land bearing Survey No. C.S. No. 2/142, Veer Santaji Lane, Opposite G.K. Marg, Lower Parel, Mumbai, admeasuring 35499.83 sq. mtrs. (“the whole land”) have challenged order and certificate dated 22 November 2013 passed by the Competent Authority (Respondent No.1) under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, “MOFA” ), thereby allowed an Application filed by Respondent No.2 – a Cooperative Housing Society Ltd (`the society' ) for unilateral deemed conveyance of the whole land by overlooking the fact of incompletion of remaining projects/buildings named `Innova' and `Icon' and others, which are also part of the whole land.
The entitlement/rights of members of other apartment/flats as they have agreed to be governed by the provisions of Maharashtra Apartment Ownership Act, 1970 (for short, “MAO”) are also required to be taken into consideration while passing such order.
Procedural History
The Competent Authority passed order and certificate dated 22 November 2013 granting unilateral deemed conveyance of the entire land to Respondent No.2 society. The petitioners filed Writ Petition No. 11802 of 2013 challenging the same. The court heard the matter and reserved judgment on March 10, 2015, pronouncing it on April 18, 2015.
Acts & Sections
- Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963: Section 11
- Maharashtra Apartment Ownership Act, 1970:
