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Judgment
Rule. Rule made returnable forthwith. Both these Petitions raise identical issues and with consent, are taken up for final hearing together. Common submissions were advanced and both Petitions are being disposed of by this common order.
For purpose of clarity, the facts of the Writ Petition No. 16399 of 2023 are referred.
The Petition impugns the order of deemed conveyance and certificate passed by the competent authority under Section 11 of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 [for short, “MOFA”] conveying an area of 1136.01 sq. metres along with the structure situated therein. The Respondent No. 3-Society came with the case that it is registered as co-operative housing society and as there was non-compliance of statutory obligations by the Petitioner-developer, the Application was filed under Section 11 of MOFA. The competent authority, after hearing the parties, observed that the Petitioner-Developer had raised an objection as regards area calculation, but has failed to submit supporting documents to prove their contentions where Respondent No. 3-Society had submitted Architect Certificate showing the proportionate area to be conveyed. The Competent Authority further observed that as per 7/12 extracts/agreement for sale/approved building plan/architect certificate, the Respondent No. 3-Society is entitled to unilateral conveyance of proportionate land admeasuring 1136.01 sq. metres out of 2600 sq. metres.
Mr. Damle, learned Senior Advocate appearing for Petitioner would submit that insofar as the Writ Petition No. 16399 of 2023 is concerned, there is no registration of the conveyance deed whereas in Writ Petition No. 8120 of 2023, without any notice to the Petitioner, as contemplated by Section 11(5) of MOFA, the conveyance has been registered. He would point out the order passed by this Court directing that no further action be taken pursuant to the impugned order. He would further submit that the Respondent No. 3-Society is part of larger layout which is being developed by the Petitioner and as per the Flat Purchaser’s Agreement executed by the parties, the property is to be conveyed to the Federation after the entire layout is developed. He would further submit that the Petitioner-Developer has right, title and interest in the FSI arising out of entire land being developed and the competent authority could not have granted deemed conveyance in favor of Respondent No. 3.
Per contra, Mr. Datar, learned counsel appearing for Respondent No. 3 in Writ Petition No. 16399 of 2023 and Mr. Sawant, learned counsel appearing for Respondent No. 3 in Writ Petition No. 8120 of 2023 and for Respondent No. 13 in Writ Petition No. 16399 of 2023 would support the impugned order granting deemed conveyance and would submit that the Petitioners have duly produced the Architect Certificate in order to substantiate the proportionate area of land required to be conveyed for sustaining their built-up area. Accordingly, the competent authority after considering the architect certificate, various clauses in the sale agreement, sanctioned building plan has rightly granted deemed conveyance. It is submitted that in event any claim of right, title and interest is raised by the Petitioner-Developer, it is open for the Developer to file civil suit and agitate its right in civil proceedings.
I have considered the submissions and perused the record.
As there was non-compliance of the statutory obligations as imposed by MOFA, the Respondent No. 3-Society was constrained to file application under Section 11 of MOFA before the competent authority seeking grant of deemed conveyance. In support of its claim, the Respondent No. 3 has submitted the architect certificate which sets out the constructed built-up area and the land which is required for sustaining the built-up area along with the undivided share in the common areas. The competent authority has observed that there is no counter architect certificate filed by the Petitioner-Developer to contest the area certification as per the Architect’s Certificate. Before this Court, it is not demonstrated that the area certification suffers from infirmity.
The Government resolution of 22nd June, 2018 was issued for setting out the procedure to be followed by issuing deemed conveyance order and makes a specific reference to the cases where there are more than one buildings in one plot having separate co-operative housing society of each building and the construction of some of them is incomplete. The G.R. provides that while granting deemed conveyance in respect of the constructed building, undivided share of occupancy right in the proportion of construction on the proportionate area of the construction of the building of such society on the ground coverage or plinth area, similarly open space, common services and facilities, roads should be given. The said G.R. also lays down that while granting deemed conveyance in respect of the buildings in the layout where the transferable development rights is utilized, the conveyance should be made according to the plinth and appurtenant area. Considering the resolution, even if the layout is not completely constructed deemed conveyance can be granted on proportionate area which has been done in present case.
Much emphasis has been placed by Mr. Damle, learned Senior Advocate appearing for the Petitioner on the said clauses of the G.R. to contend the area has not been rightly conveyed to Respondent No. 3-Society. In order to substantiate the same, it was necessary for the Petitioner to produce the counter Affidavit certificate to justify the area which was required for sustaining the constructed structures of the housing society.
Perusal of the impugned order indicates that the Competent Authority has followed the G.R. of 22nd June, 2018 and after considering the relevant documents issued the certificate of unilateral deemed conveyance. As the Petitioner claims right, title and interest in the property, it is now well settled by catena of decisions starting from case of Mazda Construction Company v. Sultanabad Darshan CHS Ltd.1 which was clarified in Shree Chintamani Builders v. State of Maharashtra2, that the remedy of civil suit is available as the grant of deemed conveyance does not conclude the issue of right, title and interest in respect of subject property. I am therefore, not inclined to interfere with the order of deemed conveyance in exercise of powers under Article 227 of the Constitution of India. It is open for the Petitioner to file adopt appropriate civil proceedings seeking declaration of its right, title and interest in the subject property.
In event, any such civil suit is filed, the same to be adjudicated by the Civil Court on its own merits and uninfluenced by the competent authority.
In light of the above, Writ Petition stands dismissed. Rule is discharged.