NEELKANTH HEIGHTS COOPERATIVE HOUSING SOC AND ORS v. ABHINAV REAL ESTATE PVT LTD
Deemed Conveyance under MOFA: Promoter's Obligation Cannot Be Delayed by Phased Development Clauses; Statutory Rights Prevail Over Private Agreements.
Court: Bombay High Court
Citation: 2025:BHC-AS:21346
Decision Date: 09-05-2025
List of Laws
Article 227 of the Constitution of India; Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA); Section 11 of MOFA; Rule 9 of the MOFA Rules; Maharashtra Cooperative Societies Act, 1960; Transferable Development Rights (TDR)
- Facts: Several cooperative housing societies formed an association to seek a unilateral deemed conveyance of property Survey No. 194/1B in Thane, as the promoter (Respondent No. 1) failed to execute the conveyance deed despite the societies being registered for a considerable period (2004, 2005, and 2011). The Competent Authority rejected their application, citing reasons such as the land being part of a larger layout under phased development, the petitioner-Association not being formed in consonance with agreements, and a status quo order in a related suit. The promoter argued that conveyance could only occur after full project completion and that the association was only for limited purposes.
- Procedural Posture: The petitioner-Association challenged the Competent Authority's order rejecting their application for deemed conveyance by filing a writ petition in the High Court under Article 227 of the Constitution of India.
- Issue: Did the Competent Authority err in rejecting the petitioner-Association's application for a unilateral deemed conveyance under Section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA), based on the grounds of ongoing phased development, the association's formation, and a status quo order in a separate suit? Can clauses in agreements postponing conveyance indefinitely override the statutory mandate of MOFA?
- Holding: Yes, the Competent Authority's order was unsustainable. The High Court allowed the writ petition, directing the issuance of a deemed conveyance certificate in favor of the petitioner-Association.
- Reasoning: The Court reasoned that the promoter's obligation to convey within four months of society registration, as per Section 11 of MOFA and Rule 9 of the MOFA Rules, is a statutory mandate that cannot be overridden by private agreements stipulating conveyance only upon full project completion. The Court emphasized that indefinite delays due to phased development are inconsistent with MOFA's intent to protect flat purchasers' rights. The Court also found that the status quo order in a separate suit was not binding as neither the petitioner nor the promoter were parties to that suit. The Court further clarified that the formation of an apex body is merely a procedural option and not a legal precondition for conveyance. The Court held that the promoter's claim to utilize TDR or additional FSI is not a valid justification to refuse or delay the deemed conveyance. The Court cited Flagship Infrastructure Ltd. v. The Competent Authority to support the position that clauses delaying conveyance until project completion are void and unenforceable. The Court also noted that the Competent Authority has a duty to grant a deemed conveyance certificate when the promoter was obliged to convey, a proper organization of flat takers exists, and the promoter failed to convey within the stipulated time.
🔒 For Members Only