Section 11 of MOFA – Unilateral Deemed Conveyance – Whether it can be made subject to the right of way to the adjoining plot?

Six societies and their buildings are situated on the plots at Mulund (East) as per the sanctioned lay-out.  There are several common facilities and also 12 meter wide internal road connecting all buildings with Goregain-Mulund link road and exclusively meaning of said societies.  The Developer entered into the agreements for sale of flats in the said buildings as per Section 4 of  the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA).

There is adjoining plot which is not part of lay out of buildings of six societies.   

Since the Developer did not convey the land of buildings of the petitioner society, Application under  Section 11 of  MOFA was filed. For the first respondent, the Developer – respondent no.3 disclosed that it had executed the Deed for Right of Way with the Developer of adjoining plot, giving right of way from the internal road of the petitioner society.

By the order dated 8.2.2023, it was allowed and unilateral conveyance deed was given to the petitioner society.

However, the Competent Authority had incorporated a caveat in the said said certificate that conveyance of the land is made subject to the right of access to the buildings on neighbouring plots, which are not part of the Society’s building.

In the case of another Society Ridhi Garden of the same lay out, no such right of way was given in its deemed conveyance.

HELD that a promoter is under obligation to transfer right, title and interest in the land and building as per the Agreement executed under Section 4 of the MOFA and in Form V prescribed in Rule 5 of the MOFA Rules.   However, the promoter cannot convey any right which is not conveyed in the said Agreement and same cannot be further conveyed by the Competent Authority.    The promoter or for that matter, the Competent Authority are liable and entitled to convey only the right, title and interest covered by the Agreement executed under Section 4.   The right of way given to the adjoining plot of another promoter is not part of the Agreement of the petitioner society.  Moreover, it was created after execution of the Agreements of the petitioner society.  Therefore, the promoter as also the Competent Authority have no right to convey the same in favour of another promoter or give right of way to the adjoining plot in the unilateral conveyance of the petitioner society.

Judgment dated 8.3.2024 in W.P.(Lodging) No.14346 of 2023 of Riddhi Gardens Building Vs. District Deputy Registrar, Cooperative Societies, Mumbai and others with connected matters.