Deemed Conveyance for ownership – Agreement for leasehold rights to Society
The petitioners are owners of the plot situated at the junction of S.V. Road and Rambaug Lane, Borivali. The promoters constructed the buildings on the said plot. The flat purchasers of Vijay I building formed Vijay CHS, whereas, flat purchasers of Vijay II building formed Vijay II CHS.
According to the promoters, the occupiers of two flats in third building of Wing D are not part of any of two Societies.
By the impugned order dated 12.11.2024, the Authority granted deemed conveyance certificate on ownership basis to the Vijay II CHS.
HELD that the rejection of earlier application by the order dated 25.9.2023 was on the ground of incapacity of Board of Administrators to file such application for deemed conveyance. However, the Authority has granted liberty to Vijay II CHS to file fresh application for deemed conveyance. Therefore, fresh application was maintainable.
The Agreement with the flat purchasers under Section 4 of MOFA needs to be in Form V (model agreement) prescribed under MOFA Rules. Clause 13 of Form V Agreement mandatorily requires the promoter to transfer to transfer all the right, title and interest of the vendor / lessor / original owner / promoter in the land together with the building, to the Society.
Rule 11 of the MOFA does not permit a promoter to hold onto himself any part of right in the land and building. Thus, MOFA contemplates automatic divesting of ownership of promoter in the land and transfer thereof in favour of the society. Section 11 strikes at the root of the mischief and cures the same by providing that there is automatic loss of title of the promoter, the moment all flats in the building are sold. Under no circumstance, a promoter can retain any semblance of right in the land once the building is constructed, Society is formed and all flats are sold.
A promoter, who is the land owner, cannot agree to convey only lease hold rights in the land and the building. The Authority possesses jurisdiction to direct conveyance of land and building on ownership basis where the promoter is the owner of the land by ignoring covenant in the Agreement which does not provide for conveyance of land on ownership basis or grant of mere lease thereof.
Multiple Societies can be formed for each wing in respect of singular building. The concept of “additional building’ or ‘additional structure’ for application of provisions of Sections 7 and 7A of MOFA cannot be mixed with provision for conveyance of land and building under Section 11 of MOFA. It is permissible to form multiple societies in respect of different wings of the same building and such multiple societies can apply for separate conveyances in their favour as per the Circular dated 30.7.2004 of the Government of Maharashtra.
Mere interlinking of Wing D structure with balance part of the society building would not make Wing D as part of the Society’s building. Sharing common wall between Society’s building with Wing D would not ipso facto make the Society entitled to claim ownership of Wing D building and the land utilised for its construction.
Judgment dated 8.5.2025 of the High Court of Bombay in Writ Petition No.18739 of 2024 of Haresh Vijaysinh Bhati and others Vs. District Deputy Registrar, Cooperative Societies, Mumbai and others with connected matters.
