Open Plot – Unilateral Deemed Conveyance for society of composite members – (constructed bungalows and open plot holders)
Out of total 243 bungalow plots, the petitioners constructed and sold bungalows on 24 plots and remaining 219 plots were sold without construction at village Wagholi Taluka Haveli Dist. Pune.
The purchasers of both the bungalows and the plots became the members of the respondent no.2 Society registered as tenant cooperative housing society.
Mere open plot of land where nothing is constructed or agreed to be constructed would not qualify as Flat in MOFA and the agreements of 219 members of respondent no.2 society, who agreed to purchase open plots – cannot be treated as agreements under Section 4 of MOFA. There is a contractual obligation of the petitioners to convey land to the Society.
Constructed Bungalows – Agreement shows that the constructed units agreed to be sold by the Petitioners include attached toilet and several rooms and thus they are self-contained units within the meaning of “Flat” under Section 2(a-1) of MOFA as also “Apartment” under Section 3(a) of Apartment Ownership Act. There is statutory obligation of the petitioners under Section 11 of MOFA to convey land to the society.
Earlier decision of K.V.Satyamurthi case (2023 (3) Bom CR 377) is referred and relied on.
Deemed Conveyance – Entitlement of Society with composite members (purchasers of open plots and constructed bungalows). As per the agreements in both the cases (details given in para 42 of the judgment) the petitioners specifically undertook to execute conveyance of the entire land in favour of the respondent no.2 society.
The question is whether the statutory right of 24 members (constructed bungalows) to conveyance under Section 11 of the MOFA can be defeated for non-existence of such statutory obligation in respect of rest of 219 members – plot holders.
Certificate of Deemed conveyance is not determinative of final adjudication between the rights and entitlements of parties. Dispute between the parties as to the area of land conveyed under the certificate. It is open to the parties to approach Civil Court to question conveyance (para 53).
Agreements suggest that the entire land including internal roads and open spaces were agreed to be sold. Therefore, the dispute raised by the developers / owner for grant of deemed conveyance in respect of internal roads and open spaces
Section 11(5) of MOFA – Mandatory to give notice by the Sub-Registrar to the Promoter and hearing before registration of unilateral deemed conveyance (para 64). Registration of deemed conveyance on 24.7.2020 without complying with mandatory provisions of Section 11(5) of MOFA is set-aside.
HELD that the order dated 17.3.2020 is legal. However, the registration of deed of deemed conveyance on 24.7.2020 and the consequent mutation entries are set-aside.
