Unilateral Deemed Conveyance – Parameters of powers under Section 11 of the MOFA Act – Authority performs obligation and duty for the failure of promoter
By the order dated 3.4.2017, the Respondent no.4 rejected unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA Act) in respect of the plot at Tukaram Mahadik Road, Kharkar Ali, Thane (West) and directed the society to approach the Civil Court holding that the agreement of owner with the developer was oral.
The petitioner is the cooperative housing society and in possession of the plot of the land consisting of buildings A and B. Respondent Nos.1 and 2 entered into an agreement to sell flats with the purchasers but failed to execute conveyance in favour of the society within the stipulated time.
On 31.5.2013, the petitioner filed application for unilateral deemed conveyance. The promoters had no objection. However, respondent no.3 claiming to be owner has objected to the same on the ground that there is no privity of contract between promoter and the respondent no.3.
HELD that it is well settled in the scheme of the Act and the Rules, the promoter is under obligation to agree to sell the flats, promoter shall register it, then form society of flat purchasers and execute conveyance after completion of the development. Following the judgment in 2012 SCC Online Bom 1266 of Mazda Construction Company case, it was found that what is to be performed by the Competent Authority is the duty and obligation which the promoter is to perform in law. Based on the documents, it was seen that the husband of respondent no.3 by his act and declaration caused the tenants and purchasers to belileve that respondent no.1 was promoter. Therefore, the respondent no.3 cannot be permitted to object deemed conveyance of the society.
Judgment dated 9.2.2024 in Writ Petition No.2082 of 2018 of Jai Jalaram Cooperative Housing Society Ltd V/s M/s. Nanji Khimji & Co. And others.
