Bombay HC – Section 11 MOFA – Deemed Conveyance – Common Areas, Roads & Gardens
On 24.1.2017, the respondent no.3 Magnum Tower CHS Limited filed application for deemed conveyance of the entire land admeasuring 13,569 sq.mts. It was rejected on 24.1.2017. This was not challenged and attained finality.
On 16.5.2022, the respondent no.3 filed application for unilateral deemed conveyance of10,097.84 sq.mts out of the said plot.
Inclusion of garden areas and common areas roads in the deemed conveyance beyond the scope of the governing agreements and illegal (Mada Construction Co. Vs. Sultanabad Darshan Cooperative Housing society 2012 SCC OnLine Bom 2166) it has been held that when common amenities such as gardens and access roads are seriously disputed or form the subject matter of pending litigation, the Competent Authority ought not to include them in a deemed conveyance.
Under Clause B(3) of the Government Resolution dated 22 June 2018, where measurement disputes arise in a layout involving multiple societies, the authority is required to appoint an independent architect from its approved panel to submit a report. It was submitted that failure to adhere to the mandatory procedure prescribed under the Government Resolution vitiates the impugned order.
By the impugned order dated 9.1.2023, the unilateral deemed conveyance was granted to the respondent no.3.
In proceedings under Section 11 of the Maharashtra Ownership of Flats Act, the Competent Authority does not sit as a civil court to decide title in the larger sense. It examines whether the promoter has failed to execute a conveyance and whether the society or flat purchasers are entitled to have a unilateral conveyance executed. The scope is limited. The authority must see the agreement, the sanctioned plans, the layout, the nature of the property described and the rights flowing from the statute.
If, in the earlier proceedings, the authority made certain observations regarding the title of the promoter, the validity of the development agreement, or the extent of land ownership, but ultimately rejected the application on a procedural ground, such observations would be regarded as collateral or incidental in nature. In that event, those observations would not operate as a bar in subsequent proceedings.
When the later order dated 9 January 2023 is examined in this background, it becomes apparent that it revisits and alters what had already been settled in 2017. The subject matter of both applications is substantially identical. The reasons for rejection in the earlier round, particularly the inclusion of common areas and facilities, remain equally relevant in the present claim. There is no new foundational fact, no change in legal position, and no jurisdictional error in the earlier order which could justify reopening.
Judgment dated 24.2.2026 of the High Court of Bombay in Writ Petition No.11328 of 2023 of Magnum Unit A CHS Limited and others Vs. The State of Maharashtra and others
