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Conveyance to Societies / Housing Societies


Section 11 of Maharashtra Ownership of Flats Act, 1963, (MOFA) r/w Rule 9 of MOFA Rules, 1964, obligates upon Developers to execute conveyance in favour of the Society within four months from the date on which the co-operative Society is duly constituted.

The Conveyance to Housing Societies and other Societies, is a pressing issue in Mumbai; and rest of India may not be an exception. The Developers do not Convey land to in favour of Societies to retain control over the administration of the Building; and probably to claim further development rights over the said land, which may accrue in future.

The Hon’ble Bombay High Court in the Case of Ratna Rupal CHS [2011 (5) BCR 561, also referred in 2015 (5) MhLJ 318, 2016 (5) MhLJ 102] have made some very interesting observations:

Para 10: The Conveyance had to be executed within the specified period. The conveyance was not executed for a number of years. The Plaintiff (Society) must be taken to have had full title in the entire plot of land on which their building came to be constructed.

Para 27: Further, the failure and neglect to register the society and convey the property would certainly not give any right to the Developer to step upon the property or to claim any FSI. The FSI belongs to the plot. The plot must be taken to be conveyed after the statutory period.

The legal inference which can be drawn from the aforesaid observation is that – the Society is deemed to be the Owner of the subject land and only formal transfer / Conveyance is required.

Nevertheless, the issue remains as what legal remedy is available if the Developer neglects to execute Conveyance.

The remedy of deemed Conveyance is already on the table; but it appears to have not redressed the issue as thought of. The remedy of Consumer Court also failed to its expectation. The remedy before Civil Court by way of Civil Suit is always available.

I am of the view that remedy before Civil Court by way of Civil Suit may be effective, seeking Mandatory Injunction to Execute Document of Conveyance. It may be effective and economical for the following reasons –

Since it is a Statutory obligation, there will not be any Court fee on this Relief of Mandatory Injunction.

This relief of Mandatory Injunction may also be sought by way of Interim Relief, during the pendency of Suit.

If despite the Decree which may be passed at the Interim stage, the Developer neglects to Execute Conveyance, then, apart from other legal recourse that are available, by virtue of and in accordance with Order XXI, Rules 34 and 80 of CPC, 1908, the Document of Conveyance may be Executed and Registered by the Officer of the Court.
Nevertheless, the other Reliefs of damages, declaration, prohibitive Injunction, if any, may also be sought alongwith Mandatory Injunction.


I am of certain view that once the Society is duly constituted, the Developer would not have any sustainable plea, to resist Execution of Conveyance, more particularly for the reasons, the MOFA doesn’t stipulate any such condition.

Sandeep Jalan
Advocate

https://www.litigationplatform.com/




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Comments

Dr. Binoy Gupa x Chief Commissioner of Income Tax said…
Very good article giving the correct legal position.
October 2, 2022 at 7:58 AM
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