Sanjar Enclave Society Gets No Deemed Conveyance Yet, Must Await Civil Court Ruling On 2014 Development Consent: Bombay HC

The Petitioner society represents purchasers in Sanjar Enclave, one of three buildings on a 4,163.70 sq. m. layout that also included Madina Manzil and Akshar Kunj.

In 2014, Sanjar Enclave purchasers executed an affidavit recording no objection to further development of the layout and agreeing that conveyance would follow completion of the whole layout; the society was registered in 2015.

The society applied for deemed conveyance of the entire layout land, but did not disclose the other buildings or implead Akshar Kunj CHSL. The Competent Authority rejected the application, citing the layout-wide use of FSI/TDR and the rights of other occupants.

The society challenged that order and, in the writ proceedings, sought conveyance of a proportionate share. It had also filed a civil suit challenging the 2014 affidavit and related development; the validity of that affidavit remained before the City Civil Court.

Under Sections 10 and 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA), read with Rules 8 and 9 of the MOFA Rules, a promoter must form the flat purchasers’ organisation and convey the relevant title within the prescribed periods; in a layout, a society’s proportionate land entitlement ordinarily crystallises when the Rule 9 period expires.

Under Satellite Garden-I CHSL v. State of Maharashtra, that entitlement is generally calculated by reference to the plan then in existence and is not reduced by later plan revisions, but the principle does not apply in the same way where earlier purchasers have given written consent to a revised plan; the consent-related issue may require civil adjudication.

Section 7 of MOFA governs consent to additional construction.

Rose Villa CHSL v. District Deputy Registrar recognises that the Competent Authority may make a prima facie inquiry into whether consent exists, including whether the material is merely a blanket consent, but cannot conduct a detailed inquiry into its validity or adequacy.

MOFA and the Government Resolution dated 22 June 2018 permit proportionate conveyance before completion of all development in a layout.

The society’s original claim to the entire layout land was untenable because other buildings and their purchasers had interests in the land; its failure to disclose those buildings and to implead Akshar Kunj CHSL also rendered its application defective.

Although the society later sought only a proportionate share, the applicable plan—and therefore the basis for calculating that share—depended on whether its members’ 2014 affidavit constituted consent to further development.

The society had placed that dispute before the City Civil Court and had not sought its determination in the deemed-conveyance proceedings. The High Court therefore declined to decide the consent issue in the writ, leaving it to the civil court; until that decision, the society could not establish the plan against which its proportionate entitlement should be assessed.

However, the agreement to wait for completion of the whole layout could not itself justify postponing conveyance indefinitely: once the civil suit was decided, the society could seek proportionate conveyance without awaiting Akshar Kunj’s redevelopment.

It left the validity and effect of the 2014 affidavit to the City Civil Court, directed that the pending suit be decided as expeditiously as possible, preferably within six months, and permitted the society to file a fresh deemed-conveyance application after that decision. No order as to costs was made.