Deemed conveyance can’t be denied to unauthorised buildings: HC

MUMBAI: In a reprieve to thousands of unauthorised buildings, the Bombay high court on Monday held that unilateral deemed conveyance cannot be denied to a housing society because of any illegal or unauthorised nature of its building.
“The order of Competent Authority rejecting the application on the ground of the illegality of the structure, thus, is unsustainable,” a single judge bench of justice Sharmila Deshmukh said, while ordering the authority to grant unilateral deemed conveyance to ALJ Residency Co-operative Housing Society at Pali Naka in Bandra West.
The society was denied unilateral deemed conveyance on the grounds of lack of occupancy certificate, as the sixth and seventh floors of the society building were illegal. The housing society had approached the high court, challenging a January 2017 rejection of its plea for unilateral deemed conveyance by the Competent Authority – district deputy registrar of Co-operative Societies, Mumbai.
According to the housing society, in March 1993, the landowners had executed an agreement with Bhati Homes Pvt Ltd for developing the 1,284-sq-m plot. Accordingly, construction started in 1998, and a ground-plus-7-storey building was constructed, and flats were sold to individuals.
As the developer did not convey the property to the housing society of the flat buyers, the society in May 2015 approached the competent authority for grant of unilateral deemed conveyance.
On 30 January 2017, the Competent Authority rejected the order on the grounds that certain documents like agreements for sale were not annexed to the application and that the architect’s certificate showed that two upper floors – sixth and seventh – were unauthorised, the building lacked occupation certificate, and the Brihanmumbai Municipal Corporation (BMC) had in July 2008 issued notices for demolition of the two unauthorised floors.
“The default of promoters in obtaining the necessary permissions and approvals cannot impinge the right of the flat purchasers to seek conveyance of the land and structure, even if the structure is unauthorised,” the bench said.
The court added that the grant of deemed conveyance does not have the effect of regularising the unauthorised structure. “All that the Competent Authority does is that it steps in the shoes of the promoter and conveys right, title and interest of the promoters to the flat purchasers. The grant of deemed conveyance will not bar the planning authorities from taking action against the illegal structure.”
As regards lack of certain documents, the court said the Maharashtra Ownership Flat Act (MOFA) rules require the Authority to issue a notice to the housing society if it finds any defects in the application for unilateral deemed conveyance, calling for rectification of the defects, and since no such notice was issued to the Bandra West society, the application must be deemed to be complete in all senses.