[Cites 19, Cited by 0]
Bombay High Court
Bramha Sun City Platinum Co-Op Housing ... vs The State Of Maharashtra Through ... on 6 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:10998
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Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SAYALI WRIT PETITION NO. 8540 OF 2024
DEEPAK
UPASANI
Bramha Sun City Platinum
Digitally signed
by SAYALI
Co-operative Housing Society Ltd.,
DEEPAK
UPASANI (Reg. No. PNA/PNA(5)/HSG(TC)/
Date:
2026.03.06 18706/2018-19 dated 18.09.2018
14:57:43 +0530
having its office at:- Survey Nos. 7/1,
2, 3,4, 5, 8/1/1/2/3/2 (Part),
Wadgaonsheri, Pune - 411 014.
Through its Chairman & Secretary
1. Deep Kumar Ramchandran,
Aged 64 years, Occu: Business,
2. Datta Damodar Wagaskar,
Aged 69 years, Occu; Business. ... petitioner
V/s.
1. The State of Maharashtra,
Through Secretary, Ministry of
Co-operation Department, Mantralaya,
Mumbai. (Notice to be served on Ld.
Government Pleader), appearing for
the State of Maharashtra under
Order 27 Rule 4 of Civil Procedure
Code, 1908).
2. The Competent Authority and District
Deputy Registrar, Co-op. Societies,
Pune City, Pune, having its office at
Sakhar Sankul, Shivaji Nagar,
Pune - 411005)
(Notice to be served on Ld.
Government Pleader, appearing for the
1
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State of Maharashtra under Order 27
Rule 4 of Civil Procedure Code, 1908).
3. Bramha Corp Limited (Formerly
Known as Bramha Corp
Infrastructure Private Limited),
through their Authorized
Officer/ Director/ Managing Director,
having its office at 3, Queens Garden,
General Arunkumar Vaidya Marg,
Pune - 411 001.
4. Bajaj Electricals Limited,
Through their Power of Attorney
Shri Rajkumar Agarwal, Having their
office at Survey No. 7,
Wadgaonsheri, Nagar Road,
Pune - 411 014.
5. Sanjay Raut
The Competent Authority and District
Deputy Registrar, Co-operative
Societies, Pune City, Pune
having its office at Sakhar Sankul,
Shivajinagar, Pune - 411 005. ... respondents
Mr. Girish S. Godbole, Senior Advocate with Mr. R. S.
Kulkarni, for petitioner.
Mr. S. L. Babar, AGP for State-respondent Nos. 1 and 2.
Mr. Anil Y. Sakhare, Senior Advocate i/b Mr. Aadesh M.
Patil, for respondent No. 3.
Mr. Sanjay Sanduji Raut, District Deputy Registrar,
Pune City, present in-person.
2
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CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 23, 2026
PRONOUNCED ON : MARCH 6, 2026
JUDGMENT.:
1. By the present Writ Petition filed under Article 227 of the
Constitution of India, the petitioner assails the legality, validity and
propriety of the impugned order dated 06 March 2024, passed by
the Competent Authority and District Deputy Registrar, Co-
operative Societies, Pune City, Pune, in Deemed Conveyance
Application No. 82 of 2023, whereby deemed conveyance has been
granted.
2. The facts, according to petitioner, giving rise to the present
writ petition are set out herein below.
3. respondent No. 3 undertook development of the land
comprised in Survey Nos. 7/1, 2, 3, 4, 5 and 8/1/2/3/2 (Part),
situated at Wadgaonsheri, Pune, admeasuring in aggregate 21 H.
93.4 R., owned by respondent No. 4 Company. The petitioner
Society came to be registered with the Competent Authority on 18
September 2018 and consists of four buildings, namely A-4
comprising 22 flats, C-6 comprising 44 flats, CL-3 comprising 44
flats, and D-7 comprising 22 flats. respondent No. 3 executed
agreements for sale, styled as Articles of Agreement, with the
purchasers and members of the petitioner Society in respect of
flats constructed in the layout developed by respondent No. 3, as
described in the said agreements. Prior to the formation of the
petitioner Society, respondent No. 3 executed a Memorandum of
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Understanding seeking to convey an area admeasuring 10,763.06
sq. meters, together with total FSI/FAR potential of 18,089.77 sq.
meters, out of the larger layout described in Schedule 'A' to the
notarized Memorandum of Understanding dated 12 August 2018.
4. After formation of the petitioner Society on 18 September
2018, the Society received records and charge from respondent
No. 3. Upon scrutiny of the records and the sanctioned
development plan approved by the Competent Authority vide CC
No. 3461/2014 and revised on 22 January 2015, the petitioner
Society found that the area proposed to be conveyed under the
Memorandum of Understanding dated 12 August 2018 was less
than its entitlement. Consequently, in the Annual General Meeting,
the Society unanimously rejected the said Memorandum of
Understanding on the ground that it was unilateral and that the
proposed area was inconsistent with the Government Resolution
dated 22 June 2018 and the sanctioned development plan dated
22 January 2015. Thereafter, upon computation of the area
together with appurtenant rights claimed to be conveyable, the
petitioner Society obtained an architect's opinion. By certificate
dated 20 November 2023, the Architect opined that the petitioner
Society was entitled to conveyance of proportionate area
admeasuring 15,762.39 sq. meters, along with the built-up area
specified therein.
5. The petitioner Society accordingly filed Deemed Conveyance
Application No. 82 of 2023 under Section 11(3) of the
Maharashtra Ownership of Flats Act, 1963, in the prescribed
format before respondent No. 2. By the said application, the
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petitioner sought conveyance of proportionate land admeasuring
15,471.74 sq. meters, based on the Architect's Certificate dated 20
November 2023, together with the built-up area mentioned
therein. The said application was opposed by respondent No. 3 by
filing a reply dated 08 August 2023. The principal defense raised
therein relied upon the Memorandum of Understanding dated 12
August 2018 allegedly executed between the Ad-hoc Committee of
the petitioner Society and respondent No. 3, providing for
conveyance of area admeasuring 10,763.06 sq. meters with FSI of
18,089.77 sq. meters. The reply also records that the Society was
formed on 18 September 2018, whereas the Memorandum of
Understanding is dated 12 August 2018. Upon completion of
pleadings, the petitioner Society filed written notes of arguments
dated 14 September 2023 before respondent No. 2, which were
taken on record.
6. Respondent No. 3 thereafter filed an additional reply dated
07 February 2024 contending that, in view of the revised
development plan for the entire DP layout sanctioned by Pune
Municipal Corporation vide CC/0237/23 dated 26 April 2023, the
Architect's Certificate obtained by respondent No. 3 indicated that
the petitioner Society was entitled only to conveyance of 7,577.31
sq. meters of proportionate land from the entire layout. It was
further stated that though the revised development plan was
sanctioned on 26 April 2023, the Deemed Conveyance Application
had been filed earlier on 20 February 2023 and, therefore the
revised plan was not in existence on the date of filing of the
application. In response to the additional reply dated 7 February
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2024, the petitioner filed additional written notes of arguments
dated 1 March 2024. The petitioner specifically contended that the
Deemed Conveyance Application was filed on 20 February 2023
and first heard on 23 March 2023, followed by hearings on 13
April 2023, 27 April 2023, 06 June 2023, 26 June 2023, 19 July
2023, 8 August 2023, 31 August 2023, 14 September 2023, 26
September 2023, 19 October 2023, 02 November 2023, 22
November 2023, 06 December 2023, 21 December 2023, 09
January 2024, 18 January 2024, 07 February 2024 and 12
February 2024, aggregating to nineteen hearings. It was asserted
that despite these hearings, respondent No. 3 did not place on
record the revised plan approved on 26 April 2023 until 7 February
2024. According to the petitioner, the initial defense of respondent
No. 3 rested solely on the Memorandum of Understanding, and
though respondent No. 3 had knowledge of the revised plan, the
same was produced only at the final stage of hearing. It was
further contended that the Competent Authority directed the
petitioner to file additional written submissions and thereafter
closed the matter for orders, thereby denying an effective
opportunity of hearing as contemplated under Rule 13(5)(a), (b)
and (c) of the MOFA Rules, 1964.
7. It is the case of the petitioner that respondent No. 2, without
affording an adequate opportunity to address the additional reply
dated 7 February 2024 filed by respondent No. 3, proceeded to
close the matter for orders and passed the impugned order dated 6
March 2024, granting deemed conveyance in respect of
proportionate land admeasuring 8,436.16 sq. meters together with
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built-up area admeasuring 28,506.91 sq. meters. According to the
petitioner, the impugned order results in conveyance of
substantially lesser area than that claimed by the petitioner
Society.
8. Mr. Girish Godbole, learned Senior Advocate appearing for
the petitioner, submits that the Architect's Certificate dated 20
November 2023 is founded upon the revised development plan
dated 22 January 2015 applicable to the petitioner Society, and
that upon complete computation undertaken therein, the
proportionate area required to be conveyed works out to
15,762.39 sq. meters. According to him, this material aspect
reflected in the Architect's Certificate has not been considered by
respondent No. 2 while passing the impugned order. It is further
submitted that the calculations reflected in the revised
development plan dated 26 April 2023 are not in conformity with
the revised development plan dated 22 January 2015 insofar as
the petitioner Society is concerned, particularly in relation to the
computation of area attributable to the buildings constituting the
petitioner Society. Learned Senior Counsel submits that the
petitioner Society filed the Deemed Conveyance Application on 20
February 2023 and that the first hearing commenced on 23 March
2023. Since the revised development plan dated 26 April 2023 was
not in existence either at the time of filing of the application or at
the commencement of hearing, the same, according to him, cannot
be treated as the final sanctioned plan for adjudication of the said
application.
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9. He further submits that the Government Resolution dated 22
June 2018 specifically mandates that conveyance is required to be
granted on the basis of the sanctioned development plan and in
accordance with completion of construction of flats as per such
sanctioned plan while filing and adjudicating a deemed
conveyance application. It is contended that respondent No. 3 was
under a statutory obligation to make full disclosure regarding the
FSI available in respect of the entire land forming part of the
development project at the time of execution of agreements with
the purchasers, as required under Section 3 of the Maharashtra
Ownership of Flats Act, 1963. Reliance is placed on the decision of
the Supreme Court in Jayantilal Investments v. Madhuvihar Co-
operative Housing Society Ltd. and others, reported in (2007) 9
SCC 220 in support of this proposition.
10. Learned Senior Counsel further submits that even if
additional FSI is obtained under the new Development Control
Regulations applicable in Maharashtra, including the Development
Control Regulations, 2034, which provide additional FSI in
specified categories, the determining factors for computation of
proportionate land to be conveyed remain the plinth area and
proportionate area attributable to the petitioner Society.
11. Reliance is also placed on the judgment of the Supreme
Court in Jayantilal Investments v. Madhuvihar Co-operative
Housing Society Ltd. and others, wherein it has been held that
under Sections 3 and 4 of the MOFA Act, the promoter is
statutorily obliged not only to disclose particulars relating to the
land, amenities and facilities, but also to make full and true
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disclosure of the development potential of the plot forming the
subject matter of the agreement. It is submitted that such
obligation extends beyond disclosure of inherent FSI and includes
disclosure, at the stage of layout planning, as to whether the plot is
capable of being loaded with additional FSI in future.
Consequently, at the time of execution of agreements with flat
purchasers, the promoter is required to place before them the
entire project or scheme, whether comprising a single building or
multiple buildings. Learned Senior Counsel further relies upon the
decision of this Court in Malad Kokil Co-operative Housing Society
Limited v. The Modern Construction Company Limited and others
in Notice of Motion No. 1359 of 2011 in Suit No. 1005 of 2011,
decided on 07 September 2012, wherein it has been observed that
the object behind requiring disclosure of the entire layout to flat
purchasers is to ensure that purchasers are fully informed of the
complete scheme in which they are acquiring their property.
12. Mr. Anil Sakhare, learned Senior Advocate appearing for
respondent No.3 submits that the petitioner has instituted Regular
Civil Suit No.1134 of 2024 before the learned Civil Judge, Senior
Division, Pune, on 16 July 2024, challenging the sanctioned layout
plans bearing Nos. CC/0934/2019 dated 26 July 2019, CC/1810/
2022 dated 14 October 2022 and CC/0237/2023 dated 26 April
2023, and seeking to restrain respondent No. 3 from relying upon
the said sanctioned plans. It is, therefore, contended that the
petitioner ought to be relegated to the civil remedy already
invoked and that the present writ petition, insofar as it seeks
modification of the impugned order, is not maintainable.
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13. He further submits that the original layout for the entire land
was sanctioned by the Pune Municipal Corporation in the year
2010 and that a revised sanctioned development plan governing
the larger land was thereafter approved on 22 January 2015. It is
further submitted that additional sanctioned layout plans bearing
Nos. CC/0934/2019 dated 26 July 2019, CC/1810/2022 dated 14
October 2022 and CC/0237/2023 dated 26 April 2023 were
subsequently issued by the Pune Municipal Corporation. According
to respondent No. 3, the balance land admeasuring 65,820.28 sq.
meters under the revised sanctioned layout dated 26 April 2023
stands earmarked for existing and future developments forming
part of the larger integrated layout, including other projects.
14. Learned Senior Counsel submits that Recitals 11 and 11.1 of
the Agreements executed with flat purchasers expressly reserve in
favour of the promoter the right to utilize the balance and residual
FSI as well as TDR available on the larger land until completion of
all proposed buildings forming part of the overall development.
The said recitals, according to him, clarify that the remaining
development potential exclusively vests with the promoter and
may be utilized in the manner permissible under the sanctioned
plans. He further submits that under Recital 11.2, the flat
purchasers have expressly acknowledged the promoter's exclusive
right to utilize additional FSI and TDR and have agreed not to
raise any claim in respect thereof. It is further submitted that
Recital 12.7 records that development of residential and or
commercial projects on the larger land is intended to be
undertaken in a phased manner, and that the promoter is expressly
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authorized to execute such development jointly or separately,
including amalgamation or subdivision of adjoining lands as may
be necessary for implementation of the project. Learned Senior
Counsel further submits that Recital 15.4 of the registered Articles
of Agreement executed with the flat purchasers clearly stipulates
that conveyance shall be executed either in favour of the ultimate
or apex body upon completion of all proposed buildings or,
alternatively, in favour of individual building-wise societies only to
the extent of their respective buildings together with appurtenant
land, as determined by the developer. It is submitted that Recital
58 of the Agreements records that the purchasers were fully aware
that the promoter had not exhausted the entire FSI and that
revised plans could be submitted as required, with liberty to the
promoter to alter or modify the layout and building plans
accordingly. According to him, this clause evidences prior
disclosure, knowledge, and acceptance by the flat purchasers of
the possibility of revision of plans, and therefore the petitioner
cannot now object to such revisions which were contractually
contemplated from inception.
15. He further submits that the scheme submitted at the time of
registration records that the land area admeasures 10,763.06 sq.
meters and the plinth area admeasures 2,920.01 sq. meters, which,
according to respondent No.3, constitutes a clear admission by the
Society regarding the extent of land and built-up area attributable
to it.
16. Learned Senior Counsel submits that respondent No.2, by
order dated 6 March 2024, allowed the Deemed Conveyance
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Application. He draws attention to paragraph 4 of the impugned
order, wherein it is recorded that the petitioner Society had relied
upon the layout plan dated 22 January 2015 and the Architect's
Certificate to claim land admeasuring 15,762.39 sq. meters. The
Authority also noted that during the course of hearing, respondent
No. 3 placed on record the subsequently sanctioned layout plan
bearing No.CC/1810/2022 dated 14 October 2022 and the revised
plan dated 26 April 2023. It was further observed therein that the
said sanctioned and revised layout plans had not been challenged
by the petitioner before any court at the relevant time.
17. He further submits that the impugned order records that
Clause 2(iv) of the Government Resolution mandates annexing a
copy of the final sanctioned layout plan and that, in the present
case, the layout sanctioned in the year 2023 constituted the final
sanctioned plan. Accordingly, as recorded in paragraph 6 of the
impugned order, the Authority considered it appropriate to rely
upon the sanctioned layout plan of 2023 and granted conveyance
of land admeasuring 8,436.16 sq. meters together with built-up
area admeasuring 28,506.91 sq. meters.
18. In view of the aforesaid factual and legal position, learned
Senior Counsel submits that the impugned order dated 06 March
2024 passed by respondent No. 2 is legal and proper, and that the
present writ petition deserves to be dismissed. He places reliance
upon the following decisions: Mazda Construction Co. & Ors. v.
Sultanabad Darshan CHS Ltd. & Ors., 2012 SCC OnLine Bom
1266. Sukruti Apartment CHS Ltd. v. Tirumala Developers & Ors.,
2022 (4) Mh.L.J. 394, Solitaire CHS Ltd. v. Vertex Newton Projects
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Pvt. Ltd. & Ors., 2024 SCC OnLine Bom 4216, Tushar Jivram
Chauhan & Anr. v. State of Maharashtra & Ors., 2015 (4) Mh.L.J.
867, Ganga Bhaskar Builders & Ors. v. Competent Authority &
Anr., 2015 (4) Mh.L.J. 721, Marathon Nextgen Realty Ltd. v.
Competent Authority, 2015 (5) Mh.L.J. 318, M/s. S & M
Enterprises v. Palazzo Building No. 1 CHSL, 2025 SCC OnLine Bom
2760, Prestige Garden A-1 CHSL v. State of Maharashtra & Ors.,
2024 SCC OnLine Bom 5625, Rai Residency Pvt. Ltd. v. Competent
Authority & DDR, Thane, 2025 SCC OnLine Bom 3591.
REASONS AND ANALYSIS:
Statutory Framework under Sections 3 and 4 of MOFA and Duties
of the Promoter:
19. For the purpose of adjudicating the issues involved in the
present matter, it is necessary to reproduce Sections 3 and 4 of the
Maharashtra Ownership of Flats Act, as the rights and obligations
of the parties substantially arise from and are governed by these
provisions. The said sections read as under.
"3. General liabilities of promoter.-- (1) Notwithstanding
anything in any other law, a promoter who intends to
construct or constructs a block or building of flats, all or
some of which are to be taken or are taken on ownership
basis, shall in all transactions with persons intending to take
or taking one or more of such flats, be liable to give or
produce, or cause to be given or produced, the information
and the documents hereinafter in this section mentioned.
(2) A promoter, who constructs or intends to construct
such block or building of flats, shall-- (a) make full and true
disclosure of the nature of his title to the land on which the
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flats are constructed, or are to be constructed; such title to
the land as aforesaid having been duly certified by an
Attorney-at-law, or by an Advocate of not less than three
years standing, and having been duly entered in the Property
card or extract of Village Forms VI or VII and XII or any other
relevant revenue record;
(b) make full and true disclosure of all encumbrances on
such land, including any right, title, interest or claim of any
party in or over such land;
(c) give inspection in seven days‟ notice or demand, of the
plans and specifications of the building built or to be built on
the land; such plans and specifications having been approved
by the local authority which he is required so to do under
any law for the time being in force;
(d) disclose the nature of fixtures, fittings and amenities
(including the provision for one or more lifts) provided or to
be provided;
(e) disclose on reasonable notice or demand if the
promoter is himself the builder, the prescribed particulars as
respects the design and the materials to be used in the
construction of the buildings, and if the promoter is not
himself the builder disclose, on such notice or demand, all
agreements (and where there is no written agreement the
details of all agreements) entered into by him with the
architects and contractors regarding the design, materials
and construction of the building;
(f) specify in writing the date by which possession of the
flat is to be handed over (and he shall hand over such
possession accordingly);
(g) prepare and maintain a list of flats with their numbers
already taken or agreed to be taken, and the names and
addresses of the parties, and the price charged or agreed to
be charged therefor, and the terms and conditions if any on
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which the flats are taken or agreed to be taken;
(h) state in writing, the precise nature of the organisation
of persons to be constituted and to which title is to be
passed, and the terms and conditions governing such
organisation of persons, who have taken or are to take the
flats;
(i) not allow persons to enter into possession until a
completion certificate where such certificate is required to be
given under any law, is duly given by the local authority (and
no person shall take possession of a flat until such
completion certificate has been duly given by the local
authority);
(j) make a full and true disclosure of all outgoings
(including ground rent if any, municipal or other local taxes,
taxes on income, water charges and electricity charges,
revenue assessment, interest on any mortgage or other
encumbrances, if any);
(k) make a full and true disclosure of such other
information and documents in such manner as may be
prescribed; and give on demand true copies of such of the
documents referred to in any of the clauses of this sub-
section as may be prescribed at a reasonable charge therefor;
(l) display or keep all the documents, plans or
specifications (or copies thereof) referred to in clauses (a),
(b) and (c), at the site and permit inspection thereof to
persons intending to take or taking one or more flats;
(m) when the flats are advertised for sale, disclose inter-alia
in the advertisement the following particulars, namely :-- (i)
the extent of the carpet area of the flat including the area of
the balconies which should be shown separately; (ii) the
price of the flat including the proportionate price of the
common areas and facilities which should be shown
separately, to be paid by the purchaser of flat; and the
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intervals at which the instalments thereof may be paid; (iii)
the nature, extent and description of the common areas and
facilities; and (iv) the nature, extent and description of
limited common areas and facilities, if any;
(n) sell flats on the basis of the carpet area only: Provided
that, the promoter may separately charge for the common
areas and facilities in proportion to the carpet area of the
flat.
Explanation.-- For the purposes of this clause, the carpet
area of the flat shall include the area of the balcony of such
flat.
4. Promoter before accepting advance payment or deposit
to enter into agreement and agreement to be registered.--
(1) Notwithstanding anything contained in any other law,
a promoter who intends to construct or constructs a block or
building of flats, all or some of which are to be taken or are
taken on ownership basis, shall, before, he accepts any sum
of money as advance payment or deposit, which shall not be
more than 20 per cent. of the sale price enter into a written
agreement for sale with each of such persons who are to take
or have taken such flats, and the agreement shall be
registered under [the Registration Act, 1908 (XVI of 1908)
(hereinafter in this section referred to as "the Registration
Act")] [and such agreement shall be in the prescribed form.
(1A) The agreement to be prescribed and sub-section (1)
shall contain inter alia the particulars as specified in clause
(a); and to such agreement there shall be attached the copies
of the documents specified in clause (b),--
(a) particulars,--
(i) if the building is to be constructed, the liability of the
promoter to construct it according to the plans and
specifications approved by the local authority where such
approval is required under any law for the time being in
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force;
(ii) the date by which the possession of the flat is to be
handed over to the purchaser;
(iii) the extent of the carpet area of the flat including the
area of the balconies which should be shown separately;
(iv) the price of the flat including the proportionate price of
the common areas and facilities which should be shown
separately, to be paid by the purchaser of flat; and the
intervals at which instalments thereof may be paid;
(v) the precise nature of organisation to be constituted of the
persons who have taken or are to take the flats;
(vi) the nature, extent and description of limited common
areas and facilities;
(vii) the nature, extent and description of limited common
areas and facilities, if any;
(viii) percentage of undivided interest in the common areas
and facilities appertaining to the flat agreed to be sold;
(ix) statement of the use of which the flat is intended and
restriction of its use, if any;
(x) percentage of undivided interests in the limited common
areas and facilities, if any, appertaining to the flat agreed to
be sold;
(b) copies of documents,--
(i) the certificate by an Attorney-at-law or Advocate under
clause (a) of sub-section (2) of section 3;
(ii) Property Card or extract of village Forms VI or VII and
XII or any other relevant revenue record showing the nature
of the title of the promoter to the land on which the flats are
constructed or are to be constructed;
(iii) the plans and specifications of the flat as approved by
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the concerned local authority.]
(2) Any agreement for sale entered into under sub-section
(1) shall be presented by the promoter or by any other
person competent to do so under section 32 of the
Registration Act, at the proper registration office for
registration, within the time allowed under sections 23 to 26
(both inclusive) to the said Act and execution thereof shall
be admitted before the registering officer by the person
executing the document or his representative, assign or
agent as laid down in sections 34 and 35 of the said Act also
within the time aforesaid:
Provided that, where any agreement for sale is entered into,
or is purported to be entered into, under sub-section (1), at
any time before the commencement of the Maharashtra
Ownership Flats (Regulation of the promotion of
construction, sale, management and transfer) (Amendment
and Validating Provisions) Act, 1983 (Mah. V of 1984), and
such agreement was not presented for registration or was
presented for registration but its execution was not admitted
before the registration officer by the person concerned,
before the commencement of the said Act, then such
document may be presented at the proper registration office
for registration, and its execution may be admitted, by any of
the persons concerned referred to above in this sub-section,
on or before the 31st December 1984, and the registering
officer shall accept such document for registration, and
register it under the Registration Act, as if it were presented,
and its execution was admitted, within the time laid down in
the Registration Act:
Provided further that, on presenting a document for
registration as aforesaid if the person executing such
document or his representative, assign or agent does not
appear before the registering officer and admit the execution
of the document, the registering officer shall cause a
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summons to be issued under section 36 of the Registration
Act requiring the executant to appear at the registration
office, either in person or by duly authorised agent, at a time
fixed in the summons. If the executant fails to appear in
compliance with the summons, the execution on the
document shall be deemed to be admitted by him and the
registering officer may proceed to register the document
accordingly. If the executant appears before the registering
officer as required by the summons but denies execution of
the document, the registering officer shall, after giving him a
reasonable opportunity of being heard, if satisfied that the
document has been executed by him, proceed to register the
document accordingly.
Nature and Scope of Mandatory Disclosure and Rights of Flat
Purchasers:
20. Sections 3 and 4 of the Maharashtra Ownership of Flats Act
form the main protection given by the law to flat purchasers. In
most projects, the promoter controls everything connected with
development. He holds the title documents of the land, obtains
permissions from authorities, prepares layout plans and deals with
technical matters. The purchaser depends mainly on the
information given by the promoter. He sees brochures, plans
shown to him and whatever documents are disclosed at the time of
sale. His decision to purchase a flat is based on that information.
For this reason the law places the responsibility of honesty and
complete disclosure on the promoter. The duty is a legal
obligation.
21. Section 3 begins with a non obstante clause which indicates
that the duties imposed on the promoter will apply even if
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anything contrary is found in some other law, agreement or
arrangement. In other words, the promoter cannot later rely on
contractual clauses or private understandings to avoid these
statutory duties. Once flats are offered for sale on ownership basis,
the promoter must disclose complete and truthful information to
the purchasers. The wording of the section shows that the
legislature intended this obligation to be mandatory.
22. Sub-section (2) of Section 3 explains what kind of disclosure
is required. The first requirement is disclosure of the promoter's
title to the land. A person buying a flat is not only buying the
structure of the flat. He is also getting a share in the land on which
the building stands. If the title of the promoter itself is doubtful or
unclear, the purchaser's rights become insecure. Therefore, the Act
requires the promoter to produce proof of title certified by a legal
professional and supported by entries in revenue records.
23. The Act also requires disclosure of encumbrances on the
land. This means mortgages, loans, charges or any claim of
another person over the land. Such liabilities can seriously affect
the future of the project. If these matters are hidden, the purchaser
may face legal disputes or financial burdens later. The Act
therefore insists that these details must be disclosed at the very
beginning.
24. Another important requirement is that purchasers must be
allowed to inspect the sanctioned plans of the building. The
sanctioned plan shows the entire layout of the project. It indicates
the number of buildings, open spaces, access roads and the
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manner in which development will take place. Purchasers often
decide to buy flats after considering these aspects. They look at
open areas, ventilation and the general environment of the project.
By giving the purchaser the right to inspect sanctioned plans, the
Act ensures that he understands the real nature of the project and
does not rely only on advertisements or verbal assurances.
25. The Act further requires disclosure of fixtures, fittings and
amenities. Purchasers must know what facilities are promised to
them, such as lifts or other common amenities. These facilities
later become part of the common property maintained by the
society.
26. Section 3 also requires disclosure regarding the design of the
building and the materials used for construction. Whether the
promoter constructs the building himself or through contractors,
purchasers have the right to know the basic nature and quality of
construction. The principle behind this requirement is that a
purchaser should not invest money in a project without knowing
how the structure will be built.
27. Another important obligation is that the promoter must
specify the date by which possession of the flat will be given. In
many housing projects delays cause serious hardship to
purchasers. By requiring the promoter to state the possession date
in writing, the law converts what might otherwise be a promise
into a legal obligation.
28. The law also requires the promoter to clearly disclose the
nature of the organization that will be formed for the purchasers.
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At the time of entering into the agreement, the promoter must
state whether the property will be transferred to a co-operative
society, a company or some other recognised body. The type of
organisation affects how the property will be managed and how
collective decisions will be taken by the purchasers. The promoter
cannot keep this matter open or say that he will decide later
whether to form a society or a company. Such a clause defeats the
purpose of the law. Purchasers must know, from the very
beginning, the exact form of organisation through which their
rights will operate. MOFA therefore requires certainty at the start
and does not allow the promoter to keep this decision for the
future. Any clause giving such discretion to the promoter goes
against the statutory duty imposed by the Act. Such clauses are
therefore void and cannot be enforced against the purchasers.
29. The Act also requires disclosure of all outgoings such as
taxes, charges and other liabilities connected with the property.
These expenses directly affect the cost of ownership for
purchasers. If they are not disclosed at the beginning, the
purchaser may face unexpected financial burdens later.
30. The law also requires that documents and sanctioned plans
should be displayed at the project site. Advertisements must clearly
mention the carpet area and the price of the flat. Flats must be
sold on the basis of carpet area. These provisions were introduced
to prevent misleading claims in advertisements.
31. When Section 4 is read together with Section 3, the scheme
of the Act becomes complete. Section 4 requires that before
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accepting substantial payment from a purchaser, the promoter
must enter into a written agreement for sale and the agreement
must be registered. The agreement must contain details about
construction, possession date, area of the flat, price, nature of the
organisation and common rights of purchasers.
32. The requirement that title documents, revenue records and
sanctioned plans must be attached to the agreement is particularly
important. These documents represent the project exactly as it was
disclosed to the purchaser at the time of sale. Purchasers rely upon
these documents while entering into agreements. Their
expectations and rights are formed on that basis. Therefore, the
sanctioned plan attached to the agreement becomes the
representation of the development scheme at the time the
transaction takes place.
33. When Sections 3 and 4 are read together, the intention of the
legislature becomes clear. The promoter must act with complete
openness at the beginning of the project. Purchasers must know
the exact details of the land, the layout, the facilities, the nature of
the organisation and the development potential including available
FSI. The Act seeks to prevent situations where purchasers later
realise that the project is different from what was originally shown
to them. Therefore, when disputes arise about conveyance or land
entitlement, the starting point must always be the disclosure made
at the time of agreement. The sanctioned plan attached to the
agreement forms the basis on which purchasers invested their
money and acquired rights. Any later change can be considered
only if it does not defeat the rights that arose from the original
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disclosed scheme.
Effect of Sanctioned Plan Disclosed at the Time of Agreement and
Role of the Architect's Certificate:
34. The main contention of the petitioner is that the Architect's
certificate dated 20 November 2023 is based on the sanctioned
development plan dated 22 January 2015. According to the
petitioner, this 2015 plan was the same plan that was shown and
disclosed to the purchasers when the agreements for sale were
executed. This aspect becomes important because the rights of the
purchasers arise from what was represented to them at the time
they purchased the flats. The petitioner therefore submits that the
Architect's certificate does not introduce any new claim. It only
calculates the proportionate entitlement based on the sanctioned
plan that formed part of the original disclosure.
35. This submission has to be examined in the light of the
statutory scheme under MOFA. The Act requires the promoter to
make full and true disclosure of the entire project and its
development potential when agreements are executed. Seen from
this angle, the Architect's certificate dated 20 November 2023
becomes important. The certificate is a expert assessment based on
the sanctioned plan of 2015, which was already in existence and
disclosed to purchasers at the time of sale. The Architect has
simply carried out technical calculations to determine the
proportionate entitlement of the society according to that plan.
36. I find substance in this submission. The Act does not permit a
promoter to change the basis of entitlement after purchasers have
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acquired rights relying on a disclosed scheme. If the promoter later
relies on revised plans that were not part of the original disclosure,
such plans cannot automatically take away the rights that have
already arisen. Otherwise, the requirement of prior disclosure
under MOFA would lose its meaning.
37. A promoter may obtain revised sanctions during the course
of development. However, such revisions cannot be used to reduce
or defeat the entitlement which arose from the sanctioned plan
disclosed when the agreements were executed. Purchasers entered
into the contract relying on that plan. The Act protects the
legitimate expectation created by such disclosure. The promoter
cannot first attract purchasers on one development scheme and
later attempt to change the basis of their rights by relying on new
plans.
38. Therefore, in the present case the Architect's certificate based
on the sanctioned plan of 2015 provides the correct starting point
for adjudication. It reflects the scheme that was known to the
purchasers and on which they acted. The entitlement flowing from
that disclosure cannot be taken away by later revisions that were
not part of the original representation. If such a course were
permitted, the protection provided by MOFA would become
meaningless.
Contractual Clauses, Informed Consent and Applicability of
Jayantilal Investments Principles:
39. The developer has relied on certain clauses in the
agreements which state that the promoter may utilize the balance
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FSI, carry out development in phases and postpone conveyance in
favour of an apex body. Such clauses cannot be ignored completely
because agreements do record the understanding between parties.
However, where transactions are governed by MOFA, contractual
terms must operate within the limits fixed by the statute. They
cannot override the statutory duties imposed on the promoter.
40. Sections 3 and 4 of MOFA require the promoter to make full
and true disclosure when agreements are executed. This
requirement lies at the heart of the Act. The Supreme Court in
Jayantilal Investments has explained that purchasers must be
informed of the entire project and its development potential so
that their consent is informed and meaningful. Therefore, even if
an agreement contains clauses reserving certain rights to the
promoter, those clauses cannot cure a failure to make proper
disclosure at the beginning.
41. The real question is not what language appears in the
agreement. The real question is whether purchasers were clearly
informed about the development scheme when they decided to
buy the flats. If purchasers were shown a particular sanctioned
plan and entered into agreements relying on that plan, that plan
becomes the one of the basis of their rights.
42. In the present case the record shows that purchasers were
shown the sanctioned plan of 2015. They purchased flats and later
formed the society on that basis. Once this position is accepted, the
promoter cannot rely on general recitals in the agreement to
change the basis of entitlement. Clauses reserving balance FSI or
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phased development cannot be interpreted as a license to alter the
scheme in a manner that defeats the rights arising from the
original disclosure. The requirement of disclosure under MOFA
exists precisely to avoid such uncertainty. If promoters were
allowed to rely on vague contractual clauses to change rights later,
purchasers would never know the true nature of the project they
had invested in. For this reason the Act gives importance to the
sanctioned plan disclosed at the beginning rather than to later
interpretations based on contractual wording.
Objection Regarding Civil Suit and Procedural Fairness in Deemed
Conveyance Proceedings:
43. Learned counsel for respondent No. 3 has pointed out that
the petitioner has filed a civil suit in July 2024 challenging the
later sanctioned plans. On this basis it is argued that the petitioner
should pursue the civil remedy and that this Court should not
entertain the present petition. However, it must be noted that the
civil suit was filed after the Deemed Conveyance order had already
been passed. The impugned order is dated 06 March 2024 whereas
the civil suit was filed in July 2024. Therefore, the existence of the
civil suit cannot cure any defect that may have occurred during the
proceedings before the Competent Authority. The legality of the
impugned order must be examined on the basis of the material
that was available when the authority passed its decision.
Architect's Certificate and Government Resolution dated 22 June
2018:
44. The Architect's certificate dated 20 November 2023 becomes
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even more important when seen in the background of the
Government Resolution dated 22 June 2018. The Resolution states
that while granting deemed conveyance the Competent Authority
must rely on approved plans, proportionate construction, plinth
area and the land attached to the building. Where there is dispute
regarding measurement or area, the Resolution recognises the role
of an architect's report based on the sanctioned plan.
45. In the present case the Architect examined the sanctioned
development plan and carried out technical calculations. He
concluded that the petitioner society is entitled to conveyance of
15,762.39 square metres of proportionate land together with the
built up area mentioned in the certificate. Such calculation
involves expert examination of layout, plinth area, ground
coverage and the proportionate share in the overall project. The
importance of the certificate lies in the fact that it provides a clear
basis for determining entitlement. The Government Resolution
itself emphasises that where several buildings exist in one layout,
conveyance should be granted proportionately based on
construction and sanctioned plans. The certificate also rests on the
sanctioned plan which governed the project when the purchasers
entered into agreements. It therefore does not create a new claim
but quantifies what already flows from the approved scheme.
46. In these circumstances, the Architect's certificate dated 20
November 2023 is a material document. It provides a proper
foundation for determining proportionate entitlement in
accordance with the Government Resolution dated 22 June 2018.
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47. The judgments cited by respondent No. 3 explain the scope
of deemed conveyance proceedings and the limits of the
Competent Authority's jurisdiction under MOFA. Those decisions
emphasise that the authority should proceed on the basis of
sanctioned plans and should not enter into complicated disputes
about title. When these judgments are read together, the common
principle that emerges is that the authority must act within
statutory limits and must rely on material forming part of the
project disclosure. None of these decisions permit a promoter to
defeat the entitlement of purchasers by introducing new plans that
were not part of the original disclosure at the time of agreement.
Therefore, although those judgments state that deemed
conveyance proceedings are summary in nature and that civil
remedies remain open, they do not help the respondent on the
central issue in the present case. The core question here concerns
statutory disclosure, informed consent and the plan on which the
purchasers relied. On this issue the governing principles remain
those laid down under MOFA and explained by the Supreme Court
in Jayantilal Investments.
48. For the reasons stated above, following order is passed:
(i) The Writ Petition is allowed.
(ii) The impugned order dated 6 March 2024 passed by the
Competent Authority and District Deputy Registrar, Co-
operative Societies, Pune City, Pune, in Deemed Conveyance
Application No.82 of 2023 is quashed and set aside.
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(iii) The Architect's Certificate dated 20 November 2023,
computing the petitioner Society's proportionate entitlement
at 15,762.39 sq. meters together with the built-up area
specified therein, shall be treated as the basis for
determination of conveyance.
(iv) The Competent Authority shall issue the Deemed
Conveyance Order and Certificate under Section 11(4) of the
Maharashtra Ownership of Flats Act, strictly in accordance
with the sanctioned plan dated 22 January 2015, the
Architect's Certificate dated 20 November 2023, and the
Government Resolution dated 22 June 2018.
(v) The above exercise shall be completed as expeditiously
as possible and preferably within a period of four weeks
from the date of receipt of this order.
(vi) Rule is made absolute in the above terms. No order as
to costs.
49. At this stage, the learned Advocate for respondent No.
3 seeks stay of the judgment. However, in view of the
reasons recorded in the judgment, the request for stay is
rejected.
(AMIT BORKAR, J.)
