What is the legal status of Maharashtra Ownership of Flats Act (MOFA)? Does it still exist or was it repealed after enactment of RERA? Is MahaRERA empowered to give deemed conveyance to societies where builder fails / neglects to give conveyance?
Shashank Pradhan, Santa Cruz (West)
MOFA was repealed vide Section 56 of the Maharashtra Housing (Regulation & Development ) Act, 2014. However, Real Estate (Regulation & Development) Act, 2016 (RERA) repealed the Maharashtra Housing (Regulation & Development) Act, 2014 and thus MOFA got revived once again on May 1, 2016. Hence MOFA still exists and is operational.
Section 11 (4) ( e) of RERA provides that the promoter is required to form a co- operative society within three months of the majority of the allottees (51 %) have booked the flats and Section 17 of RERA provides that the promoter shall execute conveyance within three months from the date of occupancy certificate. However, it is noteworthy that the above provisions of RERA can prevail in the absence of local laws. Since MOFA is a local law for us in Maharashtra and it still exists and operates, the provisions of MOFA for formation of co-operative societies and execution of conveyance shall still operate and prevail over the provisions of RERA, as is made clear even in RERA as stated above.
Section 10 of MOFA mandates the promoter to take steps to form the co-operative society within four months from the date the minimum number of persons required to form the society have taken flats. Section 11 of MOFA read with Rule 9 made thereunder requires the promoter to execute conveyance in favour of the co-operative society within four months from the date on which the society is registered. If the promoter neglects to comply with these provisions of MOFA and avoids giving the conveyance, then the society can approach the competent authority for deemed conveyance.
There is no provision of unilateral deemed conveyance in RERA. This provision exists only in MOFA and hence your application for deemed conveyance has to be pursued with deputy district registrar, who is the competent authority under Section 11 (2) to (5) of MOFA.
I have booked a 2BHK flat in a redevelopment project in Versova, which is nearing completion. The builder has asked me to pay Rs2 lakh towards advance maintenance for two years. Being a redevelopment project, the society already exists. So how can the builder demand two years advance maintenance from me? Is this legal?
Saeed Memon, Versova
The collection of advance maintenance charges by the promoters / builders was a practice prevalent in preRERA era when they were wilfully avoiding forming cooperative societies within the time limit prescribed under MOFA. The RERA Act specifically mandates the formation of co-operative society within three months from the time 51% flats in the project is booked. Even MOFA stipulates that the promoter should form the co-operative society within four months from time minimum number of persons required to form the society have taken flats.
In your case, being a re-development project, the co-operative society already exists. The promoter has therefore no valid reason to demand two years maintenance. You will hence be justified in refusing to pay such advance maintenance. In case the promoter refuses to give you possession, you can certainly approach MahaRERA.
Our society filed a case in the consumer commission in 2016 against the promoter for not giving conveyance. The case is still pending. In view of long delay, the society then filed in 2023 an application for deemed conveyance before the deputy district registrar. The builder is taking objection saying there is a consumer case pending so this application before the DDR is not maintainable. What is the correct position of law? Can the registrar ask us to withdraw the consumer case?
Subodh Kulkarni, Borivali (West)
It is a basic principle in law that one should not pursue his same grievance simultaneously before two authorities. Hence the builder is justified in raising such an objection. However, you can give an undertaking on an affidavit stating that on the builder executing the conveyance in favour of the society, the complaint in the consumer commission shall be withdrawn. In any case, once the conveyance is executed in favour of the society, your case before the consumer commission shall become infructuous.
Nonetheless, if the DDR doesnt accept this submission, then you will need towithdraw your complaint from the consumer commission.
Advocate Shirish V Deshpande, chairman, Mumbai Grahak Panchayat
Email: shirish50@yahoo.com
