In a series of significant court orders that might came as a
relief to thousands of housing societies languishing without a conveyance deed
the consumer court recently held that a developer can no longer hold on to
conveyance on the grounds that he has to carry out further construction on the
plot. Morc than 80% of the housing societies in Mumbai do not havethe conveyance deed for their building, the document transferring the plot tothe housing society or the flat purchasers.Most developers do not execute the conveyance deed as theywant to exploit the redevelopment potential of the plot or any additionalconstruction rights on the plot in future.
In three recent cases that had come up before the consumer
court, developers argued that their rights to any open space or further
development will be retained by the developers. The court not only ruled infavour of the society in each case but also slapped a heavy penalty on thedevelopers for defaulting on conveyance.
In Prithvi Enclave Society verses Prithvi builders, the
court recently asked the developer to execute the conveyance within four months
failing with he will have to cough up Rs.2000/-per day of the delay.
According
to one of the residents, the society was formed in 2001 and for years the
developer didn’t bother to either get an occupation certificate for the
building or execute the conveyance deed in the name of the purchasers forcing
the society to move the consumer forum. The court held that unless thedeveloper subm its specific building plan approved by the municipalcorporation, he cannot with hold conveyance to the society. The consumer court
has also ordered the developer to pay sum of Rs 12.13 lakh to the residents.
Similar orders were passed in Silver Arch Spring Society
versus Sneha builder and in Pleasant Palace Society versus Jain builders. In
case of Silver Arch Spring, the developer has not only been asked to shell out
a certain sum as penalty but also has been ordered to pay interest on
registration charges collected from the society.
Just last year, the Maharashtra Ownership of Flats Act was
amended so as to makie it mandatory for the developer to execute the deed
within four months or the residents can apply for a deemed conveyance with the
competent authority. However, till date not a single file has been cleared
under the amended Act.
According to property lawyers unless the state governmentsimplifies the procedure for deemed conveyance, it will remain only on paper. “Right
now residents have to submit 36 documents in addition to running from pillar to
post to get the deemed conveyance. The recent court orders are important, in
that they make it clear that developers can’t use flimsy excuse of wanting to
build further on the plot for not executing the conveyance deed.
A owner of a plot in possession of the property for more
than 15 years and with proper documents, applies for a fresh computerized Khata
certificate. Much to his shock, in reply, he gets a notice from the Revenue
department saying that his property is already unified with the adjacent
property and also subdivided and new pattas issued to the new owners. What does
he do to recover his property? The case involving B. Ullasavelan and the Collector ofKancheepuram went like this. Mr. Ullasavelan purchased the land measuring 50
cents and was granted patta in 1991. He was in possession of the property and
had been paying the land tax. In 2007, he applied for encumbrance certificate
from the period between 1981 and 2007 and obtained the certificate. When he
subsequently applied to the Tahsildar for a fresh computerized patta in his
name, he was shocked to receive a notice.
Not only was his application rejected, he was told that his
land measuring 50 cents had been unified with adjacent property and subdivided.
In addition, pattas were granted in respect of those sub-divisions in favour of
other individuals. Mr. Ullasavelan immediately submitted an appeal to the
Revenue Divisional officer with a copy to the When no notice was issued to the
purchaser who lawfully purchased the property, it amounts to deprivation of his
right to property. Collector and gave a complaint to the commissioner ofPolice. He also filed a writ petition to quash the proceedings of the Tahsildar
and direct the tahsildar to cancel the unification of the land and subsequent
subdivisions. He also prayed that a computerized patta be issued to him.
Hearing the arguments and going through the records, the
Court observed that the petitioner had valid possession of his property and the
chitta and adangal register carried his name till 1988. It also observed that on perusal of the relevant records, theproperty was wrongly included in the subdivisions and the tahsildar’s order waspassed without any notice to the petitioner. Therefore, the court ruled that
the manner in which his subdivisions were made cannot be sustained and the
order issued by the tahsildar is exfacie illegal and arbitrary exercise of
powers. A direction was issued to the respondents to issue
computerized pattas in the name of the petitioner within a period offour weeks
from the date of receipt of a copy of the order.
“When no notice was issued to the petitioner before
unification and subdivisions are made in the property lawfully purchased by the
petitioner, it amounts to deprivation of his right to property. Hence the orderpassed without affording any opportunity amounts to facie illegal and arbitraryexercise of power and liable to be quashed.
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