Q.Our society has two buildings with a total of 90 flats. We have been staying there for over 35 years. However, there is no occupation certificate (OC) for 16 flats on the upper floors of one building as the builder over-utilised FSI. Hence, there is no conveyance of these buildings in favour of the society. The builder has long expired. Is it necessary to have the conveyance in favour of the society for redevelopment? If so, can we get deemed conveyance without an OC for 16 flats?
— Rekha Kulkarni, Andheri (West)
A. As per Section 11 of the Maharashtra Ownership Flats Act (MOFA), it is the statutory obligation of the promoter/builder to convey buildings to the housing society after obtaining necessary permissions, such as OC and building completion certificates, within the prescribed time. It is also mandatory under section 10f of MOFA for the builder to form a co-operative housing society or association of apartment owners within the specified time. However, keeping in mind the future benefits of increased FSI, promoters/builders have often avoided or delayed the formation of housing societies, not obtaining full OC and giving possession to homebuyers.
Thus, if there is no co-op society formed and if there is no OC, the question of giving conveyance in favour of the society does not arise. As per government sources, there are around 70,000 housing societies in Maharashtra without OC and without it, there is no conveyance of these buildings in favour of such societies. To overcome these problems, sections 10 and 11 of MOFA were amended on February 25, 2008. Section 10 was amended to provide that flat purchasers can come forward to form and register the society without the co-operation of the promoter. Section 11 was amended to provide for deemed conveyance in favour of the housing societies where the promoter/builder fails/neglects to execute conveyance in favour of the society within the prescribed time limit.
However, despite such amendments, not many societies were coming forward to apply for the deemed conveyance. The procedure prescribed for applying for deemed conveyance required 12 different documents including OC to be produced along with the application. The absence of full OC was a major obstacle and later the government simplified the procedure. The GR dated June 22, 2018, by the government reduced the number of documents required from 12 to 8. This GR specifically mentioned, “If the society concerned does not have OC then selfdeclaration that actual possession of the building has been taken and similarly ready to accept all responsibilities/liabilities regarding the said building and to make an application to the concerned local authority for OC after getting the deemed conveyance.”
If your society is going for redevelopment, you must have proper conveyance in the name of your society for all its buildings/flats. There is court fee of Rs2000 payable along with such application for deemed conveyance. Following documents are required to be enclosed along with the prescribed application in form 7: (a) society’s registration certificate, (b) particulars of applicant society and a copy of the general body resolution to apply for deemed conveyance, (c) three months earlier extract of the property cards, (d) list of all flat owners in the society, (e) legal notice served to the promoter by the society (please note the term promoter includes also the land owner), (f) a copy of the sale agreement of flat of one member in the society and (g) construction commencement certificate and OC, if any. If OC not issued then the self-declaration that actual possession of the building has been taken and similarly ready to accept all responsibilities/liabilities regarding the said building and to make an application to the concerned local authority for OC after getting the deemed conveyance. The application can be filed online and off-line with the office of the concerned DDR.
The societies without OC going for deemed conveyance and then for re-development are advised to first check with the authority granting OC as regards what were grounds on which OC was not granted and what are possibilities of regularising the deficiencies and at what cost.
(Advocate Shirish V Deshpande is chairman, Mumbai Grahak Panchayat. Queries can be sent to him on email: [email protected])
