Conveyance v/s Deemed Conveyance


Q1. What is the meaning of deemed Conveyance?

Ans: The Promoter (Builder/ Developer) is legally required to convey the land and the building within 4 months of formation to the society or any legal body of the flat purchasers. However, it has been the experience that many promoters (Builders/Developers) have not conveyed the land and building to the legal bodies. Therefore, government has amended the Maharashtra Ownership Flats Act, 1963 (MOFA) and provided for the deemed conveyance in favour of the legal bodies. Under the provision, deemed conveyance means after the expiry of 4 months of formation of the legal body, the land and building is deemed to have been conveyed to the legal body and to bring the same in the revenue record, a Competent Authority has been designated who will hear the parties on the basis of applications received from the aggrieved party and transfers the title in favour of the legal body by passing the necessary order and deemed conveyance certificate and appoint an authorized officer to execute the conveyance deed in favour of the society and execute on behalf of non co-operative builder or the land owner. Getting the title of land and building by adopting the above procedure is known as deemed conveyance.

Q2. What is the difference between the deemed Conveyance and the Regular Conveyance?

Ans: In case of regular conveyance, the builder/ Developer/ Landowner prepare a conveyance deed, execute the same and appear before the Sub-Registrar of assurance for admitting their signature. Without any problem, the legal bodies get the conveyance with the co-operation of the builder/ landowner. In case of deemed conveyance, the builder/ land owner or their legal heirs are not co-operating, therefore, the aggrieved parties appear before the Designated Competent Authority, who hears all the parties and passes the necessary order of conveyance. Deemed Conveyance is obtained as a legal remedy against the defaulter builder/ landowner who do not want to part with the land and the building in favour of the society.

Q3. Is there any further problem / litigation in getting the deemed Conveyance, if the builder/ Landowner Does not co-operate?
Ans: Deemed Conveyance is a final conveyance. There will not be any problem. Once the Deemed conveyance is passed by the Competent Authority, the conveyance deed will be executed by the Authorized Officer in favour of the Legal Body. Further, the same will be registered. There is no appeal against the deemed conveyance order passed by the competent Authority. Once the deemed conveyance order with conveyance deed is executed, the index II has to be obtained and submitted to the Talati office or City Survey office to incorporate the name of the legal body in the 7/12 extracts or in the property card as the case may be.


Q4. What are the provisions for payment of stamp duty on deemed conveyance?

Ans: Like regular conveyance, even on deemed Conveyance, the stamp duty will be only Rs.100/-, if all the flat owners have paid the stamp duty and have done the registration of their respective flats including on all the transactions (Chain of Agreements) done in those flats. In case there are some flat owners who have not paid the stamp duty or has escaped the duty, the same will have to be paid at the time of registration of the deemed conveyance deed by the legal bodies and the same can be recovered from such flat owners.

Q5. How the conveyance in favour of the legal body will be done in case of layout plot where the builder carries out the construction in phases?
Ans: In case of layout plot, the provision for part conveyance has been done in the new proposed Rule No9 (2). It has been clearly pointed out that in case of layout plot, the legal body will be entitled to get the proportionate undivided rights, title and interest in the layout plot based on the FSI/TDR used for the respective building out of the total development potential of the entire layout plot as on the date of conveyance of the land and the building and as per the disclosure made by the builder. In case the builder has not disclosed the same, the entire balance FSI/TDR will be transferred to the legal bodies proportionately otherwise it will be available to the builder.

Q6. What is the procedure followed by the competent Authority to give the deemed Conveyance?
Ans: Normally, the aggrieved party has to make the application to the competent Authority in the prescribed form with documents available against the builder, if he fails to convey the land and building to the legal body within 4 months of its formation. The Competent Authority shall scrutinize the application, collect the documents from the promoter/ builder or from the authorized officer appointed by him and get the application admitted. After the admission of the application, the competent Authority shall conduct the hearing and then take the appropriate decision, whether the applicant or the legal body is a fit case for granting the deemed conveyance. If he passes a favorable order, then he appoints an authorized officer, who shall execute the conveyance deed.


Q7. What documents are required to be submitted along with application to get the deemed conveyance?

Ans: Following documents may be attached with the application for deemed conveyance.
i) the registered Agreement for sale entered into with the promoter/opponent party
ii) 7/12 Extract and Village form No.6 (Mutation entries)
iii) Property card,
iv) Location Plan
v) City survey plan or survey plan from the revenue department.
vi) Layout Plot plan approved by the local authority
vii) Architect certificate about the entitlement of undivided interest in the entire Layout Plot, common areas and the facilities by each of the entity or the structure constructed or to be constructed on such Layout Plot.
viii) Latest Title and Search Report for last 30 years from an advocate,
ix) Non-Agricultural Order
x) Certificate under Urban Land Ceiling Act, 1976
xi) Building/ Structure Plan approved by the appropriate authority,
xii) Commencement Certificate,
xiii) Completion Certificate,
xiv) Occupation Certificate,
xv) List of Flat Purchasers
xvi) Proof of payment of Stamp Duty
xvii) Proof of Registration, etc. ,
xviii) Development agreement or power of attorney or agreement for sale executed by the landlord with the promoter for development or for transferring the right, title and the interest in the land in favour of the promoter.
xix) Any other land or building related documents papers in support of the application.
xx) Legal notices send to the Promoter and other interested parties to execute the conveyance deed or declaration as provided under Maharashtra Apartments Act, 1970 in favour of the applicant/s.
xxi) Draft conveyance deed / Declaration proposed to be executed in favour of the applicant.

PROCEDURE
After efforts made by different NGOs and the Federations, the Deemed Conveyance Rules has been finally notified on 27th Sept, 2010 by the State Government to facilitate Conveyance of land and building in favour of the society. The deemed Conveyance and the regular conveyance has no difference except the deemed conveyance is obtained as per the provisions of the law. The procedure involved to obtained the deemed conveyance as per the notified Rules as under:

1. Make an application in the prescribed form by affixing Court fees of Rs.2000/- (minimum) or 5000/- to the District Deputy Registrar (Competent Authority with necessary documents related to land and building like property card/ 7/12 extract, Approved Plans , copy of agreements with the Developer etc.

2. District Deputy Registrar to Scrutinize the applications and notice to the parties, etc.¬

Registration of applications
(a) On receipt of an application, the office of the Competent Authority shall endorse on it the date of its receipt and shall as soon as possible, examine it and satisfy itself that the person presenting it has authority to do so and that it conforms with all the provisions of the Act and the Rules made there under.

(b) If the Competent Authority is satisfied that the application is complete in all respect, it shall cause the application to be registered, as admitted, in the appropriate register maintained under these Rules.

(c) If the application is not complete, the Competent Authority may send notice to the applicant/s to rectify the defects or comply with such requirements, as it may deem fit to conform with all the provisions of the Act, and these Rules, within a period of fifteen days of the receipt of the said notice. The Competent Authority may, for sufficient cause, may give further extension of not more than fifteen days to comply with the requirements.

If the above defect in an application is rectified, the Competent Authority shall cause it to be admitted and register the application in the appropriate register.

3. On admitting the application, the Competent Authority shall, within a period of fifteen days thereof, issue a notice the opponent/s requiring him/them to file the written statement on the day, date and place as may be specified therein. Such notice shall by served on the opponents by registered post acknowledgment due or under certificate of posting on the last known address.

4. Appearance of parties and consequence of non appearance.
(a) On the date fixed as aforesaid, the opponent shall appear either in person or through his Advocate or his authorized Representative before the Competent Authority and shall file a written statement.

(b) On the date of hearing, if the applicant appears. and the opponent or any of the opponents, does not or do not appear, as the case may be, the Competent Authority shall decide the Application ex-parte:
Provided that, before deciding the Application, if the Opponent appears and shows a sufficient cause for his non-appearance on the earlier occasions, he shall be heard in the matter as if he had appeared before the Competent Authority on the first day.

(c) If on the date fixed for hearing or on any other day to which the hearing may be adjourned, the applicant does not appear either in person or by his Authorised Representative, when application is called for hearing, the Competent Authority may dismiss the application.
(d) If, on the date fixed for hearing or any other day to which the hearing may be adjourned, the Opponent/s does/do not appear either in person or through his/their Authorised Representative, when the Application is calIed for hearing, the Competent Authority may decide the same on merits after hearing the Applicant or his Authorised Representative, if present.

5. Production and inspection of documents.
(a) The parties shall file the documents referred to in the pleadings at the time of filing application and written statement, as the case may be. If either party satisfies the Competent Authority that any document is relevant and the same is in the custody of the opposite party, the Competent Authority may, by an order in writing, direct such party to produce such document on the next date of hearing.

(b) If the party so ordered, fails to produce such documents on the next date of hearing, the Competent Authority may draw adverse inference against such party and hearing of the original application shall not be postponed till filing of such documents or for the reasons of such non compliance of the order.

(c) If the Competent Authority is satisfied that the documents required to be produced, cannot be brought before the Competent Authority for sufficient reasons like its volume or otherwise, the Competent Authority may allow the opposite party to take inspection of the documents within seven days from the date of order Of such inspection.

(d) If the Competent Authority is satisfied that the opponent had no access to the documents earlier and the filing of additional statement is necessary, it may allow the filing of such additional statement.

6. Procedure for hearing the application.
(a) On receipt of the statement of the opponent, the applicant shall prove contents of the application and also deal with the contention of defences. The opponent likewise may file reply in support of the defence on the next date, if he so desires. No cross-examination of any of the parties shall be permitted.

(b) On receipt of the replies, the Competent Authority shall proceed to hear oral arguments of t e parties and after hearing shall close the proceedings for the order.

(c) The Competent Authority shall, within reasonable time and in any case not later than six months from the date of receipt of the application, after making such enquiry deemed necessary and after verifying the authenticity of the documents submitted by the parties and after hearing them and giving the parties sufficient opportunities as required under the Act and the principles of natural justice, pass such appropriate order as it deems fit, as provided under the Act.

In short there are mainly five steps/stages involved to complete the Conveyance of land and building in favor of the Society under Deemed Conveyance.
1) Relevant Documents Required
2) Application before Competent Authority
3) Preparation of Conveyance Deed
4) Submit before the Sub-Registrar
5) Apply to the City Survey Office to incorporate the name

Societies should take all efforts to get the Order of Deemed Conveyance from the Competent Authority as it is equivalent to the Civil Court Order and the Society shall get the legal rights over the land and the building
Thereafter, the builder or land owner cannot demand any money from the Society for Conveyance nor will the builder be able to utilise the additional FSI or TDR and carry out additional construction on such land. The Competent Authority as per MOFA is bound to give judgment within six months from the date of filling applications.
The payment of Stamp Duty, Registration Fees etc. can be done after obtaining the Deemed Conveyance Order.

Ameet Mehta is a leading Advocate who practices in High Court and other courts in Mumbai and owns Law firm M/s SOLICIS LEX. He has an Engineering background with multiple qualifications such as MBA finance, LLB and Mergers Acquisitions from London Business School.

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