(Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore)
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. More than 80% of the housing societies in
Mumbai do not have the conveyance deed for their building,the document
transferring the plot to the housing society or the flat purchasers.Most
developers do not execute the conveyance deed as they want to exploit the
redevelopment potential of the plot or any additional construction 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 in favor of the society in each case but also slapped a
heavy penalty on the developers 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 the developer submits specific building plan approved by the municipal
corporation, 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 make 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 government simplifies 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.
How to
recover property when it is unified and subdivided with adjacent property
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 of Kancheepuram went like this. Mr.
Ullasavelan purchased the land measuring 50cents 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 favor 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 of Police. 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, the
property was wrongly included in the subdivisions and the tahsildar’s order was
passed 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 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 of four weeks from the date of receipt of a copy of the order.
Ratio
Decidendi
“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 order passed without affording any opportunity amounts to
facie illegal and arbitrary exercise of power and liable to be quashed.
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