THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 1963.

2. Definitions. - In this Act, unless the context otherwise requires,-

1[(a)     “Competent Authority” means a Competent Authority appointed under section 5A;]

2[(a-1] “Flat” means a separate and self-contained set of premises used or intended to be used for residence, or office, or show-room or shop or godown 3[ or for carrying on any industry or business] (and includes a garage), the premises forming part of a building 4[and includes an apartment].

                        Explanation.-Notwithstanding that provision is made for sanitary, washing, bathing or other conveniences as common to two or more sets of premises, the premises shall be deemed to be separate and self-contained;

(b)               “prescribed” means prescribed by rules made under this Act;

(c)                5[“promoter” means a person and includes a partnership firm or a body or association of persons, whether registered or not] who constructs or causes to be constructed a block or building of flats 6[or apartments] for the purpose of selling some or all of them to other persons, or to a company, co-operative society or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both;

(d)               “Registrar” means the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960, (Mah. XXIV of 1961.) or, as the case may be, in the Companies Act, 1956(I of 1956);

(e)                To construct a block or building of flats 1[or apartments] includes converting a building or parting thereof into flats 2 [or apartment].

3[(f)     the expressions, “apartment” and “apartment owner” shall have the meanings, respectively assigned, to them in the Maharashtra Apartment Ownership Act, 1970 (Mah.XV of 1971).    

                                                                NOTES                                                                                                          

v     The definition by the use of the expression seems to be exhaustive. Section 15 empowers the State Government to make rules which have to be notified before making them effective as provided in sub-section (1). In addition to the general power, particular matters are provided foe having regard to sections 3, 4, 10 and 11 having regard to the provisions contained in sub-section (2). Sub-section (e) extends the rule making powers to matters covered by the rules also.

v     It must be noted that the definition by use of expression “means” seeks to be exhaustive. Construction activities inherently claim assimilation of several activities and association of several persons from several fields. This makes the task of undertaking construction work a task of organizing skills and persons. Persons who undertaking to promote construction work through organization of skill and person have to take steps as may be required in construction work. Legally speaking, the activities divide themselves into preliminary steps for construction and steps taken after construction work is over. ‘Promoters’, ‘developers’ are all terms of art and when sought to be regulated by statute by expressing the words like ‘promoter’, ‘developers’ are used to indicate that certain legal relationship are built or are to be built in activities or for activities which otherwise may not be subjected to regulatory powers under the statute. In India, landlord tenancy was known ever since the property rights are known, but tenancy landlord, co-operatives or tenants’ co-operatives are concepts of present day origin. This being so, steps which bring out such relationship between landlords or tenants and/or between tenants have to be defined for being regulated. Even before co-operative societies are formed, certain steps are taken when construction work is to be undertaken. This being so, this definition indicates the persons who take preliminary steps to collect together persons like tenants or landlords as also funds, etc. to promote a step in the direction of construction of houses. As defined, promoters are those who construct or cause to construct blocks, flats, etc. as defined. The activities of construction involved investment of large funds. Developers/promoters while taking such assignments do it as profit making undertakings. In the situation of shortage, construction in more space becomes desirable but such construction involves high costs. This state of affairs has to be resolved by making allowance to such promoters/ developers to obtain profits out of the construction made. Such returns of their investment takes shape in terms of flats/blocks which are built which being made available in open markets fetching high price. This motivation is taken care of while encouraging construction activities and the definition defines such promoters in terms of the activities undertaken both advantageous in terms of overcoming shortage of houses as also of getting returns from construction work. This also takes care of old buildings being re-developed and new constructions taking place. In the extra FSI or TDR as the case may be, the flats/blocks constructed when sold in open market fetch prices and appropriation of such prices giving return for the investment in construction becomes the motivation for undertaking such assignments. This aspect of human nature is brought out in the definition and promoter as defined could be a person who undertakes construction of flats/blocks for purpose of selling some or all of them to third parties as set out. In the business organization, associates assigning as well as selling agents may form into a group and when such is the case, all of them are included in the definition of a promoter.

It is relevant to note that having regard to provisions made under laws relating to municipality and/or town planning, various steps have to be taken whenever a construction activity is undertaken. In the context of shortages, permissions are required from such bodies as may be prescribed as also town planning needs plans being approved. Grant of FSI and TDR in the context of shortage are subject to regulatory powers and these as well as other activities many a times are subjected to regulatory powers. With a view to bring such steps within the regulatory powers, a definition of a person like promoter requires consideration.

This definition (c) refers to construction of blocks or flats or apartments. This definition has to be read also along with the definition contained in sub-clause (e).

Sub-clause (e) as defined construction of block or building of flats is extended to conversion of a building or part thereof into flats/apartments as set out.

To be continue…

THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 1963.

1. Short title, [extent and commencement]. - (1) This Act may be called the Maharashtra Ownership Flats (Regulation of the Promotion of construction, Sale, Management and transfer) Act, 1963.

            (2) It extends to the whole of the State of Maharashtra.

            (3) This section shall come into force at once; and the remaining provisions of this Act shall come into force [in such areas, and on such dates as the State Government may, by notification in the Official Gazette, Appoint and different dates may be appointed for different areas.]

NOTES

v     The Act is for the whole of Maharashtra but the application of the various provisions contained in several chapters of the Act come into effect and/or are applicable to an area in Maharashtra which the State Government notifies in an Official gazette as set out in sub-section (3) of section 1.

v     This section is a definition section and as per rules of interpretation has to be taken for the purposes of determining the meanings of the expressions so defined. The definitions may be of mandatory nature when expressions like “shall” and/or “when” means is used will be exhaustive and/or when “includes” is used, the meaning gets extended. In interpreting the provisions contained in the Act have to be determined in terms of the definition clause pertaining to the subject matter and have to be accordingly interpreted. Rules of interpretation have to be applied when such occasion arise. This being so, the definition clause assumes significance as it determines the universe of discourse of the expressions used in the Act.

Subject to the above and other rules of interpretation, the definition clauses have to be interpreted by giving them the natural meaning as expressed. See AIR 2006 (3) S.C. 1459.

v     Stilt parking space – Whether can be separately sold by developer – Dispute about – Ownership of parking space in stilt area of building – Developer sold some spaces to some flat owners and retained 25 spaces for himself to be sold as per his choice –Society taking over forcible possession in some cases alleging developer could not retain spaces for him even though in every agreement of sale of flats it was specifically provided that flat owners will have no right or claim over parking places in stilt area of building – Lower Court dismissed suit of plaintiff for payment injunction against society from interfering with his possession of these parking places that have been enclosed by fabricated structure and locked by plaintiff – developer- Matter in appeal against lower Court decision – On ground that enclosed parking space is a ‘private garage’ as per Regulation 2(47) and he has right to retain and dispose of same separately – Held, open parking space is excluded from F.S.I. as per Regulation 35(2)(f) but enclosed one as per Regulation 36(5)(b)(i) is counted for F.S.I. and is chargeable to property tax. In instant case stilt parking places were unenclosed but covered. Regulation 36 provides that wherever a property is developed parking spaces as per scale laid down, there will have to be provided. Under DCR Regulation 36(2) for 56 flats (as case here) 28 parking spaces have to be provided for. Further section 3(2) of Ownership Flats Act provides that a developer in his advertisement has to disclose all fixtures, amenities as common facilities and precise nature of organization of persons to be constituted and to which title has to be transferred. Section 16 of Ownership Flats Act further provides that provisions in Act will be in addition to provisions of Transfer of Property Act. Agreement has to be in Model Form provided in Maharashtra Ownership Flats Act, but herein Clauses 3-B, 3-C and 3-D of model agreement have been deleted while signing it. When such are requirements of law any undertaking furnished by a purchaser cannot have binding effect on him as it would be contrary to guarantees available to purchasers. Further there cannot be any estoppel against a statute. Herein when building and land were transferred to society developers was duty bound to disclose all amenities and transfer all rights within 4 months to society. Herein Plaintiff Company retained stilt parking places to it by enclosing same with fabricated structure. This was totally illegal and voids ab-initio as stilt parking space was available as a common space for use of as members of society. Forced undertaking not to claim right to this space is not valid. Transfer of Property Act also does not permit part of society’s property i.e. enclosed stilt places will be sold to third parties or even members of society. Further as per Regulation 36(5) location of a parking place has been fixed. Whereas location of a garage is provided for and Regulation 38(8)(ii) stipulates that garage may be located at side or rear of building but at a distance of 7.5 meters. Defendant society is therefore, right in asserting that impugned parking spaces area a common amenity and cannot be treated as garage which can be sold by developer. Developer right to sell is restricted to extent of disposal of flats i.e. space which is included in F.S.I. Sale of some such spaces even before society was registered or occupation certificate were issued by Municipal Corporation is illegal and that by itself cannot be a reason to contend that same can be transferred notwithstanding undertakings by flat purchasers. Nahalchand Laloochand Pvt. Ltd v/s Panchali Co-operative Housing Society Limited 2008(3) Bom.C.R. 727 

******

THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 1963

       

Shelter has been recognized as a basic right of citizens. Providing shelter to the citizens however remains a cherished hope as the same requires involvement of huge finance as also requires infra-structural preparations. With the industrialization and globalization, urban conglomerations and economically forward regions have witnessed increase in population and the pressures built therefrom. Middle class, lower middle class as also the hutment dwellers had to be provided with amenities suitable to make their living improved one.

Out of the pressures set out as above, the co-operative housing movements have taken route in the country. Co-operative societies as such, are governed by the Co-operative Societies Act in the State. Co-operative as a movement required and obtained necessary impetus by State legislation. However, setting up of such organization requires individual efforts of citizens. Promoter of an organization is a term of art which is employed in legislations to denote persons who take initial steps to promoter an organization.

In the context of the housing societies, a common ownership of its members becomes reality and the legal organization is the society. The society comes about when a number of persons come together to set up a co-operative society and gets the same registered as a society. Till the society is registered it does not get the legal reality and the relationship inter se of the person setting up the society remains in the field of contractual relationship. Thus, as and when a co-operative society is formed and registered as a society being a legal person, the relationship inter se of persons setting up such a society had to be a contractual relationship. Such persons are called promoters and their rights and obligations to the society remain many a time outside the legislation pertaining to co-operative societies.

In the housing sector, the co-operative societies are intended to provide dwelling house or residential premises to its members. However, many ills as a result of the wrong doings of the promoters used to denude the rights of members of the society to enjoy, use and possess the property of the society. Such societies used to be formed basically on two concepts, viz. of co-partnership of tenants and of co-tenancy of members. This classification received its recognition as per the provisions made in rules under section 10 of the Co-operative Societies Act. However, the promoter’s misdeeds many a times were inflicting curtailment of the rights of the members to use enjoy and possess the property. In the circumstances, the legislature stepped in and the enactment of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) was enacted. From the provisions it can be said that the Act seeks to regulate the promotion of construction, sale, management and transfer of the flats of a society. The provisions regulate in popular parlance the relationship between the developers and the members of the intended society at the various stages of construction including while the building is being constructed or even after the building is constructed. The Act assumes importance in this context because it provides for situations such as approvals of plans, giving of amenities, giving of areas, etc.

The activity sought to be regulated is the subject matter of this Act which as such, is also conducted with rules made under Town Planning Act and Acts relating to Municipal Corporations. DC Rules also have essential links with the housing activity.

The expressed purpose of the Act is to regulate in the State of Maharashtra the promotion of construction of the sale and management and the transfer of flats on ownership basis. The “flat” has been given an exhaustive definition to include areas or portions of premises used for residence, office, shop or industrial or business purpose including garage, etc. as set out in the definition clause. One of the reasons as set out in the preamble has been the “acute shortage of houses” and to meet the challenge, various other methods are adopted through regulations, rules under other Acts like Town Planning, etc. With this methods or devices are essentially linked up with concepts like FSI and/or TDR under the rules under Town Planning like Acts. The development of construction as well as redevelopment of existing structures have led to Town planning and regulating the same through Local Corporation Acts. The development of construction as well as market advantages give impetus to construction activities. Attempts are made to overcome or bypass the regulatory measure which leads to abuses which when practiced, become detrimental to the occupants. The developers as developers obtain rights to develop from the occupants or intended occupants to develop a piece of land or a structure thereon. To overcome the malpractices, attempts are made through legislation to curb such malpractices and the present Act is the Act which seeks to regulate activities related to ownership of flats as set out in the title as also in the expressed purpose.

PREAMBLE

The preamble sets out the purpose for which the Act is enacted and as per the rules or interpretation, the preamble can be taken into consideration to resolve if there be any ambiguity contained in the provisions of the Act. Sundry abuses, malpractices and difficulties and their existence and/or increase have been mentioned to obviate which the Act has been enacted as its expressed purpose. The committee formed to report on the same has been the basis for the statute being enacted.

THE MAHARASHTRA OWNERSHIP OF FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) ACT, 2008

(MAH.ACT NO.23 OF 2008)

[12^TH May 2008]

            An Act further to amend the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, for the purposes hereinafter appearing, it is hereby enacted in the Fifty-ninth Year of the Republic of India as follows-

            1. Short title – This Act may be called The Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment) Act, 2008.

            2. Amendment in section 3 of Mah. XLV of 1963 – In section 3 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Mah. XLV of 1963), in sub-section (2), after clause (m), the following clause shall be added namely:-

           

                “(n) sell flat on the basis of the carpet area only:

            Provided that, the promoter may separately charge for the common areas and facilities in proportion of the carpet area of the flat.

            Explanation – For the purpose of this clause, the carpet area of the flat shall include the area of the balcony of such flat.

HOUSING DEEPARTMENT

13. Scrutiny of applications and notice to the parties, etc.- (1) 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 Rules made thereunder.

      (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.

(a)    If the application is not complete, the Competent Authority may send notice in the Form VIII, to the applicant/s to rectify the defects or comply with such requirements, as it may deem fit to conform to 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.

(2) Maintenance of registers and procedure for issuing notice, etc.- the Competent Authority shall maintain the register of applications received by it in Form IX.

      On admitting the application, the Competent Authority shall, within a period of fifteen days thereof, issue a notice in Form X to 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 be served on the opponents by registered post acknowledgment due or under certificate of posting on the last known address.

(3) 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 called for hearing, the Competent Authority may decide the same on merits after hearing the Applicant or his Authorised Representative if present.

(4) 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 obverse 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 Component Authority may allow the opposite party to take inspection of the documents within seven days grom the gate of order of such inspection.

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

(5) 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 defenses. The opponent likewise may file reply in support of defense 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 the 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 month 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.

(6) Signing of order and the notice and the official seal.-(a) Every judgement, order and the certificate of the competent Authority shall be delivered or supplied or provided to all the concerned parties.

(b) The competent Authority shall have an Official Seal of its own, which shall be kept in the custody of the Competent Authority.

(c) Every judgement, order, certificate and the notice issued under the Act or these Rules shall be signed by the competent Authority and shall bear the official seal on it.

(d) All the records of the competent Authority shall be kept in its custody.

(7) After from V appended to the principle Rules, the following forms shall be added, namely:-

HOUSING DEPARTMENT

Part 2

HOUSING DEPARTMENT

MANTRALAYA, MUMBAI 400 032, DATED THE 27^TH SEPTEMBER, 2010

NOTIFICATION

No. FOB. 2008/CR. 170/ RR-II. – In exercise of the powers conferred by sub-sections (1) and (2) of section 15 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, Management and Transfer) Act, 1963, the Government of Maharashtra hereby makes the following rules further to amend the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules. 1964, the same having been previously published as required by sub-section (1) of the said section 15, as follows:

1. These rules may be called the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment) Rules, 2010.

2.      In rule 2 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 (hereinafter referred to as “the principal Rules”), -

(a)    after clause (a-i), the following clause shall be inserted, namely:  

“(a-ii) “Apartment Ownership Act” means the Maharashtra Apartment Ownership Act, 1970 (Mah. XV of 1971);

(a-iii) “Apartment- takers” means a person, who has purchased the apartment in a property, which has been submitted under the provisions of the Apartment ownership Act, by executing and registering a Declaration as provided by that Act;”;

(b) after clause (b), the following clause shall be added, namely:

“(c) words and expressions used but not defined in these Rules shall have the same meanings as assigned to them in the Act.”.

3.      In rule 9 of the principal Rules, the following paragraph shall be added at the end, namely:-

“The promoter shall file with the Competent Authority a copy of the conveyance executed by him under sub-section (1) of section 11 within a period of two months from the date of its execution.”.

4. After rule 10 of the principal Rules, the following rules shall be added,                                                                                                                                                                   namely:-

“11. Applications under sections 10 and 11.- (1) (a) every application under the provisions to sub-section (1) of section 10 or sub-section (3) of section 11 may be presented in person by the applicant or by their duly appointed Authorised Representative, to the Competent Authority during its office hours or may be sent to the Competent Authority by registered post.

(b)   Where an application is signed and presented by an Authorised Representative, it shall be accompanied by a letter of authority appointing him as such and duly signed by the applicant and accepted by the Authorised Representative.

(c)    Every application shall be made in accordance with the provisions of the Act, the rules and notifications and shall be affixed with such court see stamps, as may be prescribed and pay the necessary enquiry fees.

(2) Notice of date of hearing – The Competent Authority shall issue necessary notice to all the parties regarding the date fixed for hearing the application and publish or display the date fixed for the hearing thereof on the office notice board sufficiently in advance.

(3) Pace of hearing – All applications filed under the proviso to sub-section (1) of section 10 or sub-section (3) of section 11 shall ordinarily be heard at the respective office of the Competent Authority.

(4) Office hours – The office of the Competent Authority shall observe the same office hours as other offices of the Government of Maharashtra observes. It shall remain closed on Sundays and on such other days as may be declared to be holidays for the offices of the State Government

12. Form of Applications under sections 10 and 11.- Application under the proviso to sub-section (1) of section 10 shall-be in Form VI. Application under subsection (3) of section 11 shall be in Form VII.

NOTES TO THE MAHARASHTRA OWNERSHIP FLATS

8. Production and inspection of documents [Rule 13(4)(a),(b),(c),(d)]:

      The respective parties shall file the documents referred to in the pleadings at the time of filing application/ written statement, as the case may be.

      If either party satisfies the Competent Authority that any document is relevant and is in the custody of the opposite party, it may, by an order in writing, direct such party to produce such document on the next day of hearing.

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

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

      If the Competent Authority is satisfied that the opponent had no access to the documents earlier and the filling of additional statement.

9. Procedure for hearing the application [Rule 13 (5)(a),(b),(c)]:

      On receipt of the written statement of the opponent, the applicant shall prove the contents of the application and also deal with the contention of the defense. The opponent may likewise file reply in support of the defense on the next date, if he so desires. No cross examination shall be permitted.

      On receipt of the replies, the Competent Authority shall hear the oral arguments of the parties and after hearing shall close the proceedings for the order.

      The Competent Authority shall pass the appropriate order, as it deems fit, not later than six months from the date of receipt of the application, after making the necessary enquiry and after verifying the authenticity of the documents submitted by the parties and after hearing them and giving the parties sufficient opportunities.

10. Signing of order and notice and the official seal [Rule 13 (6)(a),(b),(c)]:

Every judgement, order, certificate and the notice issued under the MOF Act or Rules shall be signed by the Competent Authority and shall bear the official seal on it. Every judgement, order, certificate shall be provided to all the concerned parties. Records of the Competent Authority to be kept in its custody.

For ready reference, relevant Sections/ Rules of the MOF Act and Rules (including Section 10(1) & 11(1) & 11(3) of the MOF Act Rules 9 of the principal MOF Rules, which are referred to in the further amendments under the MOF(Amendment) Rules, 2010) are briefly set out below:

¯     Section 10 (1) of the MOF Act, requires the promoter to submit an application (within the prescribed period) to the Registration of a Co-operative Society or a Company, as soon as the required minimum number of persons have taken flats (subject to the promoter’s rights to dispose of the remaining flats, if any).

Provisos to Section 10(1) of the MOF Act provide that if the promoter fails to submit such registration within the prescribed time then the Competent Authority may, upon receiving an application from the flat purchasers issue directions for registration of the society, after giving the concerned promoter a reasonable opportunity of being heard. Rule 8 of the principal MOF Rules provides that such application is to be submitted within four months from the date on which the minimum number of persons required to form such organization have taken flats.

¯     Section 11(1) of the MOF Act require the promoter to convey title and execute documents for the same in accordance with the agreement under Section 4 and if no period for the execution of the conveyance is provided then within the prescribed period.

Rule 9 of the principal MOF Rules provides that if no period for conveying the title is agreed upon, then the promoter shall / (subject to his rights to dispose of the remaining flats, if any), execute (i) the conveyance within four months from the date on which co-op. society/ company is registered or association of flat takers is formed or (ii) the deed of apartment in favour of each apartment-taker within four months from the date the apartment holder has entered into possession of his apartment, as the case may be.

      Section 11(2) of the MOF Act requires the promoter to file with the Competent Authority, within the prescribed period a copy of the conveyance executed by him under Section 11(1).

      Section 11(3) of the MOF Act provides that if the promoter fails to convey title, as provided by Section 11(1) then the members of the co-op society or company or the association of apartment owners, as the case may be, may make an application in writing to the concerned Competent Authority accompanied by true copies of the registered ownership agreements and all other relevant documents (including the occupation certificate, if any) for issuing a certificate that such society/ company / association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.

 

NOTES TO THE MAHARASHTRA OWNERSHIP FLATS

NOTES TO THE MAHARASHTRA OWNERSHIP FLATS (REGULATION OF THE PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER) (AMENDMENT) RULES, 2010

MRS. MUNIRA TINWALA – SOLICTOR AND MR. SUNIL K. RAMANI ADVOCATE

            The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment), Rules, 2010, have been made (in exercise of the powers under Section 15(1) & 15(2) of the Maharashtra ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 193 {“MOF Act”}), to further amend the Maharashtra ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 {“principal MOF Rules”}.

MAIN CHANGES

            1. The principal MOF Rules shall also apply to property which has been submitted to the provisions of the Maharashtra Apartment Ownership Act, 1970. [Definitions have been widened]

            2. New Rules 11, 12 & 13 have been added after Rule 10 of the principal MOF Rules and Forms VI, VII, VIII, IX & X have been added after From V of the principal MOF Rules.

            3. The prescribed period (referred to in Section 11(2) of the MOF Act) within which the promoter is required to file with the Competent Authority, a copy of the conveyance executed by him under Section 11(1), is “two months from the date of its execution. [Additional sentence added to Rule 9 of the principal MOF Rules]

            4. Applications u/ Proviso to S. 10(1) and u/S.11 of the MOF Act [Rules 11&12]:

      Every application u/Proviso to Section 10(1) shall be in Form VI and every application u/Section 11(3)  shall be in Form VII and shall be affixed with the prescribed court fee stamps and together with payment of necessary enquiry fees.

      Notice of the date of hearing shall be issued by the Competent Authority to all parties and such date shall be published or displayed on the office notice board sufficiently in advance.

      Place of hearing all such application shall ordinarily be the respective offices of the Competent Authority.

      Office hours and holidays observed by the office of the Competent Authority shall be the same as the office hours and holidays observed by other offices of the Government of Maharashtra.

5. Scrutiny of applications and notice to the parties, etc. [Rule 13(1)(a), (b),(c)]:

      Each application shall be examined by the Competent Authority.

      If the Competent Authority is satisfied that the person presenting it has the authority to do so and that it conforms to all the provisions of the MOF Act and Rules, it shall cause the application to be registered, as admitted in the appropriate register maintained under the MOF Rules.

      If the application is not complete, the Competent Authority may send notice in the From VIII to the applicant/s to rectify the defect or comply with the requirements, within a period of 15 days of the receipt of the notice (subject to further extension of not more than 15 days time, for sufficient cause). If the defect is rectified, the Competent Authority shall cause the application to be registered, as admitted in the appropriate register.

6. Maintenance of registers and procedure for issuing notice:[Rule 13(2)]:

      The Competent Authority shall maintain the Register of Application received by it in Form IX.

      On admitting the application, the Competent Authority shall, within 15 days thereof, issue a notice in Form X, to the opponent/s requiring him/ them to file the written statement on/at the specified date and place. Such notice shall be served by Regd. A.D. or under certificate of posting on the last known address.

7. Appearance of parties and consequence of non appearance [Rule 13 (3)(a),(b),(c),(d)]:

           

      On the specified date, the opponent shall appear (either in person on through his Advocate/ Authorised Representative) and shall file a written statement before the Competent Authority.

      On the date of hearing, if the applicant appears and the Application ex-parte. However, if before the Application is decided, the opponent appears and shows sufficient cause for his non-appearance on the earlier occasion/s, he shall be heard in the matter as if he had appeared before the Competent Authority on the first day.

      If on the date fixed for hearing (or any other adjourned date), when the Application is called for hearing,

¯     If the applicant does not appear (either in person or through his Advocate/ Authorised Representative), the Competent Authority may dismiss the Application.

¯     If the opponent does not appear (either in person or through his Advocate/ Authorities Representative), the Competent Authority may decide the same on merits after hearing the Applicant or his Authorised Representative, if present.

To be Continue…..

Stamp Duty and Registration

Part 3

v     Procedure For Payment Of Stamp Duty

Stamp duty is payable on or before the date of execution of instruments. If the instrument is executed on a holiday, stamp duty can be paid on the next day.

                                                                 

There are different methods for payment of stamp duty.

The agreement can be typed on non-judicial stamp paper purchased from the stamp office. Such stamp papers must be purchased in the name of any of the parties to the agreement.

OR

Agreement prepared on plain paper must be submitted to the stamp office along with the required amount of stamp duty. The stamp office will accept cash and the blank agreement and return the duly stamped agreement within half an hour. Cash only up to Rs.25,000/- is accepted at the counter of the stamp office. If the stamp duty is more than Rs.25,000/- a demand draft/pay order in favour of the superintendent of stamps must be submitted to the stamp office. In such cases, stamped document are returned after 3-4 days.

If the party wants to pay amounts above Rs.25,000/- in cash, stamp duty can be paid in the Reserve bank of India along with a challan obtained from the stamp office. When the receipt issued by the Reserve bank acknowledging receipt of cash towards stamp duty, it is to be produced in the stamp office along with the blank agreement. The stamp office will affix the stamps and return the document on the same day.

The document submitted to the stamp office for affixing stamps as above should not have the date or signature on them.

v     Registration Of Documents

(i)   Compulsory registration

All agreements entered into with the builder for purchase of flats/shops/garage etc. must be compulsorily registered with the sub-registrar.

(ii)  Time Limit for Registration

Documents must be registered with the sub-registrar within four months from the date of execution of documents.

If the document cannot be registered within four months, registration can be made within the next four months on payment of penalty as may be decided by the sub-registrar.

If more than eight months have passed since the date of execution of agreement, the parties have to execute a deed of confirmation and attach the documents to the deed of confirmation. The deed of confirmation to which the documents is annexed can be registered with the sub-registrar.

(iii) Registration Fees

 Registration fee payable in the office of sub-registrar as under w.e.f. 1^st April, 2003 if the amount of the consideration

(a)        When the amount or, value                    Rs.100/-

            does not exceed Rs.10,000

(b)        When the amount or, value                    Rs.100 plus Rs.10/- for every rupees

            exceeds Rs. 10,000                              one thousand or part thereof in exces

                                                                        of Rs. 10,000/- subject to the

                                                                        maximum fee of Rs.30,000.

v     Both

Procedure for Registration, the parties have to approach the office of the sub- registrar with two witnesses and lodge the document for registration. The sub-registrar will accept the registration charges and issue a receipt. If any other requirements are to be complied with, the sub-registrar will note those objections on the receipt issued by him. The following are some of the requirements to be complied with before the documents are registered.

(a)    Proper stamp duty has to be paid. If the stamp duty paid is less the balance payable must be paid.

(b)   No objection certificate from the appropriate authority must be obtained under chapter XXC of Income Tax Act, if applicable (in Mumbai, the provision is applicable if the value of the property exceeds Rs.75 lakhs).

When all the requirements of registration are complied with, the sub-registrar will register the documents and return them to the party.