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.