Monday, December 16, 2013

Artical about "Developers cannot hold on conveyance deeds"

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. Morc than 80% of the housing societies in Mumbai do not havethe conveyance deed for their building, the document transferring the plot tothe housing society or the flat purchasers.Most developers do not execute the conveyance deed as theywant to exploit the redevelopment potential of the plot or any additionalconstruction 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 infavour of the society in each case but also slapped a heavy penalty on thedevelopers 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 thedeveloper subm its specific building plan approved by the municipalcorporation, 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 makie 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 governmentsimplifies 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.

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 ofKancheepuram went like this. Mr. Ullasavelan purchased the land measuring 50 cents 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 favour 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 ofPolice. 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, theproperty was wrongly included in the subdivisions and the tahsildar’s order waspassed 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 exfacie 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 offour weeks from the date of receipt of a copy of the order.

“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 orderpassed without affording any opportunity amounts to facie illegal and arbitraryexercise of power and liable to be quashed.


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