Bombay High Court Balances Redevelopment and ED Attachment of Flat
I feel this is one of the best Judgment passed by the Bombay High Court. It has protected right of Enforcement Department and also protected right of redevelopment of the members of the Society. Case Title : Antaral Co-Operative Housing Society vs Enforcement DirectorateCase Number : Writ Petition 11339 of 2026 The Bombay High Court has delivered an important ruling for cooperative housing societies facing redevelopment difficulties because one or more flats are subject to attachment proceedings under the Prevention of Money Laundering Act, commonly known as the Prevention of Money Laundering Act. In a recent order, the Court directed the Enforcement Directorate, commonly known as the ED, to issue a No Objection Certificate to a housing society so that it could proceed with redevelopment of its 44-year-old building, even though one of the ten flats in the building was under attachment by the ED. The decision shows that the attachment of an individual flat does not necessarily have to bring the redevelopment of an entire housing society to a standstill, provided appropriate safeguards are put in place to protect the rights of the enforcement agency. Background of the Case The matter concerned a cooperative housing society consisting of ten flats. The building was more than 44 years old and the society wanted to undertake redevelopment. The difficulty arose because one of the flats in the building had been attached by the Enforcement Directorate under the PMLA. The attachment was connected with proceedings before a Special Court in Ranchi, Jharkhand. Since redevelopment would involve demolition of the existing building, the society approached the ED for a No Objection Certificate. The issue was that the attached flat formed part of the building that was proposed to be demolished and reconstructed. The society therefore approached the Bombay High Court seeking permission to proceed with redevelopment while ensuring that the rights of the ED over the attached property remained protected. Society Did Not Challenge the Attachment An important aspect of the matter was that the society was not seeking to challenge or cancel the attachment of the flat. Instead, the society proposed a mechanism under which the ED would continue to have rights over the property even after redevelopment. The society gave an undertaking that the replacement flat corresponding to the attached flat would be transferred to the ED once the redevelopment was completed. The society also agreed that the redevelopment documents would clearly record that the particular flat was subject to attachment pursuant to the order of the Special Court in Ranchi. Safeguards Offered by the Society The society offered several safeguards to address the concerns of the ED. The replacement flat in the redeveloped building would continue to remain subject to the attachment. The replacement flat would be clearly identified in the redevelopment documents, including its flat number, floor and carpet area. After completion of redevelopment and receipt of the Occupation Certificate, the replacement flat would be handed over to the authorised officer of the ED. The redevelopment agreement and the Permanent Alternate Accommodation Agreement would specifically mention the attachment and the rights of the ED. The monetary benefits relating […]
Read moreROHINI GUPTA v. DISTRICT DEPUTY REGISTRAR: A CRITICAL LEGAL ANALYSIS OF THE SCOPE AND LIMITS OF DEEMED CONVEYANCE UNDER SECTION 11 OF MOFA
ROHINI GUPTA: CRITICAL LEGAL ANALYSIS AND FALLACIES The following analysis identifies potential issues in the reasoning of Rohini Gupta by comparing the judgment with the principles discussed in Ivory Properties, A.H. Wadia Trust and the other decisions referred to in the draft. The points below are arguable grounds for examination; they should not be treated as established findings of error without verification against the complete judgments and underlying documents. 1. Rohini Gupta v. District Deputy Registrar Bombay High Court | 8 September 2026 | Writ Petition No. 5991 of 2026 | Justice Sandeep V. Marne The judgment dismissed the original landowners’ writ petition and upheld the deemed conveyance of 3,901.70 sq. m. of land to the society. The principal issue is whether the Court correctly moved from its finding that the landowners were promoters to the conclusion that they were obliged to convey their reversionary ownership of the land. 2. The principal legal conflict The central issue is that Rohini Gupta recognises the principle that deemed conveyance cannot ordinarily exceed the promoter’s rights, but nevertheless upholds freehold conveyance on the particular facts before the Court. The comparison requires distinguishing between an error in interpreting Section 11 of MOFA, an error in appreciating the lease deed and registered agreements, and an error in exercising the competent authority’s jurisdiction. A different conclusion on the facts does not, by itself, establish an error of law. Legal issue Earlier legal position Rohini Gupta judgment Extent of rights under Section 11 Society ordinarily receives the rights the promoter is entitled and obliged to convey. The Court held that the landowners were also promoters and were obliged to convey their ownership interest. Leasehold versus freehold An authority cannot ordinarily substitute freehold ownership for an agreement expressly limited to leasehold rights. The Court upheld freehold conveyance, relying on the landowners’ participation in the project and the agreements concerning ownership. Effect of an existing lease assignment An assignment may fulfil the promoter’s obligation to transfer the leasehold interest. The Court held that the earlier assignment fulfilled only part of the statutory obligation because the landowners had a separate obligation. Jurisdiction under Section 11 Deemed conveyance requires failure to fulfil the statutory obligation. The Court found a continuing failure on the part of the landowners, notwithstanding the earlier assignment. Nature of proceedings Summary proceedings do not finally determine complicated title disputes. The Court upheld the order while preserving the parties’ right to pursue appropriate civil proceedings. The judgment relies on A.H. Wadia Trust, Haresh Vijaysinh Bhatia and other decisions to distinguish cases where the promoter is merely a lessee from cases where the landowner is also a promoter or has an independent statutory obligation to convey. 3. Possible errors in Rohini Gupta judgment The following are potential grounds for challenging the reasoning. They are arguable errors, not findings that the judgment is necessarily erroneous. Sr. No. Paragraph of Rohini Gupta Possible error in reasoning Legal significance 1 Paras 14–15, 21–24 Treating participation in construction as sufficient to establish an obligation to convey freehold ownership. The Court inferred that the landowners became promoters because they exercised control over construction […]
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From Leasehold to Freehold: The Scope and Limitations of Unilateral Deemed Conveyance under Section 11 of MOFA
Whether Unilateral Deemed Conveyance Under Section 11 of MOFA Can Convert Leasehold Property into Freehold? The legal position depends on the nature of the rights conferred by the original lease deed, the registered agreements for sale, the promoter’s obligations and the applicable land laws. The power to grant unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA), does not automatically confer the power to convert leasehold rights into freehold ownership. However, freehold deemed conveyance may be permissible where the underlying agreements and title documents establish a legally enforceable obligation to transfer ownership. The distinction is between enforcing an existing right to ownership and creating a new proprietary right that the promoter never possessed or was never obliged to transfer. Statutory Position Under Section 11 of MOFA Section 11(1) of MOFA obliges the promoter to take the necessary steps to complete his title and convey to the society or other association of flat purchasers the promoter’s right, title and interest in the land and building, in accordance with the agreements and statutory requirements. Section 11(3) provides the mechanism for applying for deemed conveyance when the promoter fails to fulfil that obligation. Section 11(4) empowers the competent authority to examine the application and issue a certificate of entitlement, while Section 11(5) provides for the execution of the unilateral instrument. The statutory expression “his right, title and interest” is significant. It does not, by itself, mean that every deemed conveyance must transfer absolute ownership of the land. There is a fundamental distinction between the power to execute a conveyance without the promoter’s cooperation and the power to enlarge the proprietary rights that are the subject of that conveyance. Relevant Bombay High Court and Supreme Court Decisions Ivory Properties and Hotels Pvt. Ltd. v. District Deputy Registrar Bombay High Court | 24 February 2026 | 2026:BHC-AS:9375 This judgment directly examines whether deemed conveyance under MOFA can confer freehold ownership where the underlying arrangements refer to leasehold rights. The Court accepted the legal proposition that where the MOFA agreements clearly contemplate only the assignment of leasehold rights, the competent authority cannot go beyond those agreements and grant freehold conveyance. However, the Court distinguished the facts before it. The registered agreements for sale contained provisions indicating the transfer of ownership, and the purchasers had paid consideration towards the land. Having regard to the material before it, the Court upheld the freehold deemed conveyance. The Court also clarified that complicated questions of title remain open for adjudication in appropriate civil proceedings. The decision, therefore, recognises that the mere existence of a lease arrangement does not invariably preclude freehold deemed conveyance. The terms of the registered agreements and the supporting title documents are material to determining the nature of the rights that may be conveyed. New Sonal Industries Premises Ltd. v. District Deputy Registrar Bombay High Court | 2025 | 2025 SCC OnLine Bom 391 This decision is relevant where the governing agreements specifically provide for the assignment of leasehold rights. The legal proposition relied upon in Ivory Properties is that the competent authority cannot substitute freehold ownership for an agreed assignment of […]
Read morePrinciples of Statutory Interpretation, Precedence and Limitations
Limitation of Special Laws to Override Common Statute The general principle of statutory interpretation is that a special law (lex specialis) generally prevails over a general or common statute (lex generalis) when both deal with the same subject matter and contain conflicting provisions. This principle is expressed by the Latin maxim Generalia specialibus non derogant, meaning that general provisions do not derogate from special provisions. Meaning A special law is enacted to regulate a particular subject, class of persons or specific situation, whereas a general statute applies more broadly. When both laws apply to the same matter, the special law ordinarily takes precedence over the general statute, provided that the legislature has not indicated a contrary intention. Limitations on the overriding effect of special laws The overriding effect of a special law is subject to several limitations. Legislative intention: A special law does not automatically override a general statute in every situation. The intention of the legislature must be considered. Absence of conflict: If the provisions of the special law and the general statute can operate harmoniously, both should ordinarily be given effect. Express overriding provisions: If the general statute contains an express non obstante clause, such as “notwithstanding anything inconsistent therewith in any other law,” the court must examine its scope and the legislative intention behind it. Subsequent legislation: A later general statute may override an earlier special law if the legislature clearly intends to do so. However, a general amendment does not ordinarily repeal a special law by implication. Different fields of operation: Where the special law and general statute govern different aspects of a matter, the special law does not necessarily displace the general statute altogether. Constitutional supremacy: Neither a special law nor a general statute can override the Constitution. Both remain subject to constitutional limitations. Important judicial decisions LIC v. D.J. Bahadur (1981) The Supreme Court of India explained the relationship between special and general laws and recognized that a special statute ordinarily prevails over a general statute dealing with the same subject. The Court also considered whether a subsequent general enactment was intended to override the special legislation. LIC v. D.J. Bahadur establishes that the special-versus-general distinction is contextual, not absolute. A special statute does not automatically override every other statute, and the courts must examine legislative intention, inconsistency and the possibility of harmonious construction. Applied to MOFA, the decision supports a careful examination of the limits of Section 11. It does not, on its own, establish that freehold deemed conveyance is impermissible. Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (2001) Solidaire India establishes that a later special statute may prevail over an earlier special statute where their overriding provisions conflict and the legislative intention supports that result. It does not establish that Section 11 of MOFA automatically overrides leasehold restrictions or independently authorises conversion into freehold ownership. Its relevance to a MOFA dispute is principally interpretive: the court must identify the actual statutory conflict, consider legislative intention and distinguish statutory priority from the separate question of whether the society has a substantive right to freehold title. The Supreme Court considered the conflict between […]
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The Expanding Definition of “Promoter”: Impact on Landowners’ Rights. Need for parliamentary intervention?
NEED FOR AUTHORITATIVE CLARIFICATION BY THE BOMBAY HIGH COURT ON THE SCOPE OF SECTION 11 OF MOFA: GERALD MICHAEL MISQUITTA AND ROHINI GUPTA Gerald Michael Misquitta Vs State of Maharashtra ( “Gerald” ) Rohini Gupta & Anr. v. District Deputy Registrar, Co-operative Societies & Ors., WP No. 5991/2026, Bombay High Court, decided 8 September 2026, in which Mohini Gupta is the second petitioner. Indian Kanoon ( “Gupta” ) The two cases are quite closely connected because both concern Section 11 of MOFA, deemed conveyance, landowners/lessees, and the powers of the District Deputy Registrar (DDR). But there is an important difference: Gerald Misquitta is primarily a procedural/natural-justice case, whereas Gupta is substantially a Section 2(c)/Section 11 substantive-promoter case. Basic facts — side-by-side Sr No Particulars Gerald Michael Misquitta v. State of Maharashtra Rohini Gupta & Anr. v. DDR3 1 Court Bombay High Court Bombay High Court 2 Judgment date 25 Feb 2026 8 Sept 2026 3 Petition WP 1739/2022 WP 5991/2026 4 Ownership Misquitta family property, Vile Parle West Gupta family property, Juhu 5 Original owners Multiple Misquitta co-owners Late Kundanlal Laxmichand Gupta; petitioners were his heirs 6 Developer/lessee structure Owners → Rahejas → A.K. Associates/sub-lessee Owner → Raheja/Wadhwa lessees → developers 7 Society Name Priya Co-operative Housing Society Queens Park Premises Co-operative Society 8 Lease 98-year lease 98-year lease 9 Earlier transfer to society Society claimed/received only leasehold-related rights Society already received assignment of leasehold rights in 1978 10 DDR order 28 May 2014 23 June 2025 11 Main challenge Owners were not properly impleaded/heard; DDR did not conduct required enquiry Whether landowners themselves became “promoters” under MOFA Result DDR order + conveyance quashed and remanded Petition dismissed; DDR order upheld The Misquitta judgment records that the property was owned by several co-owners and that the society’s deemed-conveyance application proceeded without impleading all of them. Indian Kanoon The Gupta judgment records a 98-year lease from Kundanlal Gupta and subsequent construction of Queens Park by the lessees/developers. Indian Kanoon Paragraph-wise comparison This is the more useful way to read the judgments. Para 1–3 — What is being challenged? Gerald — paras 1–3 The petitioner challenged the DDR’s 28 May 2014 certificate permitting unilateral deemed conveyance and the subsequent registered deed of assignment/transfer dated 5 July 2014. The important factual feature was that the petitioner claimed to be a co-owner, but was not properly made a party to the deemed-conveyance proceedings. Indian Kanoon Gupta — paras 1–4 The petitioners were the legal heirs of the original landowner. They challenged the DDR’s order dated 23 June 2025 granting unilateral deemed conveyance of approximately 3,901.70 sq.m. to Queens Park Society. The Gupta petitioners said that their father had died in 1981 and that the DDR had proceeded on a notice issued in his name. Indian Kanoon Difference In Gerald, the central problem was: “Were all persons whose rights were affected actually heard?” In Gupta, the central question became: “Were these landowners themselves promoters under Section 2(c) MOFA?” Paragraphs 10–15 — Meaning of “promoter” This is the most important substantive difference. Gerald The Court did not finally determine the title/promoter controversy because […]
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Unilateral Deemed Conveyance under MOFA: Leasehold, Freehold and the Limits of the Competent Authority Lessons from Parmanand Builders v. Competent Authority: 24 February, 2026
Bench: Amit Borkar J The remedy of unilateral deemed conveyance under Section 11 of the Maharashtra Ownership of Flats Act, 1963 (“MOFA”) was introduced to protect flat purchasers and co-operative housing societies from a promoter’s failure to execute a proper conveyance. Over the years, however, deemed-conveyance proceedings have generated an important question: what exactly can the Competent Authority direct to be conveyed where the property is subject to leasehold rights? The decisions involving Parmanand Builders Pvt. Ltd. v. Competent Authority provide a useful framework for understanding this issue, particularly the distinction between freehold ownership and leasehold rights, and the limits of the Competent Authority’s jurisdiction. The purpose of deemed conveyance Section 11 of MOFA places an obligation upon the promoter to convey his right, title and interest in the land and building to the organisation of flat purchasers. Where the promoter fails to execute the conveyance within the prescribed period, the society may approach the Competent Authority for a certificate enabling it to execute a unilateral deemed conveyance. The object is essentially remedial. A society should not remain indefinitely without title merely because a promoter refuses or neglects to execute the conveyance. However, deemed conveyance does not mean that the Competent Authority acquires unlimited jurisdiction over property disputes. The Authority must determine the interest that is legally capable of being conveyed and act within the framework of Section 11. Freehold and leasehold: why the distinction matters The distinction between “freehold” and “leasehold” becomes critical when determining the extent of the conveyance. In a freehold transaction, the owner generally possesses the ownership interest in the land itself. If the promoter is the owner and is under an obligation to convey the property to the society, the conveyance would ordinarily involve the promoter’s ownership interest, subject to the title documents and applicable law. A leasehold property stands on a different footing. A lessee does not own the land in the same manner as a freehold owner. The lessee possesses an interest derived from the lessor and is bound by the terms and conditions of the lease. Consequently, a promoter who possesses only leasehold rights cannot ordinarily convey a better title than the one he himself possesses. Thus, in a genuine leasehold transaction, the relevant question is not simply whether the society is entitled to deemed conveyance, but: What interest did the promoter actually acquire, and what interest is he legally capable of conveying to the society? This distinction can determine whether the appropriate instrument is a conveyance of ownership, an assignment of leasehold rights, or another form of transfer contemplated by the title documents. A proposed lease is not necessarily an existing lease ? One of the most important factual issues in such disputes is whether there was, in fact, a legally constituted lease. Documents relating to a development arrangement may contain language stating that a lease is to be executed in favour of the promoter, purchasers or the society. But a contractual provision contemplating a future lease should not automatically be treated as equivalent to an executed and legally operative lease. The title investigation therefore becomes fundamental. The Competent Authority must […]
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Maharashtra Co-operative Societies (Amendment) Act, 2026 – Key Amendments Explained Q and A
Description: Learn about the Maharashtra Co-operative Societies (Amendment) Act, 2026, including changes to Sections 73AAA, 73B, 73C, 73CB, 73F, 81 and 157, their legal implications, and what co-operative societies need to do to comply. Maharashtra Co-operative Societies (Amendment) Act, 2026: What Every Co-operative Society Should Know The Maharashtra Co-operative Societies (Amendment) Act, 2026 has introduced several important changes to the Maharashtra Co-operative Societies Act, 1960. Although the amendments are limited to a few provisions, they significantly impact the governance, election process, committee administration, and regulatory compliance of co-operative societies across Maharashtra. The amendments primarily strengthen the role of the State Co-operative Election Authority (SCEA), streamline the procedure for filling committee vacancies, update audit thresholds, and improve transparency in the management of co-operative societies. Whether you are a committee member, housing society office bearer, director of a credit society, auditor, advocate, chartered accountant, or consultant, understanding these amendments is essential for ensuring statutory compliance. Why Was the Amendment Necessary? The co-operative sector in Maharashtra is one of the largest in India, comprising housing societies, credit societies, consumer societies, agricultural societies, industrial co-operatives, and numerous other institutions. Over the years, practical issues emerged relating to: delays in filling committee vacancies; disputes concerning multiple-seat elections; lack of uniform supervision during committee proceedings; ambiguity regarding election authorities; and outdated financial thresholds. The Amendment Act addresses these concerns by introducing clearer procedures and strengthening institutional oversight. Key Amendments Introduced by the 2026 Amendment Act Amendment to Section 73AAA – Exemption for Type “A” Societies The first proviso to Section 73AAA(3) has been deleted. Further, the second proviso has been amended to exclude committees of Type “A” Societies prescribed under Rule 4 of the Maharashtra Co-operative Societies (Election to Committee) Rules, 2014. Practical Impact The amendment differentiates Type “A” societies from other classes of co-operative societies for the purpose of this provision. Societies falling within this category should carefully examine whether the amended provision applies to them before initiating committee-related actions. Amendments to Sections 73B and 73C – Greater Election Supervision Sections 73B and 73C deal with representation of reserved categories on the managing committee. The Amendment Act now provides that whenever vacancies are filled under these provisions, the committee meeting must be presided over by an officer authorized by the State Co-operative Election Authority (SCEA). Why This Matters Earlier, committee meetings were conducted internally, which occasionally resulted in procedural disputes. Independent supervision by an authorized election officer is expected to: improve transparency; reduce allegations of bias; ensure procedural compliance; and increase confidence in the election process. Amendment to Section 73CB – Clarification of Election Authorities Section 73CB contains provisions relating to election administration. The Explanation has now been amended by specifically referring to: Divisional Co-operative Election Officers; District Co-operative Election Officers; Taluka Co-operative Election Officers; Ward Co-operative Election Officers; Observers; and Zonal Officers. Importance The amendment removes ambiguity by expressly identifying the authorities responsible for election-related functions. This provides greater administrative certainty during election proceedings. Complete Substitution of Section 73F – Election to Multiple Committee Seats One of the most significant amendments is the complete substitution of Section 73F. Earlier Position The earlier provision did […]
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Committees Are Not Courts: Bombay High Court Draws the Line
STOP PLAYING JUDGE: HOUSING SOCIETIES CANNOT DECIDE TITLE An interesting case came up before the Bombay High Court, where aforesaid issue was argued and decided. Facts of the case are as under: The dispute concerns ownership of Flat No. 31 in a Malad housing society in Mumbai. The flat was purchased around 1969–70 by Ramlal Dhanuka using his own funds but was registered jointly in his name and Pannadevi (wife of his son D. R. Dhanuka). Ramlal had three sons—D. R. Dhanuka, K. R. Dhanuka, and Radheshyam Dhanuka (Respondent No. 4)—who later occupied different flats bought by him. After Ramlal and his wife died in 1989, the sons became legal heirs. In 2007, Pannadevi filed a suit claiming exclusive ownership of the disputed flat and denying any rights of Radheshyam. She died in 2008, and her legal heirs continued the case. Meanwhile, an order was passed restraining the housing society from transferring or dealing with the flat’s membership rights until the suit is decided. Core issue: Whether the flat belongs exclusively to Pannadevi or forms part of the family property. Now let us see the arguments of the Petitioner: the Society argued that Respondent No. 4 wrongly applied for transfer of membership instead of transmission after the member’s death and failed to follow mandatory procedures under Bye-Law 35, including public notice and verification of legal heirs, while also submitting an incomplete application. It also argued that there are disputes among heirs; society further contended that the Divisional Joint Registrar lacked jurisdiction to hear a revision against the Deputy Registrar’s order, but the Court rejected this, holding that cooperative societies only perform limited administrative roles (not deciding ownership, as noted in Usha Jhaveri vs State of Maharashtra) and that revisional authority remains valid despite delegation of powers, thereby upholding the legality of such review. Respondent member argued that: After the earlier suit concerning the flat was unconditionally withdrawn in 2012, clearing disputes over title, Respondent No. 4 applied for membership as a legal heir, but the society failed to decide his application, leading him to seek deemed membership and later file a revision; he argued that the society had effectively recognized him by accepting maintenance charges and that minor defects in the application form should not defeat his substantive claim of succession, while also relying on lack of opposition from key family members, whereas the petitioners contended that multiple heirs existed and the application was invalid due to incorrect form and procedure; the Court, however, emphasized that substance prevails over form, held that the application was essentially for transmission based on inheritance despite technical errors, found that the alleged disputes among heirs were not strong enough to justify inaction, and rejected the jurisdictional objection, thereby supporting the validity of the revisional proceedings and Respondent No. 4’s claim being considered. It was held by the Bombay High Court that: the dispute before the society was not about ownership/title, but merely about recognition of membership after the death of a member, making it an issue of internal administration rather than adjudication of property rights. It emphasized that Section 30 of the Maharashtra Cooperative […]
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“RERA in India: Repeal or Reform?
SHOULD RERA BE REPEALED? Why we are discussing this topic? The Supreme Court in THE STATE OF HIMACHAL PRADESH vs. NARESH SHARMA| SLP(C) No. 005835 – / 2026 CJI Surya Kant said It is high time that all the states should revisit and rethink constituting this authority,” The CJI further remarked that the RERA was not doing any other services except to facilitate builders in default. Let’s study pros and Cons. RERA is useful and effective: The Real Estate (Regulation and Development) Act, 2016 (RERA) brings accountability, transparency, and efficiency to the Indian real estate sector, primarily protecting homebuyers. Key benefits include mandatory project registration, standardized carpet area definitions, 70% of funds kept in an escrow account to prevent diversion, guaranteed timely delivery, and a 5-year defect liability period. Major Positive Points of RERA: Transparency and Disclosure: Promoters must disclose project plans, layout, land title status, and timeline on the RERA website, giving buyers access to verified information. Protection of Funds: Developers are required to deposit 70% of all project funds into a dedicated bank account, ensuring money is only used for that specific project, reducing insolvency risk. Standardized Carpet Area: RERA eliminates confusion by defining “carpet area” clearly, ensuring buyers pay only for the actual usable space, not for common areas or super built-up areas. Builders were selling units/galas/flats even on Super Built Up basis. Timely Delivery and Penalties: Projects must be completed on time. If a developer delays possession, they are liable to pay interest on the amount paid by the buyer, matching the interest rate for buyer default. Defect Liability Period: Builders are responsible for rectifying any structural defects or quality issues reported within 5 years of possession at no extra cost. Reduced Fraud and Misleading Ads: All advertising must adhere to the registered project details. False promises or misleading marketing can lead to penalties. Redressal Mechanism: RERA authorities provide a fast-track, organized, and legal mechanism for settling disputes between buyers, developers, and agents. Consent for Changes: Developers cannot change plans or structure without the consent of two-thirds of the homebuyers. Concluding Notes: RERA has significantly improved buyer confidence, increased project efficiency, and bYes—**before the introduction of RERA in India**, this kind of malpractice was unfortunately quite common in the real estate sector. ROLE OF REAL ESTATE REGULATORY AUTHORITY (INDIA) Before RERA came into force (around 2016–2017), there was no strong centralized regulator, which allowed many builders to exploit buyers. What Used to Happen Before RERA Blank or Incomplete Agreements Builders often made buyers sign blank or partially filled agreements Later, terms were changed without the buyer’s consent. Buyers had little legal protection. Multiple Sales of the Same Flat. Blank document was signed and genuine buyer in possession was not aware of the same. Some builders sold **one flat to 5–10 people** using: Duplicate allotment letters Fake agreements Backdated documents Especially common when buyers paid in cash or instalments. Mix of Investors and Loan Buyers: Builder was taking loans from investors in cash against blank agreement. Such funds were cash. Investors were given early “soft bookings” without registration. Genuine buyers took bank loans […]
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UNTRACEABLE MEMBERS AND PROPERTY RIGHTS IN COOPERATIVE HOUSING SOCIETIES: PROCEDURES AND PRECEDENTS
In the model bye-laws of a cooperative housing society (such as those in Maharashtra), a member is deemed to have ceased membership if their whereabouts are unknown for a continuous period of seven years and their shares and interest in the property are unclaimed by anyone else. This cessation allows the society to take further action regarding the property. Procedures and Provisions While specific actions for handling the property itself require legal procedures beyond just the society’s internal rules, the bye-laws provide a framework for managing the situation and ultimately dealing with the ownership: Cessation of Membership: Bye-law No. 55(f) (in the Maharashtra Model Bye-laws) explicitly states that a person shall cease to be a member if their whereabouts are not known for seven continuous years and no claim is made on their interest in the property. However, the associate member shall not cease to be Associate Member when the First Member ceases to be the member of the society if Associate Member holds title and interest in the property jointly with the member. The Committee shall take further action in the matter as indicated in the Bye-law No. 62. Vesting of Shares/Interest: If, after a member’s death or disappearance, there is no claimant (nominee, heir, or legal representative), their shares and interest in the capital/property of the society will vest in the society itself. Nominations and Legal Heirs: The bye-laws heavily emphasize the importance of nomination (Bye-law No. 32-34). If an owner is untraceable and has no nominee, the committee would typically ask for a legal representative or heir to come forward. Payment of Dues: The untraceable owner’s account would likely accumulate unpaid maintenance charges and other dues, incurring interest (up to 21% per annum in some model bye-laws). These liabilities must typically be cleared before any transfer of interest can occur. Formal Communication: The society uses formal communication methods, such as registered post to the last known address or displaying notices on the society’s notice board, which are considered valid service of notice even if the member is untraceable. The society must maintain records of all sent notices as proof. Committee Action: The managing committee has the power to manage the society’s affairs (Bye-law No. 111), which includes dealing with non-compliance and cessation of membership. They are responsible for initiating the process of addressing the untraceable owner’s status. Registrar and Courts: The final authority in serious disputes or complex situations, such as an untraceable owner with no clear legal path forward, ultimately lies with the Registrar of Cooperative Societies or a Cooperative Court. The society would likely need to approach these legal bodies for formal orders to take control of or dispose of the property. DISCUSSION: A is member and have signed Conveyance. A is not traceable for more than 40 years. Taking advantage of situation widow of promoter applies for membership. It was rejected. During course of arguments she sell the flat. After two decades the flat goes for redevelopment. The purchaser of the flat sells flat to the third party. Society refuses all a membership, In a recent ruling of Supreme Court of India K, Gopi […]
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