Vires of Deemed Conveyance Under MahaRERA
In the MOFA regime prior to the amendment of 5A and 11 to MOFA, the power to ‘grant conveyance’ was governed under the general civil-judicial jurisdiction.
After the amendment, the powers were with the Competent Authority under 5A of MOFA.
With the advent of RERA, with specific provisions of section 17, r/w 11(4)(f) of RERA now creates the statutory obligation under the central act of conveyance of land.
Section 34(f) of RERA makes it the liability of the RERA to see compliance and has specific powers under sections 36 and 37 to enforce the obligation of the promoter. It wouldn’t be out of place to record that RERA is now passing orders of cancellation of agreements in case of default of flat purchasers.
The orders of the Authority under these sections are appealable before the Appellate Tribunal.
In the rules, however, while the power is recorded in favour of the RERA Authority in Rule 9(4), an alternate is made in Rule 9(5) to seek remedy under MOFA, i.e., the DDR.
The DDR is not an authority under RERA. There is a specific authority under RERA to deal with conveyances of projects registered under RERA. Ideally the Authority under RERA should have a monitor, or at least hereafter (hopefully) monitor and enforce conveyances, which is an obligation of the Authority under RERA.
Legal Position Under MOFA and RERA
| Stage | Position |
|---|---|
| Before amendment of Sections 5A & 11 of MOFA | Power to grant conveyance vested under the general civil-judicial jurisdiction. |
| After amendment to MOFA | Powers vested with the Competent Authority under Section 5A of MOFA. |
| After enactment of RERA | Section 17 read with Section 11(4)(f) creates a statutory obligation upon the promoter to execute conveyance. |
Law Points
- RERA was enacted to establish a specialised regulatory framework for real estate. Conveyance under Section 17 is one of the promoter’s core statutory obligations. It is logical and obligatory that enforcement of that obligation ought to have been implemented and kept with the RERA framework itself.
- Adjudicating disputes concerning conveyance requires understanding sanctioned plans, common areas, project registration, promoter obligations, phased development, and rights of allottees—all matters routinely dealt with under RERA. An RERA authority is institutionally hands-on, whereas the DDR’s authority is doubtful, nay absent, and also may not have expertise compared to RERA itself.
Present Position
At present:
- Disputes relating to registration, project obligations, disclosures, etc., go before MahaRERA and the Appellate Tribunal.
- Deemed conveyance proceeds before an authority who does not have powers under RERA, i.e., DDR, with judicial review following a different route to the High Court and then, by virtue of the judgement in Mazda Constructions not being final, the civil suit lies. This puts the flat purchasers in a long wait for conveyances.
This creates fragmented remedies for issues arising from the same project. A unified appellate mechanism (already in RERA) would promote consistency.
Housing societies currently have to navigate multiple authorities—MahaRERA, the DDR, the Sub-Registrar, and sometimes civil courts. Revesting and consolidating the existing adjudicatory function under RERA would give the flat purchasers real legal conveyances without delay and procedural complexity.
Why RERA Should Enforce Section 17
Since Section 17 creates the promoter’s statutory obligation under RERA, the mechanism for enforcing that obligation is already in place within the RERA framework.
The Adjudication Officers, who are judicial officers (or another designated RERA authority if the Legislature considers that more appropriate), can smoothly and efficiently decide applications, with appeals lying to the Maharashtra Real Estate Appellate Tribunal, to give access to enforcement of Section 17 by flat purchasers.
This will reduce the burden on the High Court and Civil Court, especially because seeing that conveyances are effected is a statutory duty of RERA.
Comparison of Current and Proposed Framework
| Current Position | Suggested Position |
|---|---|
| Deemed conveyance before DDR. | Deemed conveyance before the RERA Adjudicating Officer/Competent Authority. |
| Separate appellate and judicial review processes. | Appeal before the Maharashtra Real Estate Appellate Tribunal. |
| Multiple proceedings before different authorities. | A single specialised RERA framework. |
| Longer litigation and procedural complexity. | Faster enforcement and greater consistency. |
No Alternative
This enforcement is an obligation of both the State of Maharashtra & Maharashtra. No change is required except for an amendment to Rule 9(5) to name either the Competent Authority or the Adjudicating Authority.
It is undisputable that the State will have to regularise the orders passed by DDR in RERA-registered cases by making revalidation provision in RERA itself. Therefore, it won’t be hard for the State to vest the powers in adjudicating officers.
Conclusion
The statutory framework under RERA already recognises conveyance as a mandatory obligation of the promoter under Section 17 and empowers the Authority to ensure compliance through Sections 34(f), 36 and 37. Vesting the adjudicatory power relating to deemed conveyance within the RERA framework would create a unified mechanism, reduce the multiplicity of proceedings, lessen the burden on the High Court and civil courts, and provide flat purchasers with timely and effective enforcement of their statutory rights.
For consideration of esteemed readers.
Key Takeaways
The following key takeaways summarise the legal issues, statutory framework, and proposed reforms relating to deemed conveyance under the Real Estate (Regulation and Development) Act, 2016 (RERA) and the Maharashtra Ownership Flats Act (MOFA).
Major Legal Findings
- RERA Section 17 creates a statutory obligation on every promoter to execute conveyance of the land and building in favour of the society, association of allottees, or competent legal entity.
- MahaRERA has statutory powers under Sections 34(f), 36, and 37 of the Real Estate (Regulation and Development) Act, 2016 to monitor, enforce, and ensure compliance with promoters’ legal obligations, including execution of conveyance.
- Rule 9(5) of the Maharashtra RERA Rules presently directs applicants to seek deemed conveyance through the District Deputy Registrar (DDR) under MOFA, resulting in a dual and fragmented legal framework.
- The District Deputy Registrar (DDR) is not an authority constituted under RERA, despite dealing with deemed conveyance for projects that are otherwise fully regulated by MahaRERA.
- A unified RERA-based adjudication mechanism would eliminate parallel proceedings before different authorities and provide greater consistency in real estate dispute resolution.
- Adjudicating Officers under MahaRERA, being judicial officers with expertise in real estate regulation, are better suited to decide deemed conveyance applications than authorities functioning outside the RERA framework.
- Housing societies presently face multiple legal forums, including MahaRERA, the District Deputy Registrar, the Sub-Registrar, the Maharashtra Real Estate Appellate Tribunal, the High Court, and, in certain cases, civil courts—causing delay, increased costs, and procedural complexity.
- Transferring deemed conveyance jurisdiction to MahaRERA would significantly reduce litigation, shorten timelines, and improve access to justice for flat purchasers.
- Only a limited legislative amendment may be required, principally to Rule 9(5), to designate the appropriate MahaRERA authority for adjudicating deemed conveyance applications.
- Existing deemed conveyance orders passed by the DDR in RERA-registered projects can be protected through a statutory validation or revalidation provision, ensuring legal continuity while transitioning jurisdiction.
- A single appellate structure under the Maharashtra Real Estate Appellate Tribunal would create a uniform interpretation of conveyance law and reduce conflicting decisions.
- The article argues that effective enforcement of Section 17 is not merely desirable but a statutory responsibility of both the State of Maharashtra and MahaRERA, making reform of the present mechanism legally justified.
Summary Table
| Issue | Key Takeaway |
|---|---|
| Statutory Duty | Section 17 of RERA mandates promoters to execute conveyance. |
| Enforcement Powers | MahaRERA possesses powers under Sections 34(f), 36, and 37 to enforce promoter obligations. |
| Current Mechanism | Rule 9(5) directs deemed conveyance applications to the DDR under MOFA. |
| Jurisdictional Issue | The DDR is not an authority constituted under RERA. |
| Existing Problem | Multiple authorities create fragmented remedies, delay, and procedural complexity. |
| Suggested Reform | Transfer deemed conveyance adjudication to MahaRERA. |
| Legislative Change | Amend Rule 9(5) to designate the appropriate MahaRERA authority. |
| Expected Benefit | Faster conveyance, uniform decisions, reduced litigation, and better protection for flat purchasers. |
Overall Conclusion
Collectively, these key takeaways highlight that the statutory obligation created by Section 17 of RERA, read with the enforcement powers available to MahaRERA, supports the case for a unified adjudicatory mechanism within the RERA framework. The proposed reform seeks to simplify the conveyance process, reduce litigation, and ensure more effective enforcement of the rights of flat purchasers.
Written By: Adv. Sandeep Kapatkar, Pune
