01. ANTICIPATIONS & APPREHENSIONS:
Successive State Govt., has consistently wished to transform India’s Mumbai into China’s Shanghai, irrespective of the fact, that Mumbai has umpteen number of near-probable legal slums with G+2 tin structures, alongwith the highest building of averaging 40 floors, housing maybe about 200 flats, with documented malfunctioning and falling elevators (Lifts).
Shanghai, on the other hand has 125 floor buildings with high-speed incident-free elevators. One another 220 floor building in the City of “Changsha”, in Hunan-China, when completed would house 30,000 people.
02. VARIOUS REQUIREMENTS, for Deemed Conveyance:
a) Duly Registered & Stamp duty paid, Sale-Purchase Agreement, of all members.
b) Documents about the plot of land from the Tahsildar /Collectors office
c) Sanctioned Documents from Municipal authorities
d) Relevant documents of the Society, Balance sheets, Resolutions and so on ….
03. APPLICABLE COURT FEE = Rs.2000/-
A Society can file application affixing Court Fee of Rs. 2000/-, with the relevant documents, for obtaining “Certificate of Deemed Conveyance”, which is tentatively possible within four months (subject to proper documentations). There is hardly any legal expertise required for obtaining the “Certificate of Deemed Conveyance”. SURPRISINGLY, the “Certificate of Deemed Conveyance”, can be obtained only in Rs. 2000/- (being the Applications Court Fee).
04. FIRST COMPETENT AUTHORITY:
In Mumbai, the four Deputy District Registrar of Cooperatives, are the division-wise delegated authority’s to issue “CERTIFICATE of deemed conveyance” and nothing more. Which means that a Society now becomes entitled to one-side register the Conveyance of the Society plot, with the Registrar of Sub-Assurances, BUT only after paying the present & relevant “Stamp Duty and Registration fees”, that is applicable on the variable rate of the plot of land.
05. SECOND COMPETENT AUTHORITY:
A major hitch here is the next stage of mandatory “Hearing with the Registrar of Sub-Assurances”, wherein the Landlord / Builder / Developer is also called in for a hearing, irrespective of the “Certificate of Deemed Conveyance” . The Builders are ever-flush with Cash, Power and Legal Expertise, who can very well afford and manage to delay the actual transfer of conveyance process, for a long time, thus frustrating the objectives of the Society. HOWEVER, as evident in many cases, WHEN builders themselves undertake “Redevelopment Process”, THEN the builder gets the conveyance at a very fast pace, subject to lots of money consideration here and there. Tentatively, it should be introspected that the concept of “Deemed Conveyance”, is presently grossly tilted in favor of the Land-Lord /Developer.
06. TECHNICAL INTROSPECTION:
The Deputy District Registrar of Cooperatives, may issue “CERTIFICATE of deemed conveyance”, after due process, BUT has no jurisdiction to actually mutate /transfer ownership of land, in the Revenue Records, that is conclusively maintained by the taluka Tahsildar. Hence upto this stage the “CERTIFICATE of deemed conveyance”, is mere piece of paper (as a consolation), having very very limited legal standing. Based on the aforesaid “CERTIFICATE of deemed conveyance”, the Conveyance can ONLY BE REGISTERED, by the “Registrar of Sub-Assurances”, after due process, and nothing more. The Registrar of Sub-Assurances, has no jurisdiction to actually mutate /transfer the Title-Ownership of the plot of Land, in the name of the Society. The Conveyance of the Plot shall be final, ONLY AFTER the name of the Society, is recorded on the 7×12 extract /Property Card, that is maintained by the Tahsildar of the taluka. The 7×12 extract and Revenue Form no. 6, is the final & conclusive proof of “ownership of land”, for all purposes.
07. COSTING:
OBIVIOUSLY, nothing comes for free, and the Builder has to compensate himself for the Money he has spent on getting Conveyance from the earlier Landlord /Builder. Here the Redeveloper (Builder) compensates himself, by offering you less Corpus Fund, Less extra Flat Area (FSI), Less alternative accommodation Rent, degrading Construction material, Less Amenities, and so on.
08. STAMP DUTY & REGISTRATION FEE:
The biggest hitch, most Society’s face is the huge one-time-amount of “Stamp Duty and Registration fees”, that instantly becomes payable, when actually Registering the “Certificate of Deemed Conveyance”, in favor of the Society’s name. This translates to a tentative average of about 25-50 Lakh rupees, onwards for an average size plot of land. Here the biggest bane is this huge amount, when in context, wherein the members penny-pinch themselves, by delaying the cost-escalating essential structural repairs /painting, to their buildings.
The Coop. Court, has no jurisdiction, to adjudicate, in matter of Conveyance of the Society Plot.
09. INTROSPECTION:
Does a Coop. Society, really need a Builder /Developer to Redevelop their own Property, in the absence of Conveyance ?
Here the probable answer is YES, when in context to the deliberated meager spending power of the Society members. The Developer-Builder is the gainer, due to the technical incapacity of the Society. However, in relative terms, Redevelopment of old buildings, can be undertaken by the Society themselves, with successful coordination with the financing agencies, with sustainable and committed cooperation between the Society members and with the real-time coordination of relevant professionals in the field.
10. WHAT HAPPENS IF YOU DONT HAVE CONVEYANCE OF YOUR SOCIETY PLOT ?
a) LITERLLY nothing, as long as you don’t intend to redevelop the building yourself. You can comfortably, continue occupying the Plot of Land, without any further hitches.
b) AND in the event IF you wish for redevelopment of your building, THEN in all probabilities, the Builder-Developer, will get the Conveyance, for you, a his own Cost & Consequences, which literally & really does not hurt the redevelopment modalities, for the Society members.
c) AND IN ANY EVENT, with the Law scenario changing, due to the winds of awareness, sooner or later, most society plots would be registered in the name of Society’s, literally at no cost, by the Govt., who will ultimately have no choice or options. Only criteria is to wait for appropriate time.
d) There are few instances, wherein the Land-Lord /Developer, has executed “Lease Deed” for 30 years, at a nominal yearly rent, for the plot of land, instead of actually passing on Conveyance to the Society. This aspect is also favoring the Society & its members, who are in grave financial difficulties and have considered Redevelopment of their dilapidated buildings. This is one way of going for redevelopment, in the absence of Conveyance of the plot of land in favor of the Society.
11. LEGAL ASPECTS, in respect of Conveyance of plot of land:
Society’s who can sustain the legal expenses, can successfully file Criminal Proceedings and /or Consumer Court proceedings, against the Landlord / Builder / Developer, for malpractices in Conveying the plot of land, in the name of the Society. HOWEVER, once a Society is duly registered, the Land-Lord /Developer, literally has no legal-recourse left to utilize even a square feet of the Society Land, in view of the Judgments of the Hon. High Court, wherein the land-lord /developer is prohibited from any constructions (whatsoever) in the Society compound, without the express & written consent /permission from each /all individual members of the Society.
12. MONETARY COSTING for Conveyance of Society Land:
Typically, on a tentative average, the present Land cost in Mumbai is about Rs. 3000/- per square feet (onwards). This hardly generates, approximately. Rs. 150/- per square feet, in terms of, ONE-TIME Registration Fees and Stamp-Duty (No VAT applicable), to the State Government (at the time of Conveyance). Whereas in terms of Redevelopment of one square feet of Land, an tentative average of 3 square feet of FSI is generated, which in turn could have a average saleable cost of Rs. 15000/- per square feet, which in turn generates approx. Rs. 900/- per square feet, in terms of Registration Fees and Stamp-Duty and VAT, to the State Govt.
Note: Re-Sale of Society’s plot of land is not possible, ever. However, continuous re-sale of Society Flats, continuously regenerates Registration Fees and Stamp-Duty, to the State Govt.
13. CONCEPT OF “DEEMED CONVEYANCE”:
The present concept /culture of “Deemed Conveyance”, would become redundant, in very near future, due to the paltry One-Time Registration Fees and Stamp-Duty generated by the State Govt., by granting Conveyance in the Society’s favor, AND more specifically so when the Society is incapable of paying the one-time tentative average of about 25-50 Lakh rupees, towards the “Stamp Duty and Registration fees”, that instantly becomes payable, when actually Registering the “Certificate of Deemed Conveyance”, in favor of the Society’s name. The Govt., would have to come out with relevant policy /solutions and/or concept and arrange to acquire /transfer /lease the plot of a registered Society, in the name of the Society, maybe by retaining Govt. hold over the Society plot, declaring it as an aided-society, in lieu of No Registration Fees & No Stamp Duty.
14. PROBABILITY OF AN ORDINANCE, FOR CONVEYANCE:
EXPECTENTLY, the over-whelmed Govt. could also issue an Ordinance to Transfer the plot of land in the name of the “duly registered” Society, without any legal hitch, in the light of various existing laws. As it is the State Govt., shall earn 100X times more, by way of Registration Fees and Stamp-Duty and VAT, from creating more housing in Redevelopment projects, by obviously increasing the FSI component. More FSI means more Registration Fees and Stamp-Duty and VAT, from each extra feet of FSI granted by the Govt. This revenue thus generated shall obviously be 100X times more than the paltry one-time Registration Fees and Stamp-Duty generated by granting Conveyance of Land, in the Society’s favor.
This is of course, for the obvious objective (motive) of redevelopment of buildings, for housing and upholding the cooperative movement (means populist policies). Not to forget, the windfall of continuous Registration Fees and Stamp-Duty and VAT and other associated statutory revenues generated from this gesture, by the Govt.
CONCLUSION: UPHOLD THE COOPERATIVE MOVEMENT:
It remains to be seen, as to when the State Govt., takes this initiative, for the larger interest of the anxious public, to uphold the Cooperative Movement, that India celebrated in the year 2011, by propagating and granting autonomous status, to Cooperative Societies, under the 97th Constitutional Amendment.
——————
Hemant Agarwal (Legal Consultants)
Email: ha21@rediffmail.com
Date: 02nd August, 2013.
Society obtained deemed conveyance and all documents duly are registered were handed over to tahsildar for transfer of name.in property cards. However, transfer is yet to take place. Society also submitted plan. Is tahsildar competent to withhold this transfer once registered?
vitthal takale
our socity has to apply for deemed conyeance please tell me the procedure
Our society had got a deemed conyeance.But the heir of the landlord challenged it in the court.Now the heir wants to sell our society plot to muncipal corporation.Is this legally possible.
REJOINDER
WRT the views usefully shared by certain others, in a forthright manner: Some of the comments, particularly those in detail and posted by professionals in field practice,seem to make every sense- to be precise, the most essential ‘common sense’;expected to prevail and given a pride of place/dominance in such matters, – not ‘legal sense’ no longer fit to be treated as worthy of any respect because of the larger public interests at stake. That seems to more than explain the truth/focus on the wisdom underlying the age old saying,- LAW IS AN ASS ! Anyone true to his invisible so called ‘conscience’ (in its profound and altruistic sense) to disagree?!
Reaction (with a different stroke of line of reasoning):
Going by memory, and if not mistaken, in Maharashtra (Bombay), on sale/purchase of a ‘flat’, stamp duty is levied and collected on the actual sales consideration; and for that purpose, the price charged by vendor and paid by vendee represents the consideration for the entire value of the property (i.e. ‘area’ of the flat plus the undivided interest in the common areas and facilities). That is , prima facie, no different from the actual practice in regard to sale/purchase of an ‘apartment’ e.g. in Bangalore (KAOA) .If so, and on that admitted premise, the moot point of poser that arises is , – why then stamp duty is levied also on ‘conveyance’ or ‘deemed conveyance’, as the case may be; notwithstanding that, credit, as i understand, is allowed for stamp duty earlier paid on the individual sales of flats? Open to correction, if such line of thinking/reasoning is wrong / outright misconceived ?!
While raising this point of doubt, attention may be invited to the viewpoint shared wrt another development reported (Accommodation times) HERE
“No Stamp Duty on Property Transfer to Legal Heirs in Maharashtra”
Enlightenment from eminent law experts should help.
The intention of eradication of corruption is great. Hence this post. Shall be grateful if someone comments on the following. A society plot leased by CIDCO to a registered housing society in Navi Mumbai in 2004 or near about. The seven-storeyed building was fully occupied in 2006. Sales deeds were all registered by individual flat/shop owners. The Deemed Conveyance as described in FAQ has three parties: transferer, transferee and CIDCO. Here there is just a lease deed between CIDCO and the society. For this society is it necessary to get a conveyance deed registered. Or is it enough to register the lease deed in order to give the society redevelopment right. The cost of this appears to be Rs.30,000 plus penalty for delay,if any. When will the procedures described in (2) and (3) of obtaining deemed conveyance will begin? Then the cost is just Rs.2000. Will just registering the lease deed with sub-registrar be deemed as conveyance. I shall be obliged if the author or other experts comment.
In case of deemed conveyance,is the landlord/owner/developer required to pay stamp duty. The land was gifted to him. He has constructed a ground floor structure thereon in 1961. later raised 3floors in 1994.He is a member of the society.of the total 8flats he holds 2 flats.In his case no sale or purchase was involved. Also the construction was prior 1985.So is stamp duty now payable by him while executing the deemed conveyance?
Hello,
Kindly refer to this link
dnaindia.com/mumbai/report-societies-can-get-conveyance-with-single-document-1341715
is there any further update on getting a deemed conveyancing done with a single document or such, all you experts can let me know of the same ..!
thanks in anticipation’
Regards/Ami
+91-9987097792
@vswami
Ref. the comment of Aug 24: In the last para, the expression ‘construction contract’ was intended to refer to a pure and simple transaction of ‘sale’, within its ordinary as well as legal meaning under the law of contract. of a property to be constructed or under construction, but deemed otherwise so as to impose the levy of ‘service tax’.
This is not a singular instance of ‘fiction’. A close study of a series of taxing enactments e.g. for charging income-tax,made particularly in recent times,is certain to reveal that the so called ‘deeming’ has come to be employed as a convenient tool or device for considering something as ‘it’, while, by no stretch of imagination or common sense,can be really or righteously regarded / construed as ‘it’. Instances of this kind commonly noted are those in which an item is taxed as ‘income’ under the cloak of deeming, while in fact it is not; that is, does not have the conventionally known legal characteristics of ‘income’.
It may be recalled that, not long ago,in the law on income-tax, for granting depreciation in respect of fixed assets, an amendment was resorted to even to change the ordinary and normally acceptable meaning of the term “actually allowed”, so as to rope within its meaning an amount “not actually allowed”. Reference is to the amendment of section 43(6)effected by the Finance Act 2008- for a critique, the published article in (2008) 169 Taxman 14 may be looked up.
In short, there is no dearth of such instances; these are galore, and the inconvenient poser fighting shy for a forthright discussion and intelligent deliberation in expert circles is – is or is there not an abuse of legislative powers for taxing as conferred by the constitutional law?
The last comment is found to contain some useful information/news; in fact, has to be regarded as a helpful breather to the hapless victims of the obtaining realities/irregularities in the realty sector; and continuing for too long to be ignored or wished away.
In one’s sincere but perceptive opinion, the route of ‘deemed conveyance’ is a totally misconceived concept; a glaring instance of a remedy prescribed , which in the ultimate analysis,is bound to turn out to be worse than the very evil it is claimed to have been prescribed for. Further, it is an area warranting not just ‘easing’ of the norms but deserving to be given a decent burial once for all.
Instead, ideally speaking,in all fairness and in order to prove their mettle, what the concerned men in governance must do, in the larger interests of the people at the receiving end,is to intelligently and devoutly think of ways and means, and resort to, for an effective implementation and enforcement of the applicable enactments on the statute book; also the other governing rules and regulations in place.
Any other alternative course of action or measure is tantamount to a self-betrayal of courage of conviction supposed or expected of them.
On the requirement of OC, another case on point perforce comes to mind: That is the government’s mindless but shameless resolve to treat, by deeming (for that purpose by tampering with the basic charter itself), a construction contract as a “works contract”; which legally it is not, and subject it to a hefty service tax, in a case where payments are made before the stage of completion and procurement of ‘OC’. Albeit, instead, insistence or acceptance of any payment whatsoever before that stage could as well have been declared illegal by a suitable but simpler legislation. That would have had the inescapable result of enforcing effectively the extant requirement of ‘OC’ that has just remained on paper.
AWAIT EASE IN NORMS FOR “DEEMED CONVEYANCE”
The Government of Maharashtra is now keen on revitalizing the norms of existing law on Deemed Conveyances to give relief to thousands of flat owners in old housing societies who are eager to complete the formality of conveyance before opting for redevelopment.
The Government has expressed its serious concern over the issue of unsold flats apart from taking stern action against the builders for non-execution of Conveyance Deeds in favour of housing societies. However, while the final decision is at initial stage, the eagerness of the Government to consider these issues is at advanced stage.
It is stated that there are about 23,500 housing societies in the city. It is a matter of regret that of these, out of 903 housing societies that had applied, only 549 were issued the conveyance instrument. After 2012, 398 housing societies had applied of which, only 87 have been given conveyance so far.
The incongruity and unease in the Law of Conveyance proves beyond doubt that the contributing flat owners and housing societies were facing hardship in completing the required formalities. It is feared that the scant response towards much enthused scheme is bound to continue if the Government did not relax the existing norms of Deemed Conveyance. It is alleged that the Developers are being asked to pay bribes under their nose to Government Officers of Revenue Dept. to record updates in Property Card.
The flat owners and housing societies are not able to afford to pay and hence, are reluctant to go with the scheme. Owners of the dilapidated flats are in constant fear that once they move out in search of alternate accommodation, they will lose the ownership of their land forever. It is demand that the title of the land is passed to the Government in cases of dilapidated and dangerous buildings seeking conveyance while going for redevelopment.
A view is being spread that why for obtaining Deemed Conveyance Certificate, documents like Building Plans, Commencement Certificate, Occupation Certificate, Completion Certificate, property cards, would be required to be furnished by the housing society when it is already registered and paying various taxes to the BMC/Government?.
Such a view is in contradiction to the letter and spirit of amended provisions. Unless a promoter has given, the housing society cannot be compelled to produce such requirements. Such additional requirements may be propagated so that non availability of such documents can lead to unreasonable demands from the corrupt officials involved in granting of Deemed Conveyance.
And this legal fiction of Deemed Conveyance has further more proved to be wholly without proper understanding as it is not the end of the journey. Subsection 5 takes the process at the doorstep of the Sub-Registrar or the concerned appropriate Registration Officer who is again required to hear the Builder to show cause why the unilateral instrument should not be registered as Deemed Conveyance and after once again giving a reasonable opportunity of being heard the said final authority may, on being satisfied that it was a fit case for unilateral conveyance, register that instrument as ‘Deemed Conveyance’.
It ex-facie appears that the relevant bill was drafted in the Office of the Builders! It is heavily tilted to only safeguard their interest at any cost and at all costs! They are to be heard by the Competent Authority, thereafter by the Sub-Registrar or any appropriate Registrar and again a hearing to the Promoter (builder) finally!hearing the builders at every stage, reasonable opportunity of being heard leaves a lot of scope and gap of opportunity to challenge the final order by crying that no opportunity of hearing was granted. Unfortunately our Courts are ever ready to entertain such grievances even at the drop of the hat to quash and set aside such order even after long drawn battle for Deemed Conveyance.
Our system will not allow this concept of Deemed Conveyance to reap the fruits for the end consumer as the Promoters have a very strong lobby at every stage to throttle the cooperative housing movement even with the help bureaucracy and the ruling politicians. In addition to 5 subsections of S.11 of the Act there are 13 Rules and 6 forms for the purpose of achievement of dream of the Deemed Conveyance to be followed by the societies desirous of getting this order of registration of Deemed Conveyance.
It is also decided that the State Government will issue a circular, asking officials not to insist on an Occupation Certificate (OC) for giving Deemed Conveyance.
Though OC is not mandatory for issuing Deemed Conveyance to cooperative housing societies, complaints of its insistence by officials from the registrar’s office have come to light though the laws have made it clear that OCs are not compulsory for Deemed Conveyance. At least 2,200 housing societies in Mumbai do not have OCs. The State Government circular, once enforced, will facilitate transfer of property rights in such housing societies.
There is, however, a catch. After the deemed conveyance, it will become the housing society’s responsibility to obtain the OC from the BMC. The Civic Body withholds the OC for a building if a developer has not met all conditions stipulated during the building approval process. Following the Deemed Conveyance, it will be the housing society’s responsibility to meet these conditions, while the developer will continue to remain culpable. Housing Industry sources also said the society might not be able to discharge the responsibility in cases where the Occupation Certificate has been withheld due to irregular construction.
It is an intense appeal to let us have Deemed Conveyance genuinely and not deceptively!
************
I have to appreciate each participants interest and sharing of knowledge esp of the maker of the article.
This notwithstanding, it should be remembered that the MOFA was made to regulate the activities of the developer. Now instead of regulating what has happened that we always have find our law outdated even in time they are passed. if we see MOFA we will see no enforcing mechanism and the flat purchaser is left to pursue the action. So where is the regulation in MOFA; why is this word “Regulation of promotion of ….”used in MOFA . Who is regulating. what. There are n no. of laws which are toothless.
It is unfortunate that we don’t question the makers of law on what basis they have used a particular word.
Now they come with deemed conveyance. One who has attempted to get deemed conveyance will notice yet another flaw in Bombay Stamp Act and Registration Act. despite the specific mandate of sec.4 professionals will see several docs of flats not registered, thanks to the regulating MOFA.
So in short it is my professional view that our law first allow the dirt to be created, and then amend the law to clean dirt.
WHY WAS THERE NO REGULATION IN THE FIRST INSTANCE. WHAT WERE THE GOVT. DRAFTERS DOINGS. I FEEL THEY SHOULD BE RELIEVED OF DRAFTING WORK AND PROFESSIONAL SERVICE BE TAKEN BY THE GOVT.
GOOD LUCK INDIA, GOD BLESS INDIA
A correction: Instead of ‘HC’, to read DISTRICT DEPUTY REGISTRAR, COOPERATIVE SOCIETIES, MUMBAI CITY (3)
Rider:
The precise reasons for confusion in one’s mind in understanding the very concept and implications of “deemed conveyance” are to be traced to the following material in public domain, in which that concept has been gone into, explained /dealt with. Refer inter alia following:
Reported HC Order @link>
First Deemed Conveyance order passed
Also read the article @ link >
Understanding – Deemed Conveyance – Property Law Articles – Law …
This write-up is noted to contain what has been reported in today’s AT News.
One has the following comment to offer:
An extremely mind-boggling,and prima facie confusing Write-up in many respects; more confusing than the concept itself?
“….by propagating and granting autonomous status, to Cooperative Societies, under the 97th Constitutional Amendment.”
It is anybody’s guess, really too confusing to be understood by anyone trying to read and make out on his own, what the purported implications of the 97th Amendment really are. Anyway, that “the amendment grants an autonomous status to co-operative societies” seems to convey nothing even remotely or in substance. The writer will do well in the interests of the readers at large to reapply his mind and clarify what he sought to convey!
mutation entries are just and merely ” Record of Rights meant merely for collecting revenue and nothing more, refer bom. H.C. decision 1995(1) Bom.C.R. 542
Before : S.D. Pandit, J.
Abasaheb Bali Gharge and another …. Appellants.
Versus
Balaji Ramhari Gharge …. Respondent.
Second Appeal No. 570 of 1984, decided on 14/15-10-1994.
(A) Maharashtra Land Revenue Code, 1966, Sec. 157—Transfer of Property Act, 1882, Sec. 105—Mutation of entries in record of rights—Effect—Entries transferred in record of rights in name of another’s wife—Mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue—Held, do not amount to transfer of title in property.8. But the real crux of this matter is as to what is the legal effect of the said Mutation Entry No. 2053 at Exhibit 45. The trial Court has come to the conclusion that because of the said mutation entry, Sonatai Joti Ghadge got title to the property in question along with other properties. But that finding of the trial Court is not at all correct and proper. It is settled law that mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue. The said entries cannot amount to transfer of the title of the holder of the property in favour the person in whose name the entries are made.
8. But the real crux of this matter is as to what is the legal effect of the said Mutation Entry No. 2053 at Exhibit 45. The trial Court has come to the conclusion that because of the said mutation entry, Sonatai Joti Ghadge got title to the property in question along with other properties. But that finding of the trial Court is not at all correct and proper. It is settled law that mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue. The said entries cannot amount to transfer of the title of the holder of the property in favour the person in whose name the entries are made.