B.K. Corporation vs State Of Maharashtra And 9 Ors.
- Court
- Bombay High Court
2026:BHC-OS:12605
2. WP/2453/2018
B. K. Corporation vs. State & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2453 OF 2018
B. K. Corporation }
An Association of the Person, having its office }
Address at Meera Darshan, Ground Floor, }
Tejpal Road, Vile Parle (East), Mumbai – 400057. } … Petitioner
V/s.
1. State of Maharashtra }
A State as defined and constituted }
under the Constitution of India, through the }
office of Government Pleader, High Court }
O. S. Mumbai – 400 032. }
2. Competent Authority and Deputy }
Registrar of Co-operative Societies (3) Mumbai }
having its office address at Griha Nirman Bhavan, }
Ground Floor, Office No. 69, }
Bandra (E), Mumbai - 400051 }
3. Apeksha CHS Ltd. }
A Co-operative Housing Society registered under }
The provisions of the Maharashtra Co-operative }
Societies Act, 1960 having Its address at }
Sundervan Complex, Lokhandvala Road, }
Andheri (W), Mumbai – 400053 }
4. Noble House CHS Ltd. }
A Co-operative Housing Society registered under }
the provisions of The Maharashtra Co-operative }
Societies Act, 1960 having its address at }
Sundervan Complex, Lokhandvala Road, }
Andheri (W), Mumbai – 400053 }
AMOL
PREMNATH
JADHAV
Digitally signed by
AMOL PREMNATH
JADHAV
Date: 2026.06.09
18:36:17 +0530
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5. Valencia CHS Ltd. }
A Co-Operative Housing Society registered under }
the provisions of the Maharashtra Co-Operative }
Societies Act, 1960 having its address at }
Sundervan complex, Lokhandvala Road, }
Andheri (W), Mumbai 400053. }
6. Camron Heights CHS Ltd. }
A Co-Operative Housing Society registered under }
the provisions of Maharashtra Co-operative }
Societies Act, 1960 having its address at }
Sundervan Complex, Lokahndavala Road, }
Andheri (W), Mumbai 400053. }
7. Pannaben Jaswantilal Parikh }
Adult, Indian Inhabitant, residing at 116/7 Cross }
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9 Main,Rajmahal Vilas Extn. Bangalore 560080 }
8. Urmilaben Jayantilal Parikh }
Adult Indian Inhabitant, residing at, }
Mira Darshan, Ground Floor, Tejpal Road, }
Vile Parle (East), Mumbai 400053. }
9. Ashwin Jayantilal Parikh }
Adult Indian Inhabitant, residing at }
Mira Darshan, Ground Floor, Tejpal Road, }
Vile Parle (East), Mumbai 400053. }
10. Competent Authority (ULC) }
The Competent Authority authorized and }
constituted under the provision of the ULC }
Act, having its office at Administrative Bldg. }
Near Chetna College, Bandra (E), Mumbai 400051 } ... Respondents
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B. K. Corporation vs. State & Ors.
______________________________________
Mr. Shishir Joshi a/w Ms. Swati Pawar and Ms. Priti Shukla i/b S. K. Legal
Associates LLP for Petitioner.
Mr. Manish Upadhye – AGP for Respondent nos. 1, 2 and 10.
Mr. Saket Mone with Ms. Shrushti Thorat & Mr. Archit Rao i/b Vidhii Partners for
Respondent no. 3.
Mr. Fraser M. Alexander i/b Majumdar & Partners for Respondent no. 4.
___________________________________________________________________
CORAM : FARHAN P. DUBASH, J.
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RESERVED ON : 24 MARCH 2026
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PRONOUNCED ON : 9 JUNE 2026
___________________________________________________________________
JUDGMENT:
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1. The present Writ Petition challenges an order dated 31 May 2017 (impugned
order) passed by Respondent No. 2 / Competent Authority and Deputy
Registrar of Co-operative Societies (Competent Authority) on an application
for deemed conveyance preferred by Respondent No. 3 / Apeksha
Co-operative Housing Society Ltd. under Section 11 of the Maharashtra
Ownership of Flats Act, 1963 (MOFA) , whereby deemed conveyance came
to be granted in favour of Apeksha CHSL.
2. The principal challenge raised by the Petitioner who is the Promoter /
Developer concerns the maintainability of a second deemed conveyance
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application filed by Apeksha CHSL on 3 January 2017, pursuant to which
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the impugned order came to be passed. The controversy arises in the
backdrop of an earlier application filed by Apeksha CHSL seeking identical
reliefs, which has been rejected by the Competent Authority by a reasoned
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order dated 4 August 2016. By the said order, the Competent Authority held
that, in view of the pendency of a civil suit instituted by Noble House CHSL,
seeking conveyance in respect of land forming part of the same layout, the
application was not maintainable at that stage, while granting liberty to
Apeksha CHSL to file a fresh application after the decision of the said civil
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suit. It is an admitted position that the order dated 4 August 2016 was not
challenged and that the said civil suit continues to remain pending.
3. The Petitioner is the Promoter / Developer of the single layout on which four
buildings have been constructed. Respondent Nos. 3 to 6 viz., Apeksha Co-
operative Housing Society Ltd. / Respondent No. 3 (Apeksha CHSL) , Noble
House Co-operative Housing Society Ltd. / Respondent No. 4 (Noble House
CHSL) , Valencia Co-operative Housing Society Ltd. / Respondent No. 5,
(Valencia CHSL) and Camron Heights Co-operative Housing Society Ltd. /
Respondent No. 6, (Camron Heights CHSL) are the four Co-Operative
Housing Societies formed by flat-purchasers in the respective four buildings
constructed within the said layout.
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B R I E F C H R O N O L O G Y O F R E L E VA N T E V E N T S
4. For a proper appreciation of the controversy, the relevant factual background
may briefly be noted as under:
4.1 The property comprises a single layout bearing survey no. 41, being
plot nos. F-7 to F-14 of Block “F”, corresponding to CTS Nos.
626/6, 626/7, 626/8, 626/9 to 626/11, admeasuring about 10,130.56
sq. mtrs. (approximately 11,733.36 sq. yds.) situated at Village
Oshiwara, Taluka Andheri, Sundarvan Complex, Lokhandwala
Road, Andheri (West), Mumbai 400053. The layout is divided by a
Development Plan Road into three portions: Plot “A”, on which
building ‘Kalash’ stands, Plot “C”, reserved for DP Road; and Plot
“B”, admeasuring about 8,259 sq. mtrs., upon which four buildings,
namely, Apeksha, Noble House, Valencia and Camron Heights have
been constructed.
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4.2 Between 7 January 1989 and 8 October 1999, various exemption
orders and corrigenda were issued under the Urban Land (Ceiling
and Regulation) Act, 1976, granting exemption under Section 20
with respect to land admeasuring about 4,792.49 sq. mtrs., subject
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to surrender of specified built-up area to the State Government and
compliance with stipulated conditions. The amalgamated layout
thereafter received approval from the Municipal Corporation of
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Greater Mumbai on 6 May 1991.
4.3 Between 1989 and 1993, the Promoter constructed two buildings on
Plot “B”, namely Apeksha and Noble House , pursuant to Intimation
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of Disapproval (IOD) dated 10 May 1991. Both buildings
comprise ground plus seven upper floors, with Apeksha having 41
flats and FSI consumption of 1,740 sq. mtrs. and Noble House
having 49 flats and FSI consumption of 1,885 sq. mtrs. Occupancy
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Certificates were issued on 12 October 1996 (for Apeksha) and
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26 March 1997 (for Noble House). Both societies were
subsequently registered in 1999.
4.4 Thereafter, two additional buildings were constructed within the
same layout. Valencia , with FSI consumption of about 5,950 sq.
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mtrs., received IOD dated 5 July 1997, Occupancy Certificate
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dated 17 November 2003, and its society was registered on 30
November 2004 and Camron Heights , with FSI consumption of
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about 5,600 sq. mtrs., received IOD dated 25 May 2004,
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Occupancy Certificate dated 21 April 2008, and its society was
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registered on 11 September 2009.
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4.5 MOFA was amended with effect from 25 February 2008 to
expressly provide for unilateral deemed conveyance. By virtue of
this amendment, the office of the Competent Authority was created
under Section 2(a) read with Section 5A, and Section 11 was
amended, to empower the Competent Authority to issue a
certificate of deemed conveyance where the promoter fails to
execute conveyance within the prescribed period.
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4.6 By a letter dated 23 October 2010, the Petitioner informed all four
societies that it proposed the execution of a common conveyance in
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favour of all societies jointly. By a communication dated 18
December 2010, Noble House CHSL demanded an independent
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conveyance. The Petitioner, through its advocate’s reply dated 2
September 2011, declined this request and reiterated its willingness
to execute only a common conveyance for the entire layout.
4.7 In or about June 2012, Noble House CHSL instituted Suit No. 1481
of 2012 before the Bombay City Civil Court at Dindoshi against the
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Petitioner, its partners, the original landowners and the remaining
societies, seeking conveyance of the exempted land admeasuring
4,792 sq. mtrs. forming part of Survey No. 41 along with ancillary
reliefs. Ad-interim reliefs sought by Noble House CHSL were
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refused vide order dated 29 November 2012, inter alia noting the
existence of multiple societies on the suit property. A challenge to
this order has since also been negatived by the High Court.
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4.8 By order dated 20 February 2013, the City Civil Court decided a
preliminary issue under the then Section 9A of the Code of Civil
Procedure, 1908, (CPC), upholding its pecuniary jurisdiction. The
Petitioner challenged the said order by filing Civil Revision
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Application No. 359 of 2013 before this Court, which on 15 April
2014 admitted the revision and stayed further proceedings in the
suit.
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4.9 On 2 January 2016, Apeksha CHSL filed its first deemed
conveyance application (Application No. 2 of 2016) before the
Competent Authority under Section 11 of MOFA. The application
was opposed by the Promoter as well as the other three societies.
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4.10 By an order dated 4 August 2016, the Competent Authority
rejected the application, holding that, in view of the pending civil
suit concerning the same layout, the application was premature.
However, liberty was granted to Apeksha CHSL to file a fresh
application after the decision of the civil suit. The operative part of
the said order is reproduced hereunder for convenience:
“Also the suit in respect of area claimed by Applicant Society is
already pending before the Hon'ble Court, therefore in these
circumstances, it will not be correct to allow the application of
Applicant Society. Therefore I came to the conclusion that the
present application of Applicant is incorrect and is liable to be
rejected.
I further order that, after the order in aforesaid dispute, if necessary
Applicant Society can again file new application before this
Authority.”
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4.11 Without challenging the order dated 4 August 2016 and while the
civil suit continued to remain pending, Apeksha CHSL filed a
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second application on 3 January 2017 (Application No. 2 of
2017). It was contended that the earlier order had been passed
without the Competent Authority being apprised that ad-interim
reliefs sought in the civil suit had been refused and that Section 10
of the CPC was inapplicable since Apeksha CHSL was not the
Plaintiff in the said civil suit. The application was opposed by the
Petitioner and Noble House CHSL.
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4.12 Upon hearing the parties and considering the additional material
placed on record therein, the Competent Authority passed the
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impugned order dated 31 May 2017, granting deemed conveyance
in favour of Apeksha CHSL in respect of the land admeasuring
1,740.97 sq. mtrs., including 1,384.65 sq. mtrs. stated to be in its
physical possession, together with the Apeksha building and
proportionate rights in common amenities.
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4.13 The present Writ Petition came to be instituted on 6 November
2017 challenging the impugned order. During pendency,
Respondent No. 2 executed a unilateral Deemed Conveyance Deed
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dated 12 January 2018, registered on 16 April 2018 (Registration
No. BDR-4/421/2018) in favour of Apeksha CHSL.
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4.14 By an interim order dated 23 April 2018, this Court directed
cancellation of the registration of the unilateral deemed conveyance
deed and further directed that all deemed conveyance applications
concerning the common layout would remain subject to the
outcome of the present Writ Petition.
4.15 Aggrieved thereby, Apeksha CHSL filed Special Leave Petition
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(Civil) No. 12294 of 2018 before the Supreme Court. By an order
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dated 18 May 2018, the Supreme Court stayed the specified
directions of this Court while clarifying that the registration of the
conveyance would remain subject to final adjudication of the
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present Writ Petition. On 12 April 2019, the Supreme Court
dismissed the Special Leave Petition and directed continuation of
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the interim protection granted on 18 May 2018 till the final
disposal of the present Writ Petition.
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4.16 On 22 June 2018, the State of Maharashtra issued a Government
Resolution prescribing guidelines governing conveyance and
unilateral deemed conveyance in layouts comprising multiple
buildings and multiple co-operative housing societies, including a
methodology for determining the proportionate undivided share of
land based on FSI utilisation.
4.17 Civil Revision Application No. 359 of 2013 was ultimately
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disposed of on 30 October 2023 consequent upon repeal of
Section 9A of the CPC. The said civil suit instituted by Noble
House CHSL, however, continues to remain pending as on date.
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S U B M I S S I O N S O F T H E P E T I T I O N E R
5. Mr. Shishir Joshi, learned Counsel appearing for the Petitioner / Promoter,
submits that the impugned order is vitiated at the threshold since it arises
from what is, in substance, a second round of proceedings before the same
Competent Authority at the instance of the same society, namely Apeksha
CHSL. He submits that in the earlier round, the Competent Authority, by a
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reasoned order dated 4 August 2016, had declined to grant deemed
conveyance to Apeksha CHSL upon recording a specific finding that, in view
of the pendency of Civil Suit No. 1481 of 2012 instituted by Noble House
CHSL concerning conveyance rights in respect of lands forming part of the
same layout, the application was not maintainable at that stage. However,
liberty was granted to file a fresh application only after the decision of the
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said civil suit. It is undisputed, that the order dated 4 August 2016 was
never challenged and that the said civil suit continues to remain pending.
6. Mr. Joshi submits that notwithstanding the subsistence of the earlier order,
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Apeksha CHSL filed a second application on 3 January 2017 by making,
what he characterises as incorrect and misleading assertions. He relies upon
paragraphs 4(a) to 4(c) of the application which is reproduced hereunder, to
contend that Apeksha CHSL sought to reopen the matter on the basis of
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alleged non-disclosure of certain orders passed in the civil proceedings and
on an erroneous assertion that the condition imposed in the earlier order
stood satisfied.
“4. That we hereby further compliance with the grounds raised by this Hon'ble
authority to refile this application before this Hon'ble authority.
(a) That in the aforesaid order it has been incorporated that Noble house
CHS Ltd have filed S. C. Suit No. 1481 of 2012, Hon'ble City Civil
Court and thereby claimed the full area of the layout and wherein they
have also for moved for ad-interim relief by praying that no third party
rights or conveyance be allowed to any other party/building and the
same has been rejected by the Hon'ble court on the grounds that there
are some other building in the layout. (Enclosed herewith the order of
the Hon'ble City Civil Court for your ready reference as Exhibit "B").
That it is pertinent to note that the said fact was not disclosed by the
opponent No. 6 being Noble House CHS Ltd in the hearing before this
Hon'ble authority and therefore, the said matter shall be rehear to
clarify the factual position of the case and kindly note that Section 10
of Civil Procedure Code does not implement as the matter has not been
filed by an applicant society and even the Hon'ble City Civil Court
have also rejected the ad-interim relief prayed by the opponent No. 6
being Noble House by considering the other building or society's
entitlement in the layout.
(b) Subsequently, the aforesaid rejected order of the Hon'ble City Civil
Court has been challenged by the said opponent no. 6 being Noble
House CHS Ltd., before the Hon'ble High Court by filing civil
application no. 33 of 2016 and after hearing the said matter by the
Hon'ble High Court the same was again rejected on 14/06/2016 and the
matter has been disposed from the Hon'ble High Court. (Enclosed
herewith the Order and status of report of High Court as Exhibit "C").
Therefore it is pertinent to note that even Hon'ble High Court has also
consider the entitlement of the other societies or building's entitlement
in the layout and therefore, this Hon'ble authority may grant
conveyance to the applicant society as per their entitlement.
(c) That it has been also mentioned in the order of this authority pertaining
to the justification of an area claimed by the applicant society, in this
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regard as per an order of this Hon'ble Authority, it has been clearly
mentioned that after decision of Competent courts the applicant may
reapplying for the conveyance before the authority, wherein the
Hon'ble High Court has disposed of the aforesaid matter on dated
14/06/2016 and therefore at this juncture, therefore, we hereby re-file
this application for our legitimate rights.”
7. According to Mr. Joshi, the second application was, in effect, an attempt to
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review or recall the earlier order dated 4 August 2016. He submits that the
MOFA confers no power of review upon the Competent Authority. In
support, reliance is placed upon decisions of this Court passed in Kashish
1
Park Reality Pvt. Ltd. & Anr. vs. State of Maharashtra & Another and M/s
2
Aakansha Construction Co. vs. State of Maharashtra & Another . He
therefore submits that the impugned order amounts to an impermissible
exercise of review jurisdiction which requires intervention from this Court.
8. It is further contended that the second application was barred by the
principles of res judicata , which apply equally to proceedings before quasi-
judicial authorities. Reliance is placed on the decision of the Supreme Court
in Faime Makers Private Limited vs. District Deputy Registrar, Co-operative
3
Societies (3) Mumbai & Others . Reliance is also placed on the decision of
4
this Court in Magnum Unit ‘A’ CHS Limited vs. State of Maharashtra .
2021 (3) Mh.L.J. 778
1
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2 Order dated 5 May 2025 passed in Writ Petition No. 19417 of 2024
3 (2025) 5 SCC 772
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4 Order dated 24 February 2026 passed in Writ Petition No. 11328 of 2023
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9. Mr. Joshi submits that the Petitioner had expressly raised the bar arising
under Section 10 of the CPC and the continuing pendency of the civil suit in
its written submissions before the Competent Authority. Despite this, the
impugned order does not deal with or adjudicate upon this jurisdictional
objection, rendering the order vulnerable to challenge.
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10. He additionally points out that Noble House CHSL, in its reply dated 12
February 2017 had independently raised the plea of res judicata . The
Competent Authority, however, has returned no finding on this issue.
According to him, failure to decide an objection going to jurisdiction itself
vitiates the impugned order.
11. On merits, Mr. Joshi submits that the conveyance granted in favour of
Apeksha CHSL travels beyond its lawful entitlement. He relies upon the
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Government Resolution dated 22 June 2018, which prescribes the
methodology for apportionment of land where multiple co-operative housing
societies exist within a single layout. The impugned order, according to him,
is inconsistent with the principles embodied in the said Government
Resolution. Reliance is placed on the decisions of this Court in Marathon Era
CHSL vs. Competent Authority & District Dy. Registrar, Cooperative
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5
Societies , New Sonal Industries Premises Limited vs. District Deputy
6
Registrar (2), Cooperative Societies and Others , M/s. Kulshree Builders vs.
7
Shri Shraddha CHSL & Others , and Prestige Garden A-1 CHSL vs. State of
8
Maharashtra & Others .
12. Mr. Joshi further submits that the unilateral deemed conveyance deed
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executed on 12 January 2018 and registered thereafter is itself inconsistent
with the certificate issued by the Competent Authority under Section 11(4) of
MOFA. According to him, there exists a discrepancy between the plot area
and built-up area recorded in the certificate and those reflected in the
registered conveyance deed, thereby furnishing an additional independent
ground for interference. On these grounds, Mr. Joshi submits that the
impugned order and consequential deemed conveyance deserves to be set
aside.
1 3 . Reliance is placed on the decision of this Court in M/s. S & M Enterprises vs.
9
The Palazzo Building No. 1 CHSL & Others and also in Velentine
1 0
Properties Private Limited vs. State of Maharashtra and Others to contend
5 2024 SCC Online Bom 1115
6 2025 SCC Online Bom 391
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Order dated 24 April 2024 passed in Writ Petition No. 915 of 2019
7
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8 Order dated 8 March 2024 passed in Writ Petition No. 7668 of 2023
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9 Order dated 28 July 2025 passed in Writ Petition No. 12297 of 2022
10 2025 SCC Online Bom 5424
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that this Court can interfere in a scenario such as the present one and set
aside the order of deemed conveyance.
S U B M I S S I O N S O F R E S P O N D E N T N O . 4 / N O B L E H O U S E C H S L
14. Mr. Fraser Alexander, learned Counsel appearing for Noble House CHSL,
supports the challenge mounted by the Petitioner. He submits that the
Competent Authority could not have entertained or decided the second
deemed conveyance application during the pendency of Suit No. 1481 of
2012, instituted by Noble House CHSL and still pending before the Bombay
City Civil Court at Dindoshi. The impugned order, according to him, is
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contrary to the earlier order dated 4 August 2016 which expressly permitted
refiling only after disposal of the civil suit.
15. Mr. Alexander points out that Noble House CHSL had specifically raised the
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plea of res judicata in paragraph 2 of its reply dated 12 February 2017, the
contents of which are also extracted below. The substance of that contention
was that no subsequent change of circumstances had occurred after the
earlier rejection order and that the second application constituted an abuse of
the liberty granted by the Competent Authority.
“2. At the outset I say and submit that the matter purported to be
propounded by the Applicant under the present application is barred by
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res judicata and there are no new facts which warrant for the filing of a
fresh application by the Applicant. The Applicant is seeking to abuse
the process of law by exploiting the liberty which was granted by this
Hon'ble Tribunal for filing of fresh application on bonafide subsequent
reasons. I repeat and reiterate that the matters relating to this
Opponent's members entitlement of property are still sub-judice before
the Hon'ble Bombay City Civil Court and the Hon'ble Bombay High
Court in the suit filed by Opponent No. 6 viz. SC Suit No. 1481/2012
and there has been no change in the status of the matters after the
passing of the Order by this Hon'ble Tribunal. I say that Opponent No.
6 has filed the said suit against the Builder (Opponent No. 7) praying
for a conveyance of the plot of land promised under the Second
Schedule in the Agreements for Sale. I say that the Applicant has been
impleaded as Defendant No. 20 therein and the reliefs claimed against
the Builder, which is pending on the file of the Hon'ble City Civil
Court at Dindoshi, Mumbai. Hereto annexed and marked as Exhibit 'A'
is the copy of the screen shot of the case status of the proceedings.”
16. He submits that so long as the earlier rejection order continued to operate, the
Competent Authority lacked jurisdiction to entertain a fresh application on
the same subject matter. Reliance is placed on the decision of the Supreme
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Court in Yadaiah & Another vs. State of Telangana & Others .
17. Mr. Alexander also adopts the submission that Apeksha CHSL was guilty of
suppression and misrepresentation in presenting the second application and
therefore seeks setting aside of the impugned order.
S U B M I S S I O N S O F R E S P O N D E N T N O . 3 / A P E K S H A C H S L
18. In response, Mr. Saket Mone, learned Counsel appearing for Apeksha CHSL,
opposes the Petition and supports the impugned order. At the outset, he
11 (2023)10 SCC 755
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submits that the plea of res judicata cannot be entertained at the instance of
the Petitioner since such a contention was not raised by them before the
Competent Authority. In support, reliance is placed on the judgment of the
1 2
Supreme Court in V. Rajeshwari (SMT) vs. T. C. Saravanabava . He
further submits that the ground was also not originally pleaded in the present
Writ Petition and was introduced only by way of amendment in January
2026. Therefore, he submits that the plea of res judicata has been waived by
the Petitioner and cannot be entertained by this Court for the first time, in the
present Writ Petition.
th
19. Without prejudice, Mr. Mone submits that the earlier order dated 4 August
2016 proceeded on an erroneous understanding of law by treating pendency
of a civil suit as a bar to consideration of deemed conveyance. According to
him, an erroneous decision cannot operate as res judicata so as to perpetuate
illegality. He submits that res judicata is a rule of public policy meant to
prevent multiplicity of proceedings and not to prevent correction of legal
error.
20. It is therefore contended that filing of the second application did not amount
to a review of the earlier order but constituted a fresh invocation of statutory
12 (2004) 1 SCC 551
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jurisdiction upon placing complete and correct facts before the Competent
Authority. Reliance is placed on the decision of the Supreme Court in Canara
1 3
Bank vs. N. G. Subbaraya Setty and Another .
21. On merits, Mr. Mone submits that the land area granted under the impugned
order and the consequent conveyance is fully consistent with the
nd
Government Resolution dated 22 June 2018. According to him, the
Resolution contemplates grant of deemed conveyance to an individual
society in respect of land appurtenant to its building together with
proportionate rights in common amenities, determined with reference to
sanctioned plans, building footprint and FSI utilisation. He submits that the
Competent Authority correctly applied this framework and was not required
to insist upon a joint conveyance in favour of all societies.
22. Mr. Mone further submits that once a unilateral conveyance has been
executed and registered pursuant to an order passed under Section 11 of
MOFA, this Court ought not ordinarily to interfere in exercise of writ
jurisdiction. Reliance is placed on the decisions in Satya Pal Anand vs. State
1 4 1 5
of Madhya Pradesh and Amudhavali vs. P. Rukumani .
13 (2018) 16 SCC 228
14 (2016) 10 SCC 767
15 (2022) 17 SCC 534
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23. Reliance is also placed on the decisions in Arunkumar H. Shah HUF vs.
1 6
Avon Arcade Premises Co-operative Society Ltd. & Others and Shri
1 7
Chintamani Builders vs. State of Maharashtra & Others to submit that no
interference is called for in the present matter since there is no manifest
illegality in the impugned order and as a result, interference from this Court
is not warranted. Reliance is also placed on the decisions in Swastik
Promoters and Developers vs. Competent Authority, District Deputy
1 8
Registrar of Cooperative Societies and Another , Zainul Abedin Yusufali
Massawawala and Others vs. Competent Authority District Deputy Registrar
1 9
of Co-Operative Housing Societies, Mumbai, and Others , and Mazda
Construction Company and Others vs. Sultanabad Darshan CHS Ltd. and
2 0
Others .
24. Finally, he submits that it is now well settled that mere pendency of a civil
suit does not bar consideration of an application for deemed conveyance,
proceedings under Section 11 of MOFA being summary in nature and subject
to the result of civil proceedings. Reliance is placed on decisions of this
Court in Om Shakuntal Co-Operative Housing Society Ltd. vs. Patel Wood
16 (2025) 7 SCC 249
2016 SCC Online Bom 9343
17
18 2025 SCC Online Bom 256
19 2016 SCC Online Bom 6028
20 (2013) 2 All MR 278
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2 1
Works & Timber Mart & Another and New Manoday Co-Operative
2 2
Housing Society Ltd. vs. Uday Madhavrao Jagtap .
A N A LY S I S , R E A S O N S & F I N D I N G S
25. I have heard learned Counsel for the parties at some length and with their
assistance, perused the record placed before this Court. The controversy in
the present Writ Petition essentially lies at the intersection of three legal
questions, namely: (i) whether the second deemed conveyance application
rd th
dated 3 January 2017 was maintainable in light of the earlier order dated 4
August 2016 (ii) whether the impugned order amounts to an impermissible
exercise of review jurisdiction by the Competent Authority and (iii) whether
the grant of deemed conveyance in favour of Apeksha CHSL suffers from
jurisdictional or procedural infirmity warranting interference under Article
226 of the Constitution of India. These issues are inter-connected and
therefore require composite consideration.
th
26. The starting point of analysis must necessarily be the earlier order dated 4
August 2016 passed by the Competent Authority. By that order, the
application for deemed conveyance preferred by Apeksha CHSL was
th
21 Order dated 18 March 2024 in Writ Petition No. 2578 of 2020
22 (2024) SCC OnLine Bom 1217
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rejected upon recording a clear finding that, in view of the pendency of Civil
Suit No. 1481 of 2012 instituted by Noble House CHSL concerning
conveyance rights in respect of the same layout, it would not be appropriate
to grant conveyance at that stage. The operative portion of the said order
assumes decisive significance. The Competent Authority did not merely
dispose of the application simpliciter but expressly granted liberty to
Apeksha CHSL to file a fresh application after the decision of the civil
dispute. The liberty was therefore conditional and not absolute.
th
27. It is an admitted position that the earlier order dated 4 August 2016 was
never challenged. The order thus attained finality between the said parties.
Once an adjudicatory authority renders a reasoned decision and attaches a
specific condition governing future recourse, the parties are bound by that
determination unless set aside by a superior forum. The binding character of
such an order flows not merely from the doctrine of res judicata in its
technical sense but from the broader principle of finality of judicial and
quasi-judicial decisions, which applies equally to statutory authorities
exercising adjudicatory powers.
28. The submission of Apeksha CHSL that the earlier order proceeded on an
erroneous understanding of law cannot assist it. An order alleged to be
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legally incorrect does not become non-existent. So long as it remains
operative, it binds the parties. The remedy available was to challenge the
th
order dated 4 August 2016 before the appropriate forum. Having elected not
to do so, Apeksha CHSL could not indirectly nullify the earlier order by
initiating a second round of proceedings before the same authority.
29. My aforesaid view is fortified by the decision in Faime Makers (supra),
wherein the Supreme Court has expressly held:
“ 23. It has been settled by this Court that the principle of res judicata applies to
2 3
and binds quasi-judicial authorities. This Court in Ujjam Bai v. State of U.P. has
taken the view that principles of res judicata equally apply to quasi-judicial bodies.
Whenever a judicial or quasi-judicial tribunal gives a finding on law or fact, its
findings cannot be impeached collaterally or in a second round and are binding
until reversed in appeal or revision or by way of writ proceedings.
24. The characteristic attribute of a judicial act or decision is that it binds,
whether right or wrong. Thus, any error, either of fact or law, committed by such
bodies cannot be controverted otherwise by way of an appeal or revision or a writ
unless the erroneous determination relates to the jurisdictional matter of that body.
25. This position has been further reinforced in Abdul Kuddus v. Union of
2 4
India which relies upon Ujjam Bai. In Abdul Kuddus , this Court held that the
opinion by the Foreigners Tribunal is a quasi-judicial order. Therefore, it would be
incorrect to hold that the opinion of the Tribunal and/or the consequential order
passed by the registering authority would not operate as res judicata. Further, it was
established that any quasi-judicial authority would not ordinarily have the power to
unilaterally take a contrary view taken by a coordinate or predecessor authority at
an early point in time.
26. From the foregoing discussion, it is evident that once a competent authority
(quasi-judicial in nature) settles an issue, that determination attains finality unless it
is set aside in accordance with law. ”
23 1962 SCC Online SC 8
24 (2019) 6 SCC 604
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30. Also, the ratio of the decision in Yadaiah (supra) is that the doctrine of res
judicata , being founded upon considerations of public policy, finality of
adjudication, and judicial discipline, is attracted wherever a competent
authority has finally determined an issue after affording due opportunity to
the parties. Once a matter directly and substantially in issue has been
adjudicated upon between the same parties by an authority exercising
judicial or quasi-judicial functions, such determination binds the parties in
subsequent proceedings and precludes reopening of the very same issue
under a different form or proceeding. The principle applies with equal force
to statutory and administrative adjudications, so long as the earlier decision
was rendered within jurisdiction and has attained finality. Re-agitation of
concluded questions is impermissible except where the earlier order is
demonstrated to be vitiated by lack of jurisdiction, fraud, or has been duly set
aside by a superior forum. The doctrine thus operates to prevent multiplicity
of proceedings, conflicting findings, and abuse of adjudicatory process, and
must be respected by all authorities exercising adjudicatory powers.
31. Moreover, the decision in Canara Bank (supra) is of no assistance to Apeksha
CHSL. In paragraph 34 of the said judgment, the Supreme Court, after
discussing the law has expounded three exceptions to the doctrine of res
judicata that is statutorily embodied in Section 11 of the CPC which
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prescribes that all issues, including issues of fact, mixed questions of fact and
law, and issues of law that arise directly and substantially in a former suit or
proceeding between the same parties are res judicata in a subsequent suit or
proceeding between them. Firstly , where an issue of law decided between the
same parties in a former suit or proceeding relates to the jurisdiction of the
court; Secondly , where an erroneous decision is given on a statutory
prohibition in the former suit or proceeding and the statutory prohibition is
not given effect to; and Thirdly , when the issue of law is different from that
in the previous suit or proceeding. In the present case, none of the said three
th
exceptions are attracted. The order dated 4 August 2016 neither decides an
issue of law, nor erroneously rejects a statutory prohibition. Moreover, there
is no change or difference in the issue of law between the earlier order dated
th
4 August 2016 and the impugned order. Therefore, Mr. Mone’s reliance on
this decision is entirely misplaced.
rd
32. The crucial question therefore is whether the application dated 3 January
2017 represented a genuinely fresh cause of action or amounted in substance,
to a review of the earlier order. To determine this question, it would be
profitable to rely upon the decision of this Court in Magnum (supra) where
this Court has noted the Governing Principles of Finality and res judicata ,
and held:
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“ 17. The doctrine of res judicata rests on this basic principle. A matter which has
been directly and substantially decided between the same parties cannot be
reopened in a second round. It also bars issues which could and ought to have been
raised in the earlier proceeding. The law does not permit a party to split its claims
or hold back part of its case and then attempt to agitate it later in a fresh
proceeding. The Court must examine whether the parties are the same, whether the
foundation of the claim arises from the same transaction set of facts, and whether
the core issue was directly and substantially in issue earlier. If these elements are
present, then the earlier adjudication binds, whether right or wrong, unless it has
been set aside in appeal or appropriate proceedings. A litigant cannot avoid this bar
by changing the wording of the relief or by reducing or enlarging the area claimed.
If in substance the claim arises from the same cause of action and seeks what was
earlier refused, it remains barred. Merely fragmenting the relief, or presenting it in
a slightly altered form, does not create a new cause of action. The law looks at the
real nature of the dispute, not the label attached to it. Therefore, once a quasi-
judicial authority has finally decided a matter on merits and no liberty to reapply
has been granted, the parties are bound by that determination. The only lawful
course for an aggrieved party is to challenge the decision before a higher forum .”
33. In the following paragraph of the said decision, the Court further noted the
tests for identification of points that are directly and substantially in issue
versus collateral issues by relying on the principles explained in
25
Sajjadanashin Sayed vs. Dadabhai Ummer which provide guidance for
courts in deciding whether an earlier finding binds the parties in later
proceedings and held that only those findings which form the real foundation
of the earlier decision will operate as res judicata .
34. In the present case, a comparative reading of both applications would show
that not only did the parties remain identical, but even the subject matter,
namely, conveyance of land forming part of the same layout remain the
25 (2000) 3 SCC 350
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same. Additionally, the foundational factual situation, namely, pendency of
the said civil suit also remained unchanged. Considering this, it is clear that
the principles of res judicata would apply to the facts of the present case and
rd
the second deemed conveyance application dated 3 January 2016 was not
th
maintainable in light of the earlier order dated 4 August 2016. Moreover,
the liberty granted in the earlier order was conditional upon disposal of the
said civil suit. Since that contingency admittedly never occurred, I am of the
considered view that the second application was not only premature but the
same was also barred by principles analogous to res judicata and by the
doctrine of finality of proceedings.
35. A perusal of the record would also reveal that the grounds urged in the
second application are essentially that certain orders passed in the said civil
suit had allegedly not been brought to the notice of the Competent Authority
earlier and Section 10 of the CPC was allegedly inapplicable. These grounds
do not constitute new circumstances. Instead, they are arguments directed
against the correctness of the earlier order itself. In substance therefore,
Apeksha CHSL sought reconsideration of the very issue already decided,
namely, whether deemed conveyance could be granted during pendency of
the said civil suit. Such reconsideration squarely falls within the domain of
review.
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36. The legal position emerging from the decisions in Faime Makers (supra),
Aakansha Construction Co. (supra) and Kashish Park (supra) is well settled
that a statutory or quasi-judicial authority does not possess any inherent
power of review. Such authority may revisit or recall its order only where the
governing statute expressly confers a power of review, or where interference
is warranted to correct a patent jurisdictional or procedural illegality going to
the root of the decision-making process. Upon passing an adjudicatory order,
the authority becomes functus officio and cannot reopen the matter merely
because another view is possible, additional submissions are advanced, or the
earlier determination is alleged to be erroneous on merits, for a review
cannot be permitted to assume the character of an appeal in disguise.
Reconsideration is therefore confined to exceptional situations such as
absence of jurisdiction, fraud, or an error apparent on the face of the record
affecting the authority’s competence. In the absence of a statutory power of
review, the remedy of an aggrieved party lies before the appellate or
supervisory forum and not in seeking a re-adjudication by the authority itself.
Moreover, it is also not in dispute that the conditions set out in the earlier
th
order dated 4 August 2016 have not been satisfied inasmuch as, the said
civil suit still remains pending.
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37. Neither Section 11 of MOFA nor any allied provision confers review
jurisdiction upon the Competent Authority. Proceedings for deemed
conveyance are summary adjudications intended to enforce statutory
obligations of the Promoter. The Competent Authority has neither been
conferred with any appellate nor any review powers. The impugned order
therefore, suffers from a fundamental jurisdictional defect. Thus, in my view,
rd
by entertaining the second application for deemed conveyance dated 3
th
January 2017, despite the subsisting earlier order dated 4 August 2016 and
absence of changed circumstances, the Competent Authority effectively
exercised a power of review which is neither recognised under MOFA nor
has it been conferred upon the Competent Authority.
38. In any event, it is not an absolute proposition that if the plea of res judicata is
not raised before the trial court, the same can never be permitted to be urged
at the appellate stage. Such exception has also been observed in paragraph 12
of the said decision in V. Rajeshwari (supra), where the Supreme Court, after
noting several past judicial pronouncements, including those of the Privy
Council, has taken due notice of such exception. This was permitted in the
26
case of State of Punjab vs. Bua Das Kaushal where the necessary facts
were known to the parties and were gone into by the trial court. Hence, the
26 (1970) 3 SCC 656
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Court concluded that the point of res judicata had throughout been in
consideration and discussion and so the want of pleadings or the plea of
waiver of res judicata was not permitted to be urged.
39. Even otherwise, the argument advanced by Mr. Mone that the plea of res
judicata was not properly raised before the Competent Authority cannot be
accepted in the facts of the present case. The record demonstrates that both
the Petitioner and Noble House CHSL specifically objected to
maintainability on the basis of the earlier order. Whilst the Petitioner had
raised this issue by relying on Section 10 of the CPC, Noble House CHSL
had specifically raised the issue of res judicata under Section 11 of the CPC.
The issue therefore squarely arose for determination in the said proceedings.
However, the Competent Authority has completely failed to deal with this
issue, and the impugned order is conspicuously silent, containing no
discussion or findings whatsoever on it.
40. Whilst it is true, as contended by Mr. Mone, by relying on the decisions of
this Court in New Manoday (supra) and Om Shakuntal (supra), that mere
pendency of a civil suit does not ordinarily operate as an absolute bar to
consideration of deemed conveyance proceedings under Section 11 of MOFA
and that proceedings under MOFA are summary in nature and operate subject
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to adjudication by civil courts, however the present case stands on a
materially different footing. The issue is not whether pendency of a civil suit
in law bars deemed conveyance; rather, the question is, whether the
Competent Authority, having earlier chosen to defer adjudication until the
suit was decided, could subsequently ignore its own binding determination.
The legality of the earlier reasoning is no longer open to examination before
the same authority. Until the first order was set aside, the Competent
Authority remained bound by its own earlier decision.
41. The impugned order, significantly, does not record any finding explaining
how the condition imposed in the earlier order stood satisfied or why the
Competent Authority was entitled to depart from it. Hence, I am of the view
that the failure on the part of the Competent Authority to address this
jurisdictional objection vitiates the decision-making process itself and
accordingly, warrants interference from this Court exercising extra-ordinary
writ jurisdiction under Article 226 of the Constitution of India.
42. The Petitioner and Noble House CHSL have alleged that the second
application was founded upon misleading assertions regarding developments
in the civil proceedings. However, I do not consider it necessary for this
Court to return a conclusive finding of deliberate suppression. However, it is
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evident that the material relied upon by Apeksha CHSL did not alter the core
circumstance which formed the basis of the earlier rejection, namely, the
continuing pendency of the said civil suit.
43. The Competent Authority was therefore required, at the minimum, to
examine whether the liberty granted earlier had validly arisen. The absence
of such examination, in my view, demonstrates complete non-application of
mind to a jurisdictional pre-requisite. The said question goes to the
jurisdiction of the Competent Authority and hence, the same may
legitimately be examined by this Court exercising writ jurisdiction.
Considering the facts of the present case, the decisions in Arunkumar H.
Shah HUF (supra), Shri Chintamani Builders (supra), Swastik Promoters and
Developers (supra) , Zainul (supra) and Mazda Construction (supra) that are
sought to be relied upon by Mr. Mone in support of his contention that this
Court ought not to interfere would not assist Apeksha CHSL.
44. In view of the finding that the second application itself was not maintainable,
I consider it unnecessary to undertake an elaborate examination of the rival
submissions concerning apportionment of land under the Government
nd
Resolution dated 22 June 2018 or alleged discrepancies between the
certificate of unilateral deemed conveyance and the registered deed of
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conveyance. Once the foundational jurisdiction to entertain the second
application fails, all consequential actions, including issuance of the
certificate under Section 11(4) of MOFA and execution of the unilateral deed
of conveyance, cannot be sustained independently. Hence, it is not necessary
to deal with the decisions of this Court in Marathon Era (supra), New Sonal
Industries (supra), M/s. Kulshree Builders (supra) and Prestige Garden
(supra) that are cited by Mr. Mone.
45. The submission that this Court should refrain from interference merely
because a conveyance has already been executed cannot be accepted.
Registration of a deed of conveyance flowing from an order passed without
jurisdiction does not create an irreversible situation. Where the decision-
making process itself is fundamentally flawed, exercise of writ jurisdiction is
not only permissible but necessary to preserve statutory discipline. Hence,
the decisions in Satya Pal Anand (supra) and Amudhavali (supra) can be
distinguished on facts and therefore do not apply to the present case and are
therefore of no assistance to Apeksha CHSL.
th
46. For the reasons recorded above, I am of the view that the order dated 4
August 2016 attained finality and bound not only the parties but also the
Competent Authority. Considering that the liberty granted therein permitted
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filing of a fresh application only after disposal of Civil Suit No. 1481 of
2012, which admittedly has not occurred and since the second deemed
rd
conveyance application dated 3 January 2017 did not arise from any new or
changed circumstance and was, in substance, an attempt to secure
reconsideration of the earlier decision, the Competent Authority lacked
statutory power to review or reopen its earlier order and therefore acted
without jurisdiction in entertaining the second application. The impugned
st
order dated 31 May 2017 is thus vitiated by jurisdictional error, non-
consideration of material objections, and violation of principles analogous to
res judicata . The unilateral deed of deemed conveyance executed pursuant
thereto cannot survive independently of the impugned order. Considering the
st
above, the impugned order dated 31 May 2017 cannot be sustained in law
and is liable to be set aside.
47. However, like in Aakansha Construction (supra), this Court is also at pains to
set aside an order granting deemed conveyance in favour of an association
formed by home buyers. MOFA is a beneficial legislation which has been
enacted (and amended, from time to time) to prevent the mischief where
Promoters and Developers were deliberately not conveying land in favour of
the association of home buyers, even after exploitation of the rights in the
land under the greed of further FSI being made available. MOFA is intended
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to protect the interests of home buyers and hence, courts have always been
slow in interfering with orders granting deemed conveyance in favour of co-
operative housing societies of home buyers. The Competent Authority is a
Tribunal of limited jurisdiction, which adjudicates the application of a co-
operative housing society for conveyance of land and building after hearing
the Promoter and in some cases, even Owners. A summary and speedy
remedy is made available to co-operative housing societies to have land and
building conveyed in their names. The Competent Authority is therefore
required to exercise jurisdiction under Section 11 of MOFA by keeping in
mind the legislative objective and any complicated issue sought to be raised
by Promoters (or in some cases like the present one, another co-operative
housing society situated in the same layout, namely, Noble House CHSL) can
be left to be agitated before Civil Courts, as such parties always have the
liberty of filing a suit for asserting their rights in the land.
st
48. Having held that the impugned order dated 31 May 2017 passed by the
Competent Authority is unsustainable, the issue which stares me in the face is
about the remedy open to Apeksha CHS in respect of its statutory right of
conveyance of the land and building. As observed above, Apeksha CHSL
th
ought to have challenged the earlier order dated 4 August 2016, if it
believed that the same is erroneous rather than filing the second application
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for deemed conveyance. Suit No. 1481 of 2012 filed by Noble House CHSL
still remains pending before the Bombay City Civil Court at Dindoshi despite
it being filed almost 15 years ago. Therefore, if liberty is not granted to
th
Apeksha CHSL to challenge the said order dated 4 August 2016, it would be
rendered remediless in respect of its right of having the land and building
conveyed in its favour. Therefore, while setting aside the impugned order
st
dated 31 May 2017, Apeksha CHSL deserves to be granted liberty to
th
challenge the said order dated 4 August 2016. There is a statutory right in
favour of Apeksha CHSL to apply for deemed conveyance of the land and
th
building. In its earlier order dated 4 August 2016, the Competent Authority
whilst recognizing such right, has however granted liberty to Apeksha CHSL
to file an application for deemed conveyance only after the said civil suit is
disposed of. Whether the said decision of the Competent Authority is valid or
not, must necessarily be permitted to be tested by Apeksha CHSL. In my
view, therefore, liberty needs to be granted to Apeksha CHSL to challenge
th
the earlier order dated 4 August 2016. Such a direction would necessarily be
in the interests of justice.
49. Accordingly, the Writ Petition is allowed and the following order is passed:
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::ORDER::
st
a) The impugned order dated 31 May 2017 passed by the
Competent Authority / Respondent No. 2 is set aside.
b) Consequently, the Deed of Unilateral Deemed Conveyance dated
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12 January 2018 executed between the Competent Authority /
Respondent No. 1 and Apeksha CHSL / Respondent No. 3 and
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registered on 16 April 2018 under registration no. BDR-
4/421/2018 is also cancelled and set aside.
c) The Authorities are directed to take the necessary steps to give
effect to such cancellation as may be required.
d) This order shall not affect the rights and contentions of the
parties in the pending Suit No. 1481 of 2012 and all contentions
by parties taken therein are expressly kept open and the City
Civil Court shall hear and decide the same, uninfluenced by this
order, as expeditiously as possible and preferably, within a period
of one year from today.
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2. WP/2453/2018
B. K. Corporation vs. State & Ors.
e) Apeksha CHSL / Respondent No. 3 would however be at liberty
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to challenge the earlier order dated 4 August 2016 passed by the
Competent Authority / Respondent No. 2 in Application No. 2 of
2016 and such challenge, if made, would be decided on its own
merits. All rights and contentions of parties on merits are
expressly left open.
f) All interim applications, if any, also stand disposed of in terms of
this order. There shall be no order as to costs.
( FARHAN P. DUBASH, J. )
After pronouncement:-
50. After the judgment was pronounced, Mr. Saket Mone, learned Counsel who
appears on behalf of Apeksha CHSL / Respondent no. 3 seeks a stay of the
judgment and prays that the earlier interim protection that was granted by the
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Supreme Court on 18 May 2018 be continued for a period of four weeks
from today to enable his clients to challenge this judgment.
51. Considering the above, the said request is granted and the present judgment
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2. WP/2453/2018
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shall remain stayed for a period of four weeks from today viz., till 7 July
2026.
( FARHAN P. DUBASH, J. )
Amol
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