Case Note & Summary
The present judgment concerned two writ petitions filed before the High Court of Judicature at Bombay, Civil Appellate Jurisdiction, challenging an order dated 12 November 2024 passed by the District Deputy Registrar, Co-operative Societies, Mumbai City (4) and Competent Authority under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). The order issued a certificate of unilateral deemed conveyance of land and building in favour of Vijay-II Co-operative Housing Society Ltd. The first petition, Writ Petition No. 18739 of 2024, was filed by the promoters, who were described as owners of the entire plot of land bearing CTS No. 48 admeasuring 3245.50 sq.mtrs with setback/DP road benefit of 662.11 sq.mtrs at junction of S.V. Road and Rambaug Lane, Borivali, Mumbai. The promoters contended that flat purchase agreements contemplated only leasehold rights in favour of societies and challenged the conveyance of land on ownership basis and inclusion of Wing-D building in the conveyance. The second petition, Writ Petition No. 4649 of 2025, was filed by Vijay Co-operative Housing Society Ltd., another society in the same layout, whose grievance was restricted to the grant of right of way to Vijay-II CHS from main S.V. Road. The factual background revealed that the promoters were owners of the entire plot and had developed the layout through a partnership firm M/s. Vijay Builders under Intimation of Disapproval dated 10 May 1989. There was a dispute about the number of buildings: promoters claimed three buildings (Vijay-I, Vijay-II, Wing-D), while Vijay-II CHS claimed only two (Vijay-I and Vijay-II). Vijay-I comprised wings A and B with 40 units; Vijay-II comprised wings A, B, C with 40 units; Wing-D had two flats occupied by promoter's family. Flat purchasers formed Vijay CHS for Vijay-I and Vijay-II CHS for Vijay-II. The occupiers of Wing-D were not part of either society. Procedurally, Vijay CHS filed Application No. 265/2022 seeking conveyance of leasehold rights and obtained order dated 15 September 2023 granting unilateral deemed conveyance of 1230.45 sq.mtrs with setback benefit of 191.30 sq.mtrs. Vijay-II CHS filed Application No. 28/2023, which was rejected by order dated 25 September 2023 on grounds that it was entitled only to leasehold rights, there were three buildings, Wing-D was separate, area calculations were incorrect, and the Board of Administrator could not file the application; liberty was granted to file fresh application. Subsequently Vijay-II CHS filed Application No. 142/2024 seeking conveyance of 1528.22 sq.mtrs and recreational ground 269.69 sq.mtrs, which was opposed inter alia on res judicata. The Competent Authority allowed the application on 12 November 2024, issuing certificate of conveyance including Wings A, B, C, D, which became the subject matter of the writ petitions. During submissions, the learned senior advocate for the promoters argued that the second application was barred by res judicata as the earlier order had attained finality on five specific findings, and the liberty granted did not permit reopening those findings. He relied on precedents including Faime Makers Pvt. Ltd. v. District Deputy Registrar, Co-operative Society (3), Mumbai, 2025 SCC OnLine SC 688, Sulochana Amma v. Narayanan Nair, (1994) 2 SCC 14, Hope Plantations Ltd. v. Taluk Land Board, Peermade, (1999) 5 SCC 590, and Bhanu Kumar Jain v. Archana Kumar, to contend that res judicata and issue estoppel apply to administrative authorities. The submissions also addressed the status of Wing-D as a separate building. The available excerpt of the judgment ends during the submissions for the promoters, before recording arguments of other parties, the court's analysis, or the final decision. Therefore the High Court's reasoning and ultimate holding could not be extracted from the provided text. The judgment was reserved on 30 April 2025 and pronounced on 8 May 2025.
Headnote
A) Deemed Conveyance - Res Judicata - Second Application Maintainability - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 11 - The Promoters contended that the second application for deemed conveyance by Vijay-II CHS was barred by res judicata because the earlier Application No.28/2023 was rejected on identical grounds after findings on five points; the liberty granted did not permit reopening those findings. The Competent Authority entertained and allowed the fresh application, leading to the challenge before the High Court. (Paras 8-9) B) Deemed Conveyance - Nature of Rights - Ownership vs Leasehold - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 11 - The dispute centered on whether flat purchase agreements conferred only leasehold rights on societies as per MOFA. The earlier order dated 25 September 2023 held that Vijay-II CHS was entitled only to leasehold rights and not ownership, but the impugned order dated 12 November 2024 granted conveyance on ownership basis, which the Promoters challenged. (Paras 1, 8-10) C) Deemed Conveyance - Identification of Buildings - Separate Building 'Wing-D' - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 11 - The parties disputed whether Wing-D was part of Vijay-II CHS or a separate building. The earlier order held Wing-D was separate and not part of Vijay-II CHS, but the impugned order included Wing-D in the conveyance to Vijay-II CHS. The Promoters argued Wing-D is separate; Vijay-II CHS argued it is part of its building. (Paras 3-6, 8-10) D) Deemed Conveyance - Right of Way - Grant of Access - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Section 11 - Vijay CHS separately challenged the impugned order to the extent it granted right of way to Vijay-II CHS from main S.V. Road. This grievance was confined to that specific relief and was considered alongside the Promoters' petition. (Paras 2, 10)
Issue of Consideration
Whether the second application for deemed conveyance was barred by res judicata; whether Vijay-II CHS was entitled to ownership or only leasehold rights; whether Wing-D building was part of Vijay-II CHS; whether grant of right of way to Vijay-II CHS was legal.
Law Points
- Deemed conveyance under Section 11 of MOFA
- res judicata
- issue estoppel
- leasehold rights vs ownership rights
- separate building Wing-D
- right of way
- quasi-judicial order finality
- maintainability of second application
