Case Note & Summary
The writ petition filed before the Bombay High Court challenged the order dated 5 October 2021 passed by the District Deputy Registrar (Cooperative Societies) and Competent Authority, granting unilateral deemed conveyance of leasehold rights, building, and recreational ground in favour of the respondent cooperative housing society. The dispute concerned a larger property in Jogeshwari, Mumbai, which was originally owned by one Nanbhoy Byramjee Jeejeebhoy and subsequently transferred to Byramjee Private Limited (BJPL). Respondent no.3 was inducted as a lessee of a portion under a 99-year lease and granted development rights to Respondent no.4, who constructed a building of 27 flats. The flat purchasers formed the society in 1991. In 2010, the petitioner company purchased the entire larger property from BJPL. Litigation ensued, resulting in consent terms in Suit no.64 of 2011 that split the property between the petitioner and Respondent no.3, followed by a Deed of Surrender in 2012 that conveyed ownership of a 2786 sq.m. portion to the petitioner, along with the promoter obligations under MOFA. The society filed its first application for deemed conveyance in March 2020, which was rejected by the Competent Authority on 22 February 2021. The petitioner claimed that the rejection was due to legal complications requiring recourse to civil court, while the society contended that it was on a technical ground of not seeking leasehold rights and liberty was granted to file a fresh application for leasehold assignment. A second application was filed on 24 March 2021, resulting in the impugned order that granted conveyance of 1321.36 sq.m. land plus recreational ground area. The petitioner raised multiple objections: the second application was not maintainable as the earlier order did not grant liberty, the proceedings were barred by res judicata, mandatory commencement and occupancy certificates were not filed, and the area conveyed was in excess of the building footprint. The respondent society defended the order, arguing that the second application was within the liberty granted, that the petitioner had failed to raise procedural objections before the authority, and that the architect's certificate justified the area. The judgment text is incomplete; thus, the court's analysis and final decision are not available in the provided extract.
Headnote
A) Civil Procedure - Res Judicata - Applicability to Quasi-Judicial Bodies - Code of Civil Procedure, 1908, Section 11, General Principles - Petitioner contended that the second application for deemed conveyance was barred by res judicata as the first application was rejected on merits and the order had attained finality, citing Abdul Kuddus v. Union of India. The plea raised the issue of whether res judicata can bar fresh proceedings before a quasi-judicial authority when no liberty was granted to reapply. (Court's reasoning and decision not available due to incomplete text) (Paras 8-9).
B) Maharashtra Ownership Flats Act - Deemed Conveyance - Pre-requisite Documents - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA), Section 11 - The petitioner argued that the society's application was defective because it did not enclose commencement and occupancy certificates, which are mandatory pre-requisites under Section 11 of MOFA. The respondent countered that no such objection was raised before the competent authority. (Court's analysis not available) (Paras 10-11).
C) Property Law - Deemed Conveyance - Extent of Land to be Conveyed - MOFA, Section 11 - The petitioner contended that the conveyance area of 1321.36 sq.m. exceeded the building footprint of 870 sq.m., and conveyance of excess land with recreational ground rights was impermissible. The respondent relied on an architect's certificate to justify the area. The dispute concerned whether the competent authority could grant conveyance of land beyond the building's actual occupation. (Court's decision not available) (Paras 10-11).
D) Cooperative Societies - Deemed Conveyance - Maintainability of Fresh Application - Maharashtra Cooperative Societies Act, 1960 - The second application filed after rejection of the first raised questions of finality and procedural propriety, including whether the earlier order granted liberty only to approach civil court and not to refile before the same authority. (Court's ruling on maintainability not available) (Paras 8, 13).
Issue of Consideration
1. Maintainability of second application for deemed conveyance after rejection of earlier application, 2. Applicability of res judicata to decisions of quasi-judicial authorities, 3. Necessity of filing commencement and occupancy certificates for entertainment of application under Section 11 of MOFA, 4. Entitlement to conveyance of land area beyond building footprint.
Final Decision
Not mentioned (judgment text incomplete)
Law Points
- Legal points not extracted
Case Details
2023 LawText (BOM) (11) 25
Writ Petition No. 8186 of 2022 with Interim Application No. 10410 of 2022
Mr. Ashish Kamat, Senior Adv. a/w Mr. Mayur Khandeparkar, Mr. Aseem Naphade, Mr. Amar Khanna, Mr. Yugal Bhatia, Mr. Haris Koradia for Petitioner; Mr. Aditya Lele for Respondent no.2; Mrs. V. S. Nimbalkar, AGP for Respondent no.1
M/s. Faimemakers Pvt. Ltd (earlier known as M/S Fairmont Construction Pvt. Ltd.)
1. District Deputy Registrar, Co-operative Societies (3), Mumbai; 2. Prakash Apartment Co-operative Housing Society Ltd.; 3. Mr. Ramkishor Singh Kunjbihari Singh (through legal heirs); 4. M/s. Prakash Builders
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Nature of Litigation
Challenge to an order granting deemed conveyance of leasehold rights and property under MOFA.
Remedy Sought
Quashing of the order dated 5 October 2021 passed by the Competent Authority.
Filing Reason
Petitioner aggrieved by the unilateral grant of deemed conveyance in favour of the society.
Previous Decisions
The Competent Authority had earlier rejected the society's first application for deemed conveyance on 22 February 2021. The second application was allowed on 5 October 2021. Consent Terms were filed in Suit No. 64 of 2011 on 6 September 2012 dividing the property.
Issues
Whether the second application for deemed conveyance was maintainable after rejection of the first application.
Whether the principle of res judicata applies to quasi-judicial proceedings and bars the second application.
Whether failure to file commencement and occupancy certificates renders the application under Section 11 of MOFA invalid.
Whether the area conveyed (1321.36 sq.m.) was in excess of the building footprint and if conveyance of additional land and RG rights was permissible.
Submissions/Arguments
Petitioner argued that the second application was not maintainable because the earlier order did not grant liberty to reapply and that the order had attained finality; the society should have approached civil court to resolve legal complications.
Petitioner contended that the second application was barred by res judicata as the issues were already decided and the authority had no power of review.
Petitioner claimed that mandatory commencement and occupancy certificates were not filed with the application, which are pre-requisites under Section 11 of MOFA.
Petitioner argued that the building stands on only 870 sq.m., and conveyance of 1321.36 sq.m. plus RG land was excessive.
Respondent society argued that the first application was rejected on a technical ground with liberty to file a fresh application seeking leasehold rights, and the second application was within that liberty.
Respondent contended that the petitioner did not raise objections regarding maintainability or absence of certificates before the competent authority.
Respondent submitted that the petitioner became the promoter under the Deed of Surrender and was responsible for conveying the land; the area was supported by an architect's certificate.
Ratio Decidendi
Ratio not explicitly mentioned
Judgment Excerpts
Petitioner challenges order dated 5 October 2021 passed by the District Deputy Registrar Co-operative Societies (3), Mumbai and competent authority granting unilateral Deemed Conveyance of leasehold rights of land admeasuring 1321.36 square meters, societies’ building and undivided rights in recreational ground admeasuring 1519.56 square meters in favour of the Respondent no.2 society. (Para 1)
Mr. Kamat would submit that the second application filed by the Respondent no.2 society was barred by principles of res-judicata. That the principle would apply to quashi-judicial authorities also. (Para 9)
filing of commencement certificate and occupancy certificate are pre-requisites for entertainment of Application under Section 11 of MOFA. (Para 10)
Procedural History
1) Deed of Conveyance dated 24 July 1951 between Nanbhoy Byramjee Jeejeebhoy and Byramjee Private Limited (BJPL) for larger property. Respondent no.3 inducted as lessee of part for 99 years. Respondent no.3 granted development rights to Respondent no.4, who constructed building. Flat purchasers formed society registered on 28.08.1991. 2) Conveyance dated 7 July 2010 from BJPL to Petitioner for entire larger property. 3) Respondent no.3 filed Suit no.64 of 2011; consent terms dated 06.09.2012 dividing property. Petitioner received 2786 sq.m. portion. 4) Deed of Surrender dated 30.12.2012 finalized division; Petitioner's obligations under MOFA recognized. 5) Society called for conveyance on 25.02.2020; filed first application on 05.03.2020. 6) Competent Authority rejected first application on 22.02.2021. 7) Society filed second application on 24.03.2021; granted conveyance on 05.10.2021. 8) Petitioner filed Writ Petition No.8186 of 2022 challenging said order.
Acts & Sections
- Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA): Section 11
- Maharashtra Cooperative Societies Act, 1960: Not mentioned specifically
