T.K.A. Padmanabhan vs Abhiyan Cooperative Group Housing Society Limited . - A claim for compensation for delayed possession necessarily arises from the period prior to the actual delivery of possession. The subsequent receipt of possession cannot, by itself, extinguish the right of the allottee to seek adjudication of a claim for compensation for the alleged delay.

  SCI (2026.06.04) in T.K.A. Padmanabhan vs Abhiyan Cooperative Group Housing Society Limited . [CIVIL APPEAL NO(S). 10724/2016] held that;

• A claim for compensation for delayed possession necessarily arises from the period prior to the actual delivery of possession. The subsequent receipt of possession cannot, by itself, extinguish the right of the allottee to seek adjudication of a claim for compensation for the alleged delay.

Excerpts of the Order;

# 1. Permission to appear and argue in person is granted to the appellant.

# 2. The present civil appeal arises from the judgment and order dated 04.01.2016 passed by the National Consumer Disputes Redressal Commission, New Delhi [In short “National Commission” ] in Revision Petition No. 1942 of 2013.

# 3. The appellant, T.K.A. Padmanabhan, had instituted Consumer Complaint No. 579 of 2005 before the District Consumer Forum-VII, New Delhi [In short “District Forum”] against the respondent, Abhiyan Cooperative Group Housing Society Limited, alleging deficiency in service on account of delay in handing over possession of Flat No. 232.

# 4. The District Forum, by order dated 27.07.2009, referred the parties to arbitration. The said order was affirmed by the Delhi State Consumer Disputes Redressal Commission [In short “State Commission”] by order dated 26.02.2013. The appellant’s revision petition against the same came to be dismissed by the National Commission by the impugned order dated 04.01.2016.

# 5. The facts giving rise to the present appeal are as follows:

5.1. The appellant became a member of the respondent society in January 2003. He claims to have paid the full amount towards allotment of a flat in the respondent society.

5.2. Flat No. 232 was allotted to the appellant and an agreement was entered into between the parties on 27.02.2004.

5.3. On 08.08.2005, the appellant filed Consumer Complaint No. 579 of 2005 before the District Forum claiming compensation for the alleged delay in handing over possession of the flat. 

5.4. The complaint was admitted and notice was issued to the respondent. Thereafter, the respondent filed an application under Section 8 of the Arbitration and Conciliation Act, 1996, seeking reference of the dispute to arbitration.

5.5. By order dated 21.09.2005, the District Forum rejected the said application, inter alia, on the ground that the remedy under the Consumer Protection Act, 1986, was in addition to any other remedy available to an aggrieved party. 

5.6. The respondent challenged the said order before the High Court of Delhi in C.M.(M) No. 2405 of 2005. By order dated 30.03.2007, the High Court set aside the order dated 21.09.2005 and directed the District Forum to reconsider the issue by passing a reasoned order.

5.7. The respondent thereafter approached this Court in Special Leave Petition (Civil) No. 9962 of 2007, which was dismissed on 28.07.2008.

5.8. Upon reconsideration, the District Forum, by order dated 27.07.2009, allowed the respondent’s application under Section 8 of the Arbitration and Conciliation Act, 1996, and referred the parties to arbitration.

5.9. The appellant challenged the said order before the State Commission in First Appeal No. 680 of 2009. By order dated 26.02.2013, the State Commission dismissed the appeal and affirmed the order passed by the District Forum.

5.10. The appellant then filed Revision Petition No. 1942 of 2013 before the National Commission. By the impugned order dated 04.01.2016, the National Commission dismissed the revision petition. Hence, the present appeal.

# 6. We have heard the appellant, who appears in person, and learned counsel appearing for the respondent society.

# 7. The appellant has submitted that the consumer complaint could not have been referred to arbitration merely on the basis of an arbitration clause in the agreement between the parties. According to him, the complaint had already been admitted and notice had been issued to the respondent. It is therefore submitted that the District Forum ought to have decided the complaint on merits in accordance with the Consumer Protection Act, 1986.

# 8. Learned counsel for the respondent, on the other hand, has supported the orders passed by the District Forum, the State Commission and the National Commission. It is submitted that the agreement between the parties contained an arbitration clause and, therefore, the consumer fora committed no error in relegating the parties to arbitration.

# 9. In view of the above, the question which arises for our consideration is whether the consumer complaint filed by the appellant could have been referred to arbitration  without adjudication on merits, and whether the National Commission was justified in dismissing the revision petition on the ground that the appellant was not a consumer.

RELEVANT STATUTORY FRAMEWORK

# 10. Before we examine the correctness of the orders passed by the consumer fora, it is necessary to state the relevant provisions of the Consumer Protection Act, 19864 applicable to the present case.

# 11. Section 2(1)(d) of the 1986 Act defines the term “consumer”. Insofar as the present case is concerned, the relevant part of the provision reads as under:

• ““consumer” means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.” In short “the 1986 Act”

# 12. Section 2(1)(o) of the 1986 Act defines the term “service”. The said provision, insofar as relevant, has been reproduced hereunder:

• ““service” means service of any description which is made available to potential users and includes, but is not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

# 13. Section 3 of the 1986 Act expressly declares the nature of the remedy under the Act. It reads as follows:

• “Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

# 14. Section 12 of the 1986 Act assumes particular significance in the present case. It deals with the manner in which a complaint may be made before the District Forum. Sub- section (4) thereof is material and reads as under:

• “Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act.

• Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force.”

# 15. The respondent had invoked Section 8 of the Arbitration and Conciliation Act, 1996, on the ground that the agreement between the parties contained an arbitration clause. The question, therefore, is whether the existence of such an arbitration clause could have displaced the statutory jurisdiction of the consumer forum in the facts of the present case.

ANALYSIS

# 16. At the outset, we must emphasize that the 1986 Act is a beneficial legislation intended to provide a simple, inexpensive and expeditious remedy to a consumer who complains of defect in goods or deficiency in service. Section 3 of the 1986 Act makes the position explicit by providing that the remedy under the Act is in addition to and not in derogation of any other remedy available under law. The existence of another forum or another mode of adjudication, therefore, does not by itself exclude the jurisdiction of the consumer fora.

# 17. This principle has been consistently recognised by this Court. In Fair Air Engineers Pvt. Ltd. v. N.K. Modi5  [(1996) 6 SCC 385], this Court held that the remedy under the 1986 Act is an additional remedy and that the existence of an arbitration clause would not automatically oust the jurisdiction of the consumer forum. The same principle was reiterated in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha [(2004) 1 SCC 305], where this Court held that the remedy under the 1986 Act is available notwithstanding the existence of remedies under the cooperative societies law. Again, in National Seeds Corporation Ltd. v. M. Madhusudhan Reddy [(2012) 2 SCC 506], this Court emphasised that the availability of an alternative statutory remedy is not a bar to the maintainability of a consumer complaint.

# 18. The position has been put beyond doubt in Emaar MGF Land Ltd. v. Aftab Singh [(2019) 12 SCC 751]. In the said decision, this Court held that even where an agreement contains an arbitration clause, the consumer forum is not denuded of its jurisdiction to entertain and decide a consumer complaint. The reason is that the 1986 Act creates a special and additional remedy for consumers and the  jurisdiction so conferred cannot be displaced merely by reference to an arbitration agreement between the parties.

# 19. The legal position upheld in the precedents above is of direct relevance in the present case. The appellant’s complaint was not a civil suit simpliciter. It was a complaint under the 1986 Act alleging deficiency in service on account of delay in handing over possession of a flat. The fact that the agreement between the parties contained an arbitration clause could not, by itself, be treated as sufficient to non-suit the appellant before the consumer forum.

# 20. The matter must also be examined in the light of Section 12(4) of the 1986 Act. Section 12 of the 1986 Act contemplates a statutory sequence. At the threshold, the District Forum is required to consider whether the complaint deserves to be admitted or rejected. Once the complaint is admitted and allowed to be proceeded with, the forum is required to deal with it in the manner provided under the Act. The proviso to Section 12(4) contains a clear legislative restraint. It provides that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court, tribunal or authority set up by or under any other law for the time being in force.

# 21. The significance of the proviso lies not merely in its text, but also in the statutory policy which it reflects. The 1986 Act creates a special adjudicatory mechanism for consumer disputes. Once that mechanism is validly invoked and the complaint is admitted, the consumer cannot be driven out of that forum merely because the agreement between the parties contains an arbitration clause. A private contractual clause cannot be permitted to defeat the continued operation of a statutory remedy which Parliament has expressly made additional to other remedies under Section 3 of the 1986 Act.

# 22. Section 12(4) therefore has to be read harmoniously with Section 3 of the 1986 Act. Section 3 preserves the additional character of the consumer remedy. Section 12(4), after admission of the complaint, gives procedural effect to that protection by requiring the consumer forum to proceed under the Act and by preventing diversion of the complaint to another forum. The provision is intended to ensure that a consumer complaint, once admitted, is not rendered illusory by compelling the consumer to begin afresh before another forum or authority.

# 23. In the present case, the complaint had been admitted and notice had been issued to the respondent. The respondent thereafter filed an application under Section 8 of the Arbitration and Conciliation Act, 1996. The District Forum  initially rejected the application by noticing that the remedy under the 1986 Act is in addition to other remedies. However, after the matter was remitted by the High Court for reconsideration, the District Forum referred the parties to arbitration. The State Commission affirmed that view. In our opinion, this approach did not give due effect to the scheme of the 1986 Act and to the settled principle that an arbitration clause does not, by itself, oust the jurisdiction of the consumer forum.

# 24. The order of the National Commission suffers from an additional infirmity. The principal issue before the National Commission was whether the District Forum and the State Commission were justified in referring the complaint to arbitration. The National Commission, however, dismissed the revision petition on the ground that the appellant was not a consumer at the time of filing of the complaint, since he had already taken possession of the flat without protest. In doing so, the National Commission failed to address the central jurisdictional question arising from the orders passed by the District Forum and the State Commission.

# 25. The reasoning adopted by the National Commission cannot be sustained. The appellant’s complaint was not for delivery of possession simpliciter. His grievance was that there had been delay in handing over possession of  the flat and that he was entitled to compensation for such delay. A claim for compensation for delayed possession necessarily arises from the period prior to the actual delivery of possession. The subsequent receipt of possession cannot, by itself, extinguish the right of the allottee to seek adjudication of a claim for compensation for the alleged delay.

# 26. Whether there was in fact any delay, whether such delay was attributable to the respondent, whether the appellant had accepted possession unconditionally, and whether any compensation is payable are all matters which require adjudication on merits. The consumer complaint has not been adjudicated on merits at any stage. The claim of the appellant for compensation on account of alleged delay in handing over possession has neither been accepted nor rejected after evidence. Equally, the defence of the respondent society has also not been examined on merits. These issues could not have been concluded at the threshold by holding that the appellant ceased to be a consumer merely because possession had been delivered before the complaint was filed. In such circumstances, it would not be appropriate for this Court to record any finding on the factual controversy between the parties.

# 27. The proper course, therefore, is to restore the consumer complaint for adjudication on merits. The parties must be  afforded due opportunity of hearing and of leading evidence. All questions relating to deficiency in service, delay, waiver, acceptance of possession, entitlement to compensation, and all other issues on merits shall remain open to be considered by the competent consumer forum in accordance with law.

# 28. During the intermediary period, the District Consumer Disputes Redressal Commission has been set up at Dwarka. It is also stated before us that both parties are staying in Dwarka. In view of the same, and in order to avoid any further inconvenience and delay, it would be appropriate to direct that the complaint be placed before the District Consumer Disputes Redressal Commission, Dwarka.

CONCLUSION

# 29. For the reasons recorded above, the appeal is allowed.

# 30. The judgment and order dated 04.01.2016 passed by the National Commission in Revision Petition No. 1942 of 2013, the order dated 26.02.2013 passed by the State Commission in First Appeal No. 680 of 2009, and the order dated 27.07.2009 passed by the District Forum are set aside.

# 31. Consumer Complaint No. 579 of 2005, stated to have been renumbered as Complaint No. 712 of 2007, is restored and  shall be placed before the District Consumer Disputes Redressal Commission, Dwarka, for decision on merits.

# 32. The District Consumer Disputes Redressal Commission, Dwarka, shall decide the complaint after affording due opportunity of hearing and of leading evidence to both parties.

# 33. Since the complaint is of the year 2005, the District Consumer Disputes Redressal Commission, Dwarka, shall make an endeavour to decide the same preferably within a period of one year from the date of receipt of a copy of this order.

# 34. Pending application(s), if any, shall stand disposed of.

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B.K. Corporation vs State Of Maharashtra And 9 Ors. - 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.

  HC Bombay (2026.06.09) in B.K. Corporation vs State Of Maharashtra And 9 Ors. [Writ Petition No. 2453 of 2018] held that;

• 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.

• It has been settled by this Court that the principle of res judicata applies to and binds quasi-judicial authorities. This Court in Ujjam Bai v. State of U.P. 23 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.

• 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.

•  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."

• 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.

• 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 .

• 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.

• 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.

Excerpts of the Order;

# 1. The present Writ Petition challenges an order dated 31 st 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 application filed by Apeksha CHSL on 3 rd January 2017, pursuant to which 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 order dated 4th 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 suit. It is an admitted position that the order dated 4 th 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.

Brief Chronology of Relevant Events  

# 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.

4.2 Between 7th January 1989 and 8th 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 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 Greater Mumbai on 6th May 1991.

4.3 Between 1989 and 1993, the Promoter constructed two buildings on Plot "B", namely Apeksha and Noble House, pursuant to Intimation of Disapproval (IOD) dated 10th 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 Certificates were issued on 12th October 1996 (for Apeksha) and 26th 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. mtrs., received IOD dated 5th July 1997, Occupancy Certificate dated 17th November 2003, and its society was registered on 30 th November 2004 and Camron Heights, with FSI consumption of about 5,600 sq. mtrs., received IOD dated 25 th May 2004, Occupancy Certificate dated 21st April 2008, and its society was registered on 11th September 2009.

4.5 MOFA was amended with effect from 25th 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. 4.6 By a letter dated 23rd October 2010, the Petitioner informed all four societies that it proposed the execution of a common conveyance in favour of all societies jointly. By a communication dated 18 th December 2010, Noble House CHSL demanded an independent conveyance. The Petitioner, through its advocate's reply dated 2 nd 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 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 refused vide order dated 29th 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. 4.8 By order dated 20th 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 Application No. 359 of 2013 before this Court, which on 15 th April 2014 admitted the revision and stayed further proceedings in the suit.

4.9 On 2nd 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.

4.10 By an order dated 4th 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."

4.11 Without challenging the order dated 4th August 2016 and while the civil suit continued to remain pending, Apeksha CHSL filed a second application on 3rd 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.

4.12 Upon hearing the parties and considering the additional material placed on record therein, the Competent Authority passed the impugned order dated 31st 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.

4.13 The present Writ Petition came to be instituted on 6 th November 2017 challenging the impugned order. During pendency, Respondent No. 2 executed a unilateral Deemed Conveyance Deed dated 12th January 2018, registered on 16th April 2018 (Registration No. BDR-4/421/2018) in favour of Apeksha CHSL.

4.14 By an interim order dated 23 rd 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 (Civil) No. 12294 of 2018 before the Supreme Court. By an order dated 18th 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 present Writ Petition. On 12th April 2019, the Supreme Court dismissed the Special Leave Petition and directed continuation of the interim protection granted on 18th May 2018 till the final disposal of the present Writ Petition.

4.16 On 22nd 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 disposed of on 30th 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.

Submissions of the Petitioner

# 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 reasoned order dated 4th 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 said civil suit. It is undisputed, that the order dated 4 th 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, Apeksha CHSL filed a second application on 3 rd 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 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 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 review or recall the earlier order dated 4th 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 Park Reality Pvt. Ltd. & Anr. vs. State of Maharashtra & Another 1 and M/s Aakansha Construction Co. vs. State of Maharashtra & Another 2 . 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 Societies (3) Mumbai & Others 3 . Reliance is also placed on the decision of this Court in Magnum Unit 'A' CHS Limited vs. State of Maharashtra 4 . 

# 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.

# 10. He additionally points out that Noble House CHSL, in its reply dated 12 th 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 Government Resolution dated 22nd 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 Societies 5 , New Sonal Industries Premises Limited vs. District Deputy Registrar (2), Cooperative Societies and Others 6 , M/s. Kulshree Builders vs. Shri Shraddha CHSL & Others 7 , and Prestige Garden A-1 CHSL vs. State of Maharashtra & Others 8 .

# 12. Mr. Joshi further submits that the unilateral deemed conveyance deed executed on 12th 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.

# 13. Reliance is placed on the decision of this Court in M/s. S & M Enterprises vs. The Palazzo Building No. 1 CHSL & Others 9 and also in Velentine Properties Private Limited vs. State of Maharashtra and Others 10 to contend that this Court can interfere in a scenario such as the present one and set aside the order of deemed conveyance.

Submissions of Respondent No. 4 / Noble House CHSL

# 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 contrary to the earlier order dated 4th 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 plea of res judicata in paragraph 2 of its reply dated 12th 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 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 Court in Yadaiah & Another vs. State of Telangana & Others 11 .

# 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. SUBMISSIONS OF RESPONDENT NO. 3 / APEKSHA CHSL

# 18. In response, Mr. Saket Mone, learned Counsel appearing for Apeksha CHSL, opposes the Petition and supports the impugned order. At the outset, he  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 Supreme Court in V. Rajeshwari (SMT) vs. T. C. Saravanabava 12 . 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.

# 19. Without prejudice, Mr. Mone submits that the earlier order dated 4 th 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 jurisdiction upon placing complete and correct facts before the Competent Authority. Reliance is placed on the decision of the Supreme Court in Canara Bank vs. N. G. Subbaraya Setty and Another 13 .

# 21. On merits, Mr. Mone submits that the land area granted under the impugned order and the consequent conveyance is fully consistent with the Government Resolution dated 22nd 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 of Madhya Pradesh 14 and Amudhavali vs. P. Rukumani 15 . 

# 23. Reliance is also placed on the decisions in Arunkumar H. Shah HUF vs. Avon Arcade Premises Co-operative Society Ltd. & Others 16 and Shri Chintamani Builders vs. State of Maharashtra & Others 17 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 Registrar of Cooperative Societies and Another 18 , Zainul Abedin Yusufali Massawawala and Others vs. Competent Authority District Deputy Registrar of Co-Operative Housing Societies, Mumbai, and Others 19 , and Mazda Construction Company and Others vs. Sultanabad Darshan CHS Ltd. and Others 20 .

# 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 Works & Timber Mart & Another 21 and New Manoday Co-Operative Housing Society Ltd. vs. Uday Madhavrao Jagtap 22 . 

Analysis Reasons & Findings

# 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 dated 3rd January 2017 was maintainable in light of the earlier order dated 4 th 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.

# 26. The starting point of analysis must necessarily be the earlier order dated 4 th August 2016 passed by the Competent Authority. By that order, the application for deemed conveyance preferred by Apeksha CHSL was 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.

# 27. It is an admitted position that the earlier order dated 4th 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 legally incorrect does not become non-existent. So long as it remains operative, it binds the parties. The remedy available was to challenge the order dated 4th 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 and binds quasi-judicial authorities. This Court in Ujjam Bai v. State of U.P. 23 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 India which relies upon Ujjam Bai. In Abdul Kuddus 24 , 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."

# 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 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 exceptions are attracted. The order dated 4th 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 4th August 2016 and the impugned order. Therefore, Mr. Mone's reliance on this decision is entirely misplaced.

# 32. The crucial question therefore is whether the application dated 3rd 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:

• "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 Sajjadanashin Sayed vs. Dadabhai Ummer25 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 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 the second deemed conveyance application dated 3rd January 2016 was not maintainable in light of the earlier order dated 4th 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.

# 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 order dated 4th August 2016 have not been satisfied inasmuch as, the said civil suit still remains pending.

# 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, by entertaining the second application for deemed conveyance dated 3rd January 2017, despite the subsisting earlier order dated 4 th 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 case of State of Punjab vs. Bua Das Kaushal 26 where the necessary facts were known to the parties and were gone into by the trial court. Hence, the 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 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 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 Resolution dated 22nd June 2018 or alleged discrepancies between the certificate of unilateral deemed conveyance and the registered deed of 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.

# 46. For the reasons recorded above, I am of the view that the order dated 4th August 2016 attained finality and bound not only the parties but also the Competent Authority. Considering that the liberty granted therein permitted 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 conveyance application dated 3rd 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 order dated 31st 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 above, the impugned order dated 31st 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 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.

# 48. Having held that the impugned order dated 31st 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 ought to have challenged the earlier order dated 4th August 2016, if it believed that the same is erroneous rather than filing the second application 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 Apeksha CHSL to challenge the said order dated 4th 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 dated 31st May 2017, Apeksha CHSL deserves to be granted liberty to challenge the said order dated 4th August 2016. There is a statutory right in favour of Apeksha CHSL to apply for deemed conveyance of the land and building. In its earlier order dated 4th 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 the earlier order dated 4th 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:

::ORDER::

a) The impugned order dated 31st May 2017 passed by the Competent Authority / Respondent No. 2 is set aside.

b) Consequently, the Deed of Unilateral Deemed Conveyance dated 12th January 2018 executed between the Competent Authority / Respondent No. 1 and Apeksha CHSL / Respondent No. 3 and registered on 16th 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.

e) Apeksha CHSL / Respondent No. 3 would however be at liberty to challenge the earlier order dated 4th 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 Supreme Court on 18th 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 dated 9th June 2026 shall remain stayed for a period of four weeks from today viz., till 7 th July 2026.

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1 2021 (3) Mh.L.J. 778 

2 Order dated 5th May 2025 passed in Writ Petition No. 19417 of 2024 

3 (2025) 5 SCC 772 

4 Order dated 24th February 2026 passed in Writ Petition No. 11328 of 2023

5 2024 SCC Online Bom 1115 

6 2025 SCC Online Bom 391

7 Order dated 24th April 2024 passed in Writ Petition No. 915 of 2019 

8 Order dated 8th March 2024 passed in Writ Petition No. 7668 of 2023 

9 Order dated 28th July 2025 passed in Writ Petition No. 12297 of 2022 

10 2025 SCC Online Bom 5424

11 (2023)10 SCC 755

12 (2004) 1 SCC 551

13 (2018) 16 SCC 228 

14 (2016) 10 SCC 767 

15 (2022) 17 SCC 534

16 (2025) 7 SCC 249 

17 2016 SCC Online Bom 9343 

18 2025 SCC Online Bom 256 

19 2016 SCC Online Bom 6028 

20 (2013) 2 All MR 278AE

16 (2025) 7 SCC 249 

17 2016 SCC Online Bom 9343 

18 2025 SCC Online Bom 256 

19 2016 SCC Online Bom 6028 

20 (2013) 2 All MR 278 

21 Order dated 18th March 2024 in Writ Petition No. 2578 of 2020 

22 (2024) SCC OnLine Bom 1217

23 1962 SCC Online SC 8 

24 (2019) 6 SCC 604

25 (2000) 3 SCC 350

26 (1970) 3 SCC 656

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