Mumbai: The Bombay high court quashed and set aside an order that had granted deemed conveyance to a housing society in Andheri West, observing that the competent authority under Maharashtra Ownership of Flats Act had no power to entertain a second application on an issue that had attained finality.Justice Farhan Dubash on Tuesday said the deputy registrar of cooperative societies effectively exercised a power of review which is neither recognised under Maharashtra Ownership of Flats Act (MOFA) nor conferred upon it. “The second application was not only premature but was barred by principles analogous to res judicata and doctrine of finality of proceedings,” he added.Justice Dubash quashed the May 2017 order, cancelled the deemed conveyance deed and directed the authorities “to take necessary steps to give effect to such cancellation.”The petition was filed by B K Corporation, the promoter and developer of a layout comprising four buildings. In Jan 2016, Apeksha CHSL applied for deemed conveyance. In Aug 2016, the competent authority rejected it holding that it was premature in view of a pending civil suit filed by Noble House CHSL concerning the same layout. It granted Apeksha liberty to file a fresh application after an order in the suit. In Jan 2017, Apeksha filed a second application and the competent authority, in May 2017, granted deemed conveyance.The promoter’s advocate Shishir Joshi said Apeksha’s second application was barred by res judicata (principle that prevents parties from re-litigating on an issue decided by court). Justice Dubash said comparison of both applications showed the parties and the subject matter were identical. Even the fact of the pendency of the civil suit remained unchanged. The Aug 2016 order was never challenged and “had attained finality.”Referring to Supreme Court decisions, the judge said a quasi-judicial authority does not possess inherent power of review unless the statute confers it. The competent authority “lacked statutory power to review or reopen its earlier order and therefore acted without jurisdiction.”Apeksha’s advocate Saket Mone said it is well-settled that pendency of civil suit does not bar considering an application for deemed conveyance. Justice Dubash said the present case stood “on a materially different footing.” The question was whether the competent authority “having earlier chosen to defer adjudication till the suit was decided, could subsequently ignore its own binding determination.” Allowing the petition, he granted Apeksha liberty to challenge the Aug 2016 rejection.
