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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9956 OF 2015
Bhalchandra Haribhau Tingre, Adult, Occupation Profession, R/at: 67B, Harekrishna Park, Dhanori, Pune 411 015
(As per Amended Application)
R/at: Survey No.67/B, Dhanori, Near Harikrishna Park, Tal. Haveli, District Pune 411 015 (Actual Address)
(Opponent No.7(E) as per
As per Amended Application) … Petitioner
Society Limited , Registration No.
PNA/PNA(4)HSG. (TC)7931/06-07, Dated 18/05/2006, Address: Survey No.136(1+2+3)+14
Vadgaonsheri, Pune 411 014
2. Kumar Housing Corporation Ltd., a Company registered under the
Companies Act, 1956, Address: Kumar Capital, Second Floor, 2413, East Street, Camp, Pune 411 001
(As per Amended Application), Offie: 10th
Floor, Kumar Business
Centre (KBC), Bund Garden Road, Pune 411 001 (Actual Address)
(Original Opponent No.1)
Deputy Registrar, Coop. Societies, Pune City, having office at office of
District Deputy Registrar, Cooperative
Societies, Pune City, Sakhar Sankul, Shivajinagar, Pune 411 005 …Respondents
Mr. Anil Anturkar, Senior Advocate i/by Mr. Sugandh B.
Deshmukh for the petitioner.
Mr. Jaydeep Deo for respondent No.1.
Mr. R.S. Pawar, AGP for respondent No.3 – State.
JUDGMENT
1. The petitioner impugns an order dated 11th June 2015 granting deemed conveyance under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management, and Transfer) Act, 1963 (“MOFA”) in respect of 2 acres of land out of Survey No. 14, Vadgaon Sheri, Pune, in favour of respondent No. 1-Society.
2. The material facts germane to adjudication are as follows: On 13th February 1992, the original opponent No. 7, Smt. Krishnabai Haribhau Tingre (“Smt. Krishnabai”), executed registered agreements in respect of the 2-acre parcel of land owned by her in favour of Sukumar Estate Private Limited. The petitioner asserts that on 11th November 1993, Smt. Krishnabai executed a registered Will bequeathing the same 2-acre land to him. Upon her demise on 26th August 1998, the petitioner claims entitlement to the subject property under the Will, thereby contesting the subsequent proceedings initiated by the respondent No. 1.
3. On 15th May 2014, respondent No. 1 instituted Original Application No. 169 of 2014 before the Competent Authority, seeking deemed conveyance under MOFA against Smt. Krishnabai (original opponent No. 7). Notably, on 8th July 2014, the provisions of the Maharashtra Housing (Regulation and Development) Act, 2012 (“MHRD Act”) became applicable to the land in question. Consequently, respondent No. 1 amended its application on 8th October 2014 to align with the procedural framework of the MHRD Act, thereby invoking the statutory mandate for expeditious conveyance.
4. The petitioner, upon being served notice in the deemed conveyance proceedings on 17th November 2014, filed his written statement on 28th April 2015, annexing the Will and death certificate of Smt. Krishnabai. He concurrently moved an application on 9th December 2014 to strike out the names of certain opponents, contending their non-relevance to the proceedings. Despite the petitioner’s insistence on adjudication of his application, the Competent Authority proceeded to pass the impugned order on 11th June 2015, directing conveyance in favour of respondent No. 1. Aggrieved by the alleged nonapplication of mind to his claims, the petitioner has invoked this Court’s writ jurisdiction.
5. Mr. Anturkar, learned Senior Counsel for the petitioner, advances a tripartite challenge: First, he contends that the initiation of proceedings against Smt. Krishnabai posthumously renders the impugned order a nullity ab initio. Second, he argues that the Competent Authority, functioning as a court under Section 11 of MOFA, attracts the rigour of res judicata under Section 11 of the CPC, thereby foreclosing the petitioner’s right to pursue civil remedies. Third, he asserts that the Authority’s summary jurisdiction cannot override substantive title disputes.
6. This Court has meticulously evaluated the submissions against the settled jurisprudence governing deemed conveyance. The legal framework, as crystallized in Mazda Construction Company v. Sultanabad Darshan CHS Ltd. (2012 SCC OnLine Bom
1266) and Zainul Abedin Yusufali Massawawala v. Competent Authority (2016 SCC OnLine Bom 6028), unequivocally delineates the Competent Authority’s mandate: to ascertain whether the promoter’s statutory obligation to execute conveyance under Section 11(1) of MOFA has been breached, not to adjudicate title disputes. The Authority’s inquiry is confined to verifying compliance with Section 4 agreements and the procedural prerequisites under MOFA.
7. The petitioner’s primary challenge rests on the premise that the Competent Authority’s order is a nullity because the proceedings under Section 11 of MOFA were initiated against Smt. Krishnabai (original opponent No. 7) after her demise. This contention invokes the well-settled principle of law that "a decree or order passed against a dead person is a nullity". However, the applicability of this principle is nuanced and requires a contextual examination of procedural compliance and the doctrine of representation of estate.
8. The law mandates that legal proceedings cannot be pursued against a deceased individual unless their legal representatives (LRs) are substituted. This stems from the maxim "actio personalis moritur cum persona" (a personal action dies with the person). However, exceptions exist: Exception 1: If the estate of the deceased is sufficiently represented by LRs brought on record, the proceedings are validated retroactively. Exception 2: Non-substitution of LRs is fatal only if the deceased was the sole representative of the estate, and their absence leaves the estate unrepresented.
9. Respondent No. 1 filed the original application for deemed conveyance on 15th May 2014, impleading Smt. Krishnabai (opponent No. 7) as a party. Smt. Krishnabai had already passed away on 26th August 1998, nearly 16 years prior. Thus, the proceedings were technically initiated against a deceased person, rendering the initial application defective.
10. The petitioner, claiming to be the sole legatee under Smt. Krishnabai’s Will, actively participated in the proceedings after being served notice on 17th November 2014. He filed a written statement (28th April 2015), produced the Will and death certificate, and sought deletion of other opponents, thereby voluntarily representing Smt. Krishnabai’s estate. The Competent Authority permitted the petitioner to contest the case, effectively curing the initial defect of non-impleadment of Lrs. The defect of initiating proceedings against a dead person is procedural, not jurisdictional, and can be remedied if the estate is subsequently represented. Here, the petitioner’s participation as the purported legal heir ensured that Smt. Krishnabai’s estate was adequately represented. Thus, the Competent Authority’s order cannot be termed a nullity.
11. Moreover respondent No. 1’s application under Section 11 of MOFA was filed against multiple opponents, including Smt. Krishnabai (original opponent No. 7) and others. Proceedings against the surviving opponents (e.g., Sukumar Estate Pvt. Ltd., other respondents) remained valid, and the defect concerning Smt. Krishnabai’s impleadment was curable. The Authority’s focus on enforcing the promoter’s statutory obligation (not title adjudication) justifies a more flexible approach to procedural irregularities, provided no prejudice is caused.
12. The petitioner’s argument conflates procedural irregularity with jurisdictional invalidity. While proceedings against a dead person are void ab initio in the absence of representation, this rule is not absolute. Subsequent representation of the estate validates the proceedings retroactively, provided no prejudice is caused. The contention is, therefore, devoid of merit and stands rejected.
13. The petitioner’s reliance on Section 11 of the CPC to assert that the Competent Authority’s order operates as res judicata necessitates scrutiny of Explanation VIII to Section 11, which states: "An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
14. For Explanation VIII to apply, the Competent Authority must qualify as a "Court." While tribunals exercising judicial functions may sometimes be treated as courts (Harinagar Sugar Mills v. Shyam Sundar Jhunjhunwala, AIR 1961 SC 1669), the Competent Authority under MOFA lacks essential attributes of a civil court (e.g., power to summon witnesses, enforce decrees). It functions as a quasi-judicial tribunal confined to enforcing statutory obligations under MOFA, not adjudicating title disputes. Thus, it is not a "Court" for the purposes of Section 11 CPC.
15. The Supreme Court in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. (AIR 1950 SC 188) and Associated Cement Companies Ltd. v. P.N. Sharma (1965) 2 SCR 366 outlined the distinction between courts and tribunals, emphasizing that statutory authorities discharging quasi-judicial functions sans trappings of a court (e.g., power to enforce attendance, levy fines) are not “courts” for CPC purposes. The Competent Authority, being a creature of MOFA with limited jurisdiction, lacks the plenary powers of a civil court. Thus, the rigour of res judicata under Section 11 CPC is inapplicable.
16. Even assuming arguendo that the Authority is a "Court of limited jurisdiction," Explanation VIII applies only if the specific issue was within its competence. The Authority’s mandate under Section 11 of MOFA is narrow: to determine whether the promoter defaulted in executing conveyance and whether flat purchasers fulfilled contractual obligations. It cannot adjudicate title disputes or testamentary claims. Since the "issue" of title was neither raised nor decided in the deemed conveyance proceedings, Explanation VIII does not bar a civil suit.
17. The Supreme Court in Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 clarified that findings by tribunals of limited jurisdiction (e.g., land tribunals deciding tenancy rights) do not operate as res judicata in title suits. Thus, Explanation VIII, even if applicable, would not aid the petitioner.
18. The Competent Authority is neither a "Court" nor competent to decide title disputes. Explanation VIII, therefore, has no applicability to the facts. The petitioner’s civil remedy to establish testamentary title remains unaffected by the deemed conveyance order.
19. In light of the foregoing, the Competent Authority neither overstepped its jurisdiction nor rendered a nullity. The statutory mandate under MOFA prioritizes the collective rights of flat purchasers over individual title claims. The petitioner’s grievances, being rooted in title disputes, must be ventilated in the appropriate civil forum.
20. For the reasons delineated above, the writ petition is dismissed. The impugned order dated 11th June 2015 is upheld. No order as to costs.
21. Liberty is reserved to the petitioner to pursue civil remedies for establishing title, if so advised.
22. Pending interlocutory applications, if any, stand disposed of. (AMIT BORKAR, J.)