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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN ITS CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6300 OF 2009
1. Shri Damodar Laxman Navare
2. Shri Yeshwant Laxman Navare
3. Shri Raghunath Laxman Navare
4. Shri Govind Laxman Navare
5. Shri Moreshwar Laxman Navare
All adults, Indian Inhabitant,
residing at Navare Bungalow,
(East) Thane
Shiv Mandir Road, Ambernath
..Petitioners
Versus
1. State of Maharashtra
Through Urban Development
Department, Mantralaya,
Mumbai, copy served through
Government Pleader, High Court
Appellate Side, Bombay
2. The Deputy Collector and
Competent Authority (ULC)
Ulhasnagar Urban Agglomeration
having his office at 4th floor,
Collectorate, Thane
3. The Chief Executive Officer,
Ambernath Municipal Council
having its office at Ambernath
Thane
4. Town Planner Ambernath
Municipal Council, having its
office at Ambernath, Thane
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5. Sub-Registrar of Assurances at
Kalyan and Ulhasnagar having
its office at Nagar Palika Office,
Tehsil Karyalaya, Gandhi Road,
Ulhasnagar - 5 and at
Opp. Shiv Temple, Ambernath (East) ..Respondents.
Shri Y.S.Jahagirdar Sr. Counsel a/w Shri A.A.Joshi with Shri Sateyen Vora, Smt
Tanvi Gandhi with Shri Prashant Ghelani and Ms. Pratiti Naphade i/b M/s.
Markand Gandhi & Co. for the Petitioners
Shri N.V.Walawalkar Sr. Counsel with Shri S.N.Patil AGP with Shri Devidas
Keluskar AGP for Respondent State
Shri Virendra Pethe i/b Shri B.D.Joshi for Respondent Nos.3 & 4
Coram: P.B.MAJMUDAR AND
R.M. SAVANT, JJ.
8th July, 2010
ORAL JUDGMENT (Per Shri R.M.Savant J.)
1. Rule, made returnable forthwith by the consent of the parties and
heard.
2. The Petitioners who claim to be the owners of certain lands in
Thane District, by way of this Petition filed under Article 226 of the Constitution
of India, principally challenge the letters dated 11-2-2009 and 18-6-2009 Exhibit
L and M respectively. By letter dated 11-2-2009, the authorities mentioned
therein i.e. the Municipal Council, Kalyan and Dombivali Municipal Corporation,
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the Sub-Registrar, Kalyan and the Chief Officer of the Ambernath Nagar Palika,
were directed not to sanction the plans and to register the documents presented
for registration by the Petitioners in respect of the flats constructed on the land
owned by the Petitioners. By letter dated 18-6-2009, the Petitioners were
informed that they would have to pay an amount of Rs.56,97,263/- as penalty for
extension of time that will be granted for completing the scheme sanctioned
under Section 20.
3.
Shorn of unnecessary details, the facts necessary to be cited for
adjudication of the above Petition can be stated thus:
4. The Petitioners herein claim to be the owners of land bearing Survey
No.26/4. 36/15, 36/17, 36/19, 37, 39/2 and 178 of Village Khol Khutiwali,
District Thane ad-measuring about 85945 sq.mtrs. The said land was declared as
surplus by a virtue of order passed under Section 8(4) of the ULCR ACT 1976
(for brevity’s sake referred to as the said Act,) by the Additional Collector and
Competent Authority, by order dated 19-4-1982. It appears that the Petitioners
pursuant to the said 8(4) order applied for exemption under Section 20(1) of the
said Act.
5. By an order dated 19-6-1990, the State Government granted exemption to
the extent of land ad-measuring 5298.86 sq.mtrs. which exemption initially was
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for a period of 8 years. It appears that the Petitioner thereafter sought
development permission from Kalyan Dombivali Municipal Council as it was then
known which granted the Intimation of Disapproval (IOD) on 15-4-1995 and
Commencement Certificate dated 18-4-1995 for construction of the buildings. The
Petitioners thereafter obtained NA permission for non agricultural use of the land.
In terms of the development permission, the Petitioners commenced construction
and till the filing of the present Petition, had constructed three buildings
consisting of 42 flats and 18 shops which were sold to third parties. Thereafter,
certain facts have intervened which in our view are not germane for a decision in
the above matter. However on 25-11-2005, the said exemption order dated
19-6-1990 was cancelled by the Additional Collector and Competent Authority, on
account of the non compliance of the said order within the stipulated time. On
such cancellation, the Petitioners filed an Appeal under Section 34 of the said Act,
which Appeal came to be numbered as Appeal No.364 of 2005 before the
Additional Commissioner, Konkan Division. The said Appeal was allowed by the
Additional Commissioner by his order dated 24-4-2006 and the matter as regards
the cancellation came to be remanded back to the Additional Collector and
Competent Authority. On such remand, the Additional Collector and Competent
Authority, by his order dated 14-11-2006 recommended to the Respondent No.1
the extension of time to implement the scheme. Accordingly, by letter dated
15-11-2006, the Additional Collector and Competent Authority forwarded a
report to the State Government i.e. Respondent No.1 recommending the
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extension. Whilst the said process was in motion, a Notification came to be issued
under Section 10(1) of the said Act on 17-11-2007 followed by the Notification
under Section 10(3) dated 19-11-2007 in respect of the lands in question. In so
far as the acquisition was concerned, the matter has rested there. Thereafter on
27-11-2007, the Petitioners were informed by letter dated 16-11-2007 of the
Respondent No.1 that the recommendation of the Respondent No.2 has been
accepted. By the said letter, it was further informed that the Respondent No.1 i.e.
State Government is proposed to levy fine for grant of extension for completion of
the scheme. The said letter disclosed that the extension was to be granted only on
payment of the penalty levied. Thereafter a defining event in the form of the said
Act, being repealed in so far as the State of Maharashtra is concerned, came into
operation on 29-11-2007. The Petitioners had thereafter filed a Writ Petition
being Writ Petition No.9266 of 2007 challenging the Notification under Section
10(1) and 10(3) of the said Act, which Writ Petition came to be allowed by a
Division Bench of this Court by judgment and order dated 11-6-2008 and the said
Notifications came to be quashed and set aside, on the ground that the Repeal Act
having come into force the proceedings have abated. However in so far as the
issue regarding the scheme under Section 20 was concerned, the matter was left
open by the Division Bench for the Petitioners to agitate the same in appropriate
proceedings. This is how the Petitioners have filed the instant Petition.
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6. The above Petition has been appearing for admission from time to
time. By order dated 30-7-2009, the Petitioners were granted ad-interim relief in
terms of prayer clause (d) and (e) subject to the Petitioners depositing the
amount mentioned in Exhibit M i.e. the amount of Rs.56,97,263/-. The Petitioners
have accordingly deposited the said amount which we are now informed is lying
in deposit in this Court.
6. As indicated above, the challenge in the present Petition is to the
two letters Exhibit L and M to the Petition. In so far as letter dated 11-2-2009,
Exhibit L to the Petition is concerned, by the said letter a directive has been issued
to the two planning authorities within whose jurisdiction the lands in question fall
the directive is to the effect that the plans submitted by the Petitioners should not
be approved unless so intimated by the Respondent No.1.
The directive to the sub-Registrar is to the effect that his office should not
register any document presented by the Petitioners for registration unless so
intimated by the Respondent No.1. In our view considering the provisions of the
said Act we do not see any such power being vested in the authorities in the said
Act. The issue as to whether such directives could be issued to the Sub-Registrar
by the authorities in exercise of powers under the said Act had also come up for
consideration before a Division Bench of this Court in Writ Petition No.1955 of
2007 and companion Petitions in the matter of Sundarsons & ors. Vs. State of
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Maharashtra & Ors., the Division Bench by Judgment and Order dated 26-6-2008
reported in 2008(6) MLJ page 332 has held that the Collector is not empowered
to give directions to the authorities to the extent issued as the Collector has no
Appellate Supervisory or Revisional powers over the Registering officer under the
Act. From the point of view of the present controversy the relevant paragraphs of
the said Judgment is paragraph 23, 26 and 28 which are reproduced hereunder:
“23. Part VI of the Registration Act deals with the provisions
of documents dealing with the proceeding relating to the
presentation of documents for documentation. Section 32 lays
down the persons who can present the documents for
registration, section 32A states that a photograph of both the
executing parties has to be fixed. Section 33 lays down that
the Power of Attorney can be given by any person, who
intends to present the document for registration and the
relevant provision for the purpose of deciding the issue in
question are sections 34 and 35. Section 34 empower the
Registering Authority to make an enquiry with the
registration and section 35 lays down in the circumstances
under which registration can be denied. Section 34 and 35
reads as under:-
“34. Enquiry before registration by registering officer – (1)
Subject to the provisions contained in this Part and in sections
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41, 43, 45, 69, 75, 77, 88 and 89, no document shall be
registered under this Act, unless the persons executing such
document, or their representatives, assigns or agents
authorised as aforesaid, appear before the registering officer
within the time allowed for presentation under Section 23, 24,
25 and 26.
Provided that, if owing to urgent necessity or unavoidable
accident all such persons do not so appear, the Registrar, in
cases where the delay in appearing does not exceed four
months, may direct that on payment of fine not exceeding ten
times the amount of the proper registration fee, in addition to
the fine, if any, payable under section 25, the document may
be registered.
(2) Appearance under sub-section (1) may be
simultaneous or at different times.
(3) The registering officer shall thereupon-
(a) enquire whether or not such document was
executed by the persons by whom it purports to have been
executed.
(b) satisfy himself as to the identify of the persons
appearing before him and alleging that they have executed the
document; and
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(c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the right of
such person so to appear.
(4) Any application for a direction under the proviso to
sub-section (1) may be lodged with a Sub-Registrar, who shall
forthwith forward it to the Registrar to whom he is
subordinate.
(5) Nothing in this section applies to copies of decrees
or orders.
35. Procedure on admission and denial of execution
respectively-
(1)(a) If all the persons executing the document appear
personally before the registering officer and are personally
known to him, or if he be otherwise satisfied that they are
persons they represent themselves to be, and if the all admit
the execution of the document, or
(b)if in the case of any person appearing by a
representative, assign or agent, such representative, assign or
agent admits the execution, or
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(c) if the person executing the document is dead and
his representative or assign appears before the registering
officer and admits the execution, the registering officer shall
register the document as directed in sections 58 to 61,
inclusive.
(2) The registering officer may, in order to satisfy
himself that the persons appearing before him are the persons
they represent themselves to be, or for any other purpose
contemplated by this Act, examine any one present in his
office.
(3) (a) if any person by whom the document purports
to be executed denied its execution or
(b) if any such person appears to the registering officer
to be a minor, an idiot or a lunatic, or
(c) if the person by whom the document purports to be
executed is dead, and his representative or assign denies its
execution, the registering officer shall refuse to register the
document as to the person so denying, appearing or dead :
Provided that, where such officer is a Registrar, he shall
follow the procedure prescribed in part XII:
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43 (provided further that the 44(State Government)
may, by notification in the 45(official Gazette), declare that
any Sub-Registrar named in the notification shall, in respect of
documents the execution of which is denied, be deemed to be
a Registrar for the purposes of this sub-section and of Part
XII.)
From the perusal of section 34 and section 35 it is
apparent that no power has been given to the Collector to give
directions to the Sub-Registrar to refuse registration of the
document. The provisions regarding registration of the
document are enumerated in the Registration Act, 1908. It is a
settled position in law that executive instructions which are
given by the State by exercising its powers under Article 162
of the Constitution of India cannot circumvent a statutory
provision. It has, therefore, now to be seen under which
provisions the said letter/circular dated 19th May 2007 has
been issued by the Collector. The said letter/circular has been
issued by the Collector and is in a cyclostyled form. It
enumerates the various classes of lands belonging to the
Government. If further states that these lands have been
granted to different institutions and individuals on various
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terms and conditions. It further states that these lands cannot
be transferred without Government permission. It further
mentions that these lands are being transferred without
obtaining the Government Permission and as a result of such
unathorised transfer, Government is losing revenue amount in
crores of rupees and thereafter the following direction has
been given:
“Therefore, in future such transfers could not take place
without permission, nor any entry made into Government
records.”
Perusal of the said circular clearly discloses that the
letter does not disclose the source of the power under which it
has been issued. It also does not state either the power which
is vested in the Collector to issue the said letter to the Sub-
Registrar either under the provisions of the Maharashtra Land
Revenue Code or under the Registration Act, 1908, or the
rules framed thereunder. The learned Government Pleader
had strenuously urged before us that these lands are
Government lands under the provisions of the Maharashtra
Land Revenue Code that the Government had power to take
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action against the allottees for breach of terms and conditions
of the allotment order, he invited our attention to various
provisions of the Land Revenue Code. However, it is an
admitted position that none of these provisions empowered
the Collector to issue directions to the Sub-Registrar who is
the Statutory Authority under the Registration Act, 1908 to
desist from registration of a document on account of breach of
any terms and conditions in allotment of land by the
Government to the allottees. The said submission made by
Shri Belose, the learned Government Pleader appearing on
behalf of the State, therefore, cannot be accepted.”
26 The Counsel appearing on behalf of the petitioners has
relied on the judgment of the Madras High Court in the case
of Pandurangan Vs. Sub-Registrar, Reddiarpalayam
Pondicherry and ors. Reported in AIR 2007 Madras page 159.
The learned Single Judge of the Madras High Court has in
paragraph Nos.17 and 18 of its Judgment has observed that :
17. A conjoint reading of sections 34 and 35 of the Act
shows that the scope of the enquiry to be made by the
Registering Officer is limited by the Act, to the factum of
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execution and the identity of the person executing the
document, other than the levy of stamp duty, collection of
registration charges and the completion of procedural
formalities such as attestation etc.
18. When the power of Registering Officer himself is so
circumscribed by the provisions of the Act. It is not open to the
third respondent to issue an instruction to respondents 1 and
2 to withhold the registration of any transaction, as he has no
Appellate, Supervisory or Revisional powers over the
Registering Officer, under the Act.”
We are in respectful agreement with the observations
made by the learned Single Judge of the Madras High Court.
In the present case also, it was not open or the Collector to
issue instructions to the respondent No.3 to withhold
registration of the documents as he has no Appellate,
Supervisory or Revisional powers over the Registering Officer
under the Act.
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28.For the aforesaid reasons, in our view the letter issued by
the Collector dated 19th May 2007 is clearly illegal and
without authority of law.
It is however, made clear that it is specifically clarified
that it would be open for the State Government to take such
steps, if any breach has been committed by the petitioner or
by its Predecessor-in-title in respect of the land allotted to the
Petitioners or its Predecessor-in-title by following due
procedure of law.
Further it is expressly made clear that we have not
decided the question as to whether the petitioners are the
owners of the land as claimed by them or the contentions of
the Government that the petitioners and its Predecessor-in-
title were having B-1 tenure. These questions are kept open
and the Petitioners are liberty to take our appropriate
proceeding for seeking a declaration that the petitioners are
the owners of the land.
The Writ Petitions accordingly are allowed and
respondent No.3 is directed to register the documents which
are presented to him as per the provisions of the Registration
Act in accordance with law. Under these circumstances there
shall be no order as to costs.”
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7. The said legal position has been reiterated by another Division
bench of this Court in the Judgment reported in 2009(1) Bom CR page 275. In so
far as the said Judgment (Supra) is concerned the directions in the said case were
issued to the Planning Authorities under the MRTP Act 1966. The Division bench
in the said case held that there is no absolute power vested in the State
Government under Section 20 or 21 or any other provisions of the ULC Act to
nullify or cancel the order passed or building permit issued by the Planning
Authority under the MRTP Act. The relevant paragraph of the said Judgment is
paragraph 58 which is reproduced hereunder:
“58. Sub-Clause (a) of Clause (2) of the Government
Resolution dt. 8.11.2007 stipulates that where permission
was granted by the Planning Authority for construction of
multistories building in the Special Plot Scheme and the
construction activity has not been commenced prior to
12.4.2007, all such permissions/sanctions given by the
Planning Authority stand cancelled and it is binding on the
scheme holder to implement the Scheme in its original
nature. We once again reiterate that, the State Government
was empowered, under Sections 20 and 21 of the U.L.C. Act,
to formulate the Schemes and impose conditions as it deems
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of Exemption Certificate was also vested in the State
Government. However, there is absolute no power vested in
the State Government either under Sections 20 and 21 or any
other provisions of the U.L.C. Act to nullify or cancel the
order passed or building permit issued by the Planning
Authority under the MRTP Act. Breach of condition by the
land holder or holder of the scheme did not clothe the State
Government with the jurisdiction to cancel or revoke the
order of the Planning authority, though the State
Government could withdraw the exemption granted under
section 20 or take such action against the scheme holder as
provided under Section 21 of the U.L.C. Act.”
(emphasis supplied)
8. Hence in the light of the legal position as enunciated by the
Judgments (Supra), we have no hesitation to hold that the directives of the nature
contained in Exhibit L could not have been issued and, therefore, the same are
illegal and ultra vires the powers of the authorities under the said Act. The said
communication Exhibit L dated 11-2-2009 is, therefore, required to be quashed
and set aside and is accordingly quashed and set aside.
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9. In so far as the second challenge of the Petitioners is concerned i.e.
letter dated 18-6-2009 Exhibit M to the Petition, by the said letter the Petitioners
have been called upon to deposit an amount of Rs.56,97,263/- which the
Petitioners have now deposited without prejudice to their rights and contentions
in the above Petition. The said letter also in a way threatens the Petitioners that in
the event, the said amount is not deposited by the Petitioners, the follow up
action will be taken by the authorities including the launching of criminal
prosecution against the Petitioners. It would be worth while to note that the letter
itself is a sequitur to the letter dated 16-11-2007, by which a decision was taken
by the State Government to grant extension of time to the Petitioners to complete
the scheme on condition of penalty that would be levied by the State Government.
By the impugned communication Exhibit M, the Petitioners have been informed of
the amount of penalty that they would have to pay. Therefore, the Petitioners
have in a way challenged the consequential order without challenging the main
order dated 16-11-2007, it would also be pertinent to note that all the orders upto
the order dated 16-11-2007 have been passed when the said Act was very much
in force. Though it is the case of the Petitioners that since they have not complied
with the order granting them extension on the condition of payment of penalty
and, therefore, there is no exemption order in existence today and, the Petitioners
are, therefore, not bound to develop the said property in terms of the exemption
order, in our view, in the facts and circumstances of the present case, it is not
necessary for us to go into the said issue at this stage. As indicated earlier, the
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Petitioners have been informed that unless they pay the amount of penalty
extension would not be granted and if penalty is not paid, the same may be
recovered as arrears of land revenue as well as the Petitioner are threatened with
criminal prosecution. The Petitioners have approached this Court against the said
Exhibit M, in the context of the said Act being repealed. It is the case of the
Petitioners that the Repeal Act would have far reaching consequences for them in
as much as on account of the repeal the scheme cannot be said to be in existence.
10.
Per contra, it is the case of the Respondents that the order dated
17-11-2007 having being passed prior to the Act being repealed and when the Act
was in force is saved by sub Section 3(1)(b) of the Repeal Act as indicated above,
we need not go into the said aspect as in our view it would be necessary for the
State Government to have a fresh look at the matter considering the aforesaid
conspectus of facts. We, therefore, set aside the impugned communication Exhibit
M and direct the State Government to take a fresh decision in the matter in the
light of the Repeal Act 1999 and in the light of the conspectus of facts as narrated
above. Since we have directed the State Government to take a fresh decision, we
have not delved into the merits of the rival contentions and leave it to the parties
to agitate the same before the appropriate forum in appropriate proceedings.
Considering the fact that the scheme is being implemented since the year 1990, it
would be in the interest of the parties if the State Government takes a decision
expeditiously and not later than two months from date.
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11. In so far as the amount of Rs.56,97,263/- deposited by the
Petitioners in this Court, is concerned the Petitioners are permitted to withdraw
the said amount for which, the Learned Senior Counsel appearing for the
Respondents has no objection. The permission to withdraw the amount is not an
expression of any opinion as regards the merits of the case of either of the parties
and the State Government would be free to decide the case on its own merits and
in accordance with law. The State Government, in the light of the consequences
that its decision would have is directed to hear the Petitioners before arriving at
any decision.
12. Rule is accordingly made absolute to the aforesaid extent with
parties to bear its own costs.
(R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)
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