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 14 wp/6300/09 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.
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.
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.
Bombay High Court
Shri Damodar Laxman Navare vs State Of Maharashtra on 8 July, 2010
Bench: P. B. Majmudar, R. M. Savant
Citation;2010(5) MHLJ93
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, 3 wp/6300/09 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 4 wp/6300/09 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 5 wp/6300/09 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.
6 wp/6300/09
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 7 wp/6300/09 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 8 wp/6300/09 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 9 wp/6300/09
(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 10 wp/6300/09
(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:
11 wp/6300/09 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 12 wp/6300/09 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 13 wp/6300/09 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 14 wp/6300/09 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.
15 wp/6300/09
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."
16 wp/6300/09
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 17 wp/6300/09 fit, and in case of breach of conditions, power of withdrawal 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.
18 wp/6300/09
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 19 wp/6300/09 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.
20 wp/6300/09
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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