/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1955 OF 2007 1. M/s. Sundarsons ) a Partnership Firm registered under ) the Indian Partnership Act,1932 ) having its office at 71/C, Sunder, ) N.G. Acharya Marg, Chembur, ) Mumbai – 400 071 ) 2.K.Sundaram ) 3. Prakash Sundaram ) 4.Kumar Sundaram ) 5.Shekhar Sundaram ) All Adult Indian Inhabitants ) Residing at Plot no.50, (Prabhat) ) Station Avenue Road, ) Mumbai – 400 071 ) 6.Tilakwadi Co-operative Housing ) Society Ltd., A society registered ) under the provisions of Maharashtra) Co-operative Societies Act, ) Having its office at Plot No.165,167 ) S.S.III, 4 Cross Road, Opp.Gandhi ) Maidan, Chembur, Mumbai-400 071 )...Petitioners Versus 1. State of Maharashtra ) Mantralaya, Mumbai ) 2. Collector (MSD) ) having his office at Administrative ) Bldg.,10th Floor, Govt. Colony ) Bandra (East), Mumbai – 400 051 ) / 2 / 3. Sub-Registrar (Kurla) ) Mumbai Sub-District ) Office at the Sub-Registrar ) Rationing Office Compound ) R.C.Marg,Chembur,Mumbai-400 071)...Respondents WITH WRIT PETITION NO.1523 OF 2007 1. Purnima Chakraborty ) residing at Plot No.285/B, situated ) on 5th Road, Chembur, ) Mumbai – 400 071 ) 2.Shri Krishna Developers ) a Partnership Firm, having its office ) at Plot No.149, Piri Majestic ) Sindhi Society, Chembur, ) Mumbai – 400 071 )..Petitioners Versus 1. State of Maharashtra ) Mantralaya, Mumbai through ) Government Pleader (O.S.) ) High Court, Mumbai ) 2. The Collector (M.S.D.) ) having office at Administrative ) Building, 10th Floor, Government ) Colony, Bandra (East), ) Mumbai – 400 051 ) 3. The Municipal Corporation ) of Greater Mumbai ) having their office at Mahapalika ) Building, Mahapalika Marg, Fort ) Mumbai – 400 001 ) / 3 / 4. The Assistant Engineer, ) (Building Proposals) (Eastern ) Suburbs, having his office at ) Office of the Deputy Chief ) Engineer (B.P.) E.S., ) Municipal Transport Garage ) Building, 4th Floor, Pant Nagar ) Ghatkopar (East), Mumbai-400 075 ) 5. The Additional Collector And ) Competent Authority ) appointed under the provisions ) of Urban (Land & Ceiling) ) Regulation Act, 1976, having its ) office at Administrative Building, ) 5th Floor, Govt. Colony, Bandra (E), ) Mumbai – 400 051 ) 6. S.N. Dutone ) Sub- Registrar Kurla ) having his office at R.C. Marg ) Next to Rationing Office ) New Administration Bldg., 2nd Floor ) Chembur, Mumbai – 400 071 )..Respondents WITH WRIT PETITION NO.2120 OF 2007 1. New Jai Jalaram Co-operative ) Housing Society Ltd. ) a Society Registered under the ) provisions of Maharashtra Co-op. ) Housing Society Act and having its ) registered office at Plot No.57 & 59 ) Vrandavan, R.B. Mehta Road, ) Ghatkopar (East), Mumbai-400 077 ) / 4 / 2. M/s.Shreenath Constructions ) a Registered Partnership Firm ) Having their office at 3rd Floor, ) Gurudutt Co-operative Housing ) Society Ltd., having their office at ) R.B. Mehta Marg, Ghatkopar (East), ) Mumbai – 400 077 )...Petitioners Versus 1. State of Maharashtra ) Mantralaya, Mumbai through Land ) Revenue Department, Mantralaya ) 2. The Collector (M.S.D.) ) having office at Administrative ) Building, 10th Floor, Government ) Colony, Bandra (East), ) Mumbai – 400 051 ) 3. S.N. Dutone ) Sub-Registrar Kurla, ) having his office at R.C.Marg ) Next to Rationing Office, ) New Administrative Building, ) 2nd Floor,Chembur,Mumbai-400 071)..Respondents WITH WRIT PETITION NO.2121 OF 2007 1. Vipul Kantilal Parekh ) Indian Inhabitant, residing ) at 8, Bhaveshwar Kutir ) Rajawadi Road No.4, Ghatkopar ) (East), Mumbai – 400 077 ) 2. Girish Kantilal Parekh ) Indian Inhabitant residing at ) 8, Bhaveshwar Kutir ) / 5 / Rajawadi Road No.4, Ghatkopar ) (East), Mumbai – 400 077 ) 3. Hari Krushna Enterprises ) a partnership firm registered under ) the Indian Partnership Act, having ) its office at 8, Bhaveshwar Kutir ) Rajawadi Road No.4, Ghatkopar ) (East), Mumbai – 400 077 )..Petitioners Versus 1. State of Maharshtra through Land ) Revenue Department Mantralaya ) Mumbai ) 2. The Collector (M.S.D.) ) having office at Administrative ) Building, 10th Floor, Government ) Colony, Bandra (East), ) Mumbai – 400 051 ) 3. S.N.Dutonde ) Sub-Registrar Kurla, ) having his office at R.C.Marg, ) Next to Rationing Office ) New Administrative Bldg., 2nd Floor ) Chembur, Mumbai – 400 071 )...Respondents WITH WRIT PETITON NO.1569 OF 2007 1. Aruna Pravin Sethna ) Indian Inhabitant, residing at ) 12, Manekabad, 585, Setalvad ) Road, Mumbai – 400 026 ) 2. Shree Krishna Corporation ) a Partnership Firm, having its office) / 6 / at Plot No.149, Piri Majestic ) Sindhi Society, Chembur ) Mumbai – 400 071 )..Petitioners Versus 1. State of Maharashtra ) Mantralaya, Mumbai ) 2. The Collector (M.S.D.) ) having office at Administrative ) Building, 10th Floor, ) Government Colony, Bandra ) (East), Mumbai – 400 051 ) 3. S.N. Dutonde ) Sub-Registrar Kurla, ) having his office at R.C. Marg, ) Next to Rationing Office, ) New Administrative Bldg., ) 2nd Floor, Chembur, ) Mumbai – 400 071 )...Respondents WITH WRIT PETITION NO.2562 OF 2007 1. Nitin K. Gandhi ) 2. Smt. Daxa Nitin Gandhi ) Both residing at Utsav, Plot no.520, ) 12th Road, Chembur, Mumbai -71 )...Petitioners Versus 1. The State of Maharashtra ) Department of Revenue and Forests ) Mantralaya, Mumbai – 400 032 ) / 7 / 2. Collector, M.S.D. ) having his office at New ) Administrative Building, Opposite ) Chetana College, 10th Floor, ) Bandra (East), Mumbai- 400 051 ) 3. Sub Registrar of Assurances Kurla ) Mumbai Suburban District ) having its office at Administrative ) Building, Near Fine Arts Hall, ) Chembur, Mumbai – 400 071 )..Respondents ----- Mr.T.N. Subramanian a/w. Mr. Paritosh Jaiswal i/b Purnanand & Co. for Petitioner Mr.K.R. Belosey – A Panel Counsel for State Sanjay Kotak with Snehal Shah with Manish Parekh & Brijesh Upadhyay i/b Purnanad & Co. for Petitioner in W.P. Nos.1503/07, 2121/07, 1559/07 & 2120/07 ----- CORAM: SWATANTER KUMAR, C.J. & V.M. KANADE J. Judgment reserved on : April 23rd, 2008 Judgment pronounced on: June 26th 2008 JUDGMENT: (Per V.M. Kanade J.) All these petitions can be disposed off by a common judgment, since, the Petitioners are challenging the circular dated 19th May, 2007 issued by the Collector, Mumbai – Respondent No.2. By this petition, which is filed under Article 226 of the Constitution of India, the Petitioners are seeking an appropriate writ, order and direction for quashing the impugned circular dated 19th May, / 8 / 2007 issued by Respondent No.2 and consequential order passed pursuant to the said circular by Respondent No.3 , Mumbai Sub-District and for a further direction, directing the Respondent No.3 to register their agreement brought for registration by them, by complying with the provisions of the Registration Act, 1996. Brief facts in nutshell are as under: 1. For the sake of convenience the facts in respect of Writ Petition No.1569 of 2007 are mentioned herein. The Petitioner No.1 is a partnership firm and the Petitioner Nos.2 to 5 are the partners of the Petitioner No.1. Petitioner No.6 is a Co-operative Society, registered under the Co-operative Societies Act. Petitioner No.6 is the owner of plot No.165, 166 and 167 along with the three buildings standing thereon, on property bearing CTS No.1043, 1043/1, 1043/11 SS III, 4th Cross Road, Opposite Gandhi Maidan, Chembur, Mumbai – 400 071. 2. The Petitioner No.1 entered into a development agreement dated 19th August, 2005 with Petitioner No.6, whereby the development rights were granted in favour of the Petitioner No.1. Pursuant to the development agreement, a General Power of Attorney was issued by the / 9 / Petitioner No.6 Society in favour of Petitioner No.5 and Petitioner No.3. 3. Thereafter, the State Government issued a directive dated 31st October,2001, directing the Municipal Corporation not to issue development permission with production of an NOC from the Collector / Government. 4. The Respondent No.2, the Collector issued a circular / letter dated 19th May,2007 by which he has directed the Registering Authority to insist upon an NOC from the Collector before registration of any document. Relying on the said circular dated 19th May, 2007, the Sub- Registrar, Kurla Respondent No.3 herein has refused to register the agreement dated 4th July, 2007. 5. Thereafter for the purpose of development of plot, the Petitioners' Architect approached the Assistant Engineer (Building Proposal) (Eastern Suburbs) of the Municipal Corporation. The Assistant Engineer directed the Petitioners' Architect by order dated 13th September,2005 to obtain an NOC from the Collector without which the / 10 / development permission would not be considered. 6. Being aggrieved by the impugned order, the Petitioners filed a petition in this Court vide Writ Petition No.2611 of 2005. The Hon'ble Division Bench by its order dated 24th October, 2005 had passed the following order: “Pending the hearing and final disposal of the Petition: i) The Petitioners are directed to deposit a sum of Rs.50,000/- with Respondent No.2 viz. The Collector (M.S.D.), Mumbai towards the Provisional occupancy without prejudice to the rights and contentions of the Petitioners raised in the Writ Petition. Said payment of Rs.50,000/- towards the provisional occupancy is directed to be deposited within two weeks from today; (ii) The Petitioners are directed to file an / 11 / undertaking before this Court within two weeks from today that in the event the Petitioners further apply to raise the construction on the said building so constructed on the said land in question, such construction shall be raised in accordance with plan that may be sanctioned by Respondent No.3 viz. the Municipal Corporation of Greater Bombay and rent under which the Petitioners occupy the land in question; iii) Upon production of the receipt of deposit on Rs.50,000/- with Respondent No.2 viz. the Collector (M.S.D.), Mumbai and a copy of a undertaking filed by the Petitioners before this Court, before Respondent No.3 viz. the Municipal Corporation of Greater Bombay, Respondent No.3 shall be free to consider the application of the Petitioners for completion / occupation certificate or for sanction of the plan on the property in question. / 12 / Respondent No.3 while considering the application of the Petitioners for sanction of the plan and upto the stage of Occupation Certificate shall upto ignore the Government Circular dated October 31, 2001 and shall consider the application so made by the Petitioners in accordance with various provisions of law and the terms and conditions of the grant; iv) In the undertaking the Petitioners shall also state that they shall abide by the final decision to be take by the Government concerning the payment towards the occupancy rights and any other decision relating to alleged dues subject to the Petitioners' right to challenge the decision of the Government and in that event to abide by the decision of the Court in that regard.” 7. Pursuant to the said order, the Petitioners were granted development agreement. / 13 / 8. Thereafter, the said writ petition was finally disposed off by the judgment and order dated 5th October, 2006 by holding that the order passed by the Government dated 31st October, 2001 directing the Municipal Corporation not to issue development permission without production of an NOC from the Government Collector or without authority of law and the order dated 13th September, 2005, which was passed on the basis of the said Government directives dated 31st October, 2001 was set aside. In the said order in paragraph 6, the following directions were given by the Division Bench:- (i) the letter / Circular dated 31st October, 2001 to the extent that it directs the occupants of land taken from the Government to produce a NOC from the Collector is without the authority of law. (ii) However, considering the object behind issuing the Letter / Circular of 31st October, 2001 we direct the Respondent No.2 on an application being received in respect of the lands which are received from the / 14 / Government under the provisions of the Land Revenue Code or other enactments to intimate the details of the same to Respondent No.1 within four weeks of receipts of such Application. On receipt of such application it will be open to Respondent No.1 to take such steps in law which they are entitled to. (iii) The order dated 15th March, 1999 issued under section 154 of MRTP Act is illegal, null and void. (iv) The Respondent No.1 before taking any steps shall issue notice to the occupants and / or a transferee from the occupants and after giving an opportunity, to pass appropriate orders which they are entitled to under the law in force and by following due procedure. (v) Considering the controversy we need not decide the issue as to the type of the land and other issues raised and all these issues are left open for consideration by the appropriate Authority of the Respondent No.1 who is vested with such power. / 15 / (vi) The amount of Rs.50,000/- which has been deposited to continue to remain deposited till such time as the Collector / Respondent No.1 take action according to law. If after hearing the Petitioners/ occupants the Authority comes to the conclusion that the amount is not due and payable the same shall be refunded to the Petitioner / Occupant. (vii)The Respondent No.1 in the case of these Petitions, which have been disposed off by this Court, to commence the process within six weeks from today and complete the process not later than nine months from today. (viii)Insofar as the consequential orders passed by the Respondent No. 2 based on the Letter / Circular dated 31st October, 2001 the same would be of no effect and are consequently quashed and set aside. We, however, make it clear that it will still be open to Respondent No.2 Planning Authority to exercise whatever powers it has under the provisions of the / 16 / Maharashtra Regional Town Planning Act, 1966 and D.C. Regulations and this order will not stand in their way. (ix) Insofar as the undertakings are concerned, the Petitioners are released from the undertakings. However, it is made clear that the Petitioners will be bound to make good the amount as set out in the undertaking on the Government fixing a policy, if the Petitioners are held to be liable, but subject to the rights of the Petitioners to challenge the validity of the order passed on that policy. (x) In the even the Petitioners do not have the original of the title document, on an application being made by the Petitioners / occupants to Respondent No.1, the said document be made available so as to enable the Petitioners/occupants to make good their case before the Respondent No.1 or if any authority before whom the proceedings will commence. / 17 / 9. Against the order passed by the Division Bench, the Petitioners preferred a Special Leave Petition being SLP No.3597 of 2007 and in this SLP, notice was issued and the directions contained in the High Courts order were stayed except in respect of directions 1, 2, 3 and 8 by its order dated 20th April, 2007. It is an admitted position that the Apex Court did not stay the direction of the High Court declaring the circular dated 31st October, 2005, which specifies that NOC should be obtained from the Collector as illegal, null and void. 10. On 4th July, 2007, the Petitioners entered into an agreement with Mr.Hariharan Shankaran and Abhishekh Hariharan for the sale of flat No.1401 and another flat in Soumya Towers which was constructed pursuant to the said Development Agreement dated 19th August, 2005. Thereafter, the said flat purchasers paid the stamp duty amounting to Rs.4,84,100/- in respect of the said agreement and on the same day, the said flat purchasers attended the office of the Sub-Registrar of Assurances, Respondent No.2 herein for the purpose of registering the said agreement. / 18 / 11. The Respondent No.2 Sub Registrar of Assurances by his letter dated 4th July, 2007, refused to register the said sale deed on the ground that prior approval / NOC of the Collector was necessary in view of the circular dated 19th May, 2007. The Petitioners thereafter sent a advocate' s notice to the Respondent No.2 stating that the circular dated 19th May, 2007 was illegal and without authority of law. Despite the notice sent by the Petitioners to the Respondent Nos.2 and 3, the document was not registered and, therefore, the Petitioners were constrained to file the petition under Article 226 of the Constitution of India. 12. The facts in respect of the other Petitions are also similar and all the Petitioners are challenging the circular dated 19th May, 2007 and action of the Respondent No.3 of not registering the agreement. 13. The Deputy Collector filed his affidavit in reply dated ___ October, 2007 in which he contended that the Petitioner was not the owner of the land on which the building was constructed. It was further contended that the owner of the property was shown to be having tenure of B-1. It was contended that therefore the land belongs to the State / 19 / Government having B-1 status. It was further contended that the Petitioners were not the original allottees of the said land and that they had entered into the development agreement on 19.8.2005 with the Petitioner No.6. It was further contended that pursuant to the Government directive dated 31st October, 2001, the BMC was directed not to issue IOD/CC unless NOC from the Collector was obtained by the concerned parties. It was contended that the object behind issuing the direction was that the Government had given land to the various institutions and individuals on concessional terms of lease or on ownership basis as Bhogavatdar Class-2 tenure and this was done on certain terms and conditions. It was contended that these institutions and individuals had committed breach of terms of the agreement and without taking prior permission of the Government had sold these lands to other institutions and/or individuals. 14. It was further contended that in order to avoid fraud and malpractices, the letter / circular dated 19.5.2007 was issued by Respondent No.2. / 20 / 15. It was further specifically contended that the Respondent No.2 has power under section 66 of the Indian Registration Act and in exercise of powers conferred under the said Act in supersession of Government Notification, Revenue Department No.3665 dated 30th January, 1922, the Government of Maharashtra had appointed the Collector of Bombay to be the Registrar of Registration, District of Bombay and in that capacity he had issued the circular dated 19.5.2007. 16. It was further contended that the Inspector General of Registration and the Control of Stamps, Maharashtra State, Pune had issued Notification dated 27.6.2006 under the powers conferred upon him by section 69 of the Registration Act, 1968 and whereby he had incorporated the amendment to Rule-24 of the Maharashtra Registration Rules, 1961 and after the clause (h) – clause (i) is inserted which reads as under: “(i) that, if the transaction which is intended by the document is prohibited by any existing act of Central or State Government, then the true copy of the requisite permission or NOC from the Competent / 21 / Authority under the said Act has been attached along with the document and that the document is not written in contravention with any vital term or condition mentioned in that permission or NOC.” 17. It was further contended that the Petitioner was not absolute owner of the said land and the said land was granted under the preconditions attached to the terms and conditions as set out in Form-HH which was applicable to Class 2 occupants defined in Section 29 (3)(a) of the Maharashtra Land Revenue Code. It was submitted that therefore the tenure B-1 was granted by the Government under the Rule-42 and 43 of the Bombay Land Revenue Rules, 1921. It was, therefore, contended that it was necessary to obtain NOC from the Collector. 18. The Petitioner filed his Affidavit- in-Rejoinder on 7th December, 2007. In the Affidavit- in -Rejoinder, it was contended that the Affidavit- in-Reply proceeded on the footing that under the amended Rule 44 of the Maharashtra Land Revenue Rules, the registration of document would be done only after the NOC was obtained from the Competent Authority. It / 22 / was stated that Section 22 (A) of the Act was inserted by the Legislature of Rajasthan by which the state could issue a Notification declaring that the registration of a document which was opposed to the public policy, in such case Sub-Registrar could refuse the registration of the said document. It was stated that the said case came up for consideration before the Apex Court, which held that the Registration Act could not set aside the transaction, but it could give its objection to the document and the Hon'ble Supreme Court declared 22A of the Act as ultra-vires of Article 14 and 246 of the Constitution of India. It was submitted therefore, that the Amendment of Rule 44 was contrary to the Article 14 and 246 of the Constitution of India. It was further submitted that the Section 66 of the Indian Registration Act, 1908 in its application to the State of Maharashtra does not empower the State Government to appoint the Collector of Bombay to be the Registrar of Registration and therefore, the Collector had no power to issue the impugned circular. 19. In respect of the contentions raised in the Affidavit-in-Reply by the Government that the Petitioner was not the absolute owner of the land was disputed and the Petitioners relied on number of letters and / 23 / documents in support of his case that they are absolute owners of the land. 20. Thereafter, the Government again filed a further Affidavit dated 1st February, 2008, disputing the contentions that the Petitioners are the owners of the land. It was further submitted that the judgment of the Apex Court in the said case holding section 22 A inserted by the Rajasthan Government as ultravires was not applicable to the facts of the present case. The Respondent No.2 in its Affidavit relied on various provisions of the Code of the Bombay Land Revenue Code and Maharashtra Land Revenue Code in support of his submissions. 21. We have heard the Learned Government Pleader appearing on behalf of the State and Learned Counsel appearing for the Petitioners. The short question which arises for consideration before this Court is : (i) Whether the Collector could have been issued the letter / circular dated 19th May, 2007 under the provisions of the Registration Act ? or; / 24 / (ii) Whether the Collector could have issued the impugned circular dated 19th May, 2007 asking the Petitioners to obtain NOC from the Collector before the documents could be registered? or; (iii) Whether the Collector was competent to issue a direction to the Respondent No.3 Sub- Registrar not to register any document, unless an NOC is obtained from the Collector? 22. In order to decide the rival contentions, it is necessary to consider the provisions of the Registration Act, 1908, in order to examine the contention of the Government that it has power to issue such direction to the Sub-Registrar Respondent No.3 herein. 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 32-A states that a photograph of both the executing parties has to be affixed. Section 33 / 25 / 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