Bombay High Court
Professional vs An Adult on 12 December, 2013
Bench: R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6996 of 2013
Dr. Arjun Sitaram Nitinwar )
Age 54 years, Occ. Agriculturist & Medical )
Professional, residing at 19/150, MHADA )
Colony Vartak Nagar, Thane (W) )..Petitioner
versus
1 Mr. Rama Sakharam Parad )
An adult, Occ. Business, residing at )
Sahakar Nagar, Pokharan Road No.1, )
Thane (W) )
An Adult, Occ. Service
2 Mr. Pralhad Sakharam Parad )
)
3 Mrs. Parvati Shankar Parad )
An Adult, Occ. Housewife )
4 Mr. Ganesh Shankar Parad )
An Adult, Occ. Service )
5 Mrs. Pushpa Vasant Parad )
An Adult, Occ. Housewife )
6 Mr. Rajesh Vasant Parad )
An Adult, Occ. Service )
7 Mr. Prakash Vasant Parad )
An Adult, Occ. Service )
Nos.2 to 7, all residing at Parad Chawl, )
Pokharan Road, No.1, Thane (W) )
8 Mrs. Vadana Bharat Hindole )
An Adult Occ. Housewife )
Residing at Patil Pada, Village Yevoor, )
Thane (W) )
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9 Mrs. Reshma Sharad Vangad )
An Adult, Occ. Housewife )
residing at Plot No.30, MHADA )
Colony Vartak Nagar, Thane (W) )
10 Mrs. Meenakshi Sandeep Keni )
An Adult Occ Housewife )
Residing at Aadivasi Pada, Kanheri Gunfa )
Road, Borivali, Mumbai )
11 Smt. Asha Ramesh Parad )
an adult Occ Housewife )
12 Mast. Vicky Ramesh Parad )
13 Ms Prachi Ramesh Parad
ig )
Nos.12 and 13 minors being represented by)
their mother, natural Guardian and next )
friend No.11 Smt. Asha Ramesh Parad )
Nos.11 to 13 residing at Village Manor, )
Tal Palghar, Dist Thane )
14 Mr. Dilip Dattu Dukle )
An Adult, Occu Service )
15 Mrs. Sunita Mahadev Survekar )
An Adult, Occ Housewife )
16 Mrs. Meena Kishore Sambre )
An Adult Occ. Housewife )
Nos.14 to 16 residing at Adivasi Nagar, )
Talepada, Kanheri Gumfa Road, )
Borivali, Mumbai )
17 Mr. Ambika Prasad Kaushik )
An Adult Occ Business )
Residing at Indraprastha, Mulund (West) )
Mumbai 400 080 )
18 Mr. Gopal Madhu Narang )
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An Adult Occ. Business )
Residing at 143-144 Cherisan, Saint Siril )
Road, Bandra (W), Mumbai 400 050 )
19 Mr. Kishor Maganlal Mehta )
An Adult Occ Business )
Residing at Dindoshila Plot No.384 )
Road No.15, Khar (West) Mumbai 400052 )
20 Mr. Vinod Nandlal Rohira )
An Adult, Occ Business )
Residing at Dindoshila Plot No.384 )
Road No.15, Khar (West) Mumbai 400052 )..Respondents
Mr. G. S. Godbole with Mrs. Deepali Deshmukh i/b Mr. Balasaheb
Deshmukh for the Petitioner
Mr. P. S. Dani with Ms Radha Ved i/b Sanjay Udeshi & Co. for the
Respondent Nos.1 to 16
Mr. Vivek Shiralkar i/b Shiralkar & Co. for the Respondent Nos.17 to 20
CORAM :- R.M.SAVANT, J .
JUDGMENT RESERVED ON: 20th NOVEMBER, 2013
JUDGMENT PRONOUNCED ON: 12th DECEMBER 2013
JUDGMENT:
1 Rule with the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court under Article 226 of the
Constitution of India has been invoked against the order dated 1-4-2013
passed by the Learned Joint Civil Judge Senior Division, Thane, by which
order, the Trial Court has refused to exhibit the Development Agreement
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dated 2-3-2005 on the ground that the said agreement has been entered
into without complying with the provisions of Section 36A of the
Maharashtra Land Revenue Code in the matter of obtaining permission of
the Competent Authority as the land covered by the said agreement is a
tribal land and that the said document showing consideration of Rs.10 lacs
but the same was executed on a stamp paper of Rs.10 from which it is
crystal clear that the said document is not properly stamped.
3 The factual matrix involved in the above Petition in brief can be
stated thus:
The Petitioner herein is the original Plaintiff whereas the
Respondents are the original Defendants. The Suit filed by the Plaintiff
being Special Civil Suit No.608 of 2010 has been filed claiming
declaration that the said Development Agreement is legal, valid and
subsisting. The said Development Agreement dated 2-3-2005 duly
executed and notarised before notary public Mr. J. T. Sonavane at
Noted/Regsitered Sr. No.4319/05 on 2-9-2005 as also the Power of
Attorney dated 28-3-2007 executed by the Defendants in favour of the
Plaintiff are legal, valid, subsisting and binding upon the Defendants.
Further declaration sought by the Plaintiff was that the notice dated 18-2-
2010 issued by the Defendants and the Suit for declaration dated 18-2-
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2010 sworn and executed by the Defendant No.1 is illegal, void-ab-initio
and not binding or operative against the Plaintiff. It appears that the Suit
was at the stage of the recording of evidence. The said Development
Agreement was tendered by the Plaintiff during examination-in-chief. The
Plaintiff had in the said examination-in-chief sought to prove the contents
of the said Development Agreement, during the course of the evidence the
admissibility of the said document was raised before the Court. The
Plaintiff produced a certified copy of the said document. The Trial Court
declined to mark the said Development Agreement executed by and
between the Plaintiff and the Respondent Nos.1 to 16 as an Exhibit. The
refusal of the Trial Court is inter alia on the grounds which have been
mentioned herein above namely that the said document has been executed
in breach of Section 36A of the Maharashtra Land Revenue Code, that the
said document is not properly stamped. As indicated above, it is the said
order dated 1-4-2013 which is impugned in the present Petition.
4 Heard the Learned Counsel appearing for the parties.
5 The Learned Counsel Mr. Godbole made the following submissions:
(i) that the said document was not compulsorily registrable under Section
17(1)(b) of the Registration Act as by the said document there is no
transfer of property.
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(ii) The covenants of the said Development Agreement indicate a nature
of right creating in favour of the Plaintiff which cannot be said to be
created a right of ownership in favour of the Plaintiff.
(iii) That the Trial Court had erred in taking into consideration Article
5(g-a) for the purpose of computing the stamp duty that was payable by
loosing sight of the fact that the said provisions has been deleted.
(iv) that Section 36A does not provide for registration of the said
document. The same only provides for permission to be sought from the
Competent Authority in respect of purchase of tribal land and the same
therefore cannot impinge upon the admissibility of the document.
6 Per contra Mr. Dani, the Learned Counsel appearing for the
Respondent Nos.1 to 16 made the following submissions :
(i) That Section 17(1)(b) does not apply only in cases where transfer is
effected but comes into play as soon as a right is created in any party.
Hence submission made by the Learned Counsel for the Petitioner that the
said document is not compulsorily registrable as there is no transfer or
conveyance, is mis-founded.
(ii) That covenants 9, 14 and 15 as well as 26 unmistakably lead to a
conclusion that the said document creates a right in favour of the Plaintiff
and therefore the said document was compulsorily registrable. In fact
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covenant 26 provides as to whose obligation it would be to pay the
registration charges.
(iii) That the Trial Court though has held the document to be inadmissible
on account of the non payment of proper stamp duty, ought to impounded
the document and sent it to the Superintendent of Stamps for adjudication
as mandated by Section 33 of the Stamp Act.
7 Having heard the Learned Counsel for the parties, I have considered
the rival contentions. The two grounds on which the document in question
has been held to be inadmissible in evidence are that the document is not
registered and the Plaintiff has not paid proper stamp duty in respect of the
said document. In so far as the registration is concerned, it is the
contention of the Learned Counsel appearing for the Petitioner that the
said document is not compulsorily registrable under Section 17 of the
Registration Act, 1908. For a proper appreciation of the said submission, it
would be gainful to refer to Section 17(1) of the said Act.
17. Documents of which registration is compulsory.-
(1) The following documents shall be registered, if
the property to which they relate is situate in a
district in which, and if they have been executed on
or after the date on which, Act No.1864 (XVI of
1864 ), or the Indian Registration Act, 1866 (20 of
1866 ), or the Indian Registration Act, 1871 (8 of
1871 ), or the Indian Registration Act, 1877 (3 of
1877 ), or this Act came or comes into force,
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namely:--
(a) instruments of gift of immovable property;
(b) other non- testamentary instruments which
purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right,
title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in
immovable property;
(c) non- testamentary instruments which
acknowledge the receipt or payment of any
consideration on account of the creation, declaration,
assignment, limitation or extinction of any such right,
title or interest; and
(d) leases of immovable property from year to year,
or for any term exceeding one year, or reserving a
yearly rent;
(e) non- testamentary instruments transferring or
assigning any decree or order of a Court or any award
when such decree or order or award purports or
operates to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or
interest, whether vested or contingent, of the value of
one hundred rupees and upwards, to or in immovable
property:]
Provided that the State Government may, by order
published in the Official Gazette, exempt from the
operation of this sub- section any leases executed in
any district, or part of a district, the terms granted by
which do not exceed five years and the annual rents
reserved by which do not exceed fifty rupees.
( ) .................................
Hence a reading of clause (b) of Section 17 makes it clear that in
respect of non-testamentary instruments which purport or operate to
create, declare, assign, limit or extinguish, whether in present or in future,
any right, title or interest would be registrable. In the light of the said
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provision, it would be also be gainful to refer to the Development
Agreement. In clause (1), it is provided that the Petitioner has been
granted irrevocable development rights in the property and the
consideration mentioned is Rs.10 lacs. In clause (2) it has been mentioned
that in furtherance of the development rights an irrevocable licence has
been granted to the Petitioner as well as the irrevocable power of attorney.
It would also be useful to reproduce clauses 10, 14, 15 and 26 of the said
Development Agreement (English translation).
"10 It is agreed between the parties that the party of
the First Part has agreed to make necessary Applications
at their own expenses for the purpose of sub-division
and amalgamation of the said property and the required
authority for the said purpose has been given by the
Party of the Second Part to the Party of the First Part.
14 The party of the First Part is giving the said
property for the purpose of development by converting
the same into non agricultural land whereby flats,
bungalows, houses, shops or units, garages etc., to be
developed on the said property, can be sold on
ownership basis or any other basis and that the party of
the Second Part has full knowledge of the same and
have no complaint about the same.
15 The party of the Second Part shall execute Deed
of Conveyance in respect of the said property in favour
of Co-operative Society of flats/ unita purchasers
occupying the building to be constructed on the said
property. The party of the Second Part shall bear the
expense and not cause any harm in respect of the
matters relating to the expense of the said Conveyance
of the said property to the Part of the First Part.
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26 Expenses for stamp duty and registration charges
for this Agreement is to be borne by the party of the
first part entirely but the parties to bear the fees of their
respective Advocates separately."
A reading of the aforesaid clauses leads to a conclusion that
substantial rights have been created in favour of the petitioner as apart
from constructing flats, bungalows, row houses etc., the Petitioner is
entitled to sell the said flats, bungalows, row houses etc., and in so far as
the society that would be constituted of the flat purchasers etc, it is
provided that the owners would execute a conveyance in their favour. In
the light of the aforesaid it is not possible to accept the contention of the
Learned Counsel appearing for the Petitioner that the agreement in
question is a mere Development Agreement and can be said to be akin to
an Agreement to Sale. The clauses of the Development Agreement which
have been reproduced and referred to herein above are eloquent of the
substantial rights that have been created in favour of the Petitioner and
therefore the said document was compulsorily registrable. In fact as can be
seen the owners are left with no choice in the matter of executing the
conveyance as in the agreement provision is also made for the same vide
clause 15. The contention of the Learned Counsel appearing for the
Petitioner that only when there is a transfer that a document is
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compulsorily registrable, cannot be countenanced in the teeth of Section
17 of the said Act, as the said provision comes into play as soon as any
right is created. In my view therefore, the part of the order where the Trial
Court holds the document to be inadmissible in evidence on account of its
non registration, cannot be faulted with.
8 Now coming to the aspect of whether the document was properly
stamped though the Trial Court has held that the document is exigible to
the payment of stamp duty under Article 5(g-a) and that Article 5(h)(B) is
not applicable. Though it is the contention of the Learned Counsel
appearing on behalf of the Petitioner that it would be Article 5(h)(B)
which would be applicable, in my view, it is not necessary to go into the
said aspect as it is for the adjudicating authority to decide as to under
which provision the document is required to be stamped. However, the
Trial Court in my view, has erred in not impounding the document after it
was brought before it. In that regard, Section 33 of the Bombay Stamp Act
would have relevance. The said provision mandates that the Court before
whom the document is produced, is required to impound the document if
it is not duly stamped and send it to the authority for adjudication. In my
view therefore, the document in question is required to be impounded and
sent to the adjudicating authority for adjudication as regards the stamp
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duty payable on it. If the stamp duty is paid by the Petitioner and the
document in question is registered, the Petitioner can apply to the Trial
Court that the said document be read in evidence. The Writ Petition is
accordingly partly allowed to the aforesaid extent. Rule is accordingly
made absolute to the said extent with parties to bear their respective costs
of the Petition.
(R M SAVANT, J)
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