Bombay High Court
Ashwinkumar Kalyandas Chauhan ... vs State Of Maharashtra , Through The ... on 14 October, 2021
Bench: Ujjal Bhuyan, Madhav J. Jamdar
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WP 13426 of 2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13426 OF 2017
Ashwinkumar Kalyandas Chauhan and Ors. ... Petitioners
V/s.
State of Maharashtra and Ors. ... Respondents
Mr. Vedchetan Patil with Sunayana Kashid - for the Petitioners.
Mr. S. L. Babar, AGP for the Respondent State.
CORAM : UJJAL BHUYAN AND
MADHAV J. JAMDAR, JJ.
DATE OF RESERVE : 23rd SEPTEMBER 2021.
DATE OF PRONOUNCEMENT : 14th OCTOBER 2021.
JUDGMENT (PER MADHAV J. JAMDAR, J.)
Petitioners are seeking following reliefs by the present writ
petition filed under Articles 226 and 227 of the Constitution of India:-
a. That this Hon'ble Court be pleased to issue a writ of
Mandamus or any other writ or direction in the nature of
mandamus and direct the Respondents to register the
Conveyance Deed as proposed/applied by the Petitioner No. 1
to 5 in respect of their respective properties.
aa. Be pleased to quash and set aside the letter/deemed order
dated 27.07.2017, issued by Respondent No.6.
2. It is the contention of the Petitioners that respective Petitioners
executed agreement of sale with certain individuals regarding
respective lands and thereafter executed conveyance deeds. Petitioners
have given details of transaction in the petition.
3. It is the contention of the Petitioners that the respective Sub-
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Registrars refused to register conveyance deeds on the ground that in
7/12 extracts there is an entry that the lands are Devasthan lands and
therefore for the said transaction, sanction of Charity Commissioner is
required. The Petitioners relied on circulars dated 30.04.2005,
27.07.2009 and 05.12.2013 issued by the Inspector General of
Registration and Controller of Stamps of Maharashtra State. The
Petitioners also relied on Section 71 of the Registration Act, 1908
(hereinafter referred to as "said Act".) and Rule 44 of the Maharashtra
Registration Rules 1961.
4. Affidavit in reply of Ms. Mangala M. Pawar, Joint Sub-Registar
(In charge) Vasai-I, District Palghar, dated 08th February 2019 was filed
on behalf of Respondent No. 6. In the said affidavit-in-reply, it is the
contention of the Respondent No. 6 that documents i.e. conveyance
deeds were not produced by Petitioners for registration in the office of
Respondent No. 6. It is contended that photocopies of said conveyance
deeds are also not produced alongwith the petition. Thus there is no
cause of action for filing writ petition. As far as the aspect of bar of
transfer of Devasthan land is concerned, it is stated that for such
transaction prior permission of the Charity Commissioner is required.
It is contended that it is necessary to execute the conveyance deeds
and present it for registration as per section 32 read with section 23
and 32(a) of the said Act and after presentation of conveyance deeds
further action can be taken.
5. Petitioners have filed affidavit-in-rejoinder dated 10 th June,
2019 through Ashwin K. Chauhan, the Petitioner No. 1. It is
contended that Petitioners have already presented their documents
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for registration and have also applied for the adjudication of stamp
duty. The receipt of payment made for adjudication of the stamp duty
are annexed at Exh. F to the petition. It is further contended that the
subject land is not owned by Devasthan but merely revenue of such
land is alienated in favour of Devasthan Inam. Petitioners have
produced alongwith said rejoinder correspondence between the
Petitioners and Respondent No. 6, copy of order dated 31.05.1976
passed by the Assistant Charity Commissioner, Nashik Region, Nashik
rejecting the change report filed by the Vajreshwari Devasthan.
6. Arguments were partly heard on 25.08.2021 and for further
arguments the writ petition was adjourned to 31.08.2021. Petitioners
on 31.08.2021 produced compilation of documents including
translation of certain documents already on record as well as certain
new documents. Thereafter, the writ petition was heard on
23.09.2021.
7. Mr. Vedchetan Patil, the learned advocate appearing on behalf
of the Petitioners raised following contentions :-
7.1 It is settled legal position that the registering authority
should not enter into the question of title of the property.
Requirements for registration are set out in the various
provisions of the Registration Act, 1908 and also Maharashtra
Registration Rules 1961. He submitted that entry in 7/12
extract could not be a ground for refusal of registration.
7.2 He relied on full bench judgment reported in AIR 2007
Andhra Pradesh 57 particularly paragraphs 122 and 123 of the
said judgment which reads thus:-
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"122. For the reasons stated hereinabove, all the writ
petitions are allowed.
G. CHANDRAIAH, J. :-- 123. I am in complete agreement
with the detailed judgment prepared by my learned
brother Justice V. V. S. Rao. However, I would like to
reiterate that there is no specific prohibition under the
Registration Act, 1908 (for short The Act') to register a
deed of cancellation. The registering officer can refuse
registration in the situations arising under Sections 19 to
22, 32 and 35 and the relevant rules are Rules 26, 58 and
117. But in all other cases where the conditions under the
Act i.e., Sections 17 and 18 of the Act are fulfilled. the
registering officer is bound to register the document and
it is not in dispute that the cancellation deed fulfills the
conditions for the purpose of registration. However, the
Act does not permit the registering officer to enquire into
the title of the party presenting the document for
registration and the situations mentioned in the above
said provisions under which the registration can be
refused are for different purpose and only under those
contingencies he can refuse. This Court cannot enlarge
the scope of these provisions under the guise of
interpretation of statute. Further when there is no
prohibition under the Act the registering officer has to
register the documents presented for registration in
accordance with law and this Court by judicial
interpretation cannot impose the same into the statute. It
is well settled that what has not been provided for in a
statute cannot be supplied by Courts and to do so will
amount to legislating which is not the function of the
Courts."
7.3 Mr. Vedchetan Patil relied on judgment of Assistant
Charity Commissioner, Nashik Region, Nashik passed in change
Report Nos. 223 of 1972 and 428 of 1972 and contended that
the lands in question are not Devasthan land.
8. On the other hand Mr. S. L. Babar, the learned AGP appearing
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for the Respondents raised following contentions:-
8.1 As per Section 72 of the said Act an alternate remedy of
appeal to Registrar is available to the Petitioner assuming that
the documents namely conveyance deeds were presented for
registration and registration is refused.
8.2 There is nothing to indicate that the said documents
namely respective conveyance deeds were submitted in the
office of Respondent No. 6 for registration. He submitted that
reply on 27.07.2017 was given as notice dated 10.07.2017 was
issued on behalf of the Petitioners. However even notice dated
10.07.2017 also do not indicate that conveyance deeds were
executed and presented for registration.
8.3 Entry in 7/12 extracts of the subject land shows that the
lands are Devasthan lands and therefore unless permission
under section 36 of the Maharashtra Public Trust Act is obtained
the conveyance deeds can not be registered. He relied on the
clause in the registered agreement for sale to the effect that as
the lands are Devasthan lands, permission of the appropriate
authorities would be taken. Therefore, he submitted that no
fault can be found with the impugned letter/action.
8.4 He relied on recent 7/12 extract indicating that the lands
in question are Devasthan lands to contend that the transaction
requires sanction of Charity Commissioner under section 36 of
the Maharashtra Public Trust Act.
9. Submissions made by learned counsel of both the sides have
received the due consideration of the Court.
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10. The Petitioners have executed registered agreement for sale
with various persons with respect to various lands and the details of
same are set out in the writ petition as under :-
Sr. No. Purchaser Petitioner Vendor Particulars of Land Document
no./Date of
Agreement
1] Ashwinkumar K. Chauhan - a) Damodar Bhau S. No. 10 H. No. 1/1 10424/2012
Petitioner No. 1 Bhoir, admeasuring 0-45-00 25.09.2012
and b)Jaywanti D Bhoir HRP out of total 01-
Pratima A. Chauhan - c)Rajendra D Bhoir, 32-4 HRP, Village
Petitioner No. 2 d)Eknath D Bhoir, Vadghar, Post Saiwan,
e) Sham Damodar Tal. Vasai, Dist.
Bhoir Palghar.
2] Bomi P. Sachinwalla - a) Mr. Meghjibhai S. No. 3, Hissa No. 1 795/2013
Petitioner No. 3 Devalia, (part) admeasuring 28.02.2013
and b) Ramesh M. 0-98-1 HRP at village
Dr. Firoza Jamsed Pande - Devalia, Ambode, Tal. Vasai,
Petitioner No. 4 c) Rajesh M. Devalia Dist. Palghar.
3] Bomi P. Sachinwalla - a. Smita Tawade S. No. 3 Hissa No. ½ --
Petitioner No. 3 b. Anita Tawade admeasuring 1-21-41
and HRP, Village Ambode,
Dr. Firoza Jamsed Pande - Tal. Vasai, Dist.
Petitioner No. 4 Palghar.
4] Bomi P. Sachinwalla - a. Rajaram Y Tawade, S. No. 3 Hissa No. --
Petitioner No. 3 b. Anita R Tawade 2/2 admeasuring 1-
and C. Ashish R Tawade 51-66 HRP out of 1-
Dr. Firoza Jamsed Pande - 82-0 HRP, Village
Petitioner No. 4 Ambode, Tal. Vasai,
Dist. Palghar
5] Bomi P. Sachinwalla - a. Ashawari Chetan S. No. 3 Hissa No. --
Petitioner No. 3 Jagtap 2/2 admeasuring 0-
and 30-34 HRP, Village
Dr. Firoza Jamsed Pande - Ambode, Tal. Vasai,
Petitioner No. 4 Dist. Palghar
6] Bomi P. Sachinwalla - Bright Engineering S. No. 2, Hissa No. --
Petitioner No. 3 Co. through its 2/1, S. No. 3, Hissa
Dr. Firoza Jamsed Pande - Ramakant Tawade, Hissa No. 1/4 at
Petitioner No. 4 Ashish R. Tawade and Village Ambode, Tal
Ashawari C. Jagtap Vasai, District Palghar
7] Bomi P. Sachinwalla - Bright Engineering S. No. 2, Hissa No.
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Petitioner No. 3 Co. through its 2/1, S. No. 3, Hissa
Dr. Firoza Jamsed Pande - Jagtap Hissa No. ¼ at
Petitioner No. 4 Village Ambode, Tal
Vasai, District Palghar
8] M/s Dias Reality through its Harishchandra Survey No. 53, Hissa
Partner - Petitioner No. 5 Narayan Patil No. 03, admeasuring
(H.R.) 1-04-5, Village
Ghodbunder, Mira
Road (East), Taluka
86 District Thane.
10.1 Copy of one registered agreement is produced before us by Mr.
Babar, the learned AGP. He pointed out following clause in the said
registered agreement:-
"सदर ममळकत दे वसथान इनाम वरर ३ ची असलयाने सदर दे वसथान
इनाम वरर ३ ची परवानरी श्री योरीनी वज्रेशवरी दे वसथान
ट् रसट मकंवा सं बंमधत अमधकाऱयांकडू न मलहन
ू घे णार यांनी सवखचारने
ममळवायची आहे . मात्र तयाकामी लारणारे जाबजबाब , अजर,
सहा, मलहन
ू घे णार सां रतील ते वहा मलहन
ू दे णार यांनी दावयाचे
आहे त ".
Mr. Babar, the learned AGP submitted that above clause or similar
clause is in all the agreements of the Petitioners. Mr. Patil has not
denied the same.
10.2 Petitioners have produced copies of 2 registered agreements
alongwith the compilation of documents. Above clause or similar
clause is also found in those registered agreements.
10.3 Petitioners through their Advocate had sent notice dated 10 th
July 2017. In the notice, it is stated that the Petitioners had
approached office of Sub-Registrar, Vasai-I and Joint Sub-Registrar,
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Vasai-6 on various occasions. However, registration of conveyance
deeds without citing any reasons has been refused. We must note that
perusal of paragraphs 2(7) and 3(3) of the said notice conclusively do
not show that documents of conveyance deeds were presented for
registration and thereafter the registration is refused. The said
paragraphs 2(7) and 3(3) are reproduced hereinbelow for ready
reference:-
"2(7) That my clients are now desirous of executing and
registering the conveyance deed for the said, however, the Your
office of addressee No. 1 and 2 has denied my client his right to
register the Sale Deed/Conveyance Deed for the said lands
without citing any reasons."
"3(3) That my clients are now desirous of executing and
registering the deed of conveyance for the said lands,
however, You No. 1 and 2 has denied my client their right
to register the Deed of Conveyance without citing any
definite reasons."
10.4 In paragraph 2(4) and paragraph 3 (5) of said notice there is
reference of payment of stamp duty but earlier paragraph indicates
that said stamp duty is pertaining to agreement for sale.
10.5 In the present case notice dated 10.07.2017 sent on behalf of
the Petitioners is replied on 27.07.2017 by Respondent No. 6 setting
out in detail reasons for refusal for registration. In the said
order/letter main reason set out is regarding previous permission of
the Charity Commissioner. Mr. Babar, learned AGP stated that
although conveyance deeds were not presented for registration
however in view of contents of notice dated 10.07.2017 reply dated
27.07.2017 was sent.
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10.6 The above factual position clearly shows that there is specific
recital in the respective agreements for sale that the said land is
Devasthan land i.e. of public trust and therefore, necessary
permissions would be obtained. If a land belongs to public trust the
previous permission of Charity Commissioner is required to be
obtained under section 36 of the Maharashtra Public Trust Act.
However as it is the contention of Petitioners that the said aspect can
not be looked into by the registering authorities as the same is relating
to title and therefore we are not going into this aspect. However we
keep all the contentions in that behalf open.
11. It is the contention of the Petitioners that the said documents
were presented for registration before the Collector of Stamps, Palghar
and entire procedure of adjudication is followed. Inspite of this, the
Respondents have refused to register the said documents. In this
behalf, the Petitioners are relying on the receipts produced at pages 27
and 28. However, it is to be stated that it cannot be conclusively
established from the receipts whether the same pertains to the
conveyance deeds which are subject matter of the present writ
petition. In affidavit-in-reply of Ms. Mangala M. Pawar, Joint Sub-
Registrar (In charge) Vasai-I, District Palghar dated 08.02.2019 it is
specifically stated that no such documents of conveyance deeds were
presented for registration.
11.1 Petitioners in their affidavit-in-rejoinder have contended that
Petitioners have already presented their documents for registration
and also applied for adjudication of the stamp duty and for that
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purpose relying on the receipts annexed to the Petition at Exh. F,
however, it is to be noted that there is nothing to show that the actual
conveyance deed is presented for registration. There is serious factual
dispute whether actually conveyance deed was executed and
presented for registration.
11.2 Petitioners on 31.08.2021 during the course of arguments
presented compilation of documents including the translated copies of
some of the Exhibits to the petition and correspondence of Petitioners
for adjudication for stamp duty entered with the Collector of Stamps.
In fact relevant documents produced in compilation (pages 224-243)
reveals following :-
(i) On 05.07.2017 some of the Petitioners presented instrument
of conveyance deeds with Collector of Stamps, Palghar for
adjudication or Collector of Stamps, Palghar received reference
from Collector under sections 31(1) and (2) of the Maharashtra
Stamp Act.
(ii) Collector of Stamps, Palghar issued notice dated
11.10.2017 to some of the Petitioners stating that market value
of property has not been truly and fully set forth in the
instrument and requiring them to produce evidence regarding
market value of the property.
(iii) By replies dated 20.10.2017, it has been informed to the
Collector of Stamps, Thane Rural by some of the Petitioners that
they are ready to pay higher stamp duty determined by the
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department of Collector of Stamps.
(iv) By order dated 28.11.2017 passed by Collector of Stamps,
Palghar the proper stamp duty was determined and the same
was higher than as mentioned in the conveyance deeds. As per
said order the market values in respective conveyance deeds are
shown at lower rate than the market rate.
(v) It is not clear whether after payment of proper stamp duty
as per said orders all these conveyance deeds were presented for
registration.
12. It is significant to note that the writ petition was filed on
25.07.2017 and the same was amended on 20.12.2017. There is no
averment that by abovereferred orders stamp duty was determined
and the same was paid and thereafter the instruments of conveyance
deeds were presented for registration before registering authorities.
The same will have to be done on or after 28.11.2017 as proper stamp
duty was determined on that day. Therefore reliance of petitioners on
notice dated 10.07.2017 and reply dated 27.07.2017 to contend that
the Petitioners have executed and presented conveyance deeds for
registration to the registering authority is totally incorrect as the same
can only be done after 28.11.2017. In fact the conveyance deeds were
presented for adjudication on 05.07.2017 but the same was
suppressed in the writ petition. The fact that Petitioners had sent
various replies dated 20.10.2017 showing readiness to pay higher
stamp duty is also completely suppressed although writ petition was
amended on 20.12.2017. Order of Collector of Stamps, Palghar as set
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out hereinabove is also suppressed in the writ petition.
12.1 For the first time these documents were produced alongwith
the compilation on 31.08.2021 during the hearing and some
facts were disclosed in Affidavit-in-rejoinder dated 10.06.2019.
12.2 In any case it is not clear whether all the Petitioners have
presented their respective conveyance deeds before the
Collector of Stamps, Palghar. It is also not clear whether
Petitioners have presented the conveyance deeds executed by
all the parties and by paying proper stamp duty as determined
by the Collector of Stamps, Palghar before the registering
authority.
12.3 Therefore, there are serious disputed questions of facts in the
present writ petition. It is also clear that Petitioners have not
disclosed all the facts and documents and have not approached
the Court with clean hands.
13. At this stage it is important to note that adjudication as to
stamps is done under the provisions of the Maharashtra Stamp Act by
the authorities constituted under the Maharashtra Stamp Act. The
instruments are registered by the authorities constituted under the
Registration Act, 1908. Thus the authorities under both these
enactments are different and distinct.
13.1 Apart from that, Mr. Babar, learned AGP is right in his
submission that there is an alternate remedy available to the
Petitioners assuming that the Petitioners have presented the
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respective conveyance deeds for registration and registration
has been refused. In that behalf, he has invited our attention to
Section 72 of the Registration Act, 1908. Said section 72 is
extracted hereunder for ready reference:-
"Section 72. Appeal to Registrar from orders of Sub-
Registrar refusing registration on ground other than
denial of execution.--
(1) Except where the refusal is made on the
ground of denial of execution, an appeal shall lie
against an order of a Sub-Registrar refusing to
admit a document to registration (whether the
registration of such document is compulsory or
optional) to the Registrar to whom such Sub-
Registrar is subordinate, if presented to such
Registrar within thirty days from the date of the
order; and the Registrar may reverse or alter such
order.
(2) If the order of the Registrar directs the
document to be registered and the document is
duly presented for registration within thirty days
after the making of such order, the Sub-Registrar
shall obey the same, and thereupon shall, so far as
may be practicable, follow the procedure
prescribed in sections 58, 59 and 60; and such
registration shall take effect as if the document
had been registered when it was first duly
presented for registration."
13.2 Thus it is clear that there is availability of statutory alternate
remedy of filing appeal to Registrar against refusal of
registration.
14. Mr. Patil submitted that refusal of registration is on the ground
that in 7/12 extract there is entry to the effect that the lands belong to
Devasthan Inam. He submitted that the registering authorities can not
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go into the aspect of title of the property and the reason given in the
impugned letter dated 27.07.2017 shows that the Respondents have
refused the registration on the ground of title. In that behalf, he has
pointed out the order of Charity Commissioner and submitted that the
lands in question do not belong to the public trust and therefore
permission of the Charity Commissioner is not necessary. However, we
are not going into these aspects as there is serious dispute whether the
Petitioners have presented the respective conveyance deeds for
registration by paying applicable stamp duty. In any case there is
alternate remedy available to the Petitioners of filing appeal under
Section 72 of said Act.
15. It is significant to note that elaborate provisions are made in the
Registration Act, 1908 in part XII consisting of sections 71 to 77
regarding refusal to register. Under section 71 reasons for refusal to
register are required to be recorded. If registration of documents is
refused by Sub-Registrar there is an appeal provided under Section 72
to the Registrar. Section 76 is concerning order of refusal by Registrar.
Sub section (2) of section 76 specifies that no appeal lies against order
of refusal by Registrar. Section 77 specifies that where the Registrar
refuses to register the documents the aggrieved person is required to
institute Civil Suit in the Civil Court within 30 days from the date of
order of refusal. Thus there is statutory alternate remedy available as
per the provisions of said Act.
16. There is serious dispute whether the documents namely
conveyance deeds were actually presented for registration or not. The
conduct of the Petitioners show that in the respective agreements for
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sale specific averment is made that the property is of public trust and
therefore permission from authority would be obtained. Now
contention sought to be raised that property is not of public trust. The
Petitioners have not placed before this Court all the facts and in fact
suppressed many relevant facts. Orders passed by Collector of Stamps
determining that documents of conveyance deeds do not set out
proper market value were suppressed and produced only at the fag
end after arguments were partly heard. There are no pleading in the
writ petition in that behalf. There is no clarity whether the sale deeds
by paying stamp duty as determined by the Collector of Stamps,
Palghar were presented by Petitioners for registration.
17. For all the aforesaid reasons, we decline to exercise our
discretionary jurisdiction under Article 226 of the Constitution of
India. Therefore writ petition is dismissed with no order as to costs.
[MADHAV J. JAMDAR, J.] [UJJAL BHUYAN, J.]
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