Bombay High Court
The State Of Maharashtra Through ... vs Govind Ramling Solpure And Others on 13 April, 2023
Bench: Ravindra V. Ghuge, S. G. Mehare
1 Review Application No.246-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.246 OF 2022
IN
WRIT PETITION NO.2111 OF 2022
1. The State of Maharashtra
Through its Secretary
Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Inspector General of Registration and
Controller of Stamps, State of Maharashtra
Opposite Vidhan Bhavan,
New Administrative Building, Pune.
3. The Inspector of Stamp Duty, Aurangabad
Behind Office of District Collector,
Aurangabad.
4. The Joint District Sub Registrar-I,
Aurangabad, Behind Office of District
Collector, Aurangabad.
5. The Joint District Sub Registrar-II,
Aurangabad, Behind Office of District Collector,
Aurangabad.
6. The Joint District Sub Registrar-III,
Aurangabad, Behind Office of District Collector,
Aurangabad.
7. The Joint District Sub Registrar-IV,
Aurangabad, Behind Office of District Collector,
Aurangabad.
8. The Joint District Sub Registrar-V,
Aurangabad, Behind Office of District Collector,
Aurangabad. ... Applicants
Versus
1. Govind Ramling Solapure,
Age 44 years, Occu. Agri./Business,
::: Uploaded on - 13/04/2023 ::: Downloaded on - 14/04/2023 18:05:05 :::
2 Review Application No.246-22.odt
R/o Plot No.540, CIDCO, Mahanagar,
Aurangabad.
2. Prakash Pralhad Gadgul,
Age 38 years, Occu. Agri./Business,
R/o Karodi, Tq. & District Aurangabad.
3. Krushna Raosheb Pawar,
Age 44 years, Occu. Agri./Business,
R/o Plot No.540, CIDCO, Mahanagar,
Aurangabad. ... Respondents
...
Advocate for Applicants : Shri. R. N. Dhorde (Senior Special
Counsel) a/w Shri. D. R. Kale-GP, Shri. S. G. Karlekar-AGP.
Advocate for Respondents : Shri. R. F. Totla.
...
CORAM : RAVINDRA V. GHUGE, AND
S. G. MEHARE, JJ.
RESERVED ON : 21.12.2022
PRONOUNCED ON : 13.04.2023
JUDGMENT : (Per S. G. Mehare, J.) :-
01. We have heard the Learned Senior Advocate Shri.
Dhorde for the State and the learned Advocate Shri. Totla for
the respondents, extensively.
02. The State of Maharashtra and others have preferred this
application to review the judgment and order in Writ Petition
No.2111 of 2022, dated 05.05.2022.
3 Review Application No.246-22.odt
03. The respondents had preferred the Writ Petition for the
declaration that Rule 44(1)(i) of the Maharashtra Registration
Rules, 1961 ("Rules 1961" for short) is contrary to the
Registration Act, 1908 ("Act 1908" for short) and it be struck
down. The petitioners had also prayed for quashing and setting
aside the impugned circular dated 12.07.2021 issued by
exercising power under Rule 44(1)(i) of the Rules, 1961. The
Division Bench of this Court (Coram: R. D. Dhanuka and S. G.
Mehare JJ.), allowed the writ petition and passed the following
order:
"(II) Rule 44(1)(i) of the Maharashtra Registration Rules, 1961
is read down and is declared that the same would not be
applicable. The registering Authority is not required to insist
compliance of the conditions imposed under Rule 44(1)(i) while
registering the document under Section 34 r/w Section 35 of the
Registration Act, 1908. The registering Authority shall not reject
any document on the ground of noncompliance of the
conditions set out in the impugned circular dated 12.07.2021 or
for noncompliance of Rule 44(1)(i)."
04. Before touching the grounds for review, we feel it
appropriate to go through the scope of review. It is well settled
that the powers of the Court under review are restricted. The
Hon'ble Supreme Court recently, in the case of S.
Madhusudhan Reddy Vs. V. Narayana Reddy and others, Civil
Appeals No.5503-04/2022 arising out of petitions for Special
4 Review Application No.246-22.odt
Leave to Appeal (Civil) No.9602-03 of 2022 has held in
paragraph No.18 that under the garb of filing a review
petition, a party cannot be permitted to repeat old and
overruled arguments for reopening the conclusions arrived at
in a judgment. The power of review is not to be confused with
the appellate power, which enables the Superior Court to
correct the errors committed by the subordinate Court. This
point has been elucidated in Jain Studios Ltd. Vs. Shin Satellite
Public Co. Ltd. (2006) 5 SCC 501, where it was held thus :
"11. So far as the grievance of the applicant on merits is
concerned, the learned Counsel for the opponent is right in
submitting that virtually the applicant seeks the same relief
which had been sought at the time of arguing the main matter
and had been negatived. Once such a prayer had been refused,
no review petition would lie which would convert rehearing of
the original matter. It is settled law that the power of review
cannot be confused with appellate power which enables a
superior court to correct all errors committed by a subordinate
court. It is not rehearing of an original matter. The repetition of
old and overruled argument is not enough to reopen concluded
adjudications. The power of review cannot be exercised with
extreme care, caution and circumspection and only in exception
cases."
"12. When a prayer to appoint an arbitrator by the applicant
herein had been made at the time when the arbitration petition
was heard and was rejected, the same relief cannot be sought by
an indirect method by filing a review petition. Such petition, in
my opinion, is in the nature of "second innings" which is
impermissible and unwarranted and cannot be granted."
5 Review Application No.246-22.odt
05. The Hon'ble Supreme Court reiterated, in the recent
judgment in the case of Pancham Lal Pandey Vs. Neeraj
Kumar Mishra 2023 Live Law (SC) 111 in paragraph 15 reads
thus;
"15. The provision of review is not to scrutinize the correctness
of the decision rendered rather to correct the error, if any, which
is visible on the face of the order/record without going into as to
whether there is a possibility of another opinion different from
the one expressed."
06. As discussed above, the issue before the Court in the writ
petition was limited to the powers to frame rules conferred
upon respondent No.2. Discussing the power, this Court held
that Rule 44(1)(i) of the Maharashtra Registration Rules, 1961
is beyond the rule-making power conferred upon by the
statute. Therefore, it became ultra vires. Though it has been
vehemently argued that the provisions of the other law relating
to the control and development of the land were not brought
to the notice of the Court, this appears not a ground to review
the earlier orders as those were not under challenge before the
Court.
07. The learned senior Counsel for the petitioners has raised
the following points :-
6 Review Application No.246-22.odt
A] The plain reading of Rule 44 of the Rules 1961,
shows that any statute, either of the State or the
Central Government, that contains any provision
restraining the transfer of immovable property
covered therein is automatically prohibited from
the registration.
B] While considering the challenge, this Court
failed to consider Sections 21 and 22 of the Act
1908.
C] There are various provisions under the
Maharashtra Land Revenue Code 1961 (Section
45) ("MLR Code" for short), the Maharashtra
Regional and Town Planning Act, Maharashtra
Apartment Ownership Housing and Area
Development Laws, the Real Estate (Regulation
and Development) Act, 2016, Maharashtra
Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 controlling the illegal
transfer of immovable property and has an
impact on the registration of documents.
D] Under Section 17 of the Act 1908, the Sub
Registrar has the power to refuse to register the
document by recording the reasons for such
refusal.
7 Review Application No.246-22.odt
E) Referring to Rule 44(1) of the Rules 1961, he
has vehemently argued that it has been framed
for compliance with provisions of the
Registration Act, i.e. before accepting the
document for registration. Sections 21 and 22 of
the Registration Act, which relate to Rule 44(1)
(i) were not considered.
F] Sections 3, 4, 11(1), and Section 13, read with
Rule 5 of the Act 1908, and the Maharashtra
Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management, Transfer) Act,
1963, were to be read together to ascertain the
powers of the registering Authority to verify the
genuineness and legality of the documents.
G] This Court has erroneously held that the
Government has no power under the Act 1908
to make a Rule, but under Section 21(1) and
under Section 69 of the Act 1908, the
Authorities have framed the rules, and those are
the Rules 1961. Once there are powers vested
with the applicants to frame the rules, then it
cannot be said that those are improper and
illegal.
H] Where the registration is refused, it is appealable
under Section 72 of the Act 1908. The
efficacious remedy to prefer the appeal against
the order refusing the registration was available
8 Review Application No.246-22.odt
to the original petitioners, but they directly
approached this Court under writ jurisdiction.
On this count also, the writ preferred before this
Court was untenable.
I] Section 17(1)(a) of the Act 1908 provides for
the compulsory registration of non-testamentary
documents. Section 49 of the Act 1908 speaks of
the admissibility of the document not registered.
J] The sale documents of the petitioners oppose the
public policy, and the Court must declare and
oppose the public policy in view of Section 23 of
the Contract Act.
K] Sections 21 and 22 of the Act 1908 and Rule 44
of Rule 1961 were not shown to the Court.
Hence the ratio in the case of M/s Sundarsons
and others Vs. State of Maharashtra, Union of
India and others Vs. S. Srinivasan (2012) 7
Supreme Court Cases 683, Maha Seedmen
Association and others Vs. Union of India
(2018) DGLS (Bom.) 222 were applied
erroneously.
L] The impugned circular did not go beyond the
rule-making power conferred by the parent
statute or supplant any provision for which
powers were not conferred. Therefore, the
9 Review Application No.246-22.odt
circular impugned before the Court does not
become ultra vires.
08. He, on the basis of the ratio laid in the case of Rajasthan
and others Vs. Basant Nahata (2005) 12, Supreme Court Cases
77, has argued that any transaction opposed to public policy is
invalid. While interpreting the concept of public policy, the
Court should consider Section 23 of the Contract Act with
other parts thereof. A transaction between two persons capable
of entering into a contract which does not contravene any
statute would be valid in law. Any contract violating any
statutes would be invalid. Therefore, the registering Authority
has every power to refuse the registration. A law dealing with
the rights of the citizen is required to be clear and
unambiguous. The Executive, while making subordinate
legislation, cannot be permitted to open new heads of public
policy at its whims. The provisions of the Act, therefore, do not
lay down any guidelines to render it constitutional. The Court's
duty is to expound the law and not to expand new heads of the
illegality of contract being opposed to public policy have been
found out, and in any event, there exists such a possibility.
Referring to the above ratio, he further argued that the
contract between the purchaser and seller of the immovable
10 Review Application No.246-22.odt
property was against public policy for the reason that it was
executed in violation of many other laws that hold the field.
09. In the above case, the registering Authority had refused
to register a power of attorney granted in favour of the person
to cultivate and manage the land for the reasons that the
contract was against public policy. The Hon'ble Apex Court
considering the term "opposed to public policy" held that the
amendment by way of inserting Section 22-A of the
Registration Act by the Rajasthan Amendment Act, 1976 (being
Act No.16 of 1976) was unconstitutional. It has also been held
that Section 22 of the said Act, through subordinate legislation,
cannot control the transactions which fall out of the scope
thereof.
10. He further relied on the case of Laxmi Ishwar More Vs.
State of Maharashtra and others (2018) 3 ALL M.R. 95, 2016
(4) Mh.L.J. 535 and argued that the provisions of Section 34 of
the Act 1908 prescribe what inquiry can be made by the
registering Officer before he registers a document. Paragraph
No.4, reads thus;
"4. The inquiry by Registrar under Section 34(3) of the said Act
is limited to the factum of execution of the document, identity of
persons appearing before the registering Authority and if a
11 Review Application No.246-22.odt
person appears through a representative or agent, then as
regards the right of such person to appear. Section 35 of the Act
1908 prescribes the procedure for admission/denial of execution
of a document."
11. Section 34 of the Act 1908 has no relevance to the
circular impugned. The impugned circular had no concern with
the identification of the person executing a document and the
description of the document. It is altogether different.
12. Learned Senior Counsel Shri. Dhorde also relied on the
case of Sanjay Ramdas Patil Vs. Sanjay and others (2021) 10
Supreme Court Cases 306. Referring to the basic rules of
interpretation of the statute, the Hon'ble Supreme Court, in
paragraph 30, has observed thus;
"30. It could be thus be seen that it is more than well settled
that it is the duty of the Court to construe the statue as a whole
and that one provision of the Act has to be construed with
reference to other provisions so as to make a consistent
enactment of the whole statue. It is the duty of the Court to
avoid a head-on clash between two sections and construe the
provisions which appear to be in conflict with each other in such
a manner as to harmonize them. It is further equally settled that
while interpreting a particular statutory provision, it should not
result into making the other provision a "useless lumber" or a
"dead letter". While construing the provisions, the Court will
have to ascertain the intention of the law-making Authority in
the backdrop of the dominant purpose and underlying
intendment of the statute."
12 Review Application No.246-22.odt
13. Learned Senior Counsel Shri. Dhorde relied on the case of
Dharni Sugars and Chemicals Ltd. Vs. Union of India and
others (2019) 5 Supreme Court Cases 480 . He referred to
paragraphs Nos.34 and 39 of the said judgment, which relates
to the fundamental rule of construction of the law. He further
relied on the case of Hira Singh and another Vs. Union of India
and another (2020) 20 Supreme Court Cases 272 and
vehemently argued that the circular impugned before the Court
was clarificatory in nature issued with abundant caution.
Therefore, it is not contrary to the scheme of the Act 1908. The
circular impugned before the Court ought to have been
interpreted in the larger interest considering the basic rule that
it is a duty of the Court to harmoniously interpret the statutes
looking to the legislative intent. He also relied on the case of
High Court of Judicature at Madras represented by its
Registrar General Vs. M. C. Subramaniam and others (2021) 3
Supreme Court Cases 560, in which, again, the golden rule of
interpretation has been discussed.
14. In a nutshell, learned senior counsel Shri. Dhorde has
brought a case that the circular was issued well within the
subordinate delegated power of the Authority. It was in the
13 Review Application No.246-22.odt
interest of the public to prevent the illegalities in implementing
the laws for the use and development of the lands. It is not in
contravention of the statutory provisions. However, the
incorrect case laws were placed before this Court. Therefore,
an erroneous judgment has been passed. His arguments also
revolve around the provisions of the Act of 1908 and other
relevant laws mentioned above. He tried to convince the Court
that the public interest needs to be protected; therefore, all the
relevant laws referred by him are to be read together to arrive
at the correct conclusion. Such an exercise was not done when
the Writ Petition was heard.
15. Per contra, learned counsel Shri. Totla for respondents
has advanced the oral arguments as well as submitted the
notes of written submissions. He argued on the following
points;
A] Unless the Act of 1908 is amended, the
petitioners cannot take the aid of the
subsequent Acts, like, MRTP, RERA, and MLR
Code.
B] Referring Sections 34 and 35 of the Act 1908,
he would argue that these sections deal with the
14 Review Application No.246-22.odt
appearance of the persons executing documents
and the satisfaction of the registering Authority
of the person executing the document.
C] Under the guise of exercising the powers of
review, the Court can correct the errors but not
substitute the view taken earlier merely because
there is no possibility of taking two views in the
matter.
D] Petitioners nowhere pointed out the errors. On
the contrary, they argued as if they were
arguing on merits.
E] The review applicants have raised fresh grounds
by taking recourse under Sections 21 and 22 of
the Registration Act, 1908. Those provisions of
the law were well within the knowledge of the
applicants, but they did not raise before the
Court when the petition was heard on merit.
F] Having Authority of law and subordinate
legislation in the form of the Rules 1961 cannot
enhance or amend the scope and powers
15 Review Application No.246-22.odt
conferred on registering authorities by way of
the Act 1908.
G] In the case at hand, there was no order of
conversion of land and the approved maps and
plans under the Regional Development Act and
MLR Code, and in the absence of any such
legally approved maps and plans, the registering
Authority had the power to refuse the
registration under Section 21 of the Registration
Act, but that was not the issue before the Court.
H] The learned Government Pleader had argued
the grounds raised under the review petitions
during the hearing of the writ petition. The
relevant provisions of the law were referred to
the Court along with the case laws. Therefore, it
cannot be said that any relevant provisions of
the law were hidden from the Court. The
Advocate General for Maharashtra is not a
necessary party.
I] Rule 44 of the Rules 1961 does not empower
the registering Authority to have a concern with
16 Review Application No.246-22.odt
the title of the party. Ground 'C' in the review
petition is a new ground.
16. He relied on the case of S. Madhusudhan Reddy Vs. V.
Narayana Reddy and others (Civil Appeals No.5503-04 of
2022) decided on 18.08.2022 by the Hon'ble Supreme Court
and argued that under the garb of filing a review application, a
party could not be permitted to repeat old and overruled
arguments for reopening the conclusions arrived at in a
judgment. The power of review is not to be confused with the
appellate power, which enables the Superior Court to correct
errors committed by a Subordinate Court. An erroneous
decision of a Court can be corrected by exercising review
jurisdiction but can only be corrected by a superior Court. An
error that has to be detected by the process of reasoning
cannot be described as an error apparent on the face of the
record for the Court to exercise its power of review. In view of
the ratio laid down in the above case, the applicants have to
justify the maintainability of the present review application,
which they did not have discharge. Under the pretext of filing
the review application, the applicants herein have taken the
law into their hands, refused to comply with the directions and
judgment passed by this Court, and acted willfully in
17 Review Application No.246-22.odt
disobedience of the impugned judgment and order. In fact, the
grounds raised in the review application are reopening of the
old and overruled arguments which were dealt with in the
impugned judgment under review.
17. He also relied on the case of [Additional District
Magistrate (Rev.) Delhi Administration Vs. Siri Ram, (2000) 5
SCC 451]. It has been observed in the said case that the
conferment of the rules-making power by an Act does not
enable the rule-making Authority to make a rule which travels
beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto.
18. Learned Counsel for the contesting respondents, Shri.
Totla has relied on the case of Union of India and others Vs. S.
Srinivasan (2012) 7 SCC 683, in which it has been held "where
the rule is directly inconsistent with a mandatory provision of
the statute, then of course, a task of the Court is simple and
easy". Therefore, the Court, while delivering the judgment
under review, has read down Rule 44(1)(i) of the Rules, 1961
and struck down the impugned circular dated 12.07.2021
issued thereunder. He further read paragraphs Nos.28, 29 and
32 of the judgment under review and supported the said
18 Review Application No.246-22.odt
judgment. He has also referred to the case of M/s Sundarsons
and others Vs. State of Maharashtra and others (Writ Petition
No.1955 of 2007) with connected matters decided on
26.06.2008, which was based on analogous facts, wherein
Section 34 and 35 of the Registration Act, 1908 were
interpreted, and it was held that "executive instructions given
by the State by exercising its power under Article 162 of the
Constitution of India cannot circumvent a statutory provision".
He has vehemently argued that the precedents relied upon by
this Court in the judgment under review were correctly
considered. Therefore, the argument advanced, pointing out
that those judgments were irrelevant and no correct law was
placed before the Court. The applicants have not shown a
single error apparent on the face of the record of proceedings
in Writ Petition No.2111 of 2022 nor produced any new
material, evidence on record or sufficient reasons justifying the
present review. It must be remembered that an error which is
not self-evident and has to be detected by the process of
reasoning can hardly be said to be an error apparent on the
face of the record justifying the powers of review, and it is not
permissible for an erroneous decision to be reheard and
corrected in review as review application is for a limited
purpose and cannot be allowed to be an appeal in guise.
19 Review Application No.246-22.odt
19. The learned Counsel for the respondents, Shri. Totla,
also relied on the judgment Gurjeet Singh Madaan Vs. The
Sub-Registrar-IX (District South-West) and another C.S.
(O.S.)340/2013, decided by the High Court of Delhi on
26.09.2013 and argued that Section 21 of the Act 1908 had
been discussed. In the said case, the ratio laid down in the case
of Hari Singh and another Vs. Sub Registrar and others (1998)
120 Punjab Law Reporter 787 has been referred to, and it has
been observed that Act 1908 itself is a complete code. The
reasons have been specifically enumerated under Sections 21,
23, 28, 32 and 35 of the Act for which a Sub Registrar or the
Registrar may refuse to register the sale deed and other
documents required to be registered under the Act 1908. He
also relied on the case of Kerala State Electricity Board and
others Vs. Thomas Joseph @ Thomas M. J. and others , the
judgment of the Hon'ble Supreme Court, dated 16.12.2022 in
Civil Appeal Nos.9252-9253 of 2022 (Arising out of SLP (C)
Nos.7860-7861 of 2018). In paragraph No.78 of the said
judgment, it has been observed that the Court, considering the
validity of subordinate legislation, will have to consider the
nature, object and scheme of the enabling Act and also the
area over which power has been delegated under the Act and
20 Review Application No.246-22.odt
then decide whether the subordinate legislation conforms to
the present statute. He has tried to argue on the basis of the
ratio laid down by the Hon'ble Apex Court in the case (supra)
that while exercising the delegated power to legislate, it must
be examined whether the subordinate legislation conforms to
the parent statute. If it is not so, the delegated powers to
legislate cannot be exercised. He also referred to paragraph
No.81(18), wherein it has been observed that the statutory
bodies cannot use the power to make rules and regulations to
enlarge the powers beyond the scope intended by the
Legislature. Rules and regulations made by reason of the
specific power conferred on the statute to make rules and
regulations establish the pattern of conduct to be followed.
Rules are duly made relative to the subject matter on which the
statutory bodies act subordinate to the terms of the statute
under which they are promulgated. Regulations are in aid of
the enforcement of the provisions of the statute. In view of the
erroneous exercise of the delegated powers by the Authority,
issuing the impugned circular has exceeded his jurisdiction.
Therefore, the Court, in Writ Petition, has correctly declared
the impugned circular illegal. The provisions under the various
laws regulating the management, control and development of
the land have their own effect on the object of those Acts.
21 Review Application No.246-22.odt
20. In reply to the objection raised by the learned senior
Counsel, Shri. Dhorde, that the efficacious remedy was
available to the applicants. Hence, the writ petition ought not
to have been considered, learned Counsel Shri. Totla has
correctly pointed out that preferring the appeal against the
refusal of the registration of the document under the impugned
circular and challenging the virus of the Rules under which the
impugned circular was issued were distinct issues. Instead of
challenging the order refusing the registration of the
document, the original petitioners have preferred the writ
petition challenging the vires of the circular has no concern
with the appeal proposed against the rejection of the
registration. The law is well settled that an alternative remedy
is not an absolute bar to the admissibility of the writ petition.
In Whirlpool Corporation Vs. Registrar of Trade Marks of
Mumbai and others (1988) 8 Supreme Court Cases 1 , the
Hon'ble Supreme Court has held that under Article 226 of the
Constitution of India, the High Court, having regard to the
facts of the case, has the discretion to entertain or not to
entertain the writ petition. But the High Court has imposed
upon itself certain restrictions, one of which is that if an
effective and efficacious remedy is available, the High Court
22 Review Application No.246-22.odt
would not normally exercise its jurisdiction. But, the
alternative remedy has been consistently held by this Court not
to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of
any of the fundamental rights or where there has been a
violation of the principle of natural justice or where the order
or the proceedings are wholly without jurisdiction or the vires
of an Act is challenged.
21. In the facts and circumstances of the case, the Court is of
the view that an appeal against the rejection of the registration
referring to the impugned circular is a distinct remedy. That
appeal is not the effective and efficacious remedy to challenge
the vires of the Rules, the validity and legality of the impugned
circular issued under said Rules and the powers of the
Authority exercising delegated legislation. In light of the law
and facts, we are of the view that the Writ Petition of the
respondents was not bad in law.
22. Learned Senior Counsel Shri. Dhorde heavily
emphasized that Sections 21 and 22 of the Registration Act
were not brought to the notice of the Court, which confers the
powers upon the registering Authority to issue the circular in
23 Review Application No.246-22.odt
question. To have a glance, said Sections have been reproduced
thus;
"21. Description of property and maps or plans.- (l) No non-
testamentary document relating to immovable property shall be
accepted for registration unless it contains a description of such
property sufficient to identify the same.
(2) Houses in towns shall be described as situate on the north or
other side of the street or road (which should be specified) to
which they front, and by their existing and former occupancies,
and by their numbers if the houses in such street or road are
numbered.
(3) Other houses and lands shall be described by their name, if
any, and as being in the territorial division in which they are
situate, and by their superficial contents, the roads and other
properties on to which they abut, and their existing occupancies,
and also, whenever it is practicable, by reference to a
Government map or survey.
(4) No non-testamentary document containing a map or plan of
any property comprised therein shall be accepted for registration
unless it is accompanied by a true copy of the map or plan, or, in
case such property is situate in several districts, by such number
of true copies of the map or plan as are equal to the number of
such districts."
"22. Description of houses and land by reference to Government
maps or surveys.-(l) Where it is, in the opinion of the [State
Government], practicable to describe houses, not belong houses.
in towns, and lands by reference to a Government map or
survey, the 27[State Government] may, by rule made under this
Act, require that such houses and lands as aforesaid shall, for
the purposes of section 21, be so described.
24 Review Application No.246-22.odt
(2) Save as otherwise provided by any rule made under sub-
section (I), failure to comply with the provisions of section 21,
sub-section (2) or subsection (3), shall not disentitle a document
to be registered if the description of the property to which it
relates is sufficient to identify that property."
23. The learned Senior Counsel, Shri. Dhorde, for the
petitioners, referred to and commented on almost all the
provisions of the Act of 1908. Hence the relevant Sections
concerned with the issue raised in the application have to be
considered.
24. Section 17 of the 1908 Act is about the documents for
which registration is compulsory. A document affecting the
transfer of immovable property under the Transfer of Property
Act for Rs. one hundred and more, if not registered, shall not
be received as evidence of any transaction affecting such
property or conferring such rights under section 49 of the Act
1908.
25. Section 21 of the 1908 Act provides that no non-
testamentary document relating to immovable property shall
be accepted for registration unless it contains a description of
such property sufficient to identify the same. In other words, if
25 Review Application No.246-22.odt
the document does not contain the description of the property
proposed to be transferred, the registering Authority may
refuse registration.
26. Section 23 of the said Act says that no document other
than a Will shall be accepted for registration unless presented
to the proper Officer within four months from its execution,
subject to the provisions of Sections 24, 25 and 26. That again
confers the powers upon registering Authority to refuse the
registration.
27. Section 28 of the said Act says about the territorial
jurisdiction of the office of the Sub-Registrar. If the property
proposed to be transferred is not within the jurisdiction of the
Sub-District of the Sub-Registrar, he has the power to refuse
the registration.
28. Section 32 speaks about the presence of the persons to
present the documents for registration, except in the cases
under Sections 31, 88 and 89.
29. Section 35 further confers the powers on the Registering
Authority to refuse the registration of the document presented
if any person by whom the document purports to be executed
26 Review Application No.246-22.odt
denies its execution or if any such person appears to the
registering Officer to be a minor, an idiot or lunatic, or if any
person by whom the document purports to be executed is dead
and his representative or assign, denies its execution.
30. The above sections relate to the powers of registering
Authority to deny the registration.
31. In view of the arguments of learned senior counsel Shri.
Dhorde, it has to be examined whether the Authority has the
delegated powers to frame the rules denying the registration of
the documents under Section 21 of the 1908 Act.
32. For framing the rules by the Authority under delegated
Legislature needs the source of powers. Such powers may be
expressed, implied or inherent. The expressed powers are
directly given under the enactment, and implied powers are
those powers that are reasonably inferred by expressed power.
The need for these powers is spelt out in the 'necessary and
proper' clause of the Act. In view of such principles of the
delegated Legislature, the arguments of learned senior Counsel
are to be tested.
27 Review Application No.246-22.odt
33. Section 21 of the 1908 Act, as discussed above, provides
that the non-testamentary document relating to the property
shall not be accepted for registration unless it contains a
description of such property sufficient to identify the same.
Sub-Section (4), which is relevant, provides that the
registration of the document shall be refused where the
document is not accompanied by a true copy of the map or
plan. In short, for registration of the document affecting the
transfer of immovable property, copies of the map and plan are
essential to be accompanied by the document. The word 'map
or plan' used in Sub Section (4) of Section 21 shall mean the
legally approved map or plan. The term map and plan' has to
be read with the provisions of the Maharashtra Regional Town
Planning Act and section 44 of M.L.R. Code, which provides for
the approval of the maps and conversion of the land from
agricultural to nonagricultural use. However, by Bombay Act
No.17 of 1930, in the application of Section 21 to the State of
Maharashtra, part XI-A was inserted after Part XI of the main
Act. Sub-Section, 3 of Section 70-B (3), has been inserted in
the main Act by the Bombay Act 17 of 1930, and Sub-Section
(4) of Section 21 has been omitted. Since the application of
Sub Section 4 of Section 21 as to the State of Maharashtra has
been omitted, the provisions of part XI-A would apply. Chapter
28 Review Application No.246-22.odt
XI-A speaks of copying the documents by means of
Photographs. Barely the mode of preparing the copies of the
document has been modified, and instead of manual copies,
the photocopies of the documents were directed to be received
with the document. By the omission of Sub Section (4) of
Section 21 and inserting Chapter XI-A, the requirement to
produce copies of the map or plan appears to have not been
taken away.
34. In the impugned circular, it was directed to the
registering Authority to ascertain;
(i) Whether the transaction which is intended by
the document is prohibited by any existing Act of
Central or State Government,
(ii) Whether a true copy of requisite permission or
no objection certificate from the competent Authority
under the said Act has been attached along with the
document,
(iii) Whether the document is not written in
contradiction with any vital term or condition
mentioned in that permission or no objection
certificate.
29 Review Application No.246-22.odt
35. In the said circular, Section 8-B of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings
Act, 1947 (Fragmentation Act for short) has been referred.
The said Section reads thus :
"8B. Nothing in sections 7, 8 and 8AA shall apply to the land
situated within the limits of a Municipal Corporation or a
Municipal Council, or to the land situated within the jurisdiction
of a Special Planning Authority or a New Town Development
Authority appointed or constituted under the provisions of the
Maharashtra Regional and Town Planning Act, 1966 or any
other law for the time being in force, and also to any land
allocated to residential, commercial, industrial or any other
nonagricultural use in the draft or final Regional plan prepared
under the Maharashtra Regional and Town Planning
Act, 1966 or any other law for the time being in force :
Provided that, no person shall transfer any parcel of land
situated in the areas specified above, which has area less than
the standard area notified before the date of coming into force
of the Maharashtra Prevention of Fragmentation and
Consolidation of Holdings (Amendment) Act, 2015, unless such
parcel is created as a result of sub- division or layout approved
by the Planning Authority or the Collector, as the case may be,
under the provisions of the Maharashtra Regional and Town
Planning Act, 1966 or any other law for the time being in
force.]."
36. Section 8B, reproduced above, pertains to restrictions on
dividing the land into pieces below the standard area. It has
been provided that no person shall transfer any parcel of land
30 Review Application No.246-22.odt
situated in the areas specified in the said Section which has an
area less than the standard area notified before the date of
coming into force of the Fragmentation Act unless such parcel
is created as a result of sub-division or layout approved
planning Authority or the Collector, as the case may be, under
the provisions of the Maharashtra Regional Town Planning Act,
1966 or any other law for the time being in force.
37. Section 9 of the Fragmentation Act provides that the
transfer or partition of any land, contrary to the provisions of
the said Act, shall be void. The Collector has the power to
summarily evict any person unauthorizedly occupying or
wrongfully in possession of any land, the transfer or partition
of which, either by the Act of parties or by the operation of law,
is void under the provisions of said Act. The Collector may, on
an application, regularize the transfer or partition of land
contrary to the provisions of the said Act made on or after the
15th day of November 1965 and before the date of
commencement of Maharashtra Prevention of Fragmentation
and Consolidation of Holdings (Amendment) Act, 2017. The
Maharashtra Prevention of Fragmentation and Consolidation of
Holdings Act imposes a duty on the Collector to prevent the
31 Review Application No.246-22.odt
fragmentation of the land. The 1809 act does not fetter the
Collector's power to prevent the fragmentation of the land.
38. It is clarified that declaring the circular impugned ultra
vires does not mean that this court has taken away the powers
of the Collector or any competent Authority conferred with
jurisdiction under the Fragmentation Act to prevent the
illegality committed by a person.
39. The property description in the document placed for
registration by the respondents was of the land in the Village
Panchayat limit. The document placed regarding the
conversion of land to non-agriculture use accompanied with
was not the order passed by the Collector granting permission
to convert the use of land from agriculture to non-agriculture.
It was an order imposing a penalty for an illegal change of use
of the land. It has been specifically observed in the said order
that it shall not be construed as permission to convert the use
of land. The land owner or the row house builder did not
comply with Section 31 of the Maharashtra Prevention of
Fragmentation and Consolidation of Holdings Act, the Town
Planning Authority or the Collector approved the layout. So it
is assumed that the approved maps and plans did not
32 Review Application No.246-22.odt
accompany such documents, and the document may not be in
compliance with Section 21 of the Act 1908.
40. The general rule of exercising delegated power is that it
must be exercised in conformity with the enabling Act. The
ratio laid down in the case of Union of India Vs. S. Srinivasan
(2012) 7 SCC 683 has been considered in which it was held
that "if a rule goes beyond the rule-making power conferred by
the statute or supplants any provisions for which power has
not been conferred, it becomes ultra vires. The basic test is to
determine and consider the source of power which is reliable
to the rule. Similarly, the rule must be in accordance with the
provisions of the parent Act as it cannot travel beyond it."
41. It has been observed in the case of Kerala state
Electricity Board (supra) that the Court considering the validity
of subordinate legislation, will have to consider the nature,
object and scheme of the enabling Act, and also the area over
which power as has been delegated under the Act then decide
whether sub-ordinate legislation conforms to the parent
statute.
42. Rule 44(1)(i) Rules, 1961 was amended, exercising the
powers conferred upon respondent No.3 under Section 69 of
33 Review Application No.246-22.odt
the Act, 1908, in its application to the State of Maharashtra.
Those are the expressed powers and a positive delegation.
Section 69 of the Registration Act is the source of the power of
the Inspector General to make rules in conformity with the Act
1908. The powers conferred have been restricted to the
subjects mentioned in Sub Section 1(a) to (j). None of the
subjects in the said Section covers the rules impugned before
us.
43. Section 3(51) of the General Clauses Act, 1897 appears
relevant for the issues before the Court that contains the
definition of 'rule' in the following words :
" 'Rule' shall mean a rule made in exercise of a power conferred
by any enactment, and shall include a regulation made as a rule
under any enactment."
44. The above definition again clarified the limits of the
subordinate legislation that the rules shall be framed in the
exercise of the powers conferred by the enabling Act. The Rules
cannot overwrite the Act either by exceeding the Authority or
by making provisions inconsistent with the Act, but when the
enabling Act itself permits its modification by rules, the rules
will have a binding effect in tune with the Act.
34 Review Application No.246-22.odt
45. Reading the various sections referred to by the learned
senior Counsel for the present petitioners under the Act 1908,
we do not agree that Section 21 of the said Act confers the
powers upon respondent no.3 to frame the rules. However, it is
clear that Act 1908 is a complete code, and specific Sections
have been inserted conferring the power upon the registering
Authority to refuse the registration. The Registering Authority
may exercise the power of refusing the registration of the
document if it is not complete in terms and requirements of the
Sections discussed above. In the impugned judgment under
review, the Court has not disturbed the powers of the
Registering Authority.
46. Reading the relevant provisions of various Acts relating
to the transfer, conversion of use and development of land, as
referred to by the learned senior Counsel Shri. Dhorde, we are
of the opinion that those provisions have no control over the
provisions of the 1908 Act. Those Acts provide for independent
legal actions for its violation.
47. On discussing the various provisions of different laws
and considering the arguments of respective counsels, we are
of the opinion that the law laid in the cases of Jain Studio Ltd.
35 Review Application No.246-22.odt
and Pancham Lal (supra) squarely applies as regards the
powers of review and there was no error apparent on the face
of the record. The present petitioners failed to satisfy us that
there were grounds to review the impugned judgment and
order.
48. For the above reasons, the review application stands
dismissed.
49. The pending Civil Applications do not survive and stand
disposed of.
13th April, 2023
50. After the judgment in the Review Application was
pronounced in the open court, the learned Government Pleader
prays for continuation of the order dated 20.10.2022 for a
further period of four weeks as the State Government desires
to approach the Hon'ble Supreme Court.
51. Shri. Totla, the learned counsel has vehemently opposed
the said request contending that the persons, who desire to get
their documents registered, are facing severe hardships.
36 Review Application No.246-22.odt
We are reproducing the relevant portion of the order
dated 20.10.2022, viz. paragraph No.3, as under :
"3. Since we are going to hear this matter finally on
16.11.2022, we expect that there should not be any insistence
from anybody on the authorities concerned to register the
documents pursuant to the order under review and more so in
view of the fact that no such registration has been carried out
ever since the pronouncement of the order dated 05.05.2022."
52. Since the above arrangement was in operation for the
last five months, we are of the view that as the State
Government desires to approach the Hon'ble Supreme Court,
the same arrangement be continued for a period of four weeks
only. We therefore, order accordingly.
(S. G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
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