Bombay High Court
Ashapura Ramdev Buildcon Llp vs State Of Maharashtra on 7 June, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-OS:4570-DB Ashapura Ramdev Buildcon LLP & Ors v State of Maharashtra & Ors
26-oswp-512-2023-J.doc
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 512 OF 2023
1. Ashapura Ramdev Buildcon
LLP,
Through its partner Mr Dhaval Bhadra
a Limited Liability Partnership Firm
registered under the provisions
of the Indian Partnership Act, 1932,
having its place of business at
10, Mithila Shopping Centre,
Ground Floor, VM Road, Juhu Scheme,
Vile Parle (West), Mumbai 400 049.
2. Dhaval Bhadra,
Aged: 29, Indian Inhabitant,
Partner of the Petitioner No.1 having
Office Address at 10, Mithila Shopping
Centre, Ground Floor, VM Road,
Juhu Scheme, Vile Parle (West),
Mumbai 400 049.
3. Ramdev Builders &
Developers,
Through its partner Mr Ashok Patel
Alias Board a Partnership Firm
registered under the Provisions of the
Indian Partnership Act, 1932, having its
place of business at A-001, Renuja
Palace, Building No. 26,
Near Srusti Bridge, Shanti Park,
Mira Road (East), Thane 401 107.
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4. Ashok Patel Alias Borad,
Aged: 46, Indian Inhabitant,
Partner of the Petitioner No.3 having
Office Address at A-001, Renuja Palace,
Building No.26, Near Srustri Bridge,
Shanti Park, Mira Road (East),
Thane 401 107. ...Petitioners
~ versus ~
1. State of Maharashtra,
Through the Housing Department,
Mantralaya, Mumbai 400 032.
2. High Power Committee -
(ACB),
Administrative Building, Prof Anant
Kanekar Marg, Bandra (East),
Mumbai 400 051.
3. The Slum Rehabilitation
Authority,
Having its address at Administrative
Building, Prof Anant Kanekar Marg,
Bandra (East), Mumbai 400 051.
4. The Chief Executive
Officer, Slum
Rehabilitation Authority,
having his address at Administrative
Builders, Prof. Anant Kanekar Marg,
Bandra (East), Mumbai 400 051.
5. Executive Engineer-IV,
Slum Rehabilitation Authority
having its address at Administrative
Building, Prof Anant Kanekar Marg,
Bandra (East), Mumbai 400 051.
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6. Shivaji Nagar Rahiwasi SRA
CHS (Prop),
Having its address at FP No. 386 and
387, Village Shimpoli, TPS-III,
Borivali (West), Mumbai 400 092. ...Respondents
A PPEARANCES
for the petitioner Dr Abhinav Chandrachud , with
Vaibhav Charalwar, Santosh
Pathak, Nimish Lotlikar, i/b
Santosh Pathak.
for respondent no.1- Mr LT Satelkar, AGP.
state
for respondent Mr Vijay Patil.
no.2-agrc
for respondents Mr Jagdish G Aradwad (Reddy).
nos. 3, 4 & 5-SRA
for respondent no.6 Mr P Ranjan, i/b Shashank Boarde.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 7th June 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Rule. Returnable forthwith.
2. The Petitioners claim to own final plot No. 387 of Town
Planning Scheme-III at Shimpoli, Boriwali west. The Petitioners say
that they have "undertaken" a redevelopment project not only on
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this land FP 387 but also sought to expand it to the adjacent or
abutting plots FP No. 386, (government-owned) and FP No. 389
(owned by and vested in MTNL).
3. This tells us that of the three plots there is only one to which
the Petitioner claims title as owner. That is FP 387. The challenge is
to an order of 21st February 2019. We find a copy of this order at
page no. 44. It was passed by the High Power Committee. It seems
that this was a suo moto proceeding and what engaged the
committee was a question of "approval of layout without a clear title
of ownership". That is all that concerns us today.
4. The Petitioner produced before this committee a registered
deed of confirmation saying that it was under this registered deed
that the Petitioner had acquired title to FP 387. The High Power
Committee, in our view entirely erroneously, proceeded to hold that
Petitioner "did not have clear title" inter alia because it had not
produced a registered conveyance.
5. The entire approach is fundamentally flawed. The deed of
confirmation is a registered document. If it has to be questioned or
set aside, this is not achieved by some committee forming an
opinion. A question of title is the exclusive preserve of a Court of
competent civil jurisdiction. Some person would have to challenge
the title and a civil Court, if persuaded that the challenge was good,
would have to fashion a decree accordingly including an order
directing that the registered document be delivered up for
cancellation. Otherwise, a registered document would remain as is
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that is to say, outstanding, with everything that this implies
including inter alia under the Registration Act. The High Power
Committee certainly does not have the powers of a civil Court to
make such declarations of title to property.
6. A more serious problem is the question that the High Power
Committee's order leaves unanswered. If the Petitioner is not the
owner of FP No. 387 on the basis of the registered confirmation
deed, then who is? This is not a question that the High Power
Committee addresses at all in its impugned order. There is no
presumption that on an opinion expressed like this the title could be
said to vest in the Government.
7. Most importantly, we do not see how under the Maharashtra
Slum Areas (Improvement, Clearance, and Redevelopment) Act,
1971 ("Slum Act") private property can be taken up for
redevelopment in this fashion i.e., by defeating property owner
rights without following the process of law. Even the Slum Act
under Chapter V contemplates a proper acquisition of private land
for slum redevelopment purposes. There are other provisions, to be
sure, such as the ones that allow the Slum Rehabilitation Authority
("SRA") to issue directions for improvement works on notified
areas for slum improvement. Even that has not been followed.
8. The question of the registration of a deed of confirmation is
actually settled law of several decades' standing. We note the
decision of a learned Single Judge of this Court (Bharti Dangre J) in
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Nimesh J Patel Vs MCGM and Anr.1 Paragraphs 13 to 16 of the
decision read thus:
"13. Learned counsel Mr. Naushad Engineer would urge
that the finding rendered by the learned City Civil Court at
Bombay has failed to take into consideration, the settled
position of law and the impugned order is liable to be
quashed and set aside, since it has been recorded that the
petitioner had failed to prove her title as the deed of
conveyance is not registered and the deed of confirmation
though registered, did not cure the defect of non
registration of the deed of conveyance. He placed reliance
on the decision of the Hon'ble Supreme Court in the case
of Official Trustee of West Bengal v. Stephen Court Ltd.
reported in (2006) 13 SCC 401, which, in turn, has
confirmed the decision in the case of Mitchell v. Mathura
Dass reported in (1884-85) 12 IA 150. A decision of this
court in the case of Mahendra Valjirathod v. National Radio
and Electronics Company reported in 2019 SCC OnLine Bom
788 is also pressed into service in support of his submission
about the misconstruction of the deed of conveyance. In his
submission he is also joined by learned counsel Mr. Bhosale
and Mr. Soni.
14. The decision in the case of Mitchell (supra) by the
Privy Council deals with the effect of the registered
instrument confirming a prior one with the same
purport, which is not registered. The decision came to
be delivered in the backdrop of an instrument
purporting to assign a right in an immoveable property
of more than the value of Rs. 100/- being unregistered
and was projected as ineffectual to effect the title of the
purchaser. Some years after, the parties executed a deed
of conveyance making the same assignment, confirming
the former instrument and setting it forth in a schedule,
1 2021 SCC OnLine Bom.6588
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the later instrument being registered. In a suit in which
the ownership of the property was contested, the Privy
Council held that the fact of the prior deed not having
effected, being unregistered was no reason why the deed
afterwards registered should not be admitted as
document of title. Recording that in construing so, there
had been nothing contravening the object of the
Registration Act, the decision of the High Court came to
be reversed.
15. The Apex Court while dealing with the effect of
nonregistration of the document, which is subsequently
cured by registering the very same document at a later point
of time, in Official Trustee of West Bengal (supra) gainfully
relied upon the decision of the Privy Council in Mitchell
(supra) and in the facts placed before it, by referring to the
recitals in the supplementary agreement, which was duly
registered, though by curing the defect in the earlier deed of
assignment, which was not registered, recorded as under:
"19. Broadly speaking the supplementary
deed provided for the issuance of debentures
by the appellant in favour of Arathoon
Stephen. Until and unless the appellant had
paid off the debentures the scheme of trust
was to continue but:
"Upon proof being given to the
reasonable satisfaction of the
trustees that all the debentures
entitled to the benefit of the
trusts herein contained ... have
been paid off or satisfied and
upon payment of all costs,
charges and expenses incurred
by the trustees in relation to
those presents the trustees shall
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at the request and cost of the
Company ... release the charged
premises from this security."
20. The effect of such an unregistered deed
vis-à-vis a supplementary deed by way of
debenture trust deed came up for
consideration before the Privy Council in
Mitchell v. Mathura Dass wherein it was
opined: (IA P. 156)
"The Registration Act was not
passed to avoid the mischief of
allowing a man to be in
possession of real property
without having a registered
deed, but as a check against
the production of forged
documents, and in order that
subsequent purchasers, or
persons to whom subsequent
conveyances of property were
made, should not be affected
by previous conveyances
unless those previous
conveyances were registered."
21. In that case William Mitchell was
indebted to Mathura Dass. The latter sought
to attach a property on the basis that it
belonged to the former. William's father
Alexander, claimed that the property
belonged to him. In the proceeding, two
documents came to be filed, namely, one
purporting to be a deed of conveyance of the
property to himself and the other a
confirmation bond executed by the same
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parties as the conveyance in the subsequent
deed.
22. The Judicial Committee held that the
second deed being registered was a valid
conveyance of the property to Alexander."
16. The decision in Mitchell (supra) was followed by a
decision of the Division Bench of this court in Jamna Bai v.
Dharsey Takersey reported in (1902) 4 BLR 893.
Conclusively, the supplementary agreement, which was
registered relating to the conveyance of the same
interest between the same parties was held to cure the
defect of non-registration of an earlier document in
respect of the conveyance of the interest in question.
Recording that the supplementary agreement, a
registered trust deed, conveys the same leasehold rights
executed between "A" and the respondent-company, it
was held that due registration of the latter conveyance
cured the defect on nonregistration of the earlier
conveyance."
(Emphasis added)
9. We are entirely in agreement with the findings of the learned
Single Judge. We affirm that decision entirely. Since this is the
position in law, the finding returned by the Committee to the
contrary is clearly contrary to law and cannot be sustained. The
registered Deed of Confirmation is sufficient title. An opinion of a
Committee cannot displace a registered document.
10. The Petitioner has filed an application for a consolidated or
amalgamated development across all three plots. A copy of that
application is at page 60. It is dated 23rd June 2017. It is now ripe for
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disposal. The Executive Engineer of the SRA will decide that
application uninfluenced by the High Power Committee's
observations at the earliest, and, in any event, within six weeks from
today.
11. Accordingly, the Petition succeeds. Rule is made absolute in
terms of prayer clause (a) and the directions above.
12. In the facts and circumstances of the case, there will be no
order as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
7th June 2023
