Bombay High Court
Kashish Park Realty Pvt. Ltd. And Anr vs The State Of Maharashtra And Ors on 11 December, 2020
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
Megha 4_wpst_93044 of 2020 and group matters_new.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 93044 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Sudarshan CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M6, Kashish
Park, L.B.S. Marg, Mulund Check
Naka
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje
Naupada, Thane ...Respondents
WITH
WRIT PETITION (STAMP) NO.93055 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
1/33
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Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Neelkanth CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M9, Kashish
Park, L.B.S. Marg, Mulund Check
Naka
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93050 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
2/33
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3) Siddhivinayak CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M3, Kashish
Park, L.B.S. Marg, Mulund Check
Naka
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93054 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Chintamani CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M8, Kashish
Park, L.B.S. Marg, Mulund Check
Naka.
4) FGP Ltd., having its registered
3/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WRIT PETITION (STAMP) NO.93062 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Ganesh Krupa CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M5, Kashish
Park, L.B.S. Marg, Mulund Check
Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
4/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93049 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Om Ved CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M4, Kashish
Park, L.B.S. Marg, Mulund Check
Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
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WRIT PETITION (STAMP) NO.93057 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Shree Swami Samarth CHS Ltd., a
society registered under the
provisions of the Maharashtra Co-
operative Societies Act, 1960
having its estate and ofce at M10,
Kashish Park, L.B.S. Marg, Mulund
Check Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93141 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
6/33
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the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Sai Chhaya CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M2, Kashish
Park, L.B.S. Marg, Mulund Check
Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93046 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Rajmata Bldg. No.7 CHS Ltd., a
society registered under the
7/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc
provisions of the Maharashtra Co-
operative Societies Act, 1960
having its estate and ofce at M7,
Kashish Park, L.B.S. Marg, Mulund
Check Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1
9) City Survey Ofcer, Mouje ...Respondents
Naupada, Thane
WITH
WRIT PETITION (STAMP) NO.93059 OF 2020
1) Kashish Park Reality Private Limited
2) Saurabh Bharat Agarwal ...Petitioners
Versus
1) The State of Maharashtra through
the Ministry of Co-operation,
Mantralaya, Mumbai.
2) District Deputy Registrar and
Competent Authority, Co-operative
Societies, Thane
3) Om Shree CHS Ltd., a society
registered under the provisions of
the Maharashtra Co-operative
Societies Act, 1960 having its
estate and ofce at M1, Kashish
Park, L.B.S. Marg, Mulund Check
Naka.
4) FGP Ltd., having its registered
Ofce at 9, lallace Street, Fort,
Mumbai 400 001
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Megha 4_wpst_93044 of 2020 and group matters_new.doc
5) Ladam Homes Pvt. Ltd. having its
registered ofce at Ladam House,
M Road, lagle Industrial Estate,
Thane, 400604
6) Residency Co-operative Housing
Society Ltd., having its ofce at
7) The Bombay Burmah Trading
Corporation Ltd.
8) The Sub Registrar of Assurances
Thane-1 ...Respondents
9) City Survey Ofcer, Mouje
Naupada, Thane
....
Mr. P.K. Dhakephalkar, Sr. Advocate i/b. M/s. Narayanan and Narayanan
for the Petitioner in all the Petitions
Mr. G.S. Bhat for Respondent No.3 in all the Petitions.
Mr. A.B. Kadam, AGP in lPST/93044/2020, lPST/93055/2020
&lPST/93057/2020.
Mrs. M.S. Bane, AGP in lPST/93059/2020 and lPST/93141/2020.
Mrs. V.S. Nimbalkar, AGP in lPST/93050/2020
Mr. P.V. Nelson Rajan, AGP in lPST/93049/2020
Mr. P.P. Pujari, AGP in lPST/93062/2020
Mr. S.H. Kankal, AGP in lPST/93046/2020 and lPST/93054/2020.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : 11th DECEMBER, 2020.
JUDGMENT:-
Rule. Rule is made returnable forthwith. lith consent of the parties, the Petitions are heard fnally.
2. By these Petitions, fled under Article 227 of the Constitution of India, the Petitioners have challenged the Corrigenda all dated 06/08/2020 issued by Respondent No.2-Competent Authority 9/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc rectifying the certifcates issued under Sub Section 4 of Section 11 of Maharashtra Ownership of Flats Act, 1963 ('MOFA' for short) and consequent registration of the deeds of conveyance in the ofce of Respondent No.8-Sub Registrar of Assurances, Thane-1.
2. It is not in dispute that Respondent No.4 was the owner of land under C.S. Nos.2 to 21, 37, 38, 39 and 40 (part) of village Naupada, Taluka and District-Thane. Respondent No.4 had entered into agreements with the Petitioners to develop part of the subject land as per the sanctioned building plans. Accordingly, the Petitioners, constructed buildings on the said land and sold the premises to several persons on ownership basis.
3. By notice dated 27/08/2019 issued on behalf of the respective Society, the Petitioners and Respondent No.4 were called upon to convey the property in favour of the Respondent-Society. The Petitioners having failed to execute the conveyance, respective Respondent-Society fled applications under Sub Section 3 of Section 11 of MOFA before the Respondent No.2-Competent Authority for deemed conveyance. Upon hearing the Petitioners as well as the respective Respondent-Society, by order dated 22/07/2020, the Competent Authority partly allowed the Applications and issued 10/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc certifcates under Sub section 4 of Section 11 of MOFA for enforcing unilateral execution of conveyance deeds conveying the right, title and interest of the promoter in the constructed area of the building constructed on land bearing CTS Nos.12, 21, 38 and 40, Mouje Naupada, Taluka-Thane in favour of the respective Respondent -Society.
4. Subsequent to passing of the order dated 22/07/2020 and the certifcates issued in terms thereof, Respondent-Society fled Applications before Respondent No.2-Competent Authority, for issuance of Corrigendum to the order dated 06/08/2020 and thereby sought deemed conveyance not only in respect of the constructed area but also in respect of the land. The Respondent No.2 entertained the said applications and without any notice to the Petitioners issued Corrigenda and thereby granted deemed conveyance in respect of the land as well as the building standing thereon.
5. Pursuant to the deemed conveyance certifcates, as amended by the impugned Corrigenda, Respondent -Society submitted deeds of conveyance to the Respondent No.2 for execution. The Respondent-Society thereafter collected the deeds of conveyance as executed by Respondent No.2 and lodged the same with Respondent No.8-Sub Registrar of Assurance for registration. It is alleged that 11/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc Respondent No.8 has registered the said deeds of conveyance and issued Index (II) in respect thereof in total disregard to the statutory mandate under Sub section 5 of Section 11 of MOFA. The Petitioners have challenged the legality of the Corrigenda and registration of the conveyance.
6. Mr. Dhakephalkar, learned Senior counsel for the Petitioners submits that by order dated 22/07/2020 passed under Sub Section 4 of Section 11 of MOFA, Competent Authority had allowed deemed conveyance only in respect of constructed area/building and had accordingly issued certifcates for enforcing unilateral execution of conveyance deeds conveying the right, title and interest of the promoter in respect of the said constructed area /building in favour of the Respondent-Society, as deemed conveyance. He submits that for the reasons recorded in the order, the Competent Authority had refused to grant deemed conveyance in respect of the land. However, based on applications fled by the Respondent-Society, the Competent Authority has issued Corrigenda and has thereby rectifed the certifcates by granting deemed conveyance not only in respect of the buildings but also in respect of the land. He submits that the Respondent No.2- Competent Authority has not assigned any reasons for issuing such Corrigenda, which are diametrically opposite to the 12/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc fndings recorded in the orders dated 22/07/2020. Moreover, the said Corrigenda have been issued without hearing the Petitioners.
7. Mr. Dhakephalkar, learned Senior counsel for the Petitioners further submits that the Act does not confer any power on the Competent Authority to review its order on any ground whatsoever. He therefore contends that the Respondent No.2 had no jurisdiction to issue such Corrigenda. He submits that the rectifcation allowed by Respondent No.2 is in fact a substantive order, which materially afects the rights of the Petitioners. It is further submitted that Respondent No.8-Sub Registrar has registered the instrument of deemed conveyance in breach of the mandatory provision under Sub section 5 of Section 11 of the MOFA. He therefore contends that the registration of deemed conveyance is illegal and contrary to law.
8. Mr. G.S. Bhat, learned counsel for the Respondent -Society submits that the Petitioners have no locus standi to challenge the Corrigenda. He further submits that the Competent Authority has not reviewed the judgments /orders but has only rectifed the error in the certifcates. He submits that such rectifcation can be carried out without any specifc statutory provision.
13/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc
9. I have perused the records and considered the submissions advanced by the learned counsel for the respective parties.
10. The principal challenge in the Petitions is to the legality of Corrigenda, all dated 06/08/2020, issued by Respondent No.2- Competent Authority. Before adverting to the facts, it would be apposite to understand the meaning of the word 'Corrigendum'. The word 'Corrigendum' is stated to have been derived from a Latin word corriggere which means "to correct". In Oxford Advance Learners Dictionary (7th Edition) the word 'Corrigendum' is explained as "something to be corrected, specially a mistake in a printed book". In The Concise English Dictionary the meaning of 'Corrigendum' is stated to be " an error needing correction, specially in a book. The meaning of the word 'Corrigendum' as explained in Black's Law Dictionary (8 th Edition) and B Ramnath Ayars's Advanced Law Lexicon is "an error in a printed work discovered after the work has gone to press.
11. In Parvati Devi w/o. Sri. Braj Shyam v/s. State of U.P. 1972 Cr.LJ 1644, the Allahabad High Court after considering the dictionary meaning of the word 'Corrigendum' and referring to the decision of the Apex Court in Piara Singh v/s. State of Punjab and Ors. AIR 1969 SC 961 and the decision of the Rajasthan High Court in Kandoi Kabliwala 14/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc v/s. Assistant Commercial Taxes Ofcer, Pali, 75 STC 316 has held that a Corrigendum can be issued only to correct a typographical/arithmetical error or omission therein. It cannot have the efect of law. It can neither take away the vested right of a person nor can it have the efect of nullifying the rights of persons conferred by the law.
12. It is thus clear that Corrigendum is essentially issued to correct a typographical or arithmetical error. Such error arising due to accidental slip or omission can be rectifed in exercise of incidental or ancillary powers which are inherent in every Judicial and Quasi-Judicial Authority. It is however to be noted that power to rectify such error cannot be equated with power of review, which is not an inherent power but is the creature of the statute. The power of review is not absolute. As it has been held by the Hon'ble Supreme Court in Lily Thomas v/s. Union of India, AIR 2000 SC 1650, the power of review can be exercised for correction of mistake and not to substitute a view. Such powers can be exercised only within the limits of the statute dealing with the exercise of power. The review cannot be treated as an Appeal in disguise.
13. In Kapra Mazdoor Ekta Union vs. Management of Birla 15/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc Cotton and Spinning Mills and Ors. AIR 2005 SC 1782, the Apex Court while considering the issue whether Industrial Tribunal/Labour Court has powers to exercise procedural review under the provisions of Industrial Disputes Act, 1947 has drawn distinction between a procedural review and a substantive review and has observed thus :-
"19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a diferent category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fxed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed sufers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority sufered 16/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fxed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others(supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufcient cause, it followed that the matter must be re-heard and decided again."
14. In Naresh Kumar and Ors. Vs. Govt. (NCT OF Delhi) (2019) 9 SCC 416 the question involved was whether an Award passed under Section 11 of the Land Acquisition Act, 1894 could be reviewed under any of the provisions of the Act specially under Section 13A of the Act. The Apex Court has held thus:-
13. It is settled law that the power of Review can be exercised only when the statute provides for the same. In the absence of any such provision in the concerned statute, such power of Review cannot be exercised by the authority concerned. This Court in the case of Kalabharati Advertising 17/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc vs. Hemant Vimalnath Narichania (2010) 9 SCC 437, has held as under:
"...............
12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction.
(Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar [AIR 1965 SC 1457] and Harbhajan Singh v. Karam Singh [AIR 1966 SC 641] .)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji [(1971) 3 SCC 844 :AIR 1970 SC 1273] , Major Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321] , Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC (L&S) 491 :AIR 1987 SC 2186] , State of Orissa v. Commr. of Land Records and Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1 SCC (Cri) 537] this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifcally or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarised to the efect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarifcation /modifcation/ correction is not permissible."18/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc
15. It is thus well settled that a judicial or quasi-judicial authority, which derives its powers from statutory provisions under which it is empowered to act, cannot exercise power not vested in it by the statute. The extent of power to be exercised by judicial or quasi judicial Authority is circumscribed by the language of the statute and such Authority has no power of review unless expressly conferred by the statute. However, this general rule will not apply in case of fraud or procedural error, which goes to the root of the matter and vitiates/invalidates the proceedings itself. Such pulpable errors can be rectifed in exercise of the power of the procedural review, which is inherent and plenary in every case as distinct from the power of a substantive review, which can be exercised only when specifcally conferred by the statute.
16. Keeping in mind the above principles, the question which falls for consideration is whether by the impugned Corrigenda, the Respondent No.2 has merely corrected a typographical error or whether it amounts to review of the orders dated 22/07/2020 and if so, whether such review is permissible.
19/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc
17. It is pertinent to note that by orders dated 22/07/2020, Respondent No.2 had disposed of the Applications dated 22/07/2020, fled under Sub-section 3 of Section 11 and had issued certifcates under sub-section 4 of Section 11 of the MOFA granting deemed conveyance only in respect of the building. The fndings recorded in paragraphs 7 and 8 of the order dated 22/07/2020, which is the subject matter of lrit Petition (stamp) No.93044 of 2020 read thus :-
" 7. In the building of the Society, there are in all 20 units and the Co-operative Society in respect of the building was registered in 2012. Even so, till date, the Land Owner/Developer has not taken any steps for the transfer of the property. Therefore the Society is deprived of ownership for several years. Therefore as on date, for the purpose of fulflling the object of registration of the Society as decided at the hearing, it is necessary that the building with constructed area of 751.01 sq. Mtrs. Of Mouje Naupada, Taluka Thane, CTS Nos. 12, 21, 38 and 40 is transferred in favour of the Society. If there is any diference in the area on actual measurement it shall be necessary to be amended accordingly. Also, in respect of the area now being transferred, if in future if any other rights are established, it shall be binding on the Society to transfer the area accordingly.
8. The land on which the Applicant Society stands, there is more than one building and there are separate Co-20/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc operative Housing Societies in respect of each building. Also, in the layout, other buildings are now under construction /remaining to be constructed. Therefore after the full development of the whole lands is completed it shall be appropriate to transfer the land underneath the buildings, the open spaces around the building, the common services and facilities, roads in favour of the Federal Society. "
18. Having so observed, in the closing paragraph, the Respondent No.2 has held thus :-
" Having concluded as above, on being satisfed that this is a partly ft case for the Sub-Registrar or the other appropriate Authorities under the Registration Act, 1908 (16 of 1908) for unilateral execution of conveyance deed conveying the Promoter's right title and interest in the building in favour of the Applicants as Deemed Conveyance".
19. Similar fndings are recorded in the orders, which are the subject matter of other Petitions. A perusal of the orders dated 22/07/2020 and the certifcates issued under Sub section 4 of Section 11 of MOFA clearly indicates that the Competent Authority had consciously declined to grant deemed conveyance in respect of the land and had allowed the deemed conveyance only in respect of the building. After passing of the said orders, by Application styled as Corrigendum, 21/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc respective Respondent-Society prayed for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in respect of the land as well as the building thereon. The application fled by Respondent -Society in lrit Petition (stamp) No.93044 of 2020 reads thus:-
"Sir, The Application on behalf of the Applicant Society, for Corrigendum in the order dated 22.07.2020 is as follows :-
The following Corrigendum is issued by carrying out correction in the Order and Certifcate issued by this Ofce, on 22.7.2020 in the Application for Deemed Conveyance bearing No.192/2020, under Section 11(4) of Maharashtra Ownership of Flat (Regulation of the promotion of Construction, Sale, Management and Transfer) Act 1963 made by Sudarshan Cooperative Housing Society Limited, M-6, Kashish Park, LBS Marg, Mulund Checknaka, Thane (West) - 400604 having registration No. TNA/CTNAS/HSG/TC/23745/2012, dated 23/02/2012.
Corrigendum In the said order, instead of "accepting that the application, fled by Sudarshan Cooperative Housing Society Ltd, M-6 for deemed conveyance is partly proper for issuing certifcate for Unilateral deemed conveyance and above the right to get it registered."
The following be read Accepting that the new application fled by Sudarshan Cooperative Housing Society Ltd, M-6, for deemed 22/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc conveyance is proper for issuing certifcate for Unilateral deemed and for the right to get it registered."
In the said certifcate Instead of "Of the Promoters right, Title and the interest of the building admeasuring 751.01 sq.mtrs of constructed area, on the land situated at Mouje-Naupada, Taluka-Thane. Bearing CTS No.12, 21, 38 and 40 in the name Cooperative Housing Society, registered on 23/02/2020 at registration No.TNA/ (TNA)/HSG/TC/23745/2012."
The following be read "Of the Promoters right, title and interest in the land admeasuring 751.01 sqmtrs out of the total area of the land bearing CTS No.12, 21, 38 and 40 situated at Mouje- Naupada, Taluka-Thane and the building standing thereon." Hence it is prayed that the Corrigendum be issued as above."
20. Acting upon the said application, the Competent Authority issued a Corrigendum which reads thus :-
"Whereas by Order at reference No.1, this Ofce has as per the Application of the Applicant Society passed an Order for Deemed Conveyance and Certifcate. The Society has requested for a Corrigendum for Conveyance and the right title and interest in land bearing CTS Nos.12, 21, 38 and 40 admeasuring 751.01 sq.mtrs. out of the total lands and the building standing thereon and the right title and interest of the Promoter in the building standing thereon instead of the right title and interest of 23/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc the Promoters for the constructed area admeasuring 751.01 sq.mtrs of the building constructed on land bearing CTS No.12, 21, 38 and 40, Taluka Thane, Village Naupada in favour of the Co-operative Housing Society registered under Registration No. TNA / (TNA) / HSG / (TC) / 23745 /2012 dated 23/2/2012.
Therefore in the above referred Order of the Society being satisfed that it is necessary to rectify the error, I am issuing the following Corrigendum.
Corrigendum Read :- In the said Certifcate instead of the right title and interest of the Promoter in the constructed area admeasuring 751.01 sq.mtrs. on the construction laid out on land bearing CTS Nos.12, 21, 38 and 40 of Mouje Naupada, Taluka Thane, the right title and interest of the Promoter in land admeasuring 751.01 sq.mtrs. out of total lands bearing CTS Nos.12, 21, 38 and 40, Mouje Naupada, Taluka Thane and the building standing thereon in favour of the Co-operative Housing Society registered under Society Registration No. TNA/ (TNA)/ HSG/ (TC)/ 23745/2012 dated 23/2/2012."
21. The applications fled by Respondent -Society in other Petitions proceed on the same basis with variation in the area covered by the building and the survey numbers of the land. By the impugned 24/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc Corrigenda, the Competent Authority has rectifed the certifcates and granted deemed conveyance not only in respect of the buildings but also in respect of the subject land and had thereby materially and substantively varied the order dated 22/07/2020. By no stretch of imagination this substantive and material change can be considered as a rectifcation of a clerical or typographical error, which could be rectifed by issuing a Corrigendum.
22. It is also pertinent to note that with disposal of the Applications under Sub section 3 of Section 11, Respondent No.2 - Competent Authority had become functus ofcio and not being in seisin of the matter, had no jurisdiction to review the orders, unless vested with powers of review under the law. Learned counsel for the parties do not dispute that the statute does not vest the Competent Authority with powers of review. In the absence of such statutory powers, Respondent No.2 - Authority had no jurisdiction to exercise the power of substantive review. Despite which Respondent No.2 - Competent Authority entertained and allowed the applications without notice to the Petitioners and without providing an opportunity of hearing, which is one of the fundamental principles of natural justice.
23. In O.P. Gupta vs Union Of India & Ors. AIR 1987 SC 2257, 25/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc the Apex Court has reiterated thus:-
"It is a fundamental rule of law that no decision must be taken which will afect the rights of any person without frst giving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. There has ever since the judgment of Lord Reid in Ridge v. Baldwin LR [1964] AC 40 been considerable fuctuation of judicial opinion in England as to the degree of strictness with which the rules of natural justice should be extended, and there is growing awareness of the problems created by the extended application of principles of natural justice, or the duty to act fairly, which tends to sacrifce the administrative efciency and dispatch, or frustrates the object of the law in question. Since this Court has held that Lord Reid's judgment in Ridge v. Baldwin should be of assistance in deciding questions relating to natural justice, there is always 'the duty to act judicially' whenever the rules of natural justice are applicable. There is therefore the insistence upon the requirement of a 'fair hearing'."
24. In the instant case, as noted above the Petitioners were not given an opportunity of hearing. The impugned Corrigenda, which prejudicially afect the rights of the Petitioners, have been issued without adhering to the rules of natural justice. This is nothing but 26/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc arbitrary, unfair and unjust exercise of power, which is violative of Article 14 of the Constitution of India.
25. Furthermore, Respondent No.2 has reviewed the orders dated 22/7/2020 without assigning any reasons whatsoever. It need not be emphasized that order which tends to afect rights of the parties should be supported with reasons, which are nothing but expressions of thoughts. It is only when thoughts get transcribed into words that the order gets transformed into a 'speaking order'. A speaking or a reasoned order demonstrates application of mind, minimizes arbitrariness and introduces fairness in arriving at conclusions. Hence, the Authority exercising judicial or quasi judicial powers is required to pass a speaking order, which need not be a lengthy or verbose but should contain cogent, clear and succinct reasons in support of the decision.
26. In M/S Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors (2010) 9 SCC 496 the Apex Court has emphasized the importance and signifcance of reasoned and speaking order in administrative, quasi judicial and judicial proceedings. The relevant para reads thus:-
47. Summarising the above discussion, this Court holds:27/33
Megha 4_wpst_93044 of 2020 and group matters_new.doc a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions afect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions.
c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as diferent as the judges and authorities who deliver them. All these decisions serve one common purpose which is to 28/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for 29/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due Process".
27. In the present case, the impugned Corrigenda do not meet the mandate and legal requirement set out in the aforesaid summarization. The impugned Corrigenda, which are bereft of reasons have resulted in miscarriage of justice and are not sustainable. Furthermore, the impugned Corrigenda are totally at variance with and diametrically contrary to the fndings recorded in the orders dated 22/7/2020. The impugned Corrigenda do not rectify a procedural error or an error apparent on the face of record but reverses the natural sequitur and consequences of the fndings recorded in orders dated 22/7/2020, which is not permissible even in exercise of powers of review. Issuance of such Corrigenda is clearly an arbitrary exercise of authority without jurisdiction.
28. The records reveal that on obtaining certifcates as rectifed under the impugned Corrigenda, Respondent-Society presented unilateral instruments of conveyance together with rectifed certifcates before Respondent No.8-Sub Registrar for registration. It is pertinent to note that Sub Section 5 of Section 11 of the MOFA stipulates that on submission of the certifcate issued by the Competent 30/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc Authority along with unilateral instrument of conveyance, the Sub Registrar or the concerned appropriate Registration Ofcer shall issue summons to the promoter to show cause why such unilateral instrument should not be registered as 'deemed conveyance' and after giving the promoter and the applicants a reasonable opportunity of being heard and on being satisfed that it is a ft case for unilateral conveyance, the Sub Registrar may register that instrument as 'deemed conveyance'.
29. This provision under Section 11(5) is essentially in two parts. The frst part mandates (i) issuance of summons to the promoter to show cause why the unilateral instrument should not be registered as deemed conveyance and (ii) giving the promoter and the applicant a reasonable opportunity of being heard. The later part gives discretion to the Sub Registrar to register the unilateral instrument as deemed conveyance on being satisfed that it is a ft case for registration of unilateral conveyance. Thus, issuance of summons to show cause, giving opportunity of hearing and arriving at subjective satisfaction that it is a ft case for registration of unilateral conveyance are the prerequisites of registration of deemed conveyance under Sub section 5 of Section 11 of MOFA. This statutory mandate has been provided by the legislature as check against potential abuse of rights conferred on 31/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc the fat purchasers to have unilateral deemed conveyance executed and registered in their favour.
30. In the instant case, it is not in dispute that Respondent No.8- Sub-Registrar has registered the unilateral instruments as deemed conveyance without issuing summons and without afording an opportunity of hearing to the Petitioners, as contemplated under Sub Section 5 of Section 11 of MOFA. It is thus evident that Respondent No.8 has clearly abdicated the obligations and duty cast on him by registering the deemed conveyance in contravention of statutory mandate under Sub section 5 of Section 11 of MOFA. Needless to emphasize that the exercise of powers by a statutory authority cannot be unbridled, unfettered or arbitrary but has to be within the framework and in consonance with the legislative provisions and the object which legislation intends to achieve. In the instant case, Respondent No.8 has fouted and set at naught the statutory mandate, thereby reducing it to a dead letter. Such action cannot be countenanced.
31. Under the circumstances and in view of discussion supra, Petitions are allowed. The impugned Corrigenda are set aside. Registration of the deemed conveyance is also set aside. It is made 32/33 Megha 4_wpst_93044 of 2020 and group matters_new.doc clear that since the Petitioners have not challenged the orders and the certifcates dated 22/07/2020, issued prior to Corrigenda, respective Respondent -Society is at liberty to submit the certifcate with unilateral instrument to the Sub-Registrar for registration as deemed conveyance in accordance with the said certifcate. On receipt of such certifcate and unilateral instrument, Sub-Registrar may register the instrument in exercise of powers conferred under Sub Section 5 of Section 11 of MOFA.
32. Rule is made absolute in above terms.
(SMT. ANUJA PRABHUDESSAI, J.) Digitally signed Megha by Megha Parab Date: Parab 2021.01.07 18:28:03 +0530 33/33