Writ Petition No.2402 of 2011

8th July, 2011

Petitioner Counsel: Mr. SANDESH D. PATIL and Mr. HARISH P. JAIN
Respondent Counsel: Mr. S.N. PATIL, Ms. SHEETAL SHAH, Mr. MEHTA & GIRIDHARLAL

JUDGMENT

GIRISH GODBOLE, J. :- Rule. By consent rule made returnable forthwith and the petition is taken up on board for hearing. The respective counsels for respondents waive service of Rule.

2. By the present Writ Petition filed under Article 226 of the Constitution of India, the petitioner is seeking the following substantive relief in terms of prayer clause (a) in paragraph-18:

"a. By an appropriate writ/order/direction of this Hon'ble court the Respondent No. 2 & 3 be directed for making appropriate changes in the 7/12 Extract in favour of Mira Bhayander Corpration in respect of suit property i.e. land bearing Old Survey No. 334, New Survey No. 26, Hissa No. 7A, admeasuring 868.51 sq. meters situate, lying and being at Village Bhayander (West), Taluka and District Thane, in the Registration District and Sub-District Thane and now within the limits of Mira Bhayandar Municipal Corporation by following the procedure as laid down under the provisions of Maharashtra Land Revenue Code, 1966."

3. The case of the petitioner can be summarized as follows:

A) The Petitioner claims to be owner of land bearing Old Survey No. 334, New Survey No. 26, Hissa No. 7A, admeasuring 1090 sq. meters situated at village Goddev, Bhayander (East), Taluka and District Thane within the limits of Mira Bhayander Municipal Corporation. The petitioner through her constituted attorney had executed a declaration dated 16/2/2009 in favour of Mira Bhayandar Municipal Corporation which is duly registered in the office of the Sub-Registrar of Assurances at Thane and handed over possession of a portion admeasuring 868.51 sq. meters as the same was affected by the reservation of the D.P. Road and the Corporation was to issue a Development Right Certificate for TDR in lieu of the consideration. That the Corporation however, issued DRC No.314 dated 30/11/2010 only in respect of an area admeasuring 396 sq. meters and by letter dated 30/11/2010, it was informed that the DRC for the remaining area will be issued only after the name of the Corporation is entered in the 7/12 Extract.

B) Respondent No. 4 company was claiming to be a superior holder in respect of lands in revenue village Bhayandar, Mire and Ghodbunder and the said claim is made on the basis of a Deed of Indenture dated 7/11/1870 executed in favour of the predecessor in title of the respondent No. 4 by the then Secretary of the State for Indian Council, followed by the deeds of assignment dated 15/2/1943 and 22/3/1945 executed in favour of the respondent No.4.In a dispute arising out of the mutation entries, the name of the respondent No. 4 was removed from the occupant column of record of rights and was entered in other rights columns. Subsequently in proceeding under the Salesette Estate (Land Revenue Exemptions and Abolition) Act 1951, an order dated 28/1/1989 was passed by the Resident Deputy Collector, Thane and subsequently the Revenue Minister of Government of Maharashtra, passed an order dated 28/4/2008 directing that an enquiry under section 3 of the aforesaid Act should be completed. Pursuant to this order, on 5/9/2008 the District Collector, Thane passed an order in favour of the respondent No. 4 company and the name of the respondent No. 4 company was directed to be entered in the column of occupant in the 7/12 extract which is the revenue record.

C) The aforesaid order of the District Collector, Thane passed on 5/9/2008 was challenged by filing writ petitions in this Court being Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008 wherein learned Single Judge of this Court passed order dated 14/10/2008 directing the respondent Nos. 1 and 2 therein (State of Maharashtra and Mira Bhayander Municipal Corporation) not to effect any changes in the record of rights by changing the mutations nor effect any changes in the 7/12 extracts and by an order dated 21/10/2008, it was directed that all the parties concerned shall maintain status quo in respect of the revenue records of the entire property. Subsequently, the aforesaid 3 writ petitions and several other writ petitions, which were heard together, were admitted by the learned Single Judge by order dated 24/4/2009 and by an interim order earlier orders dated 14/10/2008 and 21/10/2008 were directed to be continued. In paragraph-10 of the petition, it is stated thus :

"Needless to say the said orders govern the land in present writ petition also."

D) The petitioner therefore, decided to approach the respondent No. 4 to amicably settle the matter and accordingly the respondent No. 4 and the petitioner entered into an agreement wherein the respondent No. 3 executed a document titled as "Deed of Release" on 25/2/2011 in favour of M/s. R.K. Enterprises and released the rights of respondent No. 4 for consideration of Rs. 4,90,000/-. The said Deed of Release is produced at Exh. H (page 93 of the petition). Perusal of the said Deed of Release however shows that the same is not registered and a stamp duty of Rs. 300/- is affixed to the said instrument.

E) The respondent No. 4 Estate Investment Company Pvt. Ltd. also issued letter dated 24/9/2010 (Exh. I to the petition) indicating its no objection for granting transferable development right in respect of an area admeasuring 869 sq. meters from Old Survey No. 334, New Survey No. 26, Hissa No. 7 A was issued.

F) Supported with such no objection certificate and on the basis of the aforesaid Deed of Release, the petitioner approached the respondent No. 3, Talathi, Bhayandar (West) to change the names in the record of rights but the Talathi orally refused to entertain the said request relying on the orders dated 14/10/2008, 21/10/2008 and 24/4/2009 passed by the High Court directing to maintain status quo in respect of the revenue record of the entire property.

4. Mr. Sandesh Patil, learned advocate for the petitioner contends that since the respondent No. 4 in whose favour the order dated 5/9/2008 passed by the Collector, Thane, which was the subject matter of the challenge in the aforesaid 3 Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, had subsequently given its no objection for issuance of development right certificate for transferable development rights in respect of part of the land and since the respondent No. 4 had also executed the aforesaid Deed of Release, the respondent No. 3 was not justified in not entertaining the application solely on the ground that the order of the High Court has directed maintaining status quo in respect of the entire property. In support of the said submission, Mr. Sandesh Patil, learned advocate for petitioner has placed strong reliance on the judgment of the Division Bench of this Court in Writ Petition No. 9055 of 2010 delivered on 22nd December, 2010 and it is submitted that similar directions should be issued.

5. On behalf of the respondent No. 4 Estate Investments Company Pvt. Ltd. an affidavit in reply dated 10th March, 2011 sworn by Director of respondent No. 4 has been filed and the execution of the Deed of Release dated 25/2/2011 has been admitted. In paragraph-9 of the said affidavit, it is stated that by executing the said Release Deed, the respondent No. 4 had conveyed the right, title and interest which the respondent No. 4 had to the said property. Similarly issuance of no objection letter by the respondent No. 4 is also admitted.

6. Shri S. N. Patil, learned Assistant Government Pleader appearing for respondent Nos. 1 to 3 has submitted that in view of the specific order of the learned Single Judge of this Court to maintain status quo in respect of entire property, the respondent No. 3 was justified in refusing to entertain the application of the petitioner.

7. Though the petitioner could have been directed to file another application before the respondent No. 3 Talathi and in case an order adverse to the petitioner was to be passed, the petitioner would have an alternate remedy of filing an appeal under section 247 of the Maharashtra Land Revenue Code, 1966 before the concerned Revenue Officer; since the application filed by the petitioner has not been entertained only on the ground of pendency of aforesaid 3 petitions in this court and the interim orders passed therein and since the question involved is in respect of the interpretation of the said interim orders, we have thought it fit not to relegate the petitioner to avail of such an alternate remedy and have therefore, decided the writ petition on merits.

8. By various averments in the memo of writ petition, the petitioner is relying upon the aforesaid Deed of Release dated 25/2/2011 to contend that the rights of the respondent No. 4 as a superior holder stand released in favour of the petitioner. The petitioner is also relying upon the no objection letter dated 24/9/2010 issued by the respondent No. 4. The Deed of Release purported to release the rights in respect of the immovable property worth more than Rs. 100/- and even the consideration indicated therein is substantially more than Rs. 100/-. It is sought to be contended by Mr. Sandesh Patil, advocate for the petitioner that petitioner is not claiming title through the Deed of Release and was independently claiming consideration of application on the basis of No Objection Certificate issued by respondent No. 4. However, in the face of averments in paragraphs- 11, 12 and 14 of the petition, as also in ground (b) of the petition, it is not possible to accept the aforesaid submission.

9. The earlier group of writ petitions namely, Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008, which seeks to challenge the order dated 5/9/2008 passed by the Collector, Thane are pending and the interim order passed therein is operating. In the present case, however, there is no document whatsoever transferring right of the petitioner or rights claimed by the respondent No. 4 in favour of Mira Bhayandar Municipal Corporation. The aforesaid document styled as Deed of Release executed on 25/2/2011 is in fact not executed in favour of the petitioner but is executed in favour of M/s. R.K. Enterprises who claims to be a constituted attorney of the petitioner and partner of the said firm and has filed and prosecuted this petition.

10. In the present case, save and except the declaration dated 16/2/2009 executed by the petitioner through her Constituted Attorney in favour of the Commissioner of Mira Bhayandar Municipal Corporation which is duly registered and which merely hands over possession of the portion of the land under reservation to the Corporation, there is no other document executed in favour of Mira Bhayandar Municipal Corporation either by the petitioner or by the respondent No. 4 Estate Investment Company so as to create a right in favour of the petitioner to insist that the name of Mira Bhayandar Municipal Corporation must be entered in the 7/12 extract or a corresponding statutory obligation for the respondent Nos. 1 to 3 to entertain such application of the petitioner or make any entry in the 7/12 extract. All that can be said in the present case is that only physical possession has been handed over by the Constituted Attorney of the petitioner to Mira Bhayandar Municipal Corporation by executing a declaration. However, merely on that ground, the relief claimed by the petitioner in terms of prayer clause (a) cannot be granted. The present case is therefore clearly different from Writ Petition No. 9055 of 2010 decided on 22nd December, 2010.

11. However, in case the petitioner and respondent No.4 hereafter execute registered document in favour of the Mira Bhayandar Municipal Corporation thereby conveying the land under reservation admeasuring 868.51 sq. meters from out of Old Survey No. 334 corresponding to New Survey No. 26 Hissa No. 7A of village Goddev and thereafter an application is made for entering the name of Mira Bhayandar Municipal Corporation as owner, the Talathi, Bhayandar (West) will be free to consider such application and for that purpose we clarify that the orders of the learned Single Judge of this Court in the aforesaid writ petitions being W.P. Nos. 6986/2008, 6994/2008 and 7012/2008 dated 14/10/2008 and 21/10/2008 and the order dated 24/4/2009 of the learned Single Judge in the group of writ petitions including the aforesaid 3 petitions will not preclude the Talathi from considering the application of the petitioner. It is however clarified that this should not be construed to be an order either accepting status of "superior" owner/holder claimed by the respondent No. 4 or about the merits of the controversy involved in the group of writ petitions, which have been admitted by the learned Single Judge by order dated 24th April, 2009 and no equities of whatsoever kind shall be claimed by the respondent No. 4 on the basis of or strength of this order.

12. Further, as stated above, the aforesaid Deed of Release dated 25/2/2011 does not appear to be registered under the Indian Registration Act, 1908 and apparently shows that stamp duty of Rs. 300/- has been affixed to the said Deed which seeks to extinguish the right of the respondent No. 4 as a superior holder. Once such document has been produced and relied upon in the petition and noticed by us, we deem it fit to exercise our jurisdiction under section 33 (2) (b) of the Bombay Stamp Act, 1958 and we direct the Joint Sub-Registrar, Thane - 4 to impound the said instrument under section 33 of the Bombay Stamp Act, 1958 and thereupon follow the procedure prescribed in the said Act if the instrument is found to be not duly stamped.

13. We therefore dispose of the writ petition in terms of the following order:

(a) The relief prayed for by the petitioner vide prayer clause (a) of the petition cannot be granted at this stage and the same is therefore rejected.

(b) In case, the the petitioner and the respondent No. 4 execute registered document conveying their respective right, title and interest in favour of the Mira Bhayandar Municipal Corporation in respect of land admeasuring 868.51 sq. meters from Old Survey No. 334, New Survey No. 26, Hissa No. 7A and thereafter make an application for entering the name of the Corporation in the 7/12 extract; the respondent No. 3 would be free to consider such application in accordance with law but shall not decline to entertain and consider the application of the petitioner on account of pendency of the aforesaid Writ Petition Nos. 6986/2008, 6994/2008 and 7012/2008 and other connected petitions and the interim orders passed therein.

(c) It is clarified that this order may not be construed as a direction to the respondent No.3 to allow the application and the application would be considered in accordance with law.

(d) It is also clarified that no equities shall be created in favour of the respondent No. 4 herein on account of this order in the pending writ petition Nos. 6986/2008, 6994/2008 and 7012/2008 and they shall be heard and decided on their own merits without being influenced by this order.

(e) The Sub-Registrar - 4, Thane is directed to exercise powers under section 33 of the Bombay Stamp Act, 1958 in respect of the instrument styled as Deed of Release dt. 25/2/2011 executed by respondent No. 4 in favour of M/s. R.K. Enterprises (Exh. H to the petition). The Registrar (Judicial) is directed to forward a copy of the said instrument alongwith a copy of this order to the Sub-Registrar- 4, Thane for further appropriate action in accordance with the provisions of the Bombay Stamp Act, 1958. The Sub- Registrar - 4, Thane is directed to submit a compliance report to the Collector of Thane and to the Divisional Commissioner within a period of 3 months from the date of receipt of the copy of the instrument styled as Deed of Release alongwith copy of this order from the Registrar (Judicial) of this Court.

(f) Rule made absolute in aforesaid terms with no order as to costs.

Ordered accordingly.