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IN THE HIGH COURT OF BOMBAY
ANUJA PRABHUDESSAI, J.
Kashish Park Reality Pvt. Ltd. and another - Petitioner
Versus
State Of Maharashtra and others - Respondent
W. P. (St.) Nos. 93044, 93055, 93050, 93054, 93062, 93049, 93057, 93141, 93046 and 93059 of 2020
Decided on :11-12-2020
Corrigenda - Challenge to Corrigenda under Maharashtra Ownership of Flats Act, 1963 - Section 11(4) - Summary of Acts and Sections: The court discussed the meaning of 'Corrigendum' and its limitations, emphasizing that it can only correct typographical or arithmetical errors and cannot have the effect of law. The court also highlighted the principles of review and the limitations of the power of review, emphasizing that it cannot be exercised without statutory provision. The court further emphasized the importance of reasons in decisions and the requirement for a speaking order. The court found that the Corrigenda issued by the Competent Authority were substantive and material changes, not mere rectifications, and were issued without jurisdiction and in violation of natural justice. The court also found that the registration of deemed conveyance by the Sub Registrar was in contravention of the statutory mandate under subsection (5) of section 11 of MOFA.
Fact of the Case:
The petitioners challenged the Corrigenda issued by the Competent Authority under the Maharashtra Ownership of Flats Act, 1963, which rectified certificates for deemed conveyance, and the subsequent registration of the conveyance by the Sub Registrar. The petitioners argued that the Corrigenda were substantive and material changes, issued without jurisdiction and in violation of natural justice. They also challenged the registration of deemed conveyance by the Sub Registrar, which was in contravention of the statutory mandate under subsection (5) of section 11 of MOFA.
Finding of the Court:
The court found that the Corrigenda were substantive and material changes, not mere rectifications, and were issued without jurisdiction and in violation of natural justice. The court also found that the registration of deemed conveyance by the Sub Registrar was in contravention of the statutory mandate under subsection (5) of section 11 of MOFA.
Issues: The principal challenge in the Petitions was to the legality of the Corrigenda issued by the Competent Authority and the registration of deemed conveyance by the Sub Registrar. The court also considered the jurisdiction of the Competent Authority to review its orders and the requirement for reasons in decisions.
Ratio Decidendi: The court emphasized the limitations of Corrigenda, the principles of review, the importance of reasons in decisions, and the requirement for a speaking order. The court found that the Corrigenda were substantive and material changes, issued without jurisdiction and in violation of natural justice. The court also found that the registration of deemed conveyance by the Sub Registrar was in contravention of the statutory mandate under subsection (5) of section 11 of MOFA.
Final Decision: The court allowed the Petitions, setting aside the Corrigenda and the registration of deemed conveyance. The court clarified that the respondent Society could submit the certificates with unilateral instruments to the Sub Registrar for registration as deemed conveyance in accordance with the original certificates.
JUDGMENT :
1. Rule. Rule is made returnable forthwith. With consent of the parties, the Petitions are heard finally.
2. By these Petitions, filed under Article 227 of the Constitution of India, the petitioners have challenged the Corrigenda all dated 6-8-2020 issued by respondent No. 2Competent Authority rectifying the certificates issued under subsection (4) of section 11 of Maharashtra Ownership of Flats Act, 1963 (‘MOFA’ for short) and consequent registration of the deeds of conveyance in the office of respondent No. 8Sub Registrar of Assurances, Thane1.
2A. 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 27-8-2019 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 filed applications under sub-section (3) of section 11 of MOFA before the respondent No. 2Competent Authority for deemed conveyance. Upon hearing the petitioners as well as the respective respondent Society, by order dated 22-7-2020, the Competent Authority partly allowed the Applications and issued certificates under subsection (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 22-7-2020 and the certificates issued in terms thereof, respondent Society filed Applications before respondent No. 2 Competent Authority, for issuance of Corrigendum to the order dated 6-8-2020 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 certificates, 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. 8SubRegistrar of Assurance for registration. It is alleged that 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 subsection (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 22-72020 passed under subsection (4) of section 11 of MOFA, Competent Authority had allowed deemed conveyance only in respect of constructed area/building and had accordingly issued certificates 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 filed by the respondent-Society, the Competent Authority has issued Corrigenda and has thereby rectified the certificates by granting deemed conveyance not only in respect
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