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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. OF 2010

DIST: THANE

In the matter of Article 226 & 227 of the

Constitution of the India

AND

In the matter of the Registration Act, 1908

AND

In the matter of Section 20 of the Urban Land

(Ceiling and Regulation) Act 1976

AND

In the matter of Registration of Document

under the Registration Act 1908

AND

In the matter of the refusal to cancel Document

registered at Serial No. 9502 of 2006 by the

Registrar Thane – 4

KINNARI DEVELOPERS ]

A registered Partnership Firm ]

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Registered under the provisions of ]

Partnership Act 1934 , Having its ]

Registered Office at 30, Happy Home, ]

Tilak Road, Ghatkopar, ]

Bombay 400 077. ] … Petitioner

V/s.

1. The State of Maharashtra ]

Through its Principal Secretary ]

Urban Development Department, ]

Having his office at Mantralaya, ]

Mumbai- 400 032 ]

2. The Inspector General of Registration, Thane ]

Having his office at District Treasury ]

Building, Inside Collectors Compound, ]

District Thane-400 061 ]

3. The Sub Registrar of Assurances, Thane -4, ]

Office of the Registrar ]

Behind Shree Milan G Patil ]

Magnum Plaza, 60 feet Road, ]

Bhayander West, Thane. ]

4. Shyamsunder Radheshyam Agarwal ]

3/18, Ram Mandir Road ]

Bhayander West, Thane. ]

5. LEENA HOUSING ]

a Partnership Firm having ]

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its Registered Office at Ratna Deep, Dr. B A ]

Road ,Bhayander (W) , Taluka and District ]

Thane, through its partner ]

6. SHREE LAXMI VISHNU ENTERPRISES ]

a Partnership Firm having ]

its Registered Office at 103, Pooja Station ]

Road ,Bhayander (W) , Taluka and District ]

Thane, through its partner ]

Mr Gautam Ramnivas Kamathia ]

7. Mira Bhayander Municipal Corporation ]

through its Commissioner having its office at ]

Chatrapati Shivaji Marg, ]

Bhayandar (W), Taluka and ]

District Thane ] … Respondents

TO

THE HON’BLE THE CHIEF JUSTICE

AND THE OTHER PUISNE JUDGES
OF THIS HON’BLE HIGH COURT
OF JUDICATURE AT BOMBAY.

THE HUMBLE PETITION OF THE

PETITIONER ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. The Petitioner is a partnership Firm registered under the Indian

Partnership Act, 1934 having its registered office at the address

mentioned in the cause title hereto: They are engaged interalia in the

business of development of properties and construction of real estate.

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2. Respondent No.1 is the State of Maharashtra; Respondent No.2 is

the Inspector General of Registration and is the overall in charge of the

office of the Registrar under the Registration Act 1908; Respondent No. 3

is the Sub Registrar of Assurances. Respondent No. 3 is the appropriate

authority for registration of documents under the Registration Act, 1908

having his office at the address mentioned in the cause title hereto;

Respondent No. 4 is an Indian citizen residing at the address mentioned in

the cause title; Respondent No. 5 & 6 claim to be partnership firms

registered under the Partnership Act, having their office at the respective

addresses mentioned in the cause title hereto; Respondent No. 7 is a local

authority concerned with the administration inter-alia of lands within its

jurisdiction. The 7th Respondent has its office at the address mentioned in

the cause title hereto

3. The present Petition concerns land situated at Revenue Village of

Bhayandar, Registration Sub District and District Thane bearing Old S.

No. (532, H. No. 3) & New S No. 63 H No. 3, admeasuring H1-R89-P6 (ie

4 acre 27.1/4 Gunthas) and assessed at Rs.11.32/- and Old Survey No.

530 Hissa No. 1 & New Survey No. 70 H No. 1, admeasuring about H0-

R03-P8 ( ie 3.3/4 Gunthas) and assessed at Rs.0.36/- herein after for the

sake of brevity referred to as the said “said property”. The said property

belonged to one Mr. Gaurishankar Todi who had through his Constituted

Attorney Mr. Mahesh Kantilal Bhayani sold the said property to one Mr.

Kiran Kantilal Bhayani under an Agreement for Sale (Sathekarar) dated

20th January, 1988 registered with the Sub-Registrar of Assurances at

Mumbai under Serial No. BOM- 175 / 1988 dated 20-1-1988. Purauant to

the said Sale Agreement a Conveyance (Kharedikhat) Agreement dated

17TH January, 1989 was registered with the Sub-Registrar of Assurances

at Thane under Serial No. TNN 515/89 dated on 17th January, 1989.

Annexed hereto and marked as Exhibit – “A” is a copy of the Agreement

for Sale dated 20-1-1988 and Exhibit – “B” is a true translation hereof in
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English. Annexed hereto and marked as Exhibit – “C”is a copy of the

Conveyance dated 17-1-1989 and Exhibit – “D” is a true translation

hereof in English

4. Under a Development Agreement dated 12th April, 1989 entered

into between the Kiran Kantilal Bhayani and the Petitioner, Kiran Kantilal

Bhayani granted unto the Petitioner the right to develop the said property

for the consideration and on the terms and conditions more particularly

recorded in the said Development Agreement dated 12th April, 1989.

Hereto annexed and marked EXHIBIT ‘E” is the copy of the said

Development Agreement dated 12th April, 1989.

5. Pursuant to the said Development Agreement dated 12th April, 1989

being Exhibit “E” hereto a Power of Attorney dated 12th April, 1989 was

executed by the said Kiran Kantilal Bhayani in favour of Jayesh Hingwala

one of the partners of the Petitioner. Hereto annexed and marked

EXHIBIT ‘F” is the copy of the said Development Agreement dated 12th

April, 1989.

6. Pursuant to the said Development Agreement dated 12th April, 1989

the Petitioner was put in possession of the said property. The Petitioner

thereupon put up a Board displaying their name on the said property

thereby depicting the possession of the Petitioner upon the said property.

7. Due to certain circumstances beyond its control, the Petitioner was

unable to proceed with the development of the said property. However, in

the year 2001, an Agreement for Sale dated 17th August, 2001 was

executed between the Petitioner and the Kiran Kantilal Bhayani in respect

of the said property superseding the Development Agreement being

Exhibit “F” hereto. Hereto annexed and marked EXHIBIT ‘G” is the copy

of the said Agreement for Sale dated 17th August, 2001.

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8. Somewhere in the beginning of March, 2010 Mr. Jayesh Hingwala

the partner of the Petitioner, who is primarily involved in his business of

manufacturing of readymade garments and general commodities, visited

the said property and at the said time, to his great shock and surprise he

found that construction was going on in full swing. The said Jayesh

Hingwala made inquiries and was informed that Respondent No. 6 was

constructing building/s upon the said property.

9. The Petitioner thereupon sought clarification from Kiran Kantilal

Bhayani but the said Kiran Kantilal Bhayani on one pretext or another

avoided the Petitioner and hence no explanation was forthcoming, much

less any clarification in respect of the same.

10. The Petitioner was then constrained to file special civil suit no. 397

of 2010 in the court of the Hon’ble Civil Judge Thane, against Mr. Kiran

Kantilal Bhayani and Respondent No. 6 herein. In the said suit the

Petitioner has interalia sought for a direction against the Defendants

therein to handover free vacant and peaceful possession of the suit

property. It is stated and submitted that at this juncture that the dispute in

the Civil Court aforesaid will be carried to its logical conclusion none of the

issues are being raised in the present Petition that have either been raised

in the said suit or can be raised therein. The present Petition arises out of

the inaction of Respondent no. 2 & 3 and/or their refusal to exercise

jurisdiction vested in them. The cause of action for the same arises in the

manner set out herein below:

11. Before setting out the facts leading to the cause of action for the

present Petition, it is pertinent to state that in the aforesaid Suit No. 397 of

2010 an injunction application at Exh – 5, was moved by the Petitioner

herein. Whereon the learned trial court held that none of the Defendants
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had objected to the prayer for temporary injunction and since the Plaintiff

before him i.e the Petitioner herein, had submitted that the Defendants

therein had sought time and had started changing the nature of the suit

property in order to avoid multiplicity of the proceedings, the Learned Trial

Court by its order dated 12-7-2010 directed the parties to maintain

status-quo with respect to the suit property till the next order. Annexed

hereto and marked as EXHIBIT ‘H” is the copy of the order. It is stated

and submitted at this juncture that despite the order of status-quo,

Respondent No. 6 has proceeded to not only carry out construction in total

defiance of the order of this Hon'ble Court, but, is alsii creating third party

rights. In the said suit Respondent No. 6 filed documents in support of its

defense. The Petitioner learnt from the said documents that at the time

when Kiran Bhayani was the owner of the property, the previous owner

Mr. Gaurishankar Todi fraudulently and allegedly sold the property to

Leena Housing being Respondent No.5 herein. The same was sold

ostensibly on a Power of Attorney given by Gaurishankar Todi in favour,

interalia, of one Mr. Shyamsunder Agarwal. The said Power of Attorney is

dated 10th October, 2003 and the alleged Conveyance is dated 7th

November, 2006. Significantly, the said Mr. Gaurishankar Todi is now

through a suit claiming that he had revoked the Power of Attorney and that

Respondent No.4 had fraudulently utilized the Power of Attorney after its

revocation. Respondent No. 5 had filed a suit against Gaurishankar Todi

and Mr. Kiran Bhayani, claiming interalia that they were entitle to an

injunction against them for interfering with the alleged owneship of the

said property by Respondent No. 5. The said suit was withdrawn as ti was

found that the said Leena Housing was not a registered partnership firm. It

is stated and submitted at this juncture that the said suit was an collusive

suit between the Respondent No. 5 and the said Gaurishankar Todi

interalia as at the time when the said property was conveyed by

Gaurishankar Todi, he had ceased to be an owner of the said property.

Realising however, that the non-registration of the firm would come in the
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way of the collusion, Respondent No. 5 created further alleged third party

interest by granting Development Rights in favour of the Respondent No.

6 and thereafter surreptitiously withdrew the said suit aforesaid mentioned.

Respondent No.6 however is merely a clog in the wheel of the various

frauds played in respect of the said land on various persons including the

Petitioner. Respondent No. 6 is only alleged to be an independent entity

but infact is a front for Respondent No. 5 who claims to be owner of the

said property as stated above and further knows that at every stage an

illegality has been committed and fraud perpetuated to enable the illegal

sale and development of the said property. The same however is not

material for the present Petition. Suffice to state here at that pursuant to

the aforesaid Conveyance Respondent No.5 allegedly gave Development

Rights of the said property to Respondent No. 6 herein. At the time when

the said alleged conveyance from Gaurishankar Todi to Respondent No.

5, through Respondent No. 4 was to be registered there was a

requirement of producing a NOC in respect of the land under the provision

of the ULC Act. In this regard it is necessary to consider an alleged

Agreement to Development which was produced by the Respondents in

support of their defense in Suit No. 397 of 2010 . The Agreement for

Development dated 30th December, 2007 is annexed hereto and marked

as EXHIBIT ‘I”. It is stated and submitted that the said Agreement is being

produced by the Petitioner as produced by the Respondents and the

production herein is not to be construed as the acceptance by the

Petitioner of either the legality or validity of the Agreement. A perusal of

the said Agreement indicates that the property was to be developed as per

the terms and conditions and in the manner, interalia, as permissible

under the provisions of the Urban Land Ceiling and Regulation (C&R) Act,

1976. Towards which end the averments in the Agreement suggest that

through the efforts of the Developer an order under Section 20 of the ULC

Act, 1976 had been obtained for the retainable area of the said property. It

is further stated in the Agreement that the Developer shall be at liberty to

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deal with the property only in accordance with the rules and regulations of

the ULC Act. The Petitioner states that several documents have been

produced by the Respondent No. 6 herein. The aforesaid Agreement for

Development is annexed hereto as the same forms the basis on which the

Respondent No. 6 has ultimately allegedly carried out construction. The

said document is the foundation for the alleged lawful construction by

Respondent No. 6.

12. The Petitioner states that the Respondent No. 6 has also produced

a list of 102 names of persons who have allegedly purchased flats in the

said property, which has been constructed through illegal and fraudulent

means, by Respondent No. 6. While the Petitioner is not in a position to

accept or deny the veracity of the said list, the production of the said list,

according to the Petitioner, is to falsely portray a situation of fait accompli.

In this regard, the Petitioner states, that even if the said list is genuine and

even if this Hon'ble Court comes to a conclusion that the peaceful

possession of the 102 persons so listed, ought not to be disturbed even

then the total plot area is 24000 square meters out of which approximately

6000 square meters has been claimed by Respondent No. 7 to fall under

compulsory reservation for a play ground and road against which TDR

which was permissible was handed over by Respondent 7 to Respondent

4 as power of Attorney holder of Gaurishankar Todi, though the said

Gaurishankar Todi has ceased to be the owner after sale to Mr. Kiran

Bhayani. The same was handed over without verifying the ownership of

the said property, similarly the commencement certificate (CC) as well as

the IOD was issued without the requisite verification of ownership. The

occupation certificate is yet to be issued. Out of the remaining 18000

square meters which covers roughly 193000 square feet of an area that

can be built. Of that only 103000 square feet area has actually been built-

up, leaving around 90,000 square feet of permissible buildable FSI in

addition to the additional FSI/TDR of reservation.

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13. In the mean while, on or around 27-6-2010 the Petitioner came

across an article in a publication called the Raj Banjara, and learnt that

Respondent No. 4 herein had been arrested for fraudulent actions in

respect of land described herein. Since the land mentioned therein

belonged to the Petitioner, i.e. the said property, the Petitioner started

making immediate enquiries. The enquiries revealed that there was an

alleged transaction between the said Mr. Shyam Sunder Agarwal and Mr.

Gaurishankar Todi, Pursuant to that an agreement was allegedly executed

between Gaurishankar Todi and Respondent No. 5 herein in or around

2003. The said Agreement along with ULC certificate was lodged by Mr.

Shyam Sunder Agarwal for registration and pursuant to which the said

Agreement came to be registered. Thereafter a complaint was lodged

alleging that the document tendered for the purpose of aforesaid was

forged. Action was initiated against Mr. Shyam Sunder Agarwal pursuant

to a complaint by Mr. Arjun Badge working in the office of the Respondent

No.2 & 3. The forgery interalia related to an certificate of exemption dated

_____ granted to Mr. Rakesh Mangalya Mhatre in respect of Survey No.

569/4,661/1,2,3 & 562/2 which was altered to show the name of

Gaurishankar Todi in respect of land at Survey No. 531/1 & 532/3.

Annexed hereto and marked as EXHIBIT ‘J”. are the copies of the

certificate originally issued to Mr. Mhatre and the same certificate after the

alteration. Also, annexed hereto and marked as EXHIBIT ‘K” is the copy

of the FIR aforesaid.

14. Since. Action was initiated against Mr Shyam Sunder Agarwal on

the complaint of the Office of Respondent No.2 & 3 no further proceedings

were necessary for the office of the Respondent No. 2 & 3 to cancel

and/or annul and/or rescind and/or revoke the registration based on the

forgery aforesaid. The same ought to have been done suo-moto by the

said office
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15. The Petitioner states that the Petitioner is claiming no relief against

Respondent No. 4,5 &6 herein, the said Respondents have been made

parties, as, pursuant to the fraud and consequent registration of the

document, it is alleged that the said Mr. Shyam Sunder Agarwal had

conveyed the property to Leena Housing who in turn granted

Development Rights to Respondent No.6 herein. The Third Respondent

therefore would be parties affected by the order sought in the present

Petition.

16. While the office of the second Respondent had initiated action

against Mr. Shyam Sunder Agarwal however since they did not suo-moto

cancel / rescind / revoke / withdraw the Permission the Petitioner had by

letter dated ________ called upon the Second Respondent to immediately

and forthwith, by an appropriate order cancel the registration dated

______. While no response has been received from the office of the

second Respondent, the petitioner has been informed, albeit not officially

that the de-registration would not be done save and except by an order of

court inter-alia as there was no procedure for de-registration under the

Registration Act, 1908

17. It is stated and submitted that on or about November, 2006 that is

at the time when the conveyance was presented for registration the Urban

Land (ceiling & Regulation) Act, 1976 was in force. The said Act inter-alia

provided for a ceiling on vacant land whereunder no person was entitled to

hold any vacant land in excess of the ceiling limit in the territories to which

the act applied under sub-section 2 of Section 1. The said ceiling was

pursuant to Chapter III of the said Act. Section 20 however allowed the

State Government the power to exempt any person from the embargo of

Chapter III aforesaid. It is an admitted position that the concerned portion

of land fell within the restriction of surplus vacant land in excess of the
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ceiling limits provided. And that registration of an agreement dealing with

the same would not have been permissible save and except pursuant to

an exemption granted under Section 20 aforesaid.

18. It is ex-facie apparent that the exemption was indeed not procured

inter-alia because the land at that point of time did not belong to

Gaurishankar Todi in the first place and in that any event the registration

was applied for fraudulently pursuant to forged documents falsely

indicating the grant of exemption.

19. The Petitioner states and submits that under the Registration Act

1908, if there is a refusal to register by the Sub-Registrar there is a

provision for appeal to the Registrar and a provision to file a suit in the

event of the Registrar refusing to register a document. There however is

no provision under the said Act prescribing a procedure firstly for seeking

de-registration of a registered document and secondly there is no

procedure or forum provided thereunder for challenging an order of refusal

to de-register.

20. The Petitioner states and submits further that it is settled law and

no longer res-integra that fraud vitiates all acts. It is equally settled,

particularly in case of miscarriage of justice, that an authority vested with

the powers to do something would inherently have the power to undo the

wrong. It is necessary fit and proper and in the interest of justice to read

into the provisions of the Registration Act more particularly the powers of

the Office of the Registrar towards registration and hold and declare that

the same would include the power to rescind/annul or revoke a registration

wrongly granted or a registration fraudulently obtained. Indeed if it is held

that the act does not provide for deregistration in such and similar

circumstances then the act would have to be struck down as

unconstitutional. The act would then give unbridled power to persons who
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would knowingly take advantage of the absence of a provision for

cancellation of registration with impunity, especially when registration

under the act validates a transaction and enables value thereto.

21. The Petitioner further states and submits that Suit No. 397 of 2010

filed by the Petitioner in which ad-interim orders have been given is

pending in respect of the said property. It is however beyond the

jurisdiction of the Civil Court to read into the provisions of the Registration

Act and beyond the jurisdiction thereof to grant reliefs as sought in the

present Petition. The Petitioner is directly concerned with all acts

pertaining to the said land including the various registrations and

permissions granted and hence is approaching this Hon’ble Court under

Article 226 and 227 of the Constitution of India .

22. It is stated and submitted that not only would the reliefs granted in

the present Petition be complete reliefs but, urgent reliefs are required as

creation of further third party rights would further prejudice the rights

interalia of the Petitioners and the third parties including third parties who

have allegedly already purchased premises. The same would also lead to

mulitiplicity of proceedings.

23. The Petitioner submits that in the aforesaid circumstances it is just

and necessary that this Hon’ble Court be pleased to issue Writ of

Mandamus or Writ in the nature of Mandamus or any other writ / order /

direction declaring and holding that the provision of the Registration Act

and the powers of the authorization thereunder needs to be read down to

mean that the appropriate authority under the Registration Act under its

existing provision had the power to rescind / revoke and/or cancel the

registration. It is just and necessary and in the interest of justice that this

Hon'ble Court be pleased to direct the office of Respondent No. 2 & 3 to

forthwith cancel / rescind / revoke and/or annul the registration of

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document dated _____ registered at the office of Respondent No. 3 at

serial no. 9502 of 2006 executed between Mr. Gaurishakar Todi (through

Mr. Shyamsunder Agrawal ) and Respondent No. 6. Pending the hearing

and final disposal of this petition this Hon'ble Court be pleased to

restrained Respondent no. 7 from granting an occupation certificate and/or

any other permissions, approvals or sanction analogous thereto in respect

of the said property and further direct Respondent No. 4, 5 & 6 to deposit

in this Hon'ble Court a sum equivalent to the sums collected towards

purchase / sale of the premises located on the said property.

24. The Petitioner craves leave to add to, alter, amend, delete and/or

modify any of the foregoing paragraphs and submissions of the Petition as

and when found necessary.

25. The Petitioner has approached this Hon’ble Court to expeditiously

as possible and as such there is no delay/latches on his part in filing the

present Writ Petition.

26. The Petitioner does not have any speed or efficacious remedy

other than by way of this Writ Petition under article 226 & 227 of the

Constitution of India.

27. The Petitioner states that grave, irreparable harm and injury would

be caused to petitioner if the reliefs are not granted and no harm and

injury would be caused to the Respondents if the reliefs are granted.

28. The Petitioner has not filed any other appeal, application, revision

or petition either in this Hon’ble High Court or the Hon’ble Supreme Court

of India touching the subject matter of this Petition ever before.

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29. The Petitioners have paid the requisite court fees of Rs.250/- on

this petition.

30. The Petitioner will rely upon the documents, a list whereof is

annexed hereto.

31. The Petitioner, therefore, prays:

(a) That this Hon’ble Court may be pleased to issue Writ of Mandamus or

for such appropriate Writ / order or direction declaring and holding that

the provision of the Registration Act and the powers of the

authorization thereunder needs to be read down to mean that the

appropriate authority under the Registration Act under its existing

provision had the power to rescind / revoke and/or cancel the

registration.

(b) That this Hon’ble Court may be pleased to issue Writ of Mandamus or

for such appropriate Writ / order or direction directing the office of

Respondent No. 2 & 3 to forthwith cancel / rescind / revoke and/or

annul the registration of document dated _____ registered at the office

of Respondent No. 3 at serial no. 9502 of 2006 executed between Mr.

Gaurishakar Todi (through Mr. Shyamsunder Agrawal ) and

Respondent No. 6.

(c) That this Hon’ble Court may be pleased to issue Writ of Mandamus or

for such appropriate Writ / order or direction directing Respondent No.

7 to withdraw all approvals / sanctions and/or permissions granted to

Respondent No. 6 in respect of the development of the said property

and to further direct Respondent No. 7 to cease and resist from

granting any further or other approvals / sanctions and/or commissions

to the said Respondent in respect of the said property.

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(d) Pending the hearing and final disposal of the present Petition this

Hon'ble Court be pleased to restrained Respondent no. 7 from granting

an occupation certificate and/or any other permissions, approvals or

sanction analogous thereto in respect of the said property.

(e) Pending the hearing and final disposal of the present Petition this

Hon'ble Court be pleased to restrain the Respondent / their officers

and/or this officers and agents acting through them from creating any

further third party rights in respect of the said property.

(f) Pending the hearing and final disposal of the present Petition this

Hon'ble Court be pleased to direct Respondent No. 4,5 & 6 to deposit

in this Hon'ble Court a sum equivalent to the sums collected towards

purchase / sale of the premises located on the said property.

(g) Cost of the Petition be provided for;

(h) For such further and other reliefs as may deem fit and proper in the

nature and circumstances of the case in the interest of justice.

Dated this day of November, 2010

Petitioner

Advocates for Petitioners

VERIFICATION

I _____________________, Adult Indian Inhabitant of Mumbai the

Petitioner abovenamed, residing at ________________________ do hereby

states on solemn affirmation that what is stated in paragraphs to are the facts

true to my knowledge and in paragraphs Nos. to are based on legal submission

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which I believe to be true and the last paragraph No. contains my humble

prayers which I believe to be true.

Solemnly affirmed at Bombay )

this day of November, 2010 ) Petitioners

Before me

Identified by me

Advocate for Petitioners