No Acts & Articles mentioned in this case
01-WP-4159-2022.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 4159 OF 2022
1. Prem Villa Co-operative Housing Society Ltd.
The Co-operative Housing Society
Registered under the MCA Act, 1960
having Registration No.
BOM/WT/HSG/TC/8753/2002-2003
Dt. 15.03.2002
And having its registered address at
CTS No. 1400, 1 to 19, S. M. P. R. School
Marg, Mulund (West),
Mumbai – 400 080.
Through its Authorised Persons
1) Rajeshbhai Gandhi (Chairman),
2) Chimanbhai M. (Secretary),
3) Vipul Parikh (Treasurer) and
4) D. Lalitbhai (Committee Member) .Petitioners
Versus
1. Uma Deep Co-operative Housing Society
Limited
The Co-operative Housing Society
Registered under the MCA Act, 1960
having Registration No.
BOM/WT/HSG/TC/2760/86-87
Dt. 31.12.1987
And having its registered address at
CTS No. 1400, 1 to 19, S. M. P. R. School
Marg, Mulund (West),
Mumbai – 400 080.
2. The District Deputy Registrar,
Co-operative Societies-2,
1 2024:BHC-OS:14214
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Eastern Suburbs,
Mumbai
Having its Office Room No. 201,
2
nd
Konkan Bhavan, CBD Belapur,
Navi Mumbai – 400 614.
3. Vijay Co-operative Societies Ltd.
The Co-operative Housing Society
Registered under the Bombay Co-op.
Societies Act
having Registration No. B61/1927
And having its Registered Office
address at Vijay Society House,
Sewaram Lalwani Road, Mulund (West),
Mumbai – 400 080.
4. Mulchand Tokarshi Lodaya
Residing at Flat No. 24,
Uma Deep Chsl., 4
th
Floor,
Sewaram Lalwani Road,
Mulund (West),
Mumbai – 400 080.
5. Ashwin Premji Gada
having address at Shop No. 2,
Rohini, R.R.T.Road,
Mulund (West),
Mumbai – 400 080.
6. The Sub Registrar of Assurances,
Kurla 1, 2, 3, 4, 5
Mumbai
having his office at MTNL Building,
2
nd
Floor, Tagore Nagar No. 7 Hariyali,
Vikhroli (East),
Mumbai – 400 083.
7. The State of Maharashtra
Through the Ministry of Co-operative
Society, Mantralaya, Annexe 3
rd
floor,
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Room No. 311, Madam Cama Road,
Hutatma Rajguru Square, Nariman Point,
Mumbai – 400 032. .Respondents
______________________________________________________________
Mr. H. G. Dharmadhikari a/w. Mr. D. A. Bhalerao, Ms. Namrata Pandit,
Ms. Pallavi Baghel & Ms. Sneha Keni, Advocates, for the Petitioner
Mr. Mayur Khandeparkar a/w. Mr. Pritesh A. Parmar & Mr. Kaivalya M.
Raul i/b. Mr. Neel Anil Gala, Advocates, for Respondent No.1
Ms. Uma Palsuledesai, AGP, for Respondent No.2 – State
_______________________________________________________________
CORAM : MADHAV J. JAMDAR, J.
DATED : 29.07.2024
ORAL JUDGMENT
1.By the present Writ Petition preferred under Article 226 of the
Constitution of India, the Petitioner is challenging the legality and
validity of the Common Corringendum/Order dated 14.01.2020 by
which Corrigendum is issued with respect to the following two Orders :
i.Order dated 28.02.2014 passed in Deemed Conveyance
Application No.49 of 2023 in favour of the Respondent No.1–
Society.
ii.Order dated 28.02.2014 passed in Deemed Conveyance
Application No.98 of 2013 in favour of the Petitioner–Society.
2.Before setting out the rival contentions and consideration of the
same, it is necessary to set out certain factual aspects.
(i) The Respondent No.1–Uma Deep Co-operative Housing
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Society Ltd. (“Respondent No.1–Society”) is a registered Society, formed
on 31st December 1987. Respondent No.4–Mulchand Tokarshi Lodaya
was the Promoter of the Respondent No. 1 - Society. Said Respondent
No.1–Society applied on 03.02.2012 for the Deemed Conveyance under
Section 11 of the the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963
(“MOFA”) by filing Deemed Conveyance Application No.49 of 2013.
(ii) The Petitioner–Prem Villa Co-operative Housing Society
Ltd. (“Petitioner–Society”) was formed on 15th March 2002.
Respondent No.5–Ashwin Premji Gada was the Promoter of the
Petitioner–Society. The Petitioner–Society on 19.12.2012 filed Deemed
Conveyance Application No.98 of 2013 under Section 11 of the MOFA.
(iii) Both these Deemed Conveyance Applications were heard
and allowed by a separate Orders dated 28.02.2014.
(iv) Accordingly, a Certificate of Deemed Conveyance was
issued in favour of the Respondent No.1–Society (Page No.69), which
reads as follows:
ßekuho vfHkgLrkad.k uksan.kh izek.ki=
egkjk”Vª ekydh gDdkP;k lnfudkckcr vf/kfu;e] 1963 ps dye 11
vUo;s eyk izkIr vf/kdkjkUo;s ekuho vfHkgLrkad.k uksan.kh izek.ki= ns.;klkBh
izkf/kd`r dsys vlY;kus eh foykl xkoMs] ftYgk mifuca/kd] lgdkjh laLFkk¼2½] iqoZ
miuxjs] eqacbZ rFkk l{ke izkf/kdkjh ;k}kjs mek nhi dks−vkWi-gkSflax lkslk-fy-]eqywaM ;k
laLFksus fnysY;k vtkZuqlkj IykWV dz-194¼ikVZ½] lOgsZ dz-1000] iSdh ch o Mh] lh-
Vh-,l-dz- 1400 v] 1400 ch] 1400@1 rs 19 lsokjke ykyokuh jksM] − − ¼{ks=QG
1234 pkS-eh-½] iSdh 529-5 pkS-eh- eqywaM ¼i-½] eqacbZ 400 080 lsokjke−
ykyokuh jksM] ;k feGdrhps ekuho vfHkgLRkkad.k vtZnkj mek nhi dksvkWi-gkSflax−
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lkslk-fy-]eqywaM ;k laLFksps ukos dj.kkjk vfHkgLrkad.k djkjukek (Lease Deed)
feGdrhps ekyd @ fodkld ;kaps laeRrhf’kok; ,drQhZ djkj d:u rks uksan.khd`r
dj.;klkBh mDr vf/kfu;ekaps dye 11 vUo;s ik= vkgs vls izekf.kr dj.;kr ;sr
vkgs-
lnjps izek.ki= vkt fn-28@02@2014 jksth ek>s lgh f’kD;kfu’kh fnys
vls
Þ
(Emphasis added)
(v) The Certificate of Deemed Conveyance issued in favour of
the Petitioner–Society is on Page No.115, which reads as follows:
ß
ekuho vfHkgLrkad.k uksan.kh izek.ki=
egkjk”Vª ekydh gDdkP;k lnfudkckcr vf/kfu;e] 1963 ps dye 11
vUo;s eyk izkIr vf/kdkjkUo;s ekuho vfHkgLrkad.k uksan.kh izek.ki= ns.;klkBh
izkf/kd`r dsys vlY;kus eh foykl xkoMs] ftYgk mifuca/kd] lgdkjh laLFkk¼2½] iqoZ
miuxjs] eqacbZ rFkk l{ke izkf/kdkjh ;k}kjs izse foyk dks−vkWi-gkSflax lkslk-
fy-]eqywaM ;k laLFksus fnysY;k vtkZuqlkj IykWV dz-194¼ikVZ½] lOgsZ dz-1000] iSdh ch
o Mh] lh-Vh-,l-dz- 1400 v] 1400 ch] 1400@1 rs 19 lsokjke ykyokuh− −
jksM] ¼{ks=QG 1234 pkS-eh-½] iSdh 659-5 pkS-eh- eqywaM ¼i-½] eqacbZ 400 080−
lsokjke ykyokuh jksM] ;k feGdrhps ekuho vfHkgLRkkad.k vtZnkj izse foyk
dksvkWi-gkSflax lkslk-fy-]eqywaM ;k laLFksps ukos dj.kkjk vfHkgLrkad.k djkjukek−
(Lease Deed) feGdrhps ekyd @ fodkld ;kaps laeRrhf’kok; ,drQhZ djkj
d:u rks uksan.khd`r dj.;klkBh mDr vf/kfu;ekaps dye 11 vUo;s ik= vkgs vls
izekf.kr dj.;kr ;sr vkgs-
lnjps izek.ki= vkt fn-28@02@2014 jksth ek>s lgh f’kD;kfu’kh fnys
vls
Þ
(Emphasis added)
(vi) After issuance of the Order granting Deemed Conveyance
dated 28.02.2014, the unilateral deed of assignment dated 18.06.2014
conveying 659.50 sq. mtrs. of land by Deed No.KRL-3/5193 of 2014
was executed in favour of the Petitioner – Society and the same has
been registered on 20.06.2014.
(vii) On 12th March 2019, the Respondent No. 1 filed an
Application after a period of about 5 years seeking rectification in the
Order dated 28.02.2014. In the said rectification, the Respondent No. 1
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– Society sought the joint ownership of the entire area of the subject
land.
(viii) By the impugned Order dated 14.01.2020, the Competent
Authority had issued the Corrigendum/Rectification issuing
Corrigendum to the Deemed Conveyance Certificates issued in favoour
of the Petitioner – Society and the Respondent No.1 – Society by issuing
the Deemed Conveyance jointly in favour of both these Societies. The
relevant portion of said Corrigendum/Rectification Order is on Page
No.87, which reads as follows:
“Corrigendum/Rectification Order
In exercise of powers conferred upon me under section 5A
of Maharashtra Ownership of Flats Act, 1963, I, Dr. Prashant
Sonawane, District Deputy Registrar, Co-operative Societies (2),
Eastern Suburbs, Mumbai and Competent Authority under section
5A of Maharashtra Ownership of Flats Act, 1963 I pass this
common corrigendum in order dated 28/02/2014 in Deemed
Conveyance application no.49/2013 of society no.1 and order
dated 28/02/2014 in Deemed Conveyance application no.98/2013
of society no.2 and hereby grant the joint Assignment of Lease to
1) Uma Deep Co.op. Hou. Soc. Ltd., Sevaram Lalwani Road,
Mulund (W), Mumbai-400 080, and 2) Prem Villa Co. Op. Hou.
Soc. Ltd. SMPR School Marg, Mulund (W), Mumbai 400 080 the
description of plot of land should be read as “CTS No.1400A,
1400/1 to 19, Sevaram Lalwani Road, Mulund (W), Mumbai-400
080 for area admeasuring 1189 sq.m.” jointly in favour of both
societies.”
(Emphasis added)
The said Order dated 14.01.2020 is challenged by filing the present
Writ Petition.
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3.Mr. Dharmadhikari along with Mr. Bhalerao, learned Counsel for
the Petitioner raised the following contentions :
(i) It is submitted that as per Orders dated 28.02.2014 passed
under Section 11(4) r/w Section 5A of the MOFA, the Deemed
Conveyance has been granted in favour of the Petitioner-Society for an
area admeasuring 659.50 sq. mtrs. and in favour of the Respondent
No.1-Society for an area admeasuring 529.50 sq. mtrs. Thereafter,
immediately the Deemed Conveyance/Deed of Assignment was
executed on 19.06.2014 in favour of the Petitioner – Society and the
same was registered on 20th June 2014. It is submitted that after the
lapse of 5 years from the date of Order of the Competent Authority
issued in favour of the Petitioner-Society as well as Respondent No.1-
Society, the Respondent No.1-Society filed an Application for
Rectification of said Order dated 28.02.2014 on or about 12.03.2019
and the same is barred by limitation.
(ii) It is also submitted that in any case the Application was
filed after a period of 5 years and the Competent Authority failed to
take into consideration that the Order granting Deemed Conveyance has
already been acted upon.
(iii) The Corrigendum can be essentially issued to correct a
typographical or arithmetical error. Such error arising due to accidental
slip or omission can be rectified in exercise of incidental or ancillary
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powers, which are inherent in every judicial or quasi-judicial authority.
It is submitted 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. Reliance is placed in support of the said submissions on the
following decisions of this Court as well as of the Supreme Court:
(i) Kashish Park Reality Pvt. Ltd. v. State of Maharashtra
1
(ii) Naresh Kumar v. State (NCT of Delhi)
2
(iii) Bhupendrasingh v. Competent Authority
3
(iv) It is submitted that the Competent Authority entertained
the Application and reviewed the Order substantially, without any
authority of law under the MOFA. It is submitted that the power of
review is the statutory power and under the MOFA there is no provision
by which a review can be entertained by the Competent Authority. Thus,
it is submitted that there is no power for exercising power of review. It
is submitted that the impugned Order of Corrigendum is not covered by
the “procedural review”.
4. On the other hand, Mr. Khandeparkar, learned Counsel for
Respondent No.1 raised the following submissions :
(i) By Order dated 28.02.2014 passed by the Competent
Authority, Respondent No.1-Society was granted 529.50 sq. mtrs. area
and remaining area 659.50 sq.mtrs. was granted to the Petitioner–
1 2020 SCC OnLine Bom 11644
2 (2019) 9 SCC 416
3 2019 SCC OnLine Bom 6092
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Society i.e. Prem Villa Co-operative Housing Society Ltd. It is submitted
that both these areas do not form part of any of the MOFA Agreements
i.e. MOFA Agreement executed with the flat purchasers who are the
members of the Petitioner – Society and MOFA Agreement executed
with the flat purchasers who are the members of the Respondent No. 1
– Society. It is submitted that said Order was passed on the basis of
incorrect calculation of TDR and FSI utilization by each building.
(ii) It is submitted that the Application dated 12.03.2019 filed
by the Respondent No.1-Society is seeking procedural review of the said
Order dated 28th February 2014 and accordingly, the Corrigendum was
issued by the Competent Authority by the Order dated 14.01.2020.
(iii) It is submitted that no interference in the impugned Order
under Article 226 of the Constitution of India is warranted, as
erroneous Order dated 28.02.2014 was passed due to a
misapprehension of calculation/division of area contrary to the MOFA
Agreements and the same has been corrected by the impugned Order of
Corrigendum.
(iv) It is submitted that by the Corrigendum Order, the
procedural error was rectified and assignment was granted jointly in
favour of both the societies removing the discrepancy of the area. The
reliance is also placed in this behalf on certain title documents and also
arguments are advanced with respect to the discrepancy in area in the
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MOFA Agreements and in the Order granting Deemed Conveyance
dated 28.02.2014.
(v) It is submitted by Mr. Khandeparkar, learned Counsel for
Respondent No.1 that power of a procedural review is either inherent or
implied in a court or a tribunal to set aside a palpably erroneous order
passed under a misapprehension by it. It is submitted that in a
procedural review, a Court or quasi-judicial authority having jurisdiction
to adjudicate, proceeds to do so, but in doing so, ascertains whether it
has committed a procedural illegality, which goes to the root of the
matter and invalidates the proceeding itself, and consequently the order
passed therein. It is submitted that, in the present case, 2014 Order by
which the bifurcation of area is determined, insofar as the Petitioner
and Respondent No.1-Society, the same is incorrect and beyond the
scope and powers of the Registrar. It is submitted that there was no
mention of the areas 659.50 sq. mtrs. and 529.50 sq. mtrs. in any of the
title documents and the MOFA Agreements of the Petitioner or
Respondent No.1. It is submitted that the Competent Authority has
unilaterally and beyond its powers ordered the proportional division on
the basis of utilization of TDR and FSI by both the societies. It is
submitted that therefore by the Corrigendum Order, what is done is by
exercising power of a procedural review, palpable error under a
misapprehension was set aside. To substantiate the said submission,
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reliance is placed by Mr. Khandeparkar, learned Counsel on the
following decisions of the Supreme Court as well as of this Court:
(i)Srei Infrastructure Finance Ltd. v. Tuff Drilling (P) Ltd.
4
(ii)Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal
5
(iii)Kapra Mazdoor Ekta Union v. Birla Cotton Spg. and Wvg.
Mills Ltd.
6
(iv)Kalpataru Power Transmission Ltd. v. Maharashtra State
Electricity Transmission Co. Ltd.
7
(v)Jaywant Ramchandra Keni v. The Competent Authority
District Deputy Registrar Co-operative Societies
8
(vi)A.M. Allison v. B.L. Sen
9
(vii)Chandra Singh v. State of Rajasthan
10
5. Before considering the rival contentions, it is necessary to
set out difference bewteen the procedural review and statutory
review. In Grindlays Bank Ltd. (Supra), distinction between the
procedural review and statutory review is considered and it has been
held as follows:
“The expression 'review' is used in two distinct senses, namely (1) a
procedural review which is either inherent or implied in a court or
Tribunal to set aside a palpably erroneous order passed under a
misapprehension by it, and (2) a review on merits when the error
sought to be corrected is one of law and is apparent on the face of
the record. It is in the latter sense that the Court in Narshi
Thakershi's case held that no review lies on merits unless a status
specifically provides for it. Obviously when a review is sought due
4 (2018) 11 SCC 470
5 1980 Supp SCC 420
6(2005) 13 SCC 777
7 2020 SCC OnLine Bom 120
8Writ Petition (L) No.8893 of 2023
9 1956 SCC OnLine SC 112
10 (2003) 6 SCC 545
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to a procedural defect, the inadvertent error committed by the
Tribunal must be corrected ex debito justitiae to prevent the abuse
of its process, and such power inheres in every court or Tribunal.”
6. In Kapra Mazdoor Ekta Union (Supra), in Paragraph No.19, the
parameters of the procedural review are explained. The said Paragraph
No.19 reads as under:
“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 different category. In such a
review, the court or quasi-judicial authority having jurisdiction to
adjudicate proceeds to do so, but in doing so commits (sic
ascertains whether it has committed) 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
fixed 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 suffers 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 suffered from such illegality that it
vitiated the proceeding and invalidated the order made therein,
inasmuch as 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 fixed for hearing of the matter which he could
not attend for no fault of his. In such cases, therefore, the matter
has to be reheard 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
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of procedure or mistake which went to the root of the matter and
invalidated the entire proceeding.”
7. A learned Single Judge in the decision of Kashish Park Reality Pvt.
Ltd. (Supra) after considering the various decisions on the aspect of
difference between the procedural review and statutory review,
discussed the same in Paragraph Nos.10 to 12 as well as in Paragraph
No.15. Said case of Kashish Park Reality Pvt. Ltd. (Supra) is also arising
out of the Deemed Conveyance Application. The said paragraphs 10, 11,
12 & 15 are relevant and the same are reproduced herein below:
“10.The principal challenge in the Petitions is to the legality of
Corrigenda, all dated 06-8-2020, 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 (8th 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. State of U.P., 1972
Cri 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. State of Punjab, (1969)
1 SCC 379 : AIR 1969 SC 961 and the decision of the Rajasthan
High Court in Kandoi Kabliwala v. Assistant Commercial Taxes
Officer, 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 effect of law. It can neither
take away the vested right of a person nor can it have the effect 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
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to accidental slip or omission can be rectified 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. Union of India, (2000) 6
SCC 224 : 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.
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
palpable errors can be rectified 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 specifically conferred by the statute.”
(Emphasis added)
8.Thus, after analysis of the above decision, the following principles
can be culled out regarding difference between the procedural review
and substantiate review.
(i) The expression 'review' is used in two distinct senses,
namely (1) a procedural review and (2) a review on merits i.e.
substantive review.
(ii) A procedural review is either inherent or implied in a court
or Tribunal to set aside a palpably erroneous order passed under a
misapprehension by it.
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(iii) A review on merits when the error sought to be corrected is
one of law or facts and is apparent on the face of the record.
(iv) A court or quasi-judicial authority can review its judgment
or order on merits only if the court or the quasi-judicial authority is
vested with power of review by express provision or by necessary
implication. 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.
(v) 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 palpable errors can be
rectified 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 specifically
conferred by the statute.
(vi) Thus, only palpable errors can be rectified 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 specifically conferred by the statute.
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9. It is necessary to examine the present case on the touchstone of
the principles laid down by various Courts with respect to the procedural
review and the power of statutory review.
10.As far as the Order dated 28.02.2014 granting Deemed
Conveyance in favour of the Respondent No.1-Society of an area
admeasuring 529.50 sq. mtrs. as well as granting Deemed Conveyance in
favour of the Petitioner – Society of an area admeasuring 659.50 Sq.
mtrs., it is significant to note that the detailed reasons are given by the
Competent Authority which reads as under :
“lnj feGdrhps ,dw.k {ks=QG 1234 pkS-ehVj brds vlwu 45 pkS-ehVj brdk lsV
cWd ,fj;k c`gUeqacbZ egkuxjikyhdsdMs gLrkarjhr dsysyk vkgs lcc moZjhr 1189
pkS-ehVj brds {ks=QG f’kYyd vlwu R;koj meknhi dks-vkWi-gkSflax lkslk;Vh fy- o
izsefOgyk dks-vkWi-gkSflax lkslk;Vh fy- ;k nksu laLFkk vlwu meknhi dks−vkWi-gkSflax
lkslk;Vh fy- ;k laLFksps cka/kdke 1055 pkS-ehVj brdk ,Q-,l-vk;- oki:u o
izsefOgyk dks−vkWi- gkSflax lkslk;Vh fy- ;k laLFksps cka/kdke 181-47 pkS-ehVj brdk
,Q-,l-vk;- o 1134-11 pkS-ehVj brdk Vh-Mh-vkj- vls ,dw.k 1315-58 pkS-ehVj
oki:u dj.;kr vkysys vkgs lcc lnj feGdrhoj nksUgh laLFkkaps feGwu ,dw.k
2370-58 pkS-ehVj brds cka/kdke dj.;kr vkysys vkgs vls fnlrs o lnj
feGdrhr l|fLFkrhr ,Q-,l-vk;- o Vh-Mh-vkj- f’kYyd ulY;kps fnlrs o
lnjP;k IykWVps v|kii;Zar mifoHkktu >kysys ukgh lcc v’kk ijhfLFkrhr nksUgh
laLFkkauk {ks=QG foHkkx.kh gh R;kaps ,Q-,l-vk;- o Vh-Mh-vkj- ofjyizek.ks ns.ks ;ksX;
gksbZy lcc meknhi dks−vkWi-gkSflax lkslk;Vhps cka/kdke oki:u 1055 pkS-
ehVj ,Q-,l-vk;- oki:u >kysys vlY;kus 529-5 pkS-ehVj brD;k {ks=QGkps
meknhi dks−vkWi- gkSflax lkslk;Vh fy-;kaps ukos o moZjhr 659-5 pkS-ehVj brD;k
{ks=QGkps yxrP;k izsefOgyk dksvkWi-gkSflax lkslk;Vh fy- ;kps uko gLrkarj.k d:u−
nsrk ;sbZy o 45 pkS-ehVj lsVcWdps Hkfo”;kr ts Qk;ns feGrhy rs meknhi
dksvkWi-gkSflax lkslk;Vh ;kl feGrhy-− ”
English translation of above as provided by the Petitioner is on Page
Nos.72 H to 72 I, which reads as follows:
“After having gone through the same it appears that the total area
of the property is 1234 square metre and the area of 45 square
metres which is a road setback area has been transferred to the
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Brihanmumbai Municipal Corporation and the remaining area of
1189 square metres on which the building of Umadeep Co-
operative Housing Society Limited and Prem Villa Co-operative
Housing Society are standing and after using 1055 square metres
FSI floor space index the building of Umadeep Co-operative
Housing Society has been carried out and similarly after using
181.47 square metres of FSI floor space index the building of Prem
Villa Cooperative Housing Society has been constructed and as
such and the TDR for 1134.11 square metre has been used
aggregating to 1315.58 square metres have been used and
accordingly the area of both these society is 2370.58 square metre
which construction has been carried out which is appearing from
the record. It appears that in the present situation there is no FSI as
well as TDR remaining balance and this plot has not been
subdivided till date and in this situation it will be appropriate that
both the societies should be given the divided FSI and TDR area as
per the use and therefore for the construction of Umadeep
Cooperative Housing Society the FSI 1055 square metre have been
used and for the construction of Umadeep Co-operative Housing
Society Limited the FSI has been used is 529 square metre and the
remaining area is 659.5 square metre should be transferred in the
name of Prem Villa Cooperative Housing Society Limited which is
adjacent society and the benefits of 45 square metre set back in
future which will be received by Umadeep Cooperative Housing
Society Limited.”
(Emphasis added)
Thus, it is clear that while granting an area of 659.50 sq. mtrs. to the
Petitioner-Society and an area of 529.50 sq. mtrs. to the Respondent
No.1-Society alongwith rights in benefits of 45 Sq. mtrs. of set back
area, the Competent Authority has given detailed reasons while passing
the Order dated 28.02.2014. Thus, by no stretch of imagination, the
impugned Order passed, although titled as Corrigendum, can fall in the
category of a procedural review. The power of procedural review cannot
be used to substitute a view. Thus, what is done by the Competent
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Authority is that by reappreciating the material on record under the
guise of the Corrigendum, a new Order has been passed substituting the
earlier reasoning and the Order. This cannot be permitted to be done
under the guise of the procedural review.
11.In any case, it is required to be noted that the Competent
Authority passed the Order on 28.02.2014 and the Application for
Rectification was filed by the Respondent No.1-Society on 12.03.2023
i.e. after a period of more than 5 years. It is an admitted position that,
in the meanwhile, the Deemed Conveyance was executed and registered
on 20.06.2014 in favour of the Petitioner-Society in consonance with
the earlier Order dated 28.02.2014 passed by the Competent Authority.
12.Thus, while passing the impugned Order of the Common
Corrigendum dated 14.01.2020, the Competent Authority has exceeded
the jurisdiction and order passed is without jurisdiction and without any
power of statutory review. The said Order, by no stretch of imagination,
can fall under the category of procedural review. The Competent
Authority has no jurisdiction to exercise the power of review, which is in
the nature of substantive review. The said power cannot be exercised
when there are no specific provisions conferred by the statute.
13.Mr. Khandeparkar, learned Counsel for Respondent No.1 heavily
relied on the decision of a learned Single Judge in Kalpataru Power
Transmission Ltd. (supra), and more particularly on Paragraph No.35 of
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the same, which reads as under:
“
35. The question now arises for consideration of this Court is
whether the review petitioners have applied for procedural review
or seeks review of the judgment and order passed by this Court on
merit. A perusal of the judgment referred to aforesaid clearly
indicates that the Court has inherent or implied powers to set aside
a palpably wrong order passed under a misapprehension by it and
if found erroneous and vitiated by an error of procedure or mistake
which went to the root of the matter and invalidate the entire
proceedings. I shall now proceed to decide whether review
petitioner has demonstrated any such error of procedure or
mistake which went to the root of the matter and whether in the
facts of this case, Court shall exercise powers of procedural review
under plenary jurisdiction or not.
”
However, a perusal of the said decision particularly, paragraph 34 of the
same clearly shows that a learned Single Judge has relied on the
decision in
Grindlays Bank Ltd. (Supra). By relying on the said
paragraph 35, it cannot be held that the Competent Authority can
review the Order on merits without the power of the statutory review
under the MOFA. Thus, the said decision in the case of Kalpataru Power
Transmission Ltd. (Supra) is not applicable to the present case.
14.Mr. Khandeparkar, learned Counsel also relied on the Judgment
of a learned Single Judge in the case of Jaywant Ramesh Keni (supra)
However, the said decision is rendered in the particular facts and
circumstances of that case, as set out in paragraph 7, the relevant
portion of the same reads as under :
“7. …...
In the present case exercise of power to issue
corrigendum far from being arbitrary exercise of power, actually
subserves the objective behind the Government Resolution dated
22 June 2018. It is also required to be borne in my mind that the
Petitioner is divested of title and possession of the entire plot of
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land in respect of which the layout is sanctioned. The
development in the layout is complete wherein 7 buildings are
constructed and 7 Cooperative Housing Societies are formed.
There is no dispute interse between the 7 Co-operative Societies.
In fact it appears that the other Co-operative Societies have also
filed applications claiming proportionate share in the internal
road and recreational ground. In that view of the matter it is
difficult to comprehend as to how the rights of the Petitioner are
affected if all 7 Societies share the internal road and recreational
ground in proportionate to the areas of their respective plots. I
am therefore of the view that the action of the Competent
Authority in issuing the corrigendum, far from being arbitrary,
actually brings the original order dated 2 July 2014 in tune with
the GR dated 22 June 2018.”
Thus, it is clear that the said decision is rendered in the peculiar facts
and circumstances of that case and will have no application to the
present case.
15. Mr. Khandeparkar, learned Counsel also relied on the decision in
the case of A.M. Allison (supra) and Chandra Singh (supra). The said
decisions are concerning the reliefs sought under Article 226 of the
Constitution of India. However, in the present case, the impugned Order
is passed without jurisdiction, as under the guise of the procedural
review, the Competent Authority without any statutory provision has
reviewed the order on merits. Thus, the said decisions have no
application to the present case.
16.Mr. Khandeparkar, learned Counsel has also relied on the decision
of the Supreme Court in the case of Srei Infrastructure Finance Ltd. v.
Tuff Drilling (P) Ltd. (Supra). In that case, it has been held that the
Arbitral Tribunal after termination of proceedings under Section 25(e)
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of the
Arbitration and Conciliation Act, 1996 on sufficent cause being
shown can recall the Order or recommence the proceedings. Reliance is
placed on O. IX, R. 9 of the
Code of Civil Procedure, 1908 and it has
been held that principles underlying the same can be invoked by the
Arbitrator. Thus, the said decision has no relevance for deciding this
case.
17.For the above reasons, the impugned Order dated 14.01.2020 of
the Common Corrigendum and Certificate issued by the Competent
Authority is quashed and set aside. Resultantly, the Order dated
28.02.2014 passed in Deemed Conveyance Application No.49 of 2023
and in the Deemed Conveyance Application No.98 of 2013 passed by
the Competent Authority, are restored.
18.It is also required to be noted that as per the settled legal
position, the Order granting Deemed Conveyance does not conclude the
issue of title, and the person claiming title can file a Suit in the
appropriate Court for establishing the title. Thus, the Respondent No. 1
can file Suit in the appropriate Court seeking appropriate reliefs to
establish their title. All contentions in that behalf are expressly kept
open.
19.It is clarified that, consequently, the impugned deed dated
04.12.2020 executed and registered pursuant to the impugned Order
dated 14.01.2020 cannot be acted upon and stands cancelled, as the
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Order dated 14.01.2020 is quashed and set aside.
20.Accordingly, the Writ Petition is allowed in above terms with no
order as to costs.
[MADHAV J. JAMDAR, J.]
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