REAL ESTATE UPDATE
7th August 2023
Issue No. 010/23-24
REGISTRATION (MAHARASHTRA AMENDMENT) ACT, 2023
The government of Maharashtra has amended the Registration Act, 1908 vide Government Gazette Publication dated 25th July 2023 (L. A. Bill No. XXVII of 2023). It is now to be known as the Registration (Maharashtra Amendment) Act, 2023 (‘Amendment Act’). The Amendment Act has introduced and revised certain provisions to the Registration Act, 1908, (‘Act’) i.e. Section 18A and Section 21 (1).
Section 18A has been introduced to the Act to layout the circumstances in which certain classes of documents shall be refused for registration by the Registrar. These include the following documents:
- the document relating to transaction, which is prohibited by any Central Act or State Act, for the time being in force;
- the document relating to transfer of property by way of agreement for sale, sale, gift, exchange or lease or otherwise in respect of any immovable property owned by the Central Government or State Government or any Authority or undertaking of the Central Government or State Government or any authority or undertaking constituted or established under any Central Act or State Act, for the time being in force, executed by any person other than those statutorily empowered to do so;
- the document relating to transfer of property by way of agreement for sale, sale, gift, exchange or permanent alienation or lease or otherwise pertaining to any immovable property which is attached permanently or provisionally by any competent authority under any Central Act or State Act, for the time being in force or any court or tribunal
- document of any description as may be prescribed by the State Government by rules made under this Act.
Section 18 of the Act provides for list of documents which are optional for registration. Now, Section 18A has been introduced after Section 18, as a prohibitory provision to the Act.
The said Amendment Act has been enacted in response to the Judgement passed by the Bombay High Court dated 5th May 2022 in the case of Govind Ramling Solpure and Ors. vs. The State of Maharashtra and Ors. (05.05.2022 – BOMHC): MANU/MH/1601/ (‘Judgement’) which challenged the validity of Rule 44 (1) (i) of the Maharashtra Registration Rules 1961 and a circular issued by government of Maharashtra dated 12th July 2021. Rule 44 (1) (i) of the Maharashtra Registration Rules 1961, sets out that following:
“Before accepting any document for registration, a registering officer may not concern himself with its validity, but shall ascertain –
(i) that if the transaction which is indented by the document, is prohibited by any existing act of Central or State Government, then the true copy of requisite permission or No Objection Certificate from the Competent Authority under the said act, has been attached along with the document and that the document is not written in contradiction with any vital term or condition mentioned in that permission or No Objection Certificate.”
The circular dated 12th July 2021 mandates the enclosure of permission or NOC from the concerned authority alongwith the documents presented for registration in view of section 8(b) of the Maharashtra Prevention of Fragmentation and Consolidation of Holding (Amendment) Act, 2015. The circular further provides that the Sub-Registrar shall not register the document presented for registration unless sanctioned layout is enclosed with such documents.
The Bombay High Court by said Judgement, declared that the Rule 44 (1) (i) of the Maharashtra Registration Rules, 1961 would not be applicable while registering the document as per Section 34 r/w. section 35 of the Act. Further it was held that the registering authority shall not reject any document on the ground of non- compliance of Rule 44 (1) (i) and a Circular dated 12th July 2021.
Now, Section 18A of the Amendment Act in essence nullifies the effect of the said Judgement. This illustrates the age-old conflict between the Judiciary and Executive since the implementation of the Constitution and seems to defeat the purpose of “Separation of Powers”.
| Disclaimer: This newsletter is for general information only and not intended for any solicitation. Views expressed in this newsletter are as on date and not necessarily of V Law Partners (“VLaw”). While reasonable efforts have been taken to provide correct information, VLaw cannot and does not warrant or guarantee the accuracy of the information provided in the newsletter. Readers are advised not to rely solely on this information when making any decision.
Suggestions: If you do not wish to receive our newsletters or have any comments or suggestions for us, please write to us at – admin@vlawpartners.com |