Registration Act; State Vs. Rajiv Maheshkumar Mehta [Gujarat High Court, 09-08-2016]

Contents

Registration Act, 1908 – Ss. 17, 32, 33 & 34 – Registering officer cannot undertake inquiry into legality and validity of the title and document like judicial officer.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 09/08/2016

LETTERS PATENT APPEAL NO. 22 of 2013 In SPECIAL CIVIL APPLICATION NO. 14413 of 2011 With LETTERS PATENT APPEAL NO. 23 of 2013 In SPECIAL CIVIL APPLICATION NO. 14421 of 2011 TO LETTERS PATENT APPEAL NO. 24 of 2013 In SPECIAL CIVIL APPLICATION NO. 17541 of 2011 With SPECIAL CIVIL APPLICATION NO. 13731 of 2012

STATE OF GUJARAT NOTICE TO BE SERVED THROUGH & 2….Appellant(s) Versus RAJIV MAHESHKUMAR MEHTA & 3….Respondent(s)

Appearance:

LPA NOS. 22 OF 2013 TO 24 OF 2013 MR PK JANI ADDL. ADVOCATE GENERAL for the Appellant(s) No. 1 – 3 MR DEVEN PARIKH SR. ADV. For MR NIRAV P SHAH, ADVOCATE for the SCA NO. 13731 OF 2012 MR RS SANJANWALA SR. ADV. For MR DHAVAL SHAH for Petitioner MR PK JANI ADDL. ADV. GENERAL for the Respondent Nos.1 to 4 MR KK TRIVEDI ADVOCATE for the Respondent Nos. 5 & 6.

JUDGMENT

(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)

1. All these Letters Patent Appeal under Clause 15 challenge common oral judgements dated 9.5.2012 and 10.5.2012 rendered in three writ petitions namely, Special Civil Application Nos. 14413 of 2011, 14421 of 2011 and 17541 of 2011 filed under Article 226 of the Constitution of India by the petitioners challenging circular dated 8.12.2010 and 7.1.2012 issued by respondents, which according to the petitioners were contrary to law and amounted to imposing undue, unwarranted and illegal restrictions upon the right of the petitioners to have a document registered in accordance with provisions of

# Section 17 of the Registration Act, 1908

(in short “Act 1908”). In view of controversies with regard to subject petitions and these appeals it is not necessary to record facts in detail but in brief, the petitioners have grievance against respondent authorities especially respondent No.2 namely, the Sub Registrar of not registering their documents namely sale deed executed by a power of attorney of agricultural land, without the presence of the owner of the said land and for not complying with conditions laid down thereunder. In a case, where there is entire part performance of the contract, as per Section 53- A of the Transfer of Property Act and full sale consideration has been paid and even possession of the property is handed over and an irrevocable power of is also executed seeking mandatory compliance of the conditions laid down in impugned circulars dated 8.12.2010 and dated 7.1.2012, whether could have been issued in exercise of executive powers by respondent NO.1 inasmuch as, circulars are ex facie illegal and contrary to the provisions of Act, 1908 as well as Power of Attorney Act, 1882 (in short “Act 1882”).

2. After considering contentions on law raised by the petitioners that circulars impugned are in derogation to the powers conferred under Act 1908 and whittles down and circumscribed provisions of Power of Attorney Act 1882 and, therefore, illegally came to be examined in the context of factual scenario about Power of Attorney himself is executant of the document on behalf of the principal and is entitled to present document as required under Section 33 of the Registration Act. It was contended that barring fulfillment of the requirement under Section 32and 33 of Act 1908 no other procedure or formality was to be undertaken by such power of attorney who himself is executant of the document to be presented for registration. What is required to be seen by the Sub Registrar or the Registrar as the case may be is whether such document is presented fulfills requirement under the Act 1908 or not. NO other inquiry is envisaged about examining legality and validity of such document by Sub Registrar or Registrar as the case may be in absence of any statutory provision of Act 1908. That contours and parameters of executive powers of the State under Article 162 also came to be examined qua List III (Concurrent) entry No.6 read with Article 254 of Constitution of India in the context of submissions made by learned AGP findings were given based on reasons contained in paras 14, 15 and 16 of the judgement and was held that plain reading of Article 162 and 254 (2) of the Constitution of India would clearly go to show that the power of the State to make law is subject to provision of Article 254 (2) and, therefore, when the law which is competent to be made is also subject to Article 254, naturally there is no exemption or immunity on the executive action there from. It is further held that when provision of power of attorney Act 1882 and Registration Act 1908 do not provide for any other requirement, then, additional requirement by way of executive instruction cannot be permitted to be introduced which is an impediment in the way of registration.

Thus, petitions filed by the petitioners came to be allowed by quashing impugned circulars.

3. Mr. P.K.Jani, learned Additional Advocate General appearing for the appellant-State of Gujarat would contend that Government Resolutions/circulars/guidelines and instructions on 8.12.2010, 7.11.2012 and 13.10.2014 are not contrary to any provisions of the Act, 1908 or Act, 1882 inasmuch as Registering Officer/Authority will never go into validity of the document presented for registration but would take action in accordance with provisions of Registration Act, 1908 and Rules made thereunder. It is submitted that learned Single Judge has failed to consider the above aspect and, therefore, order impugned deserves to be quashed and set aside.

3.1. Next, it is contended that provisions of Sections 32, 33, 34 and 35 of the Act, 1908 though fell into consideration before learned Single Judge neither such provisions were dealt with nor considered resulting into error apparent on the face of record and to the extent as above order impugned is illegal. Inter alia, it is contended that submissions were made about applicability and effect of the provisions as per scheme of the Act, 1908 but again no reference to the same is found in the order. Therefore, order impugned cannot be allowed to stand and deserves to be quashed and set aside.

3.2. It is emphasized by learned Additional Advocate General that there is no inconsistency or any conflict in the above three Government Resolutions/circulars with any of the provisions ofRegistration Act, 1908. Article 162 of Constitution of India and entry 6 in List III namely concurrent list, if read in juxtaposition to, it will be evident that State is empowered to issue executive instructions which are binding and considering foremost interest of innocent land owners with avowed object, the State Government has given instructions to registering authority to follow certain procedure so that large scale fraud can be avoided resulting into multifarious proceedings including criminal, civil and other statutory litigation followed and undertaken by the persons/parties. What is envisaged by above Government resolutions is simply verification about genuineness of certain required norms and material by the registering officer, who will not go into legality and validity of the documents and, therefore, it cannot be said that such provisions of Government Resolutions are contrary to law.

3.3. Learned Additional Advocate General has referred to Sections 68 and 69 of the Act of 1908 pertaining to powers of Registrar to Superintend and control Sub Registrars and further powers of Inspector General to Superintend Registration officers and making rules and therefore, Government Resolutions clarifying and guiding officers of the State with regard to manner and method of verification of the document presented for registration cannot be said to be illegal warranting any interference of the Court exercising powers under Article 226 of the Constitution of India.

3.4. Learned Additional Advocate General has also placed reliance on Rule 45 of the Gujarat Registration Rules, 1970 (Rules, 1970) framed in exercise of powers conferred by Section 69 of Registration Act, 1908 and it is submitted that registering officer is duty bound to verify the document presented for registering before accepting the same in consonance with the above rule the Government Resolutions are issued which cannot be even termed unreasonable or arbitrary and violative ofArticle 14 of the Constitution of India.

3.5. It is submitted that if the provisions of Section 34 and 35 of the Act, 1908 read with Rule 45 of the Rules, 1970 the exercise undertaken by the State of Gujarat in larger public interest even if it costs some inconvenience to the individuals has to be given due recognition since the same result into avoiding unwarranted litigation and, therefore, this appeal under Clause 15 of Letters Patent Appeal deserves to be allowed by quashing and setting aside the order passed by learned Single Judge.

3.6. Next it is contended that the purpose and purport of preliminary and limited inquiry is to see that whether proper stamp duty is paid on the document so as to avoid further complication arise out of such breach. The guidelines issued by above three G.R.s take care of such a situation and the matter is reuqired tobe viewed accordingly.

3.7. Learned Additional Advocate General, however, lastly submitted that Government Resolution dated 30.10.2014 after the order was passed by learned Single Judge on 9.5.2012 takes care of almost all grievances of the aggrieved parties and substantially reduces inconvenience and hardships and accordingly the above G.R.’s deserves to be sustained by this Court.

4. As above, Mr. Prakash Jani, learned Additional Advocate General placed reliance on the decisions of the Apex Court:

# (1) Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1995 SC 549

pertaining to scope of executive power in the context of Article 162 of the Constitution of India.

# (2) Ajit Investment Co.Pvt. Ltd., Jamnagar Gujarat and Anr. v. K.G.Malvadkar and Ors., AIR 1973 BOMBAY 285

with regard to Sections 34 and 35 of Registration Act, 1908 and that under Rule 44 of Maharashtra Registration Rules 1961 whereby a registering officer was empowered to verify various requirements pertaining to registration of documents which are prescribed in the said rules but may not be concerned about validity of such document. Such registering authority can satisfy himself as to the identity of the persons appearing before him. The above aspect was considered in the context of Section 34 of Wealth Tax Act 1957 whereby restrictions upon a power of registering officer to register a document transferring an immovable property in certain cases where imposed.

# (3) Suraj Lamp and Industries (P) Ltd. Thru. Div. State of Haryana and Anr., AIR 2009 SC 3077 : AIR 2012 SC 206

Whereby the Apex Court deprecated the transaction undertaken particularly sale of properties by taking recourse to power of of attorney, sales by execution of sale agreement/general power of attorney/wil and in the next decision it was held that transfer of immovable property can be validly made only by registered sale deed and not by sale agreement /general power of attorney or wil.

5. Mr. Deven Parikh, learned senior advocate for the respondent in one of the writ petitions would emphasis on the decisions of Apex Court and various other High Courts interpreting provisions of Sections 32, 33, 34, 35 and 69 of the Act, 1908 and would contend that if the Government Resolutions under challenge in the writ petitions are perused conditions formulated therein amount registering authority undertaking an exercise of going into legality and validity of the document which is not permissible. In a case were the power of attorney himself is executant of document and in certain cases empowered on behalf of original land owner or granter none of the provisions of Act, 1908 prohibits registration of document presented by such power of attorney except preliminary verification as envisaged under Section 69 of the Act, 1908. According to learned advocate for the respondents and original writ petitioners no error, much less any error of law or fact appears in the order passed by learned Single Judge and the same deserves to be confirmed by rejecting Letters Patent Appeal by the appellant-State under Clause 15.

6. Mr.Deven Parikh, learned senior counsel appearing for the respondents/original petitioners has relied on following decisions of the Apex Court and other High Courts in support of his contention: that no error is committed by learned Single Judge in quashing and setting aside impugned circulars.

# (1) Krishna Gopal Kataria and Anr. v. State of Punjab and Ors., AIR 1986 PUNJAB AND HARYANA 328

That powers of Registrar are clearly defined and demarcated and any instruction by the State Government to the Registrar and in turn to the Sub-Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions in absence of any statutory provision was held to be illegal. It was further held that Act 1908 is a complete code of deeds.

# (2) Bihar Deed Writers Association and Ors. v. State of Bihar and Ors., AIR 1989 PATNA 144

in which, it was held that it is not for registerring authority to ascertain title to its own satisfaction and in the fact of that case absence of any declaration by the parties in respect of Bihar Land Reforms Act 1961 and refusal to register the sale deed was held bad in law.

# (3) E.Eshaque v. Sub-Registrar, Kozhikode and Anr., AIR 2002 KERALA 128

whereby it was held that registering authorities is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. In this case also reliance was placed by the High Court of Kerala on the decision in the case of Bihar Deed Writers Association and Ors. v. State of Biharand Ors.

# (4) State of Rajasthan and Ors. v. Basant Nahata, (2005) 12 SCC 77

In the above case Section 22 A inserted by Registration Amendment Act 16 of 1976 whereby documents to be registered if found opposed to public policy and notifications issued in this regard was held to be unconstitutional and secondly notifications issued thereunder where quashed and set aside. In the above decision even power of attorney was also interpreted in light of Chapter X of Contract Act, 1872.

# (5) Captain Dr.R.Bellie & Ors. v. Sub- Registrar, Sulur & Ors., AIR 2007 MADRAS 331

it was the case when registration of document was denied on the ground that it was opposed to public policy and relying on decision in the case of

# State of Rajasthan v. Basant Nahata, AIR 2005 SC 3401

provision made vide Government Order No.150 pertaining to commercial taxes was set aside and provisions of Section 22 A inserted by registration (Tamil Nadu Amendment) Act, 1994) was held to be unconstitutional.

# (6) Pandurangan v. Sub-Registrar, Reddiar- palayam Pondicherry & Ors., AIR 2007 MADRAS 159

in which it was held that withholding of registration of document is not permissible based on executive instructions in absence of any statutory rule and that registering authority has no power to make inquiry relating to title. In this case even amendment made to Rule 54 framed in exercise of powers under Section 69 of the Act 1908, by which, scope of power conferred upon registering authority under Sections 34 and 35 of the Act came to be enlarged and was held to be illegal by holding that statutory rules cannot override express provisions of the statute and execution instructions cannot override either of the two.

# (7) Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Anr. -2009 (3) GLH 533

whereby the Apex Court held that holder of power of attorney himself is executant of the document to be registered is entitled to present such document before registering officer for registration and in such a case namely where a deed is executed by a agent for principal and the same agent signs, appears and presents the deed or admits an execution before Registering Officer, it is not a case of presentation under Section 32(c)of the Act 1908. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act 1908.

# (8) Shakuntala Devi & Ors. v. State of Jharkhand & Ors., AIR 2010 JHARKHAND 56

keeping in mind Sections 34 and 35 of the Act 1908, whereby it is held that registering officer can only see whether document is duly stamped to valuation given and that he has no jurisdiction to withhold or refuse registration of sale deed on the ground that vendor has no title.

7. Mr.R.S.Sajjanwala, learned advocate appearing for the original writ petitioners in other writ petition being Special Civil Application No.13731 of 2012 which was ordered to be heard with these appeals on 28.1.2014, would contend that in facts of their case it so happened that after recording consent terms between the parties competent court of law had drawn the decree which came to be executed and thereafter upon receiving notice from the office of registering authority when document for registration was presented later on and seeking no objection from the original landlord new litigation has commenced since value of the land has increased during interregnum period and such cannot be the intention of the legislature and, therefore, in absence of any provision empowering registering authority to go into legality and validity of the document presented for registration as directed by G.R.’s the registering authority would function as judicial officer of Court of law. Learned advocate has also relied on Sections 182, 186, 187 and 201 of Indian Contract Act under Chapter X with regard to functions and duties of agent, termination of agencies and relationship between Principal and the Agent and submit that the Government Resolutions impugned in the writ petitions were not only contrary to provisions of Registration Act, 1908 but are also contrary to Indian Contract Act as well as Notary Act. Only limited inquiry is envisaged under Section 34 of the Registration Act.

8. Mr. Kumar S.Trivedi, learned advocate, however, appearing for private respondents in the above writ petition opposed prayer of the petition and adopted arguments canvassed by learned Additional Advocate General and submitted that order impugned and submitted with writ petition deserves to be rejected.

9. Letters Patent Appeal No.22 of 2013 is preferred in Special Civil Application No.14413 of 2011, Letters Patent Appeal No. 23 of 2013 is preferred against Special Civil Application No.14421 of 2011 and Letters Patent Appeal No.24 of 2013 is preferred against Special Civil Application No.17541 of 2011 since all these writ petitions came to be allowed by common judgement by learned Single Judge on 9/10.5.2012. All these writ petitions were filed in view of grievances raised by the petitioners that under Section 53A of Transfer of Property Act entire part performance of the contract was complete. Even full sale consideration was also paid and possession was handed over to power of attorney, executant of the document the registering authority refused to register the documents. Special Civil Application No.13731 of 2012, as per order dated 28.1.2014 ordered to be heard with present group of appeals.

10. For the purpose of considering question of law following provisions of Act 1908 are reproduced herein below:

# PART VI OF PRESENTING DOCUMENTS FOR REGISTRATION

# 32. Persons to present documents for registration

Except in the cases mentioned in [section 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration- office,-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

# 32.A. Compulsory affixing of photograph, etc.

Every person presenting any document at the proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.

# 33. Power-of-attorney recognizable for purposes of section 32

(1) For the purposes of section 32, the following powers-of- attorney shall alone be recognized, namely:-

(a) if the principal at the time of executing the power-of-attorney resides in any part of [India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

(b) if the principal at the time aforesaid [resides in any part of India in which tis Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in [India], a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative [***] of the Central Government:

Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power- of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in Court.

[Explanation.- In this sub-section “India” means India, as defined in clause (28) of section 3 of the General Clauses Act, 1898 (10 of 1897).]

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court herein before mentioned in that behalf.

# 34. Enquiry before registration by registering officer

(1) Subject to the provisions contained in this Part and in sections 41, 43,45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23,24, 25 and 26:

PROVIDED that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

(2) Appearances under sub-section (l) may be simultaneous or at different times.

(3) The registering officer shall thereupon-

(a) enquire whether or not such document was executed by the person by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear.

(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders.

# 35. Procedure on admission and denial of execution respectively

(1)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or

(b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or

(c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.

(3)(a) If any person by whom the document purports to be executed denies its execution, or

(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assignee denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

PROVIDED that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:

[PROVIDED FURTHER that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in rejsepct of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.}

# 52. Duties of registering officers when document presented

(1) (a) The day, hour and place of presentation, [the photographs and finger prints affixed under Section 32A], and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;

(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and

(c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.

(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

# 68. Powers of Registrar to superintend and control Sub-Registrars

(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.

(2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.

# 69. Power of Inspector-General to superintend registration offices and make rules

(1) The Inspector-General shall exercise a general superintendence over all the registration-offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act-

(a) providing for the safe custody of books, papers and documents 29[***];

(b) declaring what languages shall be deemed to be commonly used in each district;

(c) declaring what territorial divisions shall be recognised under section 21;

(d) regulating the amount of fines imposed under sections 25 and 34, respectively;

(e) regulating the exercise of the discretion reposed in the registering officer by section 63;

(f) regulating the form in which registering officers are to make memoranda of documents,

(g) regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under sections 51;

14[(gg) regulating the manner in which the instruments referred to in sub-section (2) of section 88 may be presented for registration;]

(h) declaring the particulars to be contained in Index Nos. I, II, III and IV, respectively;

(i) declaring the holidays that shall be observed in the registration offices; and

(j) generally, regulating the proceedings of the Registrars and Sub- Registrars.

(2) The rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act.

# PART XII : OF REFUSAL TO REGISTER

# 71. Reasons for refusal to register to be recorded

(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub- district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

# 72. Appeal to Registrar from orders of Sub-Registrar refusing registration on grounds other than denial of execution

(1.) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-

Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

# PART XIV OF PENALTIES

# 81. Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure

Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code (45 of 1860), to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

# 82. Penalty for making false statements, delivering false copies or translations, false personation, and abetment

Whoever- (a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or

(b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or

(c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or

(d) abets anything made punishable by this Act; shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

# 83. Registering officers may commence prosecutions

(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector- General, the Registrar or the Sub- Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.

(2) Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the second class.

The Gujarat Registration Rules, 1970 framed in exercising powers conferred by Section 69 of Registration Act, 1908

# 45. Certain requirements to be verified before accepting a document for registration

(1) A registering officer shall, before accepting any document for registration not concern himself with its validity but see that-

(a) it is properly stamped;

(b) it is presented within the proper time and in the proper office;

(c) it is presented by a competent person;

(d) if it relates to immovable property, that it is not open to objection under section 21 or 22;

(e) if any document is in a language which he does not understand, the provisions of section 19are complied with;

(f) any interlineations blanks, erasures or alterations appearing in the document are attested by the signature or initials of the person or persons executing the same as required by section 20;

(g) the deed does not contravene the provisions of Sub-Section (1) of Section 5 of the Foreign Exchange Regulation Act, 1947, and

(h) Whether sale certificate and prior permission in writing of the authorities concerned are produced before him in original, if the deed relates to transfer of Government built property.

(2) If on presentation of the document, the fees prescribed under section 78 are not paid demand, the registering officer shall refuse to register the document.”

11. To understand the controversy of this appeal, we reproduce three different Government resolutions dated 8.12.2010, 7.1.2012 and 30.10.2014 passed by Revenue Department.

Implementation of e-governance project in the state by the State Government Government of Gujarat Revenue Department ITP-102010-173-H.2 Sachivalay, Gandhinagar Date: 08.12.2010 Resolution:-

Computerization of land revenue record has been done in the State. Accordingly, E-Dhara centers function in all 225 talukas of the State. Copies of 7/12, 8-A and village form no.6 are available at this center and entry of mutations are made. Registration of sale deed of properties is also done on computers. But, this service has been integrated and a project has been prepared in consultation with NIC for registration of documents, e-stamping for recovery of stamp-duty of the same and for automatic certification of entries after registration.

New method for mutations will be implemented with this integrated software, which will be as under.

(1) Before the sale deed is prepared, examination will be done of ownership of seller and buyer through biometric image.

(2) The value of jantri of the land under sale can be seen immediately and the payment for the same can be made on the spot with e-stamping.

(3) Collect photograph and fingerprint of the buyer and seller of the land. Thereafter, the Sub Registrar will allow the transaction of sale with one click and will register the same.

(4) Automatic mutation entry will be made immediately in the village form no.6 and notice of 135-D will be generated for concerned persons having rights.

(5) The name of buyer landholder (with red mark) will be added with the original landholder in village form no.7/12. After the entry is certified, only the name of buyer landholder will remain in 7/12. (6) If objection application is not received within 30 days, the computer will certify and finalize the entry automatically.

It was decided to implement this project first in Gandhinagar district as pilot project. Like the system of E-Dhara centers, this system will also be implemented at District level under the supervision of the concerned District Collector. Therefore, fingerprint, photo image and other data of all the landholders of the entire Gandhinagar district shall be captured. The District Collector, Gandhinagar was informed to undertake short notice tender procedure in order to complete this work within time limit.

Data such as photograph of farmer landholder, fingerprint and all the details included in 7/12 and address, telephone number, email ID etc. will be collected. It was informed to under take the procedure to publish short notice tender after draft of tender is prepared as per the technical specification prescribed by NIC in order to hire agency which can do this work in the village as per prescribed standard.

Thus, instructions are given to all the Collectors to undertake procedure for the below mentioned points as per the above mentioned information.

(1) Collect data for this system of e-registration of properties and automatic mutation and certification of entries by integrated software under e-governance project and decide agency for the work of entry as per technical specification prescribed by NIC for Gandhinagar district by undertaking the process of short notice tender.

(2) All the concerned District Collectors are informed that such type of tender process should be undertaken for all the districts of the State and decide agency for this work of the concerned district.

(3) If any purchase has to be made under this project, it shall be done after getting permission of Purchase Committee of the Secretaries.

(4) As informed by the department, expense regarding this shall be made from the provisions under I.T for the year 2010-11.

(emphasis supplied)

By order and in the name of the Governor of Gujarat.

N. K. Ambalia Deputy Secretary Revenue Department.

(emphasis supplied)

Implementation of e-governance project in the state.

-Affidavit to be obtained from the power of attorney holder.

Government of Gujarat Revenue Department SCA-102011-996-H1 Date: 7.1.2012 Preamble:

Under the e-governance project in the State, integrated software has been prepared in consultation with NIC (National Informatics Center) for automatic certification of entries after the documents of properties are received for registration and the new system has been implemented vide resolution of the Revenue Department bearing no. ITP- 102010-173-H-2, dated 8/12/2010. As per this implemented system, photograph of the original landholder, fingerprint and all the details included in 7/12 are collected.

Before the sale deed is prepared, checking of buyer and seller of agricultural land is done through biometric image. In cases of sale deed which are submitted for registration with the signature of the power of attorney holder in the sale deed instead of the original farmer landholder, the photograph of the power of attorney holder and the photograph of the original landholder are not compared. Thus, it is noticed that administrative difficulties arise in cases of sale deed which are submitted for registration with the signature of the power of attorney holder. Thus, the matter of issuing instructions to avoid such situation was under the consideration of the Government. At the end of careful consideration in order to prevent such situation and considering that no delay is caused to parties in registration process of the sale deed and along with the same interest of the original landholder is protected, it is hereby resolved that the following procedure shall be followed in cases of sale deed which are submitted for registration with the signature of the power of attorney holder instead of the original landholder.

Resolution:-

1. Affidavit with the details mentioned under shall be obtained from the power of attorney holder.

(1) The original owner of the property is alive on the date of executing the affidavit and the original owner/ owners have made signature in the power of attorney.

(2) Particulars of the permanent and present address of the original owner/ owners of the property.

(3) The original owner/ owners of the property have not revoked or withdrawn the power of attorney deed and the same is in effect.

2. A document is to be accepted on production of affidavit from power of attorney holder and in addition to all details of 7/12, photograph, fingerprint, signatures of power of attorney holder, etc. is to be taken/ examined with biometric system.

3. Sub-Registrar has to send notice on the permanent and present address of original owner of the property to obtain his consent within 30 days. If original owner sends consent within 30 days or does not intimate, procedure of document of registration is to be followed by considering it as tacit acceptance of original owner.

By order and in the name of the Governor of Gujarat.

Sd/- Illegible (H.K. Shah) Additional Secretary Revenue Department, Government of Gujarat.

(emphasis supplied) To affidavit to be obtained from the Power of Attorney holder to implement E-Governance Project in the State.

Government of Gujarat Revenue Department 11, Sardar Bhavan, Third Floor, Gandhinagar – 382010.

No. SCA-102011-996-(410/2014)/H.1 Dt. 30-10-2014 Preface :

Under the e-governance project in the State, integrated software has been prepared in consultation with National Informatics Center (NIC) for automatic certification of entries after the documents of properties are received for registration and the new system has been implemented vide aforesaid perused resolution no. (1) of the Revenue Department dated 8/12/2010. As per this system, photograph of the original landholder, fingerprint and all the details included in 7/12 are collected. Further, before preparation of the sale deed, checking of buyer and seller of agricultural land is done through biometric image. But, in cases of sale deed which are submitted for registration with the signature of ‘the power of attorney holder’ in the sale deed instead of the original farmer landholder, the photograph of the power of attorney holder and the photograph of the original landholder are not compared and administrative difficulties arise. Therefore, procedure to be followed in such cases has been stipulated vide the aforesaid perused Resolution No. (2) dated 7/1/2012.

While implementing stipulated procedure vide Resolution dated 7/1/2012, guidance of government was sought in respect of raised questions vide the aforesaid perused letter no. (3) of Inspector General of Registration, State of Gujarat, Gandhinagar dated 15/02/2014.

Resolution At the end of careful consideration, in order to protect interest of original farmer landholder and to avoid delay for the parties in registration process, it is hereby held to follow procedure by following special clarifications stipulated in the resolution dated 7/1/2012.

(1) In case of sale deed produced for registration by power of attorney holder, when original farmer landholder objects in stipulated time period that the document of Power of attorney registered does not bear his signature, signature of original landholder is to be compared with document of power of attorney holder and after comparison, if the said signature is found of original farmer landholder, further procedure of sale deed registration is to be followed.

(2) In case of tampering with power of attorney document, on production of certified copy of power of attorney document executed by farmer landholder and after comparing them, if it is found that power of attorney holder has fraudulently modified/tampered with power of attorney document, reasons for the same are to be noted on record by taking into consideration the provisions of the Registration Act, 1908 and further procedure shall be followed for not accepting the said registration deed.

(3) When cover of notice sent by Sub-Registrar to original landholder of property on his permanent and present address for his consent is received back without notice being served, its reasons are to be noted on record and further procedure of document registration is to be followed.

By the order and in the name of the Hon’ble Governor of Gujarat sd/- illegible (Pravin Dhandhukiya) Under Secretary, Govt. of Gujarat Gandhinagar.

(emphasis supplied)

12. If we peruse common oral judgement of learned Single Judge, it cannot be said that learned Single Judge has not considered provisions of Section 32 and 33 of the Registration Act 1908. In the backdrop of contentions raised by learned AGP appearing in above three writ petitions based on providing safeguards for preventing any attempt of fraud or even likelihood of commission of fraud, instructions were issued by executive authority and it was contended before learned Single Judge that the matter of registration of documents fell under entry No.6 of the concurrent List-III of Constitution of India, the State has competence to legislate and enact law including executive instructions read with Article 162 of the Constitution of India based upon prevalent and peculiar situation warranting enactment of such law in the State of Gujarat and further, number of revenue litigations would justify issuance of such directions which are not in any manner an impediment in the way of presenter of the document in having it registered as the document could be registered and it is only a formality which the presenter has to undergo namely to file an undertaking/additional affidavit narrating few facts about original owner is existing on the date when the affidavit is filed and the document contains signatory of the original owner and about correctness of facts about address of the owner giving power and that power of attorney is neither revoked or withdrawn and is operative till date. That on filing of such affidavit by the presenter of document it will be accepted for registration after taking finger print, photograph and of course thereafter Sub Registrar will issue notice to original owners of the property for obtaining its consent and if consent is not coming within 30 days then the tacit consent is to be treated as available and thereafter registration process be undertaken. The next submission of learned AGP was based on Article 162 of Constitution of India whereby State was contending to issue executive instructions in the permissible field of registration available to the State under Entry 6 of concurrent list with regard to subject matter. In the context as above, learned Single Judge has given clear answer to both the above contentions and when it was found that plain reading of Article 162 and 254(2) of the Constitution would clearly go to show that power of State to make law is subject to provisions of Article 254(2) of the Constitution of India, there is no exemption or immunity to the executive action therefrom. The learned Single Judge further held that on the above ground, when provisions of Power of Attorney Act, 1882 and Registration Act, 1908 do not provide for any other requirement, any additional requirement by way of executive instructions cannot be permitted to be an impediment in the way of registration and reliance was placed accepting the arguments of learned advocate for the petitioners based on the decision in case of State of Rajasthan & Ors. v. Basant Nahata.

13. Thus, arguments based on Sections 32 and 33 where considered by learned Single Judge while dealing with the another argument based on Article 162 of Constitution of India and found the executive instructions were dehors the provisions of law and cannot be permitted to sustain.

14. We are inclined to refer to the above decision in which the Apex Court has distinguished requirement under Section 32(a) of the Act, 1908 and Section 33 (1) (a) and Section 34 of the very Act. For the sake of convenience in the backdrop of facts therein where one Indra kumar Halani was given the full authority by Nandalal Tantia an owner, under the Power of Attorney to transfer the suit property and to execute the necessary document and the said document had been executed by Indra kumar Halani in the name and on the behalf of Nandalal Tantia. It was held that the sale deed which was executed and authenticated by Indra kumar Halani P.O.A. can be presented for registration by him in the manner mandated under Section 32(a) of the Act, 1908 and the Apex Court had not agreed with the findings of the High Court which took the view contrary. We quote paragraphs 24, 25, 26, 29 and 30 of the above judgement which clearly lays down law on the subject about entitlement of power of attorney who himself is an executant to present the document under Section 32 (a) of the Act 1908 and that such executant holding authority of power of attorney is not to satisfy condition prescribed under Section 33(1) of the Act. In the above case even power of attorney was not registered in favour of Mr.Indra kumar Halani.

“24. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorize him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration is concerned, the actual executant of the document and is entitled under Section 32 (a) to present it for registration and get it registered.

25. In view of the aforesaid legal position, we are of the considered that the law laid down by the Andhra Pradesh High Court in

# D. Sardar Singh v. Seth Pissumal Harbagwandas Bankers, AIR 1958 Andhra Pradesh 107

and the decision of Calcutta High Court in

# Abdus Samad v. Majitan Bib & Anr., AIR 1961 Calcutta 540

with regard to the interpretation of Section 32 and 33 of the Act is not the correct legal position.

26. In the facts of the present case, it is quite clear that Indra Kumar Halani, was given the full Authority by Nandalal Tantia under the power of attorney to transfer the suit property and to execute the necessary document. It is an accepted position that the said document had been executed by Indra Kumar Halani in the name and on the behalf of Nandalal Tantia thereof. Therefore, for the purposes of registration office under Section 32(a) of the Act Indra Kumar Halani is clearly the “person executing” the document. Therefore, it follows that the said sale deed which was executed and authenticated by Indra Kumar Halani could be presented for registration by him. We are of the considered view that Indra Kumar Halani acted in the aforesaid manner mandated under Section 32(a) of the Act.

29. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the registering Officer, that is not a case of presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provide under Section 33 (1) (a) of the Act.

30. In the instant case, Indra Kumar Halani executed the document on behalf of Shri N.L.Tantia under the terms of this power of attorney. He then presented it for registration at the Registration Office and it was registered. The plea taken by the respondents that in order to enable him to present the document it was necessary that he should hold a power of attorney authenticated before the Sub- Registrar under provision of Section 33 is thus not supported by the language Section 32. The provisions of Section 33 therefore only apply where the person presenting a document is the general attorney of the person executing it, and no where it is presented for registration by the actual executant, even though he may have executed it as agent for some one else, in this case, the presentation is by the actual executant himself and is hence is entitled under Section 32(a) to present it for registration and to get it registered.”

(emphasis supplied)

The above decision was relied on by learned Single Judge only with a view to answer contention raised on Sections 32 and 33 read with Section 34 of the Act, 1908.

15. Therefore, on the contention raised on Sections 32 and 33 came to be negatived by learned Single Judge and it is perused in juxtaposition of Section 34, by which, the inquiry is envisaged before registration by Registering Officer is of very limited in nature and barring what is provided no other inquiry can be held by registering officer about legality and validity of the title and for the above, we are in agreement with law laid down in the case of (1) Krishna Gopal Kataria & Anr. v. State of Punjab & Ors. (2) State of Rajasthan & Ors. v. Basant Nahata (3) Pandurangan v. Sub-Registrar, Reddiar-palayam Pondicherry & Ors. And (4) Rajni Tandon v. Dulal Ranjan Ghosh Dastidar and Anr.

16. The conditions formulated in Government Resolutions of 8.12.2010, 7.1.2013 and 30.10.2014 are exhaustively produced in earlier paragraphs of judgement (with emphasis supplied) and again referred to in the form of arguments canvassed by learned Asst. Government Pleader before learned Single Judge but fact remains that Registering Officer is empowered by the above executive instructions to function like a judicial officer or atleast like quasi-judicial authority. By issuing notice to the original owner of the property for which document is presented for registration and if the original owners sends consent within 30 days or does not reply procedure of registration of document is to be followed but in case, if original owner raises the dispute the document will not be registered and inspite of rights accrued and crytalised in favour of the presenter of the document a new dispute will start. A lis between the parties to be adjudicated by registering officer. Such procedure is not envisaged even by Section 34 of the Act 1908.

17. We are not convinced even about provisions contained in the last Government Resolutions of 30.10.2014 about reducing any ambiguity, hardships of presenter or document having valid Power of Attorney and such presenter has to undergo rigmarole of establishing legality and validity of title before registering officer and in further litigation not envisaged by the Act, 1908. The above G.R. Of 30.10.2014 is contrary to Section 32 and 34 of the Act 1908 and is hereby quashed and set aside.

18. We have exhaustively produced relevant provisions of Act, 1908 which confer adequate powers upon registering officer and higher ups including to obtain photographs and finger prints and the signature for obtaining registration under Section 32 (a) of the Act and duties of registering officer when such document is presented under Section 52 of the Act. Section 34 envisaged nature of limited inquiry but not about legality and validity of the title to be undertaken before registration of the document by registering officer and in case when identity of the person presenting the document is doubtful registration is to be refused, which is again subject matter of appeal before higher officer. The contention based on Sections 68 and 69 of the Act, 1908 by learned Additional Advocate General about powers of Registrar to Superintend and control Sub Registrars and Power of Inspector-General to Superintend registration offices and make rules, however would not confer any power upon the State Government to issue such executive instructions which are contrary to Act, 1908 and provisions of Article 254(2) of the Constitution of India and further Section 69(2) envisaged that rules made under Section 69 shall have to be submitted to the State Government for approval and after they have been approved and published in the official gazette the same shall have effect as if enacted under the Act. Admittedly, no such rules are framed. In a case of Pandurangan v. Sub-Registrar, Reddiar-Palayam Pondicherry & Ors. where Rule 54 was framed in exercise of power conferred under Section 69 of the Act, 1908 was held to be illegal by holding that statutory rules cannot override express provisions of the statute. Further, the powers conferred under Section 69 are only of General Superintendence and for purpose mentioned therein and not to make any inroad or obviate provisions of the Act. That Chapter XIV pertaining to ‘of penalties’ of the Act 1908 provides action to be taken against registering officer in case if such officer knows or believes that endorsement, copying, translation or registration of such document is incorrect such action shall be punishable with imprisonment for a term which may extend to 7 years or with fine or with both. Likewise, Section 82 is about penalty for making false statements, delivering false copies or translations, false personation and abetment and in this case also punishment is the same. Further registering officer is empowered to commence prosecution with permission of superior officer whenever such offence is committed. Thus, sufficient care is taken for any mischief either to be made by presenter or even officer of registration department. The apprehension of learned Additional Advocate General about suspicion and doubtful power of attorney and holder of such power of attorney therefore is misconceived.

18.1. The contention raised by Mr. P.K.Jani, learned Additional Advocate General about breach of provisions of other statute, prima facie to be looked into by the registering authority has no merit. It is trite that for breach of provisions of any other Act, competent authority under such Act has all the powers to take action in accordance with law for the breach alleged. For example, if the stamp duty is not paid in accordance with the requirement under Stamp Act, competent authority under the above Act has all the powers to take action in accordance with law but for such ground registering officer is not empowered to refuse the registration of the document if otherwise found proper in accordance with provisions of the Act, 1908. That Rule 45 of the rules 1970 framed by the State of Gujarat in exercise of powers conferred by Section 69 of the Act 1908 also envisaged preliminary and limited inquiry by Registering Officer before accepting the document and the same is in consonance with Section 34 of the Act but under above rule also provision of the main Act 1908 also cannot be subdued or can be given go by or whittled down and the contentions based on Rule 45 also have no merit.

19. That contention raised by learned Additional Advocate General on the strength of decisions cited to which reference is made in para 4 of this judgment has no applicability inasmuch as in the case of Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab (supra), it only explain scope of executive power in the context of Article 162 of the Constitution of India and in case of Ajit Investment Co.Pvt. Ltd., Jamnagar Gujarat and Anr. V. K.G. Malvadkar and Ors. (supra) though deal with Sections 34 and35 of the Act 1908 and Rule 44 of Maharashtra Rules, 1961 it is only about empowerment of a registering officer to verify certain requirements pertaining to registration of documents which are prescribed in the said rules but may not be concerned about validity of such document. Such registering authority can satisfy himself as to the identity of the persons appearing before him. Thus, above decision also do not approve inquiry to be made in the legality and validity of the title of the document if it satisfies other requirement of the Act 1908. in the case of Suraj Lamp and Industries (P) Ltd. Thru Div. State of Haryana and Anr. (supra), the Apex Court was concerned with transactions undertaken by taking recourse to power of attorney and not following the procedure and requirement of registration of sale deed of transfer of immovable property and, therefore, deprecated transfer of immovable property either by sale agreement or general power of attorney or will.

19.1. Therefore, none of the above authorities permit registering officer to undertake inquiry into legality and validity of the title and document empowering registering officer to act like judicial officer.

20. Conjointly and collectively, we find that none of the grounds raised by learned Additional Advocate General persuade us to interfere with the well reasoned order passed by learned Single Judge and accordingly appeals fail in absence of merit and they are hereby dismissed.

21. So far Special Civil Application NO.13731 of 2012 is concerned, contention that registering officer has refused to register the document on the basis of Government Resolutions already quashed by learned Single Judge, we direct the petitioner to present such document for registration before registering authority and keeping in mind law laid down by this Court in Special Civil Application No.14413 of 2011 and allied matters and confirmed by this order in this judgement, shall take decision. If any litigation is pending with regard to any dispute pertaining to subject of the document such order of the registering authority will be subject to outcome of the pending litigation. Accordingly, this petition also stands disposed of.

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