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)
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.
(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: