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
and 35 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 wil.
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.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 22 of 2013
In SPECIAL CIVIL APPLICATION NO. 14413 of 2011
STATE OF GUJARAT
V
RAJIV MAHESHKUMAR MEHTA & 3
CORAM: MR.JUSTICE ANANT S. DAVE
and
MR.JUSTICE R.P.DHOLARIA
Date : 09/08/2016
(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 32 and 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 of Registration 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 of Article 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(1)]
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 Bihar and 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. SubRegistrar,
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, Reddiarpalayam
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 registrationoffice,-
(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-ofattorney
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 powerof-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 SubRegistrars
(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 SubRegistrars.
(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 subdistrict,
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
(l.) 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 SubRegistrar
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 InspectorGeneral,
the Registrar or the SubRegistrar,
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 19 are 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 SubRegistrar
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
and 35 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 wil.
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.
(ANANT S.DAVE, J.)
(R.P.DHOLARIA,J.)
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