Allahabad High Court
Shri Anil vs State Of U.P. And 2 Ors. on 11 May, 2017
Bench: Arun Tandon, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 10
Case :- WRIT - C No. - 24128 of 2016
Petitioner :- Shri Anil
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Ashwani Kumar Pathak
Counsel for Respondent :- C.S.C.,Ashok Kumar Shukla,Vijay Bahadur Khare
Hon'ble Arun Tandon,J.
Hon'ble Mrs. Rekha Dikshit,J.
This writ petition is directed against the order of the Assistant Inspector General Registration, Gorakhpur dated 11.04.2016 whereunder he has cancelled the documents which was registered on 10.08.2015 at Serial No.2856 of 2015 in the office of the Deputy Registrar, Chaurichaura, District-Gorakhpur, in exercise of powers under the Government Order dated 13.08.2013.
On behalf of the petitioner it is contended that the power to hold an enquiry in respect of the registration of deed under Section 34(3) read with Section 35 of the Registration Act is available to the Registrar concerned, at a stage prior to the registration of the sale deed. It is contended that once the sale deed is registered, the Registrar concerned has no competence to cancel the registration. At best in cases of fraud or misrepresentation, he can direct lodging of first information report under Section 83 of the same Act. If any person is aggrieved by the registration of such a document he can file a suit for cancellation thereof. The Registering Officer becomes functus officio once the registration is completed.
Learned counsel for the respondent, on the contrary with reference to the Government Order dated 13.08.2013 submits that the Registrar has sufficient powers to cancel the registration.
We have heard learned counsel for the parties.
We have examined the provisions of Sections 34 and 35 of the Registration Act which read as follows:
"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 persons executing such document, or their representatives, assigns or agents authorized 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 (1) may be simultaneous or at different times.
(3) The registering officer shall thereupon -
(a) enquire whether or not such document was executed by the persons 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, assign 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, assign or agent, such representative, assign or agent admits the execution, or
(c) if the person executing the document is dead, and his representative or assign 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 assign 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 respect 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.)"
From a simple reading of the aforesaid provisions, it is apparently clear that the enquiry contemplated under the said section is at a stage prior to the registration of the document. The Registering Authority become functus officio once the registration is completed and the document is registered. If at any stage, subsequent thereto any information is received by the Registrar qua an offence having been committed under the Act which may in a given circumstance include impersonation at the time of registration the Registrar can with the permission of the Inspector General lodged a first information report.
In the circumstances as noticed above, the only remedy available to a person aggrieved by wrongful registration of a document is to file a suit for cancellation thereof.
We have been informed that in the facts of the case, a civil suit had already been filed for cancellation of the document, although no detail has been furnished to the Court.
For the reasons which has been recorded, hereinabove, we hold that the order passed by the Registrar (Respondent No.2) suffers from want of jurisdiction. The order dated 11.04.2016, therefore cannot be legally sustained.
Writ petition is allowed. The order dated 11.04.2016 is hereby set aside. We, however, clarified that this order shall not affect any other proceedings including lodging of the FIR, or those pending before the trial court.
Writ petition is allowed to the extent indicated above. We may record that the Government Order dated 03.08.2013 with reference to Section 34 read with Section 35 of the Registration Act cannot confer a power upon the Assistant Registrar to cancel a deed which has already been registered and therefore, the Government Order does not come to the rescue of the respondents in any manner.
The writ petition is allowed.
(Rekha Dikshit, J.) (Arun Tandon, J.)
Order Date :- 11.5.2017
Nitin Verma
