Dileep Sahani vs State Of U.P. And 2 Others
2018 Latest Caselaw 4 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                                                           A.F.R.
 
Court No. - 21
 

 
Case :- WRIT - C No. - 13873 of 2018
 

 
Petitioner :- Dileep Sahani
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dr. Arun Srivastav
 
Counsel for Respondent :- C.S.C.,Hari Mohan Srivastava,Shobh Nath
 

 
Hon'ble Krishna Murari,J.

Hon'ble Ashok Kumar,J.

Sri Arun Srivastava, learned counsel for the petitioner is permitted to make necessary correction in the array of the party during the course of the day.

Heard learned counsel for the petitioner and Sri Hari Mohan Srivastava, learned counsel appearing for respondent no. 3. He states that he does not propose to file any counter affidavit on behalf of respondent no. 3 and the writ petition be heard and decided on merits.

With the consent of the parties, we have heard the matter on merits and the same is being decided at the admission stage itself without calling for counter affidavit under the Rules of the Court.

Facts of the case as culled out from the pleadings are that the dispute between the parties is in respect of Arazi Plot no. 155 area 0.506 hectare situate at Mauza Daangipar, Tappa Patra, Pargana Haveli, Tehsil Sadar, District Gorakhpur, which was recorded in the name of one Shankar, father of respondent no. 3. A registered sale-deed of the plot in question was executed by the father of the respondent no. 3 in favour of the petitioner on 21.11.2014, which was duly registered and endorsed in the record of the Deputy Registrar-1st Gorakhpur on the same day i.e. on 21.11.2014 at Bahi No. 1, Zild No. 10945 Page No. 51 to 122 at Serial No. 9815.

After few months of the execution of the sale-deed, father of respondent no. 3 died. After his death, respondent no. 3 made an application on the allegation that the sale-deed was got executed through some imposter. It was pleaded that photograph affixed on the document was not of his father but of some of imposter and the document also do not bear thumb impression of his father.

Learned counsel for the petitioner submits that power to hold inquiry in respect of the registration of deed under Section 34(3) read with Section 35 of the Registration Act (hereinafter referred to as the 'Act') is available to the Registrar concerned at a stage prior to the registration of the sale-deed. It is further submitted that once the sale-deed is registered, the Registrar concerned is not competent to cancel the registration and if any person is aggrieved by registration of a document, he can file a suit for cancellation thereof. Once the process of registration is complete, the registering officer becomes functo officio.

In reply, learned counsel for the respondent submits that complaint made by the respondent no. 3 was considered by Assistant Inspector General (Registration), Gorakhpur, the respondent no. 2, herein, in accordance with clause 6.6 of the Government Order dated 13.08.2013 and finding that the sale-deed was executed by an imposter and was a result of fraud and representation rightly withdrew the registration and directed lodging of the first information report.

We have considered the arguments advanced by the learned counsel for the parties and perused the record.

It may be relevant to quote the provisions of Sections 34 and 35 of the Act.

"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.)"

Perusal of the aforesaid provisions clearly go to show that inqjuiry contemplated under the said Section is at a stage prior to the registration of the document and thereafter registering authority becomes functo officio.

On our query, learned Standing Counsel informs that Government Order dated 13.08.2013 was issued on the basis of the judgment of the Full Bench of the Andhra Pradesh, High Court in the case of Yanala Malleshwari versus Smt. Ananthula Sayamma, AIR 2007 AP 57 wherein the Full Bench of the Andhra Pradesh High Court permitted the Registering Authority to declare a sale deed as a void document where it was found that the transaction had taken place on account of a fraud played by the transferor and/ or transferee.

Learned Standing Counsel further submitted that a large number of such cases are registered where the sale-deed is registered by an imposter by fraud and representation and at times it becomes impossible for the persons to pursue the remedy for filing a suit for cancellation of the registered document, which not only consumes a lot of times but also requires heavy expediture. To remedy the situation, Government vide Government Order dated 13.08.2013 provided for cancellation of registration and annulment of sale-deed as void where fraud has been played by the parties in the execution of the sale-deed.

The decision of the Andhra Pradesh, High Court in the case of Yanala Malleshwari (supra) has been explained by the Apex Court in the case of Satya Pal Anand versus State of M.P. and others, 2016 (10) SCC 761 holding that Andhra Pradsh, High Court was only called upon to consider whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Authority was bound to refuse registration when a cancellation deed was presented. The Supreme Court held that in view of the provisions of Rule 26(k)(i) of the Andhra Pradesh Registration Rules, which was expressely provided in the Rules of that State, the registration of a document be annulled and labelled as fraudulent or nulity in law.

No such rules have been framed under Section 69 of the Act in so far as State of U.P. is concerned. In the absence of express provisions contained in the rules, as was in the case of Andhra Pradesh, registration of the document cannot be withdrawn nor sale-deed could be annulled by executive fiat on the basis of the Government Order dated 13.08.2013.

The Registration Act is a complete Code by itself for registration of a documents. The procedure for registration of a document is spelt out in Part-VI of the Registration Act. Section 32 provides for persons to be present for registration of the document. If the document is required to be compulsorily registered,  in which case it becomes optional for the persons to be present under section 33 of the Act. Section 34 stipulates that enquiry is required to be done by Registering Officer before registering a document. Section 35 provides the procedure for admission or denial of execution of the document. Section 35 of the Act does not confer any quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure himself that the document to be registered is accompanied by supporting documents. The Registering Officer is not required to evaluate the title or irregularity in the documents. The examination to be conducted by the Registering Officer is only to ascertain that there is no violation of the provisions of the Registration Act. Section 58 provides particulars to be endorsed on document admitted to registration. Section 59 provides for an endorsement to be made and signed by Registering Officer and Section 60 provides for the registration of the document. Where the registering officer finds that a particular document cannot be registered in which case he is required to give reasons under section 71. Any persons who intentionally makes any false statement during the course of enquiry, a penalty could be imposed under section 82 with imprisonment or with fine. Section 69 provides power to the Inspector General to frame Rules which is consistent with the Act. Such Rules so framed are required to be published in the Official Gazette.

Unless and until there is provisions in the Act or Rules giving power to the Registering Authority to annul the document on the administrative side, such power would be entirely arbitrary and against the provisions of the Act.

The State Government cannot, while taking recourse to the executive power of the State under Art. 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Art. 300A. The word 'law' in the context of Art. 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. This principle was pronounced by the Supreme Court in Bishambhar Dayal Chandra Mohan and others versus State of Uttar Pradesh and others(1982) 1 SCC 39.

The State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill.

Thus, once an Act has been framed, the State in furtherance can make rules under section 69 of the Act. So long as the Rules are not framed, a document cannot be annulled on the basis of the Government Order issued under Article 162 of the Constitution. The said Government Order is against the provisions of the Constitution and is illegal.

In Park View Enterprises versus State of T.N AIR 1990 Madras 251, the Madras High Court held that the functions of the Sub Registrar for the purposes of registration was purely administrative and not quasi-judicial. The Supreme Court in Satya Pal Anand (Supra) approved the said decision and further held that the authority could not decide whether a document which was executed by a person who had title as was recited in the given instrument. The Supreme Court held that the Sub Registrar was not expected to decide the title or rights of the parties to the agreement  nor was expected to examine the document  to ascertain whether the same was legal and permissible in law or undertake an analysis thereof.

  The Supreme Court further held that if the document registered by the Sub Registrar  was illegal or if there was any irregularity, then the same must be challenged by invoking an appropriate proceeding before a court of competent jurisdiction.  The Supreme Court further held that Section 35 of the Registration Act did not confer quasi-judicial power on the Registering Authority.  The Registering Officer was expected to reassure that the document to be registered was accompanied by supporting documents.  The Supreme Court further held that it was only when a sale deed was cancelled by a competent court that a cancellation deed could be registered and that too after notice to the parties concerned.

The aforesaid principle is also in consonance with Section 31 of the Specific Relief Act which states that it was only the Court which has the power to cancel an instrument where it is alleged that the written instrument is void or violable.

The view taken by us finds support from the judgment of a Division Bench judgment of this Court dated 11.05.2017 rendered in the case of Shri Anil vs. State of U.P. and 2 others, Writ - C No.24128 of 2016 wherein an identical facts and circumstances, order passed by the Registrar cancelling registration of a sale-deed after it was registered was set aside.

Another Division Bench in Writ Petition No. 51689 of 2016, Krishna Kumar Saxena and another vs. State of U.P. and 9 others, vide judgment dated 04.12.2017 while setting aside an identical order passed by the Registrar cancelling the registration of the document also quashed the Government Order dated 13.08.2013.

In view of the above facts and discussions, the impugned order dated 22.04.2015 passed by respondent no. 2 in case no. 05 of 2015-16 under Section 34(3) read with Section 35 of the Act, 1908 is not liable to be sustained and is hereby quashed.

Writ petition accordingly stands allowed.

However, in the facts and circumstances, we do not make any order as to costs.

Order Date :- 17.4.2018

OP