Gopal S/O Dwarkaprasad Pandey vs District Collector And Anr.
2003 Latest Caselaw 402 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned advocate for the petitioner and learned A.P.P. for the respondents.

2. Rule. By consent, Rule is made returnable forthwith.

3. The petitioner, by the present petition wanted to seek direction for disposal of his application for grant of sanction to prosecute the Sub Registrar, Tumsar for having allowed registration of the sale-deed, allegedly registered in contravention of the provisions of the Indian Registration Act, 1908 (hereinafter called as the Act) and the Maharashtra Registration Rules, 1961 (hereinafter. called as the Rules). However, during the pendency of the petition, it appears that the said application filed by the petitioner was disposed of as rejected. The petitioner, therefore, seeks to challenge the same on the ground that the refusal to grant the sanction for prosecution of the Sub Registrar, Tumsar is bad in law besides being arbitrary inasmuch as that the registration of the sale-deed in question by the Sub Registrar is totally in contravention of Rule 44(c) and (h) of the said Rules.

4. Few facts relevant for the decision are that: the petitioner runs a printing press situated on a plot bearing city survey No. 411/1 stated to be belonging to the Government. As the petitioner learnt about the attempt on the part of some persons to dispose of the said land, ignoring title of the Government to the same, the petitioner approached the respondents with a representation in that regard and the respondents issued direction to the Sub Registrar, Tumsar not to register any such sale-deed in relation to the said land. However, it appears that the Sub Registrar, Tumsar allowed registration of the sale-deed in respect of the said land. It is the case of the petitioner that the concerned Sub Registrar has, by allowing registration of the said sale-deed, acted in dereliction of his duty and the said act constitutes an offence punishable under Sections 166 and 167 of Indian Penal Code. The petitioner, therefore, approached the respondents for grant of sanction, which has been illegally refused and hence the present petition.

5. Upon hearing learned Advocates for the parties and on perusal of records, the question which arises for consideration is that whether Registering Authority under the said Act, can verify the title of the executant of a document relating to the subject matter of the transaction under such document and, in the absence of such title being disclosed to the Registering Authority, can it refuse the registration of such document?

6. Under Part-III of the said Act, Section 17 thereof enumerates the documents of which the registration is compulsory and accordingly any sale-deed in respect of any immovable property of the value of one hundred rupees or more is necessarily required to be registered. Section 18 speaks of the documents, of which, the registration is optional. Part-IV of the said Act pertains to the provisions of law relating to the time of presentation of documents for registration and for Re-registration in case of those documents which so warrant. Part-V relates to the place of registration. Part-VI pertains to the presentation of documents for registration. Part-XI speaks of duties and powers of Registering officers. Thereunder sub-part (A) pertains to the Registers, books and indexes and sub-part (B) pertains to the procedure on admitting to registration. Sub-part (C) relates to special duties of Sub Registrar. Sub-part (D) relates to special duty of Registrar and sub-part (E) pertains to the controlling powers of Registrars and Inspector General. Section 69 thereunder relates to powers of the Government to frame Rules under the said Act. Part-XII pertains to the procedure for refusal to register and Part-XIII is in relation to fees for registration, searches and copies.

7. Section 32 of the said Act provides that except in cases mentioned in Sections 31, 88 and 89, every document to be registered under the said Act shall be presented at proper registration office 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 by the representative or assign of such person, or by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner mentioned in the said Act. Section 33 describes the power of attorney which are recognizable for purposes of Section 32.

8. Section 34, deals with the scope of enquiry by the Registering officer before the acceptance of document for registration. Section 35 pertains to the procedure to be followed on admission or refusal of registration of document. Section 34(1) provides that subject to the provisions contained in Part-VI and in Sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under the said Act, unless the persons executing such document, or their representatives, assigns or agents duly authorized, 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. Sub-section (2) thereof provides that appearances under Sub-section (1) may be simultaneous or at different times. Sub-section (3) provides that the Registering Officer shall, thereupon enquire whether or not such document was executed by the persons by whom it purports to have been executed; satisfy himself to the identity of the persons appearing before him and alleging that they have executed the document; and in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. Sub-section (4) provides that 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.

9. Perusal of the above referred provisions of law would disclose that while Section 34 speaks of scope of enquiry by the Registering Officer, prior to acceptance of document for registration, Section 19 to 22-A speaks of powers of the Registering Authority to refuse the document to be received for registration.

Section 19 provides that if any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the document, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy. Section 20(1) provides that the Registering officer may in his discretion refuse to accept for registration any document in which any interlineations, blank, erasure or alteration appears, unless the person executing the document attest with their signatures or initials such interlineations, blank, erasure or alteration. Sub-section (2) of Section 20 provides that if the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineations, blank, erasure or alteration. Section 21(1) provides that no non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. Sub-section (4) thereof provides that no non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts. Section 22(1) provides that where it is, in the opinion of the State Government, practicable to describe houses not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under the Act, require that such houses and lands shall, for the purposes of Section 21, be so described and Sub-section (2) provides save as otherwise provided by any rule made under Sub-section (1) failure to comply with the provisions of Section 21, Sub-section (2) or Sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property. Section 22-A introduced by Bombay Act, 24 of 1938, which provides in its Sub-section (1) that the State Government may, by notification, in special official gazette, declare that the registration of any document or class of documents, as opposite to the public policy and in Sub-section (2) that notwithstanding anything contained in this Act, the Registering Officer shall refuse to register any document to which notification issued under Sub-section (1) is applicable.

10. Rule 44 of the said Rules deals with subject of requirements to be verified by the Registering Officer before acceptance of document for registration. The relevant clause of Sub-rule (1) provides that before accepting any document for registration, a Registering officer may not concern himself with its validity, but shall ascertain :

 (a)     ...................................; 
 

 (aa)    ...................................; 
 

 (b)     ...................................; 
 

 (c)     that it must be presented by a competent person; 
 

 (d)     ...................................; 
 

 (e)     ...................................; 
 

 (f)      ...................................; 
 

 (g)     ...................................; 
 

 (h)     that the registration of such document has not been declared as opposed to public policy under Section 22-A.  
 

11. As already observed above, the grievance of the petitioner relates to the alleged non-compliance of the provisions of law contained in Rule 44(1)(c) of the said Rules. Clause (c) relates to the competency of a person presenting the document for registration. In that regard, as already seen above, Section 32 of the said Act clearly identifies the persons, who can present a document for registration. Accordingly, it has to be by the person executing the document or a person claiming under him or under the same or by a person duly authorised by virtue of power of attorney executed or authenticated in the manner provided by the provisions contained in Section 33 of the said Act. In other words, a document is to, be presented for registration primarily by its executant himself or by a person duly authorised in terms of the provisions of law relating to delegation of such power. The competency of a person referred in Rule 44(1)(c) of the said Rules is essentially the one spoken of in Section 32 of the said Act. It cannot relate to the title of the person to the property which is subject matter of such document. The conclusion in this regard is inevitable considering the provisions of Part III and Part VI of the said Act. As it is clear from the provisions of law contained in Section 32 of the said Act, which speaks about the competency of the person to present a document for registration, obviously the Rules framed under the said Act cannot travel beyond the scope of the Statute, under which, they are framed. Apart from being executant himself or a person duly authorised by him or claiming under the same, no other restrictions have been imposed in relation to the entitlement of a person to present a document for registration. Being so, the competency of the person referred to it Rule 44(1)(c) of the said Rules cannot be related to any factor other than which is specified in Section 32 of the said Act. The competent person does not mean to be the title holder of the property which is the subject matter of the document presented for registration. The registering authority has no powers to verify or ascertain as to whether the executant of the document has title to the property which is sought to be dealt with under the document presented for registration. Any enquiry by the Registering Authority in the matter of title of the property which is the subject matter of the document presented for registration would be beyond the jurisdiction and powers of such authority. The executant of the document is, in no way, answerable to the Registering Authority relating to the title of the property which is the subject matter of the document presented by him for registration. Any refusal for registration of the document by the Registering authority on the ground of absence of title to such property to the executant or on account of any defect in his title to such property would be per se illegal act on the part of Registering authority.

12. The second grievance of the petitioner relates to non-compliance of Rule 44(1)(h) of the said Rules. As already seen above, Clause (h) refers to prohibition of the registration of a document which has been declared as opposed to public policy under Section 22-A. The Section 22-A(1) inserted in the said Act by Bombay Act XXIV of 1938, provides that the State Government, may by a notification in Official Gazette, declare that the registration of any document or class of documents is opposed to the public policy and Sub-section (2) thereof provides that notwithstanding anything contained in the said Act, Registering Officer shall refuse to register any document to which a notification issued under Sub-section (1) is applicable. Apparently, in order to require the Registering Authority to refuse to register a document on the ground of being opposed to the public policy, there has to be a notification issued by the Government, declaring particular document or a class of documents to be opposed to the public policy and that therefore the registration thereof should be avoided. In a case in hand, the petitioner has not been able to point out any such notification declaring the document which is stated to have been registered by the Registering Authority, was declared as opposed to the public policy by issuing a notification under Section 22-A of the said Act.

13. Being so, as the matter stands today, there is no substance in the contention of the petitioner that the registration of the concerned document has been allowed contrary to the provisions of Rule 4(1)(c) and (h) of the said Rules. Having realised the fate of the petition, the learned advocate for the petitioner pleads for further time to ascertain whether there is any notification issued under Section 22-A of the said Act. Apparently, therefore, the petitioner has not bothered to verify the same and without verifying the basic requirement to justify relief in the matter, has rushed to the Court with the present petition. In any case, considering the fact that the grievance of the petitioner that the property, which belongs to Government is sought to be transacted under the document in question, we are inclined to grant opportunity to the petitioner to approach this Court in case the petitioner is able to lay his hands to any such notification in relation the document in question and thereby is able to point out any violation of any provisions of the said Act or the said Rules made thereunder, by the Registering Authority by allowing registration of the said document.

14. With the liberty to the petitioner as observed above, the petition is dismissed. Rule is discharged with no order as to costs.