Sheo Murti Shukla vs State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 4409 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 9th September, 2011

+                                  W.P.(C) 6592/2011

%        SHEO MURTI SHUKLA                                  ....Petitioner
                      Through:            Mr. S.R. Padhy, Adv.

                                      Versus

    STATE (GOVT. OF NCT OF DELHI)          ..... Respondent
                  Through: Ms. Zubeda Begum, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may             Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?            Yes

3.       Whether the judgment should be reported           Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner avers that the respondent Sub-Registrar of Assurances,

Sub-District-VI, Alipur, Delhi is refusing to accept the documents of

cancellation of General Power of Attorney and cancellation of Will

presented by the petitioner for registration. Mandamus is sought to the said

Sub-Registrar to register the said documents.

2. In my opinion, this writ petition is not maintainable for the reason of

the alternative remedy of appeal against the order of Sub-Registrar being

available under the Registration Act, 1908. Though I have been taking the

said view but find many such petitions being filed before this Court and

there does not appear to be any pronouncement of this Court on the subject.

It is thus deemed expedient to deal exhaustively with the subject.

3. Part XI of the Act deals with the "Duties and Powers of Registering

Officers". Section 51 thereunder mandates the Registering Officer to

maintain Book 2 titled "Record of reasons for refusal to register". Section

52 requires the Registering Officer to issue to the person presenting a

document for registration a receipt for the same. Sections 58 to 70 prescribe

the procedure to be followed when a document is admitted to registration.

4. Part XII of the Act deals with "Refusal to Register". Section 71

thereunder requires the Sub Registrar, refusing to register a document,

except on the ground that the property to which it relates is not situated

within his sub-district, to make an order of refusal and record his reasons for

such order in Book No.2 and endorse the words "registration refused" on the

document and to furnish to the applicant, the copy of the reasons recorded

for refusing registration.

5. Section 72 provides for, "Appeal to the Registrar from orders of Sub-

Registrar refusing registration on ground other than denial of execution"; the

appeal is required to be preferred within 30 days from the date of the order

and the Registrar is empowered to reverse or alter the order appealed

against; if the Registrar directs the documents to be registered, the Sub

Registrar is mandated to obey the same and register the document.

However, if registration is refused by the Registrar also, Section 77 provides

for a suit for a decree directing the document to be registered.

6. The question which arises for consideration is whether the refusal of

the Sub-Registrar to even accept the documents for registration, can be said

to be appealable under Section 72 (supra) to the Registrar. The counsels

often contend that since no order in writing refusing registration has been

issued / passed by the Sub Registrar, the remedy of appeal is not available

and hence a writ petition would be maintainable. The Act, as aforesaid, does

not empower the Sub-Registrar to at the threshold only, refuse to even

accept the document. The Act requires the Sub-Registrar to accept each and

every document presented to him for registration and to issue receipt thereof

and to thereafter proceed, either to register the document or, if finds the

document to be not registrable, refuse registration by recording reasons

therefor. The gravamen of the argument aforesaid is, whether such refusal

which is in contravention of the procedure prescribed and is verbal and

without reasons, can be said to be a refusal within the meaning of Section 72

of the Act, so as to be appealable.

7. In my opinion, a refusal to even accept the document for registration,

is also a refusal of registration for grounds other than of denial of execution.

Merely because such refusal is in a manner not contemplated under the Act

would not make it anything other than refusal. I am unable to carve out any

distinction between a refusal as contemplated under the Act and a refusal in

a manner not contemplated under the Act. The effect of both, is the same.

The only exception to Section 72 is when such refusal is on the ground of

denial of execution. Thus refusal of registration by non acceptance at the

threshold only of document would be covered by the refusal against which

appeal is provided. Once the legislature has vested appellate powers in the

Registrar to whom the Sub-Registrar is subordinate, it will be immaterial,

whether such refusal is in accordance with the procedure prescribed or in

violation thereof.

8. The limitation provided in Section 72 of presenting the appeal within

30 days from the date of the order would not limit the otherwise wide

amplitude of the appellate power. It cannot be urged that an appeal under

Section 72 lies only when there is an order, date whereof is visible and not

where refusal is verbal and by non acceptance at the very threshold of the

documents. Appeal against such verbal refusal is also to be preferred within

30 days. A person seeking registration of document, unless refused, would

not prefer an appeal and thus an appeal to Registrar, without copy of reasons

for refusal, and merely on averment of verbal refusal, would lie.

Significantly, no form of appeal is prescribed.

9. The Registrar is not only the Appellate Authority of Sub-Registrar but

under Section 68, also has supervisory powers over the Sub-Registrar.

Section 68 requires every Sub-Registrar to perform the duties of his office

under the superintendence and control of the Registrar in whose district the

office of such Sub-Registrar is situated and Section 68(2) empowers the

Registrar to issue (whether on complaint or otherwise) any order consistent

with the Act which he considers necessary in respect of any act or omission

of any Sub-Registrar subordinate to him. It therefore follows that against the

refusal of the Sub-Registrar to even accept the documents for registration,

not only can the Registrar be approached in his appellate jurisdiction but

even in his supervisory jurisdiction and the Registrar when so approached is

required to deal with the complaint and to issue the necessary orders /

directions to the Sub-Registrar.

10. The Division Bench of the Bombay High Court as far back as in

Hussain Abdul Rahman & Co. Vs. Lakhmichand Khetsey AIR 1925 Bom

34 was also concerned with the difference between refusal of registration

and refusal to accept the document for registration. It was held that there is

no difference between the two inasmuch as in effect it amounts to refusal to

register the documents and the ultimate remedy whereagainst is a suit under

Section 77 of the Act. It was held that the expression "refusing to admit a

document to registration" in Section 72 is comprehensive enough to include

not only a refusal to register but a refusal to accept a document for

registration and even a refusal to accept registration is appealable under

Section 72. I respectfully concur with the said view.

11. The Andhra Pradesh High Court in K. Surender Rao Vs. Govt. of

Andhra Pradesh MANU/AP/0881/2007 was also concerned with writ

petitions impugning the action of the Sub-Registrar of raising repeated

objections to registration. The said High Court also held that under the Act,

the Sub-Registrar was obligated to either register the document or to refuse

registration and in which event the remedy of appeal would be available.

12. Mere non existence of a written order does not negate the

maintainability of a statutory appeal. It was so held by the Division Bench

of the Karnataka High Court though in the context of some other statute, in

P.E. Manjunath Vs. Chitradurga Distt. Ambedkar Education Soceity ILR

1990 KAR 2021. Even this High Court, in the context of appeals before the

Appellate Tribunal MCD, has in ANZ Grindlays Bank Plc. V.

Commissioner, MCD 1995 (34) DRJ 492 held that the appeal lies even in

the absence of any order of demolition / sealing having been passed or

served.

13. A complete machinery for redressal of grievance as made in this

petition being available under the Act, I am loath to entertain the writ

petition without the petitioner even availing the remedies prescribed under

the Act. It is settled principle of law that availability of alternative

efficacious remedy is a ground for refusing to entertain the writ petition.

14. The writ petition is therefore held to be not maintainable and is

dismissed with liberty to the petitioner to avail of the alternative remedies

aforesaid.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 09, 2011 bs/gsr.

(corrected and released on 20th September, 2011)