Jharkhand High Court
Shyamal Kumar Dutta vs The State Of Jharkhand & Ors on 13 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(C) No. 2588 of 2018
Shyamal Kumar Dutta .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Ors. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.........
For the Petitioner : Mr. Birendra Kumar, Advocate
For the respondent(s)/State : Mr. Mithilesh Singh, GA-IV
......
07/ 13.07.2022. Heard, learned counsel for the parties.
Mr. Birendra Kumar, learned counsel for the petitioner has submitted, that
vide order as contained in Memo No.1132, Ranchi, dated 26.08.2015 issued by the
Department of Revenue, Registration and Land Reforms, Government of
Jharkhand, vide notification No.I, in exercise of power under Section 22(A) of the
Registration Act, 1908, with regard to the Government land (kaisar-i-hind /
Gairmajarua Aam Land/ Gairmajarua Khas land/ forest land/ jungle / land acquired/
transferred to different departments or any other category of Government land etc.,)
regarding which, the Revenue Registration and Land Reforms Department,
Divisional Commissioner, Deputy Commissioner or any authorized officer by them
has informed the Registration Officer, such registration of transfer deed shall not
be done against public policy under the provisions of Section-22A of Indian
Registration Act, 1908.
Mr. Birendra Kumar, learned counsel for the petitioner has further
submitted, that such notification is ipso facto bad in law, in view of the judgment
passed by the Apex Court in the case of State of Rajasthan and Ors. vs. Basant
Nahata, reported in (2005) 12 SCC 77.
Mr. Birendra Kumar, learned counsel for the petitioner in support of his
submission has placed Paras, 4, 5, 6, 57, 65, 66, 67 and 68 of the judgment of
Basant Nahata (supra), which may profitably be quoted hereunder :-
4. By reason of the impugned judgment the Rajasthan High Court declared Section 22-A
of the Act as inserted by the Rajasthan Amendment Act, 1976 being Act 16 of 1976 as
unconstitutional and consequently the notifications as contained in Annexures 3, 4, 6 and
7 of the writ petition were also quashed. The Sub-Registrar was also directed to register
the power of attorney dated 16-7-1999 which was presented on 30-7-1999 within two
weeks from the date of presentation of the copy of the order.
5. The High Court in its impugned judgment, inter alia, held that Section 22-A of the Act
confers arbitrary powers on the State Government to determine as regards declaring a
particular document being opposed to public policy. It was opined that the question as to
whether a transaction is opposed to public policy or not can be determined only by the
courts and not by the Sub-Registrar. The impugned legislation invades the right of a
citizen to deal with the property and, thus, is wholly arbitrary and unreasonable. The
object of registration of a document is not achieved by the impugned legislation. The Act
deals with the deeds and documents and not transactions and in that view of the matter
non-registration of a document per se cannot be said to be opposed to public policy.
Section 22-A of the Act and the notifications
6. Section 22-A of the Act reads as under:
"22-A. Documents registration of which is opposed to public policy.--(1) The State
Government may, by notification in the Official Gazette, declare that the registration of any
document or class of documents is opposed to public policy.
(2) Notwithstanding anything contained in this Act, the registering officer shall refuse to
register any document to which a notification issued under sub-section (1) is applicable."
57. Hence, Section 22-A of the Act through a subordinate legislation cannot control the
transactions which fall out of the scope thereof.
65. The contention raised on behalf of the appellants herein that the State, being higher
authority, having been delegated with the power of making declaration in terms of Section
22-A of the Act, would not be abused is stated to be rejected. Such a question does not
arise herein as the provision has been held to be ultra vires Articles 14 and 246 of the
Constitution.
66. The contention raised to the effect that this Court would not interfere with the policy
decision is again devoid of any merit. A legislative policy must conform to the provisions of
the constitutional mandates. Even otherwise a policy decision can be subjected to judicial
review. (See Cellular Operators Assn. of India v. Union of India [(2003) 3 SCC 186]
and Clariant International Ltd. v. Securities & Exchange Board of India [(2004) 8 SCC
524] .)
67. For the reasons aforementioned, we do not find any merit in this appeal which is
dismissed accordingly. No costs.
68. So far as amendments made by other States are concerned, we are of the opinion that
any order passed by a Sub-Registrar or Registrar refusing to register a document pursuant
to any notification issued under Section 22-A of the Act would not be reopened.
Mr. Mithilesh Singh, learned GA-IV for the State has submitted, that once
the Apex Court has already held that so far the amendments made by other States
are concerned, we are of the opinion that any order passed by the Registrar/ Sub-
Registrar refusing to register a document pursuant to any notification under Section
22-A of the Act, would not be reopened, meaning thereby, such notification
debarring restricting Sub-Registrar/ Registrar to register such document is ipso
facto bad in law.
Mr. Mithilesh Singh, learned GA-IV for the State has sought time to seek
instruction and to file affidavit with regard to application of judgment passed by the
Supreme Court of India in this regard in the State of Jharkhand. .
Considering the same, put up this case on 27.07.2022 under the same heading
so as to assist this Court properly.
(Kailash Prasad Deo, J.)
Sandeep/
