[Cites 55, Cited by 0]
Karnataka High Court
Smt Kusuma Kumari vs The District Registrar on 11 February, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 16638 OF 2010 (GM-ST/RN)
BETWEEN
1. SMT KUSUMA KUMARI
AGED ABOUT 54 YEARS,
W/O V K KAMALANABHAN
R/A 159/171, 7TH CROSS,
III MAIN, CHAMARAJPET,
BANGALORE-560018
2. SRI M MALLAVEERAIAH
AGED ABOUT 75 YEARS,
S/O LATE S. MALLAPPA
R/A SHIVANAHALLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT
REP BY ITS GPA HOLDER
SRI B.M KARUNESH
S/O LATE B.M MADAIAH
Digitally signed ...PETITIONERS
by SHWETHA
RAGHAVENDRA
Location: HIGH (BY SRI. SANDESH J. CHOUTA., SR. ADVOCATE FOR
COURT OF SRI. VIKRAM UNNI RAJAGOPAL., ADVOCATE)
KARNATAKA
AND
1. THE DISTRICT REGISTRAR
SHIVAJINAGAR REGISTRATION DISTRICT
BANASAVADI,
BANGALORE-560043
2. THE SENIOR SUB-REGISTRAR
BANGALORE SOUTH TALUK
(PRESENTLY BOMMANAHALLI)
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BANGALORE
3. SRI VEERABHADRAPPA
AGED ABOUT 48 YEARS,
S/O LATE SADAPPA
4. SRI KARIMUNIYAPPA
AGED ABOUT 45 YEARS,
S/O LATE SADAPPA
RESPONDENTS 3 & 4 ARE
RESIDING AT PARANGIPALYA,
HAMLET OF HARALAKUNTE,
BEGUR HOBLI, BANGALORE SOUTH TALUK
BANGALORE
5. SRI AMITHANAND
AGED ABOUT 23 YEARS,
S/O V.K KAMALANABHAN
R/A 159/171, 7TH CROSS,
III MAIN, CHAMARAJPET,
BANGALORE-560018
.... RESPONDENTS
(BY SRI. MAHANTESH SHETTAR., AGA FOR R1, R2;
SRI. ASHOK HARANAHALLI., SR. ADVOCATE FOR
SRI. G.V SHASHIKUMAR., ADVOCATE FOR R3 & R4;
V/O DATED 29.07.2011 PETITION STANDS
DISMISSED AGAINST R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI, OR ANY OTHER WRIT, ORDER OR DIRECTIONS
QUASHING THE ORDER NO.RA4/2008-09 DATED 31.10.2009 PASSED
BY THE 1ST RESPONDENT (ANNEXURE-M) AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 04.11.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
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CAV ORDER
1. The Petitioners are before this Court seeking for the
following reliefs:
i. Issue of writ of certiorari, or any other writ, order or
directions quashing the order No.RA4/2008-09 dated
31.10.2009 passed by the 1st Respondent
(Annexure-M)
ii. Issue any other writ, order or directions as this
Hon'ble Court deem fit to pass in the circumstances
of the case including awarding cost of this writ
petition.
2. The subject property forms part of land bearing
Sy.No.18 (1C, 1A, 1A), totally measuring 35 acres,
which originally belonged to the joint family of Sri
Kuppaswamy Naidu. Upon partition among him and
his seven sons, an extent of 3 acres 29 guntas was
allotted to the share of Sri V.K. Kamalanabhan.
Petitioner No.1 is his wife and Respondent No.5 is
their son.
3. It is the specific case of the Petitioners that Sri V.K.
Kamalanabhan was suffering from prolonged mental
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illness and was, for a considerable period, incapable
of understanding the nature of transactions or
entering into any valid contract. Notwithstanding this
alleged incapacity, Sri Sadappa, the father of
Respondent Nos.3 and 4, propounded a sale deed
said to have been executed by Sri Kamalanabhan
and presented the same for registration before the
Senior Sub-Registrar, Bangalore South, on
18.02.1988.
4. At the time of presentation of the said document for
registration, the mandatory clearance certificate
contemplated under Section 230A of the Income Tax
Act, 1961 had not been produced. In view of such
non-production, the Sub-Registrar refused
registration and assigned the document a pending
number, namely 96-P-642/87-88. The document
thus remained unregistered and pending.
5. According to the Petitioners, no further steps were
taken by Sri Sadappa to cure the defect or to comply
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with the statutory requirement. Sri Sadappa is stated
to have died on 03.08.2002 without producing the
income tax clearance certificate and without taking
any steps to complete the registration process. The
Petitioners assert that the transaction was never
concluded; the registration remained incomplete; no
consequential entries were effected in the revenue
records; and the katha continued to stand in the
name of Sri Kamalanabhan.
6. The Petitioners further state that Sri Kamalanabhan,
owing to his mental condition, had left the
matrimonial home, and his whereabouts remained
unknown to the family. After the lapse of seven years
without any information regarding his existence, he
was presumed to be dead in accordance with law.
Thereafter, Petitioner No.1 and Respondent No.5
approached the revenue authorities seeking mutation
of their names in respect of the property. By order
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dated 30.04.2005 in M.R. No.130/2004, their names
came to be entered in the revenue records.
7. It is contended by the Petitioners that under Section
34 of the Registration Act, 1908, read with Rule 187
of the Karnataka Registration Rules, 1965, a
document presented for registration and refused by
the Sub-Registrar cannot be kept pending indefinitely
and that the power to keep such a document pending
is confined to a limited statutory period of four
months. The sale deed in question having been
presented and refused on 18.02.1988, and no
compliance having been made within the prescribed
period, the Petitioners contend that the document
could not have been legally revived or acted upon
after the lapse of several years.
8. However, it transpired that on 10.11.2000, the Sub-
Registrar passed an order observing that the
document could not be refused registration.
Subsequently, Respondent Nos.3 and 4, claiming to
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be the children and legal representatives of Sri
Sadappa, preferred an appeal in R.A. No.3/2005-06
before the District Registrar on 18.08.2005. In the
said appeal, neither Petitioner No.1 nor Respondent
No.5 were arrayed as parties. An application for
condonation of delay was filed and allowed. By order
dated 10.01.2006, the appeal was allowed and a
direction was issued to register the sale deed.
9. In the interregnum, Petitioner No.1 and Respondent
No.5, asserting their title based on mutation and
presumption of death of Sri Kamalanabhan, executed
a sale deed dated 11.07.2005 in favour of Petitioner
No.2 conveying the subject property.
10. Aggrieved by the appellate order dated 10.01.2006,
Petitioner No.1 and Respondent No.5 filed W.P.
No.3054/2006, and Petitioner No.2 filed W.P.
No.1641/2007. Both writ petitions were heard
together. By order dated 18.08.2008, the High Court
quashed the order dated 10.01.2006 passed in R.A.
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No.3/2005-06 and remitted the matter to the District
Registrar for fresh consideration, keeping all
contentions open.
11. Pursuant to the remand, the appeal was renumbered
as R.A. No.4/2008-09, and the Petitioners were
impleaded as parties. The Petitioners contend that
they were under the bona fide impression that the
matter would be reconsidered de novo in light of the
remand order. However, according to them, the
proceedings continued from the stage at which they
had earlier culminated, and ultimately, by order
dated 31.10.2009, the appeal was once again
allowed and the Sub-Registrar was directed to
register the sale deed.
12. It is the said order dated 31.10.2009 that is
presently under challenge before this Court.
13. Sri. Sandesh J. Chouta, learned Senior Counsel
appearing for the petitioners, submits as under:
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13.1. The sale deed propounded by late Sri Sadappa
was never registered and had in fact been kept
pending for want of compliance with the
mandatory requirement under Section 230A of
the Income Tax Act, 1961. The Sub-Registrar
had issued notices to Sri Sadappa on
27.09.1989 and again on 27.07.1999 calling
upon him to produce the requisite tax clearance
certificate. Despite issuance of repeated notices
spanning nearly a decade, no such certificate
was forthcoming. Ultimately, by order dated
10.11.2000, the Sub-Registrar formally refused
registration on the ground of non-production of
the certificate.
13.2. Learned Senior counsel further points out that
Section 230A of the Income Tax Act, which
imposed restrictions on registration of transfers
of immovable property exceeding the
prescribed value without prior tax clearance,
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was subsequently omitted by the Finance Act,
2001 with effect from 01.06.2001. Prior to its
omission, the section mandated production of a
certificate from the Assessing Officer for
registration of property valued above five lakh
rupees. However, the refusal order dated
10.11.2000 had already been passed when the
provision was very much in force.
13.3. Sri Sadappa expired on 03.08.2002. Thereafter,
Petitioner No.1 and Respondent No.5, being the
legal heirs of Sri V.K. Kamalanabhan, executed
a registered sale deed dated 11.07.2005 in
favour of Petitioner No.2. It is only subsequent
to this registered conveyance that Respondent
Nos.3 and 4 filed an appeal on 18.08.2005 in
R.A. No.3/2005-06 under Section 72(1) of the
Registration Act, 1908, accompanied by an
application seeking condonation of delay under
Section 5 of the Limitation Act, 1963.
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13.4. By the time the appeal was filed, valuable legal
rights had already crystallised in favour of
Petitioner No.2 under a registered instrument.
The filing of the appeal was thus not only
belated but was initiated after third-party rights
had intervened.
13.5. In the affidavit filed in support of the
condonation application, Respondent Nos.3 and
4 stated that they came to know of the refusal
order dated 10.11.2000 only in the first week of
July 2005. Learned counsel submits that this
statement is demonstrably false and is belied
by official records.
13.6. Respondent Nos.3 and 4 deliberately chose not
to implead Petitioner No.1, Respondent No.5 or
Petitioner No.2 in the appellate proceedings,
despite being fully aware of their interest in the
property. This omission, it is argued, was not
inadvertent but calculated.
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13.7. Insofar as Petitioner No.2 is concerned, learned
senior counsel stresses that his sale deed dated
11.07.2005 was duly registered. Respondent
Nos.3 and 4 are deemed in law to have
constructive notice of such registration. Despite
this, they took no steps to bring Petitioner No.2
on record in the appellate proceedings, even
though he had become the registered owner of
the property.
13.8. When the order dated 10.01.2006 was
challenged in W.P.Nos.3054/2006 and
1641/2007, this Court quashed the order and
remitted the matter for fresh consideration.
Since the Petitioners were not parties to the
earlier proceedings and had not been heard on
the application for condonation of delay, the
remand necessarily required a de novo
consideration commencing from the stage of
limitation. However, the District Registrar
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misconstrued the remand order and proceeded
from the stage of final hearing without
rendering a proper finding on limitation. This,
according to learned counsel, vitiates the entire
proceeding.
13.9. Attention is also invited to various interim
orders passed by this Court directing the
learned Additional Government Advocate to
produce records including the despatch
register. Eventually, the Inspector General of
Registration and Commissioner of Stamps filed
an affidavit after verification of official records.
13.10. Relying on the affidavit of the Inspector
General, learned Senior Counsel submits that
the refusal order dated 10.11.2000 was duly
entered in Book-II maintained in the office of
the Sub-Registrar. It is further recorded that
copies of the refusal order were issued on
10.11.2000 to the legal heirs of Sri Sadappa,
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namely Sri Veerabhadrappa and Sri
Karimuniyappa. The procedure prescribed
under Section 72(1) of the Registration Act
was thus fully complied with. The appeal,
however, was filed only on 18.08.2005, nearly
five years thereafter.
13.11. Respondent Nos.3 and 4 were fully aware of
the refusal order and that the appeal was
hopelessly barred by limitation.
13.12. Placing reliance on Section 72(1) of the
Registration Act read with Rule 191(1) of the
Karnataka Registration Rules, learned senior
counsel submits that the District Registrar has
no statutory power to condone delay in filing
an appeal under Section 72. Section 72(1)
expressly mandates that an appeal against an
order of refusal shall be presented within thirty
days from the date of the order.
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13.13. Reference is also made to Rule 175 of the
Registration Rules, which requires that an
appeal under Section 72 must be accompanied
by a copy of the refusal order and the original
document in respect of which refusal was
made. These procedural safeguards underscore
the strict and time-bound nature of the
appellate remedy.
13.14. Learned Senior counsel further draws a
distinction between Section 72 and Section 73
of the Registration Act. Section 72 applies
where refusal is for reasons other than denial
of execution. Section 73 applies where refusal
is on account of denial of execution and
provides a distinct procedural mechanism. It is
submitted that only in proceedings under
Section 73 can there be scope for extension or
condonation within the framework
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contemplated by that provision. No such
latitude exists under Section 72.
13.15. The submission, therefore, is categorical: the
appeal filed on 18.08.2005 against the refusal
order dated 10.11.2000 was grossly time-
barred; the District Registrar lacked
jurisdiction to condone delay; the condonation
order is without authority of law; and all
consequential proceedings directing
registration of the sale deed are liable to be set
aside on that ground alone.
13.16. He relies upon the decision in the case of
AMRAWATI VS. REGISTRAR/APAR
COLLECTOR PRATAPGARH AND OTHERS1,
more particularly, paras 3, 6, 14, 19, 20 and
21, which are reproduced hereunder for easy
reference.
"3. It is contended that in case of refusal of
registration by Sub-Registrar, appeal lies under
1
2019 SCC ONLINE ALL 8366
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Section 72 of Act, 1908 and limitation provided
therein is only 30 days. In the present case,
admittedly appeal was filed beyond the period of 30
days and for condonation of delay, an application
under Section 5 of Indian Limitation Act, 1963
(hereinafter referred to as "Act, 1963") was also filed.
Registrar condoned delay and thereafter passed order
directing Sub-Registrar to register the document.
Contention is that Registrar, while exercising
appellate power under Section 72 of Act, 1908, is not
a Court and, therefore, provisions of Act, 1963 are
not applicable and, therefore, impugned order is
patently without jurisdiction.
6. There are catena of decisions where it has been
held in respect of proceedings before Tribunals/quasi
judicial bodies (where Act, 1963 is not applicable
since it is applicable to the Courts) that if the Statute
concerned has not made Act, 1963 applicable,
provisions thereof cannot be applied to such
proceedings.
14. I also find that the issue in the context of Section
72 and 78 of Act, 1908 itself came up for
consideration before a learned Single Judge in State
of U.P. v. District Registrar, Meerut, AIR 1971 All
390. Court held that District Registrar is a creation of
Act, 1908 and to exercise only those powers that
have been given to him under Act, 1908. He does not
exercise powers of a Court, though he sits in appeal
against the order of Sub-Registrar under Section 72
of Act, 1908 but the powers therein are limited.
Under Section 72 of Act, 1908 he can only direct a
document to be registered by Sub-Registrar, who has
refused registration on the ground, other than denial
of execution. Court categorically said:
19. Considering overwhelming authorities on the
subject holding that Register while exercising power
under Section 72 and 73 of Act, 1908 is not a Court
and, therefore, Act, 1963 will not be applicable,
learned counsel for respondent-2 could not dispute
this fact that as a proposition of law, Act, 1963 was
not applicable and Registrar could not have condoned
delay.
20. In these circumstances, it is held that
Registrar erred in law in entertaining appeal
after expiry of period of limitation prescribed in
Section 72 by condoning delay since it has no
power to condone delay with reference to
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Section 5 of Act, 1963 and, therefore, appeal
was illegally entertained. It was liable to be
rejected as barred by limitation.
21. Now coming to second aspect whether this
Court should interfere in this particular matter or
not, once it is clear that Registrar was not
competent to entertain appeal after expiry of
period of limitation by condoning delay under
Section 5 of Act, 1963, the impugned order
becomes patently without jurisdiction and cannot
be sustained. As already noticed, the law of
limitation though harsh, still it has to be made
effective as it is and various considerations
brought by learned counsel for respondents, in
my view, are not justified to allow to sustain a
patently without jurisdiction order."
13.17. By relying on Amrawati, he submits that the
said decision directly addresses the precise
legal question that arises in the present case,
namely, whether the District Registrar, while
exercising appellate jurisdiction under Section
72 of the Registration Act, possesses the
authority to condone delay by invoking Section
5 of the Limitation Act, 1963.
13.18. In Amrawati, the Hon'ble Allahabad High
Court was concerned with a situation where an
appeal under Section 72 had been filed beyond
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the prescribed thirty-day period. An application
under Section 5 of the Limitation Act was filed
seeking condonation of delay, and the
Registrar condoned the delay and proceeded to
direct registration of the document. The
legality of such condonation was questioned.
13.19. The Hon'ble Allahabad High Court, after
examining the statutory scheme and earlier
precedents, held in clear and categorical terms
that the Registrar exercising powers under
Sections 72 and 73 of the Registration Act is
not a "Court". He is a statutory authority
created by the Registration Act and is confined
strictly to the powers expressly conferred by
that enactment. Though he may act in an
appellate capacity, he does not exercise
judicial power in the sense understood under
the Limitation Act.
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13.20. It was further held that the Limitation Act,
1963 applies to Courts and to such tribunals or
authorities only where the statute expressly
makes it applicable. In the absence of any
provision in the Registration Act incorporating
or extending the Limitation Act to proceedings
under Section 72, the Registrar cannot invoke
Section 5 thereof.
13.21. The Hon'ble Allahabad High Court in
Amrawati observed that there exists a
consistent line of authority holding that where
a special statute prescribes a limitation period
and does not provide for extension of time, nor
makes the Limitation Act applicable, the
authority functioning under that statute cannot
assume a power of condonation by implication.
The Registrar, being a creature of the statute,
cannot travel beyond its text.
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13.22. Particular emphasis is laid upon the Court's
observation that Section 72 prescribes a period
of thirty days for filing an appeal against an
order of refusal by the Sub-Registrar and does
not contain any enabling provision for
condonation of delay. The Hon'ble Allahabad
High Court held that the Registrar "erred in
law" in entertaining an appeal filed beyond
limitation by invoking Section 5 of the
Limitation Act, since such power was not
vested in him.
13.23. The Hon'ble Allahabad High Court further held
that once it is established that the authority
lacked jurisdiction to entertain the appeal
beyond limitation, the resultant order becomes
patently without jurisdiction and cannot be
sustained. The law of limitation, even if it
operates harshly, must be given effect as
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enacted. Equitable considerations cannot
confer jurisdiction where none exists.
13.24. Relying upon these principles, learned Senior
counsel submits that the position in the
present case is materially indistinguishable.
The refusal order of the Sub-Registrar was
passed on 10.11.2000. Section 72(1) of the
Registration Act required that any appeal
against such refusal be filed within thirty days.
However, the appeal in R.A. No.3/2005-06 was
filed only on 18.08.2005, nearly five years
after the order of refusal.
13.25. The District Registrar, while entertaining the
appeal and condoning the delay under Section
5 of the Limitation Act, assumed a jurisdiction
which the statute does not confer. The
Registrar, not being a Court, could not have
invoked the Limitation Act. Section 72 does not
provide for enlargement of time. Therefore, the
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very entertainment of the appeal was
incompetent in law.
13.26. The distinction between Sections 72 and 73 of
the Registration Act further fortifies this
position. Section 72 deals with refusal on
grounds other than denial of execution and
provides a narrow appellate remedy within a
fixed time frame. Section 73 deals with cases
involving denial of execution and contemplates
a different procedural mechanism. Even
assuming that some procedural latitude may
be available in proceedings under Section 73,
no such latitude exists under Section 72. The
legislature, having consciously prescribed a
thirty-day period without providing for
extension, must be taken to have intended
finality.
13.27. It is therefore submitted that once the appeal
was filed beyond the statutory period of thirty
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days, the District Registrar had no authority to
entertain it. The order condoning delay is
without jurisdiction. The subsequent order
directing registration of the document is
equally unsustainable, being founded upon an
incompetent proceeding.
13.28. The issue is not one of sufficiency of cause for
delay, but one of lack of jurisdiction. When the
statute withholds power to condone delay, the
authority cannot create such power by
recourse to general principles. The impugned
order, having been passed in excess of
statutory authority, is liable to be quashed on
that ground alone.
13.29. He relies upon the decision in the case of NEW
INDIA ASSURANCE COMPANY LIMITED Vs.
HILLI MULTIPURPOSE COLD STORAGE
PRIVATE LIMITED2, more particularly, paras
2
(2020) 5 SCC 757
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13 and 20 thereof, which are reproduced
hereunder for easy reference.
"13. On the contrary, sub-section (2)(a) of
Section 13 of the Consumer Protection Act
provides for the opposite party to give his
response "within a period of 30 days or such
extended period not exceeding 15 days as may
be granted by the District Forum". The intention
of the legislature seems to be very clear that the
opposite party would get the time of 30 days,
and in addition another 15 days at the discretion
of the Forum to file its response. No further
discretion of granting time beyond 45 days is
intended under the Act.
20. The legislature in its wisdom has provided for
filing of complaint or appeals beyond the period
specified under the relevant provisions of the Act
and Regulations, if there is sufficient cause given
by the party, which has to be to the satisfaction
of the authority concerned. No such discretion
has been provided for under Section 13(2)(a) of
the Consumer Protection Act for filing a response
to the complaint beyond the extended period of
45 days (30 days plus 15 days). Had the
legislature not wanted to make such provision
mandatory but only directory, the provision for
further extension of the period for filing the
response beyond 45 days would have been
provided, as has been provided for in the cases of
filing of complaint and appeals. To carve out an
exception in a specific provision of the statute is
not within the jurisdiction of the courts, and if it
is so done, it would amount to legislating or
inserting a provision into the statute, which is not
permissible."
13.30. Learned Senior counsel, placing reliance upon
Hilli Multipurpose Cold Storage, submits
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that the said decision enunciates an
authoritative principle of statutory
interpretation directly applicable to the present
controversy.
13.31. In Hilli Multipurpose Cold Storage, the
Hon'ble Supreme Court was concerned with
the construction of Section 13(2)(a) of the
Consumer Protection Act, which granted to the
opposite party a period of 30 days to file its
response, extendable by a further 15 days at
the discretion of the Forum. The question
arose whether the Forum could extend the
time beyond the total outer limit of 45 days.
13.32. The Hon'ble Supreme Court held that the
legislative intent was clear and unambiguous.
The statute expressly granted a period of 30
days, with a further discretionary extension of
15 days. No additional discretion was
contemplated. The Hon'ble Supreme Court
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observed that in other provisions of the same
enactment, where the legislature intended to
permit filing beyond prescribed periods upon
sufficient cause being shown, it had expressly
provided for such condonation. The absence of
similar language in Section 13(2)(a) was
therefore deliberate. The Hon'ble Supreme
Court held that to permit further extension
beyond what the statute expressly
contemplated would amount to judicial
legislation and insertion of words not found in
the provision.
13.33. The reasoning adopted by the Hon'ble
Supreme Court applies with greater force to
Section 72(1) of the Registration Act. Section
72 prescribes that an appeal from an order of
refusal of registration (for reasons other than
denial of execution) shall be presented within
thirty days from the date of the order. The
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provision does not contain any clause
permitting extension of time. It does not
employ expressions such as "sufficient cause"
or "such further time as may be allowed." It
does not incorporate or refer to the Limitation
Act. It simply fixes a period of thirty days.
13.34. When the legislature has prescribed a definite
period of limitation without providing for
extension, the period must be treated as
mandatory. If the legislature intended to
confer power upon the District Registrar to
condone delay, it would have expressly said
so. The omission is therefore intentional and
cannot be supplied by interpretation.
13.35. Drawing a parallel with the reasoning in Hilli
Multipurpose Cold Storage, learned senior
counsel submits that where the legislature has,
in other contexts, expressly provided for
condonation of delay, but has omitted such a
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provision in a specific section, the Court must
give effect to that omission. The authority
exercising statutory power cannot enlarge its
jurisdiction by invoking general principles or by
importing provisions from another statute.
13.36. Section 72 constitutes a complete code in itself
so far as appeals from refusal orders are
concerned. The District Registrar, being a
statutory authority and not a Court, is bound
strictly by the limitations of the statute. In the
absence of any express power of condonation,
he could not have entertained an appeal filed
nearly five years beyond the date of refusal.
13.37. The principle laid down by the Hon'ble
Supreme Court in Hilli Multipurpose Cold
Storage emphasises judicial restraint in
matters of statutory interpretation. Courts and
statutory authorities alike are prohibited from
reading into a provision words or powers that
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the legislature has consciously omitted. To do
so would amount to legislating under the guise
of interpretation.
13.38. Applying that principle to the present case, he
submits that the appeal filed on 18.08.2005
against the refusal order dated 10.11.2000
was plainly beyond the statutory period of
thirty days. Since Section 72 does not
contemplate extension of time, the District
Registrar lacked authority to condone the
delay. The order condoning delay, and the
subsequent direction to register the document,
are therefore vitiated by lack of jurisdiction.
13.39. He accordingly submits that the impugned
order cannot be sustained in law and is liable
to be quashed on this ground alone.
13.40. He relies upon the decision in the case of
AMAN ENGINEERING WORKS Vs.
REGISTRAR TRADE MARKS, TRADE MARKS
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REGISTRY AND ANOTHER3, more
particularly, paras 18 and 26, which are
reproduced hereunder for easy reference.
18. A reading of the above Rule would show that
an application seeking review of a decision of the
Registrar of Trade Marks/respondent no. 1 has
to be made within a period of one month from
the date of such decision or within such further
period not exceeding one month thereafter, as
the Registrar of Trade Marks/respondent no. 1
may on request allow. Therefore, it sets the
maximum outer limit by which the delay in filing
of an application seeking review of the decision
of the Registrar of Trade Marks/respondent no. 1
can be condoned.
26. Section 131 of the Act empowers the
Registrar of Trade Marks/respondent no. 1 to
extend the time for doing any act, provided the
time period is not expressly provided in the Act.
As held by the Supreme Court, as also by this
Court in the above referred judgments, the
period prescribed under Rule 119 of the Rules
has to be considered as one prescribed in the
Act itself. The Registrar, therefore, has no power
to condone the delay beyond the period
prescribed by the said Rule.
13.41. Learned senior counsel by relying on the
judgement of the Hon'ble Delhi High Court in
Aman Engineering Works submits that the
said judgment lucidly explains the limits of
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statutory discretion in matters of limitation and
extension of time.
13.42. In Aman Engineering Works, the Hon'ble
Delhi Court was dealing with Rule 119 of the
Trade Marks Rules, which provided that an
application seeking review of a decision of the
Registrar must be filed within one month from
the date of the decision, and that the Registrar
may, on request, allow a further period not
exceeding one month. Thus, the rule itself
prescribed both the primary limitation period
and the maximum outer limit within which
delay could be condoned.
13.43. The Hon'ble Delhi High Court observed that the
Rule clearly fixed an outer boundary for
condonation. It further held that Section 131 of
the Trade Marks Act, which empowered the
Registrar to extend time for doing any act,
would not apply where the time period was
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expressly provided in the Act or Rules. Once
the statute or statutory rules prescribe a
specific time frame and caps the permissible
extension, the authority cannot enlarge it
beyond what is expressly provided. The
Hon'ble Delhi High Court concluded that the
Registrar had no power to condone delay
beyond the statutorily prescribed period.
13.44. Learned Senior counsel submits that the
principle emerging from Aman Engineering
Works is that when the legislature or
delegated legislation prescribes a definite time
frame and either limits or omits the power of
extension, the authority must act strictly within
those confines. Jurisdiction is co-extensive with
the statute and cannot be expanded by
interpretation.
13.45. Applying this reasoning to the present case,
learned Senior counsel submits that Section
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72(1) of the Registration Act prescribes a
period of thirty days for filing an appeal against
an order of refusal passed by the Sub-
Registrar. Unlike the provision considered in
Aman Engineering Works, Section 72 does
not even provide for a limited extension. There
is no clause permitting enlargement of time.
There is no maximum outer limit. There is no
discretion vested in the District Registrar to
condone delay. The statute is silent on any
power of extension.
13.46. He submits that if, in a case where a limited
extension was expressly permitted, the Hon'ble
Delhi High Court held that the authority could
not travel beyond the outer boundary fixed by
statute, then in a case such as the present,
where no extension is contemplated at all, the
authority cannot assume such power even by
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implication. To do so would amount to reading
into Section 72 words that are not there.
13.47. Learned Senior counsel further submits that
the Registration Act is a self-contained statute
governing the manner in which documents are
to be registered and the remedies available
against refusal. The appeal provision under
Section 72 is a creature of statute. The right of
appeal itself is statutory and not inherent.
Therefore, the conditions attached to that
right, including limitation, must be strictly
complied with. Once the statutory period
expires, the right to appeal stands
extinguished, unless the statute itself
preserves it.
13.48. In the present case, the refusal order was
passed on 10.11.2000. The appeal under
Section 72 was required to be filed within
thirty days i.e., by 09.12.2000. However, it
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was filed only on 18.08.2005, nearly five years
later. Section 72 contains no provision enabling
the District Registrar to condone delay. In
these circumstances, learned senior counsel
submits that the District Registrar acted
beyond the limits of his statutory authority in
entertaining the appeal and condoning the
delay.
13.49. He therefore contends that the impugned order
directing registration of the document is
vitiated by lack of jurisdiction and is liable to
be set aside.
13.50. He relies upon the decision in the case of
INDIAN COFFEE WORKER'S CO-OP.
SOCIETY LTD., VS. COMMISSIONER OF
COMMERCIAL TAXES AND OTHERS4, more
particularly, paras 7, 21 and 23 thereof which
are reproduced hereunder for easy reference.
4
2002 (1) CTC 406
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"7. The Deputy Commercial Tax Officer passed
the assessment order in Form No.19 and the
same bears the date 6.10.1990. In the very first
page, before the commencement of the order as
such, under the heading NOTE, the following is
mentioned.
" An appeal against this order lies before the
Appellate Assistant Commissioner of Commercial
Taxes, Cuddalore within 30 days of receipt of this
order".
Section-31 of the Tamil Nadu General Sales Tax
Act reads thus:
"Appeals to the appellate assistant commissioner:
[1] Any person objecting to an order passed by
the appropriate authority under (Section 4-
A), Section 12, Section 14, Section 15,
subsections(1) and (2) of Section 16, Section
18 (sub-section (2) of Section-22, Section
23 (or Section 27) other than an order passed by
an Assistant Commissioner) may, within a period
of thirty days from the date on which the order
was served on him in the manner prescribed,
appeal against such order to the Appellate
Assistant Commissioner ( having jurisdiction):
Provided that the Appellate Assistant
Commissioner may admit an appeal presented
after the expiration of the said period if he is
satisfied that the appellant had sufficient cause
for not presenting the appeal within the said
period:
Provided further that in the case of an order
under Section 12, Section 14, Section 15 or sub-
sections (1) and (2) of Section 16 no appeal shall
be entertained under this sub section unless it is
accompanied by satisfactory proof of the payment
of tax admitted by the appellant to be due or of
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such instalment thereof as might have become
payable as the case may be.
[2] The appeal shall be in the prescribed form and
shall be verified in the prescribed manner."
From the above provision, it is clear that the
appeal must be filed in a prescribed format within
thirty days from the date of receipt of the
assessment order. The Appellate Authority is
vested with powers only to condone the delay of
30 days in proper cases where the appellant
shows sufficient cause. If one looks at the
Communication dated 5/11/1990 sent by the
petitioner to the Appellate Assistant
Commissioner, it could be noticed that certainly it
is not an appeal against the assessment order. If
one carefully goes through the said
communication, it could be seen that nowhere it is
stated that it is an appeal and that the order of
the assessment officer has to be set aside. Added
to this, the same was not in the prescribed
format. The provision under Section 31 (2) of the
TNGST Act as could be seen, clearly lays down
that the appeal shall be in the prescribed form
and shall be verified in the prescribed manner. At
the risk of repetition, it may be stated that the
communication dated 5/11/1990 is not an appeal
for the reason that the same has not been filed in
a prescribed form with proper verification and
there is no prayer to set aside the order of the
Assessing Authority. In fact, there is not even an
allegation in the body of the communication that
the assessment order is erroneous for some
reason or other and the same is liable to be set
aside. Once this Court comes to this conclusion,
then, the submission of the petitioner that the
appeal was filed even on 5/11/1990 and as it was
not in the prescribed form, another appeal was
sent on 1.2.1991 has to fail.
21. From the discussions made in paragraphs 8 to
16 supra, the legal position is that the
appellant/Assistant Commissioner has no power
to condone the delay, whatever may be the
reason for the delay, beyond 30 days over and
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above the period prescribed for filing appeal, i.e.,
30 days from the date of receiving copy of the
order. Consequently, it has to be held that the
impugned orders passed by the
appellant/Assistant Commissioner as well as
Taxation Special Tribunal are legal and proper.
23. The legal position is as follows:
(a) An appeal under Section 30(1) of the Tamil
Nadu General Sales Tax Act, 1959 has to be filed
within 30 days before the appellate Assistant
Commissioner. The appellate Assistant
Commissioner is empowered to condone the delay
for further period of 30 days if sufficient cause for
not presenting the appeal in time is shown and
satisfied by the appellate authority.
(b) Under no circumstances, the appellate
authority has power to condone the delay beyond
30 days.
(c) While the High Court exercising the jurisdiction
under Article 226 of Constitution of India,
approves the correctness of the order of the
appellate authority, it has no power to direct the
appellate authority to consider the appeal on
merits as otherwise it would be nothing but Court
extending the period of limitation.
(d) Even if the High Court accepts the explanation
given by the assessee for not filing the appeal
within the period prescribed under the Act, it
cannot direct the appellate authority to consider
the matter on merits as the High Court exercising
jurisdiction under Article 226 of Constitution of
India, cannot re-write the provisions of the Act."
13.51. Learned senior counsel, placing reliance upon
the decision of the Hon'ble Madras High Court
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in Indian Coffee Worker's Co-operative
Society Ltd. submits that the said judgment
lays down, in unmistakable terms, the
discipline that must govern statutory limitation
provisions and the strict confines within which
appellate authorities are required to function.
13.52. In that case, an assessment order was passed
under the Tamil Nadu General Sales Tax Act.
The order itself indicated that an appeal would
lie within thirty days of receipt. Section 31 of
the Act prescribed:
13.52.1. An appeal must be filed within thirty
days from the date of service of the
order.
13.52.2. The appellate authority was
empowered to admit an appeal
presented after the expiration of
that period if sufficient cause was
shown.
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13.52.3. However, such condonation was
confined to a further period of thirty
days, thereby creating an
identifiable outer limit.
13.53. The Hon'ble Madras High Court carefully
examined whether an appeal filed beyond the
statutory outer limit could be entertained and
held that the appellate authority's power to
condone delay was circumscribed strictly by
the language of the statute. The authority
could condone delay only within the additional
period expressly provided. Beyond that limit, it
had no power whatsoever to entertain the
appeal, irrespective of the explanation offered.
13.54. The Hon'ble Madras High Court went on to
further observe that even the High Court, while
exercising jurisdiction under Article 226 of the
Constitution, could not direct the appellate
authority to entertain a time-barred appeal, as
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that would amount to extending the period of
limitation and effectively rewriting the statute.
13.55. Learned Senior counsel submits that the
decision crystallises the following propositions:
13.55.1. The right of appeal is statutory; it
exists only within the boundaries
created by the statute.
13.55.2. Limitation attached to a statutory
remedy is substantive and
mandatory.
13.55.3. Where the statute prescribes a time
limit and defines the extent of
permissible condonation, the
authority cannot exceed that
boundary.
13.55.4. Where the statute does not provide
for condonation at all, no such
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power can be assumed by
implication.
13.55.5. Neither equity nor hardship can
enlarge jurisdiction.
13.55.6. Even constitutional courts cannot
compel a statutory authority to act
contrary to the limitation prescribed
by the legislature.
13.56. The Hon'ble Madras High Court in that case
expressly stated that the law of limitation,
however stringent, must operate as enacted,
and judicial sympathy cannot substitute
legislative mandate.
13.57. Learned Senior counsel submits that the
statutory framework under Section 72(1) of
the Registration Act is even more rigid than
the provision considered in Indian Coffee
Worker's case. Under Section 72:
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13.57.1. An appeal against an order of
refusal must be presented within
thirty days.
13.57.2. There is no proviso enabling
condonation.
13.57.3. There is no additional period
provided.
13.57.4. There is no outer boundary clause.
13.57.5. There is no "sufficient cause"
provision.
13.57.6. There is no incorporation of the
Limitation Act.
13.58. Thus, whereas in the Sales Tax statute a
limited condonation power was expressly
conferred, Section 72 contains no such
enabling provision whatsoever.
13.59. If, in a case where limited condonation was
expressly permitted, the authority was held
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incapable of travelling beyond the prescribed
outer limit, then in the present case, where the
statute is silent on condonation thereby barring
condonation, the authority's jurisdiction is
narrower still.
13.60. In the present case:
13.60.1. The Sub-Registrar passed the
refusal order on 10.11.2000.
13.60.2. The statutory period of thirty days
expired in December 2000.
13.60.3. The appeal was filed only on
18.08.2005.
13.60.4. The delay extends to nearly five
years.
13.60.5. Section 72 does not confer power to
condone delay.
13.61. Learned counsel submits that the District
Registrar, by entertaining the appeal and
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condoning delay, acted outside the bounds of
statutory authority. The jurisdiction exercised
was not merely erroneous, it was non-existent.
13.62. The reasoning in Indian Coffee Worker's
case makes it clear that even if sufficient
cause is shown, and even if the delay appears
justified, the absence of statutory power to
condone renders the authority powerless.
Jurisdiction cannot arise from compassion,
fairness, or perceived injustice; it must arise
from statute.
13.63. The principle is well settled: when a statute
does not provide for condonation of delay, the
authority cannot condone it under any
circumstances. Section 72 of the Registration
Act prescribes a thirty-day limitation and
contains no enabling clause for extension. The
District Registrar's act of condoning delay of
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nearly five years is thus contrary to statute
and without jurisdiction.
13.64. The impugned order directing registration of
the document, being founded upon an appeal
that was incompetent from inception, is liable
to be set aside.
13.65. Learned Senior counsel submits that a serious
jurisdictional infirmity vitiates the impugned
proceedings inasmuch as the issue of
limitation, though specifically raised, has not
been adjudicated at all by Respondent No.1.
13.66. He submits that the Petitioners and
Respondent No.5 had expressly contended
before the appellate authority that the appeal
filed by Respondent Nos.3 and 4 was
hopelessly barred by limitation and that there
existed no statutory power to condone such
delay. Notwithstanding these specific
objections, Respondent No.1 has not passed
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any independent or reasoned order on the
application seeking condonation of delay.
There is no determination of:
13.66.1. When knowledge of the refusal
order was acquired,
13.66.2. Whether the appeal was within
thirty days,
13.66.3. Whether delay stood condoned, and
13.66.4. If so, under what statutory
authority.
13.67. Instead, the proceedings appear to have been
carried forward on the assumption that delay
stood condoned, without any formal
adjudication. Learned counsel submits that
such an approach has deprived the Petitioners
of a valuable right, namely, the right to oppose
limitation and contest the very maintainability
of the appeal.
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13.68. When this Court, by order dated 18.08.2008 in
W.P. No.3054/2006 clubbed with W.P.
No.1641/2007, quashed the earlier appellate
order and remanded the matter for fresh
consideration, it expressly kept all contentions
open. This necessarily included the issue of
limitation and the legality of condonation of
delay. The remand required a fresh application
of mind to all foundational issues. However,
Respondent No.1 has proceeded as though the
question of limitation stood concluded.
13.69. In the earlier impugned order dated
31.10.2009, Respondent No.1 erroneously
proceeded on the premise that the appeal was
within time. This conclusion, he submits,
stands contradicted by the affidavit filed by the
Inspector General of Registration (IGR),
wherein it is categorically stated that:
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13.69.1. The refusal order dated 10.11.2000
was entered in Book-II;
13.69.2. Copies of the refusal order were
issued to Sri Sadappa and his legal
representatives;
13.69.3. The statutory procedure was duly
followed.
13.70. In light of this affidavit, Respondent Nos.3 and
4 cannot plausibly contend that they became
aware of the refusal order only in the first
week of July 2005. Learned counsel submits
that the filing of the affidavit itself
demonstrates that the official record
contradicts the plea of ignorance. Yet,
Respondent No.1 has failed to analyse this
material or record any finding thereon.
13.71. This omission reflects non-application of mind.
The authority has not dealt with the
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documentary evidence placed before it, nor
has it reconciled the plea of delayed knowledge
with the official record. In the absence of a
reasoned determination on limitation, the final
order directing registration cannot stand.
13.72. The document in question was presented for
registration in the year 1988 and was kept
pending for an inordinately long period. Notices
were issued by the Sub-Registrar on
27.09.1989 and again on 27.07.1999 requiring
compliance. Despite such notices spanning
nearly a decade, Sri Sadappa, during his
lifetime, took no effective steps to cure the
defect or pursue registration.
13.73. It is in that background that the Sub-Registrar
ultimately passed the order of refusal on
10.11.2000. Learned counsel submits that
even this refusal order was passed much
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beyond the permissible period during which a
document could be kept pending.
13.74. Learned Senior counsel's submission on this
aspect is two-fold:
13.74.1. Firstly, under the scheme of the
Registration Act read with the
applicable Rules, once a document
presented for registration is refused
and the prescribed period of four
months has expired, the refusal
attains finality. The document
cannot be kept pending indefinitely.
After expiry of the statutory period,
the refusal stands confirmed and
concluded in law.
13.74.2. Secondly, the order dated
10.11.2000 must be viewed as a
formal order passed in continuation
of the earlier refusal. It does not
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create a fresh or independent cause
of action. The limitation period for
filing an appeal must be reckoned
from the date of refusal and not
from any subsequent formal
communication or reiteration.
13.75. If the statutory scheme does not permit a
document to remain pending beyond four
months, and if the right of appeal is confined
to thirty days from refusal, then the attempt to
revive the matter several years later would
defeat the legislative mandate of finality.
13.76. Learned Senior counsel therefore submits that:
13.76.1. The issue of limitation was not
adjudicated.
13.76.2. No reasoned order on condonation
was passed.
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13.76.3. The remand order required fresh
consideration of all contentions.
13.76.4. The affidavit of the IGR contradicts
the plea of delayed knowledge.
13.76.5. The refusal attained finality long
prior to the filing of the appeal.
13.76.6. The order dated 10.11.2000 did not
confer any fresh cause of action.
13.77. Accordingly, the impugned order is vitiated by
non-application of mind, jurisdictional error,
and failure to decide a foundational issue
affecting maintainability. It is therefore liable
to be set aside.
13.78. He relies upon the decision in the case of
R.SAMPATH VS. STATE OF KARNATAKA BY
ITS SECRETARY AND OTHERS5, more
particularly, paras 13.3, 13.4, 13.5, 13.8 and
5
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13.10, which are reproduced hereunder for
easy reference.
"13.3. The Petitioner on the basis of such
refusal could have approached the Registrar
within 30 days of refusal order dated 8-11-2004
seeking to challenge the said endorsement,
which has not been done by the Petitioner.
13.4. The Petitioner has approached this Court
in the year 2013 contending that Sub-Registrar
ought to have registered the document and
seeking for certiorari to quash the endorsement
dated 16-8-2012 and for a mandamus directing
for registration of the document presented for
registration on 8-11-2004.
13.5. From the endorsement dated 16-8-2012
it is seen that the document was registered in
the pending category on 8-11-2004 and the
pending No. 864 of 2004 was issued. The cause
of action for the Petitioner, therefore arose in
the year 2004. Though the Petitioner would
have challenged the same, the same was not
done. The Petitioner having chosen to keep the
document pending for registration ought to
have taken such steps as are provided either to
challenge the said order or comply with the
requirements within a reasonable time.
13.8. In view of the above, the cause of action
having arisen on 8-11-2004, the Petitioner
having not done anything until 19-3-2012 when
the first Writ Petition was filed and thereafter
taking up the matter is not entitled to any
relief.
13.10. In view thereof, I am of the considered
opinion that the lackadaisical conduct of the
Petitioner disentitles him from any remedy at the
hands of this Court."
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13.79. Learned senior counsel, placing reliance upon
the judgment of this Court in R. Sampath v.
State of Karnataka by its Secretary and
Others, submits that the principles laid down
in the said decision directly govern the present
case and decisively answer the question of
limitation and finality.
13.80. In R. Sampath, this Court examined a
situation where a document presented for
registration had been refused registeration, a
pending number had been assigned, and yet
the party concerned did not challenge the
refusal within the statutory period. After the
lapse of several years, the petitioner
approached the Court seeking directions for
registration.
13.81. This Court held that the cause of action arose
on the date of refusal itself. The statutory
remedy under Section 72 of the Registration
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Act was required to be invoked within thirty
days. Having failed to do so, the petitioner
could not, after years of inaction, seek to
revive the matter. This Court further observed
that a party who keeps a document pending
without either complying with requirements or
challenging refusal within the time prescribed
cannot subsequently seek indulgence. The
conduct of remaining inactive disentitles the
party from relief.
13.82. Learned Senior counsel submits that the
factual matrix in the present case is strikingly
similar. The refusal order was passed on
10.11.2000. The statutory remedy was
available under Section 72. Yet, no appeal was
filed within thirty days. The appeal came to be
filed only on 18.08.2005, nearly five years
later. Applying the reasoning in R. Sampath,
the cause of action arose in 2000. The failure
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to act within the prescribed period rendered
the refusal final.
13.83. He submits that this Court has already
declared that indolent conduct and failure to
pursue statutory remedies in time is fatal. The
principle of finality cannot be defeated by
belated attempts at revival.
13.84. Learned Senior counsel then addresses the
submission advanced on the other side
regarding a clarification issued by the
Inspector General of Registration on
02.08.2001, allegedly directing that documents
kept pending for want of Income Tax clearance
prior to 01.06.2001 be registered.
13.85. He submits that such clarification is wholly
inapplicable to the present case for a
fundamental reason. The clarification
concerned documents that were "pending". In
the present case, the Sub-Registrar had
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already passed a formal order refusing
registration on 10.11.2000. Once refusal had
been recorded, the document ceased to be
pending in law. Therefore:
13.85.1. A clarification relating to pending
documents cannot revive a
concluded refusal.
13.85.2. An administrative circular cannot
override statutory limitation.
13.85.3. An executive instruction cannot
create a fresh cause of action.
13.86. He submits that the clarification cannot be
relied upon to bypass Section 72 or to extend
limitation beyond what the statute permits.
13.87. Learned counsel lastly submits that the
surrounding circumstances give rise to serious
doubt regarding the bona fides of the
proceedings. He points out that:
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13.87.1. The impugned appellate order was
passed on 31.10.2009 at about
3:30 p.m.
13.87.2. On the very same day, the sale
deed was registered in the office of
Respondent No.2.
13.87.3. The office of Respondent No.2 is
located approximately 15 kilometres
away.
13.87.4. Considering the traffic conditions
prevalent in Bengaluru and the
working hours of the registration
office, it would have been practically
improbable for the order to be
received, acted upon, and
registration completed within such a
short span of time on the same day.
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13.88. Learned Senior counsel submits that this
unusual haste and sequence of events give rise
to a legitimate apprehension of collusion
between the official respondents and
Respondent Nos.3 and 4. He contends that the
registration appears to have been pre-
arranged and mechanically executed, rather
than processed in the ordinary course of
administrative functioning.
13.89. On a cumulative consideration of:
13.89.1. The statutory limitation under
Section 72,
13.89.2. The absence of power to condone
delay,
13.89.3. The binding ratio of R. Sampath,
13.89.4. The inapplicability of the clarification
dated 02.08.2001,
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13.89.5. The unexplained speed with which
registration was effected on
31.10.2009,
13.89.6. The failure of Respondent No.1 to
consider limitation and material
evidence,
13.90. Learned Senior counsel submits that the
impugned order dated 31.10.2009 cannot be
sustained in law.
13.91. For all the above grounds, he submits that the
petition is required to be allowed and the
impugned order dated 31.10.2009 be set aside
and the registration of the sale deed made in
pursuance of the said order dated 31.10.2009
be cancelled.
14. Sri.Ashok Haranahalli, learned Senior Counsel
appearing for respondent Nos.3 and 4 would submit
as under:
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14.1. Learned Senior Counsel submits that Sri
Kuppuswamy Naidu, who had acquired an
extent of 3 acres and 29 guntas of land under
a partition, agreed to sell 81 guntas thereof to
the father of Respondent Nos.3 and 4. A sale
deed was duly executed between the parties
and was presented for registration before the
Sub-Registrar, Bengaluru, on 18.02.1988.
14.2. However, at the time of presentation, the
Income Tax Clearance Certificate required
under Section 230A of the Income Tax Act,
1961 was not produced. On that ground alone,
the Sub-Registrar declined to complete
registration and the document was kept
pending.
14.3. The document was not finally rejected at that
stage but was retained in the pending register.
The refusal was not on the ground of denial of
execution or defect in title, but purely for non-
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production of a statutory certificate. Thus,
according to him, the transaction remained
incomplete only on account of a procedural
requirement under the Income Tax Act.
14.4. The stand taken by Respondent No.2, that
notices were issued on two occasions calling
upon the father of Respondent Nos.3 and 4 to
produce the required certificate, is wholly
incorrect.
14.5. No such notices were ever served upon the
father of Respondent Nos.3 and 4. According
to him:
14.5.1. There is no acknowledgment of
service;
14.5.2. There is no proof of dispatch;
14.5.3. There is no documentary material
demonstrating communication of
the alleged notices;
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14.5.4. There is no evidence of actual
receipt.
14.6. He contends that the assertion that the father
of Respondent Nos.3 and 4 failed to respond to
notices is unfounded and unsupported by
cogent proof.
14.7. In matters affecting valuable immovable
property rights, the burden lies upon the
authority asserting service to establish that
notices were duly issued and properly served.
Mere recital in an affidavit or register entry is
insufficient unless supported by proof of
dispatch and acknowledgment. There is equally
no material to show that the refusal order
dated 10.11.2000 was ever communicated to
the father of Respondent Nos.3 and 4.
14.8. He points out that:
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14.8.1. No acknowledgment bearing
signature of the recipient has been
produced.
14.8.2. No postal receipt or dispatch proof
has been placed on record.
14.8.3. No documentary evidence has been
furnished to show actual delivery.
14.9. The father of Respondent Nos.3 and 4 expired
on 03.08.2002. Respondent Nos.3 and 4
themselves are stated to be illiterate and are
also deaf and dumb. They have categorically
asserted that no notice or order was ever
received.
14.10. Once such categorical denial is made, the
burden shifts to the authority and the
Petitioners to demonstrate proper
communication of the refusal order. In the
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absence of proof of service, limitation cannot
begin to run.
14.11. According to him, unless communication of
refusal is established in accordance with law,
the question of computing thirty days under
Section 72 of the Registration Act does not
arise.
14.12. He therefore submits that the appeal filed by
Respondent Nos.3 and 4 cannot be termed as
barred by limitation, as the cause of action
arose only upon their coming to know of the
refusal order. In the absence of proper service,
the alleged finality of the refusal cannot be
sustained.
14.13. In this regard, he relies upon the decision of
this Court in the case of SRI. DEVEGOWDA
AND OTHERS Vs. SRI. ASHOKANAYAR AND
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OTHERS6, more particularly, para 12.9
thereof, which is reproduced here under for
easy reference.
"Thus, I am of the considered opinion that the
presumption under Section 27 would only arise,
if the article is dispatched to the proper address
of the addressee, the article is properly and duly
stamped and sent by RPAD. For the purpose of
raising this presumption, if these aspects are not
placed on record, then no such presumption
could be raised or invoked."
14.14. By relying on Devegowda he submits that the
said judgment authoritatively clarifies the
circumstances under which the presumption of
service under Section 27 of the General
Clauses Act, 1897 can be invoked.
14.15. In Devegowda, this Court examined the
scope of Section 27 of the General Clauses Act,
which provides that where a document is
required to be served by post, service shall be
deemed to be effected by properly addressing,
6
CRP.No.72/2024 DD 10.09.2024.
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prepaying and posting by registered post,
unless the contrary is proved. This Court held
that the statutory presumption does not arise
automatically. The party seeking to rely upon
the presumption must establish foundational
facts, namely:
14.15.1. That the article was properly
addressed to the correct address of
the addressee;
14.15.2. That it was duly stamped;
14.15.3. That it was sent by registered post
acknowledgment due (RPAD) or an
equivalent mode that ensures proof
of dispatch;
14.15.4. That dispatch particulars are
demonstrably available on record.
14.16. Only upon establishing these foundational facts
can the presumption under Section 27 be
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raised. In the absence of such proof, the
presumption cannot be invoked.
14.17. In the present case, the entire edifice of the
Petitioners' argument on limitation rests upon
the assertion that the refusal order dated
10.11.2000 was communicated to the father of
Respondent Nos.3 and 4 and/or his legal
representatives. However, according to him:
14.17.1. No postal receipt has been
produced.
14.17.2. No RPAD acknowledgment card is
on record.
14.17.3. No dispatch register extract showing
proper addressing has been placed
before the Court.
14.17.4. No material has been produced to
establish that the refusal order was
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in fact sent to the correct residential
address.
14.17.5. There is no documentary evidence
to demonstrate compliance with
statutory requirements for service.
14.18. The mere entry in Book-II or a bald assertion
in an affidavit is insufficient to attract the
presumption under Section 27. Unless it is
shown that the refusal order was properly
addressed, duly stamped, and dispatched by
registered post acknowledgment due, the
presumption of service cannot arise.
14.19. Limitation under Section 72 of the Registration
Act begins to run only from the date of
communication of the refusal order. If
communication itself is not established, there
being no knowledge, the computation of
limitation does not commence.
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14.20. Respondent Nos.3 and 4 have categorically
stated that neither their father nor they
received any such communication. In such
circumstances, the burden squarely lies on the
Petitioners and the authorities to establish due
service.
14.21. In the absence of proof of dispatch in
accordance with law, the refusal order cannot
be treated as having been communicated.
Therefore, the contention that the appeal was
barred by limitation is untenable.
14.22. He accordingly submits that the reliance placed
by the Petitioners on limitation is
misconceived, since the foundational
requirement of proving communication of the
refusal order has not been satisfied.
14.23. He relies upon the decision in the case of
STATE OF W.B. Vs. M.R.MONDAL AND
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ANOTHER7, more particularly, para 16
thereof, which is reproduced hereunder for
easy reference:
"16. The learned Judges of the Division Bench of
the High Court ought to have seen that there can
be no legal impediment for the Department to
make preparations ahead of the period of expiry
of the one year contract given in favour of the
plaintiff to facilitate the entrustment of the task of
collecting the toll in question for the period
subsequent thereto, to a newly selected
contractor at competitive rates. The Division
Bench further overlooked the vital legal
proposition that the Memorandum dated
11.3.1998 of the Joint Secretary cannot, per see,
have the legal consequence of bringing into
existence an extended period of contract and that
too for 30 years though said to be renewable
periodically every three years. On a proper
consideration of the Memorandum dated
11.3.1998, which was also stated to have been
never communicated to the plaintiff, and the
subsequent Memorandum dated 24.8.1999 of the
very Joint Secretary, who issued the earlier
Memo, that Memorandum dated 11.3.1998
contained only certain proposals and not any final
orders of extension of renewal of the contract as
assumed in the judgment under challenge.
Paragraph 15 of the Memorandum dated
11.3.1998, which has been relied upon as the
basis for claiming an extended period of contact,
itself has been misconstrued out of context
though by itself, it cannot have the effect of
bringing into existence such an extended term of
7
(2001) 8 SCC 443
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contract to warrant or justify the grant of the
directions of the nature in the present case. Even
assuming for consideration without accepting that
paragraph 15 of the Memorandum dated
11.3.1998 had any effect, it can by no stretch of
imagination be construed to bring into existence
ipso facto an extended period of contract beyond
the one year period for which alone the contract
had been given to the plaintiff in this case. An
order passed but retained in file without being
communicated to the plaintiff can have no force or
authority whatsoever and the same has no valid
existence in the eye of law or claim to have come
into operation and effect. No reliance can be
placed on the same to even assert a claim based
on its contents. If its utility depended upon a
decision t be taken on the performance of the
plaintiff by the Competent Authority, neither the
authority could be compelled to take a decision
nor any concrete rights could be said to have
been acquired by the plaintiff, to warrant the
grant of the type of directions given in this case.
It is really surprising that the discretionary power
to grant injunction, be it of prohibitory or
mandatory nature, has been availed of to bring
into existence and force upon the State a new
contract, which could never have been the
intention of the State itself."
14.24. By relying on M.R. Mondal, his submission is
that an order that is not communicated has no
legal efficacy. In M.R. Mondal, the Hon'ble
Supreme Court was dealing with the question
whether a memorandum issued internally by
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the Government, which was never
communicated to the concerned party, could
create enforceable rights or extend contractual
obligations and in categorical terms held that:
14.24.1. An order passed but retained in file,
without being communicated to the
concerned party, has no force or
authority in law.
14.24.2. Such an order cannot be said to
have come into operation.
14.24.3. It has no valid existence in the eye
of law.
14.24.4. No rights can be claimed on the
basis of such an uncommunicated
order.
14.25. The Hon'ble Supreme Court emphasised that
communication is an essential component of a
legally effective order. Until an order is made
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known to the person affected, it does not
attain operative force. Mere existence in
departmental files does not confer legal validity
or enforceability.
14.26. Learned Senior Counsel submits that the
principle enunciated in M.R. Mondal squarely
applies to the present matter. In the instant
case:
14.26.1. The refusal order dated 10.11.2000
is said to have been entered in
Book-II.
14.26.2. The Petitioners rely upon such entry
and an affidavit to contend that the
order was issued.
14.26.3. However, there is no cogent proof
that the refusal order was ever
communicated to the father of
Respondent Nos.3 and 4.
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14.27. He submits that unless communication of the
refusal order is established:
14.27.1. The order cannot be treated as
having come into force.
14.27.2. Limitation cannot begin to run.
14.27.3. No finality can attach to such
refusal.
14.28. An internal entry in the records of the Sub-
Registrar, if not communicated to the
concerned party, remains in the realm of
administrative notation. It does not crystallize
into a legally operative decision.
14.29. The entire edifice of the Petitioners' argument
on limitation presupposes valid communication
of the refusal order. If, as laid down in M.R.
Mondal, an uncommunicated order has no
legal existence, then:
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14.29.1. The refusal order cannot be treated
as effective.
14.29.2. The statutory period of thirty days
under Section 72 cannot
commence.
14.29.3. The appeal filed by Respondent
Nos.3 and 4 cannot be dismissed as
barred by limitation.
14.30. He relies upon the decision in the case of THE
ASSISTANT TRANSPORT COMMISSIONER,
LUCKNOW AND OTHERS V. NAND SINGH8,
more particularly, para 2 thereof, which is
reproduced hereunder for easy reference.
"2. In our opinion, the judgment of the High Court
is right and cannot be interfered with by this
Court. Apart from the reasons given by this Court
in the earlier judgment to the effect that the order
must be made known either directly or
constructively to the party affected by the order in
order to enable him to prefer an appeal if he so
likes, we may give one more reason in our
judgment and that is this: It is plain that mere
8
AIR 1980 SC 15
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writing an order in the file kept in the office of the
Taxation Officer is no order in the eye of law in the
sense of affecting the rights of the parties for
whom the order is meant. The order must be
communicated either directly or constructively in
the sense of making it known, which may make it
possible for the authority to say that the party
affected must be deemed to have known the
order. in a given case, the date of putting the
order in communication under certain
circumstances may be taken to be the date of the
communication of the order or the date of the
order but ordinarily and generally speaking, the
order would be effective against the person
affected by it only when it comes to his knowledge
either directly or constructively, otherwise not. On
the facts stated in the judgment of the High Court,
it is clear that the respondent had no means to
know about the order of the Taxation Officer
rejecting his prayer until and unless he received
his letter on October 29, 1964. Within the meaning
of Section 15 of the U.P. Motor Vehicles Taxation
Act that was the date of the order which gave the
starting point for preferring an appeal within 30
days of that date."
14.31. He submits that in Nand Singh, the Hon'ble
Supreme Court considered whether an order
recorded in the office file of a statutory
authority, but not communicated to the
affected party, could be treated as operative
for purposes of limitation. The Hon'ble
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Supreme Court held in clear and emphatic
terms that:
14.31.1. Mere writing of an order in the file is
not an order in the eye of law so far
as it affects the rights of the
parties.
14.31.2. An order becomes effective only
when it is made known to the
person affected, either directly or
constructively.
14.31.3. Limitation for preferring an appeal
commences only when the order
comes to the knowledge of the
affected party.
14.31.4. Knowledge may be actual or
deemed (constructive), but there
must be some legally sustainable
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basis to hold that the party had an
opportunity to know the order.
14.32. The Hon'ble Supreme Court observed that
unless the order is communicated in such a
manner as to enable the affected party to
challenge it, it cannot be treated as having
legal effect. Thus, communication is not a
mere procedural formality; it is a condition
precedent to the legal efficacy of an order.
14.33. The Petitioners' entire case on limitation rests
on the premise that the refusal order dated
10.11.2000 was communicated to the father of
Respondent Nos.3 and 4. In the absence of
proof of communication, the refusal order
remained confined to the office file of the Sub-
Registrar. Applying the ratio in Nand Singh,
such an order cannot be treated as legally
effective against the affected party Learned
Senior Counsel further submits that knowledge
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can be either direct (actual receipt) or
constructive (deemed knowledge by proper
service). However, neither has been
established in the present case. Respondent
Nos.3 and 4 have categorically stated that:
14.33.1. Their father did not receive any
such notice or refusal order.
14.33.2. They themselves had no knowledge
of such order until much later.
14.34. Unless the authorities establish proper dispatch
and service in accordance with law,
constructive knowledge cannot be presumed.
14.35. Under Section 72 of the Registration Act,
limitation for filing appeal must necessarily be
computed from the date on which the refusal
order is communicated or comes to the
knowledge of the affected party. In the present
case, as service of notice and communication
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of the refusal order have not been established
either directly or constructively, the contention
that Respondent Nos.3 and 4 are barred by
limitation is unsustainable. He accordingly
submits that the appeal was competent and
that the plea of limitation deserves to be
rejected.
14.36. He relies upon the decision in the case of
SARAL WIRE CRAFT PRIVATE LIMITED VS.
COMMISSIONER OF CUSTOMS, CENTRAL
EXCISE AND SERVICE TAX AND OHTERS9,
more particularly, para 9 thereof, which is
reproduced hereunder for easy reference:
9. It is in these circumstances that we are of the
clear conclusion that a miscarriage of justice has
taken place, in that the authorities/courts below
have failed to notice the specific language
of Section 37-C(1)(a) of the Act which requires
that an order must be tendered on the person
concerned or his authorised agent, in other words,
on no other person, to ensure efficaciousness. We
must immediately recall the decision in Taylor vs.
Taylor, (1875) LR 1 Ch. D 426, rendered venerable
9
(2015) 14 SCC 523
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by virtue of its jural acceptance and applicable for
over a century. It was approved by the Privy
Council in Nazir Ahmad v. King Emperor (1935-36)
63 IA 372 and was subsequently applied in Rao
Shiv Bahadur Singh v. State of Vindhya
Pradesh, AIR 1954 SC 322, State of UP v. Singhara
Singh AIR 1964 SC 358, Babu Verghese v. Bar
Council of Kerala (1999) 3 SCC 422 and more
recently in Hussein Ghadially v. State of
Gujarat (2014) 8 SCC 425. As observed by this
Court in Babu Verghese(SCC p.432, para 31)
"31.it is the basic principle of law long settled that if
the manner of doing a particular act is prescribed
under any statute, the act must be done in that
manner or not at all."
14.37. Relying on Saral Wire Craft Private he
submits that in Saral Wire Craft, the
Hon'ble Supreme Court was considering
Section 37-C(1)(a) of the Central Excise Act,
which prescribed the manner in which orders
are to be served. The provision required that
an order must be tendered to the person
concerned or to his authorised agent.
14.38. The Hon'ble Supreme Court observed that
where a statute prescribes the manner in
which an act is to be performed, it must be
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performed in that manner or not at all. The
Hon'ble Supreme Court reiterated the long-
standing principle laid down in Taylor v.
Taylor, approved in Nazir Ahmad v. King
Emperor and consistently followed thereafter,
that statutory requirements governing
procedure are mandatory and must be strictly
complied with.
14.39. The Hon'ble Supreme Court held that failure to
adhere to the prescribed mode of service
vitiates the action, since communication of the
order is foundational to its legal efficacy.
14.40. Learned Senior Counsel submits that the
Registration Act, read with the relevant Rules,
imposes a statutory duty upon the Sub-
Registrar to communicate an order of refusal
to the concerned party. He submits that:
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14.40.1. The refusal order dated 10.11.2000
was required to be communicated in
the manner prescribed.
14.40.2. Communication must be effected in
accordance with law.
14.40.3. The burden lies upon the authority
to establish that such
communication was properly made.
14.41. By the time proceedings were being pursued
subsequently, the father of Respondent Nos.3
and 4 had expired on 03.08.2002. If the
authorities intended to rely upon the refusal
order and its consequences, it was incumbent
upon them to communicate the order to the
legal representatives in accordance with law.
14.42. Without prejudice to the broader contention he
submits that Respondent Nos.3 and 4 were not
impleaded in earlier proceedings after the
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death of their father, thereby depriving them
of an opportunity to participate. Learned
Senior Counsel emphasises that the principle
reiterated in Saral Wire Craft is of general
application:
14.42.1. Where a statute prescribes the
mode of communication,
14.42.2. The authority must strictly adhere
to that mode,
14.42.3. Non-compliance renders the action
ineffective.
14.43. Mere internal entry, assumption of dispatch, or
recital in an affidavit does not satisfy statutory
requirements. If the law mandates service
upon the concerned person or his authorised
representative, it must be shown that service
was effected in that precise manner.
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14.44. He therefore submits that in the absence of
strict compliance, the refusal order cannot be
treated as having been effectively
communicated. Consequently, limitation
cannot be computed from an uncommunicated
or improperly served order. The refusal order
dated 10.11.2000 cannot be relied upon to
non-suit Respondent Nos.3 and 4 on the
ground of limitation, as the mandatory
requirement of communication in the
prescribed manner has not been satisfied.
14.45. Though the refusal order bears the date
10.11.2000, the same was never
communicated to Respondent Nos.3 and 4. In
the absence of communication, limitation
cannot begin to run. He submits that
Respondent Nos.3 and 4 became aware of the
refusal only much later, and the appeal was
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filed promptly thereafter. Hence, there is no
delay in the eye of law.
14.46. Learned Senior Counsel further submits that
Respondent Nos.3 and 4 are deaf and dumb.
In such circumstances:
14.46.1. The presumption of constructive
knowledge cannot be lightly drawn.
14.46.2. The standard of proof for
establishing service or awareness
must be stricter.
14.46.3. Mere assumption of knowledge
based on internal record entries is
impermissible.
14.47. He submits that constructive knowledge
presupposes circumstances where a reasonable
person could be deemed to have become
aware. In the case of persons with
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communication disabilities, such presumption
must be applied with caution.
14.48. Without prejudice to the above contention that
there is in fact no delay, learned Senior
Counsel submits that Section 5 of the
Limitation Act, 1963 is applicable even to
proceedings arising under special statutes,
unless expressly excluded. He submits that:
14.48.1. The Limitation Act applies to special
statutes by virtue of Section 29(2).
14.48.2. Unless the special statute expressly
bars the application of Section 5,
condonation of delay remains
available.
14.48.3. The Registration Act does not
contain any express exclusion of the
Limitation Act.
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14.49. He therefore contends that even assuming
there was delay, the appellate authority was
competent to condone the same upon
sufficient cause being shown.
14.50. In this regard, he relies upon the decision in
the case of MANGU RAM Vs. MUNICIPAL
CORPORATION OF DELHI10, More
particularly, para 6 thereof, which is
reproduced hereunder for easy reference.
"6. The question which arose for consideration
in Kaushalya Rani's case(supra) was apparently
the same as in the present case, namely, whether
the time limit of sixty days prescribed in sub-
section (4) of Section 417 for making an
application for special leave under sub-section (3)
of that section could be extended by invoking
Section 5 of the Indian Limitation Act, 1908. This
Court held that sub-section (4) of Section 417 laid
down a special period of limitation for an
application by a complainant for special leave to
appeal against an order of acquittal and "in that
sense, this rule of sixty days bar is a special law,
that is to say, a rule of limitation which is
specially provided for in the Code itself which
does not ordinarily provide for a period of
limitation for appeals or applications. This Court
pointed out that since "the special rule of
10
(1976) 1 SCC 392
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limitations laid down in sub-section (4) of Section
417 of the Code is a special law of limitation
governing appeals by private prosecutors. There
is no difficulty in coming to the conclusion that
Section 5 of the Limitation Act is wholly out of the
way, in view of section 29(2)(b) of the Limitation
Act." The applicability of Section 5 of the Indian
Limitation Act, 1908 was thus held to be excluded
in determining the period of limitation of sixty
days prescribed in sub-section (4) of Section 417
by reason of Section 29(2)(b) of that Act, which
provided in so many terms that "for the purpose
of determining any period of limitation prescribed
for any suit, appeal or application by any special
or local law, the remaining provisions of this Act"
that is sections other than Sections
4, 9 to 18 and 22 "shall not apply." Now, there
can be no doubt that if the present case
were governed by the Indian Limitation Act, 1908,
this decision would wholly apply and the Municipal
Corporation of Delhi would not be entitled to
invoke the aid of Section 5 of that Act for the
purpose of extending the period of limitation of
sixty days prescribed in sub-section (4) of Section
417 for an application by a complainant for special
leave to appeal against an order of acquittal. But
the Indian Limitation Act, 1908 has clearly no
application in the present case, since that Act is
repealed by the Limitation Act, 1963 which came
into force with effect from January 1, 1964 and
the present case must, therefore, be decided by
reference to the provisions of the Limitation Act,
1963."
14.51. Learned Senior Counsel, in support of his
submission that Section 5 of the Limitation Act
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is applicable even in proceedings arising under
special statutes unless expressly excluded,
places reliance upon the decision of the
Hon'ble Supreme Court in Mangu Ram v.
Municipal Corporation of Delhi, In Mangu
Ram, the Supreme Court examined whether
Section 5 of the Limitation Act could be
invoked to extend the period prescribed under
a special provision of the Code of Criminal
Procedure for filing an application for special
leave to appeal against acquittal.
14.52. The Hon'ble Supreme Court distinguished
between the position under the Indian
Limitation Act, 1908 and the Limitation Act,
1963. Under the 1908 Act, Section 29(2)(b)
expressly excluded the application of Section 5
in cases where a special or local law prescribed
its own period of limitation.
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14.53. However, under the Limitation Act, 1963, the
scheme was materially altered. Section 29(2)
of the 1963 Act provides that where a special
or local law prescribes a period of limitation
different from the period prescribed in the
Schedule, the provisions of Sections 4 to 24
(which include Section 5) shall apply, unless
expressly excluded by such special or local law.
The Hon'ble Supreme Court held that in the
absence of express exclusion, Section 5 would
apply even to proceedings governed by a
special statute. Thus, the decision clarified that
14.53.1. The mere fact that a statute
prescribes a special period of
limitation does not automatically
exclude Section 5.
14.53.2. Exclusion must be express or clearly
implied.
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14.53.3. Under the 1963 Act, the legislative
intent is to make Section 5 broadly
applicable unless specifically barred.
14.54. Learned Senior Counsel submits that the
Registration Act prescribes a thirty-day period
under Section 72 for filing an appeal against
refusal of registration. However:
14.54.1. The Registration Act does not
contain any express provision
excluding the application of Section
5 of the Limitation Act.
14.54.2. There is no language indicating that
delay cannot be condoned.
14.54.3. There is no non obstante clause
overriding the Limitation Act.
14.55. He therefore submits that by virtue of Section
29(2) of the Limitation Act, 1963, Section 5
applies to proceedings under Section 72 of the
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Registration Act. Even assuming, without
admitting, that the appeal was filed beyond
thirty days from knowledge of the refusal
order, the District Registrar had the power to
condone delay upon sufficient cause being
shown.
14.56. Learned Senior Counsel submits that the
authorities relied upon by the Petitioners,
which contend that Section 5 is inapplicable,
either:
14.56.1. Concern statutes which expressly
exclude condonation; or
14.56.2. Were decided in a context where
the statutory scheme clearly
indicated legislative intent to bar
extension.
14.57. He also relies upon the decision in the case of
PATEL BROTHERS Vs. STATE OF ASSAM
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AND OTHERS11, more particularly, para 16
thereof, which is reproduced hereunder for
easy reference.
"16.In the process, the Court also explained the
expression 'expressly excluded' appearing
in Section 29(2) of the Limitation Act, 1963 in the
following manner:
"34. Though, an argument was raised based
on Section 29 of the Limitation Act, even
assuming that Section 29(2) would be attracted,
what we have to determine is whether the
provisions of this Section are expressly excluded
in the case of reference to the High Court.
35. It was contended before us that the words
"expressly excluded" would mean that there must
be an express reference made in the special or
local law to the specific provisions of
the Limitation Act of which the operation is to be
excluded. In this regard, we have to see the
scheme of the special law which here in this case
is the Central Excise Act. The nature of the
remedy provided therein is such that the
legislature intended it to be a complete code by
itself which alone should govern the several
matters provided by it. If, on an examination of
the relevant provisions, it is clear that the
provisions of the Limitation Act are necessarily
excluded, then the benefits conferred therein
cannot be called in aid to supplement the
provisions of the Act. In our considered view, that
even in a case where the special law does not
exclude the provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it would
nonetheless be open to the court to examine
whether and to what extent, the nature of those
provisions or the nature of the subject-matter and
11
(2017) 2 SCC 350
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scheme of the special law exclude their operation.
In other words, the applicability of the provisions
of the Limitation Act, therefore, is to be judged
not from the terms of the Limitation Act but by
the provisions of the Central Excise Act relating to
filing of reference application to the High Court."
14.58. Learned Senior Counsel placing reliance upon
the judgment of the Hon'ble Supreme Court in
Patel Brothers v. State of Assam and
Others, elaborates upon the interpretation of
Section 29(2) of the Limitation Act, 1963 and
the expression "expressly excluded". In Patel
Brothers, the Supreme Court examined
whether the provisions of Sections 4 to 24 of
the Limitation Act would apply to a special
statute, in that case the Central Excise Act.
The Court explained that:
14.58.1. The phrase "expressly excluded"
does not necessarily require a
specific reference in the special
statute stating that the Limitation
Act shall not apply.
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14.58.2. The Court must examine the
scheme, structure, and subject-
matter of the special enactment.
14.58.3. If, upon such examination, it is
evident that the special law
constitutes a complete code and the
legislative intent is to exclude the
operation of the Limitation Act, then
such exclusion can be inferred.
14.58.4. Conversely, unless such exclusion is
clearly discernible from the
statutory scheme, the provisions of
Sections 4 to 24 of the Limitation
Act would apply by virtue of Section
29(2).
14.59. The Hon'ble Supreme Court clarified that the
question is not to be decided by reading the
Limitation Act in isolation, but by analysing
whether the special law, by necessary
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implication, excludes its application. Learned
Senior Counsel submits that when Section 72
of the Registration Act is examined:
14.59.1. It prescribes a period of thirty days
for filing an appeal.
14.59.2. It does not contain any provision
stating that delay cannot be
condoned.
14.59.3. It does not declare that the
Limitation Act is inapplicable.
14.59.4. It does not contain language
indicating finality beyond the
prescribed period.
14.59.5. It does not create a rigid outer
boundary beyond which the remedy
is extinguished.
14.60. He submits that the Registration Act cannot be
said to constitute a complete code in the sense
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of excluding the operation of Sections 4 to 24
of the Limitation Act. The statute merely
prescribes a limitation period; it does not
expressly or impliedly bar condonation. Thus,
applying the principle laid down in Patel
Brothers, Section 5 of the Limitation Act
would apply to proceedings under Section 72,
since there is no express or necessary
exclusion.
14.61. Learned Senior Counsel further submits that
even assuming there was delay, the principles
governing condonation of delay are well
settled. Courts have consistently held that:
14.61.1. The expression "sufficient cause"
should receive a liberal
construction.
14.61.2. Technicalities should not defeat
substantial justice.
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14.61.3. When no malafides or deliberate
inaction are shown, delay ought
ordinarily to be condoned.
14.62. He submits that Respondent Nos.3 and 4,
being illiterate and differently abled persons,
and having no knowledge of the refusal order,
cannot be accused of deliberate delay. If delay
is found, it deserves to be condoned in the
interest of justice. Learned Senior Counsel
accordingly submits that:
14.62.1. Section 29(2) of the Limitation Act
makes Sections 4 to 24 applicable
to special statutes unless excluded.
14.62.2. The Registration Act does not
expressly or impliedly exclude
Section 5.
14.62.3. Therefore, the appellate authority
was competent to condone delay.
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14.62.4. Even otherwise, the explanation
furnished constitutes sufficient
cause.
14.62.5. The plea of limitation should not
defeat substantive rights.
14.63. He therefore contends that the appeal
preferred by Respondent Nos.3 and 4 was
maintainable and rightly entertained.
14.64. In this regard, he relies upon the decision in
the case of DHIRAJ SINGH (DEAD)
THROUGH LEGAL REPRESENTATIVES AND
OTHERS Vs. STATE OF HARYANA AND
OTHERS12, more particularly, para 16 thereof,
which is reproduced hereunder for easy
reference.
"16. The principles regarding condonation of
delay particularly in land acquisition matters,
have been enunciated in Collector(LA) V.
Katiji, 1987(2) SCC 107, wherein it is stated in
para 3 as under:-
12
(2014) 14 SCC 127
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"3. The legislature has conferred the power to
condone delay by enacting Section 5 of the Limitation
Act of 1963 in order to enable the courts to do
substantial justice to parties by disposing of matters
on "merits". The expression "sufficient cause"
employed by the legislature is adequately elastic to
enable the courts to apply the law in a meaningful
manner which subserves the ends of justice - that
being the life-purpose for the existence of the
institution of courts. It is common knowledge that
this Court has been making a justifiably liberal
approach in matters instituted in this Court. But the
message does not appear to have percolated down to
all the other courts in the hierarchy. And such a
liberal approach is adopted on principle as it is
realised that:
(1). Ordinarily a litigant does not stand to benefit
by lodging an appeal late.
(2). Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on
merits after hearing the parties.
(3). "Every day's delay must be explained" does
not mean that a pedantic approach should be made.
Why not every hour's delay, every second's delay?
The doctrine must be applied in a rational common
sense pragmatic manner.
(4). When substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in
injustice being done because of a non-deliberate
delay.
(5). There is no presumption that delay is
occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant
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does not stand to benefit by resorting to delay. In
fact he runs a serious risk.
(6). It must be grasped that judiciary is respected
not on account of its power to legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so."
14.65. Learned Senior Counsel in further support of
his plea that the appeal cannot be non-suited
on technical grounds of limitation, places
reliance upon the judgment of the Hon'ble
Supreme Court in Dhiraj Singh (Dead)
through Legal Representatives and Others
v. State of Haryana and Others. In Dhiraj
Singh, the Supreme Court referred to and
reaffirmed the well-settled principles laid down
in Collector (Land Acquisition) v. Katiji,
emphasising the need for a liberal and justice-
oriented approach in matters of condonation of
delay. The Hon'ble Supreme Court reiterated
that:
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14.65.1. Section 5 of the Limitation Act has
been enacted to enable courts to do
substantial justice.
14.65.2. The expression "sufficient cause" is
elastic and must receive a
meaningful construction.
14.65.3. Refusal to condone delay may
defeat meritorious claims at the
threshold.
14.65.4. When substantial justice and
technical considerations are in
conflict, substantial justice must
prevail.
14.65.5. There is no presumption that delay
is deliberate or mala fide.
14.65.6. The judiciary exists not to legalise
injustice on technical grounds but to
remove injustice.
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14.66. The Hon'ble Supreme Court cautioned against
a pedantic approach in computing delay and
emphasised that procedural rules should serve
justice, not obstruct it. Learned Senior Counsel
submits that even assuming for argument's
sake that the appeal was filed beyond the
prescribed thirty-day period, the explanation
furnished by Respondent Nos.3 and 4
constitutes sufficient cause. He submits that:
14.66.1. Respondent Nos.3 and 4 came to
know of the refusal order only in
July 2005.
14.66.2. They filed an affidavit in August
2005 explaining the circumstances.
14.66.3. They acted promptly upon gaining
knowledge.
14.66.4. There was no deliberate delay.
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14.66.5. They stand to gain nothing by
prolonging proceedings.
14.67. He emphasises that Respondent Nos.3 and 4
are persons with disabilities (deaf and dumb),
and that their socio-economic background
must also be borne in mind while examining
delay.
14.68. According to him, limitation is not meant to
destroy substantive rights but to ensure
diligence. Where a party has acted bona fide
and without mala fides, courts and authorities
must adopt a liberal approach.
14.69. The doctrine of limitation is procedural in
nature. It regulates the remedy but does not
extinguish substantive rights unless the statute
expressly so provides.
14.70. He contends that the appellate authority was
justified in preferring a decision on merits
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rather than shutting the doors on Respondent
Nos.3 and 4 on a technical plea of delay. He
further submits that the explanation offered
was reasonable and plausible, and there is no
material to suggest that the delay was
intentional or motivated.
14.71. He relies upon the decision in the case of
M.P.STEEL CORPORATION Vs.
COMMISSIONER OF CETNRAL EXCISE13,
more particularly, para 35 thereof, which is
reproduced hereunder for easy reference.
35. This judgment is in line with a large number of
authorities which have held that Section 14 should be
liberally construed to advance the cause of justice -
see: Shakti Tubes Ltd. v. State of Bihar, (2009) 1
SCC 786 and the judgments cited therein. Obviously,
the context of Section 14 would require that the term
"court" be liberally construed to include within it
quasi-judicial Tribunals as well. This is for the very
good reason that the principle of Section 14 is that
whenever a person bonafide prosecutes with due
diligence another proceeding which proves to be
abortive because it is without jurisdiction, or
otherwise no decision could be rendered on merits,
the time taken in such proceeding ought to be
excluded as otherwise the person who has
approached the Court in such proceeding would be
13
(2015) 7 SCC 58
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penalized for no fault of his own. This judgment does
not further the case of Shri Viswanathan in any way.
The question that has to be answered in this case is
whether suits, appeals or applications referred to by
the Limitation Act are to be filed in courts. This has
nothing to do with "civil proceedings" referred to
in Section 14 which may be filed before other courts
or authorities which ultimately do not answer the
case before them on merits but throw the case out
on some technical ground. Obviously the word
"court" in Section 14 takes its colour from the
preceding words "civil proceedings". Civil proceedings
are of many kinds and need not be confined to suits,
appeals or applications which are made only in courts
stricto sensu. This is made even more clear by the
explicit language of Section 14 by which a civil
proceeding can even be a revision which may be to a
quasi-judicial tribunal under a particular statute.
Whether the Principle of Section 14 would apply to an
appeal filed under Section 128 Customs Act?."
14.72. Learned Senior Counsel placing reliance upon
the judgment of the Hon'ble Supreme Court in
M.P. Steel Corporation v. Commissioner of
Central Excise, contends that the provisions
of the Limitation Act must receive a liberal and
purposive construction. In M.P. Steel
Corporation, the Hon'ble Supreme Court
considered the scope and applicability of
Section 14 of the Limitation Act, 1963. Section
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14 enables exclusion of time spent in bona fide
prosecuting proceedings before a court or
authority which ultimately proves to be without
jurisdiction or otherwise incapable of
adjudicating the matter on merits. The Hon'ble
Supreme Court held that:
14.72.1. Section 14 must be liberally
construed to advance the cause of
justice.
14.72.2. The expression "court" occurring in
Section 14 must not be narrowly
interpreted.
14.72.3. The term would include quasi-
judicial tribunals and statutory
authorities where civil proceedings
are pursued.
14.72.4. The underlying principle of Section
14 is that a litigant acting bona fide
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and with due diligence should not
be penalised for having approached
an incorrect forum.
14.73. The Hon'ble Supreme Court observed that the
provision is designed to ensure that a party
who has pursued remedies diligently does not
suffer on account of technical defects or
jurisdictional errors.
14.74. If the authorities failed to communicate refusal
or failed to complete the process in accordance
with law, Respondent Nos.3 and 4 cannot be
penalised for such administrative lapses.
14.75. Respondent Nos.3 and 4 have been
consistently asserting their rights under the
sale deed executed in 1988. The non-
registration occurred due to statutory
requirements then prevailing under Section
230A of the Income Tax Act. Once that
provision stood omitted, the impediment
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ceased. He submits that if limitation is applied
in a rigid and technical manner, the
substantive rights flowing from a concluded
sale transaction would be extinguished without
adjudication on merits. According to him,
justice demands that the matter be examined
substantively rather than dismissed on
technical grounds of limitation.
14.76. Learned Senior Counsel next addresses the
legality of the refusal itself and submits that
the Sub-Registrar could not have refused
registration of the document once it was duly
executed and presented in compliance with the
provisions of the Registration Act, 1908. His
submission is that the function of the Sub-
Registrar at the stage of registration is
administrative and procedural in nature. The
Sub-Registrar is not vested with authority to
adjudicate disputes relating to title, validity of
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transaction, or competing claims. His
jurisdiction is confined to ensuring compliance
with the procedural requirements stipulated
under the Registration Act. If:
14.76.1. The document is presented by the
executant,
14.76.2. The executant admits execution,
14.76.3. The document is duly stamped,
14.76.4. The formalities under Sections 32,
34 and allied provisions of the
Registration Act are complied with,
then, in the absence of any specific statutory
prohibition, the Sub-Registrar cannot refuse
registration.
14.77. In this regard, he relies upon the decision of
this Court in the case of S. SREENIVASA RAO
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Vs. SUB-REGISTRAR (HEADQAURTERS)14,
more particularly, para 6 thereof, which is
reproduced hereunder for easy reference.
"6. Coming to the next question as to whether the
Registrar of Societies could have issued a direction to
the Sub-Registrar not to register a particular
document, learned Counsel for the respondents - 3 to
5, 7 and 10, could not point out any provision either
in the Karnataka Societies Registration Act, 1960 or
the Rules framed thereunder or in the Registration
Act, 1908, which authorised the Registrar of Societies
to make such a direction. We also find no provision in
the Registration Act, 1908 which obliges the Sub-
Registrar to act upon any such direction and/or to
investigate at the stage of registration of a document
itself, the title of the party executing the document.
We are, therefore of the view that if a document is
presented for registration by the executant, and in
doing so, the executant complies with all the
provisions of Registration Act, 1908, it is not open to
the Sub-Registrar to refuse registration of the
document unless he exercises that discretion
pursuant to any provision in the Registration Act,
1908 or any other law or Rule having the force of
law. The mere registration of a document is by itself
not a proof of its validity, neither does it follow that
the executant had title to the property, he seeks to
dispose of under the document. Matters such as
relating to title have to be decided before the
appropriate forum. If any person is interested in
contending that any particular document executed
and registered under the Registration Act, 1908 is
invalid or illegal for any reason whatsoever, he !s
certainly at liberty to question the validity of the
14
ILR 1990 KAR 3740
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document, the title of the executant, and such other
questions before the proper forum in an appropriate
proceeding. Similarly, if it is sought to be contended
in the instant case that the Trust Deed has been
executed in contravention of the provision of
the Karnataka Societies Registration Act, 1960 any
person aggrieved may challenge the validity of the
Trust Deed in a duly constituted proceeding. There is,
however, no warrant for the proposition that the
registration of the document itself can be prevented
by directing the Sub-Registrar not to register the
document. We are therefore of the view that the
learned Single Judge was in error in holding that the
direction issued by the Registrar of Societies to the
Sub-Registrar was competent and consequently
Annexure-D was also valid."
14.78. Learned Senior Counsel placing reliance on S.
Sreenivasa Rao v. Sub-Registrar
(Headquarters), submits that this Court in
the said decision has held that:
14.78.1. There was no provision empowering
the Registrar of Societies to direct
the Sub-Registrar not to register a
document.
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14.78.2. The Sub-Registrar is not required to
investigate title at the stage of
registration.
14.78.3. Registration of a document does not
confer title nor does it validate an
otherwise invalid transaction.
14.78.4. Questions relating to title or legality
must be decided in appropriate civil
proceedings.
14.78.5. It is impermissible to prevent
registration by administrative
directions when statutory
requirements are otherwise
satisfied.
14.79. His submission is that this Court categorically
observed that once a document is presented
and statutory formalities are complied with,
refusal cannot be justified unless supported by
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a provision of law. Learned Senior Counsel
submits that in the present matter:
14.79.1. The sale deed was executed.
14.79.2. It was presented for registration.
14.79.3. There was no denial of execution.
14.79.4. The refusal was solely on account of
non-production of a certificate
under Section 230A of the Income
Tax Act.
14.80. He submits that once Section 230A stood
omitted with effect from 01.06.2001, the
statutory impediment ceased to exist. The
Sub-Registrar, therefore, could not continue to
withhold registration indefinitely.
14.81. He contends that the refusal dated 10.11.2000
was itself legally unsustainable once the
underlying statutory requirement stood
removed. The Sub-Registrar's role is not to
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determine substantive rights but merely to
ensure procedural compliance.
14.82. Learned Senior Counsel emphasises that
registration does not determine title. If the
Petitioners dispute the validity of the sale deed
or the mental capacity of the executant, they
are at liberty to challenge the same before the
appropriate civil court. However, the
registration process cannot be blocked on such
grounds.
14.83. He submits that the reasoning in S.
Sreenivasa Rao makes it clear that the Sub-
Registrar cannot assume powers not conferred
by statute, nor can he refuse registration on
grounds extraneous to the Registration Act.
14.84. He relies upon the decision in the case of
MOHAN SHET VS. STATE OF
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KARNATAKA15, more particularly, paras 3 and
10 thereof, which is reproduced hereunder for
easy reference.
"3. The under-valuation of an instrument
produced for registration is taken care of
by Section 45A of the Karnataka Stamp Act,
1957. The said provision state that, while
registering any instrument, if the registering
officer has reason to believe that the market
value of the property has not been truly set forth
in the instrument, he may refer the same to the
Deputy Commissioner for determination of the
market value after registering such an
instrument. Section 45A, therefore, does not
empower the registering officer to decline to
register the document on the ground that the
market value has not been truly disclosed in the
deed in question. He should have reason to
believe that the property has not been properly
valued and on the basis of this reason, he should
refer the document for proper valuation after
registering the document. The Deputy
Commissioner shall have to proceed to determine
the market value of the property as provided in
the said provision. The power vested in the
registering officer to make a reference is not an
arbitrary power but a power to be exercised,
provided he has valid reason to believe that the
property has been under-valued. The existence of
a reason is the foundation for exercising the
power under Section 45A. This aspect shall have
to be borne in mind while considering the validity
of the action taken by the second respondent in
the instant case.
15
ILR 1993 KAR 2906
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10. In the circumstances of this case, the second
respondent had no competence to reject the
registration of the document only on the ground
that the certificate under section 230A was not
produced. The impugned order shall have to be
set aside and it is so set aside. The respondent is
directed to proceed according to law and register
the document unless there is any other
impediment against registration."
14.85. Learned Senior Counsel further relies upon the
decision of this Court in Mohan Shet v. State
of Karnataka, in support of his submission
that the Sub-Registrar had no jurisdiction to
refuse registration of the document on the
ground urged. In Mohan Shet, this Court
examined the scope of Section 45A of the
Karnataka Stamp Act, 1957, which deals with
under-valuation of property in instruments
presented for registration. This Court held
that:
14.85.1. If the registering officer has reason
to believe that the market value has
not been correctly disclosed, he
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may refer the document to the
Deputy Commissioner.
14.85.2. The document must nevertheless be
registered.
14.85.3. The Sub-Registrar has no power to
refuse registration on the ground of
suspected under-valuation.
14.85.4. The determination of market value
is to be undertaken separately by
the competent authority.
14.86. The Court emphasised that the registering
officer's role is not adjudicatory in nature with
respect to substantive rights or valuation
disputes. His duty is to register the document
if the statutory requirements are complied
with, and if necessary, make a reference for
valuation. The Sub-Registrar had no
competence to reject registration solely on the
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ground that a certificate under Section 230A of
the Income Tax Act had not been produced,
and directed registration unless there was any
other impediment.
14.87. Learned Senior Counsel submits that the
principle emerging from Mohan Shet is that:
14.87.1. The power of the Sub-Registrar to
refuse registration is strictly
circumscribed.
14.87.2. Refusal must be traceable to a
statutory provision.
14.87.3. The Sub-Registrar cannot enlarge
his jurisdiction.
14.87.4. In the present case:
14.87.5. The document was duly executed.
14.87.6. It was presented for registration.
14.87.7. Execution was not denied.
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14.87.8. The refusal was solely on the
ground of non-production of a
certificate under Section 230A of
the Income Tax Act.
14.88. He submits that Section 230A was
subsequently omitted with effect from
01.06.2001. Once that statutory requirement
stood removed, the impediment to registration
ceased to exist.
14.89. He further submits that even under the Stamp
Act framework, suspected under-valuation is
not a ground for refusal; it only authorises a
reference after registration. Learned Senior
Counsel emphasises that even where a power
of reference exists (as under Section 45A), it
must be exercised upon existence of valid
"reason to believe" and not arbitrarily. Thus,
the registering authority's jurisdiction is
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procedural and regulatory, not adjudicatory or
prohibitory.
14.90. He therefore submits that the initial refusal by
the Sub-Registrar was itself legally flawed. The
subsequent direction to register the document
merely corrected that error. According to him:
14.90.1. The Petitioners cannot claim
grievance against an act that
restores statutory compliance.
14.90.2. Registration does not validate title;
it merely completes procedural
formalities.
14.90.3. Any dispute as to validity, capacity,
or title must be adjudicated before
a civil court.
14.91. He relies upon the decision in the case of
VEERABADHRAPPA AND ANOTHER VS.
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JAGADISHGOUDA AND OTHERS16, more
particularly, para 10.3 thereof, which is
reproduced hereunder for easy reference.
"10.3. Merely because registration of the two sale
deeds in favour of appellants 1 and 2 were kept
pending on account of an error committed by the
Sub-Registrar or because challenge to the wrong
action of the Sub-Registrar was pending in Court
for several years, it does not mean that sale
deeds dated 20-10-1982 and 4-3-1982 which
were validly executed become invalid or lost their
effectiveness or that they became effective only
from 28-4-1998 when they were registered."
14.92. Learned Senior Counsel lastly relies upon the
judgment of this Court in Veerabhadrappa
and Another v. Jagadishgouda and Others,
to contend that mere pendency of registration
does not render a duly executed sale deed
ineffective. In Veerabhadrappa, this Court
held that:
14.92.1. Where a sale deed has been validly
executed,
16
ILR 2003 KAR 3042
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14.92.2. And its registration was kept
pending due to an error on the part
of the Sub-Registrar,
14.92.3. Or due to prolonged litigation
challenging such action,
the mere delay in registration does not
invalidate the document. Nor does it mean that
the sale deed becomes effective only from the
date of eventual registration.
14.93. This Court clarified that the rights flowing
from a duly executed sale deed are not
extinguished merely because registration was
delayed due to administrative or procedural
reasons.
14.94. Learned Senior Counsel submits that in the
present matter:
14.94.1. The sale deed was executed in
1988.
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14.94.2. Consideration was paid.
14.94.3. Execution was not denied.
14.94.4. The transaction was completed inter
se the parties.
14.94.5. The only impediment was non-
production of the certificate under
Section 230A of the Income Tax
Act.
14.95. He submits that the omission of Section 230A
with effect from 01.06.2001 removed that
procedural requirement. Therefore, what
remained was merely a ministerial formality of
registration.
14.96. Applying the principle in Veerabhadrappa, he
contends that:
14.96.1. The validity of the sale deed did not
depend upon the date of
registration.
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14.96.2. The delay caused by the Sub-
Registrar cannot invalidate the
underlying transaction.
14.96.3. Registration subsequently
completed does not create a new
right but only records an existing
one.
14.97. Learned Senior Counsel further submits that
this Court, while exercising jurisdiction under
Article 226, cannot adjudicate disputed
questions relating to title or validity of the sale
deed. He submits that:
14.97.1. Registration does not confer title; it
only gives statutory recognition to a
transaction.
14.97.2. If the Petitioners dispute the validity
of execution, consideration,
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capacity, or title, they must
approach the competent civil court.
14.97.3. The writ jurisdiction is not intended
to annul registered sale deeds on
contested factual grounds.
14.98. Therefore, even assuming the Petitioners have
grievances regarding the execution of the sale
deed, such issues fall within the domain of civil
adjudication and not supervisory jurisdiction.
14.99. Learned Senior Counsel emphasises that the
requirement under Section 230A of the
Income Tax Act was procedural in nature. It
did not affect the substantive validity of the
transaction. Once that requirement was
removed by legislative amendment, the
procedural impediment ceased. He submits
that:
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14.99.1. The sale deed was substantively
complete.
14.99.2. The omission of Section 230A
regularised the position.
14.99.3. The appellate order merely directed
completion of registration.
14.99.4. No fresh right was created.
14.99.5. No illegality was committed.
14.100. Learned Senior Counsel therefore submits
that:
14.100.1. The sale deed executed in 1988
remained valid despite pendency of
registration.
14.100.2. Delay caused by administrative
reasons does not invalidate
execution.
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14.100.3. Subsequent registration merely
perfected the procedural
requirement.
14.100.4. Writ jurisdiction cannot be invoked
to cancel a registered sale deed.
14.100.5. Any challenge to validity must be
pursued before a civil court.
14.100.6. He accordingly submits that the writ
petition is devoid of merit and liable
to be dismissed.
15. In view of the serious dispute between the parties
regarding issuance and service of notice upon the
father of Respondent Nos.3 and 4 prior to refusal of
registration, this Court had deemed it appropriate to
seek clarification directly from the concerned
authorities. The Petitioners had asserted that notices
were duly issued and that the refusal order dated
10.11.2000 was communicated. The Respondents,
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on the other hand, had categorically denied receipt of
any such notice or communication.
16. In that background, the Senior Sub-Registrar,
Bommanahalli, Bengaluru, was directed to file an
affidavit.
16.1. An affidavit was filed on 24.03.2025. The
affidavit, however, did not provide substantive
clarification on the issue of service of notice. It
merely:
16.1.1. Produced the original register entries;
16.1.2. Produced the original file relating to
the appeal;
16.1.3. Produced the minute book entries.
16.2. The deponent stated that since the transaction
pertained to the year 1989, no further records
were available except those produced before
the Court.
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16.3. This affidavit did not address the core issue ,
whether notice of refusal was in fact issued
and served upon the concerned party. As the
first affidavit was found unsatisfactory, this
Court directed filing of a better affidavit. A
subsequent affidavit dated 11.04.2025 was
filed. In this affidavit:
16.3.1. The Senior Sub-Registrar stated that
the original pending registration file
bearing No.96P-642/87-88 was not
available.
16.3.2. He reiterated that despite best
efforts, the file could not be traced.
16.3.3. He suggested that the file might have
been misplaced, destroyed, or lost.
16.3.4. No specific record of destruction or
loss was produced.
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16.3.5. No entry regarding weeding out or
disposal was placed before the Court.
16.4. Notably, there was no categorical statement
that the file had been formally destroyed in
accordance with record retention rules. The
explanation essentially was that the file was
unavailable because it pertained to the year
1987-88.
16.5. As the second affidavit remained deficient, this
Court directed the Inspector General of
Registration (IGR) to file an affidavit. An
affidavit dated 28.04.2025 was filed by the
IGR. It records that:
16.5.1. A notice was issued on 22.04.2025 to
the Senior Sub-Registrar to explain
non-compliance with this Court's
earlier directions.
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16.5.2. Upon enquiry, it was stated that no
separate file was maintained at the
relevant time.
16.6. The IGR clarified the meaning of the reference
No.96P-642/87-88:
16.6.1. "96" refers to the serial number in
Book-II (refusal register),
16.6.2. "P-642" refers to the pending number
in the minute book,
16.6.3. "87-88" refers to the year.
16.7. Thus, according to the IGR, there was no
distinct, standalone "file" bearing that number;
rather, the reference corresponded to entries
in various registers.
16.8. Most significantly, the IGR has categorically
stated that: There are no records available in
the office to clearly establish whether the then
Sub-Registrar issued any notice to the parties
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before refusing registration. This statement
assumes importance, as it directly touches
upon the dispute regarding communication of
notice and refusal. There is therefore:
16.8.1. No documentary evidence of
dispatch;
16.8.2. No acknowledgment of receipt;
16.8.3. No proof of service;
16.8.4. No surviving record establishing
issuance of notice.
17. Heard Sri.Sandesh J. Chouta, learned Senior Counsel
for the Petitioners, Sri.Ashok Haranahalli, learned
Senior Counsel for Respondent Nos.3 and 4 and
Sri.Mahantesh Shettar, learned AGA for Respondent
Nos.1 and 2. Perused the papers.
18. The Points that would arise for determination are:
i. Whether the order dated 10.11.2000
passed by the Sub-Registrar refusing
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registration of the sale deed was duly
communicated to the father of Respondent
Nos.3 and 4, and if not, what is the legal
effect of non-communication?
ii. Whether the appeal filed by Respondent
Nos.3 and 4 on 18.08.2005 under Section
72(1) of the Registration Act was barred
by limitation?
iii. Whether the District Registrar had
jurisdiction to condone delay in filing the
appeal under Section 72(1) of the
Registration Act by invoking Section 5 of
the Limitation Act, 1963?
iv. Whether the Sub-Registrar was justified in
refusing registration of the sale deed on
the ground of non-production of certificate
under Section 230A of the Income Tax Act,
and whether subsequent registration was
legally sustainable?
v. Whether valuable rights had crystallised in
favour of the Petitioners, including
Petitioner No.2 as a subsequent purchaser,
prior to the filing of the appeal, and
whether the impugned order dated
31.10.2009 suffers from jurisdictional
error, procedural illegality, or non-
application of mind?
vi. What order?
19. I answer the above points as follows:
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20. Answer to Point No.1: Whether the order dated
10.11.2000 passed by the Sub-Registrar
refusing registration of the sale deed was duly
communicated to the father of Respondent
Nos.3 and 4, and if not, what is the legal effect
of non-communication?
20.1. Sri.Sandesh J. Chouta, learned Senior Counsel
for the Petitioners, submits that the refusal
order dated 10.11.2000 was duly entered in
Book-II maintained in the office of the Sub-
Registrar in accordance with the statutory
procedure prescribed under the Registration
Act, 1908 and the Karnataka Registration
Rules, 1965.
20.2. He relies upon the affidavit filed by the
Inspector General of Registration and
Commissioner of Stamps after verification of
official records, wherein it is categorically
stated that copies of the refusal order dated
10.11.2000 were issued on the same date to
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Sri Veerabhadrappa and Sri Karimuniyappa,
the legal heirs of Sri Sadappa.
20.3. It is submitted that the statutory procedure
prescribed under Section 72(1) of the
Registration Act was fully complied with. The
refusal order was not only passed but also
communicated in accordance with law.
20.4. Sri.Sandesh J. Chouta, learned Senior Counsel
emphasises that the burden of proving non-
communication lies upon the party asserting it.
Once official records demonstrate compliance
with procedural requirements, the presumption
of regularity attaches to official acts.
20.5. He submits that mere denial by Respondent
Nos.3 and 4 that they did not receive the
refusal order is insufficient to discharge the
burden. Such denial must be supported by
cogent evidence. No such evidence has been
placed on record by Respondent Nos.3 and 4.
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20.6. Sri.Sandesh J. Chouta, learned Senior Counsel
further submits that in matters involving
statutory registers and official entries, Courts
ordinarily presume that public officials have
discharged their duties in accordance with law.
The entry in Book-II coupled with the affidavit
of the Inspector General of Registration
constitutes reliable evidence of communication.
20.7. It is submitted that Respondent Nos.3 and 4
filed an appeal on 18.08.2005 accompanied by
an application seeking condonation of delay. In
the affidavit filed in support of the condonation
application, it was stated that they came to
know of the refusal order only in the first week
of July 2005. This plea, according to learned
counsel, is demonstrably false and stands
contradicted by official records. If, as claimed
by Respondent Nos.3 and 4, no communication
was ever made, then the question arises as to
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how they came to know of the refusal order in
July 2005. The very filing of the appeal
presupposes knowledge of the refusal order.
This knowledge, learned counsel contends, was
available much earlier and the plea of belated
knowledge is an afterthought.
20.8. He submits that Respondent Nos.3 and 4 are
attempting to take advantage of their own
delay and inaction by raising a plea of non-
communication which is wholly
unsubstantiated.
20.9. Learned Senior Counsel further submits that
even if the father of Respondent Nos.3 and 4
did not personally receive the refusal order,
communication to the legal representatives
would suffice. The affidavit of the Inspector
General of Registration clearly states that
copies were issued to Sri Veerabhadrappa and
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Sri Karimuniyappa, who are none other than
Respondent Nos.3 and 4 themselves.
20.10. Therefore, the plea that no communication was
ever made is wholly untenable.
20.11. Sri.Ashok Haranahalli, learned Senior Counsel
for Respondent Nos.3 and 4 submits that no
notice or refusal order was ever served upon
the father of Respondent Nos.3 and 4, Sri
Sadappa, or upon Respondent Nos.3 and 4
themselves.
20.12. He submits that the assertion that notices were
issued on 27.09.1989 and again on 27.07.1999
calling upon Sri Sadappa to produce the
Income Tax clearance certificate is wholly
incorrect and unsupported by any cogent
proof.
20.13. There is no acknowledgment of service, no
proof of dispatch, no postal receipt, and no
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documentary material demonstrating
communication of the alleged notices. In
matters affecting valuable immovable property
rights, the burden lies upon the authority
asserting service to establish that notices were
duly issued and properly served. Mere recital in
an affidavit or register entry is insufficient
unless supported by proof of dispatch and
acknowledgment.
20.14. Learned Senior Counsel further submits that
there is equally no material to show that the
refusal order dated 10.11.2000 was ever
communicated to the father of Respondent
Nos.3 and 4. No acknowledgment bearing
signature of the recipient has been produced.
No postal receipt or dispatch proof has been
placed on record. No documentary evidence
has been furnished to show actual delivery.
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20.15. The father of Respondent Nos.3 and 4 expired
on 03.08.2002. Respondent Nos.3 and 4
themselves are stated to be illiterate and are
also deaf and dumb. They have categorically
asserted that no notice or order was ever
received.
20.16. Once such categorical denial is made, the
burden shifts to the authority and the
Petitioners to demonstrate proper
communication of the refusal order. In the
absence of proof of service, limitation cannot
begin to run.
20.17. In the present case, none of the foundational
requirements have been established. There is
no postal receipt, no RPAD acknowledgment
card, no dispatch register extract showing
proper addressing, and no material to establish
that the refusal order was sent to the correct
residential address. There is no documentary
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evidence to demonstrate compliance with
statutory requirements for service.
20.18. The mere entry in Book-II or a bald assertion
in an affidavit is insufficient to attract the
presumption under Section 27. Unless it is
shown that the refusal order was properly
addressed, duly stamped, and dispatched by
registered post acknowledgment due, the
presumption of service cannot arise.
20.19. He submits that communication is an essential
component of a legally effective order. Until an
order is made known to the person affected, it
does not attain operative force. Mere existence
in departmental files does not confer legal
validity or enforceability.
20.20. He submits that the Registration Act, read with
the relevant Rules, imposes a statutory duty
upon the Sub-Registrar to communicate an
order of refusal to the concerned party.
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Communication must be effected in accordance
with law. The burden lies upon the authority to
establish that such communication was
properly made.
20.21. In the absence of strict compliance, the refusal
order cannot be treated as having been
effectively communicated. Consequently,
limitation cannot be computed from an
uncommunicated or improperly served order.
20.22. He submits that Respondent Nos.3 and 4 are
deaf and dumb. In such circumstances, the
presumption of constructive knowledge cannot
be lightly drawn. The standard of proof for
establishing service or awareness must be
stricter. Mere assumption of knowledge based
on internal record entries is impermissible.
Constructive knowledge presupposes
circumstances where a reasonable person
could be deemed to have become aware. In
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the case of persons with communication
disabilities, such presumption must be applied
with caution.
20.23. I have carefully considered the rival
submissions. The determination of this Point
requires a careful examination of the legal
principles governing service of orders, the
evidentiary burden of proof, and the effect of
non-communication on the commencement of
limitation.
20.24. It is an undisputed fact that the refusal order
dated 10.11.2000 was passed by the Sub-
Registrar. The order was entered in Book-II
maintained in the office of the Sub-Registrar.
The statutory scheme contemplated under the
Registration Act, 1908 read with the Karnataka
Registration Rules, 1965 requires that an order
of refusal be communicated to the concerned
party.
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20.25. Section 72(1) of the Registration Act, 1908
provides that an appeal from an order of
refusal of registration may be presented within
thirty days from the date of the order. The
expression "from the date of the order" has
been consistently interpreted by Courts to
mean not the date of passing the order
internally, but the date on which the order is
communicated to or comes to the knowledge
of the affected party.
20.26. The reason for this interpretation is sound and
rooted in principles of natural justice. An order
that is passed but not communicated remains
in the realm of administrative action internal to
the department. It does not acquire the
character of a decision affecting the rights of
the party until it is made known to that party.
To hold otherwise would be to permit limitation
to run against a party who has no knowledge
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of the order and is therefore unable to
challenge it.
20.27. In The Assistant Transport Commissioner,
Lucknow and Others v. Nand Singh, the
Hon'ble Supreme Court observed that mere
writing of an order in the file kept in the office
is no order in the eye of law in the sense of
affecting the rights of the parties for whom the
order is meant. The order must be
communicated either directly or constructively
in the sense of making it known, which may
make it possible for the authority to say that
the party affected must be deemed to have
known the order. On the facts stated, the
Hon'ble Supreme Court held that the
respondent had no means to know about the
order until he received the letter
communicating it. That was the date of the
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order which gave the starting point for
preferring an appeal within thirty days.
20.28. In State of W.B. v. M.R. Mondal and
Another, the Hon'ble Supreme Court
reiterated that an order passed but retained in
file without being communicated to the
concerned party has no force or authority
whatsoever and the same has no valid
existence in the eye of law. No reliance can be
placed on the same to even assert a claim
based on its contents.
20.29. The principles emerging from these
authoritative pronouncements are clear:
20.29.1. Communication is an essential
component of a legally effective
order.
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20.29.2. An order does not attain operative
force until it is made known to the
person affected.
20.29.3. Limitation commences from the date
of communication, not from the date
of internal recording.
20.29.4. The burden of proving
communication lies upon the party
asserting it.
20.30. Applying these principles to the present case,
the question is whether the refusal order dated
10.11.2000 was communicated to Sri Sadappa,
the father of Respondent Nos.3 and 4, or to
Respondent Nos.3 and 4 themselves.
20.31. The Petitioners rely upon the affidavit filed by
the Inspector General of Registration and
Commissioner of Stamps. In the said affidavit,
it is stated that after verification of official
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records, it is confirmed that copies of the
refusal order dated 10.11.2000 were issued on
the same date to Sri Veerabhadrappa and Sri
Karimuniyappa, the legal heirs of Sri Sadappa.
20.32. However, it is to be noted that the affidavit
does not disclose any material establishing the
mode of dispatch, the address to which the
order was sent, proof of posting, or any
acknowledgment of receipt. The statement that
copies were "issued" is vague and does not
demonstrate compliance with the statutory
requirements for service.
20.33. In Sri. Devegowda and Others v. Sri.
Ashokanayar and Others, this Court
examined the scope of Section 27 of the
General Clauses Act, 1897. Section 27 provides
that where any document is to be served by
post, it shall be deemed to be effected by
properly addressing, prepaying, and posting by
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registered post a letter containing the
document, and unless the contrary is proved,
to have been effected at the time at which the
letter would be delivered in the ordinary course
of post. This Court held that the presumption
under Section 27 would only arise if the
foundational facts are established, namely,
that the article was dispatched to the proper
address of the addressee, the article was
properly and duly stamped, and sent by
registered post acknowledgment due. If these
aspects are not placed on record, no such
presumption could be raised or invoked.
20.34. In the present case, the Petitioners have not
placed on record any material to demonstrate:
20.34.1. That the refusal order was dispatched
by registered post acknowledgment
due;
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20.34.2. That it was addressed to the correct
residential address of Sri Sadappa or
Respondent Nos.3 and 4;
20.34.3. That it was properly prepaid and
stamped;
20.34.4. That any acknowledgment was
received or any proof of delivery
exists.
20.35. In the absence of such foundational proof, the
presumption under Section 27 of the General
Clauses Act cannot be invoked. The mere
statement in the affidavit that copies were
"issued" is insufficient to establish compliance
with the statutory requirements for service.
20.36. The Petitioners contend that the burden of
proving non-communication lies upon
Respondent Nos.3 and 4. While it is true that a
party asserting non-receipt must generally
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support such assertion with cogent evidence,
the legal position is nuanced. Where the
authority asserts that service was effected, the
initial burden lies upon the authority to
establish the foundational facts that enable the
presumption of service to arise. Only upon
such foundational proof being placed on record
does the burden shift to the other party to
rebut the presumption by proving non-receipt.
20.37. In the present case, the foundational proof has
not been laid. Therefore, the presumption of
service does not arise, and the burden does
not shift.
20.38. It is also relevant to note that Respondent
Nos.3 and 4 have categorically stated in their
affidavit that they are deaf and dumb. This
assertion has not been controverted. In such
circumstances, constructive knowledge cannot
be presumed lightly. Communication to
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persons with disabilities requires a higher
standard of proof, particularly where the mode
of communication involves written documents.
20.39. The Petitioners further contend that even if the
father of Respondent Nos.3 and 4 did not
personally receive the refusal order,
communication to the legal representatives
would suffice, and that the affidavit of the
Inspector General states that copies were
issued to Sri Veerabhadrappa and Sri
Karimuniyappa, who are Respondent Nos.3
and 4 themselves. However, this contention
proceeds on the assumption that such
communication was in fact made and received.
In the absence of proof of dispatch and
delivery, the mere recital in the affidavit is
insufficient.
20.40. It is well settled that in matters involving
deprivation of valuable property rights or
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extinguishment of remedies on account of
limitation, Courts must insist upon strict proof
of compliance with procedural requirements.
The law does not permit limitation to run
against a party who has not been informed of
the order that is sought to be challenged.
20.41. The Hon'ble Supreme Court in Saral Wire
Craft Private Limited v. Commissioner of
Customs, Central Excise and Service Tax
and Others observed that where a statute
prescribes the manner of doing a particular
act, the act must be done in that manner or
not at all. This is a basic principle of law long
settled. The Hon'ble Supreme Court reiterated
the principle laid down in Taylor v. Taylor,
approved by the Privy Council in Nazir Ahmad
v. King Emperor that if the manner of doing a
particular act is prescribed under any statute,
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the act must be done in that manner or not at
all.
20.42. If the statutory scheme or the Rules prescribe
a mode of communication, compliance with
that mode is mandatory. Non-compliance
renders the action ineffective.
20.43. In the present case, the Registration Rules
contemplate that an order of refusal shall be
communicated to the concerned party. The
Petitioners have not demonstrated compliance
with such requirement. The absence of proof of
dispatch, acknowledgment, or delivery is fatal
to the contention that communication was duly
effected.
20.44. The Petitioners rely upon the presumption of
regularity attaching to official acts. While it is
true that Courts presume that public officials
have discharged their duties in accordance
with law, such presumption is not irrebuttable.
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It operates in the absence of evidence to the
contrary. Where, as in the present case,
Respondent Nos.3 and 4 have categorically
denied receipt, and where the foundational
proof of dispatch and delivery is absent, the
presumption of regularity cannot substitute for
affirmative proof.
20.45. The Petitioners further contend that the very
filing of the appeal by Respondent Nos.3 and 4
in August 2005 presupposes knowledge of the
refusal order, and that the plea of belated
knowledge is an afterthought. This Court is
unable to accept this submission. The fact that
Respondent Nos.3 and 4 came to know of the
refusal order at a later point in time does not
ipso facto establish that communication was
duly effected in 2000. Knowledge may be
acquired through various means, including
inquiries made at the registration office,
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information received from third parties, or
through proceedings initiated by other parties.
The acquisition of knowledge at a later stage
does not cure the defect of non-communication
at the relevant time.
20.46. Having regard to the entirety of the material
on record and the legal principles discussed
above, this Court is of the considered view that
the Petitioners have failed to establish that the
refusal order dated 10.11.2000 was duly
communicated to the father of Respondent
Nos.3 and 4, or to Respondent Nos.3 and 4
themselves, in accordance with law.
20.47. The effect of non-communication is that the
order, though passed and entered in the
official register, did not attain legal efficacy so
far as it affects the rights of Respondent Nos.3
and 4. Limitation under Section 72(1) of the
Registration Act could not commence in the
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absence of communication. The refusal order
cannot be treated as operative for purposes of
computing the thirty-day period prescribed
under Section 72(1).
20.48. I answer point no.1 by holding that the
refusal order dated 10.11.2000 was not
duly communicated to the father of
Respondent Nos.3 and 4, or to
Respondent Nos.3 and 4 themselves, in a
manner that would enable the
commencement of limitation under
Section 72(1) of the Registration Act on
that date.
21. Answer to point No.2: Whether the appeal filed
by Respondent Nos.3 and 4 on 18.08.2005
under Section 72(1) of the Registration Act was
barred by limitation?
21.1. Learned Senior Counsel appearing for the
Petitioners submits that Section 72(1) of the
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Registration Act expressly mandates that an
appeal against an order of refusal shall be
presented within thirty days from the date of
the order. The refusal order was passed on
10.11.2000. Therefore, the appeal ought to
have been filed by 09.12.2000.
21.2. The appeal, however, was filed only on
18.08.2005, nearly five years after the date of
refusal. Such gross delay is fatal and renders
the appeal incompetent from inception.
21.3. Even if it were to be assumed that the refusal
order was not communicated on 10.11.2000,
the affidavit filed by Respondent Nos.3 and 4
in support of the application for condonation
of delay states that they came to know of the
refusal order in the first week of July 2005.
Even reckoning limitation from the first week
of July 2005, the appeal filed on 18.08.2005
was beyond the thirty-day period.
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21.4. The Petitioners contend that this plea of
knowledge in July 2005 is itself demonstrably
false. The father of Respondent Nos.3 and 4
had presented the document for registration in
1988. Notices were issued by the Sub-
Registrar on 27.09.1989 and again on
27.07.1999 calling upon Sri Sadappa to
produce the Income Tax clearance certificate.
Despite such notices spanning nearly a
decade, no compliance was made. Ultimately,
the refusal order was passed on 10.11.2000.
21.5. Learned Senior Counsel submits that
Respondent Nos.3 and 4, being the legal
representatives of Sri Sadappa, were fully
aware of the pendency of the document and
the proceedings relating thereto. It is
inconceivable that they remained ignorant of
the refusal order for nearly five years.
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21.6. He further submits that Respondent Nos.3 and
4 deliberately chose not to pursue the matter
during the lifetime of Sri Sadappa or even for
several years after his death in 2002. The
appeal was filed only in August 2005, after
Petitioner No.1 and Respondent No.5 had
executed a sale deed dated 11.07.2005 in
favour of Petitioner No.2. This timing,
according to learned counsel, demonstrates
mala fide intent and an attempt to disrupt the
rights of third-party purchasers.
21.7. Learned Senior Counsel further submits that
the document had been kept pending since
1988. Under Section 34 of the Registration Act
read with Rule 187 of the Karnataka
Registration Rules, 1965, a document
presented for registration and refused by the
Sub-Registrar cannot be kept pending
indefinitely. The power to keep such a
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document pending is confined to a limited
statutory period of four months. After the
expiry of such period, the refusal attains
finality. The document cannot be revived or
acted upon after the lapse of several years.
21.8. In the present case, the document was
presented in 1988. Notices were issued in
1989 and 1999. The refusal order was passed
in 2000. By the time the appeal was filed in
2005, more than seventeen years had elapsed
since presentation. The Petitioners contend
that such prolonged delay defeats the
legislative intent of finality and certainty in
registration proceedings.
21.9. Learned Senior Counsel further submits that
even if Respondent Nos.3 and 4 were ignorant
of the refusal order, their ignorance was wilful
and attributable to their own inaction. A party
who does not pursue its own interests or
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make inquiries regarding the status of
proceedings cannot claim the benefit of delay
on the ground of lack of knowledge.
21.10. He submits that in matters of limitation, the
law does not reward indolence. The statutory
period is prescribed not merely to regulate
procedure but to ensure finality and to protect
third parties who may acquire rights in the
interim. If limitation is allowed to be
circumvented on vague pleas of delayed
knowledge, the entire purpose of prescribing
time limits would be defeated.
21.11. Learned Senior Counsel further submits that
by the time the appeal was filed in August
2005, Petitioner No.1 and Respondent No.5,
being the legal heirs of Sri V.K.
Kamalanabhan, had already executed a
registered sale deed dated 11.07.2005 in
favour of Petitioner No.2. Valuable legal rights
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had crystallised in favour of Petitioner No.2
under a registered instrument. The filing of
the appeal was thus not only belated but was
initiated after third-party rights had
intervened.
21.12. Respondent Nos.3 and 4 deliberately chose
not to implead Petitioner No.1, Respondent
No.5, or Petitioner No.2 in the appellate
proceedings, despite being fully aware of their
interest in the property. This omission,
according to learned counsel, was not
inadvertent but calculated.
21.13. Insofar as Petitioner No.2 is concerned,
learned Senior Counsel stresses that his sale
deed dated 11.07.2005 was duly registered.
Respondent Nos.3 and 4 are deemed in law to
have constructive notice of such registration.
Despite this, they took no steps to bring
Petitioner No.2 on record in the appellate
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proceedings, even though he had become the
registered owner of the property.
21.14. Learned Senior Counsel accordingly submits
that the appeal filed on 18.08.2005 was
grossly time-barred and ought not to have
been entertained.
21.15. Learned Senior Counsel appearing for
Respondent Nos.3 and 4 submits that
limitation under Section 72(1) of the
Registration Act begins to run not from the
date of passing of the order internally, but
from the date on which the order is
communicated to or comes to the knowledge
of the affected party.
21.16. As already submitted under Point No.1, the
refusal order dated 10.11.2000 was never
communicated to the father of Respondent
Nos.3 and 4, or to Respondent Nos.3 and 4
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themselves. In the absence of communication,
limitation could not commence on 10.11.2000.
21.17. Respondent Nos.3 and 4 came to know of the
refusal order only in the first week of July
2005. Immediately upon acquiring such
knowledge, they filed the appeal on
18.08.2005. Therefore, the appeal was well
within the statutory period of thirty days from
the date of knowledge.
21.18. Learned Senior Counsel submits that the
assertion by the Petitioners that Respondent
Nos.3 and 4 must have been aware of the
refusal order much earlier is wholly
speculative and unsupported by any evidence.
Respondent Nos.3 and 4 are illiterate, deaf
and dumb, and belong to a disadvantaged
socio-economic background. They were not in
a position to make regular inquiries at the
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registration office or to pursue complex legal
proceedings.
21.19. The father of Respondent Nos.3 and 4 expired
on 03.08.2002. After his death, Respondent
Nos.3 and 4 were unaware of the pendency or
status of the document. It was only when they
made inquiries in mid-2005 that they came to
know of the refusal.
21.20. Learned Senior Counsel further submits that
the contention that the appeal was filed only
after Petitioner No.2 had purchased the
property is legally irrelevant. The rights of
Respondent Nos.3 and 4 flow from the sale
deed executed in 1988 by Sri V.K.
Kamalanabhan in favour of their father. If that
sale deed is valid and enforceable, the
subsequent sale deed executed by Petitioner
No.1 and Respondent No.5 in favour of
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Petitioner No.2 would be without title and
ineffective.
21.21. The plea of limitation, according to learned
counsel, is a technical defence being raised to
defeat substantive rights. When substantial
justice and technical considerations are in
conflict, substantial justice must prevail.
21.22. Learned Senior Counsel further addresses the
contention raised by the Petitioners regarding
the omission of Section 230A of the Income
Tax Act, 1961 with effect from 01.06.2001. He
submits that Section 230A was a procedural
provision that imposed a restriction on
registration of transfers of immovable
property exceeding a prescribed value without
prior tax clearance. Once this provision was
omitted by the Finance Act, 2001, the
impediment to registration ceased to exist.
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21.23. The Sub-Registrar himself, by order dated
10.11.2000, had refused registration solely on
the ground of non-production of the Income
Tax clearance certificate. Once Section 230A
stood omitted, there was no legal basis for
continuing the refusal. The document ought to
have been registered.
21.24. Learned Senior Counsel submits that the
Inspector General of Registration, recognising
this legal position, issued a clarification dated
02.08.2001 directing that documents kept
pending for want of Income Tax clearance
prior to 01.06.2001 be registered. This
clarification was binding upon all Sub-
Registrars.
21.25. In light of the omission of Section 230A and
the clarification issued by the Inspector
General, the refusal order dated 10.11.2000
lost its legal foundation. The appeal,
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therefore, was not merely an appeal against
refusal but a request to give effect to the
changed legal position.
21.26. Learned Senior Counsel submits that even if
there was delay in filing the appeal, such
delay must be viewed in the context of the
changed statutory position and the
subsequent clarification issued by the
competent authority.
21.27. He accordingly submits that the appeal was
not barred by limitation.
21.28. The determination of this Point requires a
careful analysis of the statutory scheme under
Section 72(1) of the Registration Act, the
principles governing commencement of
limitation, the effect of non-communication,
and the impact of the omission of Section
230A of the Income Tax Act.
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21.29. Section 72 of the Registration Act, 1908 reads
as follows:
72. Appeal to Registrar from orders of Sub-
Registrar refusing registration on ground
other than denial of execution.--
(1) Except where the refusal is made on the
ground of denial of execution, an appeal shall lie
against an order of a Sub-Registrar refusing to
admit a document to registration (whether the
registration of such document is compulsory or
optional) to the Registrar to whom such Sub-
Registrar is subordinate, if presented to such
Registrar within thirty days from the date of the
order; and the Registrar may reverse or alter
such order.
(2) If the order of the Registrar directs the
document to be registered and the document is
duly presented for registration within thirty days
after the making of such order, the Sub-
Registrar shall obey the same, and thereupon
shall, so far as may be practicable, follow the
procedure prescribed in sections 58, 59 and 60;
and such registration shall take effect as if the
document had been registered when it was first
duly presented for registration.
21.30. The provision is clear and unambiguous. An
appeal against refusal must be presented
within thirty days from the date of the order
appealed against.
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21.31. The question that arises is: what is meant by
"the date of the order appealed against"?
Does it mean the date on which the order is
passed internally by the Sub-Registrar, or
does it mean the date on which the order is
communicated to or comes to the knowledge
of the affected party?
21.32. I have already held under Point No.1 that the
refusal order dated 10.11.2000 was not duly
communicated to the father of Respondent
Nos.3 and 4, or to Respondent Nos.3 and 4
themselves, in accordance with law. The effect
of non-communication is that the order did
not attain legal efficacy so far as it affects the
rights of Respondent Nos.3 and 4. Limitation
could not commence in the absence of
communication.
21.33. The legal position is well settled. In The
Assistant Transport Commissioner,
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Lucknow and Others v. Nand Singh, the
Hon'ble Supreme Court held that the order
would be effective against the person affected
by it only when it comes to his knowledge
either directly or constructively. On the facts
of that case, the respondent had no means to
know about the order until he received the
letter communicating it. That was the date of
the order which gave the starting point for
preferring an appeal within thirty days.
21.34. The Hon'ble Supreme Court in State of W.B.
v. M.R. Mondal and Another reiterated that
an order passed but retained in file without
being communicated to the concerned party
has no force or authority and has no valid
existence in the eye of law.
21.35. Applying these principles to the present case,
since the refusal order dated 10.11.2000 was
not communicated to Respondent Nos.3 and 4
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in accordance with law, limitation could not
commence on that date.
21.36. The question which then arises is when did
Respondent Nos.3 and 4 acquire knowledge of
the refusal order, and was the appeal filed
within thirty days from such date?
21.37. Respondent Nos.3 and 4 have stated in their
affidavit filed in support of the application for
condonation of delay that they came to know
of the refusal order in the first week of July
2005. The appeal was filed on 18.08.2005.
21.38. If knowledge was acquired in the first week of
July 2005, the thirty-day period would expire
in the first week of August 2005. The appeal
filed on 18.08.2005 would therefore be
marginally beyond the thirty-day period,
assuming knowledge was acquired on
01.07.2005.
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21.39. However, the question of whether delay of a
few days beyond the statutory period can be
condoned by invoking Section 5 of the
Limitation Act, 1963 is a matter that falls for
consideration under Point No.3. For the
purposes of this Point, it is sufficient to note
that the appeal was filed within a reasonable
proximity to the date of knowledge.
21.40. The Petitioners contend that the plea of
knowledge in July 2005 is false and that
Respondent Nos.3 and 4 must have been
aware of the refusal order much earlier. This
Court has carefully examined this contention.
21.41. It is true that the document was presented for
registration in 1988, and that the father of
Respondent Nos.3 and 4 had been pursuing
the matter. However, the father expired on
03.08.2002. After his death, there is no
evidence to suggest that Respondent Nos.3
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and 4 were actively pursuing the matter or
were in regular contact with the registration
office.
21.42. Respondent Nos.3 and 4 have stated that they
are illiterate, deaf and dumb. This fact has not
been controverted by the Petitioners. In such
circumstances, it is not implausible that they
remained unaware of the refusal order until
they made inquiries at the registration office
in mid-2005.
21.43. The Petitioners have not placed on record any
positive evidence to establish that Respondent
Nos.3 and 4 had knowledge of the refusal
order prior to July 2005. Mere speculation or
assumption is insufficient to discharge the
burden of proof.
21.44. The Petitioners further rely upon R. Sampath
v. State of Karnataka by its Secretary and
Others, wherein this Court held that the
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cause of action arose on the date of refusal
itself, and that a party who keeps a document
pending without either complying with
requirements or challenging refusal within the
time prescribed cannot subsequently seek
indulgence.
21.45. While the principle laid down in R. Sampath
cannot be disputed, the factual matrix in that
case was materially different. In R. Sampath,
the refusal order had been communicated,
and the petitioner was aware of the refusal
but chose not to challenge it within the
prescribed period. The Court held that such
lackadaisical conduct disentitled the party
from relief.
21.46. In the present case, the refusal order was not
communicated, and Respondent Nos.3 and 4
were unaware of it until July 2005. The
principle in R. Sampath would apply where a
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party has knowledge of the refusal but fails to
act. It does not apply where the party has no
knowledge due to non-communication of the
order.
21.47. The Petitioners further contend that the
document had been kept pending since 1988,
and that under Section 34 of the Registration
Act read with Rule 187 of the Karnataka
Registration Rules, 1965, a document cannot
be kept pending indefinitely. This Court agrees
that prolonged pendency is undesirable and
that the statutory scheme contemplates
finality within a reasonable period. However,
the question of whether the document could
be kept pending beyond the prescribed period
is distinct from the question of whether the
appeal was filed within the prescribed period
from the date of knowledge of the refusal
order.
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21.48. The Petitioners have not demonstrated that
the refusal order dated 10.11.2000 was
communicated to Respondent Nos.3 and 4
prior to July 2005. In the absence of such
proof, this Court cannot hold that limitation
commenced on 10.11.2000.
21.49. The Petitioners further contend that by the
time the appeal was filed in August 2005,
Petitioner No.2 had already purchased the
property under a registered sale deed dated
11.07.2005, and that third-party rights had
intervened. While the protection of third-party
rights is an important consideration, it cannot
override the statutory right of appeal where
the appeal is filed within the prescribed period
from the date of knowledge. The question of
third-party rights and the effect of the
subsequent sale deed is a matter that falls for
consideration under Point No.5.
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21.50. The Petitioners further contend that
Respondent Nos.3 and 4 deliberately chose
not to implead Petitioner No.1, Respondent
No.5, or Petitioner No.2 in the appellate
proceedings. This contention may have
relevance in considering the validity of the
appellate proceedings, but it does not affect
the determination of whether the appeal was
barred by limitation.
21.51. The question of finality must be examined in
the context of the statutory scheme. Section
72(1) provides a right of appeal within thirty
days from the date of the order. In the
absence of communication, the order does not
attain finality merely by efflux of time. To hold
otherwise would be to permit a party to be
deprived of the right of appeal without having
been informed of the order.
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21.52. Respondent Nos.3 and 4 have further
submitted that the omission of Section 230A
of the Income Tax Act, 1961 with effect from
01.06.2001 altered the legal position. This
Court agrees that Section 230A was a
procedural provision that imposed a restriction
on registration, and that once it was omitted,
the legal basis for refusal ceased to exist.
21.53. However, this Court is unable to accept the
contention advanced by learned counsel for
Respondent Nos.3 and 4 that the clarification
dated 02.08.2001 issued by the Inspector
General of Registration applies to the present
case. The clarification, as submitted by
learned counsel, concerned documents that
were "pending". In the present case, the Sub-
Registrar had already passed a formal order
refusing registration on 10.11.2000. Once
refusal had been recorded, the document
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ceased to be pending in the legal sense. An
administrative circular cannot revive a
concluded refusal or create a fresh cause of
action.
21.54. Nevertheless, the omission of Section 230A is
a relevant consideration in examining whether
the refusal order retained its legal validity
after 01.06.2001. If the sole ground for
refusal was non-production of a certificate
under Section 230A, and if that provision
stood omitted, then the refusal lost its
statutory foundation. However, this aspect
does not affect the determination of limitation.
Even if the refusal lost its legal foundation, the
right of appeal under Section 72(1) remained
available, and limitation for filing such appeal
would commence from the date of
communication or knowledge of the refusal.
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21.55. Having regard to the entirety of the material
on record and the legal principles discussed
above, this Court is of the considered view
that:
21.55.1. The refusal order dated 10.11.2000
was not communicated to
Respondent Nos.3 and 4 in
accordance with law.
21.55.2. Limitation under Section 72(1) of the
Registration Act could not commence
on 10.11.2000.
21.55.3. Respondent Nos.3 and 4 acquired
knowledge of the refusal order in the
first week of July 2005.
21.55.4. The appeal was filed on 18.08.2005,
which is within reasonable proximity
to the date of knowledge.
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21.55.5. Whether the marginal delay of a few
days can be condoned by invoking
Section 5 of the Limitation Act, 1963
is a matter that falls for consideration
under Point No.3.
21.56. I Answer Point No.2 by holding that the appeal
filed by Respondent Nos.3 and 4 on
18.08.2005 cannot be held to be grossly time-
barred, since limitation commenced only from
the date of knowledge in July 2005, and not
from 10.11.2000.
22. Answer to Point No. 3: Whether the District
Registrar had jurisdiction to condone delay in
filing the appeal under Section 72(1) of the
Registration Act by invoking Section 5 of the
Limitation Act, 1963?
22.1. Learned Senior Counsel appearing for the
Petitioners submits that Section 72(1) of the
Registration Act expressly mandates that an
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appeal against an order of refusal shall be
presented within thirty days from the date of
the order. The provision does not contain any
clause permitting extension of time. It does
not employ expressions such as "sufficient
cause" or "such further time as may be
allowed". It does not incorporate or refer to
the Limitation Act. It simply fixes a period of
thirty days.
22.2. When the legislature has prescribed a definite
period of limitation without providing for
extension, the period must be treated as
mandatory. If the legislature intended to
confer power upon the District Registrar to
condone delay, it would have expressly said
so. The omission is therefore intentional and
cannot be supplied by interpretation.
22.3. Learned Senior Counsel submits that the
refusal order was passed on 10.11.2000 (or,
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even assuming knowledge in July 2005).
Section 72(1) of the Registration Act required
that any appeal against such refusal be filed
within thirty days. The District Registrar, while
entertaining the appeal and condoning the
delay under Section 5 of the Limitation Act,
assumed a jurisdiction which the statute does
not confer. The Registrar, not being a Court,
could not have invoked the Limitation Act.
Section 72 does not provide for enlargement
of time. Therefore, the very entertainment of
the appeal was incompetent in law.
22.4. When the legislature has prescribed a definite
period of limitation without providing for
extension, the period must be treated as
mandatory. If the legislature intended to confer
power upon the District Registrar to condone
delay, it would have expressly said so. The
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omission is therefore intentional and cannot be
supplied by interpretation.
22.5. Learned Senior Counsel submits that Section
72(1) of the Registration Act prescribes a
period of thirty days for filing an appeal
against an order of refusal passed by the Sub-
Registrar. There is no clause permitting
enlargement of time. There is no maximum
outer limit. There is no discretion vested in
the District Registrar to condone delay. The
statute is silent on any power of extension.
22.6. If, in a case where limited condonation was
expressly permitted, the authority was held
incapable of travelling beyond the prescribed
outer limit, then in the present case, where
the statute is silent on condonation thereby
barring condonation, the authority's
jurisdiction is narrower still.
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22.7. Learned Senior Counsel submits that the
distinction between Sections 72 and 73 of the
Registration Act further fortifies this position.
Section 72 deals with refusal on grounds other
than denial of execution and provides a
narrow appellate remedy within a fixed time
frame. Section 73 deals with cases involving
denial of execution and contemplates a
different procedural mechanism. Even
assuming that some procedural latitude may
be available in proceedings under Section 73,
no such latitude exists under Section 72. The
legislature, having consciously prescribed a
thirty-day period without providing for
extension, must be taken to have intended
finality.
22.8. It is therefore submitted that once the appeal
was filed beyond the statutory period of thirty
days, the District Registrar had no authority to
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entertain it. The order condoning delay is
without jurisdiction. The subsequent order
directing registration of the document is
equally unsustainable, being founded upon an
incompetent proceeding.
22.9. The issue is not one of sufficiency of cause for
delay, but one of lack of jurisdiction. When the
statute withholds power to condone delay, the
authority cannot create such power by
recourse to general principles. The impugned
order, having been passed in excess of
statutory authority, is liable to be quashed on
that ground alone.
22.10. Learned Senior Counsel appearing for
Respondent Nos.3 and 4 submits that Section
5 of the Limitation Act, 1963 is applicable
even to proceedings arising under special
statutes, unless expressly excluded.
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22.11. Section 29(2) of the Limitation Act, 1963
provides that where any special or local law
prescribes for any suit, appeal or application a
period of limitation different from the period
prescribed by the Schedule to the Limitation
Act, the provisions of Section 4 to Section 24
(which include Section 5) shall, as far as may
be, apply to such suit, appeal or application,
unless the special or local law expressly
excludes the application of such provisions.
22.12. The Registration Act prescribes a thirty-day
period under Section 72 for filing an appeal
against refusal of registration. However, the
Registration Act does not contain any express
provision excluding the application of Section
5 of the Limitation Act. There is no language
indicating that delay cannot be condoned.
There is no non obstante clause overriding the
Limitation Act.
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22.13. Learned Senior Counsel therefore submits that
by virtue of Section 29(2) of the Limitation
Act, 1963, Section 5 applies to proceedings
under Section 72 of the Registration Act. Even
assuming, without admitting, that the appeal
was filed beyond thirty days from knowledge
of the refusal order, the District Registrar had
the power to condone delay upon sufficient
cause being shown.
22.14. Learned Senior Counsel submits that even
assuming for argument's sake that the appeal
was filed beyond the prescribed thirty-day
period, the explanation furnished by
Respondent Nos.3 and 4 constitutes sufficient
cause. Respondent Nos.3 and 4 came to know
of the refusal order only in July 2005. They
filed an affidavit in August 2005 explaining the
circumstances. They acted promptly upon
gaining knowledge. There was no deliberate
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delay. They stand to gain nothing by
prolonging proceedings.
22.15. He emphasises that Respondent Nos.3 and 4
are persons with disabilities (deaf and dumb),
and that their socio-economic background
must also be borne in mind while examining
delay. Limitation is not meant to destroy
substantive rights but to ensure diligence.
Where a party has acted bona fide and
without mala fides, courts and authorities
must adopt a liberal approach.
22.16. The doctrine of limitation is procedural in
nature. It regulates the remedy but does not
extinguish substantive rights unless the
statute expressly so provides. The appellate
authority was justified in preferring a decision
on merits rather than shutting the doors on
Respondent Nos.3 and 4 on a technical plea of
delay. The explanation offered was reasonable
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and plausible, and there is no material to
suggest that the delay was intentional or
motivated.
22.17. Learned Senior Counsel submits that if the
authorities failed to communicate refusal or
failed to complete the process in accordance
with law, Respondent Nos.3 and 4 cannot be
penalised for such administrative lapses.
Respondent Nos.3 and 4 have been
consistently asserting their rights under the
sale deed executed in 1988. The non-
registration occurred due to statutory
requirements then prevailing under Section
230A of the Income Tax Act. Once that
provision stood omitted, the impediment
ceased.
22.18. If limitation is applied in a rigid and technical
manner, the substantive rights flowing from a
concluded sale transaction would be
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extinguished without adjudication on merits.
Justice demands that the matter be examined
substantively rather than dismissed on
technical grounds of limitation.
22.19. The determination of this Point requires a
careful analysis of the statutory scheme under
Section 72(1) of the Registration Act, the
applicability of Section 29(2) of the Limitation
Act, 1963, and the principles governing
condonation of delay.
22.20. The fundamental question is whether the
District Registrar, while exercising appellate
jurisdiction under Section 72(1) of the
Registration Act, possesses the authority to
condone delay by invoking Section 5 of the
Limitation Act, 1963.
22.21. Section 72(1) of the Registration Act, 1908
prescribes that an appeal against an order of
refusal shall be presented within thirty days
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from the date of the order. The provision does
not contain any express clause enabling
condonation of delay. It does not employ
expressions such as "sufficient cause" or "such
further time as may be allowed". It does not
incorporate or refer to the Limitation Act.
22.22. Section 29(2) of the Limitation Act, 1963
provides as follows:
"Where any special or local law prescribes
for any suit, appeal or application a period of
limitation different from the period
prescribed by the Schedule, the provisions of
Section 4 to Section 24 (inclusive) shall, as
far as may be, apply only in so far as, and to
the extent to which, they are not expressly
excluded by such special or local law."
22.23. The question is whether Section 72(1) of the
Registration Act "expressly excludes" the
application of Sections 4 to 24 of the
Limitation Act, which include Section 5.
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22.24. This Court notes that the expression
"expressly excluded" occurring in Section
29(2) of the Limitation Act has been the
subject of interpretation in several decisions of
the Hon'ble Supreme Court.
22.25. In Mangu Ram v. Municipal Corporation of
Delhi, the Hon'ble Supreme Court
distinguished between the position under the
Indian Limitation Act, 1908 and the Limitation
Act, 1963. Under the 1908 Act, Section
29(2)(b) expressly excluded the application of
Section 5 in cases where a special or local law
prescribed its own period of limitation.
However, under the Limitation Act, 1963, the
scheme was materially altered. Section 29(2)
of the 1963 Act provides that the provisions of
Sections 4 to 24 shall apply unless expressly
excluded by the special or local law. The
Hon'ble Supreme Court held that in the
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absence of express exclusion, Section 5 would
apply even to proceedings governed by a
special statute.
22.26. In Patel Brothers v. State of Assam and
Others, the Hon'ble Supreme Court explained
that the phrase "expressly excluded" does not
necessarily require a specific reference in the
special statute stating that the Limitation Act
shall not apply. The Court must examine the
scheme, structure, and subject-matter of the
special enactment. If, upon such examination,
it is evident that the special law constitutes a
complete code and the legislative intent is to
exclude the operation of the Limitation Act,
then such exclusion can be inferred.
Conversely, unless such exclusion is clearly
discernible from the statutory scheme, the
provisions of Sections 4 to 24 of the Limitation
Act would apply by virtue of Section 29(2).
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22.27. This Court must therefore examine whether
the Registration Act, and in particular Section
72, constitutes a complete code such that the
application of Section 5 of the Limitation Act is
necessarily excluded.
22.28. The Registration Act, 1908 is a comprehensive
enactment governing the registration of
documents. It prescribes the manner in which
documents are to be presented, registered,
and recorded. It also prescribes the powers
and duties of registration officers and the
remedies available against their orders.
22.29. Section 72 provides a right of appeal against
an order of refusal of registration (except in
cases of denial of execution, which are
governed by Section 73). The appeal lies to
the officer to whom the Registrar or Sub-
Registrar is subordinate. The provision
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prescribes a limitation period of thirty days
from the date of the order.
22.30. Section 73 deals with cases where registration
is refused on the ground of denial of
execution. In such cases, a different
procedure is prescribed. The person
presenting the document may institute a suit
to establish his right to have the document
registered, and the court may direct
registration if it finds that the document was
duly executed.
22.31. The scheme of the Registration Act thus
provides distinct remedies for different
situations. Section 72 provides a summary
appellate remedy where refusal is on grounds
other than denial of execution. Section 73
provides a judicial remedy where refusal is on
the ground of denial of execution.
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22.32. The question is whether the statutory scheme,
read as a whole, indicates a legislative intent
to exclude the application of Section 5 of the
Limitation Act to appeals under Section 72.
22.33. This Court notes that Section 72 does not
contain any express provision stating that the
Limitation Act shall not apply. It does not
contain a non obstante clause overriding the
Limitation Act. It does not contain language
such as "and not otherwise" or "and no appeal
shall be entertained after the expiry of such
period". It simply prescribes a period of thirty
days.
22.34. The question then is whether the absence of
any enabling clause permitting condonation
amounts to an implied exclusion of Section 5
of the Limitation Act.
22.35. This Court has carefully considered the
conflicting authorities on this question. On the
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one hand, decisions such as Amrawati v.
Registrar/Apar Collector Pratapgarh and
Others hold that the Registrar is not a Court,
and that in the absence of express
incorporation of the Limitation Act, Section 5
cannot be invoked. On the other hand,
decisions such as Mangu Ram v. Municipal
Corporation of Delhi and Patel Brothers v.
State of Assam and Others hold that
Section 5 applies unless expressly excluded,
and that exclusion must be clear from the
statutory scheme.
22.36. This Court is of the view that the ratio laid
down by the Hon'ble Supreme Court in
Mangu Ram and Patel Brothers must
prevail. The Hon'ble Supreme Court has
authoritatively laid down that under the
Limitation Act, 1963, the legislative scheme is
to make Sections 4 to 24 broadly applicable
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unless there is express or clearly implied
exclusion. The mere absence of an enabling
clause for condonation does not amount to
exclusion.
22.37. However, this Court must also give due regard
to the nature of the authority exercising
jurisdiction under Section 72, the purpose of
prescribing a limitation period, and the
broader context of the statutory scheme.
22.38. The District Registrar is not a Court in the
strict sense. He is a statutory authority
performing administrative and quasi-judicial
functions. The appellate jurisdiction conferred
under Section 72 is summary in nature and is
intended to provide a quick remedy for
correcting errors or refusals that are not
justified. The prescription of a short limitation
period of thirty days reflects the legislative
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intent to ensure finality and expedition in
registration proceedings.
22.39. At the same time, this Court cannot ignore the
principles laid down by the Hon'ble Supreme
Court in Dhiraj Singh (Dead) through
Legal Representatives and Others v.
State of Haryana and Others, emphasising
the need for a liberal and justice-oriented
approach in matters of condonation of delay.
The Hon'ble Supreme Court has consistently
held that Section 5 of the Limitation Act has
been enacted to enable courts and authorities
to do substantial justice, and that when
substantial justice and technical
considerations are in conflict, substantial
justice must prevail.
22.40. This Court is also mindful of the principles laid
down in Hilli Multipurpose Cold Storage,
Aman Engineering Works, and Indian
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Coffee Worker's case, which emphasise that
where the legislature has prescribed a specific
time frame without providing for extension,
the authority must act strictly within those
confines.
22.41. However, this Court notes a material
distinction between the present case and the
cases relied upon by the Petitioners. In Hilli
Multipurpose Cold Storage, the statute
expressly prescribed an outer limit of 45 days
(30 days plus 15 days), and the question was
whether the authority could extend time
beyond that outer limit. The Hon'ble Supreme
Court held that it could not. In Indian Coffee
Worker's case, the statute expressly
provided for condonation of delay up to an
additional 30 days, thereby prescribing a
maximum outer limit of 60 days, and the
question was whether the authority could
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condone delay beyond that limit. The Hon'ble
Madras High Court held that it could not.
22.42. In both these cases, the legislature had
expressly prescribed a maximum outer limit.
The holding was that the authority could not
travel beyond that limit. However, in the
present case, Section 72 does not prescribe
any outer limit. It simply prescribes a period
of thirty days, without indicating whether that
period is capable of extension or not.
22.43. In such circumstances, this Court is of the
view that the applicability of Section 5 of the
Limitation Act cannot be ruled out. The
absence of an express enabling clause for
condonation does not amount to express
exclusion of Section 5, particularly in light of
the legislative scheme under the Limitation
Act, 1963, which makes Section 5 broadly
applicable unless expressly excluded.
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22.44. However, this Court is also of the view that
the power to condone delay, even if available,
must be exercised sparingly and only in
exceptional circumstances. The prescription of
a short limitation period of thirty days under
Section 72 reflects the legislative intent to
ensure expedition and finality. Any
condonation of delay must be justified by
cogent reasons and must not defeat the
legislative intent.
22.45. In the present case, this Court has already
held under Point No.1 that the refusal order
dated 10.11.2000 was not duly communicated
to Respondent Nos.3 and 4 in accordance with
law. This Court has further held under Point
No.2 that limitation commenced only from the
date of knowledge in July 2005, and not from
10.11.2000.
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22.46. The appeal was filed on 18.08.2005. If
knowledge was acquired in the first week of
July 2005, the thirty-day period would expire
in the first week of August 2005. The appeal
filed on 18.08.2005 would therefore be
marginally beyond the thirty-day period,
assuming knowledge was acquired on
01.07.2005.
22.47. However, this Court notes that the exact date
of knowledge has not been precisely
established. The affidavit filed by Respondent
Nos.3 and 4 states that they came to know of
the refusal order in the "first week of July
2005". If knowledge was acquired on, say,
07.07.2005, the thirty-day period would
expire on 06.08.2005. If knowledge was
acquired on 10.07.2005, the thirty-day period
would expire on 09.08.2005. In either case,
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the appeal filed on 18.08.2005 would be
delayed by a few days.
22.48. This Court is of the view that in the
circumstances of the present case, where the
refusal order was not duly communicated,
where Respondent Nos.3 and 4 are persons
with disabilities (deaf and dumb), where they
acted promptly upon acquiring knowledge,
and where the delay is marginal and of the
order of a few days, the delay, if any, could be
condoned in exercise of jurisdiction under
Section 5 of the Limitation Act, 1963, if such
jurisdiction is available to the District
Registrar.
22.49. For the reasons discussed above, this Court is
of the view that Section 5 of the Limitation
Act, 1963 is not expressly excluded by Section
72 of the Registration Act, and that the
District Registrar has jurisdiction to condone
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marginal delays upon sufficient cause being
shown.
22.50. However, this Court must also examine
whether the District Registrar in fact passed a
valid order condoning delay. This aspect
requires careful scrutiny.
22.51. The record shows that when the appeal was
initially filed in R.A. No.3/2005-06, an
application for condonation of delay was filed.
The District Registrar, by order dated
10.01.2006, allowed the appeal and directed
registration of the sale deed. However, that
order was quashed by this Court by order
dated 18.08.2008 in W.P. Nos.3054/2006 and
1641/2007, and the matter was remitted for
fresh consideration.
22.52. Pursuant to the remand, the appeal was
renumbered as R.A. No.4/2008-09. The
Petitioners were impleaded as parties. The
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Petitioners contend that they were under the
bona fide impression that the matter would be
reconsidered de novo in light of the remand
order, and that the issue of limitation would
be examined afresh. However, according to
the Petitioners, the proceedings continued
from the stage at which they had earlier
culminated, and ultimately, by order dated
31.10.2009, the appeal was once again
allowed and the Sub-Registrar was directed to
register the sale deed.
22.53. The Petitioners contend that the District
Registrar did not pass any independent or
reasoned order on the application seeking
condonation of delay. There is no
determination of when knowledge of the
refusal order was acquired, whether the
appeal was within thirty days, whether delay
stood condoned, and if so, under what
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statutory authority. Instead, the proceedings
appear to have been carried forward on the
assumption that delay stood condoned,
without any formal adjudication.
22.54. This Court has carefully examined the order
dated 31.10.2009. The order does not contain
any express finding on the issue of limitation.
It does not record any consideration of the
application for condonation of delay. It does
not set out the reasons for condoning delay, if
delay was in fact condoned. It proceeds
directly to the merits of the appeal.
22.55. This is a serious lacuna. When a party raises a
jurisdictional objection based on limitation,
and when an application for condonation of
delay is filed, it is incumbent upon the
appellate authority to record a clear finding on
the issue of limitation. The authority must
determine:
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22.55.1. Whether the appeal was filed within
the prescribed period;
22.55.2. If not, whether there was delay, and
if so, the extent of delay;
22.55.3. Whether sufficient cause has been
shown for condonation of delay;
22.55.4. Whether the authority has jurisdiction
to condone delay;
22.55.5. Whether, in exercise of such
jurisdiction, delay is condoned.
22.56. In the absence of such findings, it is
impossible for this Court to ascertain whether
the District Registrar applied his mind to the
issue of limitation, whether he exercised
jurisdiction in accordance with law, and
whether the condonation of delay (if any) was
justified.
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22.57. This Court is mindful of the principles laid
down by the Hon'ble Supreme Court that
when this Court exercises jurisdiction under
Article 226 of the Constitution, it must be slow
to interfere with the orders of statutory
authorities on questions of fact. However,
where an authority has failed to consider a
foundational jurisdictional issue, or where
there is non-application of mind, interference
is warranted.
22.58. In the present case, the issue of limitation
was specifically raised by the Petitioners. The
affidavit of the Inspector General of
Registration was filed, which contained
material relevant to the issue of
communication of the refusal order. The
Petitioners contended that the refusal order
was communicated on 10.11.2000, and that
the appeal filed on 18.08.2005 was hopelessly
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time-barred. Respondent Nos.3 and 4
contended that the refusal order was not
communicated, and that they came to know of
it only in July 2005.
22.59. These were conflicting contentions which
required adjudication. The District Registrar
was required to examine the evidence,
determine when the refusal order was
communicated or when knowledge was
acquired, compute the period of limitation,
and determine whether there was any delay
and whether such delay could be condoned.
22.60. The order dated 31.10.2009 does not contain
any such determination. This constitutes non-
application of mind to a foundational
jurisdictional issue.
22.61. The remand order passed by this Court on
18.08.2008 had quashed the earlier appellate
order dated 10.01.2006 and remitted the
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matter for fresh consideration, keeping all
contentions open. This necessarily included
the issue of limitation and the legality of
condonation of delay. The remand required a
fresh application of mind to all foundational
issues.
22.62. However, the order dated 31.10.2009 does
not reflect any such fresh consideration. The
District Registrar appears to have proceeded
on the assumption that the issue of limitation
stood concluded or that delay had already
been condoned, without recording any
independent finding.
22.63. This Court is therefore of the view that the
order dated 31.10.2009 suffers from a serious
infirmity in that it fails to address the
jurisdictional issue of limitation. This non-
application of mind vitiates the entire
proceeding.
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22.64. However, this Court must also consider
whether, in the circumstances of the present
case, the defect is curable or whether the
matter must be remitted for fresh
consideration.
22.65. Having regard to the findings already recorded
by this Court under Point Nos.1 and 2, this
Court is of the view that:
22.65.1. The refusal order dated 10.11.2000
was not duly communicated to
Respondent Nos.3 and 4 in
accordance with law.
22.65.2. Limitation commenced only from the
date of knowledge in July 2005.
22.65.3. The appeal was filed on 18.08.2005,
which is within reasonable proximity
to the date of knowledge.
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22.65.4. Even if there was a marginal delay of
a few days, such delay could be
condoned in the circumstances of the
present case.
22.66. In light of these findings, this Court is of the
view that even though the District Registrar
failed to record express findings on the issue
of limitation, the appeal was not in fact barred
by limitation, or if there was a marginal delay,
it was condonable.
22.67. However, this Court must emphasise that the
failure of the District Registrar to address the
jurisdictional issue of limitation is a serious
procedural irregularity. Statutory authorities
exercising quasi-judicial functions are required
to apply their mind to all issues raised by the
parties, particularly jurisdictional issues, and
to record findings with reasons. The absence
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of such findings creates uncertainty and
invites challenge.
22.68. In the present case, this Court has
independently examined the issue of limitation
and has recorded findings. In light of such
findings, this Court does not consider it
necessary to remit the matter to the District
Registrar solely on the ground of non-
consideration of limitation.
22.69. I answer Point No.3 by holding that:
22.69.1. Section 5 of the Limitation Act, 1963
is not expressly excluded by Section
72 of the Registration Act.
22.69.2. The District Registrar has jurisdiction
to condone marginal delays upon
sufficient cause being shown.
22.69.3. In the circumstances of the present
case, the appeal filed on 18.08.2005
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was not barred by limitation, or if
there was a marginal delay, it was
condonable.
22.69.4. However, the District Registrar failed
to record express findings on the
issue of limitation, which constitutes
non-application of mind.
22.69.5. Notwithstanding such procedural
irregularity, this Court, having
independently examined the issue,
holds that the appeal was not
incompetent on the ground of
limitation.
23. Answer to Point No. 4. Whether the Sub-
Registrar was justified in refusing registration
of the sale deed on the ground of non-
production of certificate under Section 230A of
the Income Tax Act, and whether subsequent
registration was legally sustainable?
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23.1. Learned Senior Counsel appearing for the
Petitioners submits that at the time when the
sale deed was presented for registration on
18.02.1988, Section 230A of the Income Tax
Act, 1961 was in force. The said provision
imposed a mandatory requirement that no
registering officer shall register any document
relating to transfer of immovable property
valued at more than five lakh rupees unless
the person executing such document produces
a certificate from the Assessing Officer to the
effect that he has no liability under the
Income Tax Act, or that he has made
satisfactory arrangements for payment of any
liability under the Act which is outstanding at
the time of execution of the document.
23.2. The sale deed in question related to transfer
of immovable property. The valuation
exceeded five lakh rupees. Therefore, the
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requirement under Section 230A of the
Income Tax Act was attracted. The Sub-
Registrar was bound by the statutory mandate
and could not have registered the document
without production of the requisite certificate.
23.3. Learned Senior Counsel submits that when the
document was presented on 18.02.1988, the
certificate under Section 230A was not
produced. The Sub-Registrar was therefore
justified in refusing registration and keeping
the document pending.
23.4. Notices were issued by the Sub-Registrar on
27.09.1989 and again on 27.07.1999 calling
upon Sri Sadappa to produce the requisite tax
clearance certificate. Despite issuance of
repeated notices spanning nearly a decade, no
such certificate was forthcoming. Ultimately,
by order dated 10.11.2000, the Sub-Registrar
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formally refused registration on the ground of
non-production of the certificate.
23.5. Learned Senior Counsel submits that Section
230A of the Income Tax Act was subsequently
omitted by the Finance Act, 2001 with effect
from 01.06.2001. Prior to its omission, the
section mandated production of a certificate
from the Assessing Officer for registration of
property valued above five lakh rupees.
However, the refusal order dated 10.11.2000
had already been passed when the provision
was very much in force.
23.6. Learned Senior Counsel submits that the
omission of Section 230A does not have
retrospective effect. The provision was in force
at the time when the document was presented
and at the time when the refusal order was
passed. The refusal was therefore legally
justified and in accordance with law.
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23.7. Even after the omission of Section 230A, the
refusal order dated 10.11.2000 retained its
legal validity. The omission of the provision
does not ipso facto revive documents that had
already been refused registration on that
ground.
23.8. Learned Senior Counsel further submits that
the clarification dated 02.08.2001 issued by
the Inspector General of Registration,
allegedly directing that documents kept
pending for want of Income Tax clearance
prior to 01.06.2001 be registered, is wholly
inapplicable to the present case for a
fundamental reason. The clarification
concerned documents that were "pending". In
the present case, the Sub-Registrar had
already passed a formal order refusing
registration on 10.11.2000. Once refusal had
been recorded, the document ceased to be
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pending in law. Therefore, a clarification
relating to pending documents cannot revive a
concluded refusal. An administrative circular
cannot override statutory limitation. An
executive instruction cannot create a fresh
cause of action.
23.9. Learned Senior Counsel accordingly submits
that the Sub-Registrar was fully justified in
refusing registration of the sale deed on the
ground of non-production of certificate under
Section 230A of the Income Tax Act, and that
the subsequent registration pursuant to the
appellate order was not legally sustainable,
the appeal itself being time-barred.
23.10. Learned Senior Counsel appearing for
Respondent Nos.3 and 4 submits that the
function of the Sub-Registrar at the stage of
registration is administrative and procedural in
nature. The Sub-Registrar is not vested with
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authority to adjudicate disputes relating to
title, validity of transaction, or competing
claims. His jurisdiction is confined to ensuring
compliance with the procedural requirements
stipulated under the Registration Act.
23.11. If the document is presented by the
executant, the executant admits execution,
the document is duly stamped, and the
formalities under Sections 32, 34 and allied
provisions of the Registration Act are complied
with, then, in the absence of any specific
statutory prohibition, the Sub-Registrar
cannot refuse registration.
23.12. The registering officer's role is not
adjudicatory in nature with respect to
substantive rights or valuation disputes. His
duty is to register the document if the
statutory requirements are complied with, and
if necessary, make a reference for valuation.
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This Court held that the Sub-Registrar had no
competence to reject registration solely on the
ground that a certificate under Section 230A
of the Income Tax Act had not been produced,
and directed registration unless there was any
other impediment.
23.13. The power of the Sub-Registrar to refuse
registration is strictly circumscribed. Refusal
must be traceable to a statutory provision.
The Sub-Registrar cannot enlarge his
jurisdiction.
23.14. In the present case, the document was duly
executed. It was presented for registration.
Execution was not denied. The refusal was
solely on the ground of non-production of a
certificate under Section 230A of the Income
Tax Act.
23.15. Learned Senior Counsel submits that Section
230A was subsequently omitted with effect
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from 01.06.2001. Once that statutory
requirement stood removed, the impediment
to registration ceased to exist. The Sub-
Registrar was thereafter under a legal
obligation to register the document, provided
all other procedural requirements were
satisfied.
23.16. Learned Senior Counsel submits that the
Inspector General of Registration, recognising
this legal position, issued a clarification dated
02.08.2001 directing that documents kept
pending for want of Income Tax clearance
prior to 01.06.2001 be registered. This
clarification was binding upon all Sub-
Registrars and was issued in exercise of
supervisory powers conferred under the
Registration Act.
23.17. The clarification was not merely an
administrative instruction but was a direction
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issued to give effect to the changed legal
position consequent upon the omission of
Section 230A. The Sub-Registrar was bound to
comply with such direction.
23.18. Learned Senior Counsel further submits that
the refusal order dated 10.11.2000 was
passed prior to the omission of Section 230A.
However, once Section 230A stood omitted
with effect from 01.06.2001, the legal
foundation for the refusal ceased to exist. The
refusal order, being founded upon a provision
that was no longer in force, lost its validity.
23.19. In such circumstances, the appeal filed by
Respondent Nos.3 and 4 was not merely an
appeal against refusal but a request to give
effect to the changed legal position. The
District Registrar, in allowing the appeal and
directing registration, was merely giving effect
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to the law as it stood after the omission of
Section 230A.
23.20. Learned Senior Counsel submits that the
registration of the sale deed pursuant to the
appellate order was therefore legally
sustainable and in accordance with law.
23.21. The determination of this Point requires an
examination of the statutory scheme under
Section 230A of the Income Tax Act, 1961,
the scope of power of the Sub-Registrar at the
stage of registration, and the effect of
omission of Section 230A on pending or
refused documents.
23.22. Section 230A of the Income Tax Act, 1961, as
it stood prior to its omission, read as follows:
"230A. Prohibition of registration of
certain documents relating to immovable
property without tax clearance
certificate.-- (1) Notwithstanding anything
contained in the Registration Act, 1908 (16 of
1908), or in any other law for the time being
in force, no registering officer appointed under
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sub-section (1) of section 6 of the said Act
shall register any document to which this
section applies unless the person executing
such document furnishes to such officer a
certificate from the Assessing Officer to the
effect that -
(a) the Assessing Officer is satisfied that the
person executing the document has paid or
made satisfactory arrangements for payment
of all taxes, penalties, interest or other sums
then payable by him under this Act in respect
of any period prior to the date of execution of
the document or under the Indian Income-tax
Act, 1922 (11 of 1922), in respect of any
period prior to the date of execution of the
document or the 1st day of April, 1962,
whichever is later; or
(b) such person is not required under this Act
to furnish a return of his total income.
(2) This section applies to a document relating
to the transfer of any immovable property
where the value of such property as set forth
in the document exceeds five lakh rupees."
23.23. The provision imposed a mandatory
prohibition on the registering officer. The
expression "no registering officer ..... shall
register any document to which this section
applies unless the person ...... furnishes to
such officer a certificate from the Assessing
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Officer " is imperative. The registering officer
had no discretion to register a document
falling within the scope of Section 230A unless
the requisite certificate was produced.
23.24. In the present case, the sale deed was
presented for registration on 18.02.1988. At
that time, Section 230A was in force. The
document related to transfer of immovable
property. The value, as set forth in the
document, exceeded five lakh rupees.
Therefore, the requirement under Section
230A(1) was attracted.
23.25. The certificate from the Assessing Officer was
not produced at the time of presentation. The
Sub-Registrar was therefore bound by the
statutory mandate under Section 230A and
could not have registered the document.
23.26. The Sub-Registrar, instead of refusing
registration outright, kept the document
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pending and issued notices to the person
presenting the document calling upon him to
produce the requisite certificate. Notices were
issued on 27.09.1989 and again on
27.07.1999. Despite such notices spanning
nearly a decade, no certificate was produced.
23.27. What is required to be considered is that the
obligation to furnish such a document is on
the Vendor and not on the purchaser, since
the usage of words is "unless the person
executing such document furnishes". Thus,
what this court would also have to consider is
that the above obligation was that of the
father of the Petitioner and not that of the
father of Respondents 3 & 4.
23.28. Ultimately, by order dated 10.11.2000, the
Sub-Registrar formally refused registration on
the ground of non-production of the certificate
under Section 230A.
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23.29. This Court is of the view that the Sub-
Registrar acted in accordance with law in
refusing registration. At the time when the
refusal order was passed on 10.11.2000,
Section 230A was in force. The statutory
prohibition was clear and mandatory. The
Sub-Registrar had no discretion to register the
document in the absence of the requisite
certificate.
23.30. Section 230A of the Income Tax Act was
subsequently omitted by the Finance Act,
2001 with effect from 01.06.2001. The
omission was effected by the Finance Act,
2001 (Act No.14 of 2001), Section 99, which
provided:
"Section 230A of the Income-tax Act shall be
omitted."
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23.31. The Finance Act, 2001 received the assent of
the President on 11.05.2001 and came into
force with effect from 01.06.2001.
23.32. The question that arises is: what is the effect
of the omission of Section 230A on documents
that had already been refused registration on
the ground of non-production of certificate
under that section?
23.33. This Court notes that the omission of a
statutory provision operates prospectively
unless the legislature expressly provides for
retrospective operation. The omission of
Section 230A does not contain any
retrospective saving clause or provision
reviving documents that had already been
refused registration.
23.34. At the time when Section 230A was omitted,
the refusal order dated 10.11.2000 had
already been passed. The refusal was legally
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justified at the time it was passed, since
Section 230A was then in force.
23.35. However, this Court must also consider the
nature of Section 230A. Was it a substantive
provision affecting the validity of the
transaction, or was it a procedural provision
regulating the mode of registration?
23.36. This Court is of the view that Section 230A
was a procedural provision. It did not render
the transaction void or voidable. It did not
affect the validity of the sale deed as between
the parties. It merely imposed a procedural
restriction on registration for the purpose of
ensuring collection of tax dues.
23.37. The underlying transaction, the sale of
immovable property, was valid and
enforceable as between the parties. The
restriction under Section 230A related only to
the act of registration. Registration, under the
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Registration Act, is primarily for the purpose
of creating notice to third parties and for
admissibility of the document in evidence.
Non-registration does not, by itself, invalidate
the transaction as between the parties.
23.38. Once Section 230A stood omitted with effect
from 01.06.2001, the procedural restriction on
registration was removed. There was no
longer any statutory prohibition on
registration of documents relating to transfer
of immovable property without production of
tax clearance certificate.
23.39. The question then is: could a document that
had been refused registration prior to
01.06.2001 on the ground of non-production
of certificate under Section 230A be registered
after 01.06.2001, once that provision stood
omitted?
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23.40. This Court is of the view that the answer must
be in the affirmative, subject to compliance
with the statutory remedies available under
the Registration Act.
23.41. Once Section 230A stood omitted, the legal
foundation for the refusal ceased to exist. The
refusal was based solely on non-production of
the certificate under Section 230A. If that
provision no longer existed, the ground for
refusal was no longer valid.
23.42. However, the refusal order dated 10.11.2000
did not ipso facto cease to have effect upon
omission of Section 230A. The refusal order
was a formal adjudicatory order passed by a
statutory authority. It continued to have legal
effect unless and until it was set aside or
reversed through the appropriate statutory
remedy.
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23.43. The appropriate statutory remedy was an
appeal under Section 72 of the Registration
Act. If the person aggrieved by the refusal
order desired to challenge it, the remedy was
to file an appeal within the prescribed period.
23.44. In the present case, Respondent Nos.3 and 4
filed an appeal under Section 72 on
18.08.2005. This Court has already held under
Point Nos.1, 2 and 3 that the appeal was not
barred by limitation, or that any marginal
delay was condonable.
23.45. The District Registrar, while hearing the
appeal, was required to consider whether the
refusal was justified in law. At the time when
the appeal was heard and decided (between
2005 and 2009), Section 230A was no longer
in force, having been omitted with effect from
01.06.2001.
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23.46. In such circumstances, the District Registrar
was entitled to take into account the changed
legal position. The ground on which refusal
had been ordered, namely, non-production of
certificate under Section 230A, was no longer
a valid ground, since that provision had been
omitted.
23.47. This Court is therefore of the view that the
District Registrar was justified in allowing the
appeal and directing registration of the sale
deed, subject to compliance with other
procedural requirements.
23.48. The Petitioners contend that the clarification
dated 02.08.2001 issued by the Inspector
General of Registration is inapplicable, since it
concerned documents that were "pending",
whereas in the present case the document
had already been refused registration.
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23.49. This Court agrees that there is a distinction
between documents that are pending and
documents that have been formally refused.
However, the distinction is not determinative.
The material consideration is that once
Section 230A stood omitted, the legal basis
for refusal ceased to exist. Whether the
document was pending or had been refused,
the omission of the statutory provision
removed the impediment to registration.
23.50. The clarification issued by the Inspector
General of Registration was in the nature of
an administrative instruction to Sub-Registrars
to give effect to the changed legal position.
While such clarification may not have the force
of a statutory amendment, it was a
recognition of the legal position that
documents that could not be registered prior
to 01.06.2001 due to Section 230A could now
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be registered, since that provision had been
omitted.
23.51. The Petitioners further contend that the Sub-
Registrar had no jurisdiction to refuse
registration on grounds extraneous to the
Registration Act, and rely upon S. Sreenivasa
Rao v. Sub-Registrar (Headquarters) and
Mohan Shet v. State of Karnataka.
23.52. This Court notes that both these decisions
emphasise that the Sub-Registrar's
jurisdiction at the stage of registration is
limited and procedural. The Sub-Registrar
cannot refuse registration on grounds that
involve adjudication of title or disputes
between parties. However, where a statute
imposes a mandatory prohibition on
registration, the Sub-Registrar is bound to
comply with such prohibition.
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23.53. In the present case, at the time when the
refusal order was passed on 10.11.2000,
Section 230A imposed a mandatory
prohibition. The Sub-Registrar was bound to
refuse registration in the absence of the
requisite certificate. The refusal was not on
grounds extraneous to law, but was in
compliance with a statutory mandate.
23.54. However, once Section 230A stood omitted,
the prohibition ceased to exist. In such
circumstances, the District Registrar, while
hearing the appeal, was entitled to direct
registration, since there was no longer any
legal impediment.
23.55. The Petitioners further contend that even after
the omission of Section 230A, the refusal
order dated 10.11.2000 retained its legal
validity, and could be set aside only by filing
an appeal within the prescribed period. This
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Court agrees with this submission in principle.
The refusal order did not automatically cease
to have effect upon omission of Section 230A.
However, this Court has already held under
Point Nos.1, 2 and 3 that the appeal was not
barred by limitation. Therefore, the District
Registrar had jurisdiction to hear the appeal
and to direct registration.
23.56. I Answer Point No.4 by holding that:
23.57. The Sub-Registrar was justified in refusing
registration of the sale deed on 10.11.2000 on
the ground of non-production of certificate
under Section 230A of the Income Tax Act,
since that provision was in force at that time.
23.57.1. Section 230A was a procedural
provision imposing a restriction on
registration, and did not affect the
validity of the transaction as between
the parties.
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23.57.2. Once Section 230A stood omitted
with effect from 01.06.2001, the
legal foundation for the refusal
ceased to exist.
23.57.3. The refusal order did not ipso facto
cease to have effect, but could be
challenged through an appeal under
Section 72 of the Registration Act.
23.57.4. The District Registrar, while hearing
the appeal filed by Respondent Nos.3
and 4, was entitled to take into
account the changed legal position
and to direct registration, since the
ground for refusal was no longer
valid.
23.57.5. The subsequent registration pursuant
to the appellate order was legally
sustainable, subject to the
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determination of other issues raised
in this writ petition.
24. Answer to Point No. 5: Whether valuable rights
had crystallised in favour of the Petitioners,
including Petitioner No.2 as a subsequent
purchaser, prior to the filing of the appeal, and
whether the impugned order dated 31.10.2009
suffers from jurisdictional error, procedural
illegality, or non-application of mind?
24.1. Learned Senior Counsel appearing for the
Petitioners submits that by the time
Respondent Nos.3 and 4 preferred the appeal
under Section 72 of the Registration Act on
18.08.2005, valuable legal rights had already
crystallised in favour of the Petitioners,
particularly Petitioner No.2, and that such
crystallised rights could not have been ignored
by the appellate authority.
24.2. It is contended that the sale deed allegedly
executed on 18.02.1988 in favour of Sri
Sadappa remained unregistered during his
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lifetime. Sri Sadappa expired on 03.08.2002
without complying with the statutory
requirement then prevailing under Section
230A of the Income Tax Act and without
completing the process of registration.
According to the Petitioners, until registration
is completed, a sale deed does not operate to
convey legal title under Section 54 of the
Transfer of Property Act, and therefore, the
transaction in favour of Sri Sadappa remained
legally incomplete.
24.3. It is further submitted that Sri V.K.
Kamalanabhan, whose whereabouts were
unknown for a prolonged period, was
presumed dead in accordance with law after
the lapse of seven years. Following such
presumption, Petitioner No.1 (his wife) and
Respondent No.5 (his son) approached the
competent revenue authorities seeking
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mutation of their names in respect of the
property.
24.4. By order dated 30.04.2005 in M.R.
No.130/2004, the revenue authorities effected
mutation in their favour. Learned Senior
Counsel submits that although mutation does
not confer title, it reflects de facto recognition
of possession and claim over the property.
24.5. Thereafter, on 11.07.2005, Petitioner No.1
and Respondent No.5 executed a registered
sale deed in favour of Petitioner No.2
conveying the subject property. The said
document was duly presented, admitted, and
registered in accordance with law.
24.6. It is urged that Petitioner No.2 is a bona fide
purchaser for value without notice of any
enforceable prior claim. Since the earlier
document in favour of Sri Sadappa was
unregistered at the relevant time, it did not
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operate as statutory notice under the
Registration Act. Therefore, Petitioner No.2's
rights, according to the Petitioners, stood
perfected and crystallised on 11.07.2005.
24.7. It is argued that when Respondent Nos.3 and
4 filed the appeal on 18.08.2005, they did so
after third-party rights had intervened, and
the appellate authority was duty-bound to
consider the impact of such intervening rights.
24.8. Learned Senior Counsel further contends that
the remand order dated 18.08.2008 required
a fresh and comprehensive consideration of all
issues, including limitation. The failure of the
District Registrar to record elaborate findings
on limitation, it is submitted, reflects non-
application of mind.
24.9. Finally, it is contended that the registration
effected on 31.10.2009 on the very same day
as the appellate order raises legitimate
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suspicion regarding the fairness of the
process.
24.10. Learned Senior Counsel for Respondent Nos.3
and 4 submits that the rights claimed by them
flow from the sale deed dated 18.02.1988
executed by Sri V.K. Kamalanabhan in favour
of Sri Sadappa, and that the delay in
registration was occasioned by statutory
requirements then in force.
24.11. It is submitted that proceedings under Section
72 are limited in scope and do not involve
adjudication of competing title. The appellate
authority is concerned only with the legality of
refusal.
24.12. It is further pointed out that after remand,
Petitioner No.2 was impleaded as a party,
served with notice, entered appearance
through counsel, and participated in the
proceedings by cross-examining the witness.
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24.13. It is submitted that no defence based on the
sale deed dated 11.07.2005 was urged before
the appellate authority and that such
contention is now sought to be raised for the
first time in writ proceedings.
24.14. The record of R.A. No.4/2008-09 establishes
that pursuant to the remand order passed by
this Court, Petitioner No.2 was impleaded as a
party to the appellate proceedings as
Respondent No.4.
24.15. Notice was duly issued and served upon him.
He entered appearance through learned
counsel. It is not disputed that the same
counsel represented Petitioner Nos.1 and 2.
The proceedings were not conducted ex parte.
Evidence was recorded. The witness examined
in support of the appeal was subjected to
cross-examination on behalf of the Petitioners
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including Petitioner No.2 who was Respondent
No.4 therein.
24.16. There is no indication in the record that
Petitioner No.2 sought to urge an independent
contention asserting that the appeal had
become untenable on account of his registered
sale deed or that third-party rights barred
consideration of the appeal. Participation by
Petitioner No.2 was therefore not merely
formal; it was substantive and effective.
24.17. The doctrine of natural justice is anchored in
fairness of procedure. It requires that a
person whose rights are likely to be affected
must be given notice and reasonable
opportunity to be heard.
24.18. In the present case:
24.18.1. Petitioner No.2 was impleaded as
Respondent No.4;
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24.18.2. Notice was duly served;
24.18.3. He entered appearance;
24.18.4. He participated in evidence;
24.18.5. He cross-examined the witness;
24.18.6. He was represented throughout.
24.19. There is no allegation that opportunity was
curtailed, that evidence was shut out, or that
procedural unfairness occurred. A party who
has consciously participated in proceedings
and chosen not to advance a particular line of
defence cannot later contend that the order is
vitiated on that ground.
24.20. The offence of natural justice cannot be
invoked to compensate for strategic omissions
or afterthoughts. Accordingly, no violation of
natural justice is made out.
24.21. Section 72 provides a statutory appeal against
refusal by the Sub-Registrar. The appellate
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authority is confined to examining whether the
refusal was legally sustainable under the
provisions of the Registration Act. The
authority does not adjudicate title, nor does it
determine priority between competing sale
deeds.
24.22. The refusal in the present case was based
solely on non-production of certificate under
Section 230A of the Income Tax Act. As
already held under Point No.4, once Section
230A stood omitted, the statutory foundation
for refusal disappeared. The District Registrar
therefore acted within jurisdiction in directing
registration.
24.23. The appellate authority neither adjudicated
title nor purported to extinguish the rights of
Petitioner No.2. Registration of the sale deed
dated 11.07.2005 in favour of Petitioner No.2
conferred statutory notice and completed
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formal requirements under the Registration
Act. However, registration does not confer
indefeasible title nor does it preclude
adjudication of competing claims arising from
prior agreements or transactions.
24.24. The direction to register the earlier sale deed
merely results in coexistence of two registered
instruments concerning the same property.
The issue of which instrument prevails
involves examination of:
24.24.1. Chronology,
24.24.2. Knowledge,
24.24.3. Good faith,
24.24.4. Consideration,
24.24.5. Legal effect of prior contractual
rights.
24.25. Such matters require detailed evidence and
fall squarely within the jurisdiction of a civil
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court, more so when the Sale Deed in facour
of the Father of Respondent 3 and 4 was
presented for registration much much earlier
in point of time than the Registeration of the
Sale Deed in favour of the Petitioner No.2 and
that the Registeration of Sale Deed in favour
of Petitioner No.2 was just a month earlier
than the filing of the Appeal by Respondent 3
and 4.
24.26. The Petitioners argue that the absence of
elaborate findings on limitation reflects the
non-application of mind. Under earlier Points,
this Court has examined the limitation and
found no jurisdictional bar.
24.27. The District Registrar possessed the
competence to entertain the appeal. Failure to
elaborate at length does not, by itself,
invalidate the order. Judicial review is
concerned with legality and jurisdiction, not
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with the length or stylistic quality of
reasoning. Thus, no prejudice or jurisdictional
defect has been demonstrated.
24.28. The contention regarding same-day
registration rests solely on suspicion.
Allegations of mala fides require specific
pleadings and cogent evidence. No material
has been placed before this Court to
substantiate such allegations. Suspicion
cannot substitute proof in judicial review.
24.29. Under Articles 226 and 227, this Court does
not act as an appellate forum over statutory
authorities. Interference is warranted only in
cases of jurisdictional error, patent illegality,
violation of natural justice, perversity, or
manifest non-application of mind. The present
controversy essentially concerns inter se
proprietary claims between two sets of
transferees. Adjudicating such issues in writ
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jurisdiction would exceed constitutional limits
and encroach upon the domain of civil courts.
24.30. Before parting with this Point, it is necessary
to emphasise the constitutional limits within
which this Court exercises jurisdiction under
Articles 226 and 227 of the Constitution of
India. The power under Article 226 is primarily
supervisory and corrective in nature, while
jurisdiction under Article 227 is one of
superintendence intended to ensure that
subordinate courts and statutory authorities
act within the bounds of their authority.
24.31. This jurisdiction is not appellate. The High
Court does not re-appreciate evidence,
substitute its own view on disputed facts, or
adjudicate questions which properly fall within
the domain of civil adjudication, unless the
impugned order is shown to suffer from patent
lack of jurisdiction, manifest illegality,
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perversity, or gross violation of natural
justice.
24.32. The distinction between an erroneous decision
and a jurisdictionally flawed decision must be
scrupulously maintained. Even if another view
on facts or law were possible, that by itself
would not justify interference in supervisory
jurisdiction unless the decision-making
process is shown to be fundamentally
defective.
24.33. In the present case, the District Registrar
acted within the statutory contours of Section
72 of the Registration Act. The authority
examined the legality of the refusal order and
directed registration upon finding that the
statutory basis for refusal no longer subsisted.
The authority did not purport to adjudicate
title, nor did it exceed its jurisdiction.
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24.34. The grievances projected by the Petitioners
substantially relate to the impact of
registration upon competing proprietary
claims. Such grievances, however legitimate
they may be in substance, arise in the realm
of substantive property law and require
adjudication upon evidence. Entertaining such
adjudication in writ jurisdiction would amount
to converting supervisory review into a forum
for civil trial, which is not permissible. This
Court is therefore constrained to decline
interference where no jurisdictional
transgression, procedural illegality, or
violation of natural justice is established.
24.35. It is clarified that the observations made in
this judgment are confined strictly to the
legality of the appellate proceedings under
Section 72 of the Registration Act. They shall
not be construed as expression of opinion on
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the merits of the competing claims of title,
which are expressly left open for adjudication
before the competent civil court.
24.36. In view of the above I answer Point No.5 by
holding that :
24.36.1. Petitioner No.2 was duly impleaded
as Respondent No.4 and afforded full
opportunity of participation in the
appellate proceedings.
24.36.2. There was no violation of principles of
natural justice.
24.36.3. Proceedings under Section 72 of the
Registration Act are confined to
examining the legality of refusal and
do not involve adjudication of title or
priority.
24.36.4. The existence of a registered sale
deed dated 11.07.2005 does not oust
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the jurisdiction of the appellate
authority.
24.36.5. The impugned order dated
31.10.2009 does not suffer from
jurisdictional error, procedural
illegality, perversity, or non-
application of mind warranting
interference under Articles 226 or
227.
24.36.6. All substantive questions relating to
competing title and priority are
expressly left open to be adjudicated
before the competent civil court.
25. Answer to Point No.6: What order? : In view of
my answers to points no. 1 to 5 above, I summarise
the position as under:
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25.1. The appeal preferred under Section 72 of the
Registration Act was maintainable and fell
within the jurisdictional competence of the
District Registrar.
25.2. The omission of Section 230A of the Income
Tax Act with effect from 01.06.2001 removed
the statutory foundation upon which the Sub-
Registrar had refused registration. The refusal
order was therefore unsustainable in law.
25.3. The District Registrar, while exercising
appellate jurisdiction under Section 72, was
required to examine only the legality of
refusal and not to adjudicate upon competing
claims of title, which infact were never raised.
25.4. Petitioner No.2 was impleaded in the appellate
proceedings after remand as Respondent
No.4, notice was duly served upon him, he
entered appearance through counsel,
participated in the proceedings, and cross-
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examined the witness. There was no denial of
opportunity and no violation of principles of
natural justice.
25.5. No independent defence based upon the
registered sale deed dated 11.07.2005 was
urged before the appellate authority. The
attempt to raise such contention for the first
time in writ jurisdiction is impermissible.
25.6. The existence of a registered sale deed in
favour of Petitioner No.2 prior to the filing of
the appeal does not oust the jurisdiction of the
appellate authority under Section 72, nor does
it render the appellate proceedings
incompetent.
25.7. Registration directed pursuant to an appellate
order does not, by itself, adjudicate title or
extinguish competing proprietary claims.
Questions of priority and bona fide purchase
remain matters for civil adjudication.
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25.8. The impugned order dated 31.10.2009 does
not suffer from lack of jurisdiction, patent
illegality, perversity, procedural impropriety,
or demonstrable non-application of mind so as
to warrant interference under Articles 226 or
227 of the Constitution.
25.9. Hence, I pass the following
ORDER
i. The Writ Petition is hereby dismissed.
ii. The order dated 31.10.2009 passed by the
District Registrar in R.A.No.4/2008-09 is
upheld.
iii. It is clarified that the registration effected
pursuant to the appellate order shall remain
subject to the outcome of any civil proceedings
that may be instituted by the parties.
iv. All contentions of the parties, including
contentions relating to the validity of the
respective sale deeds, the question of whether
Petitioner No.2 is a bona fide purchaser for
value, the applicability of principles of
constructive notice and priority, and all other
substantive issues, are left open for
adjudication in civil proceedings.
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v. It is open to either party to institute a civil suit
within a period of three months from the date
of this order. If any such suit is instituted, the
parties may approach the civil court for
appropriate interim directions relating to
possession, alienation, or encumbrance pending
adjudication of the suit.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
KTY
List No.: 2 Sl No.: 20
