Patna High Court
Avinash vs The State Of Bihar on 2 February, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.21416 of 2019
======================================================
Amod Bihari Sinha S/o Late Aadya Prasad Resident of Village- Barhnagopal,
P.s.- Siwan, Mufassil, distt.- Siwan
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration Excise and
Prohibition Department, Govt. of Bihar, Patna
2. The Inspector General of Registration Registration Excise and Prohibition
Department, Govt. of Bihar, Patna
3. The Assistant General of Registration Muzaffarpur, Registration Excise and
Prohibition Department, Govt. of Bihar, Patna
4. The Commissioner Chapra Division, Saran
5. The District Magistrate-cum-District Registrar Siwan
6. The District Magistrate-cum-District Registrar Siwan
7. The District Sub-Registrar Siwan
8. The District Sub-Registrar Barhariya, District- Siwan
9. The District Sub-Registrar Maharajganj, District- Siwan
10. The District Sub-Registrar Darauli, District- Siwan
11. The District Sub-Registrar Basantpur, District- Siwan
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 21386 of 2019
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Samiullah, Son of Md. Jan Resident of Village- Siswa, Post Siswa, P.S. Siswa,
District East Champaran, Motihari.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration Excise and
Prohibition Department, Government of Bihar, Patna.
2. The Inspector General of Registration, Registration Excise and Prohibition
Department, Government of Bihar, Patna
3. The Assistant General of Registration, Muzaffarpur, Registration Excise and
Prohibition Department, Government of Bihar, Patna
4. The Commissioner, Tirhut Division, Saran, Muzaffarpur.
5. The District Magistrate-cum- District Registrar, East Champaran, Motihari.
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
2/21
6. The District Sub- Registrar, East Champaran, Motihari.
7. The District Sub- Registrar, Chauradano, District East Champaran, Motihari.
8. The District Sub- Registrar, Dhaka, District East Champaran, Motihari.
9. The District Sub- Registrar, Areraj, District East Champaran, Motihari.
10. The District Sub- Registrar, Chakiya, District East Champaran, Motihari.
11. The District Sub- Registrar, Keshariya, District East Champaran, Motihari.
12. The District Sub- Registrar, Pakri Dayal District East Champaran, Motihari.
13. The District Sub- Registrar, Raxaul, District East Champaran, Motihari.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 21787 of 2019
======================================================
1. Umesh Kumar Prabhakar son of Ramshakal Prasad Yadav resident of
Village- Gadha Hasan, P.S. Paroo, District- Muzaffarpur.
2. Rajesh Kumar Chaudhary son of Surendra Prasad Chaudhary resident of
Village- Paroo Chaudhary Tola, P.S. Paroo, District- Muzaffarpur.
3. Dharmendra Kumar son of Ramchalitar Rai resident of Village- Gadha
Hasan, P.S. Paroo, District- Muzaffarpur.
4. Girish Chandra Chaudhary son of Yadunandan Chaudhary resident of
Village- Paroo Chaudhary Tola, P.S. Paroo, District- Muzaffarpur.
5. Gupteshwar Prasad Verma son of Sakaldeo Prasad Verma resident of Block
Campus Mai Asthan, Pratappatti, P.S. Sahebganj, District- Muzaffarpur.
6. Vinod Kumar Singh son of Vibhav Kumar Singh Paroo Chaudhary Tola, P.S.
Paroo, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Law Secretary, Government of Bihar, Patna.
3. The Additional Chief Secretary-cum- Principal Secretary, Registration,
Excise and Prohibition Department, Government of Bihar, Patna.
4. The Inspector General of Registration, Registration, Excise and Prohibition
Department, Government of Bihar, Patna.
5. The Assistant General of Registration, Registration, Excise and Prohibition
Department, Government of Bihar, Patna.
6. The Principal Secretary, Revenue and Land Reforms Department,
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
3/21
Government of Bihar, Patna.
7. The District Magistrate-cum- District Registrar, Muzaffarpur, District-
Muzaffarpur.
8. The Sub- Registrar, Paroo, District- Muzaffarpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 22082 of 2019
======================================================
Rakesh Kumar Singh Son of late Bharat Singh, Resident of Digha Ghat, P.O.
Digha Ghat, P.S. Digha, District- Patna, Bihar- 800011
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration, Excise and
Prohibition Department, Government of Bihar,Patna.
2. The Principal Secretary, Registration, Excise and Prohibition Department,
Government of Bihar,Patna.
3. The Inspector General of Registration, , Excise and Prohibition Department,
Government of Bihar,Patna.
4. The Joint Secretary, Registration, Registration, Excise and Prohibition
Department, Government of Bihar,Patna.
5. The Assistant Inspector General of Registration, Registration, Excise and
Prohibition Department, Government of Bihar,Patna.
6. The Assistant , Inspector General of Registration, Patna Division, Patna.
7. The Collector-Cum-District Registrar, Patna.
8. The District Sub-Registrar, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 23514 of 2019
======================================================
Deepak Kumar Singh, Son of Suresh Kumar Singh, resident of Village-
Dhanchoa, Ward No. 08, Tiri, District- Saharsa.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration Excise and
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
4/21
Prohibition Department, Government of Bihar, Patna.
2. The Inspector General of Registration, Registration Excise and Prohibition
Department, Government of Bihar, Patna.
3. The Assistant General of Registration, Muzaffarpur, Registration Excise and
Prohibition Department, Government of Bihar, Patna.
4. The Commissioner, Saharsa.
5. The District Magistrate-cum-District Registrar, Saharsa.
6. The District Sub-Registrar, Saharsa.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 25042 of 2019
======================================================
Avinash, son of Sri Narayan Prasad Verma, Resident of Village- Kharka
jTelwa, Brahman Toli, P.s.- Nauhatta, District- Saharsa.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Registration, Excise and
Prohibition Department, Bihar, Patna.
2. The Inspector General of Registration, Registration, Excise and Prohibition
Department, Bihar, Patna.
3. The Commissioner, Koshi Division, Saharsa.
4. The District Magistrate Cum District Registrar, Saharsa.
5. The District Sub-Registrar, Saharsa, District- Saharsa.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 21416 of 2019)
For the Petitioner/s : Mr. Ranjeet Kumar, Advocate
Mr. Ayush Kumar, Advocate
Mr. Kanishk Kaustubh, Advocate
Mr. Shikhar Mani, Advocate
For the Respondent/s : Mr. P.K.Shahi, A.G.
Mr.Vikash Kumar, SC 11
Mr. Dhirendra Kumar, AC to AAG-6
(In Civil Writ Jurisdiction Case No. 21386 of 2019)
For the Petitioner/s : Mr. Ranjeet Kumar, Advocate
For the Respondent/s : Mr. P.K.Shahi, A.G.
(In Civil Writ Jurisdiction Case No. 21787 of 2019)
For the Petitioner/s : Mr. Vijay Kumar Singh, Advocate
Mr. Abhinav Shandilya, Advocate
For the Respondent/s : Mr. Sanjeet Kumar Singh, Advocate
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
5/21
(In Civil Writ Jurisdiction Case No. 22082 of 2019)
For the Petitioner/s : Mr. Pratik Kumar Sinha, Advocate
Mr. Vikash Kumar, Advocate
For the Respondent/s : Md. Khurshid Alam, AAG 12
(In Civil Writ Jurisdiction Case No. 23514 of 2019)
For the Petitioner/s : Mr. Ranjan Kumar Dubey
For the Respondent/s : Mr. Vivek Prasad, GP-7
Mr. Sanjay Kumar, AC to GP-7
Ms. Roona, AC to GP-7
(In Civil Writ Jurisdiction Case No. 25042 of 2019)
For the Petitioner/s : Mr. Ratan Kumar, Advocate
For the Respondent/s : Mr. P.K.Shahi, A.G.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date: 09-02-2024
The petitioners in the above writ petitions
challenge the addition of sub-rule (xvii) and (xviii) to Rule 19 of
the Bihar Registration Rules, 2008. It is argued that the same is
ultra vires the Registration Act, 1908, and beyond the scope of
clauses (a) and (aa) of sub-section (1) of Section 69.
2. We have heard Shri Ranjeet Kumar, Shri Pratik
Kumar Sinha and Shri Abhinav Shandilya, learned counsel
appearing for the petitioners and the learned Advocate General,
Shri P.K.Shahi, for the State.
3. Shri Ranjeet Kumar took us to the amendment
produced as Annexure-1 in the writ petition and pointed out that
the same has been brought about under Section 69(1)(a) & (aa)
of the Registration Act. The objectionable amendments require a
'Jamabandi/Holding' allotment under the Bihar Land Mutation
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
Act, 2011 (hereinafter referred to as the 'Mutation Act') and the
Bihar Municipal Act, 2007 (hereinafter referred to as the
'Municipal Act'); applicable respectively to rural areas and
municipal areas, before seeking registration under the Act. It is
pointed out that neither clause (a) nor clause (aa) enables such
an amendment, bringing in the requirement, which is also not in
tune with the Registration Act.
4. The subject amendment does not deal with the
safe custody of books, papers and documents, nor does it
safeguard the data in electronic form under Section 16A (1) as is
the purpose of sub-clauses (a) & (aa) of Section 69(1). Further,
it is pointed out that the very prescription, in the teeth of the
admitted fact that the survey of lands in Bihar is not completed,
brings in unnecessary road blocks in the transactions of
property. This totally dis-entitles the land owners, who could not
create a 'Jamabandi/Holding', to deal with their properties
freely and at their choice. It is argued that the amendment is
inconsistent with Sections 21, 22, 35, 52, and 58 of the
Registration Act. The State, in bringing out the Rules has totally
ignored the hardships of the land owners and the ground
realities. It is trite, that a mutation does not establish title, and in
such circumstances, bringing in a Rule prohibiting registration
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
is clearly in violation of the established tenets of law. The
learned counsel would rely on the decisions of a learned Single
Judge and Division Bench of this Court in Bihar Deed Writers
Association v. State of Bihar; AIR 1989 Pat 144 and Dr.
Madhu Sinha v. The State of Bihar & Ors.; 2015 (1) PLJR
957.
5. Shri Pratik Kumar Sinha adopts the above
arguments and further adds that the power conferred on the
registering authority to ensure mutation is an encroachment into
the powers of the Civil Court, which alone can decide on the
title. A decision of the Hon'ble Supreme Court in Satya Pal
Anand v. State of M.P. & Ors; (2016) 10 SCC 767 is pointed
out, wherein Rule 22A restricting registration on public interest
was struck down. Reliance is also paced on State of Rajasthan
v. Basant Nahata; (2005) 12 SCC 77.
6. The learned Advocate General, on the other
hand, refers to the definition clause in the 'Mutation Act' and
the 'Municipal Act' to impress upon us the meaning of the terms
'Jamabandi' and 'Holding'. The 'Jamabandi' and 'Holding',
respectively in rural and municipal areas, refer to rights created
in the ledger maintained by the revenue department; entrusted
with the collection of land tax and rents. It is this record of
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
rights which has been insisted upon for a registration, mainly to
curb the menace of fraudulent transfers, which is a perpetual
and recurrent source of multiplying crimes committed in the
State.
7. The attempt of the State Government was only
to ensure a semblance of rights on the vendor who executes a
deed of conveyance which is in the public interest and also
within the contours of the Registration Act. Section 21 of the
Registration Act mandate that the description of property and
maps of lands have to be mandatorily contained in a non-
testamentary document relating to immovable property, for the
purpose of registration. The 'Jamabandi/Holding' insisted upon
by the State only furthers the cause and comes within the
definition of a description. As far as the contention regarding the
power conferred under Section 69(1) (a) & (aa), it is urged that
the mere recital of a wrong provision would not lead to the
Court setting aside the enactment itself. If there is power found,
then the legislative exercise has to be upheld.
8. Jamabandi is defined in the 'Mutation Act', as
a number showing the page allotted to all tenants in Tenants
Ledger Register where entries of details of their tenancies, as
well as demand and collection of rent and cess are made.
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
Jamabandi Register is also defined under Section 26(A), which
is a Register of Raiyats, who own/possess land in the concerned
revenue village. Various details of land and land rent are
entered, with details of any cultivation, based on which rent is
paid to the government. This Register is stated to be an
"important register depicting exchange of land rent between
Jamabandi Register Raiyat and owner (State Government) of
the land" (sic). 'Holding' is defined under the Mutation Act as a
part or parcel of land held by a raiyat and forming subject of a
separate tenancy. The word 'Holding' has also been defined in
the Municipal Act, under Section 2(44), meaning a land held
under one title or agreement and surrounded by one set of
boundaries. These definitions in the 'Mutation Act' and the
'Municipal Act' refer respectively to the rights of a holder of
land in the rural and the municipal areas. The definition clauses
indicate that it comes under the description of land, as found in
the registers maintained by the Revenue Department, under the
'Mutation Act' and the 'Municipal Act'; the latter, with respect
to buildings, the commonality of which and separate enjoyment
if at all, are clearly specified in the description.
9. We have to immediately observe and affirm the
trite principle, as argued by the learned counsel for the
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
petitioners and not disputed by the State, that the 'Holding' or
'Jamabandi' recorded in a register maintained by the State or its
authorities, does not necessarily confer title on the person whose
name is entered in the register; on which if a dispute arises will
have to be adjudicated by a court of law. However, it is also a
trite principle that the entry in the register maintained by the
State would be compelling evidence in favour of title, which
could be displaced by more persuasive evidence, unsettling even
a claim based on that entry.
10. Having said that, we have to notice that the
arguments raised by the petitioners are conflicting and mutually
destructive. It is argued that title cannot be decided on the mere
entries made in the revenue register; which, as we noticed, is the
established principle. But it was also argued that if the entry in
the register is insisted upon, then it will be requiring the Sub-
Registrar to adjudicate on the title of the land. The arguments,
so addressed, are mutually destructive and going by the
established principle, based on which the first argument is
addressed, even if a registration is carried out of a document
where the 'Jamabandi' or 'Holding' is specified, there is no bar
from the Civil Court considering a dispute on title, in a properly
instituted suit.
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
11. There is also an argument addressed that the
provision now sought to be introduced runs contrary to the
provisions of the Registration Act and in that context, the rules
are ultra vires. We deal with the specific provisions put forth by
both sides, in seriatim.
12. Section 21 of the Registration Act speaks of
description of property and maps or plans. Sub-section (1)
specifically provides that a non-testamentary document relating
to immovable property shall be accepted for registration only if
it contains a description of such property, sufficient to identify
the same. Section 22 is complementary to Section 21 and
explains what, a description of a house and land can be, with
reference to Government maps or surveys. Sub-section (1)
empowers the State Government to prescribe by way of rules
that a land or house should be described with reference to a
Government map or survey, if it is practicable so to do. This
puts to rest any objection with respect to the hardship of the
owners of land, since if there is absence of a 'Jamabandi' or
'Holding' by reason of no survey being conducted by the State,
then it is for such individual owners to approach appropriate
forum for relief, pointing out the absence of the entry, by reason
of the survey not having been carried out. None can be heard to
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
raise a claim of hardship only for reason of there being a
necessity to approach a court of law.
13. Now, we come to Section 35, which
delineates the procedure on admission and denial of execution
respectively; which is more or less adopted in Rule 19 of the
Bihar Registration Rules, 2008, wherein the subject requirement
of mention of the 'Jamabandi' or 'Holding' has been brought in
by the impugned amendment. Section 35 deals with the
identification of the person/persons executing the document, his
presence, absence and authorization; wherever permissible.
Section 52 speaks of the duties of a Registering Officer when a
document is presented for registration and insist upon the day,
hour and place of presentation with photographs as also
fingerprints affixed under Section 32-A and the signature of
every person presenting a document to be endorsed on every
such document. The Registering Officer is obliged to give a
receipt for such document to the person presenting the same and
subject to the provisions contained in Section 62, every
document admitted to registration shall be copied in the book
appropriate therefor, according to the order of admission,
without any unnecessary delay. The books maintained by the
Registering Officer shall also be authenticated at such intervals
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
and in such manner as prescribed by the Inspector General.
14. Section 52 is not to be read as an obligation of
the Registering Officer, on presentation of a document, to enter
the same on the mere requirement under Section 52 being
satisfied. No provision in the statute can be read in isolation and
the provisions read together, would take in the other
requirements also, which mandates a clear description of the
property; within which ambit would lie the present amendments
too.
15. We also have to emphasize that Section 52(1)
(c) requires such entry to be made of a document presented,
only if that document is 'admitted' to registration; obliging the
Registering Officer to look at the other provisions of the statute
so as to find the document to be capable of being admitted to
registration. Section 55, in relation to the indexes made by the
Registering Officer and their contents, also does not militate
against the requirement of 'Jamabandi/Holding' being
mandatory in a document presented for registration.
16. Now, we have to deal with Section 69, which
empowers the Inspector-General to supervise registration offices
and make rules. The registration rules have been made under
Section 69. The present amendment specifically refers to Clause
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
(a) and Clause (aa) of Section 69(1). We are clear in our minds
that the said sub-clauses would not empower the Inspector
General to make the subject amendments, but we have to
pertinently observe that the mere mentioning of a wrong
provision would not vitiate the subordinate legislation; if power
can be found under the provision enabling such prescription.
17. Section 69 enables Inspector General to make
a prescription by rules, consistent with the Act and Clause (j)
permits general regulation of proceedings under Registrars and
Sub-Registrars. Clause (h) also requires the particulars to be
contained in Indexes Nos. I, II, III and IV respectively, which
deal with "description of property". The indexes are provided
for in Section 55 and Index No II, as per Section 55 (3), should
contain such particulars mentioned in Section 21, relating to
every such document and memorandum as the Inspector
General, from time to time, directs. This is the prescription now
incorporated in the rules of a description of the property. A
reading of Section 69, as a whole, along with Sections 21, 22 &
55, does not persuade us to find an absence of power to make
the subject amendment. The impugned prescription is one,
which is enjoined under Section 69.
18. Bihar Deed Writers Association (supra) was a
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
case in which a Division Bench of this Court held that "a
document otherwise complying with the various statutory
requirements and formalities if presented for registration, the
registering authority is bound to register. It is not for the
registering authority to enquire and ascertain the title to its own
satisfaction" (sic-paragraph-3). We bow to the said proposition,
but do not find it to be sufficient to set aside the statutory
requirement prescribed as per the rules. Therein, the refusal was
on the directions given by the Registrar to the Sub-Registrar
concerned to check and verify facts so that the provisions of the
Ceiling Act are not violated. First of all, it was an administrative
instruction and not a statutory requirement. The Division Bench
also held that the registration of the document would not
absolve the vendee, the purchaser or the person to whom the
conveyance is made, from being saved from the Ceiling Act;
proceedings under which enactment would be possible in
accordance with law, despite the registration of the document.
19. Dr. Madhu Sinha (supra), by another
Division Bench of this Court, again looked at the Registration
Act and the Rules and the stipulation for presentation of a
document by the parties. The decision proceeded on the basis of
the established principle that the registration provides
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
unimpeachable evidence of execution of the document and does
not involve adjudication of any question of title. The principles
squarely apply insofar as 'Jamabandi/Holding', which only
identifies the person who is paying rent to the Government for
the land; which right would be totally effaced when the title of
the land is questioned and adjudicated upon, adverse to the
person whose name is found in the register. Therein, the
Government leased out the property in the year 1936 and in
1999 the legal representative of the original lessee sold the
property to another. Whether the transferee, under the sale deed,
derives any valid title, would arise for consideration only when
the Government asserts its right in the capacity of the lessor;
which eventuality had not taken place, was the finding. The
Division Bench also reiterated the principle that the Sub-
Registrar can refuse registration on the grounds that are
mentioned under the Act and the Rules. There was a reiteration
of the principle that, unless the authorities are empowered to
insist on something, which is also statutorily enjoined, there
cannot be a refusal. But that applies only till the amendment
came and afterwards it becomes a statutory prescription.
'Jamabandi/Holding' could not have been insisted upon by the
Registering Officer, but for the prescription being made in the
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
statutory rules framed under Section 69. The Registering
Officer's hands are tied and they cannot digress from the
specific stipulation prescribed by rules.
20. Basant Nahata (supra) interfered with
Section 22A of the Registration Act, as brought in by the
Rajasthan Government. Similar provision has been brought in
by the State of Bihar in the Registration Act. The cited decision
affirmed the judgment of the High Court of Rajasthan, which
held Section 22A of the Act to be unconstitutional. While
upholding the judgment of the High Court, the Hon'ble
Supreme Court made the declaration prospective insofar as
saving the refusal by the Registering Officers based on identical
provisions, across the country, not possible of being reopened.
Section 22A, hence, cannot be said to be remaining in the
statute and even the Government does not have a plea that the
requirement is made on public policy.
21. The learned Advocate General only pointed
out the rising criminal tendencies, by reason of land disputes
and the requirement by amendment having aimed at curbing
such multiplicity of claims being raised on an identical piece of
land. The requirements brought in only describe the property by
way of the entries in the Register of Raiyats, which is
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
permissible under the Registration Act. The intention of the
Legislature or the State Government or the rule making
authority, however laudable, cannot be upheld unless the source
of power to make such prescription is well defined. As a
corollary, if the source is clear and there is power on the rule
making authority then merely based on intentions, unless it
shocks the conscious or is arbitrary and perverse, valid
prescriptions cannot be unsettled. The source we have found
clearly under Section 69 of the Registration Act and the
argument advanced of an attempt to curb the menace of rising
criminal activities, does not make the amendment invalid.
Merely because public policy having weighed with the rule
making authority, would not impair the prescription, since the
power can be easily found under Section 69.
22. We have to extract Paragraph 15 from Basant
Nahata (supra), which is as follows:-
"15. Indisputably, there exists a presumption
as regards the constitutionality of a statute.
Rule of presumption in favour of
constitutionality, however, only shifts the
burden of proof and rests it on the shoulders of
the person who attacks it. It is for that person
to show that there has been a clear
transgression of constitutional principles. (See
Chiranjit Lal Chowdhuri v. Union of India
[1950 SCC 833 : 1950 SCR 869 : AIR 1951
SC 41].) But this rule is subject to the
limitation that it is operative only till the time
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
it becomes clear and beyond reasonable doubt
that the legislature has crossed its limits. This
rule in its application as principle of
construction means that if two meanings are
possible then the courts will reject the one
which renders it unconstitutional and accept
the other upholding the validity of the
impugned legislation."
What applies to the constitutionality of the statute, can be
applied to the question raised of vires of the rule. As long as
there is no clear transgression of the rule making power as
conferred by the statute, the rule has to be upheld. The
petitioners have been unable to show us that the rule making
authority has crossed its limits, in making the impugned
amendment.
23. Satya Pal Anand (supra) considered the
question whether cancellation of registration, applied for,
unilaterally by the vendor, can be sustained. On difference of
opinion, the matter was placed before a Three-Judge Bench. The
question raised was with respect to the registration of a
cancellation deed, by a Society, which had earlier allotted the
property to the appellant's mother. The cancellation, termed as
an extinguishment deed, was held to be a manifestation of a
decision of the Society to cancel the allotment of the subject
plot. The principle in Thota Ganga Laxmi v. Govt. of A.P.,
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
(2010) 15 SCC 207 was found to be not applicable generally,
since the cited decision revolved around a specific provision
enabling cancellation only when it is done by a competent court,
that too after notice to the parties concerned. While upholding
the decision of the High Court refusing to interfere with the
registration carried out of the cancellation deed, the appellant
was permitted to pursue the statutory remedy resorted to, by
him. In the said case, the facts also disclose subsequent
conveyance having been effected on a tripartite settlement in
which the appellant before the Hon'ble Supreme Court had also
accepted compensation.
24. The facts are distinct and, in any event, the
emphasis laid, again, was on the availability of a statutory
prescription or the absence of it. The declaration would only
persuade us to find that, if the prescription for
'Jamabandi/Holding' to be mentioned in the deed of
conveyance was not prescribed in the rules; the Registering
Officer couldn't have insisted upon the same. When it is
available, as a prescription, it has to be scrupulously complied
with and any failure would empower the Registering Officer to
decline acceptance of the deed for registration.
25. We find absolutely no reason to interfere with
Patna High Court CWJC No.21416 of 2019 dt. 09-02-2024
the amendment incorporated. We reject the writ petitions.
(K. Vinod Chandran, CJ)
Rajiv Roy, J: I agree.
(Rajiv Roy, J)
Aditya/Sujit
AFR/NAFR NAFR
CAV DATE 01.02.2024
Uploading Date 09.02.2024
Transmission Date
