J. D. PATHAK v. V. S. BAROT — 1982 DIGILAW 78 (GUJ)

S. B. MAJMUDAR, J. ( 1 ) THIS petition under Art. 226 of the Constitution of India raises a short but an interesting question of law as to the power of the Sub-Registrar acting under the provisions of the Indian Registration Act 1908 (hereinafter referred to as the Registration Act) to refuse to accept for registration a document which according to the Sub-Registrar is governed by the provisions of secs. 26 and 28 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Land Ceiling Act ). ( 2 ) A few relevant facts may be noted at this stage. It is the case of the petitioner that he is not holding any land more than the ceiling area and he decided to sell his land admeasruing 568. 8 sq. yds. located at Rajkot to one Kusumben Amratlal Bhatt and executed the sale deed on 27 in her favour for a consideration of Rs. 1000. 00. The said document was presented by the petitioner in the office of the Joint Sub-Registrar Rajkot respondent No. 2 who is charged with statutory duty of registration of documents under the provisions of the Registration Act. The said document was first accepted for registration by respondent No. 2 on its production on 27-7-1981 and was given serial number 6128. But thereafter the second respondent returned the said sale deed to the petitioner with a letter dated 27-7-1981 addressed to the petitioner stating that as paid the provisions of the Transfer of Properties Act the transfre takes effect from the date of execution of the document and therefore the sale deed which the petitioner has produced can be presented for registration only after giving notice under sec. 26 of the Land Ceiling Act in view of the written instructions issued by the first respondent. District Registrar of documents Rajkot. Accordingly the second respondent directed the petitioner to present the document of sale for registration after obtaining receipt of the notice which he will have to give under sec. 26 of the Land Ceiling Act. 26 of the Land Ceiling Act in view of the written instructions issued by the first respondent. District Registrar of documents Rajkot. Accordingly the second respondent directed the petitioner to present the document of sale for registration after obtaining receipt of the notice which he will have to give under sec. 26 of the Land Ceiling Act. The written instructions issued by the first respondent to all the parties presenting documents for registration in the offices of the Sub-Registrars as well as to the document writers and on the basis of which the second respondent has acted are produced on the record of the case it annexure B while the order of the second respondent refusing to accept the petitioners sale deed for registration is at annexure C to the petition. ( 3 ) THE petitioner contends that the written instructions of the first respondent at annexure B as well as the impugned order of the third respondent at annexure V involve patent errors of law and jurisdiction and they are totally ultra vires the relevant provisions of the Registration Act as well as the Land Ceiling Act. This petition having been admitted to final hearing has reached final hearing before me today. ( 4 ) MR. S. M. Shah learned Advocate for the petitioner submitted that under the relevant provisions of the Registration Act there are only limited continences under which registration of a document can be refused by the Registrar. That only because vendor of urban property governed by the provisions of the Land Ceiling Act does not produce proof of having sent notice under Sec. 26 (1) of the Land Ceiling Act to the competent authority alongwith the document which is presented for registration the sub-Register has no jurisdiction or authority under the Registration Act to return document to the party presenting it for registration and that the only course open to the Sub-Registrar is to defer the question of registration of the said document till such proof is furnished by the party presenting the document for registration. But in no eventuality document can be refused to be accepted for registration and can be returned to the concerned party proceeding it for registration. But in no eventuality document can be refused to be accepted for registration and can be returned to the concerned party proceeding it for registration. That such a course which is contemplated by the impugned written instructions at annexure B and the impugned order at annexure C is totally dehors the provision of the Registration Act nor is it permissible even under sec. 28 of the Land Ceiling Act which only prohibits registering authorities from registering concerned documents in contingencies contemplated by sec. 24 of the Act but even this provision does not enable or permit the registering authority to refuse to accept a document for registration or to retain the same in his office pending further inquiry in the course of registration. ( 5 ) MR. V. H. Bhairaviya learned advocate appearing for the respondents on the other hand contended that it is true that under various provisions of the Registration Act there is no express power given to registering authority to return documents to the concerned party presenting it for registration in the contingencies contemplated by the impugned instructions at annexure B and the impugned order at annexure C. But the said course is justified in the light of the letter and spirit of sec. 26 (1) read with sec. 28 of the Land Ceiling Act and consequently the impugned order cannot be construed to be totally ultra vires or null and void. ( 6 ) IN order to resolve this controversy between the parties it is necessary to first look at the relevant provisions of the Registration Act. The said Act is a consolidating Act enacted with a view to consolidating the enactments relating to the registration of documents as the preamble shows. At the appeal of the registration machinery as provided by the said Act sec. 3 contemplates appointment of Inspector General of Registration for the territories subject to the concerned State Government. Sec. 5 contemplates formation of the districts and sub-districts for the purpose of administration of registration of documents. Sec. 6 provides for appointments of Registrars and Sub-Registrars of several districts and several sub-districts as formed under sec. 5. Sec. 16 contemplates provision for the office of every registering officer books for the purpose of the said Act. Such books have to contain forms from time to time prescribed by the Inspector General of Registration with the sanction of the State Government. 5. Sec. 16 contemplates provision for the office of every registering officer books for the purpose of the said Act. Such books have to contain forms from time to time prescribed by the Inspector General of Registration with the sanction of the State Government. All the pages of such books are to be consecutively numbered in print. Sec. 17 of the Registration Act enjoins compulsory registration of certain documents enumerated therein which in its turn equally enjoins the duty on the registering authority to register such documents. Sec. 18 talks of documents which can be voluntarily registered. Then follow secs 19 and 20 which may be referred to at this stage. Sec. 19 provides that if any document duly presented for registration be in a language which the registering officer does not understand and which is not commonly used in the district he shall refuse to register the document unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy. It is therefore obvious that the registering authority can refuse to register a document which is not intelligible to him and in such case unless required conditions are satisfied it would be open to the registering authority to refuse registration thereof. So far as sec. 20 is concerned it contemplates a different situation which empowers the registering officer in his discretion to refuse to accept for registration any document in which any registering blank erasure or alteration appears unless the person executing the document attest with their signatures or initials such contemplates blank erasure or alteration. Thus under sec. 20 (1) the registering authority has power to refuse to accept for registration such defective documents. In such a case it would be open to the registering authority to return the document to the party presenting it unless the requirements of the section are complied with. It is therefore obvious that the legislature is conscious of the two different contingencies. In one contingency the legislature has contemplated a situation in which registering officer can refuse to register while in another set of circumstances the registering authority can refuse to even accept a document for registration and can legitimately return the same to the party presenting it for registration till the requirements of the section are complied with. Sec. 23 is another section which deserves to be noted. Sec. 23 is another section which deserves to be noted. It states that subject to the provisions contained in secs. 24 25 and 26 no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. Thus a period of limitation has been provided during which the concerned document can be presented for registration. Part VI of the Registration Act deals with the topic concerning presentation of documents for registration and the procedure to be followed thereunder Sec. 32 is the first section of that part and it states that except in the cases mentioned in secs. 31 88 and 89 every document to be registered under the Act whether such registration be compulsory or optional shall be presented at the proper registration officer by persons enumerated therein. Sec. 34 falls in the same part and it provides that subject to the provisions contained in that part and in secs. 41 43 45 69 75 77 88 and 89 no document shall be registered under this Act unless the persons executing such document or their representatives assigns or agents authorised as aforesaid appear before the registering officer within the time allowed for presentation under secs. 23 24 25 and 26. Sub-sec. (2) thereof stated that appearances under sub-sec. (1) may be simultaneous or at different times. Sub sec. (3) of sec. 34 provides that the registering officer shall thereupon (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed. (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative assign or agent satisfy himself of the right of such person so to appear. Sec. 35 prescribes procedure of administration and denial of execution respectively. As per sub-sec. (2) of sec. 35 the registering officer may in order to satisfy himself that the persons appearing before him are the persons they-represent themselves to be circumstance any other purpose contemplated by this Act examine any one present in his office. As per sub-sec. Sec. 35 prescribes procedure of administration and denial of execution respectively. As per sub-sec. (2) of sec. 35 the registering officer may in order to satisfy himself that the persons appearing before him are the persons they-represent themselves to be circumstance any other purpose contemplated by this Act examine any one present in his office. As per sub-sec. (3) thereof the registering officer can raise to register a document if it is found that the person who is alleged to have executed the document denies execution or the execution by from the document purports to be executed is dead. As per part VII of the Registration Act registering officer has been empowered to enforce appearance of executants and witness in the inquiry held by him which he is competent to hold under the contingencies contemplated by the Act. As per sec. 51 (1) various books are required to be maintained by the examination officers and out of four types of books book No. 1 left rs to record of reasons for refusal to register and book 4 refers the Miscellaneous register. As per sec. 52 (1) (a) the registering authority is enjoined to endorse on every document the day hour and place of presentation and the signature of every person presenting a document for registration. As per sub-sec. (2) thereof a receipt for such document shall be given by the registering officer to the person presenting the same. Under part XII are found secs. 71 onwards which deal with a situation and made in which the Registrar can refuse to register a document. As per sec. 71 (1) every sub-Registrar refusing to register a document except on the ground that the property to which it relates is not state within his sub-district shall make an order of refusal and record his reasons for such order in his book No. 2 and endorse the words registration refused on the document. Sub-sec. (2) of sec. 71 prohibits the registering officer from accepting any document so endorsed unless and until under the provisions thereafter contained the documents directed to be registered. As per sec. 72 (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. As per sec. 72 (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. So far as refusal to register a document on the ground that the purported executant denies its execution is concerned procedure of sec. 73 has been down whereunder an application can be filed to the Registrar to whom the concerned Sub-Registrar is subordinate with a view to establishing the right to get such document registered Under the contingencies contemplated by sec. 77 even suits are contemplated against the orders of refusal of registration by the Registrar. Under sec. 85 it has been provided that documents (other than wills) remaining unclaimed in any registration office or a period exceeding two years may be destroyed. ( 7 ) A resume of the aforesaid relevant provisions of the Registration Act clearly shows that it is only under two contingencies that a registering Officer is empowered to refuse to accept a document presented before him for registration and can legitimately return the same to the party presenting it for putting his house in orders and the said provisions are contained in sec. 20 (1) whereunder the registering officer can refuse to accept for registration defective documents and the other relevant provision is sec. 71 (2) under which a document whose registration is refused and which bears such endorsement from competent Sub-Registrar cannot be accepted for registration once again unless the said impediment is removed after following the procedure laid down by secs. 72 onwards. Save and except the above contingencies in all other cases the registrar after holding inquiry which he deems proper a can either register a document or may refuse to register it in which case the order of the registering authority can be carried higher up in the hierarchy of proceedings contemplated by the Registration Act. It is in the context of these statutory provisions of the Registration Act that the inrods made by the relevant provisions of the Land Ceiling Act will have to be appreciated. It is in the context of these statutory provisions of the Registration Act that the inrods made by the relevant provisions of the Land Ceiling Act will have to be appreciated. ( 8 ) THE Land Ceiling Act has been enacted by the parliament with a view to providing for the imposition of a ceiling on vacant land in urban agglomeration for the acquisition of such land in excess of the ceiling limit to regulate the construction of buildings on such land and for matters connected therewith with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering the rain and with a view to bringing about an equitable distribution of land in urban agglomeration to subserve the common good as the preamble of the Act suggests. I may straight go to the relevant two sections of the Land Ceiling Act on which strong reliance was placed by Mr. Bhairaviya for the respondents to sustain the impugned orders. Sec. 26 (1) provides thus :"notwithstanding anything contained in any other law for the time being in force no person holding vacant land within the ceiling limit shall transfer such land by way of sale mortgage gift lease or otherwise except after giving notice in writing of the intended transfer to the competent authority". Sub-sec. (2) of the sec. 26 lays down. "where a notice given under sub-sec. (1) is for the transfer of the land by way of sale the competent authority shall have the first option to purchase such land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act 1894 or of any other corresponding law for the time being in force and if such option is not exercised within a period of Sixty days from the date of receipt of the notice it shall be presumed that the competent authority has no intention to purchase such land on behalf of the State Government and it shall be lawful for such person to transfer the land to whom-soever he may like". The proviso to sub-sec. The proviso to sub-sec. (2) reads"provided that where the competent authority exercises within the period aforesaid the option to purchase such land the execution of the sale deed shall be completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised". It is obvious that the scheme of sec. 26 of the Land Ceiling Act engrafts a provision of statutory preamption-cum-hybrid scheme of acquisition in favour of the competent authority and for that purpose prospectiveseller of vacant land within ceiling limit as governed by the provisions of the Land Ceiling Act has to give written notice of intended transfer to the competent authority. The said provision has been made with a view to making the scheme of statutory preamption-cum acquisition effective. If the competent officer exercised his discretion and chose to purchase the said land the sale in favour of the competent authority would prevail and the intended sale in favour of the private purchase will fall through. In order to make the said scheme of statutory preamption-cum acquisition under sec. 26 more effective simultaneously the legislature has enacted sec. 28 of the Land Ceiling Act which seeks to regulate registration of documents in certain cases. Thus in a way it trenches upon the provisions of the Registration Act but as the Land Ceiling Act is also a central Act the Parliament can effectively trench upon the impugned provisions of the Registration Act which is also enacted by the then Central legislature which was a fore-runner of the present Parliament which enacted the Land Ceiling Act. As per sec. 28 of the Land Ceiling Act it has been provided as under :"notwithstanding anything contained in any other law for the time being in force where any document required to be registered under the provisions of clauses to (e) of sub-sec. (1) of sec. 17 of the Registration Act 1908 purports to transfer by way of sale mortgage gift Lease or otherwise any land or any building (including any portion thereof) (A) in the case of any transfer referred to in sec. (1) of sec. 17 of the Registration Act 1908 purports to transfer by way of sale mortgage gift Lease or otherwise any land or any building (including any portion thereof) (A) in the case of any transfer referred to in sec. 26 no registering officer appointed under that Act shall register any such document unless the transfer or produces before such registering officer evidence to show that he has given notice of the intended transfer to the competent authority under that section and where such transfer is by way of sale the period of six days referred to in sub-sec of that section has elapsed. It is the aforesaid provision which has been heavily relied upon by Mr. Bhairaviya on behalf of the respondents to salvage the situation for the respondents. A mere look at the aforesaid provision shows that the only mandate of the said provision is that the registering officer can or register a document before him for registration unless the transferor produce before such registering officer evidence to show that he has given the notice of intended transfer to the competent authority and in case of sale even though such evidence is produced there is a further fetter on the power of the registering authority requiring it to wait outlast for a period of 60 days from the date on which such notice has been served by the transferor to the competent authority under sec. 26 (1) of the Ceiling Act. The intention of the legislature underlying the said provision is obvious. If the hybrid scheme of statutory preamption-cum-acquisition as envisaged by sec. 26 of the Land Ceiling Act is to be made effective any likely impediment in the operation of the said scheme should be eliminated and to guard against such an impediment sec. 28 has been enacted. It is obvious that as the provisions of the Registration Act stand moment a documents falling within the four corners of sec. 17 (1) of the Registration Act is presented for registration before the registering authority and if there is nothing for the Registrar to doubt the genuineness of the execution of the document and if its execution is admitted the registering authority will be duty bound to register such document. 17 (1) of the Registration Act is presented for registration before the registering authority and if there is nothing for the Registrar to doubt the genuineness of the execution of the document and if its execution is admitted the registering authority will be duty bound to register such document. No provision of the Registration Act can permit him to refuse to register a document if the requirements of the Registration Act are satisfied Consequently if intended transferor of vacant land to which the provisions of the Land Ceiling Act apply enters into a registered document and presents it for execution before the Registrar nothing in the Registration Act can prevent him from registering such document. Moment that happens transfer of interest takes place and such transfer of interest would obviously fly in the face of the scheme of statutory preamption-cum-acquisition envisaged by the legislature under sec. 26 of the Land Ceiling Act with respect to such a vacant land. In order to see that the scheme of statutory preamptioncum-acquisition is not thus frustrated necessary safety valve had to be provided by the legislature in the form of sec. 28. Therefore a mandate has been given by the legislature to all the registering authority not to register such documents concerning vacant land unless the prospective transferor leads evidence before the registering authorities to show that he has already complied with the statutory requirement of sec. 26 (13 and in case of sale of such vacant land the competent authority has either no intention to purchase such land on is presumed to have no such intention once 60 days period expires from the date of receipt of notice as comtemplated by sec. 26 (1 ). It is only thereafter that the Registrar can proceed to register such document. This provisions therefore clearly insulates against possible frustration of statutory preamption-cum-acquisition as envisaged by sec. 26. It is therefore obvious that the prohibition enacted by sec. 28 is a limited prohibition. It enjoins the competent registering authorities not to register any document covered by sec. 26 unless requirements of sec. 28 yet complied with in a given case. It is pertinent to note that as per sec. 28 of the Land Ceiling Act the legislature has restrained the registering authorities from registering a document unless requirements of sec. 28 are complied with. But the legislature has nowhere laid down under sec. 26 unless requirements of sec. 28 yet complied with in a given case. It is pertinent to note that as per sec. 28 of the Land Ceiling Act the legislature has restrained the registering authorities from registering a document unless requirements of sec. 28 are complied with. But the legislature has nowhere laid down under sec. 28 of the Land Ceiling Act that in cases contemplated by the said section registering officer shall refuse to accept such document for registration. It is obvious that the difference between the two types of eventualities viz. refusing to accept for registration a document and refusing to register a document is well marked and well understood. The Registration Act itself clearly demonstrates these two types of situations as I have already detailed above. Thus the legislature being alive to such twine types of situations contemplated only one type of situation while it enacted sec. 28 and imposed a limited restriction on the power of the registering authority and directed it to refuse to register a document covered by the net-work of sec. 26 read with sec. 28 of the Land Ceiling Act. But the legislature has not mandated the registering officer to straightway refuse to accept such document for registration or it other words to return such document to the person presenting it for reiteration only on the ground that the requirements of sec. 28 read with sec. 26 of the Land Ceiling Act are not complied with. ( 9 ) MR. Shah For the petitioner was justified when he contended that the limited restriction imposed by the legislature on the registering officer by enacting sec. 28 (a) of the Land Ceiling Act directing the concerned officer not to register a document unless requisite evidence as contemplated by the said section was produced before him has been misinterpreted by the respondents by assuming that the prohibition engrafted by sec. 28 travels further and prohibits a registering officer from even accepting a document for registration or from keeping it pending awaiting compliance with the provisions of sec. 28 (a) of the Land Ceiling Act. Mr. Shah was also right when he contended that if the legislature had intended that registering authorities in cases contemplated by sec. 28 travels further and prohibits a registering officer from even accepting a document for registration or from keeping it pending awaiting compliance with the provisions of sec. 28 (a) of the Land Ceiling Act. Mr. Shah was also right when he contended that if the legislature had intended that registering authorities in cases contemplated by sec. 28 (2) of the Land Ceiling Act should not even accept such document for registration unless requirements of the said provisions were complied with the legislature would have used the words No registering officer appointed under the Act shall accept for registration any such document. But advisedly the legislature has used a different phraseology restraining such officers from actually registering document unless requisite formalities of sec. 28 (a) were complied with. It is obvious that to import such words in the said provision would amount to re writing the section which is not open either to the respondents or to the court. On the clear language employed by the legislature while enacting sec. 28 (a) of the Land Ceiling Act it must be held that the registering authorities under the Registration Act have been enjoined to follow the procedure of the said provision and not to register a document envisaged by the said section till the conditions prescribed by the section are confined with and in the meanwhile the concerned documents has to be kept on the pending file awaiting further orders in respect of its registration. It is obvious that the section contemplates an inquiry before the Registrar by recording evidence before a final decision is reached by him to register such a document or not. Even in case when the evidence is tendered before the Registering Officer to the effect that notice contemplated by sec. 26 (1) has already been given by the transferor as per the mandate of sec. 28 (a) of the Land Ceiling Act the Registrar has to wait for 60 days referred to in sub-section (2) of sec. 26 before registering such document. During all this time obviously the tendered document for registration has to remain on the pending file of the Registrar. It is therefore not possible to agree with the submission of Mr. Bhairaviya for the respondents that 4s per the language of sec. 26 before registering such document. During all this time obviously the tendered document for registration has to remain on the pending file of the Registrar. It is therefore not possible to agree with the submission of Mr. Bhairaviya for the respondents that 4s per the language of sec. 28 of the Land Ceiling Act the only course open to the registering authority is to return the document to the concerned party till the requirements of sec. 28 (a) are complied with. It is also necessary to note at this stage a further contention of Mr. Shah that if the interpretation put by the respondents on sec. 28 (a) is accepted in a given contingency an impossible situation may arise. Mr. Shah placing reliance on sec. 23 of the Registration Act submitted that the document which is required to be registered has to be presented before proper officer within four months from the date of its execution. Only on the ground that the requirements of sec. 26 (1) of the Land Ceiling Act are not complied with if the document tendered by the party for registration is returned it is possible to visualise a situation in which the same document may come to be re-tendered after complying with the provision of sec. 26 (1) after four months and lot if complicates may arise in the meanwhile. Even apart from the aforesaid children which. may in a given case arise the interpretation put by the respondents on the language of sec. 28 (a) of the Land Ceiling Act is clearly unjustified and unsustainable. The said section nowhere lays down that the Registers authority cannot even entertain a document for registration. If it attracts provisions of sec. 28 (a) of the Land Ceiling Act. All that can be done by the registering officer in such a case is that such document has to be kept on the pending file and after being satisfied that notice under sec. 26 of the Land Ceiling Act has been given by the transferor and in case of sale after waiting for a period of 66 days from the date of receipt of such notice by the competent officer the Registrar can proceed to deal with the document for registration in accordance with law and as per the provisions of the Registration Act. This is the only embargo which gets engrafted on the powers of the registering officer under the Registration Act on account of inter-action of provisions of secs. 26 and 28 of the Land Ceiling Act with the relevant provisions of the Registration Act. ( 10 ) AS a result of the aforesaid discussion it must be held that on a misconception of law the respondents failed to exercise jurisdiction and they were patently in error when they took the view that the sa-le deed executed by the petitioner could not have been accepted for registration and was required to be returned to him for re-presentation after complying with the provisions of sec. 26 (1 ) of the Land Ceiling Act. The impugned written instructions at annexure B as well as the impugned order at annexure C are therefore liable to be quashed and set aside. Rule issued in the petition deserves to be made absolute. Respondent No. 2 is directed to accept the document in question and to keep the concerned document of sale on his pending file awaiting due compliance with the provisions of sec. 28 of the Land Ceiling Act by the petitioner and thereafter to proceed further in accordance with law. Rule is accordingly made absolute with costs. Rule made absolute. .