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2006 DIGILAW 1034 (RAJ)

Manak Chand v. State of Raj.

2006-03-29

PREM SHANKAR ASOPA

body2006
Honble ASOPA, J.— That by this writ petition the petitioner has challenged the withholding of document of sale by the Sub-Registrar (Stamps and Registration), Beawar, District Ajmer and is seeking writ of Mandamus to the Sub-Registrar (Stamps and Registration) to immediately deliver the duly registered sale-deed Exhibit-1 annexed to the writ petition. 2. Briefly stated the case of the petitioner is that the petitioner had purchased a property in the city of Beawar vide sale-deed dated 21.8.1995 from one Shri Vashisht Prasad Mishra son of Shri Ram Kripal Mishra for a consideration of Rs. 1,99,000/-. Said. Shri Vashisht Prasad Mishra (Vendor) presented the document of sale-deed for registration before the Sub-Registrar, Beawer on 21.8.1995. While presenting the document for registration, all formalities were complied with u/S. 32 of the Indian Registration Act, 1908 (hereinafter referred to as the Act). The said Vashishta Prasad Mishra personally appeared before the Sub-Registrar Respondent No. 2 on 21.8.1995, but the same has not been returned after registration. On inquiry, the petitioner came to know that Respondent No. 2, who admitted the aforesaid document for registration, inspected the property under transfer and accepted the valuation of the property sold and further found that the stamp duty payable was sufficient. 3. The Respondent Nos. 1 and 2 have not disputed the receipt of the document and completion of the formalities in their reply. However, it is submitted by the respondents that on 22.8.1995 a letter from the Commercial Taxes Officer, Beawer, intimating therein that the property was under attachment was received and the same could not have been registered in view of the Notification dated 10.1.1990. After receipt of the said reply, the petitioner has impleaded the Commercial Taxes Officer as a party to the petition and the Commercial Taxes Officer has also filed, reply repeating the said submissions. Copy of the Notification date 10.1.1990 has not been annexed by the respondents. However, the same was produced by the petitioner in the Court which reads as follows-- "153 [Registration on (Raj. Amend.) Act 76 certain documents opposed to public policy declared.] Notification No. F-2(9)FD/Gr.IV/88, S.O. 67, 10.1.1990. Copy of the Notification date 10.1.1990 has not been annexed by the respondents. However, the same was produced by the petitioner in the Court which reads as follows-- "153 [Registration on (Raj. Amend.) Act 76 certain documents opposed to public policy declared.] Notification No. F-2(9)FD/Gr.IV/88, S.O. 67, 10.1.1990. — In exercise of the powers conferred by Sec. 22-A, of the Registration Act, 1908 (Central act 16 of 1908) as amended by the Registration (Rajasthan Amendment) Act, 1976 (Rajasthan Act, 1976 (Rajasthan Act No. 16 of 1976), the State Government hereby declares that the registration of the following classes of documents is opposed to public policy:- (1) A deed of transfer or any document of sale, gift, will or mortgage relating to property which belongs to the Government or any local body unless the registering officer is satisfied that the person executing such deed or document has an authority for such execution. [Published in Raj. Gaz. 4(Ga) (II)-dated 31.01.1991 Page 98.]" 4. The said Notification has been issued u/S. 22-A of the Registration Act by Rajasthan Legislature. 5. The submission of Mr. Samdaria is that Sec. 22-A of the Registration Act (as in Rajasthan) has been declared ultra vires of Article 14 of the, Constitution of India and all other Notifications issued thereunder have also been quashed by the Division Bench of this Court in a case reported in Basant Nahata vs. The State of Rajasthan & Ors. ( 2001(1) WLC 433 (Raj.) = RLW 2000(4) Raj. 186). Against the said judgment SLP was filed before the Supreme Court by the State of Rajasthan and the same has been dismissed. The said case titled as State of Rajasthan & Ors. vs. Basant Nahata ( 2005 (6) Supreme 243 ). 6. The submission of the Counsel for the respondents is that since the property is under attachment, therefore, it would not be proper to issue a direction to the Sub-Registrar to deliver the duly registered sale-deed in view of the Notification dated 10.1.1990. 7. I have considered the, submissions made by Counsel for both the parties, further perused the record of the writ petition and gone through the judgments cited above. 8. Sec. 22-A has been declared ultra vires of Article 14 of the Constitution of India and impugned notifications were quashed by Division Bench of this Court reported in the case of Basant Nahata (Supra), Para Nos. 8. Sec. 22-A has been declared ultra vires of Article 14 of the Constitution of India and impugned notifications were quashed by Division Bench of this Court reported in the case of Basant Nahata (Supra), Para Nos. 42, 62 and 63 of the said judgment read as under-- "42. In our view, the power given u/S. 22-A is liable to be misused and, therefore, it is liable to be struck down on the ground that it is violative of Article 14 of the Constitution of India. In our considered view, there was no justification to confer such unlimited and uncanalised power on the State Government. It would not be safe to confer such power on any executive authority. The provision, in our view, has led to serious inconvenience to the general public. There is no involvement of any public policy in refusing registration of Power of Attorney. The contention of the learned Advocates General that Sec. 22-A introduced by the Rajasthan Amendment Act, 1976 is perfectly legal and the powers conferred by this section cannot be said to be arbitrary and that there are sufficient guidelines in Sec. 22-A to declare any document or class of documents to be opposed to public policy, cannot at all be countenanced. The discretion, as already noticed, confer upon the State Government in this regard is arbitrary and Sec. 22-A is liable to be struck down on this ground. 62. The writ petition is allowed and Sec. 22-A of the Registration Act as inserted by Rajasthan Amendment Act, 1976 (Act No. 16 of 1976) is declared as unconstitutional and that the said section had all the features of deleterious and being violative of Article 14 of the Constitution of India. 63. Consequently, the Notifications Annexures-3, 4, 6 and 7 are quashed and the Sub-Registrar (Respondent No. 3) is directed to register the Power of Attorney dated 16.7.1999 which was presented on 30.7.1999 within two weeks from the date of presentation of a copy of this order." 9. The Supreme Court in appeal against the aforesaid Division Bench Judgment in State of Rajasthan & Ors. vs. Basant Nahata ( 2005(6) Supreme 243 ), dismissed the appeal of the State of Rajasthan. The relevant Para Nos. 68 and 70 are as follows:- "68. The Supreme Court in appeal against the aforesaid Division Bench Judgment in State of Rajasthan & Ors. vs. Basant Nahata ( 2005(6) Supreme 243 ), dismissed the appeal of the State of Rajasthan. The relevant Para Nos. 68 and 70 are as follows:- "68. The contention raised on behalf of the appellants herein that the State, being higher authority, having been delegated with the power of making declaration in terms of Sec. 22-A of the Act, would not be abused is stated, to be rejected. Such a question does not arise herein as the provision has been held to be ultra vines Articles 14 and 246 of the Constitution of India. 70. For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly. No costs." 10. In view of the above, not only the section is no more in existence but all the Notifications issued thereunder are also not in existence. Therefore, there is no justification for not delivering the duly registered sale-deed to the petitioner. The contentions of the petitioner are accepted and the contentions of the respondents are rejected. 11. The writ petition is allowed. The respondents are directed to deliver the duly registered sale-deed to the petitioner within a period of one month from the date of production of certified copy of this order.