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Madhya Pradesh High Court · body

2009 DIGILAW 896 (MP)

Hussain Shah v. Sub-Registrar

2009-07-31

VINEY MITTAL

body2009
ORDER (Oral) 1. The validity and the legality of the circular/guidelines dated September 9, 2005, issued by the Inspector General, Registration, respondent No.3 has been assailed by the petitioner Hussain Shah, through the present petition. The aforesaid circular has been appended as Annexure P-2, with the present petition. 2. The skeletal facts leading to the controversy show that a sale-deed was executed by one Azeem Shah in favour of the petitioner-Hussain Shah on May 9, 2006. On the same date, the said sale-deed was presented for registration before the Sub-Registrar, Nagda, respondent No.1. The Sub-Registrar, as required under section 52 of the Registration Act, 1908 (hereinafter referred to as Act) issued a receipt on presentation, noticing the day, hour and place of registration, and also finding that the photographs and finger prints of the executants had been affixed. The petitioner claims that, thus, the document in question was admitted for registration, as required under section 52 of the Act. However, rather than ordering registration of the document, as per the provisions of the Act, the document in question was referred to the Collector, Stamps, in exercise of the powers under section 47 A of the Indian Stamp Act, 1899 (hereinafter referred to as the Stamp Act), for determining the valuation of the property sold. The grievance made by the petitioner is not against the reference under the provisions of the Stamp Act, but non-performance of the statutory functions, required from the Sub-Registrar, under the provisions of sections 58 and 59 of the Registration Act. 3. According to the petitioner, certain guidelines had been issued by the Inspector General, Registration, respondent No.3 on September 9, 2005, which required the Sub-Registrar to refer the document, in certain situations, to the Collector, Stamps at the first instance, without making any endorsement on the same, as required under the provisions of the Act. A copy of the aforesaid circular dated September 9, 2005, issued by respondent No.3, has been appended as Annexure P-2 with the petition. The petitioner has assailed the said circular, Annexure P-2, by claiming that as a matter of fact, the said circular is inconsistent with the provisions of the Act, and had been issued without any legal authority. 4. The claim made by the petitioner has been contested by the respondents. A reply has been filed. The petitioner has assailed the said circular, Annexure P-2, by claiming that as a matter of fact, the said circular is inconsistent with the provisions of the Act, and had been issued without any legal authority. 4. The claim made by the petitioner has been contested by the respondents. A reply has been filed. In the reply it has been maintained that the provisions of the Stamp Act, section 47A (1A) specifically empowers the Registering Authority to refer the instrument to the Collector, Stamps, for determination of the market value of the property, and proper duty payable thereupon, if it was believed by the registering officer, that the market value had not been correctly set forth in its truth. The respondents have further pleaded that the guidelines have been issued with a view to avoid unnecessary delay in the proceedings to determine the evasion of the stamp duty. According to the respondents, the guidelines issued by Inspector General, Registration, Annexure P-2 cannot be said to be inconsistent with the provisions of Registration Act, in any manner. 5. I have heard Shri A.S. Garg, learned senior counsel for the petitioner and Shri Vivek Phadke, learned Government counsel for the respondents and with their assistance have also gone through the record of the case. At the outset, it would be relevant to extract certain relevant provisions of the Act, as under: "Section 32. Persons to present documents for registration. - Except in the cases mentioned in (sections 31, 88 and 89), every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration - office, -- (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or (c) by the agent of such a person, representative or assign, duly authorized by power of attorney executed and authenticated in manner hereinafter mentioned." "Section 34. Enquiry before registration by registering officer. Enquiry before registration by registering officer. - (1) Subject to the provisions contained in this part and in section 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 authorized as aforesaid, appear before the registering officer within the time allowed for presentation under section 23, 24, 25 and 26 : Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered. (2) Appearances under sub-section (1) may be simultaneous or at different times. (3) 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. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders." "Section 35. Procedure on admission and denial of execution respectively. -- (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in section 58 to 61 inclusive. (2) The registering officer may, in order to satisfy himself that the persons appering before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) If any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) If any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead : Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII." "Section 52. Duties of registering officers when document presented. -- (1)(a) The day, hour and place of presentation (the photographs and finger prints affixed under section 32A) and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it; (b) a receipt for such document shall be given by the registering officer to the person presenting the same; and (c) subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission. (2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector General." "Section 58. Particulars to be endorsed on documents admitted to registration. (2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector General." "Section 58. Particulars to be endorsed on documents admitted to registration. -- On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely : (a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent; (b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and (c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. (2) If any persons admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal." "Section 59. Endorsements to be dated and signed by registering officer. -- The registering officer shall affix the date and his signature to all endorsements made under sections 52 and 58, relating to the same document and made in his presence on the same day." "Section 60. Certificate of registration. -- (1) After such of the provisions of section 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered" together with the number and page of the book in which the document has been copied. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in section 58 have occurred as therein mentioned." 6. (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in section 58 have occurred as therein mentioned." 6. A perusal of the provisions of the Registration Act, 1908 depicts that Part VI of the Act deals with the presentation of documents for registration. The aforesaid process for registration of a document starts with its presentation before the Registering Authority. Section 32 enumerates the person, who is entitled to present the document for' registration. Registering authority has been vested with a power of enquiry, before registration of a document. Section 35 of the Act deals with procedure on admission and denial of execution, respectively, and stipulates that if all the persons, executing the document appear personally before the Registering authority, and are personally known to him, or if he is otherwise satisfied of their identity, the document shall be admitted for registration. Certain powers in this regard have been enumerated in various clauses of section 35 of the Act. Part XI of the Act deals with the duties and powers of the registering officer and comprises of sections 51 to 70. Section 52 comprised in part XI of the Act, enumerates duties of registering officers, when a document is presented for registration. On such presentation, the day, hour and place of registration, the photographs and the finger prints affixed, and the signature of every person presenting a document for registration, shall be endorsed on every such document, at the time of presentation itself. A receipt of such presentation is to be given by the registering authority to the person presenting the same. The document in question is required to be copied in the book maintained for that purposes. After a document has been admitted for registration under section 52, and receipt in this regard has been issued to the person presenting the same, certain ministerial acts are required to be performed by the Office of the Registering Authority, as per the provisions of sections 54, 55, 56 and 57. 7. However, section 58 of the Act again mandates the registering authority to endorse certain particulars, narrated in the said provision, on the documents admitted for registration. 7. However, section 58 of the Act again mandates the registering authority to endorse certain particulars, narrated in the said provision, on the documents admitted for registration. Under section 58, the signature and addition of every person, admitting the execution of the document etc. is required to be endorsed; the signature and addition of every person examined in reference to such document is also required to be endorsed; any payment of money or delivery of goods made in the presence of the registering officer, etc. is also required to be a matter of such endorsement. Section 58(2) of the Act specifically enumerates the situation that if any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, and shall at the same time endorse a note of such refusal. Section 59, thereafter requires the registering officer to affix the date and his signature to all the endorsement made under sections 52 and 58 of the Act. It is only thereafter, that provisions of section 60 of the Act come into operation, under which a certificate of registration is required to be issued. However, under section 47 A of the Stamp Act, if the registering authority under the Registration Act, while registering the instrument finds that the market value of any property, which is subject-matter of such instrument, has been set forth less, then before registration also, such a document may be referred to Collector, Stamps, for determination of the said issue. 8. The issue which arises for consideration before the Court in the present case is as to even if the power of referring a document to Collector Stamps, in terms of section 47 A of the Stamp Act vests with the registering authority, whether the State Government or Inspector General or even the registering authority himself, can under any circumstances, refuse to perform such statutory functions, as are mandated by the provision's of sections 52, 58 and 59 of the Act? It would be needless to reiterate that the situation envisaged under section 47 A of the Stamp Act, enabling the registering authority, to refer a document to the Collector Stamps, for determination of the valuation/stamp duty, is a stage, which can be prior to the registration of the document envisaged under section 60 of the Act, but by any stretch of imagination, even if the registering authority is within its powers to defer the registration of the document, no such powers can be deemed to have been conferred upon registering authority, under the provisions of the Act, so as to refuse to perform the statutory duties enjoined upon him, under the provisions of sections 52, 58 and 59 of the Act. On receipt of the document for registration under section 32 of the Act, the statutory powers/duties under the Act, being mandatory, are required to be performed by the registering authority, who is a statutory authority himself, in terms of the aforesaid statutory mandates. 9. In the light of the aforesaid statutory provisions, it would be appropriate to refer to the impugned circular dated September 9, 2005 issued by the Inspector General. The Inspector General, while issuing the general directions to the registering authorities has envisaged that after the requisite endorsements are made by the registering authorities, a document in question keep in lying unattended for a long period, with the result that the matters remain pending before the Collector Stamps unnecessarily, and therefore, the enquiry under the Stamp Act is consequently delayed. On that basis, it has been directed that before making the requisite endorsements under the provisions of sections 52, 58 and 59 of the Act, the document in question be referred under section 47 A of the Stamp Act, if the registering authority is of the opinion that the document is insufficiently stamped or the property has been undervalued. 10. I have duly considered the aforesaid circular issued by the Inspector General, I find that the directions contained in the said circular are totally inconsistent with the mandatory provisions of the Act. As noticed above, sections 32, 34, 35, 52, 58 and 59 require certain duties to be performed by the registering authority. 10. I have duly considered the aforesaid circular issued by the Inspector General, I find that the directions contained in the said circular are totally inconsistent with the mandatory provisions of the Act. As noticed above, sections 32, 34, 35, 52, 58 and 59 require certain duties to be performed by the registering authority. The aforesaid statutory duties/functions have to be performed in strict compliance with the provisions of the Act, and cannot be diluted in any manner, through any executive guidelines issued by the State Government or the Inspector General. As a matter of fact, directions issued by the Inspector General, to all the registering authorities of the State, actually amount to directing them not to perform their statutory functions. This could not have been done by the Inspector General nor can be subscribed by this Court. As a matter of fact, Inspector General of Registration himself is a creature of the statute and as such cannot be permitted to enjoy any such powers which may dilute the provisions of the said statute i.e. the Registration Act. 11. To be fair to the learned Government counsel, it must be noticed that Shri Vivek Phadke, has placed strong reliance upon section 69 of the Act to support the impugned circular. Section 69 of the Act enumerates the power of Inspector General to superintend registration offices, and make rules and provides that Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government and shall have power, from time to time, to make rules consistent with the Act. According to Shri Phadke, the circular in question is covered under the aforesaid powers of the Inspector General. I have given my anxious consideration to the aforesaid contention of the learned counsel also but find myself unable to accept the same. The powers vested in Inspector General Registration, under section 69 are not only the powers of superintendence over the registering offices all over the State, but such powers also enable him to frame rules. However, the said powers to be exercised by Inspector General, or rules framed by him, are required to be consistent with the provisions of the Act. Directions issued by the Inspector General, through the impugned circular, Annexure P-2, cannot be treated to be in conformity or consistence with the provisions of the Act. 12. However, the said powers to be exercised by Inspector General, or rules framed by him, are required to be consistent with the provisions of the Act. Directions issued by the Inspector General, through the impugned circular, Annexure P-2, cannot be treated to be in conformity or consistence with the provisions of the Act. 12. Consequently, I have no hesitation in holding that the circular, Annexure P-2, is in excess of the jurisdiction vested in the Inspector General of Registration, respondent No.3, when it directs the registering authority to refer the document in a situation where it is so desired, under the provisions of section 47 A of the Stamp Act, even before making any endorsements under sections 52, 58 and 59 of the Act. The said circular, on that ground, is liable to be quashed. The same is hereby quashed. 13. Before parting with this order, it must be made clear that any of the observations made by this Court shall not be treated to be a dilution of the powers vested in the registering authority to exercise the powers under section 47 A of the Stamp Act, in a situation, which is covered under the said provisions. Thus, in a case, if it is thought appropriate, under section 47 A of the Stamp Act, the registering authority before ordering registration under section 60 of the Act, is definitely entitled to refer the document to the Collector, Stamps. 14. Consequently, the present petition is allowed. The circular dated September 9, 2005, issued by the Inspector General, respondent No.3, is hereby quashed. As a consequence thereof, the Sub-Registrar, Nagda, respondent No.1, is directed to make the requisite endorsements on the sale-deed dated May 9, 2006, Annexure P-I, in accordance with law. 15. The requisite compliance of the order be made within a period of six weeks from the date a certified copy of this order is presented by the parties to the sale-deed in question.