Sna Infraprojects Private Limited v. Sub Registrar
2011-05-13
D.H.WAGHELA
body2011
DigiLaw.ai
JUDGMENT D. H. WAGHELA, J. ( 1. ) RULE, of which service is waived by learned A.G.P. on behalf of the respondents. Taking into consideration record of the main matter, being SCA No.890 of 2011, all the petitions are heard for final disposal, by consent, and are disposed by this common judgment along with the civil applications made therein. ( 2. ) THE petitioner is a company which has purchased all the premises of Mevawala Flats situated at Pritam nagar in the Ellisbridge area of Ahmedabad. That building, named and known as "Mevawala Flats", is built on final plot No.852 admeasuring total 2144 sq. mtrs. of land and comprises of total 29 flats. THE petitioner has initially purchased 19 flats during the period between April 2010 to June 2010. THEreafter, remaining 10 flats have also been purchased and sale deeds of those 10 flats have been lodged with Sub-Registrar for registration during the period from 29.7.2010 to 25.11.2010. As nothing was heard from the office of Sub-Registrar, the petitioner had, by letter dated 18.12.2010, requested the Sub- Registrar to complete the formalities of registration and return the documents of sale deeds. Pursuant to that letter, the impugned communication dated 11.01.2011 has been sent by the Sub-Registrar, stating that, according to the opinion of Senior Police Inspector, Ellisbridge Police Station, Mevawala Flats standing on final plot No.852 in Town Planning Scheme No.3/6 is included in the disturbed areas and hence, further processing for registration of the documents would be done after prior permission under the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 ("the Act", for short) is obtained and submitted. Being aggrieved by that, the petitioner has approached this Court under Article 226 of the Constitution with the prayer to set aside that order and direct the Sub-Registrar to release the aforesaid sale deeds, holding and declaring that Mevawala Flats are not falling within the zone declared to be disturbed area under the Act. The petitioner has relied upon letter dated 27.7.2010 of the Sub-Registrar, addressed to the City Deputy Collector, clearly stating that Mevawala Flats were not included in the areas declared to be disturbed areas.
The petitioner has relied upon letter dated 27.7.2010 of the Sub-Registrar, addressed to the City Deputy Collector, clearly stating that Mevawala Flats were not included in the areas declared to be disturbed areas. As stated on oath in the petition, various flats and properties near and around Mevawala Flats have been sold in the years 2006, 2008 and 2010 without permission of the Collector under the Act. ( 3. ) BY filing an affidavit of the Sub-Registrar, it is stated that the Act was introduced with the intention to restrict transfer of immovable properties situated in the disturbed areas. That, entry No.21 in the Notification dated 29.10.1997 issued under Section 3 of the Act pertains to Ellisbridge area and Sub-clause (2) of that Entry specifies the area of Kochrab village up to Tagore Hall. It is stated by him that if there were instances and precedents where the provisions of the Act were not followed either by the purchaser or the vendor, then appropriate steps shall be taken by the respondents. It is further stated that it was quite natural and proper for the respondents to seek opinion of Police Inspector of particular area to ascertain whether Mevawala Flats were falling within Kochrab village. He has also stated that the petitioner was merely told to produce permission of the Collector as required under Section 5 of the Act as, in view of the letter dated 27.11.2010 of the City Deputy Collector, the documents submitted by the petitioner were kept pending. "Respondent No.3, City Deputy Collector, has, in his affidavit -in- reply, stated that, if the abstracts in Form No.7/12 of final plot No.852 were seen, it was clear that final plot No.852 was falling within Kochrab village and Mevawala Flats standing thereon were accordingly falling within the area of Kochrab village. It is also stated that the petitioner themselves have mentioned in the schedule of the sale deeds that Mevawala Flats were situated at Kochrab.
It is also stated that the petitioner themselves have mentioned in the schedule of the sale deeds that Mevawala Flats were situated at Kochrab. It is further stated that the City Deputy Collector has given show cause notices dated 15.12.2010 to the petitioner as well as the vendors of Mevawala Flats for consideration of the documents registered prior in point of time between the period from April 2010 to June 2010 without obtaining previous sanction of the Collector." The Under Secretary in the office of Principal Secretary, Revenue Department, has also filed his affidavit- in- reply on behalf of respondent No.4 to state that it came to the notice of the State Government that in certain areas, because of intensity of disturbances during the riots and such other factors, there was a tendency amongst landlords belonging to one community to sell or transfer properties at throw-away price out of fear of losing life and property. The Government has, by issuing notification, declared certain transfer or transfers of immovable properties in the disturbed areas of the State to be void and to temporarily prohibit transfer of immovable properties in such areas as well as providing protection to tenants of certain immovable properties of such areas. He has stated that the petitioner has not made any application under Section 5 and approached this Court anticipating non-grant of such permission. He has relied upon revenue map of village Kochrab issued by District Inspector of Land Records, Ahmedabad to show that old revenue survey No.21 of Kochrab village was covered by the areas specified in the notification as Kochrab village. ( 4. ) BEFORE identifying and culling out the issues, it may be pertinent to refer to the civil applications made by 10 applicants with the prayers to be joined as respondents and with the contentions couched in the following terms :- "That, so far as these areas are concerned, the entire Kochhrab village is covered. So far as the present applicants are concerned, they are residents of Kochhrab and more particularly the area known as Moto Rohitvas, Divya Jivan Flats, Nutal Sarvoday Society, Nand Apartments Kochhrab, Raj Apartments Kochhrab and Emran Residency, Kochhrab village.
So far as the present applicants are concerned, they are residents of Kochhrab and more particularly the area known as Moto Rohitvas, Divya Jivan Flats, Nutal Sarvoday Society, Nand Apartments Kochhrab, Raj Apartments Kochhrab and Emran Residency, Kochhrab village. That in the very area, one bungalow known as Bankers' Bungalow was sold to a Muslim gentleman and, therefore, the said bungalow (sic) being falling into disturbed area, no permission was obtained and, therefore, against the alleged sale being without permission, an appeal under the provision is filed before the Secretary, Revenue Department, Gujarat State, Ahmedabad, and the said appeal is pending.... ".......in the past also, the very residents of Mevawala flats had approached the Hon'ble Speaker of the Gujarat Legislative Assembly and that on 12.7.2010 a letter was written by late Shri Ashok Bhatt, to the Collector recommending that the residents of Mevawala Flats Association where some of the persons are trying to breach the law and trying to sell the flats to Muslim people and, therefore, that should be prevented and no agreement to sell or transfer be registered. That similarly there was a pressure upon Hindus from Muslim community and therefore, one application was also made by Divya Jivan Flats, Kochhrab to the Revenue Department on 18.9.2006 and a reply was given by the Revenue Department on 28.11.2006 and it was stated in the letter by the Government that Plot No.851 is falling into the disturbed area and that no permission is given. Similarly, a representation was also made to the Hon'ble Chief Minister with regard to the said Final Plot No.851 of Kochhrab. In that connection, way back in 2006, Deputy Collector had written to the Hon'ble Chief Minister that objections were raised by about more than 1000 people to the effect that if such properties which are falling into the Kochhrab village are sold to Muslim people, then in that case thousands of people would be forced to leave their residents (sic) and compulsorily shift away from the Hindu locality. "....Similarly, very recently in April 2010, the remaining residents of Mevawala Flats had also made an application to the Police Inspector, Ellisbridge Police Station objecting that the flats are to be sold to S.N.A. Infra Projects Private Ltd., whose Director is Mr. Asim Putawala, a Muslim gentleman and, therefore, the residents of the said flats objected that they would be forced to leave the flats.
Asim Putawala, a Muslim gentleman and, therefore, the residents of the said flats objected that they would be forced to leave the flats. "......That the present applicants are the persons who are residing in different flats in the vicinity of the Kochhrab village and it is certain that if there is any transgression by a single Muslim family or individual, then in that case, all will be forced to leave and the very object of the Act, namely, Disturbed Area Act would be defeated and thus, there is a notification whereby the areas in dispute are covered by the Disturbed Area Notification but by illegitimate practice false and concocted letters are alleged to have been written between the Circle Inspector and the Mamlatdar and under the guise of such concocted correspondences, some flats are already sold and when it is brought to the notice of the Government, it is prevented. That the very present applicants are also equally interested to see that the law in force is obeyed and according to the notification no transfers take place from Hindu people to a Muslim owner and, therefore, to prevent the defeating of the Act, the presence of the present applicants is necessary because they are also similarly situated and affected by this illegal and illegitimate transfers and the Authorities have rightly refused and stayed their hands to register the document....." The petitioner has, by filing an affidavit -in- reply to the civil applications, stated, inter alia, that :- "3......one of the resident of Divya Jivan Flats (residence of the same flat where the applicant No.2 and 3 are residing as mentioned in cause title), namely, Satyendra Devshankar Shelat, have sold the property in favour of one Rashmikant Mehta vide registered sale deed on 13th march, 2008 bearing registration No.3274 of 2008 without taking prior permission of the Collector as envisaged under Section 5 of the Act. .....Therefore, the attempt on the part of the applicants is deliberate and only with a view to see that through transfer no persons from Muslim community is entered into the area of Kochhrab. "4....../ state and submit that no such application has ever been made by the residents of Mevawala Flats.
.....Therefore, the attempt on the part of the applicants is deliberate and only with a view to see that through transfer no persons from Muslim community is entered into the area of Kochhrab. "4....../ state and submit that no such application has ever been made by the residents of Mevawala Flats. Apart from the said aspect, the residents of Mevawala Flats have already executed a registered sale deed in favour of respondent No. 1 herein and, therefore, the applicants who are nowhere concerned with the property in question have no right to make such a grievance. It is also submitted that all such applications which were given on the name of the residents of Mevawala Flats, their signatures are forged and they have never given application as alleged by the applicant to the Ellisbridge Police Station. Their signatures are forged. It is somebody else who has given such application on the name of the residents of Mevawala Flats and apart from the said aspect, the said application has already been inquired into and thereafter necessary affidavits have been filed by the residents of Mevawala Flats before the City Deputy Collector that they have sold the property in question to respondent No.1 herein on their own will and volition and, therefore, the present applicants who are nowhere concerned with the same cannot agitate the said grievance. "5.......It is also clear from the aforesaid aspect that the applicants are acting as tool of somebody who has some vested interest in order to see that people from the minority community do not enter into the said area and, therefore, the present application is filed with an oblique motive and not bona fide and in absence of any vested interest in the special civil application, the application is required to be dismissed with exemplary cost." It is clear from the rival contentions in the Civil Applications that the applicants of the Civil Applications are residents of other buildings in the neighbourhood of Mevawala Flats and they have been labouring under the misconception that the object of the Act is to prevent entry of the people of other community into the area populated by one community.
It is not even alleged in the applications that such people in the neighbourhood have any locus standi or legal right under the Act to protest and prevent transfer of immovable property in the area concerned; and except repeated assertions, it is not established by any reliable document that Mevawala Flats are falling with the "disturbed area". "Another attempt of the so-called "Shree Kochrab Ellisbridge Hitrakshak Samity", by way of public interest litigation, challenging the legality and propriety of the sale deeds alleged to have been executed or purported to be executed against the provisions of the Act, is stated to have failed by rejection on 29.4.2011 of Writ Petition (PIL) No.46 of 2011 by Division Bench of this Court (Coram: Hon'ble the Chief Justice Shri S.J.Mukhopadhaya and J.B.Pardiwala, J)." The controversy required to be resolved in this litigation can be articulated in to two broad issues, viz. (1) whether final plot No.852 of Town Planning Scheme No.3/6 at Kochrab is falling with the "entire area of Kochrab village up to Tagore hall", which is declared to be 'disturbed area" in the notification dated 29.10.1997 issued under Section 3 of the Act ? and (2) whether the impugned communication dated 11.01.2011 addressed to the petitioner by the Sub Registrar, Ahmedabad-4 (Paldi) is legal ? Before addressing the factual and legal issues involved, a few undisputed facts, discussed at the bar, may be noted :- (a) Notification dated 29.10.1997 issued under the Act was preceded by Notification dated 15.2.1993, as amended by Notifications dated 30.10.1993 and 10.10.1994 which specified the period from 01.02.1992 to 31.10.1994 as the substantial period for the purposes of the Act. The relevant entry therein, i.e. Entry No. 13, for Ellisbridge area did not include Kochrab village. Thereafter, another Notification dated 29.10.1994 was issued and published in the Gujarat Government Gazette dated 31.10.1994 and it was amended by Notification dated 30.10.1995; and specified the period from 01.11.1994 to 31.10.1997 as the substantial period for the purposes of the Act. By that notification, the "entire area of Kochrab village up to Tagore Hall" falling in Ellisbridge Police Station area was declared to be "disturbed area". And lastly, by Notification dated 29.10.1997, for the specified period from 01.11.1997 to 31.10.1999, the same area was included in the disturbed areas vide Entry No.21 of the Schedule.
By that notification, the "entire area of Kochrab village up to Tagore Hall" falling in Ellisbridge Police Station area was declared to be "disturbed area". And lastly, by Notification dated 29.10.1997, for the specified period from 01.11.1997 to 31.10.1999, the same area was included in the disturbed areas vide Entry No.21 of the Schedule. That notification appears to have been amended from time to time to extend the period up to 31.10.2012. It stipulated that "all transfers of immovable properties situated in the disturbed areas made during the aforesaid specified period shall be null and void and no immovable property situated in the said disturbed areas shall, during the period of subsistence of this notification, be transferred except with the previous sanction of the Collector concerned." (b) At least three sale deeds of flats in Mevawala Flats were registered after taking permission under the Act in the year 1995. Thereafter, there were transactions of sale between the years 2000 to 2010 of which instruments were registered without permission under the Act being sought or required. And recently sale deeds of 19 flats registered during the period from April 2040 to June 2010 were registered without permission under the Act. Thus, it is only after June 2010 that the transactions of sale have fallen foul of the Act. (c) While the petitioner had submitted the instruments of sale of various flats in Mevawala Flats from 29.7.2010 to 25.11.2010, there was protest by a Committee, comprising of the applicants in the civil applications made herein, styled as "Shree Kochrab Ellisbridge Hitrakashak Samiti" and representation was submitted by that Committee to the then Hon'ble Speaker of State Legislative Assembly. That representation was forwarded by the then Hon'ble Speaker to the Collector, Ahmedabad with the remark that the Hon'ble Speaker expected the Collector to remain active and protect the citizens residing in or around the sensitive area of Mevawala Flats, so as to stop migration. Pursuant to that and referring to that as well as representations dated 29.6.2010 and 20.7.2010 of the Committee, the City Deputy Collector called upon the sub Registrar to report whether sales of nine flats in Mevawala Flats were registered with permission or without permission under the Act.
Pursuant to that and referring to that as well as representations dated 29.6.2010 and 20.7.2010 of the Committee, the City Deputy Collector called upon the sub Registrar to report whether sales of nine flats in Mevawala Flats were registered with permission or without permission under the Act. That letter dated 26.7.2010 of the City Deputy Collector, marked on top as "Important/ Today", was replied by the Sub Registrar on 27.7.2010 with the i information that the documents were registered without permission under the Act and that Notification dated 29.10.1994 did not mention Mevawala Flat Association against Entry No.20 for Ellisbridge area. On the other hand, the Circle Officer of Kochrab Chhadwad area, wrote to the City Mamlatdar on 27.7.2010 that Mevawala Flats were not included in the disturbed area of Kochrab village as declared by Notification dated 30.10.2007. Thereafter, the City Deputy Collector wrote on 27.11.2010 to the Sub Registrar that Notification dated 29.10.1997 has declared disturbed areas in which the areas under Ellisbridge Police Station were shown at serial No.21; that residents of Mevawala Flats have made representation about sale deeds being executed without permission of the Collector under the Act; and, therefore, it should be verified through the local police station and city survey office whether the area of Mevawala Flats is included in the disturbed areas and documents shall be registered after permission under the Act being obtained. Pursuant to that letter dated 27.11.2010, Senior Police Inspector of Ellisbridge Police Station appears to have written to the Deputy Collector on 20.12.2010 that, as Kochrab village is included in the notification under the Act and as Mevawala Flats are located in final plot No.852 of Town Planning Scheme No.3/6 of the sim (periphery) of Kochrab village, Mevawala Flats are included in the disturbed area. (d) Its pursuant to the above procedure and correspondence that the impugned communication dated 11.01.2011 expressly referred to and relied upon the letter of Senior Police Inspector to state that Mevawala Flats were included in the disturbed area and hence prior permission under the Act was required to be obtained for registration of sale deeds. ( 5.
(d) Its pursuant to the above procedure and correspondence that the impugned communication dated 11.01.2011 expressly referred to and relied upon the letter of Senior Police Inspector to state that Mevawala Flats were included in the disturbed area and hence prior permission under the Act was required to be obtained for registration of sale deeds. ( 5. ) WITH the above background of facts, it was vehemently argued by learned senior Advocate Mr.Y.N.Oza, appearing for the petitioner, that it was only on communal considerations and at the instance of the then Hon'ble Speaker that the sale deeds in favour of the petitioner were illegally withheld by the Authorities. It was submitted that Kochrab village was originally a small separate village and the area of Kochrab village proper was always defined and demarcated in successive surveys and the area of Mevawala Flats was never a part of Kochrab village. He further submitted that according to Town Planning Scheme No.3/6 and in the map prepared by D.I.L.R., relied upon by the respondents, the village site of Kochrab was clearly demarcated in different colour and final plot No.852 was far away from the village site, due to which the area of Mevawala Flats could never be meant or understood to be a part of the site of Kochrab village. In fact, beyond the village site of Kochrab, there are in the northern direction, large parcels of land bearing survey Nos.838, 846, 848, 849 and 850, then there is a 40 ft. wide road crossing the area from west to east and further north there are lands bearing survey Nos.851, 852 and 853. Therefore, by no stretch, final plot No.852 could be said to be a part of the area of village Kochrab; and, therefore, the revenue Authorities and the Sub-Registrar had taken the correct view in not insisting upon prior permission under the Act for all the years from 1995 to 2010. He further submitted that apparently because the Managing Director of petitioner company happened to be a Muslim that objections were raised by obtaining opinion of the Police Inspector. He also submitted that the Town Planning Scheme No.3/6 was approved and enforced since about 40 years, clearly demarcating the village site of Kochrab and hence the Authorities could be presumed to be aware about the area of village Kochrab as demarcated in the Town Planning Scheme.
He also submitted that the Town Planning Scheme No.3/6 was approved and enforced since about 40 years, clearly demarcating the village site of Kochrab and hence the Authorities could be presumed to be aware about the area of village Kochrab as demarcated in the Town Planning Scheme. As against that, learned Government Pleader, appearing for the respondents, submitted that the Sub Registrar has issued the impugned communication in bona fide exercise of his power to give to the petitioner an opportunity to obtain prior permission so as to register the documents in accordance with -law, rather than refusing to register them for being null and void. ( 6. ) AGAINST the above backdrop of facts and contentions, it was seen that the Act was enacted in 1991 to declare certain transfers of immovable properties in disturbed areas of the State to be void and to prohibit temporary transfers of immovable properties in such areas. Section 3 of the Act provides for declaration of certain area to be a "disturbed area" for a specified period, having regard to the intensity and duration of riot or mob-violence and such other factors in any area of the State wherein public order was disturbed for a substantial period. Section 4 of the Act provides that all transfers of immovable property situated in a disturbed area made during the specified period shall be null and void with effect from the date of such transfers and also provides for an application to the Collector, within the prescribed period, for a declaration that the transfer of immovable property was made by free consent of the transferor and transferee and for a fair value. Such application could be rejected after hearing the parties and considering the evidence or the Collector may declare by an order that the transfer was valid. Section 5 of the Act, opening with a non- obstante clause, provides that no immdvable property situated in a disturbed area shall, during the period of subsistence of the notification issued under sub-Section (1) of Section 3 declaring such area to be the disturbed area, be transferred except with the previous sanction of the Collector; and any transfer of immovable property made in contravention of sub-Section (1) shall be null and void.
Section 5 also provides for making an application to the Collector, for holding a formal inquiry, opportunity of hearing and ascertaining whether the transfer of immovable property is proposed to be made by free consent of the transferor and the transferee and for a fair value. The decision of the Collector under Section 4 or 5, subject to appeal to the State Government under Section 6 and the decision of the State Government on the appeal, shall be final and conclusive and shall not be questioned in any Court, according to Section 8. No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or purported to be done under the Act, in terms of Section 10 of the Act. A bare reading of the preamble and relevant provisions of the Act would clearly show that restriction on transfer of immovable property is imposed by the Government with the clear intention of, and provision for, ensuring that any transfer of immovable property in a disturbed area is made by free consent of the parties and for a fair value. "By virtue of Section 4 of the Transfer of Property Act, 1882 ("the TP Act", for short), Section 54 of that Act has to be read as supplemental to the Indian Registration Act, 1908. Section 54 of the TP Act defines "Sale" and stipulates that transfer, in case of tangible immovable property of the value of one hundred rupees and upwards, can be made only by a registered instrument. Relevant provisions of the Indian Registration Act, 1908 read as under :- 34. Enquiry before registration by registering officer (1)..... (2)..... (3) The registering officer shall thereupon- (a) enquire whether or not such: document was executed by the person 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, assignee or agent, satisfy himself of the right of such person so to appear. (4)..... (5)..... 35.
(4)..... (5)..... 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 persons 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, assignee or agent, such representative, assignee or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Sections 58 to 61, inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing 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 assignee 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 :- PROVIDED FURTHER that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-Section and of Part XII.] PART XII OF REFUSAL TO REGISTER 71. Reasons for refusal to register to be recorded (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate 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; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. 72. Appeal to Registrar from orders of Sub-Registrar refusing registration on grounds other than denial of execution (1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order. (2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration. 73. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution (1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assignee or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered. (2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints. 74.
(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints. 74. Procedure of Registrar on such application In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire- (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration." Rule 45 of the Gujarat Registration Rules, 1970, made in exercise of the powers conferred by Section 69 of the Registration Act, 1908, reads as under Rule 45 Certain requirements to be verified before accepting a document for registration- (1) A registering officer shall, before accepting any document for registration, not concern himself with its validity but see that - (a) it is properly stamped; (b) it is presented within the proper time and in the proper office; (c) it is presented by a competent person; (d) if it relates to immovable property, that it is not open to objection under Section 21 or 22; (e) if any document is in a language which he does not understand, the provisions of Section 19 are complied with; (f) any interlineations blanks, erasures or alterations appearing in the document are attested by the signature or initials of the person or persons executing the same as required by Section 20; (g) the deed does not contravene the provisions of Sub Section (1) of Section 5 of the Foreign Exchange Regulation Act, 1947, and (h) whether sale certificate and prior permission in writing of the Authorities concerned are produced before him in original, if the deed relates to transfer of Government built property.
(2) If on presentation of the document, the fees prescribed under Section 78 are not paid demand, the registering office shall refuse to register the document." (emphasis added) Addressing the first issue as to whether final plot No.852 of Town Planning Scheme No.3/6 of Kochrab is falling within the "entire area of Kochrab village up to Tagore Hall", it was clear from the record that according to the maps of final plot No.852 and the Town Planning Scheme No.3, village site of Kochrab is clearly demarcated and shown in the colour different from the peripheral areas comprising of several survey numbers. To the north/north-east of the area of village site of Kochrab, there are lands of survey Nos.846, 848, 849 and 850. Further north across a 40 ft. wide east-west road, there are final plot Nos.827 to 851 and 852. Even in the map, relied upon by the Under Secretary in his: affidavit- in- reply, old revenue survey No.21 of Kochrab village is shown to be far away from "Kochrab Gamtal" Therefore, it is reasonable to infer that final plot No.852 was never a part of Kochrab village proper. Considering the description of disturbed areas given in the notification under the Act, it was seen that, for the most part, specific buildings or streets falling within particular police station areas have been specified as "disturbed areas" and where larger area were to be specified, it is specified as entire area comprised under a police choki or police station, e.g. "entire area under Panchkuva Police Choki", or "entire area comprised under the (Shahpur) Police Station". Wherever old village sites are specified as "disturbed area", it is described as "the vilage", e.g. "Vatva Gam", "New Vatva Gam", "Ramol Gam"; and when periphery of such village is also sought to be included in the disturbed area, it is described as "entire Vejalpur, including all gamtal simtal area". The areas specified in the notification do not seem to have any relationship or bearing on revenue survey numbers as reflected in the revenue records. And the actual position obtaining on the ground at the time of specifying the disturbed areas have to be taken as the basis for application of the notification.
The areas specified in the notification do not seem to have any relationship or bearing on revenue survey numbers as reflected in the revenue records. And the actual position obtaining on the ground at the time of specifying the disturbed areas have to be taken as the basis for application of the notification. "The entire area of Kochrab village up to Tagore Hall" clearly appears to be referring to the original site of the village and not to all the lands surrounding the original site of the village. There is no indication either in the Act or the notifications issued thereunder to suggest that a wholesale restriction was ever intended to be imposed on transfer of immovable properties in or around the buildings, streets, villages or police station areas specified in the notification. In the facts of the present case, the revenue Authorities appear to have consistently and correctly taken the stand that Mevawala Flats on final plot No.852 was not included in the specified disturbed area. Therefore, the provisions of the Act could not have been applied to transfer of the flats in question. "The other issue, as to whether the Registrar's communication asking the petitioner to obtain and submit prior permission of the Collector under the Act was legal, has to be examined in light of the statutory provisions quoted here in above. It will be clear from bare reading of the provisions of the Indian Registration Act that the registering officer has a limited scope for inquiry and in case of refusal to register a document, the Sub-Registrar is duty bound to make an order of refusal and record reasons for such order in his Book No.2, under Section 71 of the Registration Act. It is further provided in Rule 45 of the Gujarat Registration Rules, 1970 that the registering officer shall, before accepting any document for registration, not concern himself with its validity but see that the other requirements prescribed therein were fulfilled. The Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 also does not make any provision for enforcement of the Act through Sub-Registrar under the Indian Registration Act. Therefore, the impugned communication and indirect refusal to register or withholding of the sale deeds in favour of the petitioner appeared to be lacking in Authority of law.
Therefore, the impugned communication and indirect refusal to register or withholding of the sale deeds in favour of the petitioner appeared to be lacking in Authority of law. As seen earlier, the objections and legal complications appeared to have been raised and created by and at the instance of the applicants in the civil applications. And those applicants clearly appeared to be suffering from communal prejudice and misconception about the law." ( 7. ) IT is unfortunate that even after more than 60 years of the operation of the Constitution, not only some of the elite citizenry but State functionaries did not seem to have imbibed the spirit of our Constitution, which by its Preamble itself sought to constitute a secular republic to secure to all its citizens equality of status and opportunity and to promote fraternity, ensuring dignity of the individual. Therefore, no law in India could be so interpreted and applied as to exclude the members of one or the other 'community from carrying on legitimate business activities and entering into commercial transactions. Contrary to the contentions of the applicants in the civil applications, the intent and purpose of the Act clearly appears to be prevention of migration of residents in minority in one area and taking over of their properties by other communities under coercion in the aftermath of communal disturbances. There is nothing in the Act to suggest that it was intended to divide residents or citizens on communal lines. ( 8. ) THEREFORE, the applications made in the main petitions are found and held to be motivated and misconceived and the impugned communication and the stand of the respondent is found and held to be illegal and inconsistent with the provisions of the Act as well as the relevant provisions of the Indian Registration Act, 1908. The present litigation and delay in registration of the sale deeds in question necessarily entails losses and unnecessary expenditure for the petitioner. The petitions are stated at the bar to have been argued for days on end, at the admission stage, before at least three benches of this Court; and thus considerable public time of the Court is spent on this litigation at the cost of other cases pending since decades.
The petitions are stated at the bar to have been argued for days on end, at the admission stage, before at least three benches of this Court; and thus considerable public time of the Court is spent on this litigation at the cost of other cases pending since decades. In the facts and for the reasons discussed hereinabove, all the petitions are allowed, and the civil applications are dismissed with cost quantified at Rs.50,000/- with the direction that the sale deeds enumerated in letter dated 18.12.2010 of the petitioner shall be duly processed for registration in accordance with the provisions of the Registration Act, 1908 and returned to the petitioner in accordance with law. The amount of cost, which shall be paid to the petitioner within a period of one month, shall be borne by the respondents in the main petition to the extent of Rs.25,000/- and the remaining cost of Rs.25,000/- shall be paid in equal proportion by the applicants in the Civil Applications. Petitions allowed with cost.