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2017 DIGILAW 2814 (ALL)

KRISHNA KUMAR SAXENA v. STATE OF Uttar Pradesh

2017-12-04

AJAY BHANOT, TARUN AGARWALA

body2017
JUDGMENT By the Court.—We have heard Shri Kshitij Shailendra, learned counsel for the petitioners, Shri Shreeprakash Singh, learned counsel for the respondent Nos. 4 to 11 and learned Standing Counsel for respondent Nos. 1, 2 and 3. 2. The petitioner has questioned the veracity of the Government order dated 13.8.2013 and orders dated 23.9.2016 and 18.10.2016 passed by the Assistant Inspector General (Registration/Stamp), Rampur by which the authority has withdrawn the registration of the sale-deed and has consequently annulled the sale-deed dated 15.12.2015 executed by respondent No. 11 in favour of the petitioners. 3. The facts pleaded in the writ petition are, that respondent No. 11 is the father who executed a registered Will dated 14/15.10.2014 bequeathing his residential house in favour of his children, namely, the petitioners and the respondent Nos. 4 to 10. During his life time, respondent No. 11 executed a sale-deed of the same property in favour of the petitioners by means of a registered sale-deed dated 15.12.2015. Respondent No. 11 filed a suit on 5.8.2016 for a declaration that the sale-deed dated 15.12.2015 alleged to have been executed by him in favour of the petitioners is null and void for the reasons stated in the plaint which is not necessary for the purpose of adjudication of the present dispute. After four days, respondent No. 11 filed an application under Order 23 C.P.C for withdrawal of the suit without seeking liberty to file a fresh suit and ultimately on the basis of this application, the suit was dismissed as withdrawn on 2.1.2017. 4. In the meanwhile, the beneficiaries under the Will, namely, the brothers and sisters of the petitioners filed a complaint before the Assistant Inspector General (Registration/Stamp), Rampur. Based on this complaint, an enquiry was initiated in accordance with Clause 6(6) of the Government Order dated 13.8.2013 and, after such enquiry, the Assistant Inspector General (Registration/Stamp), Rampur by an order dated 18.10.2016, found that the sale-deed was executed on account of fraud and misrepresentation and accordingly withdrew the registration and simultaneously annulled the sale-deed dated 15.12.2015. 5. The petitioners being aggrieved by the impugned order has filed the present writ petition not only challenging the impugned orders passed by the Assistant Inspector General (Registration/Stamp), Rampur but also prayed for the quashing of the Government Order dated 13.8.2013. 6. The contention of the learned counsel for the petitioners is that the respondent Nos. 5. The petitioners being aggrieved by the impugned order has filed the present writ petition not only challenging the impugned orders passed by the Assistant Inspector General (Registration/Stamp), Rampur but also prayed for the quashing of the Government Order dated 13.8.2013. 6. The contention of the learned counsel for the petitioners is that the respondent Nos. 4 to 10, being the brothers and sisters have no locus to question the veracity and legality of the sale-deed dated 15.12.2015 as they are not the owners of the property nor are they executants of the sale-deed. It was contended that they are beneficiaries under a Will but the Will cannot be enforced as yet inasmuch as their father, namely the testator is still alive. It was contended that the testator, during his life time could always execute a sale-deed, irrespective of the execution of a Will. 7. It was further contended that the Government Order dated 13.8.2013, is against the teeth of the provisions of the Registration Act 1908 and such Government Order cannot be executed in exercise of the power conferred under Article 162 of the Constitution of India. 8. It was further contended that once a sale-deed has been executed, the same cannot be annulled by an administrative order passed by the Assistant Inspector General (Registration/Stamp) and that the said authority become functus officio after execution of the sale-deed. The learned counsel for the petitioner further contended that allegations of fraud misrepresentation, deceit etc. cannot be considered by the authority under the Government Order dated 13.8.2013 and that the only remedy available to the executant of the sale-deed was to file a suit which in any case had been instituted but subsequently withdrawn. 9. On the other hand Shri Shreeprakash Singh, the learned counsel for the respondent Nos. 4 to 10 submitted that the petitioners had played a fraud upon their father and that the sale-deed was executed without following the procedure contemplated under the Registration Act. Further, no consideration was paid and, in fact, the boundaries mentioned in the sale-deed do not exist on the spot. Further less valuation has been recorded in the sale-deed resulting in less payment of stamp duty. The learned counsel for the petitioner contended that respondent No. 11, the executant and father of the petitioners and respondent Nos. Further, no consideration was paid and, in fact, the boundaries mentioned in the sale-deed do not exist on the spot. Further less valuation has been recorded in the sale-deed resulting in less payment of stamp duty. The learned counsel for the petitioner contended that respondent No. 11, the executant and father of the petitioners and respondent Nos. 4 to 10 is an old infirm man being aged about 82 years and being half paralytic is unable to fend for himself or contest the matter and that is why it became imperative for him to withdraw his suit. 10. It was also urged that in view of Section 23 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the transfer of the property through the impugned sale-deed should be declared void by the Court since a fraud has been played by the petitioners. 11. On the issue with regard to the locus standi of the petitioners to file a complaint as they are neither the executant nor beneficiaries at this stage an impleadment application was filed by the father through one of their daughters contending that he is not of sound mind and is unable to comprehend. The impleadment application so filed was allowed by this Court and the father was impleaded as respondent No. 11. 12. Today a counter-affidavit has been filed on his behalf which has been taken on record. From a perusal of the counter-affidavit, apart from the allegation of fraud, one thing that comes to the notice of the Court is that a suit was filed to declare the sale-deed as a void document. Further the suit was withdrawn at the instance of respondent No. 11 without assigning any reason and without seeking liberty under Order 23 Rule 3 CPC to file afresh. 13. The Court called upon the standing counsel to justify the validity of the Government order dated 13.8.2013. The submission made by the learned Standing Counsel is, that the Government Order was issued based on a judgment of the Andra Pradesh High Court in the case of Yanala Malleshwari v. Smt. Ananthula Sayamma, AIR 2007 AP 57 , wherein the Full Bench of the Andhra Pradesh High Court permitted the Registering Authority to declare a sale-deed as a void document where it was found that the transaction had taken place on account of a fraud played by the transferor and/or transferee. It was contended by the learned Standing Counsel that there are large number of persons against whom by deceit and misrepresentation a fraud is played and a sale-deed is executed in favour of 3rd parties and that it becomes impossible for these persons to pursue the remedy of filing a civil suit for cancellation of that document as they do have the requisite fund. In this kind of scenario, the Government issued the impugned Government Order dated 13.8.2013 to withdraw the registration and annul a sale-deed where fraud had been played by the parties in the execution of a document. 14. In the light of the rival stand made by the parties and upon consideration of the various provisions of law, we find that the Registration Act is a complete Code by itself for registration of a certain documents. The procedure for registration of a document is spelt out in Part-VI of the Registration Act. Section 32 provides for persons to be present for registration of the document. If the document is required to be compulsorily registered, in which case it becomes optional for the persons to be present under Section 33 of the Act. Section 34 stipulates that enquiry is required to be done by Registering Officer before registering a document. Section 35 provides the procedure for admission or denial of execution of the document. Section 35 of the Act does not confer any quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure himself that the document to be registered is accompanied by supporting documents. The Registering Officer is not required to evaluate the title or irregularity in the documents. The examination to be conducted by the Registering Officer is only to ascertain that there is no violation of the provisions of the Registration Act. Section 58 provides particulars to be endorsed on document admitted to registration. Section 59 provides for an endorsement to be made and signed by Registering Officer and Section 60 provides for the registration of the document. Where the registering officer finds that a particular document cannot be registered in which case he is required to give reasons under Section 71. Any persons who intentionally makes any false statement during the course of enquiry, a penalty could be imposed under Section 82 with imprisonment or with fine. Where the registering officer finds that a particular document cannot be registered in which case he is required to give reasons under Section 71. Any persons who intentionally makes any false statement during the course of enquiry, a penalty could be imposed under Section 82 with imprisonment or with fine. Section 69 provides power to the Inspector General to frame Rules which is consistent with the Act. Such Rules so framed are required to be published in the Official Gazette. 15. In so far as the case of Thota Ganga Laxmi v. State of A.P., (2010) 15 SCC 207 , is concerned, the said decision was based on a provision of Rule 26(k)(i) of the Andhra Pradesh Registration Rules 1960 which were framed in exercise of the power conferred under Section 69 of the Act. It is in the light of the provision of the Rule 26(k)(i) that the Full Bench of the Andhra Pradesh High Court held that Registering Authority had the power to annul a document where fraud had been played by the parties. The said decision of Andhra Pradesh in Yanala Malleshwari (Supra) was explained by the Supreme Court in Satya Pal Anand v. State of M.P. and others, 2016(10) SCC 761 , holding that the Andhra Pradesh High Court was only called upon to consider whether a person can nullify the sale by executing and registering a cancellation deed and whether the Registering Officer was bound to refuse registration when a cancellation deed was presented. The Supreme Court held that in view of the provisions of Rule 26(k)(i) of the Andhra Pradesh Registration Rules, which was expressly provided in the Rules applicable to that State, the registration of a document be annulled and labelled as fraudulent or nullity in law. 16. No such Rules have been framed under Section 69 of the Registration Act in so far as the State of Uttar Pradesh is concerned. In the absence of any express provision, the registration of a document cannot be withdrawn nor a sale-deed could be annulled by an executive fiat on the basis of a Government Order dated 13.8.2013. 17. Unless and until there is an express provision in the Act or in the Rules, no Government Order could be issued giving power to a Registering Authority to annul a document on the administrative side. 17. Unless and until there is an express provision in the Act or in the Rules, no Government Order could be issued giving power to a Registering Authority to annul a document on the administrative side. Such powers given would be wholly arbitrary and against and against the provisions of the Act. 18. The State Government cannot, while taking recourse to the executive power of the State under Art. 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Art. 300A. The word ‘law’ in the context of Art. 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. This principle was pronounced by the Supreme Court in Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others, (1982) 1 SCC 39 . 19. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these articles are analogous to those of Section 8 and 49(2) respectively of the Government of India Act, 1935 and lays down the Rule of distribution of executive powers between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them. Article 162, provides: “Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.” 20. Thus under this Article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. Thus under this Article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by the Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which the Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on Clause(1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to be State it would be open to the Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. 21. Neither of these articles contains any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. 22. The language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. Where a particular subject is regulated by a legislative enactment, the field is said to be covered by such statute. In such matters and on such subjects the executive powers is circumscribed. The executive exercising powers under Article 162 cannot issue orders which contravene provisions of a statute or are inconsistent with the same. 23. The State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. 24. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. 24. Thus, once an Act has been framed, the State in furtherance can make rules under Section 69 of the Act. So long as the Rules are not framed, a document cannot be annulled on the basis of the Government Order issued under Article 162 of the Constitution. The said Government Order is against the provisions of the Constitution and is illegal. 25. In Park View Enterprises v. State of T.N., AIR 1990 Madras 251, the Madras High Court held that the functions of the Sub Registrar for the purposes of registration was purely administrative and not quasi-judicial. The Supreme Court in Satya Pal Anand (Supra) approved the said decision and further held that the authority could not decide whether a document which was executed by a person who had title as was recited in the given instrument. The Supreme Court held that the Sub Registrar was not expected to decide the title or rights of the parties to the agreement nor was expected to examine the document to ascertain whether the same was legal and permissible in law or undertake an analysis thereof. 26. The Supreme Court further held that if the document registered by the Sub Registrar was illegal or if there was any irregularity, then the same must be challenged by invoking an appropriate proceeding before a Court of competent jurisdiction. The Supreme Court further held that Section 35 of the Registration Act did not confer quasi-judicial power on the Registering Authority. The Registering Officer was expected to reassure that the document to be registered was accompanied by supporting documents. The Supreme Court further held that it was only when a sale-deed was cancelled by a competent Court that a cancellation deed could be registered and that too after notice to the parties concerned. 27. The aforesaid principle is also in consonance with Section 31 of the Specific Relief Act which states that it was only the Court which has the power to cancel an instrument where it is alleged that the written instrument is void or violable. 28. 27. The aforesaid principle is also in consonance with Section 31 of the Specific Relief Act which states that it was only the Court which has the power to cancel an instrument where it is alleged that the written instrument is void or violable. 28. In Shri Anil v. State of Uttar Pradesh and others in Writ No. 24128 of 2016 decided on 11.5.2017, a Division Bench of this Court held that the Government Order dated 3.8.2013 could not be considered in reference to procedure provided under Section 34 and 35 of the Act and that the said Government Order cannot confer a power upon the Registering Authority to cancel a deed which has already been registered. We are of the opinion that Sections 34 and 35 only contemplates an enquiry before registration of a document. The Act does not contemplate any enquiry after a document is registered. The Government Order dated 13.8.2013 cannot be invoked for withdrawal of a registration and for annulling a document which had already been registered under the Registration Act. 29. The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Order cannot be invoked to annul a document. The Government Order dated 13.8.2013 is not only arbitrary but is wholly without jurisdiction and cannot be sustained. 30. In view of the aforesaid, we find that respondent Nos. 4 to 10 were only proposed beneficiaries under a Will. They have no locus standi to question the validity or legality of the sale-deed executed by respondent No. 11 i.e their father in favour of the petitioners. The respondent No. 11 is still alive and it is only the testator, who is also the executant of the sale-deed, could question the legality and validity of the sale-deed before the competent Court. 31. Whether the said respondent No. 11 could file a suit for cancellation of the sale-deed in view of the withdrawal of suit for declaration is a question which the Court is not adjudicating and leave it open for consideration before the appropriate Court. At this stage, the Court finds that respondent No. 11 has admitted that he had filed a suit for declaration praying that the sale-deed should be declared void but subsequently, withdrew it. At this stage, the Court finds that respondent No. 11 has admitted that he had filed a suit for declaration praying that the sale-deed should be declared void but subsequently, withdrew it. Whether the sale-deed executed between the petitioners and respondent No. 11 is an outcome of fraud, misrepresentation or deceit is a question of fact which cannot be adjudicated in a writ jurisdiction. The remedy lies elsewhere. 32. In the light of the aforesaid, we find that the respondent Nos. 4 to 10 had no locus standi to question the veracity of the sale-deed. No enquiry could have been initiated nor the authority could have annulled the document. Consequently, the impugned orders dated 23.9.2016 and 18.10.2016 passed by Assistant Inspector General (Registration/Stamp), Rampur being without jurisdiction cannot be sustained and are hereby quashed. The Government Order dated 13.8.2013 is also quashed. The writ petition is allowed.