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2023 DIGILAW 84 (JK)

Mohan Lal v. UT of J&K

2023-02-24

RAHUL BHARTI

body2023
JUDGEMENT 1. This writ petition affords a fitting opportunity to this Court to examine as to the actual nature of power and domain of function enjoined upon a registering officer/ authority constituted and acting under the Registration Act, 1908 in the matter of registration of a document, be it a one enlisted under section 17 or Section 18 of the Registration Act, 1908. This opportunity has come to visit this court upon getting posed with a situation in the present writ petition when for the delivery of a sale deed even after the parties to the sale deed having appeared along with their identifying witness in terms of Section 34 , admitting the execution of sale deed in terms of Section 35 and 52 by subscribing their signatures, and even getting charged beforehand with the deposit of the requisite registration fees, the Sub-Registrar concerned is not completing the act of registration as envisaged under section 60 of the Registration Act, 1908 leaving the petitioner remediless except to invoke writ jurisdiction of this court under article 226 of the Constitution of India. The situation so obtaining also gets tacked with a question as to whether a registering officer/authority can refuse/withhold registration of a document by referring to the subject matter of, or the transaction being effected under a given document without there being an express legal prohibition to register a document bearing a particular subject matter or pertaining to a particular transaction. 2. Before embarking to examine the legal position in this regard, the facts of the present case in the writ petition are required to be taken cognizance of. 3. Petitioner came to own seven marlas plot of land comprised in khasra no. 1142 min, khata no. 718 and khewat no. 64 in village Paloura, tehsil Jammu North, district Jammu. This seven marlas plot of land was purchased by the petitioner by virtue of two sale deeds both dated 16.10.2021 for three and half marla each from erstwhile owner Raghubir Singh Chib. The execution and registration of the said two sale deeds by the then owner Raghubir Singh Chib in favour of the petitioner had taken place on the basis of revenue record extract i.e., fard intikhab jamabandi, kharif 1959-1960 duly issued by the Tehsildar, Jammu-North. 4. The execution and registration of the said two sale deeds by the then owner Raghubir Singh Chib in favour of the petitioner had taken place on the basis of revenue record extract i.e., fard intikhab jamabandi, kharif 1959-1960 duly issued by the Tehsildar, Jammu-North. 4. Pursuant to the said two sale deeds made and registered in his favour, the petitioner also got Mutation No. 6876/Jeem, dated 02.11.2021 and mutation no. 6874/Jeem, dated 02.11.2021 in his favour. Thus, both in terms of law as well as record, the petitioner came to be recognized as lawful owner in possession of aforesaid two parcels of land three and half marla each combining together to constitute ownership of seven marlas of land in khasra no. 1142 min, khata no. 718 and khewat no. 64 in village Paloura, tehsil Jammu North, district Jammu. 5. The petitioner decided to alienate aforesaid plot of land of seven marlas comprised in khasra no. 1142 min by way of a sale deed dated 10.02.2022 in favour of one Rakesh Kumar Gupta for a sale consideration of Rs. 8,27,750/-. This sale deed, being a compulsorily registerable document under section 17 of the Registration Act, 1908, came to be presented by the petitioner joined by the vendee Rakesh Kumar Gupta for registration before the Sub-Registrar, Jammu-North. 6. The presentation of the instrument of sale deed dated 10.02.2022 by the petitioner for registration by online mode resulted in generation of an On line pre-registration summary dated 09.02.2022 at 06:09 A.M. detailing the names of the parties, nature of the document, names of the attested witnesses, value of the stamp duty paid and also the registration fee chargeable for the registration of the said sale deeds. Acting upon this, the petitioner even came to pay & deposit registration fee of Rs. 25,390/- on 10.02.2022 against a Receipt No. A-3683071, dated 07.02.2022 in the Form F.C.I. This amount, thus, stood paid as registration fee payable to the Government for the service to be given to the petitioner with respect to registration of the document. 7. Acting upon this, the petitioner even came to pay & deposit registration fee of Rs. 25,390/- on 10.02.2022 against a Receipt No. A-3683071, dated 07.02.2022 in the Form F.C.I. This amount, thus, stood paid as registration fee payable to the Government for the service to be given to the petitioner with respect to registration of the document. 7. The petitioner, along with vendee Rakesh Kumar Gupta and identifying witness, appeared before the Sub-Registrar, Jammu-North on given date of 10.02.2022, for carrying out registration related exercise in terms of Section 35 and 52 of the Registration Act, 1908 and in this regard upon enquiry under section 34 lend their signatures to the registration endorsement before the Sub-Registrar, Jammu-North along with identifying witness. 8. However, when it came to the matter of delivery of the registered sale deed to the petitioner, the petitioner came to be refused its delivery by the Sub-Registrar, Jammu-North whereupon the petitioner came to approach the Inspector General of Registration, Jammu and Kashmir with a written petition dated 12.04.2022 thereby apprising the Inspector General of Registration with the aspect that a duly registered sale deed bearing duty of Rs. 1,48,110/- and paid registration fee of Rs. 25,390/- was admitted to the registration by the Sub-Registrar, Jammu-North but even after two months of registration, the petitioner has not been delivered the registered instrument on account of the fact that the Sub-Registrar, Jammu-North is caught in an indecision at his end and, thus, the petitioner sought requisite intervention for a direction unto the Sub-Registrar, Jammu-North for completing the registration of the instrument and deliver it back to the petitioner. 9. In response to the said representation of the petitioner, the Inspector General of Registration, J&K, Jammu, vide his communication dated 14.04.2022, called upon the Registrar, Jammu to examine and furnish a factual report in the matter which resulted in submission of a Report No. AGP/Jammu/2022-23, dated 02.06.2022 from the office of Additional Inspector General Registration, Jammu wherein it came to be reported that upon receipt of reply from Registrar, Jammu along with reply from Sub-Registrar, Jammu-North, the situation was found out to be that a kind of land forming subject matter of the sale deed is recorded as "Banjar Qadeem Araq" which as per the Sub-Registrar, Jammu-North after he had carried out registration, held the same to be prohibited for sale. It further came to be apprised that although the description of the land as per the revenue record is "Banjar Qadeem Araq" but on spot the plot of land was within boundary wall located in vicinity of a residential houses falling within the limits of the Jammu Municipal Corporation (JMC) covered by Master Plan 2032 so as to be governed by the Development Act, 1970 and, therefore, there was no disability in carrying out the completion of registration exercise with respect to the said pending document of sale deed but it had taken more than one year of waiting without success to get back his sale deed as a registered instrument from the office of Sub-Registrar, Jammu-North. 10. Pitted with this situation of uncertainty attending the title deed in terms of which he has sold the property to the vendee, the petitioner came to approach this Court with a writ petition being WP(C) No. 73/2023, which came to be disposed of on the date of its first hearing vide an order dated 19.01.2023 with a direction to the Sub-Registrar, Jammu-North to make the delivery of the registered sale deed against proper receipt of the petitioner within a period of 15 days and in case the document was to be withheld from being delivered then the Sub-Registrar, Jammu-North was mandated to endorse his reasons in writing for so doing and submit a report to the Inspector General of Registration within a period of 15 days. 11. Pursuant to this order dated 19.01.2023 in WP (C) No. 73/2023, the Sub-Registrar, Jammu-North in terms of Letter No. SRO/JN/22-23/250, dated 06.02.2023 came to put in writing the purported reasons for withholding of the delivery of the registered sale deed to the petitioner and apprised the Inspector General of Registration, Jammu and Kashmir, accordingly. In terms of this communication, the Sub-Registrar, Jammu-North refers to the aspect of prohibitory nature of sale of "Banjar Qadeem Araq" land and also to a Communication No. LAW/opn2/194/2022-10, dated 27.10.2022 of the Department of Law, Justice and Parliamentary Affairs to the effect that Section 11(a) of the Development Act, 1970 deals with change of land use falling under any zone or master plan but does not deal with alienation of such land which is to be governed by the land law for the time being in force. Thus, on the basis of the aforesaid cited reasons of non-signing of certificate of registration, the consequent delivery of the registered sale deed came to be denied to the petitioner which led him to come in the second round of writ petition in the form of present writ petition before this Court. 12. This Court, in terms of an order dated 22.02.2023, came to direct appearance of the Inspector General of Registration, Jammu and Kashmir, Jammu and also Sub-Registrar, Jammu-North along with record of the sale deed in reference before this Court, who accordingly, appeared on 24.02.2023 along with the requisite record for perusal of this court. This Court enquired from and also apprised the respondents no. 2 and 3 about the position of law with respect to the domain of a Sub-Registrar or the Registrar dealing with the registration of document presented for registration. 13. This Court finds that the sale deed executed by the petitioner in favour of the Rakesh Kumar Gupta is accompanied with requisite revenue record in the form of fard intikhab jamabandi duly certified and confirmed by all the concerned i.e. the Patwari, Girdawar, Naib-Tehsildar and the Tehsildar registering no disability in terms of the revenue record with respect to the sale of the land forming subject matter of the sale deed. 14. This Court when examined the Inspector General of Registration, Jammu and Kashmir and also the Sub-Registrar, Jammu-North as to the source of their authority whereby the Sub-Registrar, Jammu-North or for that matter the Registrar of district Jammu can afford to over reach and refuse registration of the document which is accompanied with and by legal clearance of the revenue authority concerned, this Court found that the respondents no. 2 and 3 clueless and answerless. 15. A bare perusal of Communication No. SRO/JN/22-23/250, dated 06.02.2023 of the Sub-Registrar, Jammu-North reflects that the basis for refusal to return the registered document of sale deed is because of the later observation of the Sub-Registrar, Jammu-North that the nature of the land forming subject matter of the sale deed is "Banjar Qadeem Araq" prohibited for sale but there is no reference to the legal provision under which the Sub-Registrar, Jammu-North ventured to draw the said statement of fact with respect to prohibition of sale quo the land forming subject matter of sale deed. 16. 16. Be that as it may be, the fard intikhab jamabandi accompanying the sale deed is carrying a full narration of successive passing of the title of the ownership of the land in issue from the original owner Bagh Singh S/o Thakur Hari Singh in 1982 to Raghubir Singh Chib and then from Raghubir Singh Chib to the petitioner and now from the petitioner to the vendee Rakesh Kumar Gupta. This chain and course of transfer of title of ownership of the land had taken place on the basis of sale deeds, with all the antecedent sale deeds duly registered instruments having suffered no derecognition at the end of the revenue agencies/authorities attesting mutations with respect to the change of title of the land or for that matter any other statutory authority competent to censure the said sale deeds and its effects. In this backdrop of the title history and record of the land in reference, then for the Sub-Registrar, Jammu-North to put a question mark on the transaction of the sale of the same very nature of the land from the petitioner to the vendee Rakesh Kumar Gupta was nothing but an act of an over indulgence on the part of the Sub-Registrar, Jammu-North to usurp a judicial/quasi-judicial adjudicatory jurisdiction unto himself so as to pronounce a judgment on the validity of nature of the sale deed with respect to the land executed by the petitioner in favour of the Rakesh Kumar Gupta. This Court cannot persuade itself to endorse the said over stretching of jurisdiction by the Sub-Registrar, Jammu-North or for that matter by any Sub-Registrar or Registrar acting under the Registration Act, 1908, to an arena which is not meant for them to traverse. 17. It is a high time for the registering officers be it Sub-Registrar, Registrar or the Inspector General of Registration, to bear in mind for their better understanding of the domain, nature and confine of their duty of registration from judgment of the Hon'ble Supreme Court of India in AIR 2016 SC 4995 titled- "Satya Pal Anand v. State of M.P. & Ors." in which para 26 and 31 which are reproduced as under:- "26. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises ( AIR 1990 Mad 251 ) (supra) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition. 31. In our considered view, the decision in the case of Thota Ganga Laxmi (supra) was dealing with an express provision, as applicable to the State of Andhra Pradesh and in particular with regard to the registration of an Extinguishment Deed. In absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the Act of 1908. Going by the said provisions, there is nothing to indicate that the Registering Officer is required to undertake a quasi judicial enquiry regarding the veracity of the factual position stated in the document presented for registration or its legality, if the tenor of the document suggests that it requires to be registered. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction." In its judgment, the Hon'ble Supreme Court of India has identified the role of Sub-Registrar/Registrar or Inspector General of Registration in registration of document to hold and say that the real nature of jurisdiction of a registering officer is purely an administrative in nature. 18. 18. By this reference, an inviting and safe inference and conclusion is that a registration officer, be it a Registrar/Sub-Registrar, has to be satisfied with respect to admissibility of a document presented for registration if it is accompanied with requisite permissions/supportive documents which in law, be it under the Registration Act, 1908 or any other statute, are required to accompany a document presented for registration, and if there is no such requirement in producing or accompanying any document/permission for the purpose of seeking registration of a particular document, then the Sub-Registrar and/or Registrar enjoy no reason for any worry and no authority to hesitate, delay, suspend and/or decline registration of a document on the fancy of their own reason and rational. A document in the form of a will requires nothing to accompany it for enabling a person executing it to seek and present it for its registration and when presented a registering officer is nobody to ask for title verification of the property forming subject matter of the given will to be produced by the executor of the will for it to be registered. There are good number of documents regarding which liberty to execute the same is without any legal restriction and if same very document/s is/are intended to be registered, then a registering authority may have no business to insist for a particular NOC or supporting document to first accompany the document before admitting it to registration. 19. This Court is taking judicial notice of the fact that before coming into picture of the Jammu and Kashmir Reorganization Act, 2019, the domain and duty of registration of documents under the Jammu & Kashmir Registration Act, Svt. 1977 were vested for a long time in fact since inception dating back to pre 1947 with the judicial officers who by virtue of their legal background and legal knowledge were able to discharge the duty and function of registration of documents with facility. However post J&K Reorganization Act, 2019, the function of registration has been shifted from judicial dispensation to administrative dispensation and, as such, there are teething problems and the present case is one of those. However post J&K Reorganization Act, 2019, the function of registration has been shifted from judicial dispensation to administrative dispensation and, as such, there are teething problems and the present case is one of those. In this regard, the registering officer/authorities are well advised to bear in mind that the law has taken care to afford protection to a registering officer in the matter of discharge of duty when Section 86 of the Registration Act, 1908 affords a registering officer a statutory immunity for anything done or refused in official capacity and that section means to assure a registering officer that while a transaction may not be permissible in law but a document containing said transaction upon getting registered lends no validity to the transaction dealt with in and by the said document and as such there would not be any liability upon a registering officer for act of having registered the given document unless and until even the act of admitting and registering the document for said transaction is prohibited. 20. Registration Act, 1908 is a consolidating statute as is found stated in its preamble. According to Craies, consolidation is the reduction into systematic form of the whole of the statute law relating to a given subject. A consolidating statute, thus, means a statute which encompasses the totality of regime of law on the subject within itself so as to render itself complete in all respects and aspects. The object of the Registration Act, 1908 as stated by the Hon'ble Supreme Court in "Rajni Tandon v. Dulal Ranjan Ghosh Dastidar", 2009 (14) SCC 782 is designed to guard against fraud by obtaining a contemporaneous publication and unimpeachable record of each document functioning of registration of document is vested in Registrar/Sub-Registrar of a given district. 21. The entire regime of Registration Act, 1908 is meant to be document related and to serve the act of registration of documents which are contemplated under section 17 and 18 of the Registration Act, 1908 as mandatorily and optionally registerable. The Registration Act, 1908 is 93 sections comprised statute. There is no section provided in the entire Registration Act, 1908 which means to provide and/or prohibit registration of a particular document in relation to a particular property or transaction. The Registration Act, 1908 is 93 sections comprised statute. There is no section provided in the entire Registration Act, 1908 which means to provide and/or prohibit registration of a particular document in relation to a particular property or transaction. However, the Registration Act, 1908 does provide as to the requirements to be fulfilled in relation to a document meant to be registered under section 17 and 18 and in this regard the requirements are found stated in Section 21 with respect to description of property and maps or plans, Section 22 description of houses and lands by reference to Government maps or surveys, compulsorily affixing of photograph/s under section 32A; who are the persons to present document/s under section 17 and 18 for the purpose of seeking registration which is provided under section 32 and 33; the scope of the enquiry in that context under section 34 along with section 36 providing for procedure for appearance of executants/s or witness/es at the instance of a person presenting a document. A document presented for registration by a person entitled to present the same for registration is to be dealt how is provided under section 34 read with Section 35, 52, 58, 59, 62 and 63 wherein there is located no power/authority given to a registering officer to intrude into the document to study its subject matter and then ponder upon it to decide whether said subject matter can be documented. A combined reading of Section 34 and Section 52 self states the actual extent and intent of power and function of a Sub-Registrar or Registrar in registering a document and in that there is no scope to say by no reference to subject matter of the document or the transaction being done there under unless there is a legal prohibition to register a document with such subject matter or transaction. 22. 22. A collective reading of the afore cited sections would bear out one position very clearly that the registering officer/authority is not meant to act and behave like an inspector of document to examine the legality and validity of a given document presented for registration by parties to a given document for the reason that the domain to examine the legality and validity of a given document of legal nature and effect, with or without registration, is the domain of a civil court or for that matter of the authority/ies which under a given statute may be vested with jurisdiction to examine the legality and validity of the document with or without registration. 23. Statute makers in framing the Registration Act, 1908 were very conscious and clear in the purpose of the framing of the Registration Act, 1908 and the function to be served by it. It is this understanding in perspective that the Hon'ble Supreme Court in very clear manner has identified the nature of function of registering officer/authority to be purely of an administrative in nature. If Registration Act, 1908 is meant to be used by registering officer/authority bearing a misplaced and unwarranted impression and perception in mind that the registering officer/authority by very nature of the act of admitting a document to a registration is entitled to enter into the domain of the document for examining its subject matter, nature of transaction, objective of its making and execution, then surely the registering officer/authority would be meant to be wearing so many hats simultaneously that of being a civil court, a quasi-judicial and/or adjudicatory authority in succession, and literally may amount to a situation whereby the act of registration of a document would amount to be a judicial/quasi-judicial act being done by a registering officer/authority. If that would have been the intendment of the Registration Act, 1908, then the framers of the Act would have surely put in a hierarchy of judicial/quasi-judicial officials/institutions in place to deal with act of registration of a document but that was not done so for the simple reason that act of registration, inherently, is an administrative act which is meant to be carried out within bounds of the Registration Act, 1908 without importing any prohibition/restriction/ doubt/disability from outside the Registration Act, 1908 so as to frustrate the act of registration of a given document. In fact a Sub-Registrar or a registrar is having no discretion to refuse even registration of a document of which registration is optional under section 18 and that option is of the part/parties to a given document and option is not that of sub registrar or registrar. 24. Registering officers/authorities acting under the domain of Registration Act, 1908 are meant to look at the document submitted for registration but not to peep into the given document to scrutinize the transaction intended thereby, property being dealt therein, nature of matter being transacted by and under the document unless and until there is an express legal provision enabling them to do so and also prohibiting registration of a given document dealing with a particular property or matter or document of particular/specified nature. The Inspector General of Registration appointed under section 3, the Registrars and the Sub-Registrars appointed under section 6 have been vested and given power and duty within the bounds of the Registration Act, 1908 and not beyond it. Even a state government has no power to restrict registration of document according to law as is well held and explained in "Krishna Gopal Kataria & Anr. v. State of Punjab" 1986 AIR P&H 328. 25. In the present case, the Sub Registrar Jammu North is on record to say that certificate of registration under section 60 has not been issued owing to the reason recorded on the file that kind of land under sale is "Banajr Qadeem Arak" which is prohibited for sale. By this admission on record, one thing gets clear that otherwise the exercise meant for registration quo the document has been done and which is obvious from the fact that registration fees stands charged and paid. There is no doubt to the legal position that a registration is said to be complete when the certificate under section 60 of the Registration Act, 1908 is issued as has been observed by the Hon'ble Supreme Court of India in the case of Chandrika Singh v. Arvind Kumar, 2006 AIR SC 2199 but the fact remains that with this part of endorsement of certificate of registration upon their sale deed the petitioner has no role to play and is for the registering officer to carry out and hand over the document of sale deed to the petitioner. Section 60 has nothing to do with the executants of the document and also with the registration of document as is held in division bench judgment of High Court of Oudh in the case of "Sobhnath Singh v. Pirthpal Singh" 1948 AIR Oudh 223. In this case, the High Court of Oudh has held that it is the compliance with the provisions of Sections 34, 35, 58 & 59 which constitutes registration of a document and not the presence of certificate of registration under section 60. Present case is identically placed as delivery of document of sale deed is held up because of non endorsement of certificate of registration. 26. In the case of "Gafur Khan & Ors. v. State", 2003 AIR Raj. 233, the Rajasthan High Court in para 73 of its judgment has drawn out a very clear understanding of the domain of a registering officer in the matter of registering a document under the Registration Act, 1908. Para 73 is reproduced herein for the facility of reference and this court also finds itself persuaded to be in sync with said understanding. Para 73 is as under:- “73. Once the requirements of Sections 34 and 35 are satisfied and the case does not fall u/ss. 34 and 35, the Registering Officer is under an obligation to register the same except if he is able to point out any grounds mentioned in Section 35(3) or under any other provisions of Registration Act or any other law supplemental to the Registration Act. It is not the business of the Registering Officer to see whether a document is against any other law in force for the time being if the conditions prescribed for registration under sections 34 and 35 of the Registration Act of supplemental laws are satisfied. The genuineness of transaction, document and correctness of facts stated in the document are not the matters in which the Registering Officer can enquire into and refuse registration of the document presented before him." 27. In view of the aforesaid, this writ is allowed and the respondents no. 1 and 2 are directed to complete the registration of the sale deed so presented by the petitioner and return the registered sale deed to the petitioner within a period of one month from the date of receipt of certified of this order. 28. In view of the aforesaid, this writ is allowed and the respondents no. 1 and 2 are directed to complete the registration of the sale deed so presented by the petitioner and return the registered sale deed to the petitioner within a period of one month from the date of receipt of certified of this order. 28. Before parting with this judgment, this court registers its appreciation to Advocate Mr. G.S. Thakur for his able legal assistance to this court in taking correct understanding of law. A copy of this judgment be forwarded to the Inspector General of Registration for the notice of all the Sub-Registrars and Registrars in the Union Territory of Jammu & Kashmir and Union Territory of Ladakh.