WRIT C No.2973 of 2016

18th May, 2018.

Petitioner Counsel: HARI BHAWAN PANDEY
Respondent Counsel: C.S.C., ASHISH AGRAWAL

Cases Cited:
Radhey Shyam Arora Vs. State of U.P. and ors., Writ/C No. 63439/2013, Dt.20.11.2013 [Para 1,2,3,4]
Raj Kumari Vs. State of U.P. and ors., Misc. Bench No.2562/2014, Dt.28.03.2014 [Para 1,2,3,4]
Yanalla Malleswari Vs. Ananthalu Sayamma, AIR 2007 (AP) 57 [Para 2,7]
Krishna Kumar Saxena and anr. Vs. State of U.P. & ors., 2018 (127) ALR 466 [Para 6,7]
Satya Pal Anand Vs. State of Madhya Pradesh and ors., (2016) 10 SCC 761 [Para 7]
G. Venkateswara Rao Vs. Government of Andhra Pradesh and ors., AIR 1966 SC 828 [Para 11]

JUDGMENT

JUDGMENT :- This Larger Bench has been constituted under the orders of Hon'ble the Chief Justice on basis of the order dated 22.05.2017 passed in Writ-C No. 2973 of 2016. In the case aforesaid, a Division Bench of this Court arrived at the conclusion that the view taken in the case of Radhey Shyam Arora Versus State of U.P. and 6 others (Writ-C No. 63439 of 2013), decided on 20.11.2013 is in conflict with a view taken in Raj Kumari Versus State of U.P. and others (Misc. Bench No. 2562 of 2014), decided on 28.03.2014 and looking to the divergent views taken by two Division Benches matter requires consideration by a Larger Bench. The Division Bench under the order dated 22.05.2017 referred following questions for adjudication by Larger Bench:-

"(a). Whether after a sale deed has been registered, the Assistant Registrar has any authority of law to cancel the registered sale deed under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made?

(b). Whether the allegations of fraud are essentially, an allegation of fact which need examination of oral or documentary evidence and can be adjudicated on the basis of evidence to be led by the parties before competent civil court?

(c). Whether the judgment in the case of Raj Kumari (supra) or the judgment in the case of Radhey Shyam Arora (supra) lays down the correct law?"

2. On going through the Division Bench judgments in Raj Kumari (supra) and Radhey Shyam Arora (supra), we do not find any conflict in the conclusions arrived. In Raj Kumari (supra), a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, AIR 2007 (AP) 57 held that "once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transactions." The Court, in the case aforesaid, refused to interfere with an order passed by Assistant Inspector General of Registration, Amethi directing the registering authority to proceed in accordance with a government order empowering the Registrar to set aside a sale deed if that has been obtained by fraud by an executor having no authority to sell the property.

3. In Radhey Shyam Arora (supra), the Division Bench was examining the same issue as in the case of Raj Kumari (supra) and, in this case too, the Division Bench held that "once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transaction." While arriving at the conclusion as above, it was also observed that a right shall be there to challenge the order passed by the Assistant Inspector General of Registration by way of filing a suit if any substantive right has been defeated. In this case, right to avail the remedy of suit is given only to challenge the order passed by the registering authority cancelling a sale deed. The Division Bench nowhere arrived at the conclusion that a registered sale deed cannot be set aside by the registering authority while exercising powers under the Registration Act, 1908 (hereinafter referred to as "Act, 1908").

4. The findings noticed above are not at all conflicting but same, therefore, under the order dated 22.05.2017, the Division Bench while adjudicating Writ-C No. 2973 of 2016 erred by concluding that the judgments in the case of Raj Kumari (supra) and Radhey Shyam Arora (supra) are running contrary to each other, as such, the Question (c) referred to us is absolutely non-existent. On arriving at this conclusion, we would have refused to examine merits of the questions referred. However, the other issues referred to us are having larger impact, therefore, it would be appropriate to answer the remaining questions.

5. Precisely, the issue before us that whether a sale deed registered under the Act, 1908 can be cancelled or set aside by registering authority or by any other authority invoking administrative powers, if the registration is questioned on the count of impersonation/fraud?

6. The question noticed above has been considered and dealt with threadbare by a Division Bench of this Court in Krishna Kumar Saxena and another Versus State of U.P. and 9 others, 2018 (127) ALR 466. In this case, the Assistant Inspector General (Registration/Stamp), Rampur by an order dated 18.10.2016 withdrew registration of a sale deed and annulled that on the count that the same was executed by fraud and misrepresentation. The Division Bench after examining all relevant provisions of the Act, 1908 and the law applicable held that in no case registration of sale deed could have been withdrawn and the sale deed could have been annulled by administrative fiat. The Division Bench also quashed the order dated 13.08.2013 conferring powers upon registering authority to withdraw registration of a registered deed and to annul that. The discussion made by the Division Bench and the findings arrived in the case of Krishna Kumar Saxena and another (supra) deserves to be quoted and that is as follows:-

"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 PartVI 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 quasijudicial 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. 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.

In so far as the case of Thota Ganga Laxmi versus 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 versus 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.

No such Rules have been framed under Section 69 of the Registration Act in so far as the State of U.P 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.

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.

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 versus State of Uttar Pradesh and others (1982) 1 SCC 39.

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."

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.

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.

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.

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.

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.

In Park View Enterprises versus 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 quasijudicial.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.

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 quasijudicial 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.

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.

In Shri Anil versus State of U.P 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 & 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 & 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.

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."

7. Being in absolute agreement with the law laid down by the Division Bench in the case of Krishna Kumar Saxena and another (supra), we adopt the reasoning given therein. It is pertinent to note that the Division Bench while settling the ratio also relied upon land mark judgment of Hon'ble Supreme Court in Satya Pal Anand Vs. State of Madhya Pradesh and others, (2016) 10 SCC 761, wherein the Full Bench judgment of the Andhra Pradesh High Court in the case of Yanalla Malleswari Vs. Ananthalu Sayamma (supra) too was considered. The Apex Court held that the registering authority could not decide whether the document which was executed by a person who had title as was recited in the given instrument. The authority, as such, was not expected to decide the title/right 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 any analysis thereof. If the document registered by the registering authority was illegal or if there was any irregularity then the course to question that was by invoking appropriate proceedings before a Civil Court.

8. In light of whatever stated above, we are having no doubt in arriving at the conclusion that once a sale deed has been registered, the registering authority is having no power or authority under the Act, 1908 to cancel the registration, even if an allegation of impersonation/fraud is alleged.

9. During the course of adjudication, we have also looked into merits of this writ petition. The writ petition has been filed giving challenge to the order dated 14.12.2015 passed by Sub Registrar (Registration) cancelling sale deed no. 9816 dated 27.08.2014 executed by Sri Mahesh Chandra in favour of the petitioner-Smt. Kusum Lata. This sale deed pertaining to the property in question was executed on 27.08.2014 in favour of the petitioner-Smt. Kusum Lata. The property aforesaid was earlier sold to respondent no. 4 (Smt. Sheela Rai) under a sale deed dated 07.08.2014 executed by Sri Mahesh Chandra. Respondent no. 4 (Smt. Sheela Rai) on knowing about the subsequent sale under the registered sale deed dated 27.08.2014 made a complaint to the Inspector General of Registration, Mainpuri, accordingly, an inquiry was conducted wherein it was found that on 27.08.2014, Sri Mahesh Chandra had no right to execute the sale deed pertaining to the property being already sold under a registered sale deed dated 07.08.2014 to respondent no. 4 (Smt. Sheela Rai).

10. It is pertinent to note that the petitioner was aware of sale deed dated 07.08.2014 executed by Sri Mahesh Chandra in favour of respondent no. 4 (Smt. Sheela Rai) as she preferred a civil suit bearing No. 39 of 2015 before a competent Civil Court to set aside the sale deed aforesaid. The filing of the suit with a prayer to cancel the sale deed dated 07.08.2014 is sufficient enough to arrive at the conclusion that on 27.08.2014, Sri Mahesh Chandra had no right to sell the property in question and to get the sale deed registered. Worthwhile to note that the present petitioner sought cancellation of the sale deed on the count that an earnest money to a tune of Rs. 9 lacs was taken by Sri Mahesh Chandra in the year 2013 and an agreement to sell was also drawn on the same date, as such, the sale deed dated 27.08.2014 is a consequence of the agreement, hence, is to be treated as a valid sale. We do not want to express any opinion about the issue raised by the petitioner in the suit concerned, but we are having no hesitation in saying that admittedly a sale deed was registered in favour of respondent no. 4 (Smt. Sheela Rai) prior to registration of the sale deed executed in favour of the present petitioner and, as such, on 27.08.2014, no authority was available to Sri Mahesh Chandra to execute the sale deed.

11. In this factual background, if this Court while undertaking the powers under Article 226 of the Constitution of India interferes with the orders challenged in this petition then that would result into restoration of an illegality. It is well settled that powers under Article 226 of the Constitution of India must not be exercised if that restores and perpetuates an illegal order. Hon'ble Supreme Court in G. Venkateswara Rao Versus Government of Andhra Pradesh and others, AIR 1966 SC 828 concluded that though the State Government had no power to review its earlier order but if quashing of order reviewed would lead to restoration of an illegal order then High Court must refuse to exercise its extraordinary discretionary power. It is also well settled that the discretionary power vested with this Court is supposed to be invoked by taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, the nature and extent of injury that is likely to ensue by such grant or refusal, etc. and further that no writ, order or direction is required to be given if that does not subscribe to justice or serves the cause of justice. In the case in hand, as already stated, it is the position admitted even by the petitioner that the sale deed was registered in her favour subsequent to registration of sale deed in favour of respondent no. 4, Smt. Sheela Rai. In view of this admission, it would not be appropriate to invoke the powers under Article 226 of the Constitution of India in favour of the petitioner as that would restore an illegality. The writ petition, as such, deserves to be dismissed.

12. The writ petition, hence, is dismissed. The petitioner may prosecute her cause by way of suit proceedings.

13. The reference is answered in the terms that a sale deed registered under the Act, 1908 cannot be cancelled or set aside by registering authority or by any authority invoking administrative powers, if the registration is questioned even on the count of impersonation/ fraud.

Petition dismissed.