HONBLE SRI JUSTICE S.V.BHATT
WRIT PETITION Nos.24587 OF 2014
01-06-2015
C.Radhakrishnama Naidu and others...Petitioners
The Government of Andhra Pradesh,rep. by its Principal Secretary,
Revenue(Registration)Department,Secretariat, Hyderabad, and others...Respondents
Counsel for Petitioners: Sri Kambhampati Ramesh Babu
Sri S.Rama Moorthy Reddy
Sri A.Giridhar Rao
Sri M.V.Pratap Reddy
Sri A.Chandraiah Naidu
Sri P.Lakshma Reddy
Sri Ch.Venkat Raman
Counsel for Respondents: G.P. for Revenue(AP)
G.P. for Endowments(AP)
Sri K.R.Prabhakar S.C. for S S H MUTT
? Cases referred
2010 (5) ALD 444
2 2011 (4) ALD 43
3 2011 (6) ALD 502
4 (2005) 12 SCC 77
5 2012 (2) ALD 332
6 2012 (6) ALD 260
7 (1989) 3 SCC 99
8 (2012) 1 SCC 656)
9 AIR 1957 Madras 472
10 AIR 1970 Orissa 22
11 AIR 1958 Patna 193,
12 (2009) 7 SCC 363
13 2013 (4) ALD 426
14 AIR 1955 SC 604
15 1902 AC 474
16 2014 (4) ALD 358
17 2013 1 ALT 774
18 (2003) 5 SCC 662
19 (1989)14 Appeal Cases 493
20 (1980) 2 SCC 120
21(1980) 4 SCC 653
22(1980) 4 SCC 697
23 AIR 1941 PC 16
24 AIR 1967 SC 1427
<GIST:
>HEAD NOTE:
HONBLE SRI JUSTICE S.V.BHATT
WRIT PETITION Nos.24587 OF 2014, 31074 OF 2014, 24629 OF 2014,
24989 OF 2014, 27046 OF 2014, 27140 OF 2014, 27279 OF 2014,27301
OF 2014, 18835 OF 2014, 11858 OF 2014, 4917 OF 2014, 20039 OF
2014, 35090 OF 2014, 36290 OF 2014, 36573 OF 2014, 36584 OF
2014,36693 OF 2014, 36701 OF 2014, 36711 OF 2014, 35792 OF 2014
39183 OF 2014 AND 41141OF 2014.
COMMON ORDER:
The petitioners in these writ petitions are different individuals
and the respondents are common. The pleadings set out by parties
in W.P.No.24587 of 2014 are referred to and would suffice for the
disposal of this batch of writ petitions. The grievance of the
petitioners is against letter Rc.No.N1/27520/2009 dated 19.04.2010
forwarded by the Commissioner Endowments/2nd respondent to the
4th respondent under Section 22-A of the Registration Act, 1908 (for
short the Act) prohibiting registration of documents of properties
covered by the list appended to the letter dated 19.04.2010. The
subject matter of the writ petitions is house plots covered by Patta
No.130, Paimash No.10, Survey No.242 of Tiruchanur Village
Accounts, Tirupathi Revenue Division, Chittoor District.
The petitioners pray for Mandamus declaring the action of
4th respondent in refusing registration of the sale deed(s) for house
plot Nos.156, 322, 323, 157 part and 158 part and plot Nos.156 (part)
and 157 (part) covered by Patta No.30 located in Paimash No.10
(Survey No.242) of Tiruchanur Village Accounts presented by
petitioners by reference to letter Rc.No.N1/27520/2009 dated
19.04.2010 without notification under Section 22-A of the Act, as
illegal, arbitrary and contrary to the Act. The petitioners pray for a
direction to 4th respondent to receive and register the documents
covered by Survey No.242 of Tiruchanur Village Accounts in
accordance with law and without reference to letter
Rc.No.N1/27520/2009 dated 19.04.2010.
The issue of law arises under Section 22-A of the Act.
The case of petitioners is that Survey No.242 is a private patta
land. One Sannadhi Muni Reddy filed O.S. No.8 of 1934 in the Court
of District Judge, Chittoor against one M.K.Ramaswamy Ayyangar
and others for recovery of amount due under a mortgage deed.
The suit was decreed and the property was put to execution
in O.E.P.No.6 of 1943. In O.E.P. No.6 of 1943, the decree holder
purchased the E.P. schedule property. On 27.04.1946, sale
certificate was issued in favour of Sannadhi Muni Reddy. The E.P.
schedule property is as follows:
(1)Chittoor-Kadapa District- Chiruthanur Old Agraharam Chitteti
Gunta Patteda- lands-bounded on
East by - the road leading to Tirupati and the lands cultivated
under Oburaju Kalva:
West by - Avilala Village boundary;
North by - the lands of Venkatapuram Agraharam Revenue village
(Vallerugunta Patteda lands)
South by - the lands of Tiruchanur and Old Agraharam called as
Chitteti lands:
Within the said boundaries, an extent of Ac.21.25 cents and an
extent of Ac.11.25 cents- totaling Ac.32.50 cents- with all irrigation
rights in water channels and water rights in tank along with trees
therein-
(1) Chittoor- Kadapa District-Chiruthanur Old Agraharam Chitterti
Gunta Patteda- lands- bounded on
East by : Bandi Baata leading to Tanapalle;
West by : the lands of Tiruchanur Agraharam Revenue village;
North by : Daaminedu Kalva (Channel); and
South by :
Within the said boundaries, an extent of Ac.6.00 cents with
all trees such as Neem, Tati, Eetha etc., Wells therein, sheds etc.,
The petitioners contend that the property referred to above is
identifiable with Paimash No.10 and correlated to Survey No.242 of
Tiruchanur Village Accounts. From the year 1957 onwards, Survey
No.242 has been subjected to a series of registered transactions of
sale and purchase as private patta land. Survey No.242 was and is
private property or patta land of Muni Reddy. In due course, Survey
No.242 was developed into a residential layout and sold to several
persons as house plots. The details of house plots purchased by the
petitioners in W.P.No.24587 of 2014 are as follows:
Sl. No.
Name of the
petitioner
Sy.No.& Plot
No.
Extent
Link
documents
(sale deeds)
1
Sri
Radhakrishna
Naidu
242/156 part
370 sq.yards
2389/1997
and 2390/97
2
Sriramaneni
Krishnamurthy
242/322 &
323
800 sq.yards
2389/1997
and 2390/97
3
K.Prabhakar
Naidu
242/157 Part
& 158 Part
365 sq.yards
2389/1997
and 2390/97
4
G.Uttaradu
242/156 Part
& 157 Part
635 sq.yards
2389/1997
and 2390/97
In the year 2006, the petitioners claim to have presented
documents covering the above plots for registration before the 4th
respondent. The 4th respondent received the documents, but
refused to register the sale deeds on the ground that the
Administrative Officer of Sri Hatiramjee Mutt and Manager of Bugga
Mutt informed the 4th respondent that the Commissioner of
Endowments, Government of Andhra Pradesh/2nd respondent
intimated the details of various immovable properties held by
religious or charitable institutions within the jurisdiction of 4th
respondent and requested 4th respondent not to register
documents covering the properties appended in the list to the letter
dated 19.04.2010. The operative portion of communication reads
as follows:
Hence, I am hereby forwarding the revised particulars of
immovable properties relating to Sri Swamy Hati Ramji Math, Tirupati
and Bugga Math, Tirupathi in 6 Registration Sub-Divisions in Chittoor
District viz., (1) Tirupathi Urban, (2) Tirupathi Rural,(3) Chandragiri,
(4) Renigunta,(5) Srikalahasthi, (6) Thottambedu in proforma U/s.22-A
(1) (c) of the Registration Act in suppression of the previous lists of
properties furnished in the reference 2nd cited by this authority and the
list of properties furnished by the Mahanth Varu of Sri Hathiramji
Math, Tirupathi and other institutions containing six Registration Sub
Division for taking necessary action of prohibiting of illegal
registrations as the said properties are required for the maintenance
of the Charitable and Religious Institutions. These annexed
immovable properties cannot be registered without the specific
permission of the Commissioner, Endowments Department, Andhra
Pradesh.
The petitioners complain against inclusion of Survey
No.242 as property belonging to the Mutts/ Institutions, as
illegal and without factual or legal basis. The petitioners
alternatively canvass that unless a notification under Section
22-A of the Act is issued for any property, registration of
document for such property cannot be prohibited or refused
by the 4th respondent. In short, the legal objection stated is
that unless a notification under Section 22-A (2) of the Act is
issued, prohibition or refusal to register property is illegal and
unauthorized.
The petitioners, in support of re-grant of petition land,
incidentally refer to ryotwari patta granted in the year 1979 by the
Inam Deputy Tahsildar, Chandragiri in favour of one of the
predecessors- in -interest to a portion of land in Survey No.242. The
relevancy of said allegation is that the petitioners admit that tenures
in Survey No.242 of Tiruchanur Village were regularized under the
provisions of the A.P. (Andhra Area) Inams (Abolition and
Conversion into Ryotwari) Act 1956 and with the grant of a ryotwari
patta, the petition lands cannot be concluded as held or belonging
to Institution. The petitioners place reliance on orders in
W.P.No.13565 of 2013 for a direction to 4th respondent to receive
and register documents presented for the property covered by
Survey No.242 of Tiruchanur Village Accounts. The petitioners state
that the petition lands have been in continuous possession of
petitioners and their predecessors -in -title since ten (10) decades. It
is alleged that the legality of communication dated 19.04.2010 is
already considered by this Court and the communication was set
aside through order dated 03.06.2013 in W.P.No.10068 of 2013 and
pray for a similar direction.
The legal grounds urged against the alleged refusal to
receive or register the document by 4th respondent are that Section
22-A of the Act prescribes prohibition from registration of certain
categories of land and to attract prohibition from registration of
document, the properties should be notified in the gazette under
Section 22-A (2) of the Act. As Survey No.242 is not notified in the
gazette under Section 22-A (2) of the Act, the 4th respondent
cannot rely upon the details submitted by Revenue and
Endowments Departments and refuse to receive or register
documents covering properties in the list forwarded by these
departments. Such refusal to receive or register is illegal, arbitrary,
contrary to the Act and violative of Article 300-A of the Constitution
of India. Hence, the writ petitions.
The petitioners filed the registered documents in evidence of
their right etc., in house plots in Survey No.242 of Tiruchanur Village.
The 5th respondent filed counter affidavit opposing the writ
prayer on all fours. At the instance of 5th respondent and by
reference to the details furnished by 5th respondent, the list of
properties is communicated through Commissioner, Endowment
to 4th respondent. The case of 5th respondent is that the Great
Vaishnav Saint Sri Hatiramjee Bavaji established 5th respondent/Mutt
at Tirupathi and Tirumala. The objectives of Mutt are to provide free
of cost shelter and food to pilgrims, Sadhus, Sanyasis and Bairagees
on pilgrimage to Tirumala. For the administration or discharge of
avowed obligations undertaken by the Mutt and upkeep of the
Mutt, the succeeding Mahants or the disciples of Mahants received
gifts of movable and immovable properties from the devotees of
Lord Balaji. The Mutt received donations of agricultural land in
Tiruchanur Village as well and claims to be in possession of various
properties acquired by the Mutt.
Nawab of Arcot made a grant of Village Tiruchanur as
Shotriyam Village in favour of Havildar Srinivasa Charyulu to restore
the channels and tanks in Tiruchanur Village. The grant was
enfranchised by the Inam Commissioner, Madras in title deed
No.464 dated 26.11.1862. The successive Mahants of 5th respondent
Mutt at various points of time through sale deeds claim to have
purchased total extent of Ac.139.50 cents from Inamdars of
Tiruchanur. The details of these sale deeds etc., are not considered
in this order, for this Court is not adjudicating the issue of title or
entitlement between the parties vis--vis Survey No.242 (Paimash
No.10) of Tiruchanur Village.
It is further averred that one Sri Mangaldas Bavaji, disciple of
Mahant Bhagwandasji of respondent Mutt, purchased from
Smt.Janakamma w/o Tirumalakumara Arasingara Tata Charyulu,
who is one of the Inamdars of Tiruchanur Village the land bounded
on:
East: Tiruchanur Kotha Agraharam Cheruvu Lothattu lands i.e.
offshore lands,
West: Mutt lands of Avilala Village boundary,
North: Tirupathi Village boundary, and
South: Tiruchanur Kotha Agraham Cheruvu Orava Kalva
(inlet) measuring an extent of 29-13-8 Kandlu
(Ac.52.00) under registered sale deed dated 20.04.1913
bearing Paimash Nos.1, 2, 3, 5A, 6 and 10 correlate to
Survey Nos.14, 229, 230, 240, 241 and 242 of Tiruchanur
Village.
It is further averred that through registered lease deed dated
30.04.1913, the Mutt leased the said property in favour of Murthy
Reddy of Tiruchanur. Through registered lease deed dated
15.06.1914, the term of lease was renewed for further 3 years. The
Mutt claims right, title, possession and enjoyment of the property
referred to above through the registered sale deeds and lease
deeds. It is the case of 5th respondent that subject matter forms
part of schedule property referred to above.
The Inam Settlement Officer No.3, Chittoor had taken up
suo motu enquiry under Section 9(1) of the Andhra Pradesh (Andhra
Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948.
The Settlement Officer decided that Tiruchanur Village was estate
village within the meaning of Estates Abolition Act and tenures
were directed to be regularized under Act 17 of 1948. The
5th respondent/Mutt aggrieved by the order of Inams Settlement
Officer filed Appeal No.94 of 1953 before the Estate Abolition
Tribunal, Chittoor. On 11.04.1954, the Estate Abolition Tribunal
allowed the appeal by holding that Tiruchanur Village is not an
estate village within the meaning of the Estates Abolition Act. The
decision of Estates Tribunal exempted Tiruchanur Village from the
provisions of Act 17 of 1948. The Mutt refers to civil litigation against
implementation of The Andhra Pradesh (Andhra Area) Estates Land
(Reduction of Rent) Act, 1947 in O.S. No.4 of 1955 in the Court of
Senior Civil Judge, Chittoor in support of its actual enjoyment of the
paimash numbers referred to above. The 5th respondent/Mutt relies
upon the sale deed executed by Smt. Janakamma wife of
Tirumalakumara Arasingara Tata Charyulu vide document
No.654/1913 in favour of Mutt to claim right and title to the subject
matter.
It is further stated that consequent upon the decision of
Estates Abolition Tribunal in Appeal No.94 of 1953, the Andhra
Pradesh (Andhra Area) Inams (Abolition and Conversion into
Ryotwari) Act, 1956 was implemented in Tiruchanur Village. The
Inam Deputy Tahsildar conducted enquiry under Section 3(3) of the
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion
into Ryotwari) Act, 1956 and decided that the land in Survey No.242
is held by an institution vide order dated 15.09.1983. Against the
order dated 15.09.1983, one R. Raghunatha Reddy filed appeal
before the R.D.O., Tirupathi. On 21.02.1984, the appeal filed by
R.Raghunatha Reddy was allowed setting aside the order dated
15.09.1983 holding Survey No.242 as held by institution. The 5th
respondent carried the matter in revision before the Commissioner,
Survey and Settlement and Land Records, Hyderabad. The revision
in case No.P3/1688/84 was allowed on 20.11.1985 setting aside the
order dated 21.02.1984 of R.D.O., Tirupathi and the matter was
remanded for enquiry and disposal by R.D.O. Tirupathi. The purpose
of reference to above circumstances is to contend that the order
dated 15.09.1983 holding the property as held by institution is
subsisting and the petitioners and their predecessors- in- interest etc,
do not have right or title or claim ryotwari patta for Survey No.242 of
Tiruchanur Village. It is further stated that the communication
dated 19.04.2010 is intended to inform that the properties are held
by an endowment/institution, and prohibited from registration under
Section 22-A(1)(c) of the Act. The Mutt is not under obligation to
get the property notified under Section 22-A (2) of the Act, as the
protection is complete in the scheme of Section 22-A of the Act to
a class of properties. The letter dated 19.04.2010 is an intimation to
4th respondent for prohibiting registration of documents of
properties covered by the list. The response to legal objections
against non-compliance of Section 22-A is that firstly publication of
notification is not required under Section 22-A of the Act and
secondly notification is required only in respect of exigencies or
circumstances covered by 22-A (1)(e) of the Act. The refusal by
4th respondent is justified and the petitioners having regard to the
right and title claimed by the institutions under Section 3(3) of the
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion
into Ryotwari) Act, 1956 and the fact that the petitioners are
admitting that Tiruchanur Village is an Inam Village, have failed to
produce re-grant in their favour and therefore, cannot pray for
Mandamus for registration of properties belonging to institutions,
contrary to the scope, purpose and object of Section 22-A of the
Act.
The petitioners filed reply affidavit and placed on record
objections on the claim of 5th respondent on Survey No.242 of
Tiruchanur Village. Incidentally, it is stated that the enquiry/hearing
under the Inams Abolition Act is pending before the R.D.O. Tirupathi
and finality cannot be presumed against the order dated
15.09.1983 of Inam Settlement Officer, Tirupathi to claim that subject
matter is held by an institution. It is reiterated that the case on
hand is covered by Section 22-A (1)(e) of the Act and notification
under sub-Section (2) of Section 22-A is a condition precedent for
prohibition or for refusing registration.
The learned counsel appearing for the petitioners have
forcefully contended that (1) refusal to receive or register a
document prima facie is illegal and amounts to abdication of
jurisdiction and duty under the Act; and (ii) mere act of registration
of a document by itself does not alter or affect the claim of 5th
respondent. De hors this contention, it is further urged that the
Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act protects the alleged rights of 5th respondent and
that inclusion of subject matter in prohibitory list is unilateral,
amounts to self declaration of right and title by the claimant and
unconstitutional. It is contended that the power to prohibit a
document from registration is dependant on issuance of a
notification under Section 22-A(2) of Act and admittedly no
notification is published in the Gazette. The refusal to receive or
register on the basis of letter Rc.No.N1/27520/2009 dated 19.04.2010
is arbitrary, illegal and amounts to abdication of duty/function
under the Act.
Learned counsel appearing for the petitioners, on the legal
requirement of a notification under sub-Section (2) of Section 22-A
have relied upon the following decisions of this Court:
D.Bharathamma Vs. State of Andhra Pradesh , T.Edukondalu
v. The Principal Secretary to Government, Department of Revenue,
Stamps and Registration, Hyderabad and Dr. Dinakar Mogili v. State
of A.P.
In T.Edukondalus case (supra 2), the relevant portion reads as
follow:
The argument of the learned Government Pleader is that there
is no necessity to publish a notification in respect of the subject land
under Section 22-A (2) of the Registration Act, 1908 as Section 22-
A(1)(b) would have application and not Section 22-A(1)(e). However,
this contention, if accepted, would mean that all lands claimed to be
Government lands which are sold by any private party can be brought
within the ambit of Section 22-A(1)(b) . Such a construction would
render superfluous Section 22-A(1)(e) to the extent it speaks of
prohibition of registration of documents pertaining to lands in which
the State Government may have avowed or accrued interests.
That, obviously, could not have been the intention of the
Legislature. Further clause (b) of Section 22-A(1), on a plain reading,
indicates that it relates to prohibition of registration of documents in
the context of the executants thereof nor being statutorily empowered
to execute them. Thus the said clause would not have application in a
case where the Government claims a particular land to be its own on
the basis of revenue records or otherwise. Had that been so, there
would have been no necessity for clause (e) of Section 22-A (1) of the
Act of 1908, which states that there shall be a prohibition of
registration in respect of documents pertaining to properties in which
the Stage Government has avowed or accrued interests, which would
be adversely affected by such registration. Thus, where the State
Government stakes a claim that a particular land belongs to it and
seeks to put in place a prohibition with regard to registration of
documents in respect thereof, the same would invariably fall within
Section 22-A(1)(e) of the Act of 1908 alone and the Government must
necessarily publish a notification under Section 22-A(2) of the Act of
1908 giving full description of the property concerned. The sanctity of
such a notification is spelt out by Section 22-A(3) of the Act of 1908
which places an embargo upon the Registering Officers from
registering any document falling within the ambit of the notification. In
the present case, there is no dispute that no such notification has
been published under Section 22-A (2) of the Act of 1908 in respect of
the subject land.
In Dr. Dinakar Mogilis case (Supra 3), the relevant portion
reads as follows:
The only provision which prohibits the Registering Authority,
from registering the document presented for registration, is under
Section 22-A of the Registration Act. Under Section 22-A(1)(b)
documents relating to the sale of property, in respect of immovable
property owned by the State or Central Government if executed by
persons other than those statutorily empowered, cannot be
registered. On being asked whether it is the case of the respondents
that registration of the sale deed by the District Collector on
30.10.2006, falls within the ambit of clause (b) of Section 22-A(1),
learned Government Pleader for Revenue would fairly state that it is
not. He would submit that it is only the sale deed sought to be
registered by the President of the Society on 22.7.2010, in favour of
the petitioners herein, which falls within the ambit of the said
provision. Section 22-A(1)(b) applies only to immovable property
owned by the State Government and, since the Government had itself
alienated the said land by way of a sale deed in the year 2006, it
ceased to be the owner of the said land and, consequently Section
22-A(1)(b) of the Act has no application thereafter.
It is necessary to note that Section 22-A (1)(e) prohibits
registration of documents pertaining to the properties in which, among
others, the State Government has an avowed or accrued interest and
which the State Government has, by notification, prohibited
registration of. If, as contended by the respondents, the State
Government has implicit interest in the said property, the only manner
in which registration of documents can be prohibited is by issuing a
notification under Section 22-A(1)(e) of the Act. No reference is made
in the counter affidavit to any notification having been issued by the
State Act. In the absence of a notification being issued by the State
Government in exercise of its powers under Section 22-A(I)(e) of the
Registration Act, the question whether the State Government has an
avowed or accrued interest does not necessitate examination.
In opposition, the learned Government Pleader and
K.R.Prabhakar appearing for respondents have vehemently
contended that (i) the construction placed on Section 22-A (1) of
the Act by the petitioners is incorrect and untenable. In view of
decision of Apex Court in State of Rajasthan and others v. Basant
Nahata , Section 22-A is introduced through Amendment Act 19 of
2007 and the statement of objects and reasons read with the
language of Section 22-A would sufficiently disclose that the
prohibition of registration of documents is in respect of distinct
classes or cases and the pre-existing right of these classes of cases is
recognized by record or special enactment and the prohibition of
registration of a document is in furtherance of a prohibited
transaction by the special enactment and, therefore, it does not
require notification under Section 22-A(2) of the Act; (ii) the object
of prohibition is to protect the properties of State, Endowment,
Institutions etc., from frivolous or bogus claims through illegal
documents/ transactions and the prohibition of registration can be
compelled through communication of details of properties covered
by Section 22-A(1) (a) to (d). It is the definite case of respondents
that a notification is required only for the circumstances or instances
covered by Section 22-A (1) (e) read with Section 22-A(2) of the
Act. (iii) the communication of list under Section 22-A (1) (a) to (d) is
sufficient to prohibit registration of document and a person who
intends to obtain registration of a property covered by Section 22-A
(1) (a) to (d) must get his right in property adjudicated in a
competent Court. It is finally contended that having regard to the
object desired through prohibition from registration, the principle of
nemo dat quod non habet means no person can transfer a
better title than what he possesses, and mere registration of a
document does not affect the right, have no application.
The learned counsel appearing for respondents rely upon
Guntur City House Construction Cooperative Society Limited, Guntur
v. Tahsildar, Guntur Mandal, Taluka Office,Guntur District and
P.Srinivasulu and others v. Sub Registrar, Renigunta, Chittoor District .
In Guntur City House Construction Cooperative Societys case,
(supra 4) the relevant portions reads as follows:
From a perusal of this, it becomes clear that the prohibition
gets attracted straight away in respect of lands that fall into sub-
clauses (a) to (d) of sub section (1). It is only in respect of lands
falling into sub-clause (e) that publication of a notification becomes
necessary for the prohibition to operate.
The reason underlying clause (e) of sub-section (1) and sub-section
(2) is manifest. The prohibition against registration of documents
pertaining to (a) the lands, whose transfer is prohibited under law (b)
lands owned by State or Central Government (c) lands owned by
religious institutions or surplus lands and, (d) the lands that are
rendered surplus, gets attracted straight away. A totally different
purpose is sought to be achieved in respect of lands mentioned in
clause (e). This category does not include lands not owned by State
or Central Government or Religious or Educational Institutions. It is in
respect of properties, vis--vis which accrued or existing interest of
the Government or its agencies are involved. In other words, even
though a particular land or property may not be owned by the
Government or institutions mentioned in that clause, the prohibition
can be made to operate, in case such properties are under lease or
other use by the said institutions or establishments. It is only in such
cases, that issuance of notification is necessary, for the prohibition, to
operate. It is a different matter that the aggrieved party may
challenge the notification, if issued. As regards the properties
covered under clause (a) to (d) of sub section (1), no such notification
is necessary.
In P.Srinivasulus case (supra 6), the relevant portion reads as
follow:
A perusal of the aforesaid provisions would show that for
class of documents relating to the properties covered by Section 22-
A(1)(a),(b),(c), and (d) of the Registration Act, there is prohibition for
registration, even without issuing any notification. But for the class of
documents covered by Section 22-A(1)(e), the State Government is
empowered to issue notification prohibiting registration of the
documents relating to the properties in which avowed or accrued
interests of Central and State Governments, Local Bodies,
Educational, Cultural, Religious and Charitable Institutions is likely to
adversely affect.
The decisions relied upon by the parties are expressing
divergent views on the requirement of issuing notification under
Section 22-A (2) of the Act for prohibiting registration of a
document. Having regard to spate of litigation against threshold
refusal to register or receive documents for registration under
Section 22-A of the Act, I propose to consider from different
perspectives the origin, source and object of Section 22-A of the
Act and its operation vis--vis other enactments..
Now the points for consideration are:
i. Whether publication of notification under Section
22A (2) of the Act is mandatory or condition precedent to
prohibit registration of documents under the Act? and
ii. What is the scope and meaning of the words Prohibition of
registration of certain documents and following classes of
documents shall be prohibited from registration under
Section 22-A of the Act and whether the total prohibition of
registration of documents for the properties included in the
prohibitory list under Section 22-A results in conflict with
Transfer of Property Act, Section 17 of the Act and Article
300-A of the Constitution of India?
iii. To what relief?
POINT No.i:
Registration Act:-
It is axiomatic that a statute must be construed having regard
to the purpose and object of the statute. The Act makes a few
documents compulsorily registerable under Section 17(1) of Act.
Section 22-A of the Act prohibits registration of a few documents.
Through Amendment Act 19/2007, Section 22-A of the Act is
introduced. Section 17(1) of Act on one hand makes registration
compulsory of a few documents and Section 22-A of the Act
prohibits registration of documents compulsorily registerable, as hit
by Section 22-A and the transactions are treated as illegal
transactions of transfer of property held by Government Institutions
etc. The counsel appearing for both parties persuaded the Court
to follow the decision that supports their prayer and decide
accordingly. Having regard to the importance of the issue and
catena of decided cases on the point and perpetual litigation
under Section 22-A of the Act, this Court undertakes further
examination of section in the Act and also a few special statutes
before expressing view on the reported decisions.
The Act secures or maintains records of documents registered
under the Act. Part III of the Act deals with registerable documents.
Section 17 of the Act is an important provision or is the heart of the
Act. Section 17 (1) (a) to (e) reads as follows:
17. Documents of which registration is compulsory.(l) The
following documents shall be registered, if the property to which
they relate is situate in a district in which, and if they have been
executed on or after the date on which, Act No. XVI of 1864, or the
Indian Registration Act, 1866, or the Indian Registration Act, 1871,
or the Indian Registration Act, 1877, or this Act came or comes into
force, namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to
create, declare, assign, limit or extinguish, whether in present or in
future, any right, title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards, to or in immovable
property;
(c) non-testamentary instruments which acknowledge the receipt or
payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right,
title or interest; and
(d) leases of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any
decree or order of a Court or any award when such decree or order
or award purports or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees
and upwards, to or in immovable property
Sub-section (2) of Section 17 grants exemption from clauses
(b) and (c) of sub-Section (1) of Section 17 to a few deeds/
documents referred therein. Section 17 (1) of the Act deals with a
document which requires registration, but the Section does not deal
with the transaction covered by such document. The Section
enjoins registration of document which purports and not which
intends to create right in immovable property or declare a right in
immovable property. The effect of non-registration of compulsorily
registerable document under Section 17(1) of Act is covered by
Section 49 of Act. A document which creates, declares, assigns,
limits or extinguishes, whether in present or future, any right, title or
interest, whether vested or contingent, of the value of Rs.100/- or
upwards in any immovable property is compulsorily registerable
under Section 17(1) of Act. The documents falling within the ambit
of Section 17(1) of the Act must be registered and it is a mandatory
provision. The Registration Department for all purposes endorses the
document as registered and maintains the registered document in
the records/books. The official act of registration even if carried out
in accordance with law the question still falls for consideration is the
effect of registration on the property.
The scope/object of registration is considered in Lakshman
Das V. Ramlal and another , which is as follows:
A real purpose of registration is to secure that every
person dealing with the property, where such document
requires registration, may rely with confidence upon
statements contained in the register as a full and complete
account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be
construed strictly. Therefore, unless a document is clearly
brought within the provisions of section, its non-registration is no
bar to its being admitted in evidence. (Emphasis added)
In State of Rajasthan v. Basanth Nahata (supra 4), it is held that:
The Act was enacted to consolidate the enactments relating to
the registration of documents. Prior to enactment of the said Act, the
provisions relating to registration of documents were scattered in
seven enactments. The Act was enacted in terms of Entry 18, List II
and Entry 6, List III of the Seventh Schedule of the Constitution. It
mainly deals with the necessity of getting a document registered in
India so as to make them valid and even if they are executed outside
India to provide for registration thereof after their first arrival in India.
Section 17 of the Act enumerates the instruments registration of
which is compulsory under the Act whereas Section 49 encompasses
the effect of a failure to register. Registration of documents, however,
is not confined only to documents relating to immovable property but
also for the documents dealing with other matters as for example
adoption. Section 17 of the Act has been amended inter alia by the
State of Rajasthan. The State of Rajasthan, however, inserted Section
17(1)(f) and 17(1)(g) with effect from 18.9.1989 and made the
registration of agreement to sale and irrevocable power to attorney
relating to transfer of immovable property in any way a compulsorily
registerable document. Section 18 provides for optional registration of
documents specified therein. Section 22 provides for description of
houses and land by reference to Government maps or surveys.
Several States, however, as noticed hereinbefore, inserted Section
22-A. In terms of Sub-Section (1) thereof, the State Governments
have been authorized to issue a notification declaring that the
registration of any document or class of documents would be opposed
to public policy. Sub- section (2) of Section 22-A starts with a non-
obstante clause stating that notwithstanding anything contained in the
Act, the registering officer shall refuse to register any document for
which a notification issued under Sub- section (1) is applicable.
Section 32 occurring in Part VI provides for presentation of
documents for registration. Section 33 deals with power of attorney
recognizable for the said purpose. Part XI of the Act deals with the
duties and powers of registering officers. Part XII deals with
documents which a Sub-Registrar may refuse to register which, inter
alia, refers to a document relating to property, which was not situated
within the district of the Registrar or which ought to be registered in
the office of Sub-Registrar or on the ground of denial of execution. An
appeal from such orders of the Sub- Registrar is provided for under
Sub-section (2) of Section 72. Even as against the order of Registrar
a suit is maintainable. However, if and when a document is refused to
be registered by the Sub-Registrar in terms of Sub- section (2) of
Section 22-A of the Act, evidently no appeal would lie.
Finality cannot be attached to decisions of executive when such
things are in exclusive domain of judiciary as stated in State of Kerala
and Others vs. Travancore Chemicals and Manufacturing Co.
observing (SCC p.193 para 13)
"13. Section 59-A enables the Government to pass an
administrative order which has the effect of negating the statutory
provisions of appeal, revision etc. contained in Chapter VII of the Act
which would have enabled the appellate or revisional authority to
decide upon questions in relation to which an order under Section 59-
A is passed. Quasi-judicial or judicial determination stands replaced
by the power to take an administrative decision. There is nothing in
Section 59-A which debars the Government from exercising the power
even after a dealer has succeeded on a question relating to the rate of
tax before an appellate authority. The power under Section 59-A is so
wide and unbridled that it can be exercised at any time and the
decision so rendered shall be final. It may well be that the effect of this
would be that such a decision may even attempt to override the
appellate or the revisional power exercised by the High Court under
Section 40 of the Act as the case may be. The section enables
passing of an executive order which has the effect of subverting the
scheme of a quasi-judicial and judicial resolution of the lis between
the State and the dealer."
We are not oblivious of the decisions of this Court laying down the
proposition of law that the statute dealing with fiscal matters and / or
laying down a provision or enforcing the doctrine of social justice
adumbrated in the Directive Principles of State Policy as contained in
Part IV of the Constitution of India ordinarily would not be interfered
with by the superior courts in exercise of their power of judicial review.
The Act is neither a fiscal statute nor deals with any matter falling
under Part IV of the Constitution of India.
In Suraj Lamp and Industries Private Limited (2) v. State of
Haryana , the Apex Court held as follows:
Advantages of Registration
In the earlier order dated 15.5.2009, the objects and benefits of
registration were explained and we extract them for ready
reference :
The Registration Act, 1908, was enacted with the intention of
providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from
fraud and forgery of documents of transfer. This is achieved by
requiring compulsory registration of certain types of documents
and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides that any
document (other than testamentary instruments) which purports
or operates to create, declare, assign, limit or extinguish
whether in present or in future "any right, title or interest"
whether vested or contingent of the value of Rs. 100 and
upwards to or in immovable property.
Section 49 of the said Act provides that no document required
by Section 17 to be registered shall, affect any immovable
property comprised therein or received as evidence of any
transaction affected such property, unless it has been
registered. Registration of a document gives notice to the world
that such a document has been executed.
Registration provides safety and security to transactions relating
to immovable property, even if the document is lost or
destroyed. It gives publicity and public exposure to documents
thereby preventing forgeries and frauds in regard to
transactions and execution of documents. Registration provides
information to people who may deal with a property, as to the
nature and extent of the rights which persons may have,
affecting that property. In other words, it enables people to find
out whether any particular property with which they are
concerned, has been subjected to any legal obligation or liability
and who is or are the person/s presently having right, title, and
interest in the property. It gives solemnity of form and
perpetuate documents which are of legal importance or
relevance by recording them, where people may see the record
and enquire and ascertain what the particulars are and as far as
land is concerned what obligations exist with regard to them. It
ensures that every person dealing with immovable property can
rely with confidence upon the statements contained in the
registers (maintained under the said Act) as a full and complete
account of all transactions by which the title to the property may
be affected and secure extracts/copies duly certified."
Registration of documents makes the process of verification and
certification of title easier and simpler. It reduces disputes and
litigations to a large extent.
The Apex Court held in Suraj Lamp and Industries
Private Limited (2) v. State of Haryana (supra 8) that
registration of document makes the process of verification and
certification of title easier and simpler. The registration of
document reduces disputes and litigation to a large extent.
Effect of Registration on the right/title to property:
The Registration of a document does not by itself confer or
create title in favour of the vendee/transferee under the registered
document. The registration of a document by itself would not
create or transfer title to the transferee. The registration simplicitor is
well appreciated by the legal maxim nemo dat quod non habet
meaning no person can transfer a better title than what he
possess in the property transferred.
In K.Panchapagesa Ayyar and another v. K.Kalyanasundaram
Ayyar and others , it is held as follows:
The Registration Act, unlike the Transfer of Property Act, strikes
only at documents and not at transactions. In the same way the
Act does not require that a transaction affecting immovable
properties should be carried out by a registered instrument. All that
it enacts is that where a document is employed to effectuate any of
the transactions specified in S.17 of the Act, such document must
be registered, notwithstanding that the transaction is one which the
law does not require to be put into writing.
In Jogi Das and others v. Fakir Panda , it was held that:
The object and purpose of the Registration Act, amongst
other things, is to provide a method of public registration of
documents so as to give information to people regarding legal
rights and obligations arising out of or effecting a particular
property, and to perpetuate documents, which may afterwards be of
legal importance and also prevent fraud.
In Chander Singh v. Jamuna Prasad Singh the Honble Court
held that:
On a Proper construction of Section 54 of the Transfer of
Property Act, it appears that a transfer of ownership takes place
immediately on the sale. A registration is inly a statutory mode of
making the sale and it does not affect the creation of title by the
sale. Section 47 of the Indian Registration Act provides that a
registered document shall operate from the time from which it
would have commenced to operate if no registration thereof had
been required or made, and not from the time of its registration. It
will be observed that Section 47 of the Indian Registration Act does
not purport to create a new title, but only affirms the title which, was
created by the sale deed.
In Suraj Lamp and Industries Private Limited v. State of
Haryana , the Honble Court held that:
The Registration Act, 1908, was enacted with the intention of
providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from
fraud and forgery of documents of transfer. This is achieved by
requiring compulsory registration of certain types of documents and
providing fdor consequences of non-registration. Section 17 of the
Registration Act clearly provides that any document (other than
testamentary Act clearly provides that any document ( other than
testamentary instruments) which purports or operates to create,
declare, assign, limit or extinguish whether in present or in future
any right, title or interest whether vested or contingent of the value
of Rs.100 and upwards to or in immovable property.
Section 49 of the Registration Act provides that no document
required by Section 17 to be registered shall, affect any immovable
property comprised therein or received as evidence of any
transaction affected such property, unless it has been registered.
Registration of a document gives notice to the world that such a
document has been executed. Registration provides safety and
security to transactions relating to immovable property, even if the
document is lost or destroyed. It gives publicity and public
exposure to documents thereby preventing forgeries and frauds in
regard to transactions and execution of documents. Registration
provides information to people who may deal with a property, as to
the nature and extent of the rights which persons may have,
affecting that property. In order words, it enables people to find out
whether any particular property with which they are concerned, has
been subjected to any legal obligation or liability and who is or are
the person/s presently having right, title and interest in the property.
It gives solemnity of form and perpetuate documents which are of
legal importance or relevance by recording them, where people
may see the record and enquire and ascertain what the particulars
are and as far as land is concerned what obligations exist with
regard to them.
The view of this Court on effect of registration is considered.
In Dr.Dinakar Mogili v. State of Andhra Pradesh and others
(supra 3), it is held as under:
The only provision which prohibits the Registering Authority, from
registering the document presented for registration, is under
Section 22-A of the Registration Act. Under Section 22-A(1) (b)
documents relating to the sale of property, in respect of
immovable property owned by the State or Central Government if
executed by persons other than those statutorily empowered,
cannot be registered. On being asked whether it is the case of the
respondents that registration of the sale deed by the District
Collector on 30.10.2006, fails within the ambit of clause (b) of
Section 22-A(1), learned Government Pleader for Revenue would
fairly state that it is not. He would submit that it is only the sale
deed sought to be registered by the President of the Society on
22.7.2010, in favour of the petitioners herein, which falls within the
ambit of the said provision. Section 22-A(1)(b) applies only to
immovable property owned by the State Government and, since
the Government had itself alienated the said land by way of a sale
deed in the year 2006, it ceased to be the owner of the said land
and, consequently Section 22-A(1)(b) of the Act has no application
thereafter.
In Pasupuleti Bala Gangadhar v. State of Andhra Pradesh and
others , it is held as under:
As held in Raavi satishs case (supra), mere registration of
the property will not create title in the purchaser and that if the
vendor has no title in the property, the purchaser will not derive any
title only on account of registration and that registration of a
document will not absolve the vendor and the purchaser from the
legal proceedings that may be initiated by the State for recovery of
possession of the land, if the same is proved to belong to the
Government.
Summarized Section 17 (1) of Act makes a few documents
compulsorily registerable which create or declare right, title interest
etc., in immovable property of the value of Rs.100/- and upwards
and is strictly construed and is a mandatory provision.
As noted in the statement of objects of amending acts,
Section 17 has been misused through registration of immovable
properties of value of Rs.100/- and upwards of properties held by
Endowment, Wakf, Central and State Government Undertakings
and the Government. The documents are registered with intent to
gain or claim right and title to the properties of Endowment/Wakf
/Government etc., as the case may be, and consequently deprive
to these institutions the rights in properties claimed by it. It is the
concomitant grievance that the registration is resulting in litigation
to these institutions.
Therefore, mere registration of document is not conclusive on
the right or title of the property covered by the deed. The right or
title is dependant on the fact situation of each case or dispute and
the substantive law applicable to the lis.
Notwithstanding the legal effect of registration on the
property, the Legislature felt it necessary to provide for measures at
the formalization of transactions by prohibiting these documents
from registration. The amendment through Act 4/1999 did not stand
to judicial scrutiny in view of ratio laid down in Basant Nahatas case
(supra 4).
The Legislature has taken steps to address the mischief of illegal
transactions through unauthorised registration of properties held by
Government/Endowment/Wakf and Section 22-A of Act was
introduced through Amendment Act 4 of 1999.
The reasons and objects of the A.P. Amendment Act 19 of
2007 are as follows:
Section 22-A of the Registration Act, 1908 in its application to
the State of Andhra Pradesh has been incorporated by Act 4 of 1999
to empower the Government to notify the registration of such
documents or class of documents as opposed to public policy and to
reject their registration.
The High Court of Andhra Pradesh in W.P. No.14099/2003 &
batch cases issued orders declaring the provisions of Section 22-A
of the Registration Act,1908 inserted by the Registration (Andhra
Pradesh Amendment)Act,1999 (Act 4 of 1999) as unconstitutional
and struck down the said Section 22-A on the ground that the public
policy is not defined precisely, following the judgment of the
Supreme Court of India in case of the State of Rajasthan v. Basant
Nahata (2005(7) Scale 164) wherein Section 22-a of the Registration
Act,1908 in its application to the State of Rajasthan was struck
down.
While striking down the said provision, the Honble Supreme
Court observed as follows:-
The legislature of a State, however, may lay down as to which
acts would be immoral being injuries to the society. Such a
legislation being substantive in nature must receive the legislative
sanction specifically and not through a subordinate legislation or
executive instructions.
The phraseology opposed to public policy may embrace within
its fold such acts which are likely to deprive, corrupt or injurious to
the public morality and thus, essentially should be a matter of
legislative policy.
In order to overcome the deficiencies as observed by the
Honble High Court keeping in view of the observations of Supreme
Court and to avoid the illegal transactions of transfer of property
relating to Government, Religious and Charitable Institutions etc., it
has been decided to amend the Registration Act, 1908 suitably by
specifying the classes of documents prohibiting them from
registration.
It has also been decided to validate the notification declaring a
class of documents as opposed to public policy and consequently
refusal of the same for registration during the period from 01.04.1999
to the date of the commencement of the present Amendment Act by
inserting a validation provision.
Section 22-A reads as follows:
"22-A. Prohibition of Registration of certain documents:-- (1) The
following classes of documents shall be prohibited from registration,
namely:--
(a) documents relating to transfer of immovable property, the
alienation or transfer of which is prohibited under any statute of the
State or Central Government;
(b) documents relating to transfer of property by way of sale,
agreement of sale, gift, exchange or lease in respect of immovable
property owned by the State or Central Government, executed by
persons other than those statutorily empowered to do so;
(c) documents relating to transfer of property by way of sale,
agreement of sale, gift, exchange or lease exceeding (ten) 10 years in
respect of immovable property, owned by Religious and Charitable
Endowments falling under the purview of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act,
1987 or by Wakfs falling under the Wakfs Act, 1995 executed by
persons other than those statutorily empowered to do so;
(d) Agricultural or urban lands declared as surplus under the Andhra
Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or
the Urban Land(Ceiling and Regulation) Act, 1976;
(e) Any documents or class of documents pertaining to the properties
the State Government may, by notification prohibit the registration in
which avowed or accrued interests of Central and State Governments,
Local Bodies, Educational, Cultural, Religious and Charitable
Institutions, those attached by Civil, Criminal, Revenue Courts and
Direct and Indirect Tax Laws and others which are likely to adversely
affect these interest.
(2) For the purpose of clause (e) of sub-section (1), the State
Government shall publish a notification after obtaining reasons for and
full description of properties furnished by the District Collectors
concerned in the manner as may be prescribed.
(3) Notwithstanding anything contained in this Act, the registering
officer shall refuse to register any document to which a notification
issued under clause (e) of sub-section (1).
(4) The State Government either suo motu or on an application by any
person or for giving effect to the final orders of the High Court of
Andhra Pradesh or Supreme Court of India may proceed to denotify,
either in full or in part, the notification issued under sub-section (2)."
The presumption is that the State Legislature has knowledge
of existing provisions in the Act, rigour of Section 17(1) of Act and
the law declared by the Honble Supreme Court and this Court.
Through the amendment, the Legislature prescribes prohibition on
registration of a few classes of documents of properties held by
institutions referred to therein. The prohibition from registration as
per the scheme of Section 22-A is preceded by inclusion
and preparation of list of properties for prohibition from registration
and communicate the list to the Registration Department.
The registration of a document covered by property in the list
is prohibited on the ground that the property covered by
document belongs to Government/Endowment/Wakf etc., and the
transaction covered by the document is illegal.
Now, let me first examine the scope and meaning of Section
22-A (1) (a) to (d) of the Act and whether to prohibit registration, a
notification under Section 22-A(2) is required. The courts of law
while interpreting a statute, on the legal maxim ut res magis valeat
quam perea, expression of Legislature is constructed in such a
manner so as to make expression effective and literal meaning is
ascertained and effect given to. The first principle of construction of
a statute is to literally construe the section and give meaning to all
the words used in the sections. By such construction of Section 22-
A, the prohibition contemplated under Section 22-A of Act has the
following facets.
Sub-section (1) of Section 22-A: prohibits registration of
documents refer in clauses a to e of Sub Section (1) of Section
22-A of Act.
(a) Prohibits registration of a document the alienation of
which is prohibited under any statute of State or
Central Government.
(b) Prohibits registration of documents relating to
transfer/lease of immovable property owned by State
or Central Government, except by persons statutorily
empowered to do so.
(c) Prohibits registration of documents relating to transfer of
immovable property owned by Religious/Charitable
Endowments or by Wakf falling under the Wakf Act,
1995, except by persons statutorily empowered do so
do.
(d) Prohibits registration of document of surplus
agricultural/urban ceiling lands.
(e) Prohibits registration of documents where the
State/Central Government or Religious/Charitable
Institutions have avowed /accrued interest.
Section 22-A of the Act provides for two types of situations viz.
section 22-A sub-Section (1) clauses (a) to (d) and Section 22-
A(1)(e) r/w sub-Section (2). Section 22-A(1)(e) is intended to deal
with or cover the cases not included in clauses (a) to (d) of Section
22-A (1) of the Act. It is in this context the prohibition of registration
under Section 22-A(1)(e) is made dependent on issuance of
notification by the Government. Sub section (2) of Section 22-A
begins with the words for the purpose of clause (e) of sub-Section
(1) the State Government shall publish notification..
In interpreting or construing a statute, the obvious and safe tool
would be to ascertain the literal meaning of the words in Section.
The first principle of interpretation is applied to interpret the plain
meaning of Section 22-A(1)(e) r/w sub-Section(2) and the
requirement of a notification is a pre-condition for the cases
covered by clause (e) of Section 22-A (1) of the Act but not for the
cases covered by Section 22-A (1) (a) to (d) of the Act. Further, the
difference of language and meaning in these two distinct situations
can be explained as follows:
Section 22-A (1)(a) prohibits registration of such document,
the alienation or transfer of which is prohibited under any statute of
the State or Central Government. The basis for prohibition from
registration is that the transfer of such property is prohibited by a
Statute of the State or Central Government. The registering
authority is brought under the obligation to prohibit registration of a
document, the transfer of such property is already prohibited under
a statute of the State or the Central Government. In other words,
22-A(1)(a) prohibits registration of a document, the transfer of such
property is prohibited by the statute. Illustration can be taken from
the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act,
1977. Sections 3, 4 and 5 of Act 9/1977 reads as follows:
Section 3: Prohibition of transfer assigned lands:-
(1) Where before or after the commencement of this Act any land has
been assigned by the Government to a landless poor person for
purpose of cultivation or as a house site then, notwithstanding to
the contrary in any other law for the time being in force or in the
deed to transfer or other document relating to such land, it shall
not be transferred and shall be deemed never to have been
transferred; and accordingly no right or title in such assigned land
shall vest in any person acquiring the land by such transfer.
(2) No landless poor person shall transfer any assigned land, and no
person shall acquire any assigned land, either by purchase, gift,
lease, mortgage exchange or otherwise,
(3) Any transfer or acquisition made in contravention of the provision
of sub-section (1) or sub-section (2) shall be deemed to be null
and void.
(4) The Provisions of this section shall apply to any transaction of the
nature referred to in sub-section (2) in execution of a decree or
order of a civil court of any award or order of any other authority.
Nothing in this section shall apply to an assigned land which was
purchased by a landless poor person in good faith and for valuable
consideration from the original assignee or his transferee prior to the
commencement of this Act and which is in the possession of such
person for purposes of cultivation or as a house site on the date of
such commencement.
Section 4: Consequences of breach provisions of Section 3:-
(1) If in any case, the District Collector or any other officer not below
the rank of a (Mandal Revenue Officer) authorized by him in this
behalf, is satisfied that the provisions of sub-section (1) of Section
3, have been contravened in respect of any assigned land, he
may, by order-
(a) take possession of the assigned land, after evicting the person in
possession in such manner as may be prescribed; and
(b) restore the assigned land, other than those lands/areas as may
be notified by the Government from time to time in public interest
and for public purpose-
(i) to the original assignee if he or she is eligible as per the
norms fixed in this behalf, as on the date of restoration for
one time; or
(ii) assign to other eligible landless poor person:
Provided that where the original assignee or his legal heir, after the
first restoration transfers the assigned land, the land shall be
resumed for assignment to the other eligible landless poor;
Provided further that if no eligible landless poor persons are
available in the village/area, the resumed land will be utilized for
public purpose.
Section 5: Prohibition of Registration of Assigned Lands:-
(1) The District Collector or any other officer, not below the rank of
a Mandal Revenue Officer authorized by him in this behalf, shall
within 45 (forty five) days from the date of commencement of the
Andhra Pradesh Assigned Lands (Prohibition of Tranters)
(Amendment) Act, (2007) furnish to the Registering Officer
having jurisdiction over the area a list of lands assigned to the
landless poor persons with all particulars of assignment and
further furnish such particulars of new assignment forthwith.
(2) Notwithstanding anything in the Registration Act, 1908, no
Registering Officer shall accept for registration of any document
relating to the transfer of or creation of any interest in any
assigned lands as furnished in the list under sub section (1).
[
Section 22-A(1)(b) contemplates prohibition of registration of
document transferring property by way of sale etc. of immovable
property owned by the State or Central Government, except when
the document is executed by persons statutorily empowered to
register on behalf of the State. The prohibition of registration of such
documents is attracted because the document is presented by
unauthorized person. The immovable property belonging to the
State or Central Government at times is required to be transferred
by way of sale, lease etc. to individuals/Institutions and if absolute
prohibition on registration of transfer of this class is prescribed, then
an anomalous situation arises in dealing with the property of State
or Central Government. In these types of cases, the State and
Central Governments are merely required to inform the properties
owned by the State or Central Government and the details of
persons empowered to transfer on case to case basis or by
designation of office. The interpretation or understanding of this
clause presents no difficulty.
Likewise, Section 22-A (1)(c) deals with the properties of
religious charitable, endowments covered by the A.P.Charitable
and Hindu Religious Institutions and Endowments Act 1987, or by the
Wakfs falling under the Wakf Act 1995. The section prohibits
registration of documents relating to transfer of property of the
institutions, except by persons statutorily empowered to do so.
Under these enactments, the properties belonging to religious
endowment or charitable endowment and/or wakf properties are
defined. As is explained while interpreting Section 22-A(1)(b), the
properties held by these institutions are transferred by way of sale,
lease etc., in the interest of administrating the respective institutions
by persons authorized in this behalf. If absolute prohibition of very
registration of properties belonging to the institutions is provided for,
then the remedy through amendment causes more complication
than the mischief sought to be remedied through amendment.
Therefore, the prohibition in Section 22-A (1) (c) is restricted to
execution of sale, agreement of sale etc. by unauthorized persons
of properties belonging to the institutions. The list of properties
maintained in respect of each one of the institutions and persons
authorized to transfer are to be communicated to the
Sub-Registrar for the purpose of Section 22-A (1)(c). In such cases,
communication of list of properties held by an institution or persons
authorized is sufficient and as and when a document concerning
the property included in the list is presented for registration, the
registering officer will have to examine whether the document is
executed and presented by a person authorized in this behalf or
not and proceed accordingly in the matter.
Similarly, Section 22-A (1) (d), in view of the vesting of ceiling
surplus lands in State prohibits registration of documents of
properties so vested in State under the ceiling laws. The
Government is required to communicate the list of ceiling surplus
lands stood vested in State under the respective enactments to the
Sub-Registrar for the purpose of Section 22-A (1) (d) of the Act.
On the contrary, Section 22-A(1)(e) of the Act envisages
different contingency for consideration. The distinction between
Section 22-A (1) (a) to (d) and Section 22-A (1) (e) read with 2 of the
Act is clear and discernable. Section 22-A (1)(e) provides for
prohibition of registration of documents covered by clause (e) of
Section 22-A(1), however prohibition is subject to publication of a
notification by the State Government. Therefore, to understand the
meaning of prohibition under Section 22-A(1)(e), one has to read
clause (e) together with Section 22-A(2) of the Act. A plain reading
of Section 22-A (1)(e) provides prohibition of registration of
documents or class of documents pertaining to the properties for
which the State Government published notification. In these
properties, the Central or State Governments, local bodies etc.
should have avowed or accrued interests. Therefore, Section 22-
A(1)(e) covers prohibition of registration of document of notified
property in which the Central or State Government etc., have
avowed or accrued interest and to that effect a notification is
published by the State Government, according to the details
furnished by the District Collector. The words avowed or
accrued mean as follows:
Avowed: That has been asserted, admitted or stated publicly.
Openly declared or publicly acknowledged.
Accrued: If something accumulates over a period of time.
Section 22-A(1)(2) prescribes the procedure for issuing a
notification viz., after obtaining reasons and full description of
properties furnished by the District Collectors concerned in the
manner as may be prescribed. A notification in common English
means and implies a formal announcement of a legally relevant
fact and in the event of a statute speaking of a notification being
published in the official gazette the same cannot but mean a
notification published by the authority of law in the official gazette.
It is on formal declaration and publication of an order and shall
have to be in accordance with the declaration polices of the
statute.
Under Section 22-A(1) (e), the prohibition of registration is
attracted to cases where the State/Central Government etc., are
stated to have avowed or accrued interests and a notification is
issued. On the other hand, if the requirement of Section 22-A(2) is
extended to sub-Section (1)(a) to (d) of 22-A, then the effect would
be that the Sub-Registrar prohibits from registering document not by
reference to prohibition on transfer of property in a in statute of
State or Central Government etc., but a notification with reasons
and full description of property is published under sub-Section (2).
In the same manner, the State or Central Government, being the
owners, are required to furnish the list to the Sub-Registrar to prohibit
registration of documents, except by persons authorized to transfer
in this behalf. When the requirement of Section 22-A (2) is extended
to Section 22-A (1)(b), then though being the owner the State or
Central Governments still requires notification under the Act to
prohibit registration. By further extending this illustration to religious,
endowment or charitable Institutions, the property of these entities is
taken care by the provisions of the A.P. Charitable and Hindu
Religious Institutions and Endowments Act 1987 as well as the Wakf
Act, 1995. The list of properties held by the institutions is
communicated to Sub-Registrar to apply Section 22-A(1)(c) of the
Act. The properties prohibited by Section 22-A (1) (a) to (d) are not
properties where these entities claim avowed or accrued interest,
but claim proprietary rights in law and by record. For prohibiting
registration of documents for the properties already held by an
institution, a notification for any purpose is a surplusage. A particular
immovable property is treated as a property belonging to an
institution under an act, grant etc. The insistence upon notification
to prohibit registration of properties belonging to religious
endowment or wakf property negates the plain meaning of Section
22-A (1) (c) of the Act. Likewise, ceiling surplus (agriculture/urban)
stood vested in the Government and by communicating the list of
such properties, the Government informs details of surplus ceiling
land to the Registration Department. By insisting upon notification
for all the instances covered by 22-A(1)(a) to (d), this Court would
be firstly defeating the very purpose of A.P. Amendment Act 19 of
2007 and the mischief is sought to be prevented by the Legislature.
For the situations covered by Section 22-A (1)(a) to (d), in my
considered view, no notification under sub-Section (2) of Section
22-A is required for prohibiting registration of documents covered by
these sub sections. Therefore, for the reasons stated supra, I am in
agreement with the conclusion or ratio laid down in Guntur City
Housing Construction Cooperative Societys (supra 5) and
P.Srinivasulus case ( supra 6). Point No.i is answered accordingly)
Point No.ii:
The answer to this point does not obviate the tiring situations
presented in adjudication by the writs filed complaining inaction
under Section 22-A of the Act. The sweeping effect of prohibition
under Section 22-A of the Act is required to be examined by first
adverting to special enactments viz., the A.P. Charitable and Hindu
Religious Institutions and the Endowments Act, 1987 (for short the
Endowments Act) and the Wakf Act, 1995 to interpret and construe
the relevant words under Section 22-A of the Act.
In this batch of cases challenge to Section 22-A of the Act
is not laid, but complaint centers round by manner of operating
Section 22-A of the Act. Bearing in mind the prayer and pleadings
of parties, the other legal issue is taken up for consideration.
The Endowment Act:
Under Section 2(3), charitable endowment, means all
property given or endowed for any charitable purpose.
Explanations I and II to the said section reads as follows:
Explanation I: - Any property which belonged to or
was given or endowed for the support or maintenance of a
charitable institution or which was given, endowed or used
as of a right for any charitable purpose shall be deemed to
be a charitable endowment within the meaning of this
definition, notwithstanding that before or after the
commencement of this Act, the charitable institution has
ceased to exist or ceased to be used for any charitable
purpose or the charity has ceased to be performed.
Explanation II: - Any Inam granted to a service holder or to
an employee of a Charitable Institution for the performance
of any charity or service in connection with a charitable
institution shall not be deemed to be a personal gift to the
service holder or to the employees notwithstanding the
grant of ryotwari patta to such service holder or employee
under the Andhra Pradesh (Andhra Area) Inams (Abolition
and Conversion into Ryotwari) Act, 1956, but shall be
deemed to be a charitable endowment.
Section 2(22) defines religious endowment reads as follows:
Religious endowments means property (including movable
property) and religious offerings whether in cash or kind,
given or endowed for the support of a religious institution or
given or endowed for the performance of any service or
charity of a public nature connected therewith or of any
other religious charity; and includes the institution
concerned and also the premises thereof.
Explanation I:- All property which belonged to or was given
or endowed for the support of a religious institution, or
which was given or endowed for the performance of any
service or charity of a public nature connected therewith or
of any other religious charity shall be deemed to be a
religious endowment within the meaning of this definition,
notwithstanding that, whether before or after the
commencement of this Act, the religious institution has
ceased to exist or ceased to be used as a place of religious
worship or instruction or the service or charity has ceased
to be performed.
Explanation II:- Any Inam granted to an archaka, service
holder or other employee of a religious Institution for the
performance of any service or charity in connection with a
religious institution shall not be deemed to be a personal gift
to the archaka, service holder or employee, notwithstanding
the grant or ryotwari patta to an archaka, service holder or
employee under the Andhra Pradesh (Andhra Area) Inams
(Abolition and Conversion into Ryotwari) Act, 1956, but
shall be deemed to be a religious endowment.
Section 2(25) deals with specific endowment and reads as
follows:
Specific Endowment means any property or money
endowed for the performance of any specific service or
charity in a charitable or religious institution or for the
performance of any other charity, religious or otherwise.
Explanation I:- Two or more endowments of the nature
specific in this clause the administration of which is vested
in a common trustee or which are managed under a
common scheme settled shall be construed as a single
specific endowment for the purpose of this Act.
Explanation II:- Where a specific endowment attached to
charitable or religious institution is situated partly within the
State and partly outside the State, control shall be
exercised in accordance with the provisions of this Act over
the whole of the specific endowment provided the charitable
or religious institution is situated within the State.
Chapter III of the Endowments Act deals with administration
and management of Charitable and Hindu Religious Institutions and
Endowments.
Section 14 refers to vesting of all properties in the institution or
endowment all properties belonging to, or given or endowed to
a charitable or religious institution or endowment shall vest in the
charitable or religious institution or endowment, as the case may
be.
Chapter X deals with alienation of immovable property and
resumption of inam lands. Reference to Sections 80 and 81 would
be sufficient for understanding of the scheme of the Endowments
Act, which reads as follows:
Section 80:
Alienation of immovable property: 1(a) Any gift, sale,
exchange or mortgage of any immovable property
belonging to or given or endowed for the purpose of any
charitable or religious institution or endowment shall be
null and void unless any such transaction, not being a gift,
is effected with the prior sanction of the Commissioner.
(b) The Commissioner, may, after publishing in the
Andhra Pradesh Gazette the particulars relating to the
proposed transaction and inviting any objections and
suggestions with the respect thereto and considering all
objections and suggestions, if any received from the
trustee or other person having interest, accord such
sanction where he considers that the transaction is
i) prudent and necessary or beneficial to the
institution, or endowment;
ii) in respect of immovable property which is
uneconomical for the institution or endowment to
own and maintain; and
iii) the consideration therefor is adequate and
proper.
(c) Every sale of any such immovable property sanctioned
by the Commissioner under clause (b) shall be effected
by tender-cum-public auction in the prescribed manner
subject to the confirmation by the Commissioner within a
period prescribed:
Provided that the Government may, in the interest
of the institution or endowment and for reasons to be
recorded therefor in writing, permit the sale of such
immovable property, otherwise than by public auction.
Provided further that the Government may
purchase the lands situated in Scheduled Areas
belonging to institutions or endowments, wherever
necessary, otherwise than by public auction and assign
such lands to the members of the Scheduled Tribes.
Section 81:
Invalidation of unuthorised sale:- where before the
commencement of this Act, any sale exchange, or
mortgage of any immoveable property belonging to any
charitable or religious institution or endowment is effected,
without the prior sanction of the Commissioner or
Government such transaction shall be null and void and
shall be deemed never to have been effected and
accordingly no right or title in such property shall vest in
any person acquiring the property by such transaction and
any such property shall be deemed to the property of the
institution or endowment concerned and any person in
possession of such property shall be deemed to be an
encroacher and thereafter the provisions of Sections 84
and 85 shall apply.
Section 143 deals with application of limitation of the
Endowments Act to the property held by a charitable religious
institution or endowment and the same reads as follows:
Section 143: Property of charitable or religious
institution or endowment not to vest under the law of
limitation after commencement of this Act:-
Nothing in any law of limitation for the time being in
force shall be deemed to vest in any person the property or
funds of any charitable or religious institution or endowment
which have not vested in such person or his predecessor in
title before the 30th September, 1951, in the Andhra Area of
the State and the 26th January, 1967 in the remaining area
of the State.
Section 151 provides for bar of jurisdiction as follows:
No suit or other legal proceeding in respect of
administration of management of an institution or
endowment or any other matters of dispute for determining
or deciding for which provision is made in this Act shall be
instituted in any Court of Law except under and in
conformity with the provisions of this Act.
Chapter XI deals with encroachments and removal of
encroachments before the Tribunal constituted under the Act.
The Wakf Act, 1995 provides comprehensive and self-
contained provisions as regards wakf or Administration and
Protection of Wakf property.
Section 3(r) deals with wakf and is defined as follows:
Waqf means the permanent dedication by any person, of any
moveable or immovable property for any purpose recognized by
the Muslim law as pious, religious or charitable and includes
(i) a wakf by user but such wakf shall not cease to be a
wakf by reason only of the user having ceased
irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by
any other name entered in a revenue record;
(iii) grants, including mashrut-ul-khidmat for any
purpose recognised by the Muslim law as pious,
religious or charitable; and
(ivi) a wakf-alal-aulad to the extent to which the property
is dedicated for any purpose recognised by Muslim
law as pious, religious or charitable, provided when
the line of succession fails, the income of the waqf
shall be spent for education, development, welfare
and such other purposes as recognized by Muslim
law; and waqif means any person making such
dedication;
Chapter II provides for Survey of Auqaf and sections thereof
deals with preliminary survey of Auqaf, publication of list of Auqaf,
disputes regarding Auqaf, power of tribunal to determine dispute
regarding Auqaf etc.
Chapter VIII deals with judicial proceedings and Section 107
of the Wakf Act exempts application of the Limitation Act (Act
36/1983) from application to any suit for possession of immoveable
property from a third party.
Section 104 A deals with prohibition of sale, gift, exchange,
mortgage or transfer of waqf property and the same reads as
follows:
(1) Notwithstanding anything contained in this Act or any
other law for the time being in force or any waqf deed, no
person shall sell, gift exchange, mortgage or transfer any
moveable or immoveable property which is a waqf
property to any other person.
(2) Any sale, gift, exchange, mortgage or transfer of property
referred to in sub-section (1) shall be void ab initio.
In addition to the above enactments intended to protect the
properties of Government/Institutions, a few enactments are in
force providing for sufficient safeguard to protect the property viz.,
1. The A.P. Land Encroachment Act, 1905
2. The Andhra Pradesh Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973
3. The Urban Land (Ceiling and Regulation)
Act, 1976
4. The A.P. Land Grabbing (Prohibition) Act,
1982
From the conspectus of the Endowments Act/Wakf Act, it is
abundantly clear that the Legislature has stepped in and made
legislation for administration /protection of properties belonging to
charitable or religious institutions, endowment, wakf etc., granted
exemption from application of the provisions of the Limitation Act
for recovery of possession of immoveable property or any interest
from a person in possession of the properties belonging to
Endowment/Wakf, as the case may be. Even assuming registration
of a document is completed by strangers, the institution/wakf being
a third party/stranger to the registered deed can either challenge
such deed or defend its right de hors registration. It is in such lis the
dispute on title or entitlement is decided according to law. The
same principle applies to State/Central Government vis--vis the
properties claimed by it. But by construing Section 22-A of the Act
as conferring authority for prohibition of registration of documents
on the details furnished by State/Authorities the Registration
Department is refusing to receive much less register a document
coming under Section 22-A of the Act. Section 22-A is inserted
through the Amendment Act and the principle application for
registration are well established.
In M.K.Ranganathan and another Vs. Government of Madras
and others , it is held that:
The statement of objects and reasons is certainly not admissible as
an aid to the construction of a statute. But it can be referred to for the
limited purpose of ascertaining the condition prevailing at the time which
actuated the sponsor of the Bill to introduce the same and the extent
and urgency of the mischief which he sought to remedy.
The statement of objects and reasons of Amendment Act,19
of 2007 mentioning the effect of Basant Nahatas case(supra 4)
and to overcome the illegalities pointed therein and with a view to
avoiding illegal transactions of transfer of property relating to
Government, Religious Charitable Institutions etc, provided for
prohibition for registration of classes of documents specified therein,
section 22-A of the Act is introduced. This Court is conscious that
while interpreting or construing a statute/section, the Court should
not perform the job of legislation. But if the statute or section
presents difficulties which could not be smoothened through first
principles, then the Court interprets to preserve the statute or
section, by giving appropriate meaning to the words presenting
difficulties.
Learned author Vepa P.Sarathi in his Interpretation of
Statutes (Fifth Edition) at page 7, writes as under:
I am the Parliamentary Draftsman.
I am undoubtedly the cause.
And of half the countrys litigation.
I compose the countrys laws.
It is further observed that:
But sometimes, there is obvious ambiguity in the
meaning of a statute either because of the poverty of the
language of draftsman or want or imagination in not providing for
conceivable situations or due to an inept use of language. Lack
of legislative simplicity or clarity leads to interpretative complexity
and confusion
In Hilder v Dexter, Lord Halsbury as Lord Chancellor said:
I have more than once had occasion to say that in
construing a statute I believe the worst person to construe is the
person who is responsible for its drafting. He is very much disposed
to confuse what he intended to do with the effect of the language
which in fact has been employed. At the time he drafted the statute,
at all events, he may have been under this impression that he had
given full effect to what was intended, but he may be mistaken in
construing it afterwards just because what was in his mind was what
was intended, through, perhaps it was not done.
The elucidating and candid observations of Lord Halsbury
aptly apply to interpretation/construction of Section 22-A of the
Act. No attempt is made to discern what the draftsman of Section
22-A would have interpreted/construed the Section, but the
authorities viz., Revenue, Registration, Endowment, Wakf etc., have
expanded the horizons of the application of Section 22-A of the Act
due to incorrect or erroneous interpretation or construction of
Section 22-A of the Act. Through Amendment Act 19 of 2007, the
Legislature would have never intended that to confer on any of the
authorities the power of declaration of a right or claim, much less
adjudication of dispute for the purpose of refusing registration to a
document. Likewise, no judicial review is undertaken to conclude
whether Section 22-A of the Act is a bane or boon in addressing the
mischief of preventing illegal transactions or alternatively opened
up flood gates for premature litigation, adjudication of rights of
institutions etc. under Article 226 of the Constitution of India etc., in
the writ petitions filed complaining refusal to receive or to register a
document. The construction of Section 22-A by the department is
not envisaged by the parent or the amending Act.
The implementation of Section 22-A of the Act and refusal to
register a document from registration on concluded assumption
that the properties included in the prohibitory list belong to
Government etc., resulted in a spate of writ petitions.
The following refusals from registration are challenged under
Article 226 of Constitution of India and found to be illegal and
arbitrary by this Court.
(i) Refusal to register land assigned to Ex-Serviceman
though ten years period prohibiting transfer expired.
(2007 (5) ALT 466)
(ii) Refusal to register on the ground that there is a
Government claim in Revenue records. (2010 (1) ALT 32)
(iii) Refusal to register on the ground that the land is
classified as AWD/DKT as per the Tahsildars
communication. (2011 (1) ALT 474)
(iv) Refusal to register on the ground that the land is
shown as assigned land/cart track in the revenue
records and the petitioner has to obtain clearance
from revenue authorities.(2011 (4) ALT 78)
(v) Refusal to register on the ground that there is a
claim by the Government that the land belongs to
it, in the absence of notification. ( 2011 (4) ALT 82)
(vi) Refusal to register on the ground that there is a
communication by Tahsildar showing the land in the
list of Endowed Lands. (2012 (2) 647)
(vii) Refusal to register on the ground that the land is
shown as AWD and that there is a Notification
under old Section 22-A. (2012 (3) ALT 292)
(viii) Refusal to register on the ground that intimation was
received form the Inspector of Wakfs that the land is
owned by a Wakf. (2012(3) ALT 789)
(ix) Refusal to register on the ground that the land
classified as Pagullasthalam. (2012 (4) ALT 3)
(x) Refusal to register on the ground that there is a
communication to the Tahsildar that the land is
assigned land, within the meaning of Act 9 of 1977.
(2012 (4) ALT 169)
(xi) Refusal to register on the ground that the land is
included in the list of Government properties,
though the Pahanies of the year 1951 and the
Khasra Pahani of the year 1954-55 shows the same
to be patta land.( 2012 (4) ALT 534)
(xii) Refusal to register the land originally allotted on
payment of market value in favour of Cooperative
House Building Society on the ground that the same
is Government land, merely on the basis of
information furnished by Revenue authorities.
(2012 (4) ALT 743)
(xiii) Refusal to register on the ground communication
sent by the Commissioner, Endowments and
Executive Officer of a Trust. (2013(1) ALT 345)
(xiv) Refusal to register on grounds such as land being
assigned land/non-production of NOC from
revenue authorities in relation to land assigned to
Ex-servicemen and Freedom Fighters/land shown as
AWD/land assigned on payment of market value
being treated as prohibited non-alienable/lands
claimed to be religious endowments/lands in
relation to which there are dots in the RSR etc.
(2013 (1) ALT 774)
(xv) Refusal to register on the ground that
communication was issued by Tahsildar stating that
the property belongs to Zilla Parishad-local body.
( 2013(2) ALT 237)
(xvi) Refusal to register on the ground that the land is
classified as AWD and included in the list of
Governments lands furnished by the Tahsildar.
(2013 (3) ALT 168)
(xvii) Refusal to register on the ground that Wakf Board
(which already lost a suit) issued a communication
basing on which Tahsidlar addressed a letter to the
Sub-Registrar.(2013 (3) ALT 443)
(xviii) Gram Panchayat seeking issuance of Section 22-A
Notification on the ground that the plots are in
unapproved layout.( 2013(4) ALT 305)
(xix) Refusal to register on the ground that there was a
communication by the Commissioner, Endowments,
showing the land to be pertaining to a Mutt. (2013(4)
ALT 541)
(xx) Refusal to register on the ground that there is a
communication by the Tahsildar and that there was
a notification under the old Section 22-A (2012 (4) ALT
671)
(xxi) Refusal to register document on the ground of
communication by Tahsildar- Land originally
assigned in 1933 prior to introduction of Non-
alienation Clause on 18.06.1954. (2013 (5) ALT 202).
(xxii) Refusal to register on the ground that the lands
relate to Wakf-Khairathi Inam. (2013 (5) ALT 770)
(xxiii) Refusal to register on the ground that the land is
classified as Gramakantak (village site)(2014(4) ALT
238)
From the reported and unreported decisions in this
behalf, this Court is constrained to take judicial notice of
growing inconvenience to citizens in the registration of
documents, the permeating visible and invisible corruption,
suffered in silence by the citizens arbitrary and unauthorized
preparation of details by the departments concerned. The
net effect of these acts is failure of the rule of law and Article
300-A of the Constitution. From the statement of objects
and reasons or the literal meaning or purposive meaning of
Section 22-A, it can be concluded that Legislature never
intended to derail the procedure or rule of law on proprietary
rights of citizens vis--vis Government/Endowment/Wakf etc.
In G.Satyanarayana v. Government of Andhra Pradesh
and Raavi Satish and others v. State of Andhra Pradesh , my
learned brother Justice C.V.Nargarjuna Reddy considered all legal
issues or claims of right, title etc. in land and immovable property
vis--vis the application of Section 22-A of the Act. The conclusions
and directions in these decisions are comprehensive enough to put
an end to premature writ petitions etc. However, nothing appears
to have happened in mitigating the hardship to litigant public and
refusal to register on assumption of illegality of transaction or
property held by Government etc., is unabated. Such refusal from
registration cannot be justified to mere reference to Act or Special
Act. Refusal to register preceded by unilateral assumption of right
and title is contrary to Article 300-A of the Constitution of India.
Article 300-A of Constitution of India reads as follows:
Article 300-A. Persons not to be deprived of property save by
authority of law.- No person shall be deprived of his property save by
authority of law.
Article 300-A of Constitution, not being a fundamental right,
does not enable a party to challenge the validity of a law under
Article 32 on the ground of contravention of Article 300-A of
Constitution of India, nevertheless, the Court should so interpret a
statute, if possible that the statute or a section shall not have the
effect of depriving a person of his property without authority of law.
The Honble Supreme Court in DLF Qutab Enclave Complex
Educational Charitable Trust v. State of Haryana held that:
Ownership of land, jurisprudentially involves a bundle of
rights one such right is the right to transfer. Such a right of ownership,
having regard to Article 300-A of the Constitution cannot be taken
away same by authority of law.
Before conclusion on the primacy of Article 300-A of
Constitution, the observations of Apex Court in Basant Nahata
(supra 4) are excerpted:
The question can be considered from another angle. A
person may not have any near relative or is otherwise unable to
attend the office of the Sub-Registrar or Registrar within whose
jurisdictions the property is situated. He may even be out of the
country. In the absence of any substantive provisions contained
in a parliamentary or legislative act, he cannot be refrained from
dealing with his property in any manner he likes. Such statutory
interdict would be opposed to ones right of property as envisaged
under Article 300-A of the Constitution.
On the touchstone of Article 300-A of the Constitution of
India, it is examined whether through Section 22-A of the Act, the
authorities are subverting adjudication and prohibiting registration
of a class of documents on assumption that the transaction is illegal.
The nature of right or a holding is firstly a fact in issue and on a
finding on this, issue of law is applied.
The words prohibit from registration or prohibited from
registration under Section 22-A of the Act are interpreted/
construed.
It is an established rule in interpretation/construction of a
statute that the intention and the meaning of law are to be
ascertained by viewing the whole and every part of the Statute.
(See J.C.Colquhoun v. Henry Brooks ).
In Vinod Kumar v. Narain Devi , the Court, while upholding
the High Courts power to entertain a revision against an order
refusing eviction under the Delhi Rent Control Act, on the ground
that an order for recovery of possession in Section 14-A means an
order on an application for recovery of possession, observed:
That of two constructions that one must be preferred which
would uphold the legal and constitutional validity of a
provision.
In State of Gujarat v. Raman Lal , the Court, while holding
that a Panchayat service could be a State service observed:
A court ought not to interpret statutory provisions unless
compelled by their language, in such a manner as would
involve their unconstitutionality because the legislature is
presumed to enact a law which does not contravene the
Constitution.
In State of Karnataka v. Hansa Corpn. , the Karnataka Tax on
entry into local areas for consumption, use or sale therein was
upheld under Articles 301 and 304(a) on this principle:
The court should, as far as possible, avoid any decision or
interpretation of a statutory provision, rule or bye-law which
would bring about the result of rendering the system
unworkable in practice.
One part of a statute must be so construed by another, that
the whole may, if possible stand and that, if it can be prevented, no
clause, sentence or word shall be superfluous, void or insignificant. It
is a sound general principle, in the exposition of statutes regard is
paid to the policy which dictated the Act as well as to the words
used in the Statute.
If any section be intricate, obscure or doubtful, the proper
mode of discovering its true meaning is by comparing it with the
other section(s) and finding out the sense of one clause by the
words or obvious intention of another. Interpretation of Section
should ensure that every string or word ought to have its sound or
meaning .
In Maharaja Sris Chandra Nandy v. Rakhlananda Thakur , it is
held that if there are two possible interpretations, it is the duty of
Court to accept the one which is more reasonable, more consistent
with ordinary practice and less likely to produce impracticable
results.
Further, while interpreting a section introduced through the
Amendment Act, the integrity of Principal Act is preserved by the
Courts. The scheme of the Act, effect of registration, reasons for
striking down Section 22-A as introduced through Act 4 /1999, the
provisions in Special enactments, tribunals for redressal etc., are
already stated in the preceding paras and not stated again,
except to refer that through special enactments, Legislature
provided remedies against illegal transfer of properties and their
effect on the true owner. Through special enactment, these illegal
or transactions are taken care and the transactions, if are not
conforming to the scheme of Act, are held as void.
The Act is concerned with registration of documents.
Through the Amendment Act, 19 of 2007, Section 22-A is introduced
to stem the difficulty from illegal transactions of property of State,
etc through prohibition from registration.
The prohibition from registration of classes of documents as
stated by Section 22-A of the Act is accepted then the prohibition is
preceded by finality to the view of executive on the ownership of
property and such approach is contrary to the view of the Apex
Court in Basanth Nahatas case (supra 4). For immediate
reference, the relevant paras are excerpted:
Finality cannot be attached to decisions of executive when such
things are in exclusive domain of judiciary as stated in State of Kerala
and Others vs. Travancore Chemicals and Manufacturing Co. and
Another [(1998) 8 SCC 188] observing:
"13. Section 59-A enables the Government to pass an administrative
order which has the effect of negating the statutory provisions of
appeal, revision etc. contained in Chapter VII of the Act which would
have enabled the appellate or revisional authority to decide upon
questions in relation to which an order under Section 59-A is passed.
Quasi-judicial or judicial determination stands replaced by the power
to take an administrative decision. There is nothing in Section 59-A
which debars the Government from exercising the power even after a
dealer has succeeded on a question relating to the rate of tax before
an appellate authority. The power under Section 59-A is so wide and
unbridled that it can be exercised at any time and the decision so
rendered shall be final. It may well be that the effect of this would be
that such a decision may even attempt to override the appellate or the
revisional power exercised by the High Court under Section 40 of the
Act as the case may be. The section enables passing of an executive
order which has the effect of subverting the scheme of a quasi-judicial
and judicial resolution of the lis between the State and the dealer."
We are not oblivious of the decisions of this Court laying down the
proposition of law that the statute dealing with fiscal matters and / or
laying down a provision or enforcing the doctrine of social justice
adumbrated in the Directive Principles of State Policy as contained in
Part IV of the Constitution of India ordinarily would not be interfered
with by the superior courts in exercise of their power of judicial review.
The Act is neither a fiscal statute nor deals with any matter falling
under Part IV of the Constitution of India.
[[
Section 22-A if interpreted as permitting prohibition of
registration by reference to the details furnished by the State/
Endowment/Wakf etc., then the prohibition results in a unilateral
decision by the executive or the authority, as the case may be, and
amounts to assumption of ownership in favour of State/Endowment/
Wakf etc., by registration department. Further, the claim or alleged
right of a citizen is denied without recourse to law. The authorities
in the name of prohibiting illegal transactions cannot infringe one of
the rights of ownership viz., right to transfer the property.
The interpretation/construction of the words prohibited from
registration if given literal meaning, then such construction violates
rule of law, for a fact is assumed in favour of Government/
Department etc., on the claim or right covered by the document.
In S.G.Jaisinghani v. Union of India , the Honble Supreme Court on
the rule of law held as follows:
In a system governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined limits.
The rule of law from this point of view means that decisions should be
made by the application of known principles and rules and, in general,
such decisions should be predictable and the citizen should know
where he is,. If a decision is taken without any principle or without
any rule it is unpredictable and such a decision is the antithesis of a
decision taken in accordance with the rule of law. (See Dicey- Law of
the Constitution - Tenth Edition., Introduction ex.). Law has reached
its finest moments, stated Douglas, J. in United States v. Wunderlick
342 U.S.98, when it has freed man from the unlimited discretion of
some ruler.. Where discretion is absolute, man has always
suffered. It is in this sense that the rule of law may be said to be the
sworn enemy of caprice. Discretion, as Lord Mansfield stated it in
classic terms in the case of John Wilkes (1770) 4 Burr. 2528, means
sound discretion guided by law. It must be governed by rule, not by
humour : it must not be arbitrary, vague and fanciful.
The Act at the stage of registration does not consider rival
claims on right, title etc., of parties. Further, under the Act, the
refusal from registration of a document can be for reasons relating
to registration viz., due executions, presence of parties, presentation
of document within the period and other relevant and connected
reasons therewith.
Effect of registration is authoritatively held by the Courts of law
as confining to registration but not the transfer of property. The
adjudication shall be an issue before a Court of law or Tribunal
under Special Acts as, the case may be as and when a lis is
presented.
While implementing Section 22-A of the Act, registration of
document is prohibited by presuming firstly that the document
attracts one circumstance or the other under Section 22-A (1) (a) to
(d) and secondly it is an illegal transfer of property. The ipse dixit
refusal for all purposes amounts to unilateral declaration of right or
title by these departments in themselves.
The Legislature would not have intended to in effectuate the
Principal Act viz., the Act through the Amendment Act 19 of 2007 or
desired to confer on the executive to assume the role of
adjudication while providing the details of properties for prohibition
from registration. The Amendment Act ought not to be a source of
adjudicatory power or for corrupt practices by the departments
against the citizen. The incorrect assumption of authority would
certainly lead to anomalous situation in operating the provisions of
Principal Act (Registration Act).
The registration department/revenue department in preparing
the list of property details for prohibition of registration under Section
22-A of the Act as noticed in the reported/unreported decisions,
are including the details of properties without proper basis, much
less without properly removing the foundation of an adjudication in
respect of the same matter by an authority or Court or much less
removing the claims of third parties. Such inclusion of properties in
prohibition is resulting in refusal of registration of a document and
proceedings under Article 226 of the Constitutional India and a
finding on the entitlement or otherwise is decided in these summary
proceedings.
The scheme under Section 22-A or other provisions in the Act
are not comprehensive to provide for resolution of disputes under
the Act, inasmuch as the remedy of appeal under the Act can at
best consider various circumstances covered by Parts IV, V and VI
of the Act. Certainly the appellate authority under the Act cannot
take up the basis for inclusion of a property in the prohibitory list,
much less adjudicate the claims of parties. If Section 22-A is treated
as an absolute prohibition for registration of documents covered by
the list submitted by Endowment/Wakf/ Government, then in the
considered view of this Court, the lists communicated by the
departments are denying alleged proprietary right of a claimant of
the property without adjudication by a competent Court/Tribunal
and contrary to the procedure stipulated by law.
Act 19 of 2007 should not whittle down or render nugatory
Section 17 of the Act. The mandatory nature of registration of
documents covered under Section 17 and the consequence of
non-registration under Section 49 go to the very fundamental
purposes of the Act. Without enquiry, adjudication, it is now
understood by the respondents that the Sub-Registrar is given
power to refuse registration of a document basing on the list
submitted by the above authorities. For the weighty reasons and
illustration given above, such refusal can be termed as
unconstitutional.
Apart from the hardship or inconvenience noticed in total
prohibition to registration of documents of classes of cases stated
under Section 22-A of the Act, the Court is required to ensure every
word in Constitution of India, other Sections of the Principal Act,
different statutes on transfer of property, special acts are operated.
In the considered view of this Court, the information received
from State Government/Endowments/Wakf etc., under Section 22-A
of the Act is in the nature of caveat of interest of State/Endowment/
Wakf in the property covered by a document presented for
registration. Caveat as defined in Random House Websters
Dictionary of the law is as follows:
1. A warning or caution: admonition.
2. In certain legal contexts, a formal notice of interest in a
matter or property for example, a notice to a Court of Public
Officer to suspend a certain proceeding until the notifier is
given a hearing.
In situations like this, in the considered view of this Court,
meaningful interpretation of words prohibited from registration
and legal requirement of Sections 17 and 49 should be attempted.
By such interpretation of Amendment Act, the integrity or
wholesomeness of principal Act is preserved by the Court. This
Court having regard to the mandatory nature of Section 17 of the
Act and give life to the prohibition contemplated under Section
22-A of the Act considers the case on hand to interpret the relevant
provisions on the principle of conflation of Sections 17 and 22-A of
the Act.
Conflation means: the process or result of fusing items into
one entity; fusion; amalgamation.
The registration of a document is an endorsement by the
department under the Act and the registration of document serves
as a notice to the concerned under the Transfer of Property Act.
Section 22-A of the Act has to be interpreted in a way to
adhere to Rule of law and the scope of principal Act read with
Special Acts. Through special statutes, the prohibition of very
transfer of property belonging to State/Endowment/Wakf is already
provided and protected and the mere registration neither creates
nor takes away from these entities the proprietary rights it holds or
claims.
Therefore, Section 22-A shall be interpreted and operated
by bringing a cordant note of Section 17(1) between Section 22-A
of the Act. The registration endorsement of document covered by
Section 22-A is completed by including the details received by the
registration department on the subject property covered by such
document from State/Endowment/Wakf etc. The inclusion of these
details in registration endorsement puts the purchaser on notice of
such claims and the principle purchaser beware is attracted.
Through such interpretation/construction, harmonious result is
attained of the Act, Special Acts, Rule of Law and Article 300-A of
the Constitution of India. To wit the details of property received
under Section 22-A of the Act, they are made part of registration.
Such interpretation in my view puts end to several anomalies in
registration of documents and controls summary enquiry into issues
at the stage of registration. Finally, it is needless to observe that it is
for the party concerned or institution if need be to work out legal
remedies in accordance with law. Point No.ii is answered
accordingly.
Conclusions and directions:
(1) For the reasons stated supra, this Court is in agreement with
the ratio laid down in Guntur City Housing Construction
Cooperative Societys (supra 5) and P.Srinivasulus case
(supra 6) that a notification is not required for the
prohibition contemplated under Section 22-A(1) (a) to (d)
of the Act and a notification under Section 22-A (2) is
required for the purposes of Section 22-A(1) (e) of the Act.
(2) Refusal to receive or take up a document presented for
registration amounts to abdication of functions assigned to
the Registration Department under the Act.
(3) The Act strikes at the documents, but not at the
transactions. Mere act of registration on legal maxim
nemo dat quod non habet does not transfer or create a
right in favour of a party than what the vendor or
executant possesses.
(4) Total prohibition from registration of a document results in
anomalous situation or in the working of the Registration
Act. Without adjudication of an alleged fact-in-issue
contrary to other applicable enactments on Transfer of
Property amounts to adjudication of disputed claims
through executive fiat and would be contrary to Article
300-A of Constitution of India. Therefore, the words
prohibition for registration or prohibited from registration
are interpreted or construed to mean that the registration
and the caveat of interest or claim for prohibition received
by the Registration Department from Government/
Endowment/Wakf etc. under Section 22-A (1) and (2) of the
Act are endorsed on the document by the Registration
Department, as the case may be. To wit for giving effect
to Section 17(1) and Section 22-A of the Act, the
Registration Department while considering a document
attracting Section 22-A of the Act, registers and endorses
the details or caveat of interest on the property, received
from Government/Endowment/Wakf etc. The registration
along with such endorsement on the document achieves
the object of Prohibition of Registration of a document
under Section 22-A of the Act and puts the purchaser or
beneficiary on notice of such claims.
(5) The notification, even if published and forwarded to
Registration Department, has the same meaning and
purpose as interpreted for Section 22-A (1) (a) to ((d) of the
Act and the details are taken note in the same manner by
including the details of notification in the registration.
(6) The Government/Endowment/Wakf, as the case may be, is
under legal obligation to furnish comprehensive details of
properties held by these entities for all the purposes of
Section 22-A (1) of the Act. The State/Departments shall
follow the procedure prescribed in G.O.Ms.No.1248
Revenue (Reg.I) Department dated 26.09.2007 and furnish
full details of properties to Registration Department within a
period of eight (8) weeks from the date of receipt of
copy of this order to the Registration Department.
The communication impugned can be treated as an
illustrative form of sufficient communication of details of
property and the respondents are directed to further
develop and implement a uniform procedure for
forwarding details by the State/Departments under Section
22-A of the Act to Registration Department.
(7) The authorities under the Endowment Act/Wakf Act are
Trustees/Custodians of properties held by the institutions,
and unfortunately feel satisfied with literal performance of
functions by communicating bare minimum details to the
registration department. The lack of effort in protecting the
properties held by institutions is matter of introspection and
necessary steps are taken in accordance with law on case
to case basis. The recourse to Section 22-A by the
Department is not an effective step in protecting the
properties held by institutions under the Endowment Act/
Wakf .
The Endowment and Wakf Departments are further directed
to make available the details of various properties claimed or held
by the institutions on the websites operated by the Department
within a period of two months from receipt of a copy of this order.
POINT No.iii:
Admittedly as on date the notification dated 15.09.1983 under
the Inams (Abolition and Conversion into Ryotwari) Act, 1956 of the
Inam Deputy Tahsildar, the interest of Mutt is prima facie established
and in spite of order dated 15.09.1983 of Inams Deputy Tahsildar,
if the petitioners so desire, they are at liberty to present the
documents for registration before the Joint Registrar/Sub Registrar/
respondents 3, 4, 5 respectively, for the subject matter of the writ
petitions and the Joint Registrar/Sub-Registrar is directed to receive
the documents and process the same for registration in
accordance with conclusions and directions of instant order. The
Joint Registrar/Sub-Registrar includes the details received from the
5th respondent, in the event documents are taken up for
registration.
Writ petitions are ordered accordingly. No order as to costs.
Miscellaneous petitions pending, if any, in the writ petitions
shall stand closed.
_____________
S.V.BHATT,J
Date: 01.06.2015.
WRIT PETITION Nos.24587 OF 2014
01-06-2015
C.Radhakrishnama Naidu and others...Petitioners
The Government of Andhra Pradesh,rep. by its Principal Secretary,
Revenue(Registration)Department,Secretariat, Hyderabad, and others...Respondents
Counsel for Petitioners: Sri Kambhampati Ramesh Babu
Sri S.Rama Moorthy Reddy
Sri A.Giridhar Rao
Sri M.V.Pratap Reddy
Sri A.Chandraiah Naidu
Sri P.Lakshma Reddy
Sri Ch.Venkat Raman
Counsel for Respondents: G.P. for Revenue(AP)
G.P. for Endowments(AP)
Sri K.R.Prabhakar S.C. for S S H MUTT
? Cases referred
2010 (5) ALD 444
2 2011 (4) ALD 43
3 2011 (6) ALD 502
4 (2005) 12 SCC 77
5 2012 (2) ALD 332
6 2012 (6) ALD 260
7 (1989) 3 SCC 99
8 (2012) 1 SCC 656)
9 AIR 1957 Madras 472
10 AIR 1970 Orissa 22
11 AIR 1958 Patna 193,
12 (2009) 7 SCC 363
13 2013 (4) ALD 426
14 AIR 1955 SC 604
15 1902 AC 474
16 2014 (4) ALD 358
17 2013 1 ALT 774
18 (2003) 5 SCC 662
19 (1989)14 Appeal Cases 493
20 (1980) 2 SCC 120
21(1980) 4 SCC 653
22(1980) 4 SCC 697
23 AIR 1941 PC 16
24 AIR 1967 SC 1427
<GIST:
>HEAD NOTE:
HONBLE SRI JUSTICE S.V.BHATT
WRIT PETITION Nos.24587 OF 2014, 31074 OF 2014, 24629 OF 2014,
24989 OF 2014, 27046 OF 2014, 27140 OF 2014, 27279 OF 2014,27301
OF 2014, 18835 OF 2014, 11858 OF 2014, 4917 OF 2014, 20039 OF
2014, 35090 OF 2014, 36290 OF 2014, 36573 OF 2014, 36584 OF
2014,36693 OF 2014, 36701 OF 2014, 36711 OF 2014, 35792 OF 2014
39183 OF 2014 AND 41141OF 2014.
COMMON ORDER:
The petitioners in these writ petitions are different individuals
and the respondents are common. The pleadings set out by parties
in W.P.No.24587 of 2014 are referred to and would suffice for the
disposal of this batch of writ petitions. The grievance of the
petitioners is against letter Rc.No.N1/27520/2009 dated 19.04.2010
forwarded by the Commissioner Endowments/2nd respondent to the
4th respondent under Section 22-A of the Registration Act, 1908 (for
short the Act) prohibiting registration of documents of properties
covered by the list appended to the letter dated 19.04.2010. The
subject matter of the writ petitions is house plots covered by Patta
No.130, Paimash No.10, Survey No.242 of Tiruchanur Village
Accounts, Tirupathi Revenue Division, Chittoor District.
The petitioners pray for Mandamus declaring the action of
4th respondent in refusing registration of the sale deed(s) for house
plot Nos.156, 322, 323, 157 part and 158 part and plot Nos.156 (part)
and 157 (part) covered by Patta No.30 located in Paimash No.10
(Survey No.242) of Tiruchanur Village Accounts presented by
petitioners by reference to letter Rc.No.N1/27520/2009 dated
19.04.2010 without notification under Section 22-A of the Act, as
illegal, arbitrary and contrary to the Act. The petitioners pray for a
direction to 4th respondent to receive and register the documents
covered by Survey No.242 of Tiruchanur Village Accounts in
accordance with law and without reference to letter
Rc.No.N1/27520/2009 dated 19.04.2010.
The issue of law arises under Section 22-A of the Act.
The case of petitioners is that Survey No.242 is a private patta
land. One Sannadhi Muni Reddy filed O.S. No.8 of 1934 in the Court
of District Judge, Chittoor against one M.K.Ramaswamy Ayyangar
and others for recovery of amount due under a mortgage deed.
The suit was decreed and the property was put to execution
in O.E.P.No.6 of 1943. In O.E.P. No.6 of 1943, the decree holder
purchased the E.P. schedule property. On 27.04.1946, sale
certificate was issued in favour of Sannadhi Muni Reddy. The E.P.
schedule property is as follows:
(1)Chittoor-Kadapa District- Chiruthanur Old Agraharam Chitteti
Gunta Patteda- lands-bounded on
East by - the road leading to Tirupati and the lands cultivated
under Oburaju Kalva:
West by - Avilala Village boundary;
North by - the lands of Venkatapuram Agraharam Revenue village
(Vallerugunta Patteda lands)
South by - the lands of Tiruchanur and Old Agraharam called as
Chitteti lands:
Within the said boundaries, an extent of Ac.21.25 cents and an
extent of Ac.11.25 cents- totaling Ac.32.50 cents- with all irrigation
rights in water channels and water rights in tank along with trees
therein-
(1) Chittoor- Kadapa District-Chiruthanur Old Agraharam Chitterti
Gunta Patteda- lands- bounded on
East by : Bandi Baata leading to Tanapalle;
West by : the lands of Tiruchanur Agraharam Revenue village;
North by : Daaminedu Kalva (Channel); and
South by :
Within the said boundaries, an extent of Ac.6.00 cents with
all trees such as Neem, Tati, Eetha etc., Wells therein, sheds etc.,
The petitioners contend that the property referred to above is
identifiable with Paimash No.10 and correlated to Survey No.242 of
Tiruchanur Village Accounts. From the year 1957 onwards, Survey
No.242 has been subjected to a series of registered transactions of
sale and purchase as private patta land. Survey No.242 was and is
private property or patta land of Muni Reddy. In due course, Survey
No.242 was developed into a residential layout and sold to several
persons as house plots. The details of house plots purchased by the
petitioners in W.P.No.24587 of 2014 are as follows:
Sl. No.
Name of the
petitioner
Sy.No.& Plot
No.
Extent
Link
documents
(sale deeds)
1
Sri
Radhakrishna
Naidu
242/156 part
370 sq.yards
2389/1997
and 2390/97
2
Sriramaneni
Krishnamurthy
242/322 &
323
800 sq.yards
2389/1997
and 2390/97
3
K.Prabhakar
Naidu
242/157 Part
& 158 Part
365 sq.yards
2389/1997
and 2390/97
4
G.Uttaradu
242/156 Part
& 157 Part
635 sq.yards
2389/1997
and 2390/97
In the year 2006, the petitioners claim to have presented
documents covering the above plots for registration before the 4th
respondent. The 4th respondent received the documents, but
refused to register the sale deeds on the ground that the
Administrative Officer of Sri Hatiramjee Mutt and Manager of Bugga
Mutt informed the 4th respondent that the Commissioner of
Endowments, Government of Andhra Pradesh/2nd respondent
intimated the details of various immovable properties held by
religious or charitable institutions within the jurisdiction of 4th
respondent and requested 4th respondent not to register
documents covering the properties appended in the list to the letter
dated 19.04.2010. The operative portion of communication reads
as follows:
Hence, I am hereby forwarding the revised particulars of
immovable properties relating to Sri Swamy Hati Ramji Math, Tirupati
and Bugga Math, Tirupathi in 6 Registration Sub-Divisions in Chittoor
District viz., (1) Tirupathi Urban, (2) Tirupathi Rural,(3) Chandragiri,
(4) Renigunta,(5) Srikalahasthi, (6) Thottambedu in proforma U/s.22-A
(1) (c) of the Registration Act in suppression of the previous lists of
properties furnished in the reference 2nd cited by this authority and the
list of properties furnished by the Mahanth Varu of Sri Hathiramji
Math, Tirupathi and other institutions containing six Registration Sub
Division for taking necessary action of prohibiting of illegal
registrations as the said properties are required for the maintenance
of the Charitable and Religious Institutions. These annexed
immovable properties cannot be registered without the specific
permission of the Commissioner, Endowments Department, Andhra
Pradesh.
The petitioners complain against inclusion of Survey
No.242 as property belonging to the Mutts/ Institutions, as
illegal and without factual or legal basis. The petitioners
alternatively canvass that unless a notification under Section
22-A of the Act is issued for any property, registration of
document for such property cannot be prohibited or refused
by the 4th respondent. In short, the legal objection stated is
that unless a notification under Section 22-A (2) of the Act is
issued, prohibition or refusal to register property is illegal and
unauthorized.
The petitioners, in support of re-grant of petition land,
incidentally refer to ryotwari patta granted in the year 1979 by the
Inam Deputy Tahsildar, Chandragiri in favour of one of the
predecessors- in -interest to a portion of land in Survey No.242. The
relevancy of said allegation is that the petitioners admit that tenures
in Survey No.242 of Tiruchanur Village were regularized under the
provisions of the A.P. (Andhra Area) Inams (Abolition and
Conversion into Ryotwari) Act 1956 and with the grant of a ryotwari
patta, the petition lands cannot be concluded as held or belonging
to Institution. The petitioners place reliance on orders in
W.P.No.13565 of 2013 for a direction to 4th respondent to receive
and register documents presented for the property covered by
Survey No.242 of Tiruchanur Village Accounts. The petitioners state
that the petition lands have been in continuous possession of
petitioners and their predecessors -in -title since ten (10) decades. It
is alleged that the legality of communication dated 19.04.2010 is
already considered by this Court and the communication was set
aside through order dated 03.06.2013 in W.P.No.10068 of 2013 and
pray for a similar direction.
The legal grounds urged against the alleged refusal to
receive or register the document by 4th respondent are that Section
22-A of the Act prescribes prohibition from registration of certain
categories of land and to attract prohibition from registration of
document, the properties should be notified in the gazette under
Section 22-A (2) of the Act. As Survey No.242 is not notified in the
gazette under Section 22-A (2) of the Act, the 4th respondent
cannot rely upon the details submitted by Revenue and
Endowments Departments and refuse to receive or register
documents covering properties in the list forwarded by these
departments. Such refusal to receive or register is illegal, arbitrary,
contrary to the Act and violative of Article 300-A of the Constitution
of India. Hence, the writ petitions.
The petitioners filed the registered documents in evidence of
their right etc., in house plots in Survey No.242 of Tiruchanur Village.
The 5th respondent filed counter affidavit opposing the writ
prayer on all fours. At the instance of 5th respondent and by
reference to the details furnished by 5th respondent, the list of
properties is communicated through Commissioner, Endowment
to 4th respondent. The case of 5th respondent is that the Great
Vaishnav Saint Sri Hatiramjee Bavaji established 5th respondent/Mutt
at Tirupathi and Tirumala. The objectives of Mutt are to provide free
of cost shelter and food to pilgrims, Sadhus, Sanyasis and Bairagees
on pilgrimage to Tirumala. For the administration or discharge of
avowed obligations undertaken by the Mutt and upkeep of the
Mutt, the succeeding Mahants or the disciples of Mahants received
gifts of movable and immovable properties from the devotees of
Lord Balaji. The Mutt received donations of agricultural land in
Tiruchanur Village as well and claims to be in possession of various
properties acquired by the Mutt.
Nawab of Arcot made a grant of Village Tiruchanur as
Shotriyam Village in favour of Havildar Srinivasa Charyulu to restore
the channels and tanks in Tiruchanur Village. The grant was
enfranchised by the Inam Commissioner, Madras in title deed
No.464 dated 26.11.1862. The successive Mahants of 5th respondent
Mutt at various points of time through sale deeds claim to have
purchased total extent of Ac.139.50 cents from Inamdars of
Tiruchanur. The details of these sale deeds etc., are not considered
in this order, for this Court is not adjudicating the issue of title or
entitlement between the parties vis--vis Survey No.242 (Paimash
No.10) of Tiruchanur Village.
It is further averred that one Sri Mangaldas Bavaji, disciple of
Mahant Bhagwandasji of respondent Mutt, purchased from
Smt.Janakamma w/o Tirumalakumara Arasingara Tata Charyulu,
who is one of the Inamdars of Tiruchanur Village the land bounded
on:
East: Tiruchanur Kotha Agraharam Cheruvu Lothattu lands i.e.
offshore lands,
West: Mutt lands of Avilala Village boundary,
North: Tirupathi Village boundary, and
South: Tiruchanur Kotha Agraham Cheruvu Orava Kalva
(inlet) measuring an extent of 29-13-8 Kandlu
(Ac.52.00) under registered sale deed dated 20.04.1913
bearing Paimash Nos.1, 2, 3, 5A, 6 and 10 correlate to
Survey Nos.14, 229, 230, 240, 241 and 242 of Tiruchanur
Village.
It is further averred that through registered lease deed dated
30.04.1913, the Mutt leased the said property in favour of Murthy
Reddy of Tiruchanur. Through registered lease deed dated
15.06.1914, the term of lease was renewed for further 3 years. The
Mutt claims right, title, possession and enjoyment of the property
referred to above through the registered sale deeds and lease
deeds. It is the case of 5th respondent that subject matter forms
part of schedule property referred to above.
The Inam Settlement Officer No.3, Chittoor had taken up
suo motu enquiry under Section 9(1) of the Andhra Pradesh (Andhra
Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948.
The Settlement Officer decided that Tiruchanur Village was estate
village within the meaning of Estates Abolition Act and tenures
were directed to be regularized under Act 17 of 1948. The
5th respondent/Mutt aggrieved by the order of Inams Settlement
Officer filed Appeal No.94 of 1953 before the Estate Abolition
Tribunal, Chittoor. On 11.04.1954, the Estate Abolition Tribunal
allowed the appeal by holding that Tiruchanur Village is not an
estate village within the meaning of the Estates Abolition Act. The
decision of Estates Tribunal exempted Tiruchanur Village from the
provisions of Act 17 of 1948. The Mutt refers to civil litigation against
implementation of The Andhra Pradesh (Andhra Area) Estates Land
(Reduction of Rent) Act, 1947 in O.S. No.4 of 1955 in the Court of
Senior Civil Judge, Chittoor in support of its actual enjoyment of the
paimash numbers referred to above. The 5th respondent/Mutt relies
upon the sale deed executed by Smt. Janakamma wife of
Tirumalakumara Arasingara Tata Charyulu vide document
No.654/1913 in favour of Mutt to claim right and title to the subject
matter.
It is further stated that consequent upon the decision of
Estates Abolition Tribunal in Appeal No.94 of 1953, the Andhra
Pradesh (Andhra Area) Inams (Abolition and Conversion into
Ryotwari) Act, 1956 was implemented in Tiruchanur Village. The
Inam Deputy Tahsildar conducted enquiry under Section 3(3) of the
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion
into Ryotwari) Act, 1956 and decided that the land in Survey No.242
is held by an institution vide order dated 15.09.1983. Against the
order dated 15.09.1983, one R. Raghunatha Reddy filed appeal
before the R.D.O., Tirupathi. On 21.02.1984, the appeal filed by
R.Raghunatha Reddy was allowed setting aside the order dated
15.09.1983 holding Survey No.242 as held by institution. The 5th
respondent carried the matter in revision before the Commissioner,
Survey and Settlement and Land Records, Hyderabad. The revision
in case No.P3/1688/84 was allowed on 20.11.1985 setting aside the
order dated 21.02.1984 of R.D.O., Tirupathi and the matter was
remanded for enquiry and disposal by R.D.O. Tirupathi. The purpose
of reference to above circumstances is to contend that the order
dated 15.09.1983 holding the property as held by institution is
subsisting and the petitioners and their predecessors- in- interest etc,
do not have right or title or claim ryotwari patta for Survey No.242 of
Tiruchanur Village. It is further stated that the communication
dated 19.04.2010 is intended to inform that the properties are held
by an endowment/institution, and prohibited from registration under
Section 22-A(1)(c) of the Act. The Mutt is not under obligation to
get the property notified under Section 22-A (2) of the Act, as the
protection is complete in the scheme of Section 22-A of the Act to
a class of properties. The letter dated 19.04.2010 is an intimation to
4th respondent for prohibiting registration of documents of
properties covered by the list. The response to legal objections
against non-compliance of Section 22-A is that firstly publication of
notification is not required under Section 22-A of the Act and
secondly notification is required only in respect of exigencies or
circumstances covered by 22-A (1)(e) of the Act. The refusal by
4th respondent is justified and the petitioners having regard to the
right and title claimed by the institutions under Section 3(3) of the
Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion
into Ryotwari) Act, 1956 and the fact that the petitioners are
admitting that Tiruchanur Village is an Inam Village, have failed to
produce re-grant in their favour and therefore, cannot pray for
Mandamus for registration of properties belonging to institutions,
contrary to the scope, purpose and object of Section 22-A of the
Act.
The petitioners filed reply affidavit and placed on record
objections on the claim of 5th respondent on Survey No.242 of
Tiruchanur Village. Incidentally, it is stated that the enquiry/hearing
under the Inams Abolition Act is pending before the R.D.O. Tirupathi
and finality cannot be presumed against the order dated
15.09.1983 of Inam Settlement Officer, Tirupathi to claim that subject
matter is held by an institution. It is reiterated that the case on
hand is covered by Section 22-A (1)(e) of the Act and notification
under sub-Section (2) of Section 22-A is a condition precedent for
prohibition or for refusing registration.
The learned counsel appearing for the petitioners have
forcefully contended that (1) refusal to receive or register a
document prima facie is illegal and amounts to abdication of
jurisdiction and duty under the Act; and (ii) mere act of registration
of a document by itself does not alter or affect the claim of 5th
respondent. De hors this contention, it is further urged that the
Andhra Pradesh Charitable and Hindu Religious Institutions and
Endowments Act protects the alleged rights of 5th respondent and
that inclusion of subject matter in prohibitory list is unilateral,
amounts to self declaration of right and title by the claimant and
unconstitutional. It is contended that the power to prohibit a
document from registration is dependant on issuance of a
notification under Section 22-A(2) of Act and admittedly no
notification is published in the Gazette. The refusal to receive or
register on the basis of letter Rc.No.N1/27520/2009 dated 19.04.2010
is arbitrary, illegal and amounts to abdication of duty/function
under the Act.
Learned counsel appearing for the petitioners, on the legal
requirement of a notification under sub-Section (2) of Section 22-A
have relied upon the following decisions of this Court:
D.Bharathamma Vs. State of Andhra Pradesh , T.Edukondalu
v. The Principal Secretary to Government, Department of Revenue,
Stamps and Registration, Hyderabad and Dr. Dinakar Mogili v. State
of A.P.
In T.Edukondalus case (supra 2), the relevant portion reads as
follow:
The argument of the learned Government Pleader is that there
is no necessity to publish a notification in respect of the subject land
under Section 22-A (2) of the Registration Act, 1908 as Section 22-
A(1)(b) would have application and not Section 22-A(1)(e). However,
this contention, if accepted, would mean that all lands claimed to be
Government lands which are sold by any private party can be brought
within the ambit of Section 22-A(1)(b) . Such a construction would
render superfluous Section 22-A(1)(e) to the extent it speaks of
prohibition of registration of documents pertaining to lands in which
the State Government may have avowed or accrued interests.
That, obviously, could not have been the intention of the
Legislature. Further clause (b) of Section 22-A(1), on a plain reading,
indicates that it relates to prohibition of registration of documents in
the context of the executants thereof nor being statutorily empowered
to execute them. Thus the said clause would not have application in a
case where the Government claims a particular land to be its own on
the basis of revenue records or otherwise. Had that been so, there
would have been no necessity for clause (e) of Section 22-A (1) of the
Act of 1908, which states that there shall be a prohibition of
registration in respect of documents pertaining to properties in which
the Stage Government has avowed or accrued interests, which would
be adversely affected by such registration. Thus, where the State
Government stakes a claim that a particular land belongs to it and
seeks to put in place a prohibition with regard to registration of
documents in respect thereof, the same would invariably fall within
Section 22-A(1)(e) of the Act of 1908 alone and the Government must
necessarily publish a notification under Section 22-A(2) of the Act of
1908 giving full description of the property concerned. The sanctity of
such a notification is spelt out by Section 22-A(3) of the Act of 1908
which places an embargo upon the Registering Officers from
registering any document falling within the ambit of the notification. In
the present case, there is no dispute that no such notification has
been published under Section 22-A (2) of the Act of 1908 in respect of
the subject land.
In Dr. Dinakar Mogilis case (Supra 3), the relevant portion
reads as follows:
The only provision which prohibits the Registering Authority,
from registering the document presented for registration, is under
Section 22-A of the Registration Act. Under Section 22-A(1)(b)
documents relating to the sale of property, in respect of immovable
property owned by the State or Central Government if executed by
persons other than those statutorily empowered, cannot be
registered. On being asked whether it is the case of the respondents
that registration of the sale deed by the District Collector on
30.10.2006, falls within the ambit of clause (b) of Section 22-A(1),
learned Government Pleader for Revenue would fairly state that it is
not. He would submit that it is only the sale deed sought to be
registered by the President of the Society on 22.7.2010, in favour of
the petitioners herein, which falls within the ambit of the said
provision. Section 22-A(1)(b) applies only to immovable property
owned by the State Government and, since the Government had itself
alienated the said land by way of a sale deed in the year 2006, it
ceased to be the owner of the said land and, consequently Section
22-A(1)(b) of the Act has no application thereafter.
It is necessary to note that Section 22-A (1)(e) prohibits
registration of documents pertaining to the properties in which, among
others, the State Government has an avowed or accrued interest and
which the State Government has, by notification, prohibited
registration of. If, as contended by the respondents, the State
Government has implicit interest in the said property, the only manner
in which registration of documents can be prohibited is by issuing a
notification under Section 22-A(1)(e) of the Act. No reference is made
in the counter affidavit to any notification having been issued by the
State Act. In the absence of a notification being issued by the State
Government in exercise of its powers under Section 22-A(I)(e) of the
Registration Act, the question whether the State Government has an
avowed or accrued interest does not necessitate examination.
In opposition, the learned Government Pleader and
K.R.Prabhakar appearing for respondents have vehemently
contended that (i) the construction placed on Section 22-A (1) of
the Act by the petitioners is incorrect and untenable. In view of
decision of Apex Court in State of Rajasthan and others v. Basant
Nahata , Section 22-A is introduced through Amendment Act 19 of
2007 and the statement of objects and reasons read with the
language of Section 22-A would sufficiently disclose that the
prohibition of registration of documents is in respect of distinct
classes or cases and the pre-existing right of these classes of cases is
recognized by record or special enactment and the prohibition of
registration of a document is in furtherance of a prohibited
transaction by the special enactment and, therefore, it does not
require notification under Section 22-A(2) of the Act; (ii) the object
of prohibition is to protect the properties of State, Endowment,
Institutions etc., from frivolous or bogus claims through illegal
documents/ transactions and the prohibition of registration can be
compelled through communication of details of properties covered
by Section 22-A(1) (a) to (d). It is the definite case of respondents
that a notification is required only for the circumstances or instances
covered by Section 22-A (1) (e) read with Section 22-A(2) of the
Act. (iii) the communication of list under Section 22-A (1) (a) to (d) is
sufficient to prohibit registration of document and a person who
intends to obtain registration of a property covered by Section 22-A
(1) (a) to (d) must get his right in property adjudicated in a
competent Court. It is finally contended that having regard to the
object desired through prohibition from registration, the principle of
nemo dat quod non habet means no person can transfer a
better title than what he possesses, and mere registration of a
document does not affect the right, have no application.
The learned counsel appearing for respondents rely upon
Guntur City House Construction Cooperative Society Limited, Guntur
v. Tahsildar, Guntur Mandal, Taluka Office,Guntur District and
P.Srinivasulu and others v. Sub Registrar, Renigunta, Chittoor District .
In Guntur City House Construction Cooperative Societys case,
(supra 4) the relevant portions reads as follows:
From a perusal of this, it becomes clear that the prohibition
gets attracted straight away in respect of lands that fall into sub-
clauses (a) to (d) of sub section (1). It is only in respect of lands
falling into sub-clause (e) that publication of a notification becomes
necessary for the prohibition to operate.
The reason underlying clause (e) of sub-section (1) and sub-section
(2) is manifest. The prohibition against registration of documents
pertaining to (a) the lands, whose transfer is prohibited under law (b)
lands owned by State or Central Government (c) lands owned by
religious institutions or surplus lands and, (d) the lands that are
rendered surplus, gets attracted straight away. A totally different
purpose is sought to be achieved in respect of lands mentioned in
clause (e). This category does not include lands not owned by State
or Central Government or Religious or Educational Institutions. It is in
respect of properties, vis--vis which accrued or existing interest of
the Government or its agencies are involved. In other words, even
though a particular land or property may not be owned by the
Government or institutions mentioned in that clause, the prohibition
can be made to operate, in case such properties are under lease or
other use by the said institutions or establishments. It is only in such
cases, that issuance of notification is necessary, for the prohibition, to
operate. It is a different matter that the aggrieved party may
challenge the notification, if issued. As regards the properties
covered under clause (a) to (d) of sub section (1), no such notification
is necessary.
In P.Srinivasulus case (supra 6), the relevant portion reads as
follow:
A perusal of the aforesaid provisions would show that for
class of documents relating to the properties covered by Section 22-
A(1)(a),(b),(c), and (d) of the Registration Act, there is prohibition for
registration, even without issuing any notification. But for the class of
documents covered by Section 22-A(1)(e), the State Government is
empowered to issue notification prohibiting registration of the
documents relating to the properties in which avowed or accrued
interests of Central and State Governments, Local Bodies,
Educational, Cultural, Religious and Charitable Institutions is likely to
adversely affect.
The decisions relied upon by the parties are expressing
divergent views on the requirement of issuing notification under
Section 22-A (2) of the Act for prohibiting registration of a
document. Having regard to spate of litigation against threshold
refusal to register or receive documents for registration under
Section 22-A of the Act, I propose to consider from different
perspectives the origin, source and object of Section 22-A of the
Act and its operation vis--vis other enactments..
Now the points for consideration are:
i. Whether publication of notification under Section
22A (2) of the Act is mandatory or condition precedent to
prohibit registration of documents under the Act? and
ii. What is the scope and meaning of the words Prohibition of
registration of certain documents and following classes of
documents shall be prohibited from registration under
Section 22-A of the Act and whether the total prohibition of
registration of documents for the properties included in the
prohibitory list under Section 22-A results in conflict with
Transfer of Property Act, Section 17 of the Act and Article
300-A of the Constitution of India?
iii. To what relief?
POINT No.i:
Registration Act:-
It is axiomatic that a statute must be construed having regard
to the purpose and object of the statute. The Act makes a few
documents compulsorily registerable under Section 17(1) of Act.
Section 22-A of the Act prohibits registration of a few documents.
Through Amendment Act 19/2007, Section 22-A of the Act is
introduced. Section 17(1) of Act on one hand makes registration
compulsory of a few documents and Section 22-A of the Act
prohibits registration of documents compulsorily registerable, as hit
by Section 22-A and the transactions are treated as illegal
transactions of transfer of property held by Government Institutions
etc. The counsel appearing for both parties persuaded the Court
to follow the decision that supports their prayer and decide
accordingly. Having regard to the importance of the issue and
catena of decided cases on the point and perpetual litigation
under Section 22-A of the Act, this Court undertakes further
examination of section in the Act and also a few special statutes
before expressing view on the reported decisions.
The Act secures or maintains records of documents registered
under the Act. Part III of the Act deals with registerable documents.
Section 17 of the Act is an important provision or is the heart of the
Act. Section 17 (1) (a) to (e) reads as follows:
17. Documents of which registration is compulsory.(l) The
following documents shall be registered, if the property to which
they relate is situate in a district in which, and if they have been
executed on or after the date on which, Act No. XVI of 1864, or the
Indian Registration Act, 1866, or the Indian Registration Act, 1871,
or the Indian Registration Act, 1877, or this Act came or comes into
force, namely:
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to
create, declare, assign, limit or extinguish, whether in present or in
future, any right, title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards, to or in immovable
property;
(c) non-testamentary instruments which acknowledge the receipt or
payment of any consideration on account of the creation,
declaration, assignment, limitation or extinction of any such right,
title or interest; and
(d) leases of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any
decree or order of a Court or any award when such decree or order
or award purports or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees
and upwards, to or in immovable property
Sub-section (2) of Section 17 grants exemption from clauses
(b) and (c) of sub-Section (1) of Section 17 to a few deeds/
documents referred therein. Section 17 (1) of the Act deals with a
document which requires registration, but the Section does not deal
with the transaction covered by such document. The Section
enjoins registration of document which purports and not which
intends to create right in immovable property or declare a right in
immovable property. The effect of non-registration of compulsorily
registerable document under Section 17(1) of Act is covered by
Section 49 of Act. A document which creates, declares, assigns,
limits or extinguishes, whether in present or future, any right, title or
interest, whether vested or contingent, of the value of Rs.100/- or
upwards in any immovable property is compulsorily registerable
under Section 17(1) of Act. The documents falling within the ambit
of Section 17(1) of the Act must be registered and it is a mandatory
provision. The Registration Department for all purposes endorses the
document as registered and maintains the registered document in
the records/books. The official act of registration even if carried out
in accordance with law the question still falls for consideration is the
effect of registration on the property.
The scope/object of registration is considered in Lakshman
Das V. Ramlal and another , which is as follows:
A real purpose of registration is to secure that every
person dealing with the property, where such document
requires registration, may rely with confidence upon
statements contained in the register as a full and complete
account of all transactions by which title may be affected.
Section 17 of the said Act being a disabling section, must be
construed strictly. Therefore, unless a document is clearly
brought within the provisions of section, its non-registration is no
bar to its being admitted in evidence. (Emphasis added)
In State of Rajasthan v. Basanth Nahata (supra 4), it is held that:
The Act was enacted to consolidate the enactments relating to
the registration of documents. Prior to enactment of the said Act, the
provisions relating to registration of documents were scattered in
seven enactments. The Act was enacted in terms of Entry 18, List II
and Entry 6, List III of the Seventh Schedule of the Constitution. It
mainly deals with the necessity of getting a document registered in
India so as to make them valid and even if they are executed outside
India to provide for registration thereof after their first arrival in India.
Section 17 of the Act enumerates the instruments registration of
which is compulsory under the Act whereas Section 49 encompasses
the effect of a failure to register. Registration of documents, however,
is not confined only to documents relating to immovable property but
also for the documents dealing with other matters as for example
adoption. Section 17 of the Act has been amended inter alia by the
State of Rajasthan. The State of Rajasthan, however, inserted Section
17(1)(f) and 17(1)(g) with effect from 18.9.1989 and made the
registration of agreement to sale and irrevocable power to attorney
relating to transfer of immovable property in any way a compulsorily
registerable document. Section 18 provides for optional registration of
documents specified therein. Section 22 provides for description of
houses and land by reference to Government maps or surveys.
Several States, however, as noticed hereinbefore, inserted Section
22-A. In terms of Sub-Section (1) thereof, the State Governments
have been authorized to issue a notification declaring that the
registration of any document or class of documents would be opposed
to public policy. Sub- section (2) of Section 22-A starts with a non-
obstante clause stating that notwithstanding anything contained in the
Act, the registering officer shall refuse to register any document for
which a notification issued under Sub- section (1) is applicable.
Section 32 occurring in Part VI provides for presentation of
documents for registration. Section 33 deals with power of attorney
recognizable for the said purpose. Part XI of the Act deals with the
duties and powers of registering officers. Part XII deals with
documents which a Sub-Registrar may refuse to register which, inter
alia, refers to a document relating to property, which was not situated
within the district of the Registrar or which ought to be registered in
the office of Sub-Registrar or on the ground of denial of execution. An
appeal from such orders of the Sub- Registrar is provided for under
Sub-section (2) of Section 72. Even as against the order of Registrar
a suit is maintainable. However, if and when a document is refused to
be registered by the Sub-Registrar in terms of Sub- section (2) of
Section 22-A of the Act, evidently no appeal would lie.
Finality cannot be attached to decisions of executive when such
things are in exclusive domain of judiciary as stated in State of Kerala
and Others vs. Travancore Chemicals and Manufacturing Co.
observing (SCC p.193 para 13)
"13. Section 59-A enables the Government to pass an
administrative order which has the effect of negating the statutory
provisions of appeal, revision etc. contained in Chapter VII of the Act
which would have enabled the appellate or revisional authority to
decide upon questions in relation to which an order under Section 59-
A is passed. Quasi-judicial or judicial determination stands replaced
by the power to take an administrative decision. There is nothing in
Section 59-A which debars the Government from exercising the power
even after a dealer has succeeded on a question relating to the rate of
tax before an appellate authority. The power under Section 59-A is so
wide and unbridled that it can be exercised at any time and the
decision so rendered shall be final. It may well be that the effect of this
would be that such a decision may even attempt to override the
appellate or the revisional power exercised by the High Court under
Section 40 of the Act as the case may be. The section enables
passing of an executive order which has the effect of subverting the
scheme of a quasi-judicial and judicial resolution of the lis between
the State and the dealer."
We are not oblivious of the decisions of this Court laying down the
proposition of law that the statute dealing with fiscal matters and / or
laying down a provision or enforcing the doctrine of social justice
adumbrated in the Directive Principles of State Policy as contained in
Part IV of the Constitution of India ordinarily would not be interfered
with by the superior courts in exercise of their power of judicial review.
The Act is neither a fiscal statute nor deals with any matter falling
under Part IV of the Constitution of India.
In Suraj Lamp and Industries Private Limited (2) v. State of
Haryana , the Apex Court held as follows:
Advantages of Registration
In the earlier order dated 15.5.2009, the objects and benefits of
registration were explained and we extract them for ready
reference :
The Registration Act, 1908, was enacted with the intention of
providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from
fraud and forgery of documents of transfer. This is achieved by
requiring compulsory registration of certain types of documents
and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides that any
document (other than testamentary instruments) which purports
or operates to create, declare, assign, limit or extinguish
whether in present or in future "any right, title or interest"
whether vested or contingent of the value of Rs. 100 and
upwards to or in immovable property.
Section 49 of the said Act provides that no document required
by Section 17 to be registered shall, affect any immovable
property comprised therein or received as evidence of any
transaction affected such property, unless it has been
registered. Registration of a document gives notice to the world
that such a document has been executed.
Registration provides safety and security to transactions relating
to immovable property, even if the document is lost or
destroyed. It gives publicity and public exposure to documents
thereby preventing forgeries and frauds in regard to
transactions and execution of documents. Registration provides
information to people who may deal with a property, as to the
nature and extent of the rights which persons may have,
affecting that property. In other words, it enables people to find
out whether any particular property with which they are
concerned, has been subjected to any legal obligation or liability
and who is or are the person/s presently having right, title, and
interest in the property. It gives solemnity of form and
perpetuate documents which are of legal importance or
relevance by recording them, where people may see the record
and enquire and ascertain what the particulars are and as far as
land is concerned what obligations exist with regard to them. It
ensures that every person dealing with immovable property can
rely with confidence upon the statements contained in the
registers (maintained under the said Act) as a full and complete
account of all transactions by which the title to the property may
be affected and secure extracts/copies duly certified."
Registration of documents makes the process of verification and
certification of title easier and simpler. It reduces disputes and
litigations to a large extent.
The Apex Court held in Suraj Lamp and Industries
Private Limited (2) v. State of Haryana (supra 8) that
registration of document makes the process of verification and
certification of title easier and simpler. The registration of
document reduces disputes and litigation to a large extent.
Effect of Registration on the right/title to property:
The Registration of a document does not by itself confer or
create title in favour of the vendee/transferee under the registered
document. The registration of a document by itself would not
create or transfer title to the transferee. The registration simplicitor is
well appreciated by the legal maxim nemo dat quod non habet
meaning no person can transfer a better title than what he
possess in the property transferred.
In K.Panchapagesa Ayyar and another v. K.Kalyanasundaram
Ayyar and others , it is held as follows:
The Registration Act, unlike the Transfer of Property Act, strikes
only at documents and not at transactions. In the same way the
Act does not require that a transaction affecting immovable
properties should be carried out by a registered instrument. All that
it enacts is that where a document is employed to effectuate any of
the transactions specified in S.17 of the Act, such document must
be registered, notwithstanding that the transaction is one which the
law does not require to be put into writing.
In Jogi Das and others v. Fakir Panda , it was held that:
The object and purpose of the Registration Act, amongst
other things, is to provide a method of public registration of
documents so as to give information to people regarding legal
rights and obligations arising out of or effecting a particular
property, and to perpetuate documents, which may afterwards be of
legal importance and also prevent fraud.
In Chander Singh v. Jamuna Prasad Singh the Honble Court
held that:
On a Proper construction of Section 54 of the Transfer of
Property Act, it appears that a transfer of ownership takes place
immediately on the sale. A registration is inly a statutory mode of
making the sale and it does not affect the creation of title by the
sale. Section 47 of the Indian Registration Act provides that a
registered document shall operate from the time from which it
would have commenced to operate if no registration thereof had
been required or made, and not from the time of its registration. It
will be observed that Section 47 of the Indian Registration Act does
not purport to create a new title, but only affirms the title which, was
created by the sale deed.
In Suraj Lamp and Industries Private Limited v. State of
Haryana , the Honble Court held that:
The Registration Act, 1908, was enacted with the intention of
providing orderliness, discipline and public notice in regard to
transactions relating to immovable property and protection from
fraud and forgery of documents of transfer. This is achieved by
requiring compulsory registration of certain types of documents and
providing fdor consequences of non-registration. Section 17 of the
Registration Act clearly provides that any document (other than
testamentary Act clearly provides that any document ( other than
testamentary instruments) which purports or operates to create,
declare, assign, limit or extinguish whether in present or in future
any right, title or interest whether vested or contingent of the value
of Rs.100 and upwards to or in immovable property.
Section 49 of the Registration Act provides that no document
required by Section 17 to be registered shall, affect any immovable
property comprised therein or received as evidence of any
transaction affected such property, unless it has been registered.
Registration of a document gives notice to the world that such a
document has been executed. Registration provides safety and
security to transactions relating to immovable property, even if the
document is lost or destroyed. It gives publicity and public
exposure to documents thereby preventing forgeries and frauds in
regard to transactions and execution of documents. Registration
provides information to people who may deal with a property, as to
the nature and extent of the rights which persons may have,
affecting that property. In order words, it enables people to find out
whether any particular property with which they are concerned, has
been subjected to any legal obligation or liability and who is or are
the person/s presently having right, title and interest in the property.
It gives solemnity of form and perpetuate documents which are of
legal importance or relevance by recording them, where people
may see the record and enquire and ascertain what the particulars
are and as far as land is concerned what obligations exist with
regard to them.
The view of this Court on effect of registration is considered.
In Dr.Dinakar Mogili v. State of Andhra Pradesh and others
(supra 3), it is held as under:
The only provision which prohibits the Registering Authority, from
registering the document presented for registration, is under
Section 22-A of the Registration Act. Under Section 22-A(1) (b)
documents relating to the sale of property, in respect of
immovable property owned by the State or Central Government if
executed by persons other than those statutorily empowered,
cannot be registered. On being asked whether it is the case of the
respondents that registration of the sale deed by the District
Collector on 30.10.2006, fails within the ambit of clause (b) of
Section 22-A(1), learned Government Pleader for Revenue would
fairly state that it is not. He would submit that it is only the sale
deed sought to be registered by the President of the Society on
22.7.2010, in favour of the petitioners herein, which falls within the
ambit of the said provision. Section 22-A(1)(b) applies only to
immovable property owned by the State Government and, since
the Government had itself alienated the said land by way of a sale
deed in the year 2006, it ceased to be the owner of the said land
and, consequently Section 22-A(1)(b) of the Act has no application
thereafter.
In Pasupuleti Bala Gangadhar v. State of Andhra Pradesh and
others , it is held as under:
As held in Raavi satishs case (supra), mere registration of
the property will not create title in the purchaser and that if the
vendor has no title in the property, the purchaser will not derive any
title only on account of registration and that registration of a
document will not absolve the vendor and the purchaser from the
legal proceedings that may be initiated by the State for recovery of
possession of the land, if the same is proved to belong to the
Government.
Summarized Section 17 (1) of Act makes a few documents
compulsorily registerable which create or declare right, title interest
etc., in immovable property of the value of Rs.100/- and upwards
and is strictly construed and is a mandatory provision.
As noted in the statement of objects of amending acts,
Section 17 has been misused through registration of immovable
properties of value of Rs.100/- and upwards of properties held by
Endowment, Wakf, Central and State Government Undertakings
and the Government. The documents are registered with intent to
gain or claim right and title to the properties of Endowment/Wakf
/Government etc., as the case may be, and consequently deprive
to these institutions the rights in properties claimed by it. It is the
concomitant grievance that the registration is resulting in litigation
to these institutions.
Therefore, mere registration of document is not conclusive on
the right or title of the property covered by the deed. The right or
title is dependant on the fact situation of each case or dispute and
the substantive law applicable to the lis.
Notwithstanding the legal effect of registration on the
property, the Legislature felt it necessary to provide for measures at
the formalization of transactions by prohibiting these documents
from registration. The amendment through Act 4/1999 did not stand
to judicial scrutiny in view of ratio laid down in Basant Nahatas case
(supra 4).
The Legislature has taken steps to address the mischief of illegal
transactions through unauthorised registration of properties held by
Government/Endowment/Wakf and Section 22-A of Act was
introduced through Amendment Act 4 of 1999.
The reasons and objects of the A.P. Amendment Act 19 of
2007 are as follows:
Section 22-A of the Registration Act, 1908 in its application to
the State of Andhra Pradesh has been incorporated by Act 4 of 1999
to empower the Government to notify the registration of such
documents or class of documents as opposed to public policy and to
reject their registration.
The High Court of Andhra Pradesh in W.P. No.14099/2003 &
batch cases issued orders declaring the provisions of Section 22-A
of the Registration Act,1908 inserted by the Registration (Andhra
Pradesh Amendment)Act,1999 (Act 4 of 1999) as unconstitutional
and struck down the said Section 22-A on the ground that the public
policy is not defined precisely, following the judgment of the
Supreme Court of India in case of the State of Rajasthan v. Basant
Nahata (2005(7) Scale 164) wherein Section 22-a of the Registration
Act,1908 in its application to the State of Rajasthan was struck
down.
While striking down the said provision, the Honble Supreme
Court observed as follows:-
The legislature of a State, however, may lay down as to which
acts would be immoral being injuries to the society. Such a
legislation being substantive in nature must receive the legislative
sanction specifically and not through a subordinate legislation or
executive instructions.
The phraseology opposed to public policy may embrace within
its fold such acts which are likely to deprive, corrupt or injurious to
the public morality and thus, essentially should be a matter of
legislative policy.
In order to overcome the deficiencies as observed by the
Honble High Court keeping in view of the observations of Supreme
Court and to avoid the illegal transactions of transfer of property
relating to Government, Religious and Charitable Institutions etc., it
has been decided to amend the Registration Act, 1908 suitably by
specifying the classes of documents prohibiting them from
registration.
It has also been decided to validate the notification declaring a
class of documents as opposed to public policy and consequently
refusal of the same for registration during the period from 01.04.1999
to the date of the commencement of the present Amendment Act by
inserting a validation provision.
Section 22-A reads as follows:
"22-A. Prohibition of Registration of certain documents:-- (1) The
following classes of documents shall be prohibited from registration,
namely:--
(a) documents relating to transfer of immovable property, the
alienation or transfer of which is prohibited under any statute of the
State or Central Government;
(b) documents relating to transfer of property by way of sale,
agreement of sale, gift, exchange or lease in respect of immovable
property owned by the State or Central Government, executed by
persons other than those statutorily empowered to do so;
(c) documents relating to transfer of property by way of sale,
agreement of sale, gift, exchange or lease exceeding (ten) 10 years in
respect of immovable property, owned by Religious and Charitable
Endowments falling under the purview of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act,
1987 or by Wakfs falling under the Wakfs Act, 1995 executed by
persons other than those statutorily empowered to do so;
(d) Agricultural or urban lands declared as surplus under the Andhra
Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or
the Urban Land(Ceiling and Regulation) Act, 1976;
(e) Any documents or class of documents pertaining to the properties
the State Government may, by notification prohibit the registration in
which avowed or accrued interests of Central and State Governments,
Local Bodies, Educational, Cultural, Religious and Charitable
Institutions, those attached by Civil, Criminal, Revenue Courts and
Direct and Indirect Tax Laws and others which are likely to adversely
affect these interest.
(2) For the purpose of clause (e) of sub-section (1), the State
Government shall publish a notification after obtaining reasons for and
full description of properties furnished by the District Collectors
concerned in the manner as may be prescribed.
(3) Notwithstanding anything contained in this Act, the registering
officer shall refuse to register any document to which a notification
issued under clause (e) of sub-section (1).
(4) The State Government either suo motu or on an application by any
person or for giving effect to the final orders of the High Court of
Andhra Pradesh or Supreme Court of India may proceed to denotify,
either in full or in part, the notification issued under sub-section (2)."
The presumption is that the State Legislature has knowledge
of existing provisions in the Act, rigour of Section 17(1) of Act and
the law declared by the Honble Supreme Court and this Court.
Through the amendment, the Legislature prescribes prohibition on
registration of a few classes of documents of properties held by
institutions referred to therein. The prohibition from registration as
per the scheme of Section 22-A is preceded by inclusion
and preparation of list of properties for prohibition from registration
and communicate the list to the Registration Department.
The registration of a document covered by property in the list
is prohibited on the ground that the property covered by
document belongs to Government/Endowment/Wakf etc., and the
transaction covered by the document is illegal.
Now, let me first examine the scope and meaning of Section
22-A (1) (a) to (d) of the Act and whether to prohibit registration, a
notification under Section 22-A(2) is required. The courts of law
while interpreting a statute, on the legal maxim ut res magis valeat
quam perea, expression of Legislature is constructed in such a
manner so as to make expression effective and literal meaning is
ascertained and effect given to. The first principle of construction of
a statute is to literally construe the section and give meaning to all
the words used in the sections. By such construction of Section 22-
A, the prohibition contemplated under Section 22-A of Act has the
following facets.
Sub-section (1) of Section 22-A: prohibits registration of
documents refer in clauses a to e of Sub Section (1) of Section
22-A of Act.
(a) Prohibits registration of a document the alienation of
which is prohibited under any statute of State or
Central Government.
(b) Prohibits registration of documents relating to
transfer/lease of immovable property owned by State
or Central Government, except by persons statutorily
empowered to do so.
(c) Prohibits registration of documents relating to transfer of
immovable property owned by Religious/Charitable
Endowments or by Wakf falling under the Wakf Act,
1995, except by persons statutorily empowered do so
do.
(d) Prohibits registration of document of surplus
agricultural/urban ceiling lands.
(e) Prohibits registration of documents where the
State/Central Government or Religious/Charitable
Institutions have avowed /accrued interest.
Section 22-A of the Act provides for two types of situations viz.
section 22-A sub-Section (1) clauses (a) to (d) and Section 22-
A(1)(e) r/w sub-Section (2). Section 22-A(1)(e) is intended to deal
with or cover the cases not included in clauses (a) to (d) of Section
22-A (1) of the Act. It is in this context the prohibition of registration
under Section 22-A(1)(e) is made dependent on issuance of
notification by the Government. Sub section (2) of Section 22-A
begins with the words for the purpose of clause (e) of sub-Section
(1) the State Government shall publish notification..
In interpreting or construing a statute, the obvious and safe tool
would be to ascertain the literal meaning of the words in Section.
The first principle of interpretation is applied to interpret the plain
meaning of Section 22-A(1)(e) r/w sub-Section(2) and the
requirement of a notification is a pre-condition for the cases
covered by clause (e) of Section 22-A (1) of the Act but not for the
cases covered by Section 22-A (1) (a) to (d) of the Act. Further, the
difference of language and meaning in these two distinct situations
can be explained as follows:
Section 22-A (1)(a) prohibits registration of such document,
the alienation or transfer of which is prohibited under any statute of
the State or Central Government. The basis for prohibition from
registration is that the transfer of such property is prohibited by a
Statute of the State or Central Government. The registering
authority is brought under the obligation to prohibit registration of a
document, the transfer of such property is already prohibited under
a statute of the State or the Central Government. In other words,
22-A(1)(a) prohibits registration of a document, the transfer of such
property is prohibited by the statute. Illustration can be taken from
the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act,
1977. Sections 3, 4 and 5 of Act 9/1977 reads as follows:
Section 3: Prohibition of transfer assigned lands:-
(1) Where before or after the commencement of this Act any land has
been assigned by the Government to a landless poor person for
purpose of cultivation or as a house site then, notwithstanding to
the contrary in any other law for the time being in force or in the
deed to transfer or other document relating to such land, it shall
not be transferred and shall be deemed never to have been
transferred; and accordingly no right or title in such assigned land
shall vest in any person acquiring the land by such transfer.
(2) No landless poor person shall transfer any assigned land, and no
person shall acquire any assigned land, either by purchase, gift,
lease, mortgage exchange or otherwise,
(3) Any transfer or acquisition made in contravention of the provision
of sub-section (1) or sub-section (2) shall be deemed to be null
and void.
(4) The Provisions of this section shall apply to any transaction of the
nature referred to in sub-section (2) in execution of a decree or
order of a civil court of any award or order of any other authority.
Nothing in this section shall apply to an assigned land which was
purchased by a landless poor person in good faith and for valuable
consideration from the original assignee or his transferee prior to the
commencement of this Act and which is in the possession of such
person for purposes of cultivation or as a house site on the date of
such commencement.
Section 4: Consequences of breach provisions of Section 3:-
(1) If in any case, the District Collector or any other officer not below
the rank of a (Mandal Revenue Officer) authorized by him in this
behalf, is satisfied that the provisions of sub-section (1) of Section
3, have been contravened in respect of any assigned land, he
may, by order-
(a) take possession of the assigned land, after evicting the person in
possession in such manner as may be prescribed; and
(b) restore the assigned land, other than those lands/areas as may
be notified by the Government from time to time in public interest
and for public purpose-
(i) to the original assignee if he or she is eligible as per the
norms fixed in this behalf, as on the date of restoration for
one time; or
(ii) assign to other eligible landless poor person:
Provided that where the original assignee or his legal heir, after the
first restoration transfers the assigned land, the land shall be
resumed for assignment to the other eligible landless poor;
Provided further that if no eligible landless poor persons are
available in the village/area, the resumed land will be utilized for
public purpose.
Section 5: Prohibition of Registration of Assigned Lands:-
(1) The District Collector or any other officer, not below the rank of
a Mandal Revenue Officer authorized by him in this behalf, shall
within 45 (forty five) days from the date of commencement of the
Andhra Pradesh Assigned Lands (Prohibition of Tranters)
(Amendment) Act, (2007) furnish to the Registering Officer
having jurisdiction over the area a list of lands assigned to the
landless poor persons with all particulars of assignment and
further furnish such particulars of new assignment forthwith.
(2) Notwithstanding anything in the Registration Act, 1908, no
Registering Officer shall accept for registration of any document
relating to the transfer of or creation of any interest in any
assigned lands as furnished in the list under sub section (1).
[
Section 22-A(1)(b) contemplates prohibition of registration of
document transferring property by way of sale etc. of immovable
property owned by the State or Central Government, except when
the document is executed by persons statutorily empowered to
register on behalf of the State. The prohibition of registration of such
documents is attracted because the document is presented by
unauthorized person. The immovable property belonging to the
State or Central Government at times is required to be transferred
by way of sale, lease etc. to individuals/Institutions and if absolute
prohibition on registration of transfer of this class is prescribed, then
an anomalous situation arises in dealing with the property of State
or Central Government. In these types of cases, the State and
Central Governments are merely required to inform the properties
owned by the State or Central Government and the details of
persons empowered to transfer on case to case basis or by
designation of office. The interpretation or understanding of this
clause presents no difficulty.
Likewise, Section 22-A (1)(c) deals with the properties of
religious charitable, endowments covered by the A.P.Charitable
and Hindu Religious Institutions and Endowments Act 1987, or by the
Wakfs falling under the Wakf Act 1995. The section prohibits
registration of documents relating to transfer of property of the
institutions, except by persons statutorily empowered to do so.
Under these enactments, the properties belonging to religious
endowment or charitable endowment and/or wakf properties are
defined. As is explained while interpreting Section 22-A(1)(b), the
properties held by these institutions are transferred by way of sale,
lease etc., in the interest of administrating the respective institutions
by persons authorized in this behalf. If absolute prohibition of very
registration of properties belonging to the institutions is provided for,
then the remedy through amendment causes more complication
than the mischief sought to be remedied through amendment.
Therefore, the prohibition in Section 22-A (1) (c) is restricted to
execution of sale, agreement of sale etc. by unauthorized persons
of properties belonging to the institutions. The list of properties
maintained in respect of each one of the institutions and persons
authorized to transfer are to be communicated to the
Sub-Registrar for the purpose of Section 22-A (1)(c). In such cases,
communication of list of properties held by an institution or persons
authorized is sufficient and as and when a document concerning
the property included in the list is presented for registration, the
registering officer will have to examine whether the document is
executed and presented by a person authorized in this behalf or
not and proceed accordingly in the matter.
Similarly, Section 22-A (1) (d), in view of the vesting of ceiling
surplus lands in State prohibits registration of documents of
properties so vested in State under the ceiling laws. The
Government is required to communicate the list of ceiling surplus
lands stood vested in State under the respective enactments to the
Sub-Registrar for the purpose of Section 22-A (1) (d) of the Act.
On the contrary, Section 22-A(1)(e) of the Act envisages
different contingency for consideration. The distinction between
Section 22-A (1) (a) to (d) and Section 22-A (1) (e) read with 2 of the
Act is clear and discernable. Section 22-A (1)(e) provides for
prohibition of registration of documents covered by clause (e) of
Section 22-A(1), however prohibition is subject to publication of a
notification by the State Government. Therefore, to understand the
meaning of prohibition under Section 22-A(1)(e), one has to read
clause (e) together with Section 22-A(2) of the Act. A plain reading
of Section 22-A (1)(e) provides prohibition of registration of
documents or class of documents pertaining to the properties for
which the State Government published notification. In these
properties, the Central or State Governments, local bodies etc.
should have avowed or accrued interests. Therefore, Section 22-
A(1)(e) covers prohibition of registration of document of notified
property in which the Central or State Government etc., have
avowed or accrued interest and to that effect a notification is
published by the State Government, according to the details
furnished by the District Collector. The words avowed or
accrued mean as follows:
Avowed: That has been asserted, admitted or stated publicly.
Openly declared or publicly acknowledged.
Accrued: If something accumulates over a period of time.
Section 22-A(1)(2) prescribes the procedure for issuing a
notification viz., after obtaining reasons and full description of
properties furnished by the District Collectors concerned in the
manner as may be prescribed. A notification in common English
means and implies a formal announcement of a legally relevant
fact and in the event of a statute speaking of a notification being
published in the official gazette the same cannot but mean a
notification published by the authority of law in the official gazette.
It is on formal declaration and publication of an order and shall
have to be in accordance with the declaration polices of the
statute.
Under Section 22-A(1) (e), the prohibition of registration is
attracted to cases where the State/Central Government etc., are
stated to have avowed or accrued interests and a notification is
issued. On the other hand, if the requirement of Section 22-A(2) is
extended to sub-Section (1)(a) to (d) of 22-A, then the effect would
be that the Sub-Registrar prohibits from registering document not by
reference to prohibition on transfer of property in a in statute of
State or Central Government etc., but a notification with reasons
and full description of property is published under sub-Section (2).
In the same manner, the State or Central Government, being the
owners, are required to furnish the list to the Sub-Registrar to prohibit
registration of documents, except by persons authorized to transfer
in this behalf. When the requirement of Section 22-A (2) is extended
to Section 22-A (1)(b), then though being the owner the State or
Central Governments still requires notification under the Act to
prohibit registration. By further extending this illustration to religious,
endowment or charitable Institutions, the property of these entities is
taken care by the provisions of the A.P. Charitable and Hindu
Religious Institutions and Endowments Act 1987 as well as the Wakf
Act, 1995. The list of properties held by the institutions is
communicated to Sub-Registrar to apply Section 22-A(1)(c) of the
Act. The properties prohibited by Section 22-A (1) (a) to (d) are not
properties where these entities claim avowed or accrued interest,
but claim proprietary rights in law and by record. For prohibiting
registration of documents for the properties already held by an
institution, a notification for any purpose is a surplusage. A particular
immovable property is treated as a property belonging to an
institution under an act, grant etc. The insistence upon notification
to prohibit registration of properties belonging to religious
endowment or wakf property negates the plain meaning of Section
22-A (1) (c) of the Act. Likewise, ceiling surplus (agriculture/urban)
stood vested in the Government and by communicating the list of
such properties, the Government informs details of surplus ceiling
land to the Registration Department. By insisting upon notification
for all the instances covered by 22-A(1)(a) to (d), this Court would
be firstly defeating the very purpose of A.P. Amendment Act 19 of
2007 and the mischief is sought to be prevented by the Legislature.
For the situations covered by Section 22-A (1)(a) to (d), in my
considered view, no notification under sub-Section (2) of Section
22-A is required for prohibiting registration of documents covered by
these sub sections. Therefore, for the reasons stated supra, I am in
agreement with the conclusion or ratio laid down in Guntur City
Housing Construction Cooperative Societys (supra 5) and
P.Srinivasulus case ( supra 6). Point No.i is answered accordingly)
Point No.ii:
The answer to this point does not obviate the tiring situations
presented in adjudication by the writs filed complaining inaction
under Section 22-A of the Act. The sweeping effect of prohibition
under Section 22-A of the Act is required to be examined by first
adverting to special enactments viz., the A.P. Charitable and Hindu
Religious Institutions and the Endowments Act, 1987 (for short the
Endowments Act) and the Wakf Act, 1995 to interpret and construe
the relevant words under Section 22-A of the Act.
In this batch of cases challenge to Section 22-A of the Act
is not laid, but complaint centers round by manner of operating
Section 22-A of the Act. Bearing in mind the prayer and pleadings
of parties, the other legal issue is taken up for consideration.
The Endowment Act:
Under Section 2(3), charitable endowment, means all
property given or endowed for any charitable purpose.
Explanations I and II to the said section reads as follows:
Explanation I: - Any property which belonged to or
was given or endowed for the support or maintenance of a
charitable institution or which was given, endowed or used
as of a right for any charitable purpose shall be deemed to
be a charitable endowment within the meaning of this
definition, notwithstanding that before or after the
commencement of this Act, the charitable institution has
ceased to exist or ceased to be used for any charitable
purpose or the charity has ceased to be performed.
Explanation II: - Any Inam granted to a service holder or to
an employee of a Charitable Institution for the performance
of any charity or service in connection with a charitable
institution shall not be deemed to be a personal gift to the
service holder or to the employees notwithstanding the
grant of ryotwari patta to such service holder or employee
under the Andhra Pradesh (Andhra Area) Inams (Abolition
and Conversion into Ryotwari) Act, 1956, but shall be
deemed to be a charitable endowment.
Section 2(22) defines religious endowment reads as follows:
Religious endowments means property (including movable
property) and religious offerings whether in cash or kind,
given or endowed for the support of a religious institution or
given or endowed for the performance of any service or
charity of a public nature connected therewith or of any
other religious charity; and includes the institution
concerned and also the premises thereof.
Explanation I:- All property which belonged to or was given
or endowed for the support of a religious institution, or
which was given or endowed for the performance of any
service or charity of a public nature connected therewith or
of any other religious charity shall be deemed to be a
religious endowment within the meaning of this definition,
notwithstanding that, whether before or after the
commencement of this Act, the religious institution has
ceased to exist or ceased to be used as a place of religious
worship or instruction or the service or charity has ceased
to be performed.
Explanation II:- Any Inam granted to an archaka, service
holder or other employee of a religious Institution for the
performance of any service or charity in connection with a
religious institution shall not be deemed to be a personal gift
to the archaka, service holder or employee, notwithstanding
the grant or ryotwari patta to an archaka, service holder or
employee under the Andhra Pradesh (Andhra Area) Inams
(Abolition and Conversion into Ryotwari) Act, 1956, but
shall be deemed to be a religious endowment.
Section 2(25) deals with specific endowment and reads as
follows:
Specific Endowment means any property or money
endowed for the performance of any specific service or
charity in a charitable or religious institution or for the
performance of any other charity, religious or otherwise.
Explanation I:- Two or more endowments of the nature
specific in this clause the administration of which is vested
in a common trustee or which are managed under a
common scheme settled shall be construed as a single
specific endowment for the purpose of this Act.
Explanation II:- Where a specific endowment attached to
charitable or religious institution is situated partly within the
State and partly outside the State, control shall be
exercised in accordance with the provisions of this Act over
the whole of the specific endowment provided the charitable
or religious institution is situated within the State.
Chapter III of the Endowments Act deals with administration
and management of Charitable and Hindu Religious Institutions and
Endowments.
Section 14 refers to vesting of all properties in the institution or
endowment all properties belonging to, or given or endowed to
a charitable or religious institution or endowment shall vest in the
charitable or religious institution or endowment, as the case may
be.
Chapter X deals with alienation of immovable property and
resumption of inam lands. Reference to Sections 80 and 81 would
be sufficient for understanding of the scheme of the Endowments
Act, which reads as follows:
Section 80:
Alienation of immovable property: 1(a) Any gift, sale,
exchange or mortgage of any immovable property
belonging to or given or endowed for the purpose of any
charitable or religious institution or endowment shall be
null and void unless any such transaction, not being a gift,
is effected with the prior sanction of the Commissioner.
(b) The Commissioner, may, after publishing in the
Andhra Pradesh Gazette the particulars relating to the
proposed transaction and inviting any objections and
suggestions with the respect thereto and considering all
objections and suggestions, if any received from the
trustee or other person having interest, accord such
sanction where he considers that the transaction is
i) prudent and necessary or beneficial to the
institution, or endowment;
ii) in respect of immovable property which is
uneconomical for the institution or endowment to
own and maintain; and
iii) the consideration therefor is adequate and
proper.
(c) Every sale of any such immovable property sanctioned
by the Commissioner under clause (b) shall be effected
by tender-cum-public auction in the prescribed manner
subject to the confirmation by the Commissioner within a
period prescribed:
Provided that the Government may, in the interest
of the institution or endowment and for reasons to be
recorded therefor in writing, permit the sale of such
immovable property, otherwise than by public auction.
Provided further that the Government may
purchase the lands situated in Scheduled Areas
belonging to institutions or endowments, wherever
necessary, otherwise than by public auction and assign
such lands to the members of the Scheduled Tribes.
Section 81:
Invalidation of unuthorised sale:- where before the
commencement of this Act, any sale exchange, or
mortgage of any immoveable property belonging to any
charitable or religious institution or endowment is effected,
without the prior sanction of the Commissioner or
Government such transaction shall be null and void and
shall be deemed never to have been effected and
accordingly no right or title in such property shall vest in
any person acquiring the property by such transaction and
any such property shall be deemed to the property of the
institution or endowment concerned and any person in
possession of such property shall be deemed to be an
encroacher and thereafter the provisions of Sections 84
and 85 shall apply.
Section 143 deals with application of limitation of the
Endowments Act to the property held by a charitable religious
institution or endowment and the same reads as follows:
Section 143: Property of charitable or religious
institution or endowment not to vest under the law of
limitation after commencement of this Act:-
Nothing in any law of limitation for the time being in
force shall be deemed to vest in any person the property or
funds of any charitable or religious institution or endowment
which have not vested in such person or his predecessor in
title before the 30th September, 1951, in the Andhra Area of
the State and the 26th January, 1967 in the remaining area
of the State.
Section 151 provides for bar of jurisdiction as follows:
No suit or other legal proceeding in respect of
administration of management of an institution or
endowment or any other matters of dispute for determining
or deciding for which provision is made in this Act shall be
instituted in any Court of Law except under and in
conformity with the provisions of this Act.
Chapter XI deals with encroachments and removal of
encroachments before the Tribunal constituted under the Act.
The Wakf Act, 1995 provides comprehensive and self-
contained provisions as regards wakf or Administration and
Protection of Wakf property.
Section 3(r) deals with wakf and is defined as follows:
Waqf means the permanent dedication by any person, of any
moveable or immovable property for any purpose recognized by
the Muslim law as pious, religious or charitable and includes
(i) a wakf by user but such wakf shall not cease to be a
wakf by reason only of the user having ceased
irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by
any other name entered in a revenue record;
(iii) grants, including mashrut-ul-khidmat for any
purpose recognised by the Muslim law as pious,
religious or charitable; and
(ivi) a wakf-alal-aulad to the extent to which the property
is dedicated for any purpose recognised by Muslim
law as pious, religious or charitable, provided when
the line of succession fails, the income of the waqf
shall be spent for education, development, welfare
and such other purposes as recognized by Muslim
law; and waqif means any person making such
dedication;
Chapter II provides for Survey of Auqaf and sections thereof
deals with preliminary survey of Auqaf, publication of list of Auqaf,
disputes regarding Auqaf, power of tribunal to determine dispute
regarding Auqaf etc.
Chapter VIII deals with judicial proceedings and Section 107
of the Wakf Act exempts application of the Limitation Act (Act
36/1983) from application to any suit for possession of immoveable
property from a third party.
Section 104 A deals with prohibition of sale, gift, exchange,
mortgage or transfer of waqf property and the same reads as
follows:
(1) Notwithstanding anything contained in this Act or any
other law for the time being in force or any waqf deed, no
person shall sell, gift exchange, mortgage or transfer any
moveable or immoveable property which is a waqf
property to any other person.
(2) Any sale, gift, exchange, mortgage or transfer of property
referred to in sub-section (1) shall be void ab initio.
In addition to the above enactments intended to protect the
properties of Government/Institutions, a few enactments are in
force providing for sufficient safeguard to protect the property viz.,
1. The A.P. Land Encroachment Act, 1905
2. The Andhra Pradesh Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973
3. The Urban Land (Ceiling and Regulation)
Act, 1976
4. The A.P. Land Grabbing (Prohibition) Act,
1982
From the conspectus of the Endowments Act/Wakf Act, it is
abundantly clear that the Legislature has stepped in and made
legislation for administration /protection of properties belonging to
charitable or religious institutions, endowment, wakf etc., granted
exemption from application of the provisions of the Limitation Act
for recovery of possession of immoveable property or any interest
from a person in possession of the properties belonging to
Endowment/Wakf, as the case may be. Even assuming registration
of a document is completed by strangers, the institution/wakf being
a third party/stranger to the registered deed can either challenge
such deed or defend its right de hors registration. It is in such lis the
dispute on title or entitlement is decided according to law. The
same principle applies to State/Central Government vis--vis the
properties claimed by it. But by construing Section 22-A of the Act
as conferring authority for prohibition of registration of documents
on the details furnished by State/Authorities the Registration
Department is refusing to receive much less register a document
coming under Section 22-A of the Act. Section 22-A is inserted
through the Amendment Act and the principle application for
registration are well established.
In M.K.Ranganathan and another Vs. Government of Madras
and others , it is held that:
The statement of objects and reasons is certainly not admissible as
an aid to the construction of a statute. But it can be referred to for the
limited purpose of ascertaining the condition prevailing at the time which
actuated the sponsor of the Bill to introduce the same and the extent
and urgency of the mischief which he sought to remedy.
The statement of objects and reasons of Amendment Act,19
of 2007 mentioning the effect of Basant Nahatas case(supra 4)
and to overcome the illegalities pointed therein and with a view to
avoiding illegal transactions of transfer of property relating to
Government, Religious Charitable Institutions etc, provided for
prohibition for registration of classes of documents specified therein,
section 22-A of the Act is introduced. This Court is conscious that
while interpreting or construing a statute/section, the Court should
not perform the job of legislation. But if the statute or section
presents difficulties which could not be smoothened through first
principles, then the Court interprets to preserve the statute or
section, by giving appropriate meaning to the words presenting
difficulties.
Learned author Vepa P.Sarathi in his Interpretation of
Statutes (Fifth Edition) at page 7, writes as under:
I am the Parliamentary Draftsman.
I am undoubtedly the cause.
And of half the countrys litigation.
I compose the countrys laws.
It is further observed that:
But sometimes, there is obvious ambiguity in the
meaning of a statute either because of the poverty of the
language of draftsman or want or imagination in not providing for
conceivable situations or due to an inept use of language. Lack
of legislative simplicity or clarity leads to interpretative complexity
and confusion
In Hilder v Dexter, Lord Halsbury as Lord Chancellor said:
I have more than once had occasion to say that in
construing a statute I believe the worst person to construe is the
person who is responsible for its drafting. He is very much disposed
to confuse what he intended to do with the effect of the language
which in fact has been employed. At the time he drafted the statute,
at all events, he may have been under this impression that he had
given full effect to what was intended, but he may be mistaken in
construing it afterwards just because what was in his mind was what
was intended, through, perhaps it was not done.
The elucidating and candid observations of Lord Halsbury
aptly apply to interpretation/construction of Section 22-A of the
Act. No attempt is made to discern what the draftsman of Section
22-A would have interpreted/construed the Section, but the
authorities viz., Revenue, Registration, Endowment, Wakf etc., have
expanded the horizons of the application of Section 22-A of the Act
due to incorrect or erroneous interpretation or construction of
Section 22-A of the Act. Through Amendment Act 19 of 2007, the
Legislature would have never intended that to confer on any of the
authorities the power of declaration of a right or claim, much less
adjudication of dispute for the purpose of refusing registration to a
document. Likewise, no judicial review is undertaken to conclude
whether Section 22-A of the Act is a bane or boon in addressing the
mischief of preventing illegal transactions or alternatively opened
up flood gates for premature litigation, adjudication of rights of
institutions etc. under Article 226 of the Constitution of India etc., in
the writ petitions filed complaining refusal to receive or to register a
document. The construction of Section 22-A by the department is
not envisaged by the parent or the amending Act.
The implementation of Section 22-A of the Act and refusal to
register a document from registration on concluded assumption
that the properties included in the prohibitory list belong to
Government etc., resulted in a spate of writ petitions.
The following refusals from registration are challenged under
Article 226 of Constitution of India and found to be illegal and
arbitrary by this Court.
(i) Refusal to register land assigned to Ex-Serviceman
though ten years period prohibiting transfer expired.
(2007 (5) ALT 466)
(ii) Refusal to register on the ground that there is a
Government claim in Revenue records. (2010 (1) ALT 32)
(iii) Refusal to register on the ground that the land is
classified as AWD/DKT as per the Tahsildars
communication. (2011 (1) ALT 474)
(iv) Refusal to register on the ground that the land is
shown as assigned land/cart track in the revenue
records and the petitioner has to obtain clearance
from revenue authorities.(2011 (4) ALT 78)
(v) Refusal to register on the ground that there is a
claim by the Government that the land belongs to
it, in the absence of notification. ( 2011 (4) ALT 82)
(vi) Refusal to register on the ground that there is a
communication by Tahsildar showing the land in the
list of Endowed Lands. (2012 (2) 647)
(vii) Refusal to register on the ground that the land is
shown as AWD and that there is a Notification
under old Section 22-A. (2012 (3) ALT 292)
(viii) Refusal to register on the ground that intimation was
received form the Inspector of Wakfs that the land is
owned by a Wakf. (2012(3) ALT 789)
(ix) Refusal to register on the ground that the land
classified as Pagullasthalam. (2012 (4) ALT 3)
(x) Refusal to register on the ground that there is a
communication to the Tahsildar that the land is
assigned land, within the meaning of Act 9 of 1977.
(2012 (4) ALT 169)
(xi) Refusal to register on the ground that the land is
included in the list of Government properties,
though the Pahanies of the year 1951 and the
Khasra Pahani of the year 1954-55 shows the same
to be patta land.( 2012 (4) ALT 534)
(xii) Refusal to register the land originally allotted on
payment of market value in favour of Cooperative
House Building Society on the ground that the same
is Government land, merely on the basis of
information furnished by Revenue authorities.
(2012 (4) ALT 743)
(xiii) Refusal to register on the ground communication
sent by the Commissioner, Endowments and
Executive Officer of a Trust. (2013(1) ALT 345)
(xiv) Refusal to register on grounds such as land being
assigned land/non-production of NOC from
revenue authorities in relation to land assigned to
Ex-servicemen and Freedom Fighters/land shown as
AWD/land assigned on payment of market value
being treated as prohibited non-alienable/lands
claimed to be religious endowments/lands in
relation to which there are dots in the RSR etc.
(2013 (1) ALT 774)
(xv) Refusal to register on the ground that
communication was issued by Tahsildar stating that
the property belongs to Zilla Parishad-local body.
( 2013(2) ALT 237)
(xvi) Refusal to register on the ground that the land is
classified as AWD and included in the list of
Governments lands furnished by the Tahsildar.
(2013 (3) ALT 168)
(xvii) Refusal to register on the ground that Wakf Board
(which already lost a suit) issued a communication
basing on which Tahsidlar addressed a letter to the
Sub-Registrar.(2013 (3) ALT 443)
(xviii) Gram Panchayat seeking issuance of Section 22-A
Notification on the ground that the plots are in
unapproved layout.( 2013(4) ALT 305)
(xix) Refusal to register on the ground that there was a
communication by the Commissioner, Endowments,
showing the land to be pertaining to a Mutt. (2013(4)
ALT 541)
(xx) Refusal to register on the ground that there is a
communication by the Tahsildar and that there was
a notification under the old Section 22-A (2012 (4) ALT
671)
(xxi) Refusal to register document on the ground of
communication by Tahsildar- Land originally
assigned in 1933 prior to introduction of Non-
alienation Clause on 18.06.1954. (2013 (5) ALT 202).
(xxii) Refusal to register on the ground that the lands
relate to Wakf-Khairathi Inam. (2013 (5) ALT 770)
(xxiii) Refusal to register on the ground that the land is
classified as Gramakantak (village site)(2014(4) ALT
238)
From the reported and unreported decisions in this
behalf, this Court is constrained to take judicial notice of
growing inconvenience to citizens in the registration of
documents, the permeating visible and invisible corruption,
suffered in silence by the citizens arbitrary and unauthorized
preparation of details by the departments concerned. The
net effect of these acts is failure of the rule of law and Article
300-A of the Constitution. From the statement of objects
and reasons or the literal meaning or purposive meaning of
Section 22-A, it can be concluded that Legislature never
intended to derail the procedure or rule of law on proprietary
rights of citizens vis--vis Government/Endowment/Wakf etc.
In G.Satyanarayana v. Government of Andhra Pradesh
and Raavi Satish and others v. State of Andhra Pradesh , my
learned brother Justice C.V.Nargarjuna Reddy considered all legal
issues or claims of right, title etc. in land and immovable property
vis--vis the application of Section 22-A of the Act. The conclusions
and directions in these decisions are comprehensive enough to put
an end to premature writ petitions etc. However, nothing appears
to have happened in mitigating the hardship to litigant public and
refusal to register on assumption of illegality of transaction or
property held by Government etc., is unabated. Such refusal from
registration cannot be justified to mere reference to Act or Special
Act. Refusal to register preceded by unilateral assumption of right
and title is contrary to Article 300-A of the Constitution of India.
Article 300-A of Constitution of India reads as follows:
Article 300-A. Persons not to be deprived of property save by
authority of law.- No person shall be deprived of his property save by
authority of law.
Article 300-A of Constitution, not being a fundamental right,
does not enable a party to challenge the validity of a law under
Article 32 on the ground of contravention of Article 300-A of
Constitution of India, nevertheless, the Court should so interpret a
statute, if possible that the statute or a section shall not have the
effect of depriving a person of his property without authority of law.
The Honble Supreme Court in DLF Qutab Enclave Complex
Educational Charitable Trust v. State of Haryana held that:
Ownership of land, jurisprudentially involves a bundle of
rights one such right is the right to transfer. Such a right of ownership,
having regard to Article 300-A of the Constitution cannot be taken
away same by authority of law.
Before conclusion on the primacy of Article 300-A of
Constitution, the observations of Apex Court in Basant Nahata
(supra 4) are excerpted:
The question can be considered from another angle. A
person may not have any near relative or is otherwise unable to
attend the office of the Sub-Registrar or Registrar within whose
jurisdictions the property is situated. He may even be out of the
country. In the absence of any substantive provisions contained
in a parliamentary or legislative act, he cannot be refrained from
dealing with his property in any manner he likes. Such statutory
interdict would be opposed to ones right of property as envisaged
under Article 300-A of the Constitution.
On the touchstone of Article 300-A of the Constitution of
India, it is examined whether through Section 22-A of the Act, the
authorities are subverting adjudication and prohibiting registration
of a class of documents on assumption that the transaction is illegal.
The nature of right or a holding is firstly a fact in issue and on a
finding on this, issue of law is applied.
The words prohibit from registration or prohibited from
registration under Section 22-A of the Act are interpreted/
construed.
It is an established rule in interpretation/construction of a
statute that the intention and the meaning of law are to be
ascertained by viewing the whole and every part of the Statute.
(See J.C.Colquhoun v. Henry Brooks ).
In Vinod Kumar v. Narain Devi , the Court, while upholding
the High Courts power to entertain a revision against an order
refusing eviction under the Delhi Rent Control Act, on the ground
that an order for recovery of possession in Section 14-A means an
order on an application for recovery of possession, observed:
That of two constructions that one must be preferred which
would uphold the legal and constitutional validity of a
provision.
In State of Gujarat v. Raman Lal , the Court, while holding
that a Panchayat service could be a State service observed:
A court ought not to interpret statutory provisions unless
compelled by their language, in such a manner as would
involve their unconstitutionality because the legislature is
presumed to enact a law which does not contravene the
Constitution.
In State of Karnataka v. Hansa Corpn. , the Karnataka Tax on
entry into local areas for consumption, use or sale therein was
upheld under Articles 301 and 304(a) on this principle:
The court should, as far as possible, avoid any decision or
interpretation of a statutory provision, rule or bye-law which
would bring about the result of rendering the system
unworkable in practice.
One part of a statute must be so construed by another, that
the whole may, if possible stand and that, if it can be prevented, no
clause, sentence or word shall be superfluous, void or insignificant. It
is a sound general principle, in the exposition of statutes regard is
paid to the policy which dictated the Act as well as to the words
used in the Statute.
If any section be intricate, obscure or doubtful, the proper
mode of discovering its true meaning is by comparing it with the
other section(s) and finding out the sense of one clause by the
words or obvious intention of another. Interpretation of Section
should ensure that every string or word ought to have its sound or
meaning .
In Maharaja Sris Chandra Nandy v. Rakhlananda Thakur , it is
held that if there are two possible interpretations, it is the duty of
Court to accept the one which is more reasonable, more consistent
with ordinary practice and less likely to produce impracticable
results.
Further, while interpreting a section introduced through the
Amendment Act, the integrity of Principal Act is preserved by the
Courts. The scheme of the Act, effect of registration, reasons for
striking down Section 22-A as introduced through Act 4 /1999, the
provisions in Special enactments, tribunals for redressal etc., are
already stated in the preceding paras and not stated again,
except to refer that through special enactments, Legislature
provided remedies against illegal transfer of properties and their
effect on the true owner. Through special enactment, these illegal
or transactions are taken care and the transactions, if are not
conforming to the scheme of Act, are held as void.
The Act is concerned with registration of documents.
Through the Amendment Act, 19 of 2007, Section 22-A is introduced
to stem the difficulty from illegal transactions of property of State,
etc through prohibition from registration.
The prohibition from registration of classes of documents as
stated by Section 22-A of the Act is accepted then the prohibition is
preceded by finality to the view of executive on the ownership of
property and such approach is contrary to the view of the Apex
Court in Basanth Nahatas case (supra 4). For immediate
reference, the relevant paras are excerpted:
Finality cannot be attached to decisions of executive when such
things are in exclusive domain of judiciary as stated in State of Kerala
and Others vs. Travancore Chemicals and Manufacturing Co. and
Another [(1998) 8 SCC 188] observing:
"13. Section 59-A enables the Government to pass an administrative
order which has the effect of negating the statutory provisions of
appeal, revision etc. contained in Chapter VII of the Act which would
have enabled the appellate or revisional authority to decide upon
questions in relation to which an order under Section 59-A is passed.
Quasi-judicial or judicial determination stands replaced by the power
to take an administrative decision. There is nothing in Section 59-A
which debars the Government from exercising the power even after a
dealer has succeeded on a question relating to the rate of tax before
an appellate authority. The power under Section 59-A is so wide and
unbridled that it can be exercised at any time and the decision so
rendered shall be final. It may well be that the effect of this would be
that such a decision may even attempt to override the appellate or the
revisional power exercised by the High Court under Section 40 of the
Act as the case may be. The section enables passing of an executive
order which has the effect of subverting the scheme of a quasi-judicial
and judicial resolution of the lis between the State and the dealer."
We are not oblivious of the decisions of this Court laying down the
proposition of law that the statute dealing with fiscal matters and / or
laying down a provision or enforcing the doctrine of social justice
adumbrated in the Directive Principles of State Policy as contained in
Part IV of the Constitution of India ordinarily would not be interfered
with by the superior courts in exercise of their power of judicial review.
The Act is neither a fiscal statute nor deals with any matter falling
under Part IV of the Constitution of India.
[[
Section 22-A if interpreted as permitting prohibition of
registration by reference to the details furnished by the State/
Endowment/Wakf etc., then the prohibition results in a unilateral
decision by the executive or the authority, as the case may be, and
amounts to assumption of ownership in favour of State/Endowment/
Wakf etc., by registration department. Further, the claim or alleged
right of a citizen is denied without recourse to law. The authorities
in the name of prohibiting illegal transactions cannot infringe one of
the rights of ownership viz., right to transfer the property.
The interpretation/construction of the words prohibited from
registration if given literal meaning, then such construction violates
rule of law, for a fact is assumed in favour of Government/
Department etc., on the claim or right covered by the document.
In S.G.Jaisinghani v. Union of India , the Honble Supreme Court on
the rule of law held as follows:
In a system governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined limits.
The rule of law from this point of view means that decisions should be
made by the application of known principles and rules and, in general,
such decisions should be predictable and the citizen should know
where he is,. If a decision is taken without any principle or without
any rule it is unpredictable and such a decision is the antithesis of a
decision taken in accordance with the rule of law. (See Dicey- Law of
the Constitution - Tenth Edition., Introduction ex.). Law has reached
its finest moments, stated Douglas, J. in United States v. Wunderlick
342 U.S.98, when it has freed man from the unlimited discretion of
some ruler.. Where discretion is absolute, man has always
suffered. It is in this sense that the rule of law may be said to be the
sworn enemy of caprice. Discretion, as Lord Mansfield stated it in
classic terms in the case of John Wilkes (1770) 4 Burr. 2528, means
sound discretion guided by law. It must be governed by rule, not by
humour : it must not be arbitrary, vague and fanciful.
The Act at the stage of registration does not consider rival
claims on right, title etc., of parties. Further, under the Act, the
refusal from registration of a document can be for reasons relating
to registration viz., due executions, presence of parties, presentation
of document within the period and other relevant and connected
reasons therewith.
Effect of registration is authoritatively held by the Courts of law
as confining to registration but not the transfer of property. The
adjudication shall be an issue before a Court of law or Tribunal
under Special Acts as, the case may be as and when a lis is
presented.
While implementing Section 22-A of the Act, registration of
document is prohibited by presuming firstly that the document
attracts one circumstance or the other under Section 22-A (1) (a) to
(d) and secondly it is an illegal transfer of property. The ipse dixit
refusal for all purposes amounts to unilateral declaration of right or
title by these departments in themselves.
The Legislature would not have intended to in effectuate the
Principal Act viz., the Act through the Amendment Act 19 of 2007 or
desired to confer on the executive to assume the role of
adjudication while providing the details of properties for prohibition
from registration. The Amendment Act ought not to be a source of
adjudicatory power or for corrupt practices by the departments
against the citizen. The incorrect assumption of authority would
certainly lead to anomalous situation in operating the provisions of
Principal Act (Registration Act).
The registration department/revenue department in preparing
the list of property details for prohibition of registration under Section
22-A of the Act as noticed in the reported/unreported decisions,
are including the details of properties without proper basis, much
less without properly removing the foundation of an adjudication in
respect of the same matter by an authority or Court or much less
removing the claims of third parties. Such inclusion of properties in
prohibition is resulting in refusal of registration of a document and
proceedings under Article 226 of the Constitutional India and a
finding on the entitlement or otherwise is decided in these summary
proceedings.
The scheme under Section 22-A or other provisions in the Act
are not comprehensive to provide for resolution of disputes under
the Act, inasmuch as the remedy of appeal under the Act can at
best consider various circumstances covered by Parts IV, V and VI
of the Act. Certainly the appellate authority under the Act cannot
take up the basis for inclusion of a property in the prohibitory list,
much less adjudicate the claims of parties. If Section 22-A is treated
as an absolute prohibition for registration of documents covered by
the list submitted by Endowment/Wakf/ Government, then in the
considered view of this Court, the lists communicated by the
departments are denying alleged proprietary right of a claimant of
the property without adjudication by a competent Court/Tribunal
and contrary to the procedure stipulated by law.
Act 19 of 2007 should not whittle down or render nugatory
Section 17 of the Act. The mandatory nature of registration of
documents covered under Section 17 and the consequence of
non-registration under Section 49 go to the very fundamental
purposes of the Act. Without enquiry, adjudication, it is now
understood by the respondents that the Sub-Registrar is given
power to refuse registration of a document basing on the list
submitted by the above authorities. For the weighty reasons and
illustration given above, such refusal can be termed as
unconstitutional.
Apart from the hardship or inconvenience noticed in total
prohibition to registration of documents of classes of cases stated
under Section 22-A of the Act, the Court is required to ensure every
word in Constitution of India, other Sections of the Principal Act,
different statutes on transfer of property, special acts are operated.
In the considered view of this Court, the information received
from State Government/Endowments/Wakf etc., under Section 22-A
of the Act is in the nature of caveat of interest of State/Endowment/
Wakf in the property covered by a document presented for
registration. Caveat as defined in Random House Websters
Dictionary of the law is as follows:
1. A warning or caution: admonition.
2. In certain legal contexts, a formal notice of interest in a
matter or property for example, a notice to a Court of Public
Officer to suspend a certain proceeding until the notifier is
given a hearing.
In situations like this, in the considered view of this Court,
meaningful interpretation of words prohibited from registration
and legal requirement of Sections 17 and 49 should be attempted.
By such interpretation of Amendment Act, the integrity or
wholesomeness of principal Act is preserved by the Court. This
Court having regard to the mandatory nature of Section 17 of the
Act and give life to the prohibition contemplated under Section
22-A of the Act considers the case on hand to interpret the relevant
provisions on the principle of conflation of Sections 17 and 22-A of
the Act.
Conflation means: the process or result of fusing items into
one entity; fusion; amalgamation.
The registration of a document is an endorsement by the
department under the Act and the registration of document serves
as a notice to the concerned under the Transfer of Property Act.
Section 22-A of the Act has to be interpreted in a way to
adhere to Rule of law and the scope of principal Act read with
Special Acts. Through special statutes, the prohibition of very
transfer of property belonging to State/Endowment/Wakf is already
provided and protected and the mere registration neither creates
nor takes away from these entities the proprietary rights it holds or
claims.
Therefore, Section 22-A shall be interpreted and operated
by bringing a cordant note of Section 17(1) between Section 22-A
of the Act. The registration endorsement of document covered by
Section 22-A is completed by including the details received by the
registration department on the subject property covered by such
document from State/Endowment/Wakf etc. The inclusion of these
details in registration endorsement puts the purchaser on notice of
such claims and the principle purchaser beware is attracted.
Through such interpretation/construction, harmonious result is
attained of the Act, Special Acts, Rule of Law and Article 300-A of
the Constitution of India. To wit the details of property received
under Section 22-A of the Act, they are made part of registration.
Such interpretation in my view puts end to several anomalies in
registration of documents and controls summary enquiry into issues
at the stage of registration. Finally, it is needless to observe that it is
for the party concerned or institution if need be to work out legal
remedies in accordance with law. Point No.ii is answered
accordingly.
Conclusions and directions:
(1) For the reasons stated supra, this Court is in agreement with
the ratio laid down in Guntur City Housing Construction
Cooperative Societys (supra 5) and P.Srinivasulus case
(supra 6) that a notification is not required for the
prohibition contemplated under Section 22-A(1) (a) to (d)
of the Act and a notification under Section 22-A (2) is
required for the purposes of Section 22-A(1) (e) of the Act.
(2) Refusal to receive or take up a document presented for
registration amounts to abdication of functions assigned to
the Registration Department under the Act.
(3) The Act strikes at the documents, but not at the
transactions. Mere act of registration on legal maxim
nemo dat quod non habet does not transfer or create a
right in favour of a party than what the vendor or
executant possesses.
(4) Total prohibition from registration of a document results in
anomalous situation or in the working of the Registration
Act. Without adjudication of an alleged fact-in-issue
contrary to other applicable enactments on Transfer of
Property amounts to adjudication of disputed claims
through executive fiat and would be contrary to Article
300-A of Constitution of India. Therefore, the words
prohibition for registration or prohibited from registration
are interpreted or construed to mean that the registration
and the caveat of interest or claim for prohibition received
by the Registration Department from Government/
Endowment/Wakf etc. under Section 22-A (1) and (2) of the
Act are endorsed on the document by the Registration
Department, as the case may be. To wit for giving effect
to Section 17(1) and Section 22-A of the Act, the
Registration Department while considering a document
attracting Section 22-A of the Act, registers and endorses
the details or caveat of interest on the property, received
from Government/Endowment/Wakf etc. The registration
along with such endorsement on the document achieves
the object of Prohibition of Registration of a document
under Section 22-A of the Act and puts the purchaser or
beneficiary on notice of such claims.
(5) The notification, even if published and forwarded to
Registration Department, has the same meaning and
purpose as interpreted for Section 22-A (1) (a) to ((d) of the
Act and the details are taken note in the same manner by
including the details of notification in the registration.
(6) The Government/Endowment/Wakf, as the case may be, is
under legal obligation to furnish comprehensive details of
properties held by these entities for all the purposes of
Section 22-A (1) of the Act. The State/Departments shall
follow the procedure prescribed in G.O.Ms.No.1248
Revenue (Reg.I) Department dated 26.09.2007 and furnish
full details of properties to Registration Department within a
period of eight (8) weeks from the date of receipt of
copy of this order to the Registration Department.
The communication impugned can be treated as an
illustrative form of sufficient communication of details of
property and the respondents are directed to further
develop and implement a uniform procedure for
forwarding details by the State/Departments under Section
22-A of the Act to Registration Department.
(7) The authorities under the Endowment Act/Wakf Act are
Trustees/Custodians of properties held by the institutions,
and unfortunately feel satisfied with literal performance of
functions by communicating bare minimum details to the
registration department. The lack of effort in protecting the
properties held by institutions is matter of introspection and
necessary steps are taken in accordance with law on case
to case basis. The recourse to Section 22-A by the
Department is not an effective step in protecting the
properties held by institutions under the Endowment Act/
Wakf .
The Endowment and Wakf Departments are further directed
to make available the details of various properties claimed or held
by the institutions on the websites operated by the Department
within a period of two months from receipt of a copy of this order.
POINT No.iii:
Admittedly as on date the notification dated 15.09.1983 under
the Inams (Abolition and Conversion into Ryotwari) Act, 1956 of the
Inam Deputy Tahsildar, the interest of Mutt is prima facie established
and in spite of order dated 15.09.1983 of Inams Deputy Tahsildar,
if the petitioners so desire, they are at liberty to present the
documents for registration before the Joint Registrar/Sub Registrar/
respondents 3, 4, 5 respectively, for the subject matter of the writ
petitions and the Joint Registrar/Sub-Registrar is directed to receive
the documents and process the same for registration in
accordance with conclusions and directions of instant order. The
Joint Registrar/Sub-Registrar includes the details received from the
5th respondent, in the event documents are taken up for
registration.
Writ petitions are ordered accordingly. No order as to costs.
Miscellaneous petitions pending, if any, in the writ petitions
shall stand closed.
_____________
S.V.BHATT,J
Date: 01.06.2015.
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