The impugned circular and Rule 44(1)(i) were found to be contrary to sections 34 and 35 of the Registration act, 1908 and beyond the legislative competence of the respondents.

JUDGMENT

R.D. Dhanuka, J. - Rule. Mr. D.R. Kale, learned Government Pleader waives service on behalf of the respondents. By consent, Rule made returnable forthwith.

2) By this petition under article 226 of the Constitution of India, the petitioners have prayed for declaration that Rule 44(1)(i) of the Maharashtra Registration Rules, 1961 (hereinafter referred to as 'Rules' for short) is contrary to the Registration act, 1908 and it be struck down. The petitioners have also prayed for quashing and setting aside the impugned circular dated 12.07.2021 issued exercising the power under Rule 44(1)(i) of the Rules.

3) On 30th November 2021 the petitioner No. 1 had presented the sale deeds in respect of plot Nos. 182 to 184 from the land Gat No. 8 situated within the limits of Wadgaon Kolhati Gram Panchayat to Joint Sub-Registrar Class II aurangabad. The Sub-Registrar, however, refused to register the said sale deeds on the ground that the said sale deeds were in violation of circular dated 12.7.2021 and these sale deeds could be registered only upon obtaining permission from the competent authority.

4) On 19th January 2022 the petitioners presented the said sale deeds for registration at the office of assistant Sub-Registrar, Class II, aurangabad. However, the said registering authority also refused to register the said sale deeds on the ground that the said sale deeds were in violation of the impugned circular dated 12.7.2021. The petitioners have thus filed this writ petition for various reliefs.

5) The questions that arise for consideration of this Court is, (i) whether Rule 44(1)(i) of the Rules is in conflict with sections 34 and 35 of the Registration act, 1908 or not, (ii) whether the impugned circular dated 12.7.2021 issued by the respondent No. 3 by exercising power under Rule 44(1)(i) of the Rules is valid and is binding upon the registering authorities/citizen, and (iii) whether the respondent No. 3 had legislative competence to issue such circular contrary to sections 34 and 35 of the Registration act, 1908.

6) Mr. Totala, learned counsel for petitioners invited our attention to sections 34 and 35 of the Registration act and also to Rule 44 (1)(i) of the Rules. Sections 34 and 35 of the Registration act 1908 and Rule 44 (1)(i) of the Rules are extracted as under :-

'34. Enquiry before registration by registering officer.

(l) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

Provided further that, when such document is presented by electronic means, the personal appearance shall not be required.

(2) appearances under sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

Provided that when such document is presented by electronic means, the enquiry shall be done as per the rules made in this behalf.

(4) any application for a direction under the first proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwit