1999 Supreme(Guj) 169

Gujarat High Court
Judgename :A.R.Dave, R.BALIA
GUJARAT URBAN CO-OPERATIVE BANKS FEDERATION - Appellant
Versus
UNION OF INDIA - Respondent
S.C.A. 1929 of 1991
Decided On : 04/06/1999

Headnote:Income Tax Act, 1961 (Central Act 43 of 1961) - Chapter XX-C, Secs. 269-UA to 269-UO - Communication by Appropriate Authority under to Sub-Registrar Govt. of Gujarat to accept documents/instruments relating to any kind of transfer of rights in immovable property duly only when each such doucment is accompanied by NOC issued by his office - Validity of - Scheme in Chapter XX-C under which allege communication is issued clearly suggest that provision under applies only to such transfers where either the entire bundle of rights that is to say ownership rights have been transferred or right to enjoy property or rights in property to the exclusion of those have been transferred - Court in this connection referred to Sub-clause (i) of Clause (f) of Sec. 269-UA and observed that where the transfer lacks in transfer of ownership & also lacks in transferring right of enjoyment of property such transaction does not fall under Sub-clause (ii) of Clause (f) to be considered as transfer for the purpose of Chapter XX-C - Thus it is the apparent nature of documents which is to be considered for the purpose of operating various provisions of Chapter XX-C - Appropriate Authority is therefore, not justified in taking all transfers including mortgages under the definition of transfer under Sec. 269-UA without any inhibition - Mortgages executed in favour of GSFC, GIIC Banks & Co-operative Banks as examplified by Appropriate Authority by their very nature do not suggest transfer of ownership rights or transfer of property by way of sale, exchange or lease as required under Sec. 269-UA(f) for attracting the provisions under Chapter XX-C - Court accordingly held that Appropriate Authority has no authority to limit or enlarge the scope of the statutory mandate that all registering authorities to insist on NOC before the documents referred to therein are registered - Such mandate is confined to only such documents of transfer referred to in Sec. 269-UA(f) - Court held, that impugned direction issued by Appropriate Authority is beyond the scope of Sec. 269UL which obviously has to be in consonance with the entire scheme of Chapter XX-C - Respondent No. 3 & other registering officers of respondent No. 4 elsewhere in the State are therefore, not bound to act upon instructions not to register documents which does not fall within the definition of transfer given in Sec. 269-UA(f) of the Act.

       The scheme clearly suggests that it applies to such transfers where either the entire bundle of rights, that is to say, ownership rights, have been transferred or right to enjoy property or rights in property to the exclusion of those have been transferred. In this connection, we take notice that while under Sub-clause (i) of Clause (f) of Sec. 269UA, modes of transfer include in the definition transfer only sale, exchange or lease, Sub-clause (ii) which deals with the transfer of rights in or with respect to any land or building falls within the definition of purview only if it has the effect either of transferring such property that is to say transferring of such right itself or enabling the enjoyment of those rights by the transferee which were enjoyed by the transferor. Where the transfer lacks in the transfer of ownership and also lacks in transferring right of enjoyment of property such transaction does not fall under Sub-clause (ii) of Clause (f) to be considered as transfer for the purpose of Chapter XX-C.

       [Para 14]

       Section 269UL further lends supports to the conclusion to which we have reached that obligation of the Registrar not to register a document without NOC from the Appropriate Authority depends on what the documet purports to be as it exists. Section 269UL does not use the terminology document which results in transfer of immovable property but uses the phrase documents which purports to transfer immovable property exceeding the value prescribed, that is to say, it is the apparent nature of the documents which is to be considered for the purpose of operating various provisions of Chapter XX-C. If the document apparently purports to transfer by way of sale, exchange or lease of any immovable property defined under Sub-clause (d) of Clause (ii) or purports to transfer rights or enjoyment of such rights as are referred to in Sub-clause (ii) of Clause (d), the provision of Sec. 269UL are attracted but where the document does not purport to be transfer, neither the mandate to the registering officer not to register document without NOC from Appropriate Authority nor the other provisions requiring a decision to order the Central Government to purchase the property at the apparent consideration comes into operation. The scope of inquiry by the Registrar under the various provisions of Chapter XX-C are whether document sought to be registered purports to transfer immovable property within the meaning of Sec. 269-UA.

       [Para 16]

       Thus, viewed from any angle, whether in the light of the definition of transfer, whether in the light of the objects with which Chapter XX-C has been enacted or in the light of the workability of the provisions of compulsory purchase by the Central Government and the statutory mandate with the registering officer to abide by before registering the documents contemplated under the provisions, the Appropriate Authority was not justified in directing the registering officer of the State to withhold registration of mortgages by holding that Chapter XX-C and the definition of transfer under Sec.269UA takes within its sweep all kinds of transfer without any inhibition. It may further be noticed that from the illustration which has been picked up by the Appropriate Authority for pointing out to the registering officer his laxity in not effecting the provisions of Sec. 269UL was misplaced. It has referred to the mortgages executed in favour of the Gujarat State Financial Corporation, Gujarat Industrial Investment Corporation, Scheduled Banks and Cooperative Banks. By the very nature of their business, these institutions are involved in the business of lending money and obtaining mortgages of immovable property to secure repayment of their loans. The question of those transactions being a transaction of transfer of ownership rights or transfer of property by way of sale, exchange or lease does not arise. It would be a flight of imagination to consider GSFC, GIIC, Scheduled Banks or Co-operative Banks obtaining a mortgage of the immovable property surreptitiously to camouflage the transactions of the purchase of the property by these institutions in the garb of executing a mortgage deed. The Apporpriate Authority has no authority to limit or enlarge the scope of the statutory mandate that all registering authorities to insist on NOC before the documents referred to therein are registered. By the very nature of things, the mandate is confined to the documents of transfer referred to in Sec. 269-UA (f) viz. the documents which purport to transfer property by way of sale, exchange or lease for a term not less than 12 years and transfer of right envisaged under Sec. 2 (d) (ii) which results in putting the transferee in the enjoyment of peoperty as was being enjoyed by transferor on account of such rights arising under any agreement and not to any other documents.

       The Appropriate Authority may be justified in drawing attention of the registering authority to the relevant provisions of the Act and may also be justified in securing relevant information relating to the transfers envisaged under Sec. 269-UA (f) but cannot travel beyond it by putting its own interpretation and issuing direction to the registering officer to not to transfer all documents requiring registration under Transfer of Property Act and Registration Act. That must depend on the provisions of the statute which are eloquent in themselves. Any such direction cannot bind the registering officer and even if any such directions are issued, he can be directed to ignore the directions issued to him in the guise of circular dated 17.10.1989 from the Appropriate Authority. Such direction is beyond the scope of Sec. 269UL which obviously has to be read in the context of the entire scheme of Chapter XX-C.

       [Para 16]