The executive instructions issued by the State Government are contrary to the provisions of the Registration Act, 1908 and are, therefore, illegal and void. The registering officer is not empowered to undertake an inquiry into the legality and validity of the title of the document.

Anant S. Dave, J.

1. All these Letters Patent Appeal under Clause 15 challenge common oral judgments dated 9.5.2012 and 10.5.2012 rendered in three writ petitions namely, Special Civil Application Nos. 14413 of 2011, 14421 of 2011 and 17541 of 2011 filed under Article 226 of the Constitution of India by the petitioners challenging circular dated 8.12.2010 and 7.1.2012 issued by respondents, which according to the petitioners were contrary to law and amounted to imposing undue, unwarranted and illegal restrictions upon the right of the petitioners to have a document registered in accordance with provisions of Section 17 of the Registration Act, 1908 (in short "Act 1908"). In view of controversies with regard to subject petitions and these appeals it is not necessary to record facts in detail but in brief, the petitioners have grievance against respondent authorities especially respondent No. 2 namely, the Sub Registrar of not registering their documents namely sale deed executed by a power of attorney of agricultural land, without the presence of the owner of the said land and for not complying with conditions laid down thereunder. In a case, where there is entire part performance of the contract, as per Section 53-A of the Transfer of Property Act and full sale consideration has been paid and even possession of the property is handed over and an irrevocable power of is also executed seeking mandatory compliance of the conditions laid down in impugned circulars dated 8.12.2010 and dated 7.1.2012, whether could have been issued in exercise of executive powers by respondent No. 1 inasmuch as, circulars are ex facie illegal and contrary to the provisions of Act, 1908 as well as Power of Attorney Act, 1882 (in short "Act 1882").

2. After considering contentions on law raised by the petitioners that circulars impugned are in derogation to the powers conferred under Act 1908 and whittles down and circumscribed provisions of Power of Attorney Act 1882 and, therefore, illegally came to be examined in the context of factual scenario about Power of Attorney himself is executant of the document on behalf of the principal and is entitled to present document as required under Section 33 of the Registration Act. It was contended that barring fulfillment of the requirement under Section 32 and 33 of Act 1908 no other procedure or formality was to be undertaken by such power of attorney who himself is executant of the document to be presented for registration. What is required to be seen by the Sub Registrar or the Registrar as the case may be is whether such document is presented fulfills requirement under the Act 1908 or not. NO other inquiry is envisaged about examining legality and validity of such document by Sub Registrar or Registrar as the case may be in absence of any statutory provision of Act 1908. That contours and parameters of executive powers of the State under Article 162 also came to be examined qua List III (Concurrent) entry No. 6 read with Article 254 of Constitution of India in the context of submissions made by learned AGP findings were given based on reasons contained in paras 14, 15 and 16 of the judgment and was held that plain reading of Article 162 and 254(2) of the Constitution of India would clearly go to show that the power of the State to make law is subject to provision of Article 254(2) and, therefore, when the law which is competent to be made is also subject to Article 254, naturally there is no exemption or immunity on the executive action there from. It is further held that when provision of power of attorney Act 1882 and Registration Act 1908 do not provide for any other requirement, then, additional requirement by way of executive instruction cannot be permitted to be introduced which is an impediment in the way of registration.

Thus, petitions filed by the petitioners came to be allowed by quashing impugned circulars.

3. Mr. P.K. Jani, learned Additional Advocate General appearing for the appellant