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Rajasthan High Court
Honble DR. AR. LAKSHMANAN, CJ. & RAJESH BALIA, J.
Basant Nahata - Appellant
Versus
State of Rajasthan & Other - Respondents
D.B. Civil Writ Petition No. 3554 of 1999
Decided On : November 28, 2000
The declaration made in Notification Annex./6 that a Power of Attorney authorising a transfer of immovable property which is presented for registration in the office other than the Registrar or the Sub-Registrar within whose jurisdiction the property is situated has to be declared as opposed to public policy and no public policy is involved. Mere execution of a power of attorney does not result in transferring of any immovable property which is mentioned in a Power of Attorney. In whom an executor of power of attorney reposes his trust for delegating his authority to deal with such property cannot be denied by such Notifications in the name of Public Policy. Substantive law permits authorisation in favour of any person to deal with interest mentioned in a power of attorney executed by a person delegating his authority. This right flows from other legislative provisions. Registration Act, which deals with registration of any instrument, whether compulsorily registrable or not, on presentation, is not a legislation dealing with substantive provisions dealing with rights of the persons. The fact that non registration of a document which under law is compulsorily registrable results in consequences having the effect on admissibility of such document in evidence as proof of such transactions or renders the transaction incomplete, cannot inhere in it the authority to provide for delegated authority in favour of any one to impinge upon such substantive right to render the duly executed documents, in accordance with substantive provision of law which do not require registration under law but is offered for registration voluntarily to be ineffective by declaring it against public policy and prohibit its registration to defeat the very object of Registration Act which lends credibility to existence of a document which is registered. In our view Sec. 22-A confers arbitrary powers on the State Government to decide the question whether a particular document executed by a party is against public policy or not. This question cannot be decided by the registering authority, which can only be decided by the courts. This section, in our opinion, gives uncanalised power to decide the question whether a particular document is opposed to public policy or not. It enables the Government to pass an administrative order which has effect of effacing statutory provisions of appeal/revision petition in case the matter is decided by the courts. The quasi judicial or judicial determination of the question stands replaced by the power of make administrative decision. As pointed out by the Supreme Court, the power given to the authorities gives absolute power to declare any document as opposed to public policy and refuse registration on that court. In our view, no finality can be given to such a decision. The effect of Sec. 22-A is that whenever a direction is issued under the said provisions, the statutory right of appeal etc. is taken away and that the section contains no guidelines and gives unbriddled powers to the respondents to act in any manner it feels like. Sec. 22-A enables the Govt. to pass an administrative order which has the effect of effacing the statutory provisions of appeal, revision etc. which would have enabled the statutory authorities to decide upon a question in relation to which, an order under Sec. 22-A is passed. (Para 41)
The legal document discusses the constitutional validity and procedural appropriateness of Section 22-A of the Registration Act as amended by the Rajasthan Legislature, along with related notifications issued under this section. The core issue revolves around whether the powers conferred on the State Government to declare certain documents as opposed to public policy and refuse registration are within constitutional bounds and whether these provisions are reasonable and non-arbitrary.
Key points include: - Section 22-A grants the State Government broad, unregulated authority to declare certain documents opposed to public policy, which results in refusal of registration (!) (!) (!) . - The section delegates legislative power to the executive without clear guidelines, leading to concerns about arbitrariness and violation of the right to equality and fair treatment under the law (!) (!) . - The notifications issued under Section 22-A attempt to restrict registration of powers of attorney based on the duration or the nature of the transaction, such as prohibiting registration of powers of attorney exceeding three years or authorizing transfer outside the jurisdiction, which are considered arbitrary classifications lacking rational nexus with the objective (!) (!) . - The primary contention is that the execution of a power of attorney, being a contractual agency, does not inherently oppose public policy, and restrictions based solely on the form or duration of such documents are unreasonable and arbitrary (!) (!) . - The law of registration aims to authenticate transactions and provide legal certainty, but the impugned provisions and notifications overreach by declaring otherwise permissible acts as opposed to public policy without sufficient legal or rational basis (!) (!) . - The section and notifications effectively interfere with the substantive rights of parties to deal with property, and their broad, unregulated scope violates principles of reasonableness and equality (!) (!) . - The court concludes that Section 22-A, as amended, and the related notifications are ultra vires and unconstitutional because they confer unchecked executive power, are based on vague criteria, and lack necessary guidelines, thereby violating the principles of equality and lawful authority (!) (!) .
Overall, the judgment emphasizes that restrictions on registration must be grounded in clear, rational, and lawful standards, and that delegating such sweeping powers without proper guidelines is unconstitutional. The court directs the registration authority to register the challenged power of attorney, declaring the impugned section and notifications void for violating constitutional principles.
(a) quashing Sec. 22-A of the Registration Act as inserted by the Rajasthan Legislature;
(b) quashing the Notifications Annex. 3,4,6, and 7 issued by the State Government in exercise of the powers u/S. 22-A of the Registration Act.
(c) directing the Sub Registrar to register Power of Attorney dated 16.7.99 which was presented by the petitioner on 30.7.99.
(2). The short facts of the case are as follows:
The petitioner is a resident of Bikaner City. He is the Khatedar tenant of the agricultural lands situated at Chak No. 13 KYD, Square No. 110/24, Killa No. 1 to 25 Bighas, Tehsil Khajuwala District Bikaner. The petitioner appointed one Sukhdeo Singh as Power of Attorney, authorising him to look after his lands, cultivate the lands, deposit the instalments of the land, mortgage or sell the lands, execute the sale deed thereof and get it registered. The petitioner presented the Power of Attorney dated 16.7.99 executed by him in favour of Sukhdeo Singh on 30.7.1999 before the Sub Registrar, Bikaner. He was advised that the Power of Attorney executed by him should be authenticated by the Sub Registrar of the area where the petitioner resides as per the provisions of Sec. 32 and 33 of the Registration Act. The petitioner submitted the Power of Attorney for registration. However, the Sub-Registrar, Bikaner has refused registration on the document making an endorsement. A copy of the Power of Attorney alongwith the endorsement of the Sub-Registrar has been filed alongwith the writ petition marked as Annex./1. As per the endorsement of the Sub Registrar, the document could not be registered by the registering authority as the Govt. Notification dated 26.3.1999 published in the Rajasthan Gazette dated 1.4.1999 as amended by the Notification published in the Rajasthan Gazette dated 22.4.1999 has banned the registration of such documents as opposed to public policy. Copies of the Govt. Notifications issued u/S. 22-A of the Registration Act dated 26.3.1999, and 22.4.1999 have been filed alongwith the writ petition marked as Annex. 2, 3, 6 and 7 respectively. On the basis of these three Notifications, the Inspector General of Stamps & Registration, Ajmer issued a Circular (Annex. 5) to the Registering Authorities on 16.7.1999. The Notification Annex. 2, 3 and 4 have been issued by the State Government in exercise of the powers under Sec. 22-A of the Registration Act, which was introduced in the Registration Act by the Registration (Rajasthan Amendment) Act 1976, which received the assent of the President on 16.2.1976.
(3). Sec. 22-A of the Registration Act reads as under:-
``Documents registration of which is opposed to public policy:
(1) The State Government may by notification in the official Gazette declare that the registration of any document or class of documents is opposed to public policy;
(2) Notwithstanding anything contained in this Act, the registering Officer shall refuse to register a document to which a Notification issued under Sub-Sec. (1) is applicable.
(4). According to Mr. Purohit, the learned counsel for the petitioner, Sec. 22-A of the Act confers arbitrary powers on the State Government to declare registration of any document as opposed to public policy. No guidelines or principles have been provided in this section for the exercise of the powers u/S. 22-A of the Act. Therefore, Sec. 22-A is violative of Art. 14 of the Constitution as it confers unguided and uncontrolled powers on the State Government. In this context, the learned counsel for the petitioner relied on the judgment of the Supreme Court reported in B.B. Rajwanshi vs. State of U.P. and Others (1), in which similar provisions in Sec. 6, sub-clause (4) of the U.P. Industrial Disputes Act was struck down by the Honble Supreme Court as violative of Art. 14 of the Constitution of India.
(5). According to the learned counsel, the Notifications have been issued by the State Government arbitrarily. The Notif
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