Section 22-A of the Registration Act, 1908 is unconstitutional as it violates Articles 14 and 246 of the Constitution, with delegate powers not to lie with the Executive.

JUDGMENT :

1. In these matters, the petitioners have challenged the constitutional validity of Section 22-A of the REGISTRATION ACT , 1908, as introduced by the State of Bihar vide the Bihar Amendment 6 of 1991 which has also been adopted by the State of Jharkhand, and the consequential notification issued thereunder being notification No.1132 dated 26.08.2015.

2. Section 22-A of the REGISTRATION ACT , 1908 as applicable in the State of Jharkhand is as under:

“22-A. Registration of documents which is against the 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 against the public policy.

(2) Notwithstanding anything contained in the Act, the Registering Officer shall refuse to register any document to which the notification issued under sub-section (1) is applicable.”

3. Admittedly, similar amendment made in the State of Rajasthan came to be considered by the Supreme Court of India in the case of State of Rajasthan and Others vs. Basant Nahata , (2005) 12 SCC 77.

4. The Supreme Court in the said judgment held that the doctrine of “public policy” is vague and uncertain and there are no guidelines to interpret the same. It held that it is not possible to define “public policy” with precision at any point of time and it is not for the Executive to fill the grey areas as the said power vests in the judiciary. It held that whenever interpretation of concept “public policy” is required to be considered, it is for the judiciary to do so and in doing so, even the power of the judiciary is very limited. It held that what is essentially within the exclusive domain of the judiciary cannot be delegated to the Executive unless the policy behind the same is finally laid down. It rejected the plea raised in that case on behalf of State of Rajasthan that the State, being higher authority, having been delegated with the power of making declaration in terms of Section 22-A of the Act, would not abuse it and held that the provision of Section 22-A is ultra vires Article 14 and Article 246 of the Constitution of India. It also rejected the plea of the State of Rajasthan that it being a policy decision, Court ought not to interfere. It held that a legislative policy must conform to the provisions of the constitutional mandates and that even otherwise, such a policy decision is subject to judicial review.

5. Having regard to the said decision of the Supreme Court, which is binding on this Court, and since the provision considered by the Supreme Court in the said judgment is identical to the provision framed by the Bihar State, which is adopted by the State of Jharkhand, Section 22-A of the REGISTRATION ACT , 1908 as amended by the Bihar Amendment Act 6 of 1991 and as adopted by the State of Jharkhand, as well as the consequential Notification issued under the said provision on 26.08.2015 are struck down and all orders passed by the Sub Registrars or the officials of the Registration Department pursuant to the notification 26.08.2015 shall stand set aside.

6. The writ petitions are allowed only to the extent as stated above and all others issues raised by the petitioners are left open. 7. Pending Interlocutory Applications stand disposed of.