Provision of amended section declared as unconstitutional.

S.J. Mukhopadhaya, J.

W.P. No.25407/05 was preferred by the appellants, Capt. Dr.R.Bellie and another for a direction on the respondents to register the pending document Nos. 120/04 and 121/04, both dated 24. 04 and, consequently, hand over the same to the appellants/writ petitioners. In the said case, learned counsel for the appellants referred to a judgment rendered by the Supreme court in the case of State of Rajasthan & Ors. - Vs – Basant Nahata reported in 2005 (4) CTC 606 and a judgment rendered by this Court in W.A. No.1923/05. Learned single Judge, by the impugned order dated 29. 06 passed in W.P. No. 25407/05, without giving any finding on merit, directed the respondents to pass appropriate order.

2. In the present appeal, the main ground taken by the appellant is that the learned single Judge has failed to take into consideration that even before the appellant purchased the property, the title deeds to the property pertain to the years 1983 and 1969 respectively and the said sale deeds were registered by the very same respondents and, thereby, there was no ground to refuse registration or to keep the documents pending.

3. When the case was taken up, learned counsel for the appellant submitted that similar provision like Section 22-A of the Registration Act, 1908 as amended vide Registration (Tamil Nadu Amendment) Act, 1994 has been held to be ultra vires by the Supreme court in the case of State of Rajasthan & Ors. - Vs – Basant Nahata reported in 2005 (4) CTC 606 and G.O. Ms. No.150, Commercial Taxes, dated 29. 00 issued in exercise of power conferred by sub-section (1) of Section 22-A has also been held to be illegal and quashed by a learned single Judge of this Court vide judgment dated 20.3.06 passed in W.P. No.7237/06.

4. In the writ petition, W.P. No.42945/06, the petitioner having challenged the validity of Section 22-A as inserted by Registration (Tamil Nadu Amendment) Act, 1994, both the writ appeal as well as the writ petition were heard together. We mainly heard on the question of legality of Section 22-A (State Amendment), which reads as follows :-

"22-A. Documents registration of which is opposed to public policy. - (1) The State Government may, by notification in the Tamil Nadu Government 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 any document to which a notification issued under sub-section (1) is applicable."

5. Admittedly, no statutory rule or any other provision has been made by the Legislature of the State of Tamil Nadu defining "public policy" or "as opposed to public policy". It is the Executive of the State Government vide G.O. Ms. No.150, Commercial Taxes, dated 29. 00 laid down guideline relating to documents/class of documents "as opposed to public policy", which reads as follows :-

"In exercise of the powers conferred by sub section (1) of Section 22A of the Registration Act, 1908 (Central Act, XVI of 1908), the Governor of Tamil Nadu hereby declares the following documents as opposed to public policy, namely:

1. Any instrument relating to

i) conveyance of properties belonging to the Government or the local bodies such as the Chennai Metropolitan Development Authority or Corporations, or Municipalities, or Town Panchayats, or Panchayat Unions or Village Panchayats; or

ii) conveyance of properties belonging to any religious institutions including temples, mutts, or specific endowments managed by the Hereditary Trustees/Non hereditary trustees appointed to any religious institution under a Scheme settled or deemed to have been settled under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and mutts and temples including specific endowments attached to such of those temples managed by mutts; or

iii) conveyance of properties assigned to or held by

a) The Tami