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JHARKHAND HIGH COURT
Gautam Kumar Choudhary, J.
Vinod Shankar Jha @ Binod Shankar Jha and Ors. – Petitioners
versus
State of Jharkhand and Ors. – Respondents
W.P.(C) No.3103 of 2020 with W.P.(C) No.2985 of 2020 with W.P.(C) No.3369 of 2020 with W.P.(C) No.3492 of 2020 with W.P.(C) No.7 of 2021 with W.P.(C) No.140 of 2021 with W.P.(C) No.515 of 2021 with W.P.(C) No.518 of 2021 with W.P.(C) No.694 of 2021 with W.P.(C) No.701 of 2021 with W.P.(C) No.732 of 2021 with W.P.(C) No.1006 of 2021 with W.P.(C) No.1426 of 2021 with W.P.(C) No.1544 of 2021 with W.P.(C) No.2358 of 2021 with W.P.(C) No.2846 of 2021 with W.P.(C) No.4118 of 2021 with W.P.(C) No.4498 of 2021 with W.P.(C) No.4766 of 2021 with W.P.(C) No.4882 of 2021 with W.P.(C) No.26 of 2022 with W.P.(C) No.27 of 2022 with W.P.(C) No.29 of 2022 with W.P.(C) No.108 of 2022 with W.P.(C) No.391 of 2022 with W.P.(C) No.535 of 2022 with W.P.(C) No.904 of 2022 with W.P.(C) No.1169 of 2022 with W.P.(C) No.1964 of 2022 with W.P.(C) No.2868 of 2022 with W.P.(C) No.4928 of 2022 with W.P.(C) No.1242 of 2023 with W.P.(C) No.3152 of 2023
Decided on 11.1.2024
(A) Specific Relief Act, 1961 – Sections 31 and 34 – Registration Act, 1908 – Section 83 – Cancellation of sale-deed – Registrar has no power to cancel registered sale deed and State Government cannot by an executive order, confer such a power on Registrar – Existing provisions of Registration Act, do not confer Registrar with power to cancel a document which has been already registered – Even in cases of fraud or forgery, Registration Act does not confer such a power on Registrar to cancel a registered instrument – Under scheme of Registration Act, 1908, Registrar has a power to refuse registration of deed under different provisions of Act, but does not extend to cancellation of it – Scope of scrutiny by registering authority is confined to pre-registration stage and not after document is executed and registered – Power of cancellation can be exercised under Section 31 of Specific Relief Act or same can be declared null and void under Section 34 of this Act in a civil suit by a civil Court – Only power that has been conceded under Section 83 of Registration Act to Registrar, in cases of furnishing false statements, delivering false copies of translations, false personation by executant, is to initiate criminal prosecution against person concerned – Power of cancellation that has been vested by impugned order is beyond scope of Registration Act. (Paras 25, 26 and 36)
(B) Registration Act, 1908 – Section 48 – Annulment of registration – Annulment of registration will entail legal consequences affecting title which had passed on its registration – Under Section 48 of Registration Act, title passes in a property on registration of deed of conveyance witnessing transfer – Whether such a registration was valid or was vitiated by fraud is a triable issue which can be determined only in a civil or criminal proceeding by a Court of competent jurisdiction – In cases where title of an executant of a deed is disputed, based on genealogy or a right of inheritance, same cannot be decided by a Registrar – To confer power of cancellation to Registrar will open floodgates of litigation in such matters – Parallel jurisdiction to Registrar will also engender possibilities of conflicting judgments and orders, compounding and confounding adjudicatory process further. (Paras 28, 29 and 30)
(C) General Clauses Act, 1897 – Section 21 – Registration Act, 1908 – Section 48 – Annulment of registration – Section 21 of General Clauses Act cannot be invoked to annul a quasi-judicial order and that too when an indefeasible right has accrued in favour of a party – Title of executant in property is transferred from the date sale deed is registered, provided executant had title in property – Such indefeasible legal right flowing from a registered instrument cannot be taken away without any statutory basis only by having recourse to Section 21. (Para 32)
(D) Specific Relief Act, 1961 – Sections 31 and 34 – Cancellation of sale-deed – Executant can seek cancellation of a registered instrument on the ground of fraud, by suit filed under Section 31 of Specific Relief Act – In case, where a stranger without any title has executed a sale, such a suit will not lie under Section 31 – Real owner may file suit under Section 34, if his peaceful enjoyment of ownership right is impinged due to the sale – Unless there is declaration by a Civil Court that a deed is vitiated by fraud, a registered deed cannot be cancelled by Registrar. (Paras 34 and 35)
(E) Constitution of India – Article 162 – Registration Act, 1908 – Section 48 – Issuance of circular/executive order – State cannot by recourse to Article 162 of Constitution of India, issue circular/executive order which is in derogation with statutory provisions – Executive power of State Government under Article 162 is co-extensive with legislative power of State legislature – But, in absence of any law, State or its officers in exercise of executive authority, cannot infringe citizen’s rights merely because legislature has power to make law on the subject – Registration of an instrument entails legal consequence affecting legal rights of a citizen – Power of cancellation of such document cannot be permitted by an executive order, as it will be against scheme of statutory provisions as contained in Registration Act, 1908. (Para 36)
Result: Writ Petitions allowed.
The legal judgment clearly establishes that the Registrar does not possess the authority to cancel a registered sale deed under the provisions of the Registration Act, 1908. The power to annul or cancel a registered instrument is not conferred upon the Registrar by the statute, nor can such power be delegated through an executive circular or order issued by the State Government. The scheme of the Registration Act limits the Registrar’s role to the pre-registration scrutiny and the refusal of registration under specific provisions, but it does not extend to post-registration cancellation of a deed, even in cases involving fraud or forgery (!) (!) (!) (!) .
Furthermore, the judgment emphasizes that any attempt to annul a registration or to revoke a registered deed must be carried out through a civil suit under the appropriate provisions of law, such as Sections 31 and 34 of the Specific Relief Act, 1961. Such civil proceedings are necessary to determine issues of fraud, title, and validity, and they provide a proper judicial forum for resolving disputes over property rights (!) (!) .
The judgment also underscores that the legal rights acquired through registration, including the transfer of title, are considered indefeasible once the registration is complete, unless annulled or declared invalid by a competent court through proper legal proceedings. The invocation of Section 21 of the General Clauses Act to annul or rescind a registered document or quasi-judicial order is not permissible once an indefeasible right has accrued (!) (!) .
Additionally, the Court held that executive orders or circulars issued without proper legislative backing or in contravention of statutory provisions cannot confer such powers on the Registrar. The executive power of the State, under constitutional provisions, is limited and cannot be used to override or bypass the statutory scheme governing registration and property rights (!) (!) .
In conclusion, the Court ruled that the circular issued by the State Government attempting to confer power of cancellation on the Registrar is unconstitutional and beyond the scope of the law. Consequently, all proceedings and notices initiated under such circular are invalid, and the parties seeking cancellation must pursue their remedies through civil courts. The writ petitions were allowed, and the impugned circular along with all actions taken under it were set aside (!) .
JUDGMENT
State of Jharkhand issued Circular No.16930 by the Secretary, Department of Revenue and Land Reforms, Government of Jharkhand, Ranchi. By this Circular, jurisdiction has been conferred on Deputy Commissioner-cum-Registrar for cancellation/annulment of sale deeds, and in exercise of this power, miscellaneous cases have been registered/notices issued/order of cancellation passed against the petitioners, who have moved this Court for quashing of such cases and notices issued against them.
2. This notification and the consequent miscellaneous proceedings initiated pursuant to it, are under challenge in these writ petitions.
3. In some of writ petitions, the notification has not been challenged, but the legality of the miscellaneous proceeding initiated for cancellation, or the order passed for cancellation by the Deputy Commissioner-cum-Registrar, is under challenge. As they all raise common question with regard to the power of the Registrar to cancel the registered deeds of conveyances, all these writ petitions are heard together and will be disposed of by common order.
4. The common question of law involved is that Registrar has power to cancel a registered instrument and can such power be conferred to cancel registered sale deed, that too by an executive order?
5. Sum and substance of the impugned notification is that in cases where execution of deed of conveyance has been obtained fraudulently by presenting forged document, Registrar shall have power of cancellation of such deeds. Such power can be exercised also, in case of execution of document by an imposter after an enquiry into the matter. Salient features of Circular No.930 dated 21.09.2016
(i) All the complaints of fraudulent registration received by the Department is to be forwarded to the respective District Registrar who shall register the same in the register of complaints relating to fraudulent registration;
(ii) After entering the complaints, the District Registrar shall issue notice to the executant of the documents and witnesses to appear for enquiry along with the complainant and he should also take witness of the registering officer;
(iii) When the enquiry is completed following summary procedure and it is proved that the registration has taken place through impersonation, the District Registrar shall pass orders to that effect recording his findings and issue direction to the concerned registering officer to Lodge FIR against the concerned persons and also to make a note in the index-II of the document which was fraudulently registered to the effect that the registration was annulled as per the proceedings of the district registration, duly noting the details of the proceeding number and the said note shall have the same effect as prescribed under Section 49 of the Registration Act;
(iv) After receiving the order of the District Registrar, the registering officer shall immediately Lodge FIR and make entries as stated above in the index without any loss of time;
(v) The procedure prescribed is only to deal with fraudulent registrations done and it should in no way be construed to mean that registering authority shall go into the issue of deciding the title in case of rival claims on certain basis. District Registrar will concluded the enquiry within three months and if the parties are not appearing then two summons, ex-parte proceedings will be drawn.
6. The main question for consideration in the present case is
I. Can the Registrar cancel a registered instrument on the ground of fraud by impersonation?
II. Can the State Government issue executive order conferring power on a registrar to cancel registered instruments?
Argument on behalf of Petitioner
7. The order of challenge to the said Circular proceeds on the ground that specific provision has been provided for cancellation of sale deed under Section 31 of the Specific Relief Act and it is settled law that sale deed cannot be cancelled by the Registrar without appropriate order under
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