Subordinate legislation cannot nullify established judicial interpretations; provisional attachments under GST cease after one year, thus invalidating a registrar's refusal to register sale certificates based on the expired attachment.

ORDER

The challenge in this writ petition is an order dated 17.10.2022 passed by the first petitioner rejecting the request of the petitioner for registration of the Sale Certificate.

2. The petitioner Bank is a secured creditor of the property which was mortgaged in their favour on 19.10.2017. The deed of mortgage was registered as Doc.No.8509 of 2017 before the first respondent. As the mortgagor failed to repay the outstanding amount, the loan account was classified as N.P.A. and action was initiated under the SARFAESI Act. Consequently, the property was sold through a public auction, and a sale certificate was also issued on 09.09.2022.When the sale certificate was presented for registration, the impugned order was passed rejecting the request of the petitioner for registration of Sale Certificate on the sole ground that property was provisionally attached under Sec.83 of the G.S.T.Act on 18.12.2021.

3. Mr. Yogesh Kannadasan, Special Government Pleader takes notice for the first respondent and submits that as per Rule 55-A of the Tamil Nadu Registration Rules, if any property is attached or mortgaged or lease agreement is entered into, the sale deed cannot be registered. Thus, as per Rule 55-A of TamilNadu Registration Rules, a document cannot be presented for registration unless the attachment is raised.

4. Learned counsel appearing for the petitioner would mainly contend that even applying Rule 55-A of the Registration Rules, the so- called provisional attachment has lapsed by operation of law itself. Therefore, according to the counsel for the petitioner, Sec.83 of the G.S.T.Act makes it very clear that any provisional attachment passed under Sec.83 (1) of the Act will continue only for a period of one year and not thereafter. Despite this being brought to the notice of the first respondent, the impugned order came to be passed.

5. Heard the learned counsel appearing for the petitioner, learned Special Government Pleader appearing for the respondents and perused the materials available on record.

6. This Court has encountered with several Writ Petitions challenging the orders of the Registering authority refusing to register the documents or transaction permitted under law. Though the rule 55(A) has not been directly challenged this Court is of the view that when a subordinate Legislation is ex facie found to be in conflict with the provision of the Parent Act and Transfer of Property act as well as constitutional rights, the sub ordinate legislation will have to yield to substantive law governing the field and constitution as pointed out by the Supreme Court in Government of Andra Pradesh vs Lakhsmi Devi 2008 SCC 720 wherein it is held as follows:

“34. In India the grundnorm is the Indian Constitution, and the hierarchy is as follows:

(i) The Constitution of India; (ii)Statutory law, which may be either law made by Parliament or by the State Legislature;

(iii) Delegated legislation, which may be in the form of rules made under the statute, regulations made under the statute, etc.;

(iv) Purely executive orders not made under any statute

35. If a law (norm) in a higher layer in the above hierarchy clashes with a law in a lower layer, the former will prevail. Hence a constitutional provision will prevail over al