Advocates:
MANJEET CHAWLA

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CASE NO.:

Appeal (civil) 7800 of 2001

PETITIONER:

State of Rajasthan & Ors.

RESPONDENT:

Basant Nahata

DATE OF JUDGMENT: 07/09/2005

BENCH:

Ashok Bhan & S.B. Sinha

JUDGMENT:

J U D G M E N T

S.B. SINHA, J:

Constitutionality of Section 22-A of the Registration Act (The Act) as

amended by the State of Rajasthan as also the notifications issued by it in

terms thereof are in question in this appeal which arises out of a judgment

and order dated 28.11.2000 passed by a Division Bench of the High Court of

Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No. 3554 of

1999.

FACTS:

The Respondent herein is a resident of town of Bikaner. He was a

Khatedar tenant of agricultural lands situated at Chak No. 13 KYD, Square

No. 110/24, Killa No. 1 to 25 Bighas, Tehsil Khajuwala, District Bikaner.

He appointed one Sukhdeo Singh as his attorney authorizing him to look

after his lands, cultivate the same and to do all other acts, deeds and things

including mortgage or sell the same, get the requisite deeds and documents

registered, by a deed of Power Of Attorney dated 16.7.1999. The said deed

was presented before the Sub-Registrar, Bikaner on 30.7.1999 for the

purpose of registration which was refused by making an endorsement on the

document that the same could not be registered in terms of the Government

Notification dated 26.3.1999 published in the Rajasthan Gazette dated

1.4.1999 as amended on 22.4.1999 whereby and whereunder registration of

such documents have been prohibited as being ’opposed to public policy’.

The said notifications were said to have been issued by the State of

Rajasthan in exercise of its power conferred upon it under Section 22-A of

the Act.

The Respondent herein questioned the constitutionality of Section 22-

A of the Act as inserted by the legislature of Rajasthan as also the

aforementioned notifications by filing a writ petition before the Rajasthan

High Court.

HIGH COURT:

By reason of the impugned judgment the Rajasthan High Court

declared Section 22-A of the Act as inserted by the Rajasthan Amendment

Act, 1976 being Act No. 16 of 1976 as unconstitutional and consequently

the notifications as contained in annexures 3, 4, 6 and 7 of the writ petition

were also quashed. The Sub-Registrar was also directed to register the

power of attorney dated 16.7.1999 which was presented on 30.7.1999 within

two weeks from the date of presentation of the copy of the order.

The High Court in its impugned judgment, inter alia, held that Section

22-A of the Act confers arbitrary powers on the State Government to

determine as regard declaring a particular document being opposed to public

policy. It was opined that the question as to whether a transaction is

opposed to public policy or not can be determined only by the courts and not

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by the Sub-Registrar. The impugned legislation invades the right of a citizen

to deal with the property and, thus, is wholly arbitrary and unreasonable. The

object of registration of a document is not achieved by the impugned

legislation. The Act deals with the deeds and documents and not

transactions and in that view of the matter non-registration of a document

per se cannot be said to be opposed to public policy.

SECTION 22-A OF THE ACT AND THE NOTIFICATIONS:

Section 22-A of the Act reads as under:

"Documents registration of which is opposed to

public policy \026 (1) The State Government may, by

notification in the Official Gazette, declare that the

registration of any document or class of document

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-secti