-: 1 :-

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 18TH DAY OF MARCH, 2016

PRESENT

THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE,

CHIEF JUSTICE

AND

THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

WRIT PETITION No.18939/2009 (GM-ST-RN-PIL)

c/w

WRIT PETITION No.14050/2012 (GM-ST-RN-PIL)

IN W.P.No.18939/2009

BETWEEN:

1. G. RAMACHAR

S/O GURUMURTHACHAR, AGED ABOUT 60 YEARS, R/AT JOURNALIST & EDITOR,

HAMSALEKHA, KANNADA WEEKLY, NO.62, 4TH CROSS,

(GADDALA HALLI), SANJAYNAGAR, G.M.R. LAYOUT, NEAR RMV HOSPITAL,

BENGALURU-560 094.

2. SACHIVA SREEDHAR S/O LATE N. KRISHNA IYENGAR, AGED ABOUT 60 YEARS,

JOURNALIST AND SOCIAL WORKER, NO.3, 3RD CROSS,

GUNDAPPA STREET, NAGASHETTY HALLI, RMV II STAGE,

BENGALURU-560 094. ... PETITIONERS

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(BY SRI: JAYAKUMAR S.PATIL, SENIOR ADVOCATE FOR V.K. NARAYANA SWAMY, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA,

REP. BY ITS CHIEF SECRETARY

TO GOVERNMENT, VIDHANA SOUDHA, VIDHANA VEEDHI,

BANGALORE-560 001. 2. THE STATE OF KARNATAKA,

REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF

STAMPS & REGISTRATION, M.S. BUILDING, BENGALURU-560 001.

3. THE INSPECTOR GENERAL OF REGISTRATION

AND COMMISSIONER OF STAMPS, NO.720, 46TH CROSS,

JAYANAGAR 8TH BLOCK, SANGAM CIRCLE, SIMSHA BHAVAN, BENGALURU-560 078. ... RESPONDENTS

(BY SRI: M.I. ARUN, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE

IMPUGNED CIRCULAR DT. 6TH APRIL 2009, AT ANX-A ISSUED

BY THE R1, AS ILLEGAL AND UNENFORCEABLE AND ETC.

IN W.P.No.14050/2012

BETWEEN:

1. SRI. H. HEMANTH KUMAR, S/O HONNA NANJAPPA,

-: 3 :-

AGED ABOUT 39 YEARS, R/AT NO.586, HESARAGHATTA,

BANGALORE NORTH TALUK, BANGALORE.

2. SRI. H.V. VENKATESH

S/O VENKATASWAMAIAH,

AGED ABOUT 38 YEARS, R/AT NO.355, HESARAGHATTA,

BANGALORE NORTH TALUK, BANGALORE.

3. SRI. M. SURESH S/O LATE MUNIKRISHNAPPA,

AGED ABOUT 5 YEARS, R/AT NO.60, DASENAHALLI, HESARAGHATTA POST,

BANGALROE NORTH TALUK, BANGALORE. ... PETITIONERS

(BY SRI: M.S. BHAGWAT, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA, REP. BY ITS CHIEF SECRETARY,

M.S. BUILDING, BANGALORE-560 001.

2. THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE,

REP. BY ITS SECRETARY, M.S. BUILDING, DR. AMBEDKAR VEEDHI,

BANGALORE-560 001.

3. THE INSPECTOR GENERAL OF REGISTRATION AND STAMPS, NO.720, “SHIMSHA BHAVAN”,

NEAR SANGAM CIRCLE, 8TH BLOCK, JAYANAGAR,

BANGALORE-560 082. ... RESPONDENTS

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(BY SRI: M.I. ARUN, ADDITIONAL GOVERNMENT ADVOCATE)

*****

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR

THE RECORDS FROM THE RESPONDENTS PERTAINING TO THE

IMPUGNED LETTER DTD.3.4.12 ISSUED BY THE R2 VIDE

ANNEX-A AND THE CONSEQUENT CIRCULAR DTD.3.4.12

ISSUED BY THE R3 VIDE ANNEX-B AND ETC.

THE JUDGMENT IN THESE PETITIONS HAVING BEEN

RESERVED ON 11/09/2015 AND IT BEING LISTED FOR

PRONOUNCEMENT TODAY, NAGARATHNA J., PRONOUNCED

THE FOLLOWING:

O R D E R

These writ petitions are filed in public interest.

We have delinked Writ Petition Nos.7834-7835/2013

from these writ petitions, as those writ petitions are

not public interest litigation. Hence, they would be

heard separately. In essence, they challenge Circular

bearing No.KAME.344.MUNONU/2008 dated

06/04/2009, as being illegal and contrary to law.

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They have also sought a direction to the authorities

in-charge of registration of documents, restraining

them not to apply Circular dated 06/04/2009 at the

time of registration of documents.

2. According to the petitioners, Registration

Act, 1908 (hereinafter, referred to as “the Act”, for

short) is a Central enactment, but the State

Government has passed the Registration (Karnataka

Amendment) Act, 1976 (hereinafter, referred to as the

“Amendment Act” for the sake of brevity) inter alia,

incorporating Section 22A of the Act. The amendment

Act No.55/1976 has received the assent of the

President on 24/05/1976. Section 22A states that 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. Sub-

section (2) of Section 22A states, notwithstanding

anything contained in the Act, the registering officer

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shall refuse to register any document to which a

notification issued under sub-section (1) is applicable.

3. It is contended on behalf of the petitioners

that Section 22A has been struck down by the Hon’ble

Supreme Court in the case of State of Rajasthan vs.

Basant Nahata [2005 (12) SCC 77], when the

Rajasthan Legislature had amended the Act

incorporating Section 22A, which is in pari materia

with the Amendment Act of the Karnataka Legislature.

The impugned Circular dated 06/04/2009, which is

made on the strength of Section 22A of the

Amendment Act, is also illegal, as Section 22A of the

Amendment Act of State of Rajasthan has been struck

down and that Section is in pari materia with the

Amendment Act passed by the Karnataka Legislature.

It is therefore, contended that Circular dated

06/04/2009 prohibiting registration of certain

documents by the Sub Registrar is also illegal, null

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and void. The subsequent Circulars issued under the

strength of Section 22A of the Act are also contrary to

the dictum of the Hon’ble Supreme Court in the

aforesaid case. Therefore, petitioners have sought a

declaration to the effect that Section 22A of the Act,

Circular dated 06/04/2009 and all subsequent

Circulars and Notifications issued pursuant thereto are

null and void. In the above context various other

circulars and letters/communications issued by the

respondent-authorities.

4. Statement of objections have been filed on

behalf of the respondent – State by contending that

the impugned Circular dated 06/04/2009 is not made

pursuant to Section 22A of the Act, but under the

provisions of the respective Central and the State

Acts. That certain Central and State Legislations cast

a duty on the registering authority to verify

documents produced for registration and thereafter, to

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register only those transactions, which are permissible

in law. The impugned circular lists certain transactions

the documentation of which cannot be registered as

they violate various provisions of Central and State

laws. Those laws are Section 21(1) and (4) of the

Registration Act; Sections 28, 34 and 45 A of the

Karnataka Stamp Act, 1957; Rule 3 of Karnataka

Stamps (Prevention of Undervaluation of Documents)

Rules, 1977; Section 131 (c) of the Karnataka Land

Revenue Act, 1964 read with Rule 46(H) of Karnataka

Land Revenue Rules and Section 81-A of the

Karnataka Land Revenue Act, 1964; Section 6 of the

Karnataka Scheduled Caste and Scheduled Tribe

(Prohibition of Transfer of Certain Lands) Act, 1978;

Section 8 of the Karnataka Land (Restriction on

Transfer) Act, 1991; Rule 114(c) sub-rule (2) Paras

(a) and (h) of Income-tax Rules, 1962; Section 192 A,

B and C of Karnataka Land Revenue Act, 1964.

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5. The impugned Circular is therefore, to be

enforced in order to prohibit certain transactions from

being registered as they violate the aforesaid laws.

The Circular is a guideline to the Sub Registrars

throughout the State, who could prevent illegal

transactions being registered. Therefore, it is

contended that the Circular dated 06/04/2009 is in

accordance with law and there is no merit in the writ

petition.

6. We have heard learned counsel for the

petitioners and learned Additional Government

Advocate for the respondent – State and perused the

material on record. They have also submitted their

written arguments and the decisions of the Hon’ble

Supreme Court as well as this Court on which they

rely upon.

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7. We have considered these cases in the

context of challenge to Circular dated 06/04/2009.

8. Before answering the contentions, it would

be useful to extract Section 22A of the Act as under:-

“22A. Documents registration of which

is opposed to 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 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.”

The said section is in pari materia with Section

22A incorporated by the Legislature of State of

Rajasthan to the Act. The impugned Circular dated

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06/04/2009 is issued pursuant to Section 22A of the

Act, English translation of which reads as under:-

“Translated copy:

(From Kannada to English)

(Symbol) KARNATAKA STATE GEZETTE:

Authorized Publication

Special Edition:

---------------------------------------------------------------- Part-I Bangalore, Monday, May, 4th 2009 No.272:

(Vaishakha 14, Sakal Era 1931) ---------------------------------------------------------------

REVENUE SECRETARIAT: CIRCULAR:

No.RD/Mu.No.Mu./2008 BANGALORE: Dated 6th April, 2009.

Sub:- Guidelines in connection to registration

of documents including the transfers of

immoveable properties in accordance with the State and Central Acts in

respect to the registration of document.

-----

The Karnataka State was prohibited the

registration of the documents against to the public

policy brought amendment through including the

provisions of Sec.22-A to the Registration Act,

1908. The said amendment is made as invalid in

the case of Rajasthana State V/s. Basanth Nahata

reported in AIR 2005 S.C. 3402 passed the

judgment by Hon’ble Supreme Court; but certain

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provisions of State and Central laws has given

empower to obtain certain document and

certificates for stopping the violation of provisions

of said Laws and revenue leakage etc. given right

to Registering Officials who assigned under

provisions of Registration Act, 1908.

Even also in view to maintain the rights and

liabilities of public in connection to registration of

documents and also to maintain the Work Police of

Government, the Registering Officers are being

held responsible to prevent in obtaining certain

documents and certificates for the purpose to stop

the violation of the provisions of said laws.

Certain provisions of State / Central laws

holding an effect on the registration of

documents:-

1) Sec. 21(1) and (4) of Registration Act

{explanation as necessary to identify the

property; and to issue its map or plan

(sketch)}

2) Section-28, 34 and 45-A of Karnataka

Stamps Act 1957; read with Rule-3 of

Karnataka Stamps (prevention of

devaluation of documents) Rules, 1977 (to

enter the correct market price of the said

property);

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3) Section-131(C) of Karnataka Land Revenue

Act, 1964; read with Rule-46(H) of

Karnataka Land Revenue Rules, (to issue

survey sketch or land survey map as per

prescribed Form-11-E);

4) Sec. 81-A of Karnataka Land Reforms Act,

1961 (to declare in the prescribed format by

the purchaser as they are agriculturists and

having no excess land and further declare

that they are not exceeded their annual

income of non-agriculture for Rs.2-00);

5) Sec.6 of Karnataka Scheduled Caste /

Scheduled Tribes (PTCL) Act, 1978; (to be

made as land in not involving to the

prohibition alienation/registration);

6) Section-8 of Karnataka Land (prohibition of

alienation) Act, 1991 (To be made as the

land in not involving to prohibition of

alienation/registration);

7) Clause-(A) to (H) of Sub-Rule (2) of Rule-

114(c) of Income Tax Rules, 1962: (To issue

PAN Card Number allotted from the

competent authority of Income Tax

Department or to declare as per Form No.60

and 61, in case if the value of the property is

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come to Rs.5-00 lakhs or more than that; in

respect of transfer of property as per sale)

8) Sec.192A, 192B and 192C of Karnataka Land

Revenue (Amendment) Act, 2007; (To be

made as the land in not involving to

prohibition of alienation i.e. for non

agricultural purpose of agricultural land and

without Government land).

The amendment is brought to the Karnataka

Land Revenue Act, 2007, in making transfer of

agricultural land into non-agricultural purpose

unauthorisedly / for wrongful utilization / illegally,

to prevent the cases in making unauthorized

transfer of Government lands; and for providing

the provisions to impose the fine/punishment on

the persons who made violation of law in this

connection.

By transferring the properties illegally in the

Bangalore City and other Cities in the State are

going the way to inregulated and uncontrolled

developments. So, due to the such type of transfer

of properties illegally, the public cannot be holdings

of legal and good marketable title deeds on their

properties; and even also the innocent-Purchasers

will be suffered by involving into such disputes and

unnecessary transactions in this regard. Especially

some of the mediators and land-swailowers having

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got General Power of Attorney from the property

owners and will be made an agreement of sale in

respect of said properties to the purchaser/s or

written G.P.A. in his favour; and such persons are

selling the properties without giving legal and

absolute title-deeds etc., which is observed by the

Government, in this regard.

Therefore, it is necessary of urgency in

framing guidelines required to be followed for

bringing the clarity in this regard. Hence a

direction has been issued to similar type of

guidelines or instructions along with the consent of

Law Department to prevent the provisions of

Act/violation of such provisions of Law, in view of

Judgments rendered by the Hon’ble High Court of

Karnataka and Hon’ble Supreme Court; and also to

fix the documents as required to get at the time of

registering the documents due to prevent the

opposition and violation of the provisions of Law as

mentioned above; and also for the purpose of

guidance of public who are coming for registration

of documents under the directions issued to the

Inspector General of Registration and

Commissioner of Stamps and also to the

Government in this regard under Order

No.KIC/1267/2008 Dated 5-6-2008 issued by the

Hon’ble Karnataka Information Commission.

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Therefore in view of public convenience and

to implement the State Policy effectively, the

Registering Officer/Sub-Registrar shall take the

documents as enclosed in Annexure-I under the

facts and circumstances at the time of producing

the documents for registration. It is explained in

the Annexure-III in respect of action required to be

taken in following the same from Revenue Officers,

Registering Officer i.e., Sub-Registrars and

Competent Authority at the time of registering such

documents.

In continuation of the same, the Secretary of

Grama Panchayath, Chief Executive Officer of

Taluka Panchayath/TMC/CMC; and Commissioner

of City Corporations etc., are held responsible for

taking suitable action, by conducting verification of

such documents or in such cases if violated any

Act/Rules coming their Jurisdiction in respect of the

documents received by them, after over the such

above-registration. And the concerned Officers

have to maintain Check-Register compulsorily as

specified in Annexure-IV for conducting such

verification in these cases from time to time in this

regard. At the occasion of providing such

documents for registration, if the party does not

produce any one of the document as specified in

Annexure-I; and thereafter the Registering

Officers/Sub-Registrars are required to give notice

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or to inform suitably in this regard; by issuing an

Endorsement as specified in Annexure-V.

It is hereby clarified that the concerned

Officers should be followed all these points without

fail; and also disciplinary action will be taken very

strictly against the Officers who failed to

implementing the guidelines as specified in this

Circular sufficiently in this regard.

Sd/-

(G.S.Narayana Swamy) Secretary to Government; Revenue Department;

(Peril Maintenance)

//True Translated Copy//”

9. It is the contention of the petitioners that

the impugned Circular has been issued pursuant to

Section 22A of the Act. While, learned Additional

Government Advocate has contended that the

impugned Circular is issued pursuant to Section 69 of

the Act, which reads as under:-

“69. Power of Inspector-General to

superintend registration offices and make

rules.- (1) The Inspector-General shall

exercise a general superintendence over all the

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registration offices in the territories under the

State Government, and shall have power from

time to time to make rules consistent with this

Act –

(a) providing for the safe custody of

books, papers and documents;

(aa) providing the manner in which and

the safeguards subject to which the books may

be kept in computer floppies or diskettes or in

any other electronic form under sub-section

(1) of section 16A;

(b) declaring what language shall be

deemed to be commonly used in each district;

(c) declaring what territorial divisions

shall be recognized under section 21;

(d) regulating the amount of fines

imposed under sections 25 and 34,

respectively;

(e) regulating the exercise of the

discretion reposed in the registering officer by

section 63;

(f) regulating the form in which

registering officers are to make memoranda of

documents;

(g) regulating the authentication by

Registrars and Sub-Registrars of the books

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kept in their respective offices under section

51;

(gg) regulating the manner in which the

instruments referred to in sub-section (2) of

section 88 may be presented for registration;

(h) declaring the particulars to be

contained in Indexes Nos.I, II, III and IV,

respectively;

(i) declaring the holidays that shall be

observed in the registration offices; and

(j) generally, regulating the

proceedings of the Registrars and Sub-

Registrars.

(2) The rules so made shall be

submitted to the State Government for

approval, and, after they have been approved,

they shall be published in the Official Gazette,

and on publication shall have effect as if

enacted in this Act.”

The Karnataka Amendment to Section 69 of the

Act reads as under:-

In section 69(1), in sub-section (1),-

(i) in clause (g), after the word and

figures “section 51”, insert the words” and the

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manner of re-copying such books on portions

thereof”,

(ii) after clause (i), insert as following

clause, namely:-

“(ii) prescribing the manner in which

and the terms subject to which persons who

write deeds outside the precincts of a

registration officer, or who frequent the

precincts of registration officers, for the

purpose of writing documents may be granted

licence and prescribing the fees to be paid for

such licences;”

[Vide Karnataka Act 55 of 1976, sec.13 (w.e.f.

23-10-1976).]

After clause (j), insert the following clause,

namely:-

“(k) providing for the manner of return of

documents under sub-section (2) of 61”.

10. In order to answer the issue raised by the

petitioners, at the outset, it is necessary to delineate

on the Act under consideration. The Act is a pre-

constitutional legislation, enacted to consolidate the

enactments relating to the registration of documents.

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The object of the Act is registration of deeds and

documents, in order to give public notice of

transactions entered into by the citizens in respect of

immovable property and such other transactions as

envisaged under various provisions of the Act. The

object of registration of documents relating to various

types of transactions pertaining to immovable

property is to afford a sense of security and to over

come the practice of setting up forged and fraudulent

documents; to protect subsequent purchasers or

persons to whom subsequent conveyances of property

made, from being affected by previous conveyances,

unless those previous conveyances were registered.

The main object of the Act is to provide a conclusive

guarantee of the genuineness of the instrument

although mere registration of a document is not by

itself sufficient proof of its execution and genuineness.

The Act also seeks to provide information to people

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who may deal with property as to nature and extent of

the rights which persons may have affecting property.

In other words, it enables people to find out whether

any particular piece of property with which they may

be concerned, has been made subject to any previous

legal transaction. Therefore, the Act gives solemnity

of form and legal importance to certain classes of

documents by directing that they shall be registered.

As a result of registration of documents, there is

perpetuation of the documents, which are put on

record, so as to enable people to see the record and

enquire what the particulars are and as far as land is

concerned, what transactions and/or obligations exist

with regard to them. Thus, the registration of

documents gives notice that such a document has

been executed, to prevent fraud and forgery and to

secure a reliable and complete account of all

transactions effecting the title of the property.

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11. Section 17 of the Act enumerates the

instruments, registration of which is compulsory under

the Act, whereas, Section 49 encompasses the effect

of failure to register a transaction. The Act does not

confine itself to registering documents relating to

immovable property only, but also documents dealing

with other matters such as adoption.

12. In sub-section (1) of Section 22A of the

Act, the State Government has been authorized to

issue a Notification declaring that the registration of

any document or class of document would be opposed

to public policy. Sub-section (2) of Section 22A of the

Act begins with a non-obstante clause, which states

that the Registering Officer shall refuse to register any

document, for which a Notification issued under sub-

section (1) is applicable.

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13. The expression “public policy” contained in

sub-section (1) of Section 22A of the Act was

considered by the Hon’ble Supreme Court in the case

of Basant Nahata (supra). In the aforesaid decision, it

was held that the Act only strikes at the document

and not at the transactions. The whole aim of the Act

is to govern the documents and not the transactions

embodied therein, thereby only the notice of the

public is drawn. Hence, Section 22A of the Act

through a subordinate legislation cannot control the

transactions that fall out of the scope thereof. Thus,

the appeal filed by the State of Rajasthan was

dismissed upholding the judgment of the Rajasthan

High Court declaring Section 22A of the Act as

unconstitutional and consequently, the Notifications

assailed therein were also quashed. In the said case,

High Court of Rajasthan had inter alia, held that

Section 22A of the Act confers arbitrary powers on the

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State Government to determine as regards 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 competent authorities

and not by the Sub-Registrar. The impugned

legislation invaded the right of a citizen to deal with

the property and thus, was wholly arbitrary and

unreasonable. Also, the object of registration of a

document is not achieved by the impugned legislation.

Further, the Act deals with the deeds and documents

and not transactions.

14. It is noted that the Hon’ble Supreme Court

had also issued notice to the State of Karnataka in the

matter as Section 22A has also been incorporated by

the State Legislature. However, the Hon’ble Supreme

Court opined that so far as amendments made by

State other than the State of Rajasthan are

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concerned, any order passed by a Sub Registrar or

Registrar, refusing to register a document pursuant to

any Notification issued under Section 22A of the Act

would not be reopened.

15. In fact, the State Government had issued

Notification dated 23/04/2005 and a Circular dated

23/08/2005. The same were challenged before this

Court. Placing reliance on the aforesaid decision of

the Hon’ble Supreme Court a Division Bench of this

Court in D.Pavanesh vs. State of Karnataka [2006

(2) KLJ 396 DB] held that Notification dated

23/04/2005 and Circular 23/08/2005 were

unsustainable in law and they were quashed. The

Division Bench further held that the question involved

in the writ petition was no longer res integra having

regard to the decision of the Hon’ble Supreme Court in

the case of Basant Nahata (supra).

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16. Further, in S.Sreenivasa Rao v. Sub

Registrar [ILR 1990 Kar. 3740], a Division Bench

has held that if a document is presented for

registration by the executant, and in doing so, the

executant complies with all the provisions of

Registration Act, 1908, it is not open to the Sub-

Registrar to refuse registration of the document

unless, he exercises that discretion pursuant to any

provision in the Act, or any other law or Rule having

the force of law. The mere registration of a document

is by itself not a proof of its validity, neither does it

follow that the executant had title to the property, he

seeks to dispose of under the document. Matters such

as relating to title have to be decided before the

appropriate forum. If any person is interested in

contending that any particular document executed and

registered under the Registration Act, 1908 is invalid

or illegal for any reason whatsoever, he is certainly at

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liberty to question the validity of the document, the

title of the executant, and such other questions before

the proper forum in an appropriate proceeding.

17. In A.G. Shivalingappa v. A.G.

Shankarappa [ILR 1991 Karnataka 1804], it has

been held that Section 34 of the Act lays down the

nature of enquiry to be held by the Sub-Registrar

before registering a document. That it is quite patent

that the Sub-Registrar is required to make an enquiry,

whether the document has really been executed by a

person who purports to execute the document, and

further as to the identity of the executant or his

representative who appears before him. It is well

settled that the question as to the validity of the

document is alien to such an enquiry. If the

executant admits having executed a document, the

Sub-Registrar must order registration of the document

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if presented in accordance with the provisions of the

Act.

18. Also, in Smt. Sulochanamma v.

H.Nanjundaswamy and others [2001 (1) KLJ

215], it has been held that when a document is

presented for registration fulfilling all requirements,

the Sub-Registrar has no option but to register the

document unless the document is not in conformity

with the provisions of the Indian Registration Act of

1908 and the relevant rules. In the said case, the

registration of the deed was refused on the basis of

the communication received from the Tahsildar that

the revenue documents were all bogus and false. It

was held that the Sub-Registrar was entrusted with

the duty of registering the documents in accordance

with the provisions of the Act and he was not

authorised to go into the genuineness or otherwise of

the documents presented before him. If the

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documents are bogus or false, the party affected by it

will have the right to initiate both civil and criminal

proceedings to prosecute the party who tries to have

benefit from such document and also to safeguard his

right, title and interest. It was not for either the

Tahsildar or the Sub-Registrar to express opinion as to

the genuineness or otherwise of the documents,

unless called upon by the Court of law or any other

authorised investigating agency were the observations

in the said case.

19. Thus, in view of the aforesaid dicta, what

emerges is that the Hon’ble Supreme Court has held

that Section 22A as inserted by the Legislature of

Rajasthan, made to the Act, which is in pari materia

with the Karnataka Amendment is null and void.

However, learned Additional Government Advocate

contended that the impugned Circular dated

06/04/2009 has been issued under Section 69 of the

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Act. Section 69 deals with the power of Inspector

General to superintendent Registration Offices, which

pertains to making of rules on certain aspects of the

Act and with regard to exercise of general

superintendence over all the registration offices in the

State. But, in the instant case, the Circular has been

issued by the State Government and the State

Circular itself states that it is pursuant to Section 22A

of the Act. Therefore, the Circular cannot be related

to Section 69 of the Act. On going through the said

Circular, it is noted that the reference is made only to

Section 21(1) and (4) of the Act, whereas, the

reference made to other provisions are not under the

Act, but other Acts, some of those Acts such as, the

Land Reforms Act, 1961 Karnataka Scheduled

Caste/Scheduled Tribes (PTCL) Act, 1978 and such

other Acts whereunder transfer of land is prohibited.

-: 32 :-

20. It is reiterated that the Registration Act

does not concern itself with the nature of transfer or

alienation of properties, which are prohibited under

other laws. It only states what documents pertaining

to certain transactions, which have to be registered

compulsorily when they relate to immovable property

and with regard to certain other transactions, which

need not be registered. The Act does not concern

itself with the transactions, but relate to documents

concerning transactions, which have to be registered

compulsorily, in which event, provisions of the Act

would have to be complied with by the parties. By the

impugned Circular, the Sub-Registrar can in no way

prevent a document pertaining to a transaction, which

is prohibited under various laws from being registered.

Once those transactions have taken place, the

document pertaining to the transaction are registered

under the Act, when the requirements of the Act are

-: 33 :-

complied with. Unless the document pertaining to the

transaction is registered, the transaction under

various Acts, which are prohibited, namely, transfer of

land by sale etc., would not become invalid, as it is

only when the document pertaining to the transaction

is registered would result in the completion of the

transaction by transfer of title and by conveyance.

Therefore, merely on an apprehension that a

particular transaction may be prohibited under a

particular enactment, the Sub-Registrar cannot

prohibit the registration of the document pertaining to

the said transaction. Rather it is only on completion

of the transaction by registration wherever

registration is compulsory, that the transaction,

prohibited under a particular law, would become null

and void. Therefore, even prior to the registration of

document pertaining to a transaction, it cannot be

presumed that the transaction is prohibited under an

-: 34 :-

enactment and thus, refuse registration of the

document. As already stated, a transaction is not

complete until the document pertaining to a

transaction is registered. The Sub-Registrar cannot

assume the powers of a court or an authority to come

to a conclusion that the transaction is prohibited under

a particular enactment and thereby prohibit its

registration. Then it would be a case of “putting the

cart before the horse”.

21. Secondly, Annexure-I of the impugned

Circular prescribes the list of documents, which have

to be produced along with documents of transfer at

the time of registration. Even the non-production of

such documents (other than those documents

prescribed under the Registration Act, 1908) cannot in

any way prevent registration of transactions, which

are null and void under certain Acts. Even if an

affidavit is given by the transferor and transferee of

-: 35 :-

land to the effect that there is no violation of any

statute in the transfer of land, the said affidavit would

not in any way be of any assistance when

subsequently it is discovered that there was in fact an

infraction of any of the provisions of a statute when

the transfer of land took place. Further, at the time of

registration of documents pertaining to transfer of

land, the Sub-Registrar cannot hold an enquiry as to

whether any of the statutes or local laws have been

violated. If by transfer of land, there is an infraction

of any of the local laws, then the particular laws have

the machinery for invalidating the transfer and may

also contain penal provisions in that regard.

Therefore, prior to the registration of the document,

the transaction relating to the transfer of land being

incomplete, the Sub-Registrar at that stage cannot

prevent the transaction pertaining to transfer of land

-: 36 :-

being completed on the assumption that there may be

a violation of any of the local laws.

22. That apart, when Section 22A of the Act

has been held to be null and void by the Hon’ble

Supreme Court in Basant Nahata’s case (supra), which

decision has to be followed by a Division Bench of this

Court in the case of D.Pavanesh (supra), the

impugned Circular could not have been issued by

invoking Section 22A of the Act.

23. The arguments of the learned Additional

Government Advocate that the Circular is issued under

Section 69 of the Act cannot be accepted in view of

the express invocation of Section 22A of the Act in the

impugned Circular dated 06/04/2009.

24. In that view of the matter, the impugned

Circular dated 06/04/2009 is liable to be quashed and

is quashed following the decisions of the Hon’ble

-: 37 :-

Supreme Court in Basant Nahata (supra) and the

Division Bench of this Court in D.Pavanesh (supra),

wherein Section 22A of the Act has been struck down

and the other decisions referred to above. All other

circulars, which have been issued from time to time

under Section 22A of the Act are also quashed.

25. Writ Petitions are allowed in the aforesaid

terms. No costs.

Sd/-

CHIEF JUSTICE

Sd/- JUDGE

*mvs/s*