Full Judgment Text
NEUTRAL CITATION NO: 2022/DHC/005083
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 02.05.2022
Date of decision: 24.11.2022
+ W.P.(C) 4194/2022
MAHAVIR SINGH & ORS. ..... Petitioners
Through: Mr. V.P. Dabas, Advocate.
Versus
GNCT OF DELHI & ORS. ..... Respondents
Through: Mr. Shadan Farasat, ASC, GNCTD
with Mr. Aman Naqvi, Advocate for
R-1 to 5.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J
1. The petitioner Nos.1 to 4 i.e., petitioner No.1 Sh. Mahavir
Singh, petitioner No.2 Smt. Urmila, petitioner No.3 Smt. Reena Rani
and petitioner No.4 Sh. Sandeep Kumar, vide the present petition
seeks directions to the respondent No.5, the Sub-Registrar IX (A)
(Najafgarh) to register the Sale Agreement and the General Power of
Attorney both dated 01.05.2018 duly executed and presented by the
petitioners before the respondent No.5 vide document Nos. 320 and
321, after setting aside the impugned refusal order dated 17.05.2018 of
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
the respondent No.5 as well as the order of the respondent No.3, i.e.,
the Deputy Commissioner, South-West, Kapashera in Appeal
No.1/7/18 dated 07.10.2020, whereby the said appeal filed by the
petitioners under Section 72 of the Indian Registration Act, 1908 was
dismissed, with it having been submitted by the petitioners that the
said orders are arbitrary, unwarranted, perverse, beyond jurisdiction
and in violation of law resulting in manifest injustice to the petitioners.
2. The petitioners also seek exemplary cost against the respondent
No. 2, the Inspector General of Registrars, Department of Revenue,
Government of NCT of Delhi, submitting to the effect that the said
authority is vicariously responsible for non-discharge of duty by the
subordinate authorities.
3. The consolidation proceedings in village Mundhela Khurd in
the year 1971-72 were initiated and the consolidation record was
prepared but repartition proceedings under Section 21 of the EPH Act,
1948 could not be carried out and the consolidation proceedings were
initiated again in 1996, and as per averments made in the petition, are
pending before the Financial Commissioner.
4. It is submitted on behalf of the petitioners that the petitioner
No.1 is a native of village Mundhela Khurd and was the recorded co-
th
owner of un-partitioned agriculture land having 1/15 share (61.56
Biswa) out of Khata No. 106/99 bearing pre-consolidation Khasra nos.
1//105(5- 09), 1/161 (0-09), 1/389(19-03), 1//349 (4-15), 1//348 ((7-
14), 1//516 (3-14) & 1/634 (5-01) total land admeasuring 46 Bigha 5
Biswa or post consolidation Khasra Nos. 38//4/2 (1-02), 54//8 (4-16)
and 54//9/1 (2-16) total land admeasuring 8 Bigha 14 Biswa (2 Bigha
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
18 Biswa) of land situated in revenue estate of village Mundhela
Khurd, Delhi-110073. Copy of the Fard has been submitted by the
petitioners as Annexure P-1.
5. Inter alia , the petitioners further submit that the petitioner No.1,
the seller, and the petitioner Nos. 2 to 3, the purchasers, entered into
an oral sale agreement of agriculture un-partitioned land dated
22/10/2013 for total sale consideration amount to the extent of
th
Rs.28,90,625/- of the entire 1/15 share (61.66 Biswa) out of Khata
No. 106/99 bearing pre-consolidation Khasra nos. 1//105(5- 09),
1//161 (0-09), 1/389(19-03), 1//349 (4-15), 1//348 ((7-14), 1//516 (3-
14) & 1/634 (5-01) total land admeasuring 46 Bigha 5 Biswa or 1/3rd
share out of Post consolidation Khasra No. 38//4/2 (1-02), 54//8 (4-16)
and 54//9/1 (2-16) total land admeasuring 8 Bigha 14 Biswa (2 Bigha
18 Biswa) of land situated in revenue estate of village Mundhela
Khurd for his bona-fide needs.
6. The petitioners further submit that vide a circular No.
F.1(92)/Regn Br./DivComm./HQ/2012, which is dated 12.11.2014
(and bears the full number F.1(92)/RB/DivComm./HQ/2012/311-320),
in terms of Para 18 Sub Para II of the verdict of the Hon’ble Supreme
Court in Suraj Lamp Industries Vs State of Haryana, the respondent
no. 2, the Inspector General of Registrar, from the office of Inspector
General of Registration, Department of Revenue, Government of
Delhi, 5, Sham Nath Marg, Delhi, in terms of Section 69 of the Indian
Registration Act 1908, clarified that after amendment in the
Registration Act, 1908, under section 17 (1-A) of Indian Registration
Act, 1908, an agreement to sell in respect of immovable property is
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
covered under section 17 (1-A) of Registration Act, 1908 and is a
valid document to be registered if so desired by the parties and as such
all these documents cannot be refused to be registered by the Sub
Registrar. Copy of the said circular has been submitted by the
petitioners as Annexure P-3.
7. Inter alia, the petitioners submit that the recorded owner, i.e.,
petitioner No.1, Sh. Mahavir S/o Sh. Ram Kishan, on 25.07.2016
applied for the NOC/status report for transfer of his entire agriculture
holding to the extent of his share before the Competent Authority, i.e.,
the respondent No. 4 herein, vide slip No. ADM/South West/Land
Status Report/10510 as required under Section 30 of the EPH Act,
1948 but the same was declined on 19.08.2016 by the Competent
Authority on the ground that village Mundhela Khurd is under
consolidation and permission of CO under Section 30 of EPH Act,
1948 having not been granted and the land status report being not
conveyed . The copy of the NOC/status report as well as copy of the
NOC declined by respondent No. 4 have been annexed by the
petitioners as annexure P-4.
8. Inter alia , it has been submitted that the petitioner No.1
received a full consideration amount to the extent of Rs.28,90,625/- to
execute the sale deed but for want of sanction from the respondent No.
4, and for registration of the sale deed the petitioners decided to
execute the registered sale agreement along with transfer of possession
of those Khasra numbers, of which the petitioner no.1 was earlier in
possession, and whenever the NOC would be granted, the title would
be transferred and for the said purpose the petitioners also decided to
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
execute the General power of attorney for the purpose of transfer of
title, whereafter, the petitioner No. 1 as well as petitioner Nos. 2 and 3
presented the duly executed Sale Agreement as well as the General
Power of Attorney for transferring the title complete in all respects on
01.05.2018 after complying all the provisions of Indian Registration
Act, 1908, Delhi Registration Rules, 1976 & Indian Stamp Act, 1899
with the same duly acknowledged by the Sub-Registrar i.e., the
respondent No. 5 vide acknowledgement slip bearing Nos. 320 and
321 respectively.
9. It has been further submitted by the petitioners that the sale
agreement was duly engrossed on a proper stamp paper with 4%
stamp duty under the Indian Stamp Act, 1899 along with Rs.1100/-
registration fee for sale agreement and without 1% of circle rate
registration fee as per section 147 of the Delhi Municipal Corporation
Laws. The petitioners submit that both these documents were
presented before the respondent No.5 along with all necessary
documents, parties and witnesses after complying with the due
procedure specified in the Indian Registration Act, 1908 and Delhi
Registration Rules, 1976. The copy of the sale agreement as well as
of the general power of attorney, both dated 1.05.2018, presented
before the respondent No. 5 vide slip No. 320 and 321 are annexed as
Annexure P-5.
10. Inter alia , the petitioners submit that the sale agreement as well
as general power of attorney were denied registration by the
respondent No. 5 for want of NOC from the respondent No. 4 on the
ground that the purchaser had already paid full and final consideration
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
amount to the seller and the possession of the said land had already
been handed over to the vendees by the vendor.
11. Inter alia , the petitioners submit that no sale/agreement to sell
can be considered without an NOC from the Competent Authority.
The respondent No.5 is thus indicated to have refused to register the
document Nos. 320 and 321 as per the provisions of the Registration
Act, 1908 in view the consolidation case of the Revenue Village
Mundhela Khurd being pending before the Financial Commissioner,
Delhi.
12. The petitioners submit that the appeal filed against the said
order dated 17.05.2018 was also dismissed vide a non-speaking order
dated 17.10.2020.
13. The circular No. F.1(92)/Regn.Br./DivComm/HQ/2012 dated
26.07.2021 is alleged by the petitioners to have been issued by
exercising illegal powers by the Inspector General of Registrar from
the office of the Inspector General of Registration, Department of
Revenue, Government of Delhi. The petitioners submit that their valid
documents have not been registered and the provisions of the Indian
Registration Act, 1908 have been violated, despite the mandatory duty
cast on the respondent No.5 to register their claim in terms of Section
58 of the Indian Registration Act, 1908. As per the website of the
revenue department the circular number
F.1(92)/Regn.Br./DivComm/HQ/2012/6112 dated 26.07.2021 has
been issued in suppression of guidelines dated 12.11.2014 relied upon
the behalf of the petitioner as mentioned in para 6 herein above. As
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
per the circular dated 26.07.2021 vide clause 16 thereof it has been
prescribed as under:
“ 16. ON REFUSAL TO REGISTER THE DOCUMENT:
If the Sub-Registrar is of the opinion that the document presented for
registration is against any of the provisions of law(emphasis
supplied) or administrative instructions/ order, the Sub Registrar may
refuse to register the document after hearing the parties concerned.
The refusal order should be a speaking order recording the reason for
refusal and duly recorded in relevant Book Number. A copy of the
refusal order be also sent to the Deputy Commissioner of the District,
SDM (HQ), Spl. IGR apart from delivering a copy to the parties
concerned.
……………………………………………………………………….”
14. The petitioners submit that the Registration Act 1908 is a
complete code in itself and all reasons for refusal have been
enumerated therein under Sections 19, 20, 21, 22, 23, 24, 25, 28, 32,
33, 34 and 35 of the said Act and the act of the respondent No. 5 in
refusing the registration is beyond the scope of the said enactment;
and that the respondent No.5 and the respondent No. 3 have failed to
distinguish between a sale deed and sale agreement; that the State
Government cannot instruct a Sub-Registrar not to register a
document.
15. On behalf of the respondents, a submission was made on
14.03.2022 by the learned ASC for the respondents that the impugned
orders merit no interference since they are clearly passed on the
express provisions contained in Section 30 of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act, 1948,
and that it is incumbent on the petitioners to obtain the appropriate
permission as statutorily contemplated therein.
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
16. It is essential to observe that undisputedly the consolidation
proceedings of the Village Mundhela Khurd are pending before the
Financial Commissioner, in terms of Section 30 of the East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act, 1948,
which provides as under:-
“ T he East Punjab Holdings (Consolidation and Prevention of
Fragmentation) Act, 1948
…………
30. Transfer of property during Consolidation Proceedings.-
After a notification under sub-section (1) of section 14 has issued and
during the pendency of the consolidation con proceedings no land-
owner or tenant having a right of occupancy upon whom the scheme
will be binding shall have power without the sanction of the
Consolidation Officer to transfer or otherwise deal with any portion of
his original holding or other tenancy so as to affect the rights of any
other land-owner or tenant having a right of occupancy therein under
the scheme of consolidation .”,
it is apparent thus as rightly contended on behalf of the respondent
Nos.1 to 5, till pendency of such consolidation proceedings, in view of
the notification under Section 14(1) of the enactment (East Punjab
Holdings (Consolidation and Prevention of Fragmentation) Act,
1948) , there cannot be any registration of the documents as sought by
the petitioners.
17. Another aspect that cannot be overlooked is that on the appeal
of the petitioners having been dismissed under Section 72 of the
Registration Act, 1908, the remedy that was available to the
petitioners was in terms of Section 77 of the Registration Act, 1908.
18. The petition is thus rejected as being premature, in as much as,
the consolidation proceedings of the Village Mundhela Khurd, where
the property forming subject matter of the present petition is situated
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005083
are still pending. However, in as much as the consolidation
proceedings are pending since the year 1971-72, as averred by the
petitioners, in as much as, though a consolidation record, as submitted
by the petitioners, was prepared, the repartition proceedings could not
be carried out and the consolidation proceedings have thereafter been
initiated again in the year 1996, which are pending, and though the
respondents inform that they would be concluded soon, they are
nevertheless pending,- thus it is expected of the respondents that the
consolidation proceeding pending in relation to the Village Mundhela
Khurd are completed within a period of six months of the date of the
disposal of this petition.
19. The petition is thus disposed of accordingly.
ANU MALHOTRA, J.
NOVEMBER 24, 2022
HA
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:24.11.2022
11:51:36
This file is
digitally signed by
PS to HMJ ANU
MALHOTRA.
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