C.W.P. No.5114 of 2000 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.5114 of 2000 Date of Decision. 28.07.2011 Shri Ajay Loothra son of Shri Parkash Lal Loothra through G.A. Neera Luthra and others .....Petitioners Versus The Deputy Commissioner-cum- Registrar, Gurgaon and others .....Respondents Present: Mr. Arun Jain, Senior Advocate with Mr. Rohit Khanna, Advocate for the petitioner. Mr. O.P. Sharma, Addl. A.G., Haryana. Mr. Dhirinder Chopra, Advocate for respondent No.3. Mr. Vikas Chatrath, Advocate for respondent No.5. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. I. Registrar’s direction for registration of documents, the cause of action 1. The writ petition challenges the order passed by the Registrar arrayed as the 1st respondent directing the registration of the sale deeds purported to have been executed by the 5th respondent Jagan Nath in the alleged capacity of power of attorney of the petitioners. The order is a composite one in its disposal of two appeals filed by the 3rd respondent Inderbir Singh Uppal, seeking for registration of properties covered under two sets of transactions, claiming to purchase properties C.W.P. No.5114 of 2000 -2- of respondent Nos.1 and 2 under one transaction and respondent Nos.3 and 4 in another transaction. The direction by the Registrar is in respect of 8 sale deeds purported to transfer 57 kanals and 5 marlas of land. The order records a reason that the Sub Registrar had only assigned deed numbers for 6 documents and for remaining 2 documents, no number had been assigned and no reason has been given by the Sub Registrar as to why the sale deeds were cancelled. II. Objections dealt with by the Registrar, while ordering registration 2. Before the Registrar, it appears to have been contended that the appellant had not produced the income tax certificate at the time of registration of the sale deed and hence, sale deeds could not have been registered. The Registrar had dealt with that issue and held that it was the duty of the vendors to produce the income tax certificate and the registration could not have been put off by the failure to produce income tax certificate. He also reasoned that the Sub Registrar could not have acted on the objection of the owners of the property claiming that they had cancelled the power of attorney, since the termination of an agent's authority had been brought about only on 7.4.1999 after the document was presented for registration on 24.3.1999. According to him, in terms of section 208 of the Indian Contract Act, the revocation could not affect a transaction brought about earlier and the revocation could be effective only when it was communicated to the attorney. The Registrar observed that the owners of property arrayed as respondent Nos.3 and 4 had committed fraud on the purchasers and since the sale consideration had been paid by the purchasers to the power of attorney, C.W.P. No.5114 of 2000 -3- the documents were required to be registered. In disposing of the appeals, the Registrar had ordered that the documents shall be registered in terms of Section 75 of the Indian Registration Act. III. Registration of documents subsequent to institution of writ proceedings and the nature of interim order passed by this court 3. The impugned order had been passed on 17.04.2000 and by the time the writ petition was filed before this Court on 3.5.2000 and brought for orders on 4.5.2000, the registration had been effected on the same day. The Division Bench of this Court took notice of the registration and passed an order on 5.5.2000 that the purchasers shall not used the impugned registered documents in any judicial proceedings. This order has stood on from 5.5.2000 till the time of disposal of the writ petition. IV. Factual details (a) Events before the Sub-Registrar on the date of presentation of the documents on 24.3.1999 4. There is no dispute about the fact of original ownership of the property as residing in the petitioners. The petitioners No.1 and 2 appeared to have entered into an agreement of sale in respect of 60 kanals and 19 marlas and they had also executed 4 sales comprising to an extent of 32 kanals under four sale deeds dated 10.07.1998, 13.07.1998, 22.07.1998 and 27.07.1998. The extent of 28 kanals 19 marlas still remained unsold. On 17.03.1998, petitioners No.3 and 4 had entered into an agreement of sale for 52 kanals 6 marlas and sale deed had been executed for 3 acres equivalent to 24 kanals on the same day and balance of 28 kanals 6 marlas was still unsold and the balance of C.W.P. No.5114 of 2000 -4- consideration that remained to be paid was Rs.32,76,250/-. The disputes are with reference to the purported execution of sale by the 5th respondent as a power of attorney for the petitioners, presented them before sub-registrar on 24.3.1999 and admitted execution in order that the documents were registered. The sale deeds recited as though petitioners No.1 and 2 had constituted Jagan Nath, the respondent No.5 as their power of attorney by deed dated 06.08.1998 and that the petitioners No.3 and 4 had executed the power of attorney in favour of the 5th respondent on 17.06.1998. Before the documents were presented before the Sub-Registrar, the petitioners claimed that they had been informed the Sub-Registrar on 15.03.1999 denying the execution of any power of attorney. Petitioners No.3 and 4 had also claimed that they had in any event cancelled the power of attorney through a registered document on the very same day when the documents had been presented for registration on 24.03.1999 and the Sub Registrar, therefore, was personally aware of the fact that the power of attorney was not operative and the 5th respondent lacked the power to admit execution as a power of attorney and seek registration. It is also claimed that on the same day when the documents were presented for registration, there was a newspaper publication referring to the purported cancellation of the power of attorney in favour of the 5th respondent. It is an admitted fact that the Sub-Registrar had accepted the documents, assigned numbers for 6 documents but did not register the documents to make them available for return to the purchaser as registered. C.W.P. No.5114 of 2000 -5- (b) Grievance of the purchaser about the conduct of the Sub- registrar in keeping the documents without registering them; deemed refusal of the sub registrar as cause for appeals before registrar 5. When the sub registrar did not register and deliver the documents back to either the power of attorney or the 3rd respondent, a complaint is alleged to have been given to the Joint Sub Registrar, who had observed that numbers which had been entered on the documents had been subsequently cancelled without assigning any reason. The Joint Sub Registrar had, therefore, called for a report from the past and present Sub Registrar. No report had been indeed received but this cryptic order calling for report was construed as evidence of refusal of the sub registrar to register the documents and appeals had been filed by the 3rd respondent before the Registrar which gave rise to impugned orders which are challenged in the writ petition. V. The action of the Registrar and the objection regarding the validity of his action, as contended by the petitioners 6. The basic question that was raised by the learned Senior Counsel, Sh. Jain, appearing on behalf of the petitiones was that the Registrar passing an order under Section 75, could have passed an order if only it was the appeal either under Section 72 of the Registration Act or Section 73. Section 72 of the Registration Act contemplates an appeal against the order of refusal by the Sub Registrar if the refusal was for a reason other than denial of execution by the executant. Appeal under Section 73 is permissible in a case where the executant had denied execution and that Registrar had refused registration on such a ground. In either case, there was requisite procedure prescribed under Section 74 that obligated the Registrar to hold an enquiry on (i) whether the C.W.P. No.5114 of 2000 -6- document had been executed and (ii) whether the requirements of law for the time being in force had been complied with on the part of the person presenting the document for registration. According to the learned counsel, there had been no order of refusal at all in the manner contemplated under Section 71 occurring in Part XII of the Registration Act and therefore, the assumption of jurisdiction that the Registration even without an express order of refusal to register was incompetent. The orders were required to be quashed on the said ground only. VI. Procedure for presentation and registration 7. Learned counsel would refer to the procedure for registration as contained in Sections 34 and 35 of the Registration Act to examine whether there was material enough for the registrar to hold that the requirement of law had been satisfied and whether he had followed the procedure that was fundamental for him to observe while passing an order under section 75. Section 34 by enjoins the personal appearance of the person of the person executing the document. On such appearance, he is bound to enquire whether the document had been executed by the person by whom it purports to have been executed, satisfy himself about the identity of the person and in case where the document is presented by a person appearing as a representative, he shall satisfy himself about the right of such person to appear as such attorney. For a proper understanding of what the Section contains, the said Section is also reproduced:- “34. Enquiry before registration by registering officer.-(1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents C.W.P. No.5114 of 2000 -7- authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26: Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered. (2) Appearances under sub-section (1) may be simultaneous or at different times. (3) The registering officer shall thereupon-- (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub- section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders.” 8. The duty of the registering officer at the time of registration is contained in section 35 and the said section is also reproduced. 35. Procedure on admission and denial of execution respectively.—(1)(a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or (c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in Sections 58 to 61, inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3)(a) If any person by whom the document purports to be executed denies its execution, or C.W.P. No.5114 of 2000 -8- (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub- Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII. This section comprises of two parts: one, dealing with registration when the document is admitted as executed and two, the circumstances that shall exist if the registrar shall refuse registration. The whole procedure before the registrar starts with presentation of the document and it shall be necessary to examine the said provision. 9. Section 32 of the Act refers to the persons, who are competent to present the document for registration and in so far as it is relevant for our case, Section 32(c) of the Act reads as follows:- “32. Persons to present documents for registration.-Except in the cases mentioned in 1sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office, (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.” VII. The four stages for a document to be registered 10. The scheme of the Act is clear as regards the stages that a document goes through before it is registered. They are (i) execution of a document; (ii) presentation; (iii) admission of execution and (iv) registration. In a situation where a sale is made, it is executed by the person who has ownership of the property or it can be executed on C.W.P. No.5114 of 2000 -9- behalf of the owner who has an authority through a power of attorney to execute the document. This completes the first stage. After the document is executed, it is presented in person before the registering authority by the person who has executed. If the principal has executed the document, it can be presented by the principal himself; in case of his death, by his representative or assigns; and in case of creation of agency, through his power of attorney. If the document itself has been executed by a person as such power of attorney for the principal, the power of attorney becomes the executant himself and he alone can present the document. The presentation shall be by physical appearance before the registering authority of the executant or his authorized representative, except under circumstances, where the physical presence is spared under the Act. Upto this is the second stage which leads to activity of the registering authority which we will identify as the third stage: the registering officer shall have three functions under section 34(3) viz., (i) make an enquiry whether the document has been executed by the person by whom it purported to have been executed; (ii) satisfy about the identity of the person and (iii) if the person appearing is a representative or assigns or agent, he shall again satisfy himself of the right of the person so to appear. The activity connected to (i) above is to secure an admission of execution. The activity connected to (ii) above is obtained through someone identifying the executant and make him attest to that fact. This is done, where the registering authority does not know him personally and when he will get identifying witnesses to attest to such identity. The activity connected to (iii) above arises only in cases where the document is not by the C.W.P. No.5114 of 2000 -10- principal but by a representative, assigns or agent. The registering authority is at this stage bound to satisfy himself of the right of such person so to appear. The act of registration is the 4th stage when under section 35, the registering officer shall register the document if the procedure laid down under the first 3 stages are fulfilled. VIII. Examining the fact situation to see if the procedure prescribedunder the Act existed for directing execution 11. We have reproduced above section 35 under Caption VI and seen that it contains the circumstances both for registration as well as for refusal. If the person executing the document appears personally and admits execution, or if it is by a representative, assigns or agent and he admits execution or if the person executing the document is dead, his representative or assigns appears and admits execution, the document will be registered. In this case, the person executing the document was the power of attorney himself and he had appeared in person and admitted execution. The registering officer could immediately register the document, provided, he was satisfied in the enquiry that the person appearing as the agent had the right so to appear. On the day when the 5th respondent appeared and admitted execution, the registering officer must have been satisfied that the power of attorney had the competency to appear as such. If he was not so satisfied for any reason, he need not immediately register. In this case, petitioners 3 and 4 had cancelled the power of attorney on the same day, viz., on 24.3.99. A paper publication had appeared denying execution of power of attorney. The petitioners 1 and 2 had earlier reported to have complained to the sub-registrar even on 15.3.99 that they had not executed any power of attorney. Registration under the C.W.P. No.5114 of 2000 -11- circumstances would not have been possible without the satisfaction of the registering officer that the person presenting the document and admitting the document as an agent had the requisite competency so to represent the principal. If the sub-registrar was not satisfied about the competency of the agent, then registration was just not possible. IX. How is the refusal to register done? 12. If the satisfaction as required under section 34(3) is not recorded, or under Section 35 (3), (a) when the executant denies execution; or (b) when the person admitting the document appears to be a minor, idiot or a lunatic, or(c) if the executant is dead and his representative or assigns denies its execution, the registrar shall refuse registration. That refusal shall be done in the manner referred to under Part XII, section 71 by entering in Book No.2 the reasons for refusal and endorse the words ‘endorsement refused’. In this case, the sub-registrar had neither given the reasons nor made entries as required. X. Objection of petitioners regarding validity of registration of power of attorney- Irrelevant for this conflict adjudication 13. Section 33 deals with a situation of when the principal resides in any part of India and therefore, the same is reproduced:- “33. Power-of-attorney recognizable for purposes of section 32. (1) For the purposes of section 32, the following powers- of-attorney shall alone be recognized, namely:-- (a) if the principal at the time of executing the power-of- attorney resides in any part of 2*[India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides; (b) xxx xxx xxx xxx 14. Making reference to Section 33, the learned Senior Counsel argued that if the document was presented by power of attorney in C.W.P. No.5114 of 2000 -12- respect of principal residing in India, such power of attorney shall be executed by the Registrar or Sub Registrar in whose District or sub District the principal resides. The learned Senior Counsel contended that the petitioners were admittedly residents of Dehli and recited as such in the power of attorney itself and consequently the document could not have been registered or authenticated at Sohana in terms of Section 33 of the Act and the Registrar to whom the document was presented could not have accepted the document as proper presentation. The learned counsel appearing on behalf of the respondents cited authorities to the effect that what is contemplated under Section 33 is not permanent residence of a place and even temporary residence would be sufficient for a Registrar to register and authenticate power of attorney. The learned counsel refers to decisions in Sarat Chandra Basu Vs. Bijoy Chand Mahatab, AIR 1937 PC 46, Sri Sri Sri Kishore Chandra Singh Devo Vs. Babu Ganesh Prasad Bhagat and others AIR 1954 SC 316 and Rattan Singh Vs. Ajaib Singh and others 1986(1) PLR 527 as laying down the proposition that petitioners, who are admittedly property owners at Sohana were also competent to execute the power of attorney at that place and there was no error in the document being registered and the Registrar acting on such document. 15. I do not think that this issue requires any consideration, for, we are not dealing with the case of Registering Officer refusing to receive document or passing an order treating the document as not validly presented. Even the issue whether the power of attorney executed in favour of the 5th respondent was cancelled or not and whether such cancellation took effect in the manner laid down under C.W.P. No.5114 of 2000 -13- Section 208 of the Contract Act are again not issues for immediate consideration before me. Whether execution of a cancellation of power of attorney or publication in a newspaper could be sufficient or whether the cancellation should be effective only by some form of communication that brings home to the power of attorney such cancellation, are again matters, which do not, in my view, arise for consideration, for, I am dealing with a more fundamental issue of whether the Registrar had a power to proceed to pass an order under Section 75 even without an express order of refusal of the Registering Officer to record a refusal of execution. 16. The examination of Section 33 is in the context of presentation by power of attorney under Section 32. If the power of attorney had himself executed the sale deed as such power of attorney, he himself becomes the executant and consequently Section 32 is not attracted. Registration contemplated for power of attorney under Section 33 is attracted only when the document is executed by principal and the presentation alone is by an agent. A deed of power of attorney is not among the list of compulsorily registrable doucment enumerated under Section 17 of the Registration Act. The reference to registration in Section 33 is only in the context of a situation where the presentation is by an agent and not when he is himself an executant. In this case, the executant in all the deeds was the 5th respondent himself as a power of attorney and therefore, the requirement of registration as contemplated under Section 33 does not arise. Even the issue of cancellation of power of attorney and its communication to take effect shall be seen only