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Gujarat High Court Affidavit With The Details vs Rajiv Maheshkumar Mehta & 3 on 9 August, 2016 C/LPA/22/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 22 of 2013 In SPECIAL CIVIL APPLICATION NO. 14413 of 2011 With LETTERS PATENT APPEAL NO. 23 of 2013 In SPECIAL CIVIL APPLICATION NO. 14421 of 2011 TO LETTERS PATENT APPEAL NO. 24 of 2013 In SPECIAL CIVIL APPLICATION NO. 17541 of 2011 With SPECIAL CIVIL APPLICATION NO. 13731 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE R.P.DHOLARIA =============================================
== 1 Whether Reporters of Local Papers may be allowed to see the judgment?
2 To be referred to the Reporter or not?
3 Whether their Lordships wish to see the fair copy of the judgment?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution o f I n d i a o r a n y o r d e r m a d e t h e r e u n d e r? ============================================= == STATE OF GUJARAT NOTICE TO BE SERVED THROUGH &
2.... A p p e l l a n t ( s ) V e r s u s R A J I V M A H E S H K U M A R M E H T A & 3.... R e s p o n d e n t ( s ) ============================================= == Appearance:
LPA NOS. 22 OF 2013 TO 24 OF 2013 MR PK JANI ADDL. ADVOCATE GENERAL for the Appellant(s) No. 1 - 3 MR DEVEN PARIKH SR. ADV. For MR NIRAV P SHAH, ADVOCATE for the SCA NO. 13731 OF 2012 MR RS SANJANWALA SR. ADV. For MR DHAVAL SHAH for Petitioner HC-NIC Page 1 of 58 Created On Thu Aug 11 02:24:24 IST 2016 MR PK JANI ADDL. ADV. GENERAL for the Respondent Nos.1 to 4 MR KK TRIVEDI ADVOCATE for the Respondent Nos. 5 & 6. ============================================= == CORAM: HONOURABLE
MR.JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE R.P.DHOLARIA Date : 09/08/2016 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
- All these Letters Patent Appeal under Clause 15 challenge common oral judgements dated 9.5.2012 and 10.5.2012 rendered in three writ petitions namely, Special Civil Application Nos. 14413 of 2011, 14421 of 2011 and 17541 of 2011 filed under Article 226 of the Constitution of India by the petitioners challenging circular dated 8.12.2010 and 7.1.2012 issued by respondents, which according to the petitioners were contrary to law and amounted to imposing undue, unwarranted and illegal restrictions upon the right of the petitioners to have a document registered in accordance with provisions of Section 17 of the Registration Act, 1908 (in short "Act 1908"). In view of controversies with regard to subject petitions and these appeals it is not necessary to record facts in detail but in brief, the petitioners have grievance against respondent authorities especially respondent No.2 namely, the Sub Registrar of not registering their documents namely sale deed executed by a power of attorney of agricultural land, without the presence of the owner of the said land and for not complying with conditions laid down thereunder. In a case, where there is HC-NIC Page 2 of 58 Created On Thu Aug 11 02:24:24 IST 2016 entire part performance of the contract, as per Section 53- A of the Transfer of Property Act and full sale consideration has been paid and even possession of the property is handed over and an irrevocable power of is also executed seeking mandatory compliance of the conditions laid down in impugned circulars dated 8.12.2010 and dated 7.1.2012, whether could have been issued in exercise of executive powers by respondent NO. inasmuch as, circulars are ex facie illegal and contrary to the provisions of Act, 1908 as well as Power of Attorney Act, 1882 (in short "Act 1882").
- After considering contentions on law raised by the petitioners that circulars impugned are in derogation to the powers conferred under Act 1908 and whittles down and circumscribed provisions of Power of Attorney Act 1882 and, therefore, illegally came to be examined in the context of factual scenario about Power of Attorney himself is executant of the document on behalf of the principal and is entitled to present document as required under Section 33 of the Registration Act. It was contended that barring fulfillment of the requirement under Section 32 and 33 of Act 1908 no other procedure or formality was to be undertaken by such power of attorney who himself is executant of the document to be presented for registration. What is required to be seen by the Sub Registrar or the Registrar as the case may be is whether such document is presented fulfills requirement HC-NIC Page 3 of 58 Created On Thu Aug 11 02:24:24 IST 2016 under the Act 1908 or not. NO other inquiry is envisaged about examining legality and validity of such document by Sub Registrar or Registrar as the case may be in absence of any statutory provision of Act 1908. That contours and parameters of executive powers of the State under Article 162 also came to be examined qua List III (Concurrent) entry No.6 read with Article 254 of Constitution of India in the context of submissions made by learned AGP findings were given based on reasons contained in paras 14, 15 and 16 of the judgement and was held that plain reading of Article 162 and 254 (2) of the Constitution of India would clearly go to show that the power of the State to make law is subject to provision of Article 254 (2) and, therefore, when the law which is competent to be made is also subject to Article 254, naturally there is no exemption or immunity on the executive action there from. It is further held that when provision of power of attorney Act 1882 and Registration Act 1908 do not provide for any other requirement, then, additional requirement by way of executive instruction cannot be permitted to be
that registering officer is duty bound to verify the document presented for registering before accepting the same in consonance with the above rule the Government Resolutions are issued which cannot be even termed unreasonable or arbitrary and violative of Article 14 of the Constitution of India.
3.5. It is submitted that if the provisions of Section 34 and 35 of the Act, 1908 read with Rule 45 of the Rules, 1970 the exercise undertaken by the State of Gujarat in larger public interest even if it costs some inconvenience to the individuals has to be given due recognition since the same result into avoiding unwarranted litigation and, therefore, this appeal under Clause 15 of Letters Patent Appeal deserves to be allowed by quashing and setting aside the order passed by learned Single Judge.
3.6. Next it is contended that the purpose and purport of preliminary and limited inquiry is to see that whether proper stamp duty is paid on the document so as to avoid further complication arise out of such breach. The guidelines issued by above three G.R.s take care of such a situation and the matter is reuqired tobe viewed accordingly.
HC-NIC Page 7 of 58 Created On Thu Aug 11 02:24:24 IST 2016 3.7. Learned Additional Advocate General, however, lastly submitted that Government Resolution dated 30.10.2014 after the order was passed by learned Single Judge on 9.5.2012 takes care of almost all grievances of the aggrieved parties and substantially reduces inconvenience and hardships and accordingly the above G.R.'s deserves to be sustained by this Court.
- As above, Mr. Prakash Jani, learned Additional Advocate General placed reliance on the decisions of the Apex Court:
(1) Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab [AIR 1995 SC 549(1)] pertaining to scope of executive power in the context of Article 162 of the Constitution of India. (2) Ajit Investment Co.Pvt. Ltd., Jamnagar Gujarat and Anr. v. K.G.Malvadkar and Ors.
[AIR 1973 BOMBAY 285] with regard to Sections 34 and 35 of Registration Act, 1908 and that under Rule 44 of Maharashtra Registration Rules 1961 whereby a registering officer was empowered to verify various requirements pertaining to registration of documents which are prescribed in the said rules but may not be concerned about validity of such document. Such registering authority can satisfy himself as to the identity of the persons appearing before him. The above aspect was considered in the HC-NIC Page 8 of 58 Created On Thu Aug 11 02:24:24 IST 2016 context of Section 34 of Wealth Tax Act 1957 whereby restrictions upon a power of registering officer to register a document transferring an immovable property in certain cases where imposed. (3) Suraj Lamp and Industries (P) Ltd. Thru. Div. State of Haryana and Anr. [AIR 2009 SC 3077] [AIR 2012 SC 206] Whereby the Apex Court deprecated the transaction undertaken particularly sale of properties by taking recourse to power of of attorney, sales by execution of sale agreement/general power of attorney/wil and in the next decision it was held that transfer of immovable property can be validly made only by registered sale deed and not by sale agreement /general power of attorney or wil.
- Mr.Deven Parikh, learned senior advocate for the respondent in one of the writ petitions would emphasis on the decisions of Apex Court and various other High Courts interpreting provisions of Sections 32, 33, 34, 35 and 69 of the Act, 1908 and would contend that if the Government Resolutions under challenge in the writ petitions are perused conditions formulated therein amount registering authority undertaking an exercise of going into legality and validity of the document which is not permissible. In a case were the power of attorney himself is executant of document and in certain cases empowered on behalf of original land owner or granter none of the provisions of HC-NIC Page 9 of 58 Created On Thu Aug 11 02:24:24 IST 2016 Act, 1908 prohibits registration of document presented by such power of attorney except preliminary verification as envisaged under Section 69 of the Act, 1908. According to learned advocate for the respondents and original writ petitioners no error, much less any error of law or fact appears in the order passed by learned Single Judge and the same deserves to be confirmed by rejecting Letters Patent Appeal by the appellant-State under Clause 15.
- Mr.Deven Parikh, learned senior counsel appearing for the respondents/original petitioners has relied on following decisions of the Apex Court and other High Courts in support of his contention: that no error is committed by learned Single Judge in quashing and setting aside impugned circulars.
(1) Krishna Gopal Kataria and Anr. v. State of Punjab and Ors. [AIR 1986 PUNJAB AND HARYANA 328] That powers of Registrar are clearly defined and demarcated and any instruction by the State Government to the Registrar and in turn to the Sub-Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions in absence of any statutory provision was held to be illegal. It was further held that Act 1908 is a complete code of deeds.
(2) Bihar Deed Writers Association and Ors. v.
HC-NIC Page 10 of 58 Created On Thu Aug 11 02:24:24 IST 2016 State of Bihar and Ors. [AIR 1989 PATNA 144] in which, it was held that it is not for registerring authority to ascertain title to its own satisfaction and in the fact of that case absence of any declaration by the parties in respect of Bihar Land Reforms Act 1961 and refusal to register the sale deed was held bad in law.
(3) E.Eshaque v. Sub-Registrar, Kozhikode and Anr. [AIR 2002 KERALA 128] whereby it was held that registering authorities is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. In this case also reliance was placed by the High Court of Kerala on the decision in the case of Bihar Deed Writers Association and Ors. v. State of Bihar and Ors. (4) State of Rajasthan and Ors. v. Basant Nahata [(2005) 12 SCC 77] In the above case Section 22 A inserted by Registration Amendment Act 16 of 1976 whereby documents to be registered if found opposed to public policy and notifications issued in this regard was held to be unconstitutional and secondly notifications issued thereunder where quashed and set aside. In the above decision even power of attorney was also interpreted in light of Chapter X of Contract Act, 1872.
and the Agent and submit that the Government Resolutions impugned in the writ petitions were not only contrary to provisions of Registration Act, 1908 but are also contrary to Indian Contract Act as well as Notary Act. Only limited inquiry is envisaged under Section 34 of the Registration Act.
- Mr. Kumar S.Trivedi, learned advocate, however, appearing for private respondents in the above writ petition opposed prayer of the petition and adopted arguments canvassed by learned Additional Advocate General and submitted that order impugned and HC-NIC Page 14 of 58 Created On Thu Aug 11 02:24:24 IST 2016 submitted with writ petition deserves to be rejected.
- Letters Patent Appeal No.22 of 2013 is preferred in Special Civil Application No.14413 of 2011, Letters Patent Appeal No. 23 of 2013 is preferred against Special Civil Application No.14421 of 2011 and Letters Patent Appeal No.24 of 2013 is preferred against Special Civil Application No.17541 of 2011 since all these writ petitions came to be allowed by common judgement by learned Single Judge on 9/10.5.2012. All these writ petitions were filed in view of grievances raised by the petitioners that under Section 53A of Transfer of Property Act entire part performance of the contract was complete. Even full sale consideration was also paid and possession was handed over to power of attorney, executant of the document the registering authority refused to register the documents. Special Civil Application No.13731 of 2012, as per order dated 28.1.2014 ordered to be heard with present group of appeals.
- For the purpose of considering question of law following provisions of Act 1908 are reproduced herein below:
PART VI OF PRESENTING DOCUMENTS FOR REGISTRATION "32. Persons to present HC-NIC Page 15 of 58 Created On Thu Aug 11 02:24:24 IST 2016 documents for registration.-
Except in the cases mentioned in [section 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) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
32.A. Compulsory affixing of photograph, etc.-Every person presenting any document at the
proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:
HC-NIC Page 16 of 58 Created On Thu Aug 11 02:24:24 IST 2016 Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.
- 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 [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) if the principal at the time aforesaid [resides in any part of India in which tis Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;
HC-NIC Page 17 of 58 Created On Thu Aug 11 02:24:24 IST 20
(c) if the principal at the time
aforesaid does not reside in [India], a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative [***] of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power- of-attorney as is mentioned in clauses
(a) and (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in Court.
[Explanation.- In this sub-section
(c) in the case of any person appearing as a representative, assignee 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.
- 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 HC-NIC Page 21 of 58 Created On Thu Aug 11 02:24:24 IST 2016 of the document, or
(b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or
(c) If the person executing the document is dead, and his representative or assignee 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
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or HC-NIC Page 22 of 58 Created On Thu Aug 11 02:24:24 IST 2016
(c) if any person by whom the document purports to be executed is dead, and his representative or assignee 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 rejsepct 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.}
- Duties of registering officers when document presented.-(1) (a) The day, hour and place of presentation, [the photographs and finger prints affixed under Section 32A], and the signature of
every person presenting a document for HC-NIC Page 23 of 58 Created On Thu Aug 11 02:24:24 IST 2016 registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same;
and (c) subject to the provisions contained in section 62, every document admitted to registration
shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.
68.Powers of Registrar to superintend and control Sub- Registrars
(1) Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate.
(2) Every Registrar shall have
HC-NIC Page 24 of 58 Created On Thu Aug 11 02:
authority to issue (whether on complaint or otherwise) any order
consistent with this Act which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.
- Power of Inspector-General to superintend registration offices and make rules (1) The Inspector-General shall exercise a general superintendence over all the 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 29[***];
OF REFUSAL TO REGISTER
- Reasons for refusal to register to be recorded (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub- district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.
HC-NIC Page 27 of 58 Created On Thu Aug 11 02:24:24 IST
- Appeal to Registrar from
orders of Sub-Registrar refusing registration on grounds other than denial of execution (l.) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.
(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-
Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly HC-NIC Page 28 of 58 Created On Thu Aug 11 02:24:24 IST 2016 presented for registration.
PART XIV OF PENALTIES
- Penalty for incorrectly
endorsing, copying, translating or registering documents with intent to injure.- Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document
in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code (45 of 1860), to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
- Penalty for making false statements, delivering false copies or translations, false personation, and abetment
HC-NIC Page 29 of 58 Created On Thu Aug 11 02:24:
Whoever- (a) intentionally makes any false
statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act;
or
(b) intentionally delivers to a
registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or
(c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or
(d) abets anything made punishable by this Act; shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.
- Registering officers may commence prosecutions.- (1) A
HC-NIC Page 30 of 58 Created On Thu Aug 11 02:24:
(h) Whether sale certificate and prior permission in writing of the authorities concerned are produced before him in original, if the deed relates to transfer of Government built property.
(2) If on presentation of the
HC-NIC Page 32 of 58 Created On Thu Aug 11 02:24:
document, the fees prescribed under section 78 are not paid demand, the registering officer shall refuse to register the document."
- To understand the controversy of this appeal, we reproduce three different Government resolutions dated 8.12.2010, 7.1.2012 and 30.10.2014 passed by Revenue Department.
HC-NIC Page 33 of 58 Created On Thu Aug 11 02:24:24 IST 2016 Implementation of e-governance project in the state by the State Government Government of Gujarat Revenue Department ITP-102010-173-H.2 Sachivalay, Gandhinagar Date: 08.12.2010 Resolution:-
Computerization of land revenue record has been done in the State. Accordingly, E-Dhara centers function in all 225 talukas of the State. Copies of 7/12, 8-A and village form no.6 are available at this center and entry of mutations are made. Registration of sale deed of properties is also done on computers. But, this service has been integrated and a project has been prepared in consultation with NIC for registration of documents, e-stamping for recovery of stamp-duty of the same and for automatic certification of entries after registration.
New method for mutations will be implemented with this integrated HC-NIC Page 34 of 58 Created On Thu Aug 11 02:24:24 IST 2016 software, which will be as under. (1) Before the sale deed is prepared, examination will be done of ownership of seller and buyer through biometric image. (2) The value of jantri of the land under sale can be seen immediately and the payment for the same can be made on the spot with e-stamping.
(3) Collect photograph and fingerprint of the buyer and seller of the land. Thereafter, the Sub Registrar will allow the transaction of sale with one click and will register the same.
(4) Automatic mutation entry will be made immediately in the village form no.6 and notice of 135-D will be generated for concerned persons having rights.
(5) The name of buyer landholder (with red mark) will be added with the original landholder in village form no.7/12. After the entry is certified, only the name of buyer landholder will remain in 7/12. (6) If objection application is not received within 30 days, the computer will certify and finalize the entry automatically.
HC-NIC Page 35 of 58 Created On Thu Aug 11 02:24:24 IST 2016 It was decided to implement this project first in Gandhinagar district as pilot project. Like the system of E-Dhara centers, this system will also be implemented at District level under the supervision of the concerned District Collector. Therefore, fingerprint, photo image and other data of all the landholders of the entire Gandhinagar district shall be captured. The District Collector, Gandhinagar was informed to undertake short notice tender procedure in order to complete this work within time limit.
Data such as photograph of farmer landholder, fingerprint and all the details included in 7/12 and address, telephone number, email ID etc. will be collected. It was informed to under take the procedure to publish short notice tender after draft of tender is prepared as per the technical specification prescribed by NIC in order to hire agency which can do this work in the village as per prescribed standard.
Thus, instructions are given to all the Collectors to undertake procedure for HC-NIC Page 36 of 58 Created On Thu Aug 11 02:24:24 IST 2016 the below mentioned points as per the above mentioned information.
(1) Collect data for this system of e-registration of properties and automatic mutation and certification of entries by integrated software under e-governance project and decide agency for the work of entry as per technical specification prescribed by NIC for Gandhinagar district by undertaking the process of short notice tender.
(2) All the concerned District Collectors are informed that such type of tender process should be undertaken for all the districts of the State and decide agency for this work of the concerned district.
(3) If any purchase has to be made under this project, it shall be done after getting permission of Purchase Committee of the Secretaries.
(4) As informed by the department, expense regarding this shall be made from the provisions under I.T for the year 2010-11.
(emphasis supplied) By order and in the name of the Governor of Gujarat.
HC-NIC Page 37 of 58 Created On Thu Aug 11 02:24:24 IST 2016 N. K. Ambalia Deputy Secretary Revenue Department.
(emphasis supplied) HC-NIC Page 38 of 58 Created On Thu Aug 11 02:24:24 IST 2016 Implementation of e-governance project in the state.
-Affidavit to be obtained from the power of attorney holder.
Government of Gujarat Revenue Department SCA-102011-996-H1 Date: 7.1.2012 Preamble:
(3) The original owner/ owners of the property have not revoked or withdrawn the power of attorney deed and the same is in effect.
- A document is to be
accepted on production of affidavit from power of attorney holder and in addition to all details of 7/12, photograph, fingerprint, signatures of power of attorney holder, etc. is to be taken/ examined with biometric system.
- Sub-Registrar has to send notice on the permanent and present address of original owner of the property to obtain his consent within 30 days. If original owner sends consent within 30 days or does not HC-NIC Page 41 of 58 Created On Thu Aug 11 02:24:24 IST 2016 intimate, procedure of document of registration is to be followed by considering it as tacit acceptance of original owner.
By order and in the name of the Governor of Gujarat.
Sd/- Illegible (H.K. Shah) Additional Secretary Revenue Department, Government of Gujarat.
(emphasis supplied) To affidavit to be obtained from the Power of Attorney holder to implement E-Governance Project in the State.
Government of Gujarat Revenue Department 11, Sardar Bhavan, Third Floor, Gandhinagar -
No. SCA-102011-996-(410/2014)/H.1 Dt. 30-10-2014 Preface :
Under the e-governance project in the State, integrated software has been prepared in consultation with National Informatics Center (NIC) for automatic HC-NIC Page 42 of 58 Created On Thu Aug 11 02:24:24 IST 2016 certification of entries after the documents of properties are received for registration and the new system has been implemented vide aforesaid perused resolution no. (1) of the Revenue Department dated 8/12/2010. As per this system, photograph of the original landholder, fingerprint and all the details included in 7/12 are collected. Further, before preparation of the sale deed, checking of buyer and seller of agricultural land is done through biometric image. But, in cases of sale deed which are submitted for registration with the signature of 'the power of attorney holder' in the sale deed instead of the original farmer landholder, the photograph of the power of attorney holder and the photograph of the original landholder are not compared and administrative difficulties arise. Therefore, procedure to be followed in such cases has been stipulated vide the aforesaid perused Resolution No. (2) dated 7/1/2012.
While implementing stipulated procedure vide Resolution dated
7/1/2012, guidance of government was HC-NIC Page 43 of 58 Created On Thu Aug 11 02:24:24 IST 2016 sought in respect of raised questions vide the aforesaid perused letter no. (3) of Inspector
General of Registration, State of Gujarat, Gandhinagar dated 15/02/2014.
Resolution At the end of careful consideration, in order to protect interest of original farmer landholder and to avoid delay for the parties in registration process, it is hereby held to follow procedure by following special clarifications stipulated in the resolution dated 7/1/2012.
(1) In case of sale deed produced for registration by power of attorney holder, when original farmer landholder objects in stipulated time period that the document of Power of attorney registered does not bear his signature, signature of original landholder is to be compared with document of power of attorney holder and after comparison, if the said signature is found of original farmer landholder, further procedure of sale deed registration is to be followed.
(2) In case of tampering with
HC-NIC Page 44 of 58 Created On Thu Aug 11 02:24:24 IS
power of attorney document, on
production of certified copy of power of attorney document executed by farmer landholder and after comparing them, if it is found that power of attorney holder has fraudulently modified/tampered with power of attorney document, reasons for the same are to be noted on record by taking into consideration the provisions of the Registration Act, 1908 and further procedure shall be followed for not accepting the said registration deed.
(3) When cover of notice sent by Sub-Registrar to original landholder of property on his
permanent and present address for his consent is received back without notice being served, its reasons are to be noted on record and further procedure of document registration is to be followed.
By the order and in the name of the Hon'ble Governor of Gujarat sd/- illegible (Pravin Dhandhukiya) HC-NIC Page 45 of 58 Created On Thu Aug 11 02:24:24 IST 2016 Under Secretary, Govt. of Gujarat Gandhinagar.
(emphasis supplied)
- If we peruse common oral judgement of learned Single Judge, it cannot be said that learned Single Judge has not considered provisions of Section 32 and 33 of the Registration Act 1908. In the backdrop of contentions raised by learned AGP appearing in above three writ petitions based on
