NOC Not Mandatory For Registering Sale Of Fragmented Land: Bombay High Court Strikes Down Provision In Maharashtra Registration Rules, 1961

A circular issued by the Inspector General of Registration and Controller of Stamps (IGRCS), on July 12, 2021 based on Rule 44(1)(i), mandated enclosure of permission from the concerned authority in view of section 8B of the Maharashtra Prevention of Fragmentation and Consolidation of Holding (Amendment) Act, 2015. The circular barred Sub-Registrar's from registering any sale/transfer deed, if the no objection from the competent authority was not produced.

The High Court has ruled that the registering authority shall not reject any document on the ground of non-compliance of the conditions set out in the circular dated July 12, 2021 or for non-compliance of that rule.

A division bench of Justices RD Dhanuka and SG Mehare, in a judgement on Thursday at the Aurangabad bench, observed that the said Rule was contrary to section 34 of the Registration Act, 1908 and expressly beyond the powers conferred under section 69 of the Registration Act, 1908.

"The rules which can be framed cannot be beyond the rule making power conferred by the Parent statute or supplants any provision for which power is not conferred. In our view, Rule 44 (1)(i) is not in accord with the provisions of sections 34 and 35 of the Indian Registration Act and cannot travel beyond the said provisions," the bench held.

The court also held that neither sections 34 and 35 nor section 69 of the Indian Registration Act empowered the State Government to issue directions to the Sub-Registrar to desist the registration of the document on account of breach of any terms and conditions under the provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act, 1947 or under any other law or without obtaining prior No Objection Certificate from the concerned authority as a precondition for the registration of any document.

The court was hearing a challenge to the Rule by three individuals from the same district of Maharashtra stating that the concerned authorities had refused to register sale deed for certain land parcels citing Rule 44(1)(i) and July 2021 circular.

Advocate Rameshwar Totla, appearing for the petitioners, argued that though section 69 of the Registration Act, 1908 empowered the IGRCS to frame rules, but by exercising those powers, the concerned authority cannot frame rules which are contrary to the provisions of the Indian Registration Act, 1908.

"Conferment of rule making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto," he argued.

"The IGRCS cannot expand the jurisdiction of registering authority which is otherwise restricted and limited to the factum of execution of the document, identity of persons appearing before the registering authorities and if a person appears through a representative or agent, then as regards right of such person to appear," Totla further argued.

Government Pleader D R Kale, defending the rule, submitted that the petition was not maintainable on the ground that the petitioners had alternate remedy of filing appeal under section 71 of the Registration Act, 1908 before the District Collector being Revenue Collector i.e. Ex-Officio District Registrar and competent authority.

On merits of the case, he cited the provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holding Act, 1947, and submitted that section 8B under which no person was allowed to transfer any parcel of land situated in certain areas with areas less than the standard area notified, unless that land parcel was created due to sub-division or layout approved by the planning authority or by the Collector under the provisions of Maharashtra Regional and Town Planning Act, 1966.

He submitted that the petitioners could not show that the properties which they sought to get registered via a sale deed were due to subdivisions or approved layout by the planning authority or the Collector under Maharashtra Regional and Town Planning Act, 1966.

On Rule 44, he submitted that if a transaction which was prohibited by any existing Act of Central or State Government, then the true copy of requisite permission or No Objection Certificate from the competent authority under the said Act, is to be attached.

"The said Rule 44(1)(i) is framed with a view to consolidate the enactments relating to the registration of documents and to prevent any violation of statutes by the party applying for registration of document," Kale argued.

The bench relied on State of Rajasthan and Ors. Vs. Basant Nahata (2005) 12 SCC 77 where the provisions of the Registration Act, 1908 and Rajasthan Amendment Act 16 of 1976 were discussed, and the Supreme Court had ruled that a section as inserted by Rajasthan Amendment Act 16 of 1976 through subordinate legislation cannot control the transaction which fall out of the scope thereof.

The bench also relied on Union of India & Ors. V S Shrinivasan (2012) 7 SCC 683 where the apex court had held that if a rule goes beyond rule making power conferred by the statute or supplants any provision for which power is not conferred, it becomes ultra vires.

The bench also noted that the Bombay High Court, in the case of M/s. Sundarsons V. State of Maharashtra decided on June 26, 2008 had interpreted sections 34 and 35 of the Indian Registration Act and held that under the said provisions there was no power given to the Collector to give directions to the Sub-Registrar to refuse the registration of the document.

"In our view, the Sub-Registrar while registering the document under sections 34 and 35 of the Registration Act is not an adjudicating authority and has no power of adjudication as to whether the transaction which is subject matter of the document lodged for registration is validly executed or not or is prohibited by any law or not. If the respondents wanted to confer such powers upon the Sub-Registrar or registering authority, such powers would have been conferred specifically by carrying out appropriate amendment by following due procedure in the Parent Act and not by framing rules or by issuing circular," the High Court held.

Case Title: Govind Ramling Solpure and Ors. versus The State of Maharashtra and Ors.

Citation: 2022 LiveLaw (Bom) 177