State Can't Empower Registrar To Cancel Registered Sale Deed Sans Declaration By Court That It Is Vitiated By Fraud: Jharkhand High Court

The Jharkhand High Court has held that unless there is a declaration by a civil Court that a deed is vitiated by fraud, a registered deed cannot be cancelled by the Registrar. Justice Gautam Kumar Choudhary set aside a Circular conferring such power on the Registrar and observed that, "The executive power of the State Government under Article 162 is coextensive with the legislative power of the State legislature. But, in the absence of any law, the State or its officers in the exercise of executive authority, cannot infringe citizen's rights merely because legislature has power to make law on the subject...registration of an instrument entails legal consequence affecting the legal rights of a citizen, and power of cancellation of such document cannot be permitted by an executive order, as it will be against the scheme of statutory provisions as contained in the Registration Act, 1908.”The State of Jharkhand issued a Circular conferring jurisdiction on Deputy Commissioner-cum-Registrar for cancellation/annulment of sale deeds, and in exercise of this power, miscellaneous cases were registered, notices were issued and/or order of cancellation was passed against the petitioners, who had moved the Court for quashing of these cases and the notices.A batch of 33 writ petitions were filed challenging the notification, and the subsequent miscellaneous proceedings were initiated based on it. However, in some writ petitions, the notification was not challenged, but the legality of the miscellaneous proceeding initiated for cancellation, or the order passed for cancellation by the Deputy Commissioner-cum-Registrar, was under challenge. Since they all raised a common question with regard to the power of the Registrar to cancel the registered deeds of conveyances, all these writ petitions were heard together.The common question of law involved was - 'Registrar has power to cancel a registered instrument and can such power be conferred to cancel registered sale deed, that too by an executive order?'The Court noted that the sum and substance of the impugned notification was that in cases where execution of a deed of conveyance has been obtained fraudulently by presenting forged documents, the Registrar shall have power of cancellation of such deeds. Further, such powers can be exercised also, in case of execution of a document by an imposter after an enquiry into the matter.The Court acknowledging the Advocate General's contention that the menace of fraudulent registration is on the rise, observed, “Problem is not confined to fraudulent registration, there is a spurt in land centric litigation whether civil or criminal. There cannot be two views that law needs to grow to meet emerging challenges.”“What need to be examined in the present context, is whether the means to check the menace adopted in the form of the impugned circular, by vesting power of cancellation on the Registrar, is legally sustainable or not. Mere right object cannot cloth an executive order with legality, as the said order gives power to deprive citizens of their valuable legal right of property,” the Court added.The Court further observed that there cannot be two views that existing provisions of the Registration Act, do not confer the Registrar with power to cancel a document which has been already registered. The Court asserted that Even in cases of fraud or forgery, the Registration Act, does not confer such a power on the Registrar to cancel a registered instrument. The Court further asserted that the very need to bring in the Circular by the State Govt vesting the power on Registrar of cancelling a registered instrument arose, as no such power existed in the existing statute, and thus, the power of cancellation that has been vested by the impugned order is beyond the scope of the Registration Act.The Court observed that Section 21 of the General Clauses Act cannot be invoked to annul a quasi-judicial order and that too when an indefeasible right has accrued in favour of a party. “title of the executant in the property is transferred from the date the sale deed is registered, provided the executant had a title in the property. Such indefeasible legal right flowing from a registered instrument cannot be taken away without any statutory basis only by having recourse to Section 21,” the Court added while rejecting the plea of the Respondent State.Lastly, the Court opined that Registrar has no power to cancel registered sale deeds and the State Government cannot by an executive order, confer such a power on the Registrar. “For the reasons as discussed above, impugned Circular vesting power of cancellation on the Registrar is not sustainable in law and is accordingly set aside, along with the cases instituted/ notices issued/orders passed under it along with the consequential order for institution of F.I.R. Cancellation of sale deeds otherwise also by the Registrar, which is under challenge in the writ petitions is also set aside. Party aggrieved by...

State Can't Empower Registrar To Cancel Registered Sale Deed Sans Declaration By Court That It Is Vitiated By Fraud: Jharkhand High Court

Bhavya Singh

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