IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO. 10582/2018 (GM-RES) BETWEEN:
MR. MANU N S/O M. NAGARAJ AGED ABOUT 32 YEARS #151, RUSTUMJIVILLAS WHITEFILED BENGALURU - 560 066.
...PETITIONER (BY SRI. R.K. SOURABH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT VIDHANA SOUDHA VIDHANA VEEDHI BENGALURU - 560 001.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF STAMPS AND REGISTRATION M.S. BUILDING BENGALURU - 560 001.
3. THE INSPECTOR GENERAL OF REGISTRATION AND COMMISSIONER OF STAMPS, KANDAAYA BHAVAN 8TH FLOOR, K.G. ROAD BENGALURU – 560 001.
4. OFFICE OF THE SUB-REGISTRAR HOSKOTE, MINI VIDHANA SOUDHA HOSKOTE, BENGALURU RURAL DISTRICT, BENGALURU – 562 114.
5. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYAT RAJ M.S. BUILDING BENGALURU - 560 001.
...RESPONDENTS (BY SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR SRI. M.S. DEVARAJU, ADVOCATE FOR IMPLEADING APPLICANT;
SRI. SREENIDHI, AGA FOR R-1 TO R-5) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE CIRCULAR DATED 18.07.2014 PRODUCED IN ANNEXURE- F AND QUASH THE CIRCULAR DATED:03.02.2014 PRODUCED IN ANNEXURE-N TO THE EXTENT OF THE DIRECTIONS TO THE OFFICERS OF SUB-REGISTRARS.
THIS PETITION HAVING BEEN HEARD AND RESERVED COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner is a developer engaged in the activity of construction and had entered into a joint development agreement on 16.12.2015 with the owner of the property bearing Sy.Nos.17 and 18, Ekarajapura Village, Sulibele Hobli, Hoskote Taluk, Bangalore Rural District, Bengaluru, for construction of a warehouse in the said property. As per the terms of the joint development agreement, owners of the lands have agreed to transfer 57% of the said land to the petitioner in consideration for construction of warehouse. Owners of the said property have simultaneously executed a power of attorney dated 16.12.2015 i.e., on the same day the joint development agreement came to be executed in favour of petitioner for transfer and maintenance of said lands. Both the documents namely, joint development agreement and power of attorney have been duly registered in the jurisdictional Sub-Registrar Office i.e., fourth respondent.
2. Petitioner got the said land converted from agricultural use to non-agricultural purposes by order dated 12.09.2013–Annexure-C. Pursuant to joint development agreement and as envisaged in the said agreement, the owners of the property represented by their power of attorney holder namely, petitioner herein has executed an absolute sale deed on 05.10.2018 to convey 57% share in the said property. Said document on being presented for registration, an endorsement dated 05.02.2018 – Annexure-E came to be issued to petitioner indicating thereunder that “property cannot be registered as it is Form No.11-B without previous transaction/electricity bills”. Hence, said document came to be returned. In the light of sale deed presented by the petitioner having been returned, petitioner is before this Court not only seeking for quashing of the endorsement dated 05.02.2018-Annexure-E, but also for the following reliefs:
(a) To quash the Circular bearing No.Kam.E 06 Mu.No.Mu 2013 dated 18/07/2014 produced in ANNEXURE- F, (b) To quash the Circular bearing No.Gra.A.Pa 83 Gram.Pan.A 2013 (Bha-6) dated 03/02/2014 produced in ANNEUXRE-N to the extent of the directions to the Offices of Sub- Registrars, (c) To hold that “Kaveri E-Swathu Integration System” is ultra vires to the Articles of the Constitution of India.
3. I have heard the arguments of Sri.Sourabh R.K., learned counsel appearing for petitioner, Sri.Sreenidhi, learned Government Advocate appearing for respondents 1 to 5 and Sri.Ashok Haranahalli, learned Senior Counsel appearing on behalf of Sri.M.S.Devaraju for impleading applicant. Perused the records.
4. It is the contention of Sri.R.K.Sourabh, learned counsel appearing for petitioner that respondent–authorities do not have authority under the Registration Act, 1908, Karnataka Stamp Act, 1957 or any other enactment to verify the title by restricting the registration of documents relating to immovable properties. Hence, under the guise of ensuring authorised development of immovable properties, state cannot restrict the registration of properties.
5. He would further submit that on the strength of the Circular dated 18.07.2014, which has been passed pursuant to earlier Circulars dated 06.04.2009, 24.01.2013 and 23.04.2013, second respondent has informed the Offices of the Sub- Registrars across the State to verify Form No.11-B produced by the applicants, who presents a document for registration with the integrated software called ‘Kaveri E-Swathu Integration System’ and register only such properties that are authorised by the software. Elaborating his submission in this regard he contends that Circular dated 06.04.2009 has already been quashed in W.P.No.18939/2009 by order dated 18.03.2016 and said order is stayed by the Hon’ble Apex Court and same is pending and yet State is insisting that property would be registered only if it is authorised by “Kaveri E-Swathu Integration System”.
6. He would further contend that fifth respondent by Circular dated 03.02.2014–Annexure-N has specifically directed the sub-registrar about the documents which can and cannot be accepted for registration of documents relating to immovable properties. In the light of Rule 30 of the Karnataka Panchayat Raj (Grama Panchayats Budgeting and Accounting) Rules, 2006, which according to learned counsel for the petitioner is only for the purposes of knowing the distinction between Form No.11-A and Form No.11-B i.e., where lands/properties are vacant and properties on which buildings have been constructed without authorization and in this background he contends that Form No.11-B, which relates to vacant land has been issued to the petitioner and same had been produced by the petitioner at the time of registration of sale-deed and as such, Sub- Registrar could not have refused the registration. Thus, sub delegation of authority to the Grama Panchayat is an outright abdication of duty cast on the Sub- Registrar, since the authority to identify the property before registration is vested with the fourth respondent under Section 21 of the Registration Act, 1908 and said enactment does not provide for sub delegation of authority to the Grama Panchayat authorities.
7. He would further submit that by virtue of Circular dated 18.07.2014 the duties and responsibilities of the Sub-Registrar is now handed over to Grama Panchayats by integrating the registration by software called ‘Kaveri’ with Grama Panchayat software called ‘E-Swathu’ and same is impermissible in law.
8. He would further contend that when fourth respondent has already registered the lease deed in respect of portion of same property on 01.02.2018 i.e., four days prior to the presentation of absolute sale in question, at which point of time Form No.11-B was not presented for the purpose of identification of property and as such, fourth respondent could not have refused the registration of sale deed in question by selective approach. Hence, he prays for quashing of Annexure-P.
9. He would further contend that there is no legal basis or provision of law for the implementation of ‘Kaveri E-Swathu Integration System’ and has been implemented without any proper consideration of the impact that it would have on the general public. Hence, it is liable to be quashed.
10. Sri. Sreenidhi, learned Government Advocate reiterating the contentions raised in the statement of objections would submit that impugned Circular dated 18.07.2014 has been issued to avoid registration of properties in unauthorized layouts and it is a policy decision of the State, which petitioner has no right to question. He would further submit that in order to ensure that there is orderly development of immovable properties impugned Circulars have been issued and there is no sub delegation of authority to the Grama Panchayat by the Government and sole purpose requiring certain documents from Grama Panchayats for the registration of properties is to identify the said property located in Grama Thana and same is approved by the Grama Panchayat.
11. He would submit that ‘Kaveri E-Swathu Integration System’ is a system developed by the Government of Karnataka to identify the properties and it enables the properties assessed to tax and identify that same is not unauthorized site/land and it would help orderly development and regularization of sites. He would submit that pursuant to observations made in W.P.No.12278/2007 (LB-RES) vide order dated 07.07.2008 Circular dated 15.06.2016 was issued and E-Swathu software was commissioned for registration of tax assessment list in all the Grama Panchayats in the State of Karnataka. This software would generate Form No.9 and Form No.11 as contemplated under Rule 28 and Rule 30 of Rules, 2006 and Form No.11 was substituted by Form No.11-A and 11-B by virtue of notification dated 21.01.2014. He would contend that for issuance of Form No.9 any of the documents as prescribed under Rule 28 of Rules, 2006 is required to be furnished and when the said documents are produced E-Swathu software will generate Form No.9, which would reflect the properties situated in the Grama Panchayat area and the moment Form No.9 is generated, Form No.11-A would also be automatically generated indicating the taxes payable for the said properties in the respective Grama Panchayats and calculation of taxes is done in the E-Swathu software. He would submit that properties which are not regularized or which are not situated in the approved layout and properties where Form No.9 and Form No.11-A are generated by E-Swathu software, Form No.11-B under Rule 30 is generated by the E-Swathu software and on production of documents prescribed under Rule 28 of Rules, 2006, Form No.11-B generated would be converted into Form No.9 and Form No.11-A and contends that purpose and intent is to collect taxes on all the properties falling within the territorial jurisdiction of Grama Panchayat. Hence, he submits that there is no infirmity in the impugned Circulars and prays for rejection of the writ petition.
12. Sri Ashok Haranahalli, learned Senior Counsel appearing for the impleading applicant would contend that applicant owned the lands in question namely, Sy.No.17 & 18 and Joint Development Agreement was entered into with the petitioner on 16.12.2015, whereunder petitioner had agreed to develop the property within 18 months with a grace period of 4 months, which has not been adhered to by the petitioner and even after lapse of 2½ years, petitioner has not obtained sanction plan as well as licence for putting up construction from the competent authority. Hence, contending that applicant being the owner of the property, in respect of which registration has been sought for by petitioner, would be the affected person and hence, he is a necessary and proper party to these proceedings. On these grounds, he prays for allowing the application filed for impleading and seeks for applicant being brought on record as sixth respondent.
13. Having heard the learned Advocates appearing for the parties and on perusal of the records as well as the case laws relied upon, this Court is of the considered view that following points would arise for consideration:
(1) Whether the application– I.A.No.1/2018 filed by the proposed sixth respondent for being impleaded as party to the present proceedings deserves to be allowed or rejected?
(2) To what relief the petitioner is entitled to?
RE: POINT NO.(1):
14. Order 1 Rule 10 CPC provides for addition of proper or necessary parties and striking out of improper or unnecessary parties. A person may be added as a party to the proceedings, when he ought to have been joined as a party or when his presence is necessary in order to dispose of the proceedings effectively or without his presence the proceedings cannot be disposed of. Thus, the requirement of the Rule is, exercise of judicial discretion. A necessary party is one, in whose absence the Court cannot pass an effective order. Proper party is one, whose presence before the Court is necessary for passing an effective order or determining the dispute that has arisen. In this background, prayer sought for in the application by the applicant to get himself impleaded will have to be examined.
15. There is no dispute to the fact that petitioner having entered into a joint development agreement with the proposed sixth respondent on 16.12.2015 as the owner of the property bearing Sy.No.17 & 18 situated at Ekarajapura village, Sulibele Hobli, Hoskote Taluk, Bangalore Rural District vide Annexure-A. A perusal of the said agreement would disclose that the parties have agreed namely, proposed sixth respondent has agreed to transfer 57% of the said lands to the petitioner in consideration of construction of a Warehouse. He has also executed a power of attorney of even date in favour of the petitioner for transfer and maintenance of the said lands and both the documents are duly registered. Thus, said two documents have come into existence on the same day and they are contemporaneous documents. In other words, the power of attorney executed along with agreement is an agency coupled with interest. However, there seems to be certain disputes having arisen between petitioner and the proposed sixth respondent in respect of said joint development agreement.
16. The proposed respondent along with other members of his family has leased a portion of the subject property to a third party namely, M/s.Fine Tech Corporation Private Limited under lease deed dated 01.02.2018 which has been duly registered in the fourth respondent’s office. Petitioner is also a party to the said deed as confirming party and execution of joint development agreement dated 16.12.2015 is also reflected in the said lease deed. Thus, the dispute between the parties revolves around remaining portion of said property. Thus, the interse dispute between petitioner and the proposed sixth respondent, if any, is required to be worked out or adjudicated in an appropriate proceedings before the Civil Court and in the present proceedings, the right of either parties relating to the subject property being declared would not arise and as such, this Court is of the considered view that proposed sixth respondent is neither a proper nor necessary party to the present proceedings.
17. In the event of the prayer sought for by the petitioner is not granted by this Court, necessarily, the proposed sixth respondent would be at liberty to work out his right in a civil Court by initiating appropriate proceedings against the petitioner and for this reason also, it has to be held that for adjudicating the prayer sought for by the petitioner in this petition, presence or absence of proposed sixth respondent would have no bearing at all. Hence, the Interlocutory application – I.A.No.1/2018 filed for impleading deserves to be rejected.
RE: POINT NO.(2):
18. The registration of a document relating to immovable property is only to ensure that the public has notice of such transaction/s in relation to the immovable property. All such document enumerated under Section 17 of the Registration Act, 1908 (for short ‘Act’) are to be compulsorily registered. Such registration would enable all such person/s, who intends to deal with such property, as they can find out about any existing encumbrance/s, legal obligations, rights and ownership over such property and registration acts as constructive notice to a person who subsequently acquires such property or any part thereof, or share or interest therein. The object of registration is to provide guarantee or genuiness of the instrument though registration of a document by itself is not sufficient proof of its execution and genuiness. The registration of a deed provide information to people to deal with the property and when a person wants to ascertain whether any transaction has taken place in regard to an immovable property or the particulars of such transaction, he can either apply to the Registration Office to make a search or seek permission to personally inspect the Registers. In fact, every document registered is copied in Book – I (now C.D) and particulars thereof enumerated in the document are entered in the statutory Indexes I and II. This would enable a person who wants to ascertain as to whether any transactions have taken place in regard to an immovable property or particulars of such transaction to apply for search or permission to personally inspect the Indexes. An encumbrance certificate or Nil Encumbrance certificate as the case may be, is issued by the Registration Office showing the result of such search. In essence, registration of a document gives a solemnity to it and thereby gives constructive notice to the general public about such document having been executed and gives reliable and complete account of such registration effecting the title of the property.
19. The Division Bench of this Court in the case of S SRINIVASA RAO vs SUB REGISTRAR reported in ILR 1990 KAR 3740 has held that if a document is presented for registration by the executant, and in doing so, the executant complies with all the provisions of the Registration Act, 1908 it is not open to the sub- Registrar to refuse registration of a document unless, he exercises that discretion pursuant to any provision in the Act, or any Rule or any other law having the force of law. Matters relating to the title have to be decided before an appropriate forum. Mere registration of a document by itself is not a proof of its validity, neither does it follow that the executant had title to the property, he seeks to dispose of under the document. If any person is interested in contending that any particular document executed and registered is invalid or illegal for any reason whatsoever, he would be at liberty to question the validity of such document or the title of the executant and all such or other questions that would arise will have to be adjudicated before the proper forum in an appropriate proceedings.
20. When a person who claims to be the owner or a person interested in an immovable property, finds that some one else had executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and seek consequential reliefs. The Court of law has jurisdiction to declare a document to be a void and even order for cancellation of a document. However, under no circumstances, a person claming to be the owner of a property or a holder of a property, can require the registering authority to cancel the registration of a document or to cancel the entry made in Book I in regard to a registered document or to delete or remove the entry made in the Indexes relating to Book I. The Registering Officer does not possess any such power.
21. Section 34 of the Act lays down the nature of enquiry to be held by the Registering Officer before registering a document. The nature and scope of enquiry required to be made has been explained by a co-ordinate Bench of this Court in the matter of A.G.SHIVALINGAPPA (SINCE DECEASED) BY LRS AND OTHERS vs A.G.SHANKARAPPA & ANOTHER reported in ILR 1991 KAR 1804. Section 34 lays down the nature of enquiry to be held by the sub-Registrar before registering a document. It is quite patent that sub-Registrar is required to make an enquiry whether a document has really been executed by the person, who purports to have executed and further satisfy himself as to the identity of the executant or his representative who appears before him. It is well settled law that question as to the validity of the document is alien to such an enquiry. If the executant admits having executed a document, the Sub Registrar must order registration of the document so presented in accordance with the provisions of the Act.
22. A circular dated 06.04.2009 similar to the impugned circular dated 18.07.2014 – Annexure-F, which came to be issued by the State was under challenge before the Division Bench in W.P.No.18939/2009 and connected matters, wherein it was contended that Section 22A of the Registration Act, 1908 inserted by Karnataka Act 55/1976 with effect from 25.10.1976, which was in paramateria with Section 22A incorporated by the State of Rajasthan has been struck down by the Hon’ble Supreme court in the case of STATE OF RAJASTHAN vs BASANT NAHATA reported in (2005) 12 SCC 77 and therefore, the circular dated 06.04.2009 prohibiting registration of certain documents by the Sub Registrar is also illegal, null and void came to be considered in the background of the plea raised by the State whereunder it was contended that said circular lists certain transactions of the documentation of which cannot be registered as they violate provisions of Central and State laws and those laws are Section 21(1) and (4) of the Registration Act; Sections 28, 34 & 45A of the Karnataka Stamp Act, 1957, Rule 3 of the Karnataka Stamps (Prevention of Undervaluation of Documents) Rules, 1977; Section 131(c) of Karnataka Land Revenue Act, 1964 read with Rule 46H of the Karnataka Land Revenue Rules and Section 81-A of the Karnataka Land Revenue Act, 1964; Section 6 of the Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978; Section 8 of the Karnataka Land (Restriction on Transfer) Act, 1991, Rule 114 (c) Sub-rule (2) paragraphs (a) & (h) of Income Tax Rules, 1962; Section 192A, B and C of the Karnataka Land Revenue Act, 1964, came to be repelled or in other words, rejected by arriving at a conclusion that Registration Act, 1908 does not concern itself with the nature of transfer or alienation of properties which are prohibited under other laws. It has been held that Sub Registrar cannot assume the powers or the authority to arrive at a conclusion that transaction is prohibited under any particular enactment and thereby prohibit its registration. On these amongst other grounds, circular dated 06.04.2009 came to be quashed. Said order is said to have been stayed by Hon’ble Apex Court.
23. Keeping this in mind, when the impugned circular dated 18.07.2014 is perused, it would clearly indicate that there is a specific reference to the circular dated 06.04.2009 pursuant to which impugned circular has been issued. In fact, circular dated 06.04.2009 which has been quashed by this Court was in the nature of guidelines issued to the Registration Officers, whereunder certain documents specified in Annexure-1 therein were required to be produced by an applicant for registration of a document and said circular having been struck down and impugned circular being in amplification of the circular dated 06.04.2009 or in other words, in addition to the same, it cannot be gain said that present impugned circular stands on a different footing.
This Court on 17.05.2018 had observed to the following effect:
“The grievance of the petitioner in this writ petition is that the sale deed dated 05.02.2018 produced at Annexure-D is not being registered by the Sub- Registrar on the premise that the property is registered in Form-11B. Form-11B is produced at Annexure-G and it shows that it is a converted land measuring 73,184 square meters.
The Sub-Registrar is present before the Court.
On instructions, Sri Vasanth V Fernandes, learned High Court Govt.Pleader submits that when the details of the property are fed into computer, the endorsement as per Annexure-E is generated which shows that the property cannot be registered.
It is not disputed that Annexure-G is a Khata certificate for 73,184 square meters of land. To a query as to whether an owner of a property can sell a portion of his property, no satisfactory reply is forthcoming from the learned HCGP. But it is stated that there is some lacuna in the software.
Sri Vasanth V Fernandes seeks time to take further instructions and to submit with regard to measures taken to rectify the software.
Call on 30.05.2018 for compliance.”
24. Keeping the above submission made by the learned High Court Government Pleader, on instructions of the Sub-Registrar who was then present before the Court, when the facts on hand came to be examined by this Court and observed as noted hereinabove, it would clearly emerge there from that several circulars have been issued relating to the registration of immovable properties across the State. The purpose and intent which is sought to be achieved by issuance of such circulars as contended by the State are:
Date of Circular Particulars/purpose sought to be achieved 15.06.2013 To issue Form No.9 and 11 by on- line through e-Swathu software after amending Rule 28 and Rule 30 of Karnataka Panchayat Raj (Grama Panchayats Budgeting and Accounting) Rules, 2006.
21.01.2014 Notification issued to amend Rule 30 whereunder Form No.11 was substituted by From No.11A and 11B.
03.02.2014 It was directed that all the properties in Gram Panchayats mandatorily should register the properties under Form No.9 for assessment of properties and 11A and 11B for demand and collection of taxes.
18.07.2014 What documents are to be registered and which cannot be registered to avoid registration of properties in unauthorized layouts. In other words, only those properties which had a document out of “E-Swathu” could be registered as a policy decision.
25. A bare reading of the above circulars would clearly disclose the purport and intent with which it has been brought is to ensure that taxes would be collected on all the properties falling within the territorial jurisdiction of the Gram Panchayats and to prevent inorderly development within the Gram Panchayat area. In fact, in the affidavit filed by the Deputy Director and Ex-officio Under Secretary to Government, Rural Development and Panchayat Raj Department, Bengaluru on 12.06.2018 (Affidavit dated 08.06.2018) it is specifically pleaded to the following effect:
“10. I submit xxx Gram Panchayat areas. The properties situated in the layout which is not converted would not be regularized by issuing Form No.9 and 11A under (wrongly typed instead of ‘unless’) the required documents are submitted. Which has resulted xxx Local Planning Authority.”
It is in this background, prayer of the petitioner requires to be considered.
26. Petitioner had entered into a Joint Development Agreement on 16.12.2015 with the owners of the property bearing Sy.Nos.17 and 18 situated at Ekarajapura Village, Hoskote Taluk, Bangalore Rural District for construction of warehouse. As per said agreement owners had to transfer 57% of said land to the petitioner in consideration of warehouse constructed in remaining 43% of land. A General Power of Attorney was also executed by owners in favour of petitioner. Subsequently the owners of the property in question leased 43% of their share namely, property fallen to their share under Joint Development Agreement, by executing a lease deed in favour of M/s.Fine Tech Corporation (P) Ltd., and presented the said lease deed dated 01.02.2018 for registration before fourth respondent, which came to be accepted without any objection. That apart, petitioner herein is also a signatory to the said lease deed as confirming party. In fact, Form No.11-B was also not presented along with said document and yet same came to be registered without any demur by fourth respondent. However, when petitioner, as registered Power of Attorney holder of proposed sixth respondent, presented a deed of conveyance i.e., sale deed dated 05.10.2018 for conveying 57% share in said property, impugned endorsement dated 05.02.2018 – Annexure-E came to be issued on the ground it is accompanied by Form No.11-B without previous transaction/electricity bills. Undisputedly, petitioner is possessing a power of attorney dated 16.12.2015 executed by proposed sixth respondent in respect of subject property, which is also duly registered, whereunder he possess a right to execute the sale deed in respect of subject property which he has been authorised to deal with, as could be seen from clause 15 of the said power of attorney. It reads:
“15. To enter into Agreement, to convey or deed of conveyance, mortgage deed or any other deed as or required by him in respect of the Developer’s 57% of the land in the schedule property along with the constructions therein and to collect and receive consideration and such other amounts immediately after completion of construction.”
27. By virtue of powers vested, petitioner has presented the absolute sale deed dated 05.02.2018- Annexure-D for registration of the subject schedule property, which has also been duly converted from agricultural to non-agricultural purposes by the order of Deputy Commissioner, Bengaluru Rural, Bengaluru through O.M. dated 12.09.2013. In fact, a composite e- Khata No.150300400201400870 is issued in respect of subject property also. On presentation of aforesaid document, it has been returned on the ground that petitioner has enclosed Form No.11-B along with the sale deed and it is not accompanied by electricity bills.
28. The State has sought to rely upon the Circulars date 18.07.2014 and 03.02.2014 to substantiate the impugned endorsement dated 05.02.2018–Annexure-E. A bare reading of Circular dated 18.07.2014 would indicate that production of Form No.11-B would be compulsory for registration of non agricultural immovable properties and circular dated 03.02.2014 issued by fifth respondent would disclose that the jurisdictional Sub-Registrars have been directed as to the documents which can and cannot be accepted for the purposes of registration of the documents.
29. Rule 30 of Karnataka Panchayat Raj (Gram Panchayats Budgeting and Accounting) Rules, 2006, mandates demand and collection of taxes on land and buildings situated within the gram panchayat area. Form No.11-A reflects the assessment made in respect of a property for which a demand has been raised relating to vacant lands and Form No.11-B reflects the assessment made in respect of a property for which demand has been raised relating to buildings constructed without authorization. Sub-rule (7) of Rule 30 reads as under:
“(7) The Gram Panchayat shall maintain in a separate register in Form 11-B, regarding assessment of taxes for buildings or vacant land or both including a building constructed in violation of the provisions of taxes for building rules or in an unauthorized layout or in a revenue land or a building occupied without issuance of occupancy or completion certificate except the building constructed illegally in Government land, and belonging to any local body, any statutory body or organization owned or controlled by the Government.”
30. A bare reading of sub-rule (7) of Rule 30 would clearly indicate that a separate register in Form No.11-B, relating to assessment of tax for building or vacant land or both which has been constructed in violation of provisions of building rules, or such property being located in an unauthorized layout or in a revenue land, as morefully enumerated therein is required to be maintained. Thus, intention of the legislature which can be gathered from reading of sub-
rule (7) of Rule 30 is to ensure that the property situated within the jurisdiction of a Gram Panchayat are developed in an orderly or authorized fashion and it is required for identification of such property. Thus, sub-rule (7) of Rule 30 will have to be read and understood for the purpose of which it has been enacted. Form No.11-B is also issued in respect of a vacant land or in other words, Gram Panchayat would maintain a separate register in Form No.11-B regarding assessment of taxes for vacant land independently. Though expression used in sub-rule (7) of Rule 30 namely the words “including a building constructed in violation of the provisions of taxes for building rules or in an unauthorized layout ........ completion certificate” at first blush would indicate that it applies to all vacant land falling with Gram Panchayat, it is not so. The vacant lands or building referred to therein refers to such property wherein the building has come-up unauthorisedly or in an unauthorized layout or in a revenue land etc. The different categories of building and land enumerated therein will have to be read disjunctively and not conjunctively.
31. In the instant case, the thrust of argument advanced by learned Government Advocate is that rejection of the sale-deed presented by the petitioner is on the ground that it is not accompanied by electricity bill of the building, which is one of the necessary ingredient of software developed by the State for registration of properties and sole intention of State is to ensure there is orderly development. Any software developed by the State or its agency will have to be necessarily in consonance with the provisions of the Act and to achieve the purpose of the Act and in aid of it. Any lacuna or deficiency in the software created by the State or its Authority contrary to the provisions of enactment, cannot stand the test of law. In the instant case, the State by a software relating to registration called ‘Kaveri’ and the software maintained by the Gram Panchayat Office called ‘E-Swathu’ has been integrated and is now called by name “Kaveri E- Swathu Integrated System”. By virtue of same, the impugned circulars which are integrated into the said software, would automatically reject the document/s presented for registration in the event of property sought to be registered has not undergone previous transaction or does not have electricity bills for lack of identification of the property. Like in the case on hand, where the document relating to an immovable property which has been duly converted by the statutory authorities is accompanied by Form No.11-B when presented for registration, would automatically stand rejected for lack of said property not being the subject matter of earlier transaction and there being no electricity bill produced. This is not the purport and intent of either the impugned circulars or the mandate of registration laws.
32. As rightly contended by Sri. Sourabh R.K., learned counsel appearing for the petitioner, Form Nos.11-A and 11-B serve the purpose of identifying the property sought to be registered and creation of distinction between two Forms i.e., 11-A and 11-B and additional requirement that Form No.11-B properties must have undergone previous transactions or have electricity bills, is only to restrict and control the unauthorised development of vacant lands. Thus, the presentor of document will have to appear before the jurisdictional Gram Panchayat Authorities and seek their permission for registration of the document relating to immovable property though possessing Form No.11-B, which would suffice for registration. This exercise of calling upon the presentor to appear before a different authority i.e., Gram Panchayat would amount to sub-delegation of the Authority vested with the Sub- Registrar. The Registration Act, 1908, does not empower the delegation of authority of the Registering Officer to the Gram Panchayat Authorities. Under the impugned circulars power of the Sub-Registrars has been entrusted to respective Gram Panchayats and same is not permissible under the provisions of Act. In fact, plain reading of Section 21 of the Registration Act would disclose that authority to identify the properties before registration is vested with the Registering Officer and said Officer would not be empowered to sub- delegate the authority to Gram Panchayat and as such, entrustment of said responsibility by the Sub-Registrar to any other Authority, would be contrary to Section 21 of the Registration Act.
33. Though impugned circulars for the reasons stated are liable to be quashed, it is not done so for the simple reason that, earlier notification dated 06.04.2009 issued on similar lines, which has been quashed by the Division Bench in W.P.No.18939/2009 and connected matter on 18.03.2016–Annexure-L, same is stated to be pending before the Hon’ble Apex Court. Even otherwise, software in question, which is not in consonance with the provisions of the Act, can be brought in line with the same, keeping in mind the observations made hereinabove and proceed to register the documents accordingly.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Writ petition is allowed in part.
(ii) “Kaveri E-Swathu Integration System” software is ordered to be brought in line with the provisions of the Registration Act, 1908, and Karnataka Registration Rules, 1961, by keeping in mind the observations made hereinabove.
(iii) Endorsement dated 05.02.2018– Annexure-E, is hereby quashed.
(iv) Fourth respondent is directed to register the Absolute sale deed dated 05.02.2018-Annexure-D presented by the petitioner forthwith by collecting registration fee and such other fee, as admissible including the additional stamp duty, if any.
(v) I.A.No.1/2018 filed by applicant for impleading is hereby dismissed.
(vi) No order as to costs.
SD/- JUDGE DR/sp