By means of this writ petition, the petitioner has sought the following relief:
"(i) To issue a writ, order or direction in the nature of commanding the opposite parties not to accept the deed of transfer unless the transferor fulfils the requirement of bye-laws no.12 and to register the said document.
(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties no.3 to 7 to supply the list of the documents i.e. deed of transfer presented for registration which do not accompany the receipt evidencing the payment of fee and No Objection Certificate issued by Zila Panchayat, Gonda to the petitioners."
No counter affidavit has been filed in this case by the State though the writ petition is pending since 2000.
For deciding this writ petition, the facts in short are that the petitioner no.1 Zila Panchayat Gonda in exercise of powers conferred under Section 239 (2) of Uttar Pradesh Keshetra Samiti and Zila Parishad Adhiniyam, 1961 framed bye-laws for imposing fee on transfer of agricultural land within the rural area of Zila Panchayat excluding the area falling under Nagar Panchayat, Nagar Mahapalika, Town Area, notified area, cantonment area. Under sub-rule (10) of Rule 7 of the bye-laws, it has also been mentioned that these bye-laws will apply on all the transfers made through mortgaged deed, account transfer, shares, sale or will deed etc. registered in the office of Sub-Registrar or the Registrar of the area. Rule 12 of the bye-laws imposes a fee at the rate of 0.5% on the total value of the property. Rule 13 provides that any such transfer as mentioned above if taken place without depositing the requisite fee would be illegal. A penal provision in Rule 15 of the bye-laws was also introduced whereby breach of any rule of the aforesaid bye-laws, a penalty of rupee one thousand shall be imposed for the first offence and in case of subsequent offence, the penalty would be Rs.50 per day and in case of default of payment of fine, imprisonment upto three months may be ordered.
After publication of these bye-laws on 29.08.1998 in the State Gazette, a letter dated 20.04.1999 (Annexure-2 to the writ petition) has been issued by Upper Mukhya Adhikari, Zila Panchayat, Gonda to all the Sub-Registrars of District Gonda stating therein that it is incumbent upon the Sub-Registrar/Registering authority that unless the receipt depositing the fee as required by the aforesaid bye-laws is not attached with the transfer deed, mortgage deed, will deed, sale deed etc., the same should not be accepted for registration. On account of non-compliance of letter dated 20.04.1999, Upper Mukhya Adhikari issued another letter to Sub-Registrar, Gonda stating therein that the requisite fee has not yet been started to be deposited by the persons transferring the land, hence, requested that after 29.08.1988 and till date, list of all the transfers be supplied for further action, failing of which, it shall be presumed that Sub-Registrar, Gonda is not complying with the provisions of Rule 12 of the aforesaid bye-laws. When this letter was also not responded, the Upper Mukhya Adhikari, Zila Panchayat, Gonda wrote a letter dated 14.05.1999 (Annexure-4 to the writ petition) to the Additional District Magistrate (Finance and Revenue), Gonda requesting him to issue necessary directions to all the Sub-Registrars of District Gonda for proper implementation of the bye-laws. Upper Mukhya Adhikari, Zila Panchayat also wrote a letter dated 05.06.1999 (Annexure-5 to the writ petition) to the Commissioner, Devipatan Division, Gonda with similar request to issue direction to District Magistrate and Additional District Magistrate to ensure the compliance of the by-laws.
The Commissioner, Devipatan Division, Gonda on 15.06.1999 (Annexure-6 to the writ petition) issued directions to District Magistrate, Gonda that he will ensure for compliance of the mandate contained in Rules 12 and 13 of the bye-laws. Thereafter Upper Mukhya Adhikari wrote letters to all the Sub-Registrars of District Gonda informing the letter issued to District Magistrate, Gonda by the Commissioner, Devipatan Division, Gonda for information. The Nagar Mukhya Adhiakri also warned the Sub-Registrars that in case, the bye-laws are not complied with on their part, the legal action may be taken against them and they shall be responsible for the loss.
We have heard Sri Arif Khan, learned counsel for the petitioners assisted by Sri M.A. Khan and Sri K.K. Shukla, Advocates and learned Standing Counsel for the State.
It has been submitted by learned counsel appearing on behalf the petitioners that in view of the bye-laws, which has statutory force, are binding upon the registering authority. They are bound not to accept any document for transfer unless it is not accompanied the requisite receipt of fee imposed by Nagar Panchayat.
Learned counsel for the petitioner relied upon the judgement of the Full Bench in the case of Tara Prashad Mishra Vs. State of U.P. And others: (1990) 2 UPLBEC 905 wherein it was held that whole set up of democratic system is based on the principle of rule of law and if the discipline and norms of administration is not followed by the subordinate officers, the rule of law cannot be established. All the subordinate officers are supposed to comply with the order passed by his superior officers. In case, the order of the superior officers is not followed by the subordinate officers, the whole system of administrative discipline would collapsed which leads to disorder and the result would be that the entire structure of administration as the rule of law shall fall down. In such a situation a third party may come to the Court for issuance of a suitable direction in order to clarify the position as well as in order to save himself from unnecessary harassment or any other disciplinary action.
It has been submitted by learned Standing Counsel that the Sub-Registrar and Registrar are not subordinate to the Commissioner or Upper Nagar Ayukat or District Magistrate, therefore, the bye-laws cannot compel the registering authorities not to accept the document for transfer which are presented for registration of the same. In support of his contention, learned Standing Counsel invited the attention of this Court to the provisions of Registration Act, 1908 (hereinafter referred to as the 'Act').
Section 3 of the Act contains the Officers of the registration establishment which includes Inspector General of Registration, Additional Inspector General, Deputy Inspector General and Assistant Inspector General, who may be appointed by the State Government.
Section 6 of the Act provides that the Registrars and Sub-Registrars may be appointed by the State Government or under the authority of the State Government by Inspector General. Similar provision for establishment of office of Registrar and Sub-Registrar is available in Section 7 of the Act.
Section 17 of the Act provides for compulsory registration of certain documents and Section 18 of the Act provides for option to get registration of certain documents.
Section 68 of the Act provides power of Registrar, who supervise and control the offices and affairs of Sub-Registrars. The Registrar under sub-section (2) of Section 68 have an authority to issue any order "consistent with this Act".
Section 69 of the Act provides the power to Inspector General for general superintendence over all the registration offences in the territories under the State Government. He also given power to make rules consistent with this Act subject to approval by the State Government.
Section 70 of the Act provides the contingency when Sub-Registrar may refuse to register the documents by giving cogent reasons for the same.
Section 78 provides the power of State Government to prepare a table of fee payable for registration of documents. The prescribed fee for registration of document under the Act shall be payable at the time of presentation of the documents.
Section 52 provides that when a document is presented in terms of Section 19 of the Act with the prescribed fee for registration, the Sub-Registrar or the Registrar, as the case may be, shall make an endorsement of day, hour and place of presentation and obtained signature etc. of every person presenting the documents for registration. As soon as, the document is presented for registration an endorsement shall be made by the Sub-Registrar or the Registrar in view of Section 59 of the Act and copied in the appropriate book without unnecessary delay.
The provisions of the Act clearly provide the authority of the registering establishment and the superintendence over the officers of establishment. The Commissioner of the Division does not fall within the ambit of officer of the registering authority, therefore, any direction issued by him with regard to compliance of Rules 12 and 13 have no binding effect.
Moreover, the Sub-Registrar is bound under the duties contained in Section 52 of the Act read with Section 70. The Registrar or Sub-Registrar is not supposed to refuse a document if it is otherwise not permissible under the provisions of the Act.
The fee prescribed under the bye-laws is not a fee prescribed for registration of the documents. It is a fee which ought to have been charged from the transferor by the Zila Parishad and the liability to collect the fee is on the officers of the Zila Parishad and not upon the Sub-Registrar or the Registrar.
There is nothing in the bye-laws to prohibit the registering authority to refuse the registration of the document on presentation without proof of payment of fee. No authority other than the registering authority under the Act could direct Sub-Registrar or Registering authority to do something which is not provided under the Act. In the absence of any order or direction passed by the State Government or Inspector General, Registration, Sub-Registrar cannot refuse to accept the document.
So far as the judgement of Full Bench in Tara Prasad Mishra's case (supra) relied upon by learned counsel for the petitioners is concerned, suffice to say that in the present case it does not extend any help to the petitioners in view of the discussion made hereinabove. The authority, who has no competence to issue direction to his subordinate such direction shall not have any binding effect. If any such direction is issued, having no authority to issue or against the statute, the competence of such a direction cannot be said to be the part of the administrative discipline and in such a situation the direction issued by the incompetent authority cannot be enforced under Article 226 of the Constitution of India.
In view of the discussion made hereinabove, the writ petition sans merit and is accordingly dismissed. There shall be no order as to costs.
Dated: 25th September, 2014 akverma