Registering Authority Cannot Travel Beyond Sections 34 & 35 Of Registration Act To Refuse Registration Of Documents: Bombay High Court
The High Court held that the Registering Authority cannot go beyond the limited enquiry prescribed under Sections 34 and 35 of the Registration Act, 1908, to refuse registration of a document, clarifying that neither subordinate rules nor executive circulars can enlarge the statutory scope of enquiry by requiring verification of compliance under other enactments.
The Bombay High Court has held that to refuse registration by invoking alleged violations under other statutes, or by insisting on additional permissions or No Objection Certificates not contemplated by Sections 34 and 35 of the Registration Act, 1908, would amount to travelling beyond the parent statute and would be impermissible in law.
The High Court held that Rule 44(1)(i) of the Maharashtra Registration Rules, 1961, requiring the Registering Authority to ascertain whether a transaction is prohibited under any Central or State enactment and to insist on permissions or NOCs, must be read down as being inconsistent with Sections 34 and 35 of the Registration Act, 1908.
The Court was hearing writ petitions challenging orders passed under Section 72 of the Registration Act, 1908, whereby the District Registrar and Additional Collector had refused to register sale deeds in respect of residential plots on the ground that the lands allegedly constituted fragments under the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and also fell within a “Red Zone” requiring NOC from the competent authority.
A Division Bench comprising Justice Bharati Dangre and Justice Manjusha Deshpande, while examining the scope of the Registering Authority’s powers under Sections 34 and 35 of the Registration Act and the validity of reliance placed on Rule 44(1)(i) of the Registration Rule, relied on a previous decision in M/s. Sunderson Vs. State of Maharashtra (2008) and held: “Sections 34 and 35 of the Registration Act, 1908, do not give power to the Collector to give directions to the Sub–Registrar to refuse registration of a document. The provisions regarding registration of documents are enumerated in the Registration Act, 1908, itself. The executive instruction of the State cannot circumvent a statutory provision”.
Background
The Sub-Registrar had refused registration of the sale deeds on multiple grounds, including alleged fragmentation under the 1947 Act, absence of Non-Agricultural permission, and the requirement of NOC as the land fell within the Red Zone of the Dehu Road Ammunition Depot.
The appellate authority under Section 72 confirmed the refusal, additionally observing that there was a delay in presentation of the documents and a penalty was attracted under Sections 23 and 25 of the Registration Act.
Before the High Court, the petitioners contended that the land fell within municipal limits and that mere registration of a sale deed did not amount to development or construction requiring NOC. They further argued that the Registering Authority could not refuse registration by invoking compliance requirements under other enactments.
Court’s Observations
At the outset, the Court addressed the objection regarding delay and held that the documents had been presented within the statutory period prescribed under Section 23 of the Registration Act. The finding regarding levy of penalty was found unsustainable.
The principal issue, however, concerned the reliance placed on Rule 44(1)(i) of the Maharashtra Registration Rules, 1961, which required the Registering Authority to ascertain whether the transaction was prohibited by any existing Central or State law and whether requisite permissions or NOCs had been attached.
The Court noted that an identical issue had earlier been considered in Govind Ramling Solpure v. State of Maharashtra, wherein Rule 44(1)(i) had been examined vis-à-vis Sections 34 and 35 of the Registration Act.
Quoting from earlier decision, the Court reiterated that Rule 44(1)(i) directing the Registering Authority to ascertain whether the transaction is prohibited by any existing Act of Central Government or the State Government and requiring permission or no objection from the Competent Authority, is required to be read down and not required to be followed by the registering authority, while registering document under Section 34 read with Section 35 of the Registration Act, 1908.
The Bench emphasised the settled principle that subordinate legislation cannot travel beyond the parent statute, holding that the Rules cannot travel beyond the rule-making power conferred by the parent statute. Since Rule 44(1)(i) did not align with Sections 34 and 35 of the Registration Act, it will have to be read down appropriately, the Court remarked.
The Court further observed that Sections 34 and 35 exhaustively enumerate the scope of enquiry before registration. Referring to Section 34(3), the Court held that the Registering Authority is required only to enquire whether the document was executed by the persons who purport to have executed it, satisfy himself about their identity, and verify the authority of agents, if any.
“Upon perusal of Section 34 Sub Clause (3), it is evident that the Registering Authority is supposed to enquire that the document executed is by the same person who purports to have executed it; satisfy about the identity of such person appearing before him; and in case a person is represented through an agent satisfy himself of right of such person to appear. Thus, … the Registering Authority cannot travel beyond the statutory provisions”, the Bench further remarked.
Addressing the specific objection based on the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the Court held that the State Government is thus “not empowered to issue directions to the Sub–Registrar, to desist from registration of a document on account of breach of conditions of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947.”
The Court concluded that the circular issued by the State Government directing the Registering Authority to insist upon additional documents was contrary to Sections 34 and 35 of the Registration Act, and that Rule 44(1)(i) must be read down to align with the parent statute.
Conclusion
Applying the law laid down in Govind Ramling Solpure, the Division Bench held that the impugned orders refusing registration were unsustainable. The Registering Authority had exceeded its statutory jurisdiction by importing compliance requirements from other enactments into the registration process.
The writ petitions were allowed, and the impugned orders were quashed and set aside.
Cause Title: Siddharth Goel v. The Sub Registrar Class II (Neutral Citation: 2026:BHC-AS:9479-DB)
Appearances
Petitioner: Nitin P. Deshpande, Advocate
Respondents: S.P. Kamble, AGP, M. M. Pabale, AGP
