Ratan Kumari vs Additional District Judge, Jaipur and Others

J.K. Ranka, J.—By way of instant writ petition, the petitioner has sought quashing of the registration of a release deed dt. 15/10/2007 executed by Smt. Mohan Kanwar in favour of Dr. Bhagwan Sahai Rawat registered by the Sub-Registrar, Jaipur-VII at Serial No. 2007400002789, Page No. 168, Book No. 1, Volume No. 38. The petitioner is daughter of Smt. Mohan Kanwar (now deceased). It is the case of the petitioner that her brother Dr. Bhagwan Sahai Rawat, respondent No. 4 herein, fraudulently got a release deed, referred to herein before, registered in his favour from her mother Smt. Mohan Kanwar. The petitioner alleges that her mother Smt. Mohan Kanwar was suffering from extreme weak eye sight, old age and had several infirmities and was not mentally or physically fit and Dr. Bhagwan Sahai Rawat, in order to get undue benefit against the pious wishes of Smt. Mohan Kanwar, got the above deed registered by taking her signatures on paper at her residence. The petitioner further alleges that the Sub-Registrar had acted in derogation of his lawful obligation by registering such deed whereas he was bound to call a doctor and obtain fitness certificate of Smt. Mohan Kanwar before registering the said release deed, but in a mechanical manner, without seeing or physically examining Smt. Mohan Kanwar and without telling her about the contents of the deed, he registered the deed. The petitioner further alleges that the release deed was related to a property which was the main subject matter of the Civil Suit for partition filed by her and pending in the court of Additional District & Sessions Judge (Fast Track) No. 7, Jaipur City, Jaipur and as no permission was sought from the said court, the act of registration suffered from serious legal infirmities. The petitioner further alleges that the contents of the deed were contrary to the written statement dt. 23/07/1996 and ''Tehrir'' dt. 06/10/1997 executed by Smt. Mohan Kanwar as also against self written statement/communication dt. 30/04/1996 and affidavit filed under Order 18 Rule 4 CPC in Civil Suit No. 283/1991 (112/2007) and the Sub-Registrar failed to discharge his lawful duty by not checking the veracity of the contents of the deed. The petitioner further attacks the deed as well as the act of its registration on the ground that the affected property was self acquired property of her late father Hanuman Sahai Ji whereas the release deed was got registered by asserting that the property was ancestral and it was incumbent to verify the nature of the property before registration. However, the Sub-Registrar, without making any independent enquiry or any other endeavour in this behalf, acted without jurisdiction and this vitiates the whole process of registration. Being highly aggrieved by the registration of the release deed, the petitioner has sought the indulgence of this Court under its writ jurisdiction and has sought quashing of the registration of the above referred Release deed.

Interestingly, Smt. Mohan Kanwar herself, mother of the petitioner has been arrayed as respondent No. 3 in the instant Writ petition and she has filed reply of the Writ asserting that she was quite healthy and physically and mentally fit and could read and write easily. In her reply, she has further asserted that she is an educated lady and wife of an IAS officer and did her daily work without the help of any family members and had executed the Release deed after fully understanding the nature of the document and in full senses. Smt. Mohan Kanwar has further denied the other allegations of the Writ Petition.

The respondent No. 4-Dr. Bhagwan Sahai Rawat has also filed reply to the Writ petition denying the allegations levelled against him and asserting that the release deed was duly executed and registered.

The Sub-Registrar, Jaipur-VII, Jaipur who was made a party in the writ petition, has also filed reply to the writ petition, denying the allegations of the writ and asserting that the document was duly registered in accordance with the provisions of low.

The petitioner has also filed rejoinder to the reply submitted by Smt. Mohan Kanwar, her mother and Dr. Bhagwan Sahai Rawat, her brother, wherein she has levelled serious allegations against her brother Dr. Bhagwan Sahai Rawat and has asserted that the reply filed on behalf of her mother was creation of her brother and was another instance of the illegal activities carried upon by Dr. Bhagwan Sahai Rawat. In the rejoinder, she has also levelled allegations against counsel of Smt. Mohan Kanwar. She has alleged that the reply was nothing but creation of Dr. Bhagwan Sahai Rawat in collaboration with others and was an illegal act. It is further to be noted that Smt. Mohan Kanwar has since died and, as such, is not available to be present in person before this Court.

Learned counsel for the petitioner strenuously contended that the act of registration of the release deed suffered from serious legal infirmities. He contended that it was incumbent upon the registrar to evaluate the covenants of the Release deed. He submitted that when the fact of pendency of a civil litigation was incorporated in the Release deed, it was obligatory upon the registrar to direct Bhagwan Sahay to produce the documents in this behalf. He further asserted that Smt. Mohan Kanwar was mentally and physically unfit and was not in a position to read and write as she had severe cataract in eyes and the deed was got fraudulently executed by Bhagwan Sahay. He also contended that the averments of the Release deed were in contradiction to the written statement, documents of Mohan Kanwar filed in the partition suit and if the registrar had called upon Bhagwan Sahay to produce the fact file of the partition suit, it would have revealed that the release was nothing but a product of fraud exercised upon Smt. Mohan Kanwar by Bhagwan Sahay for extracting illicit gains. Hence he contended that the act of registration was in derogation of the mandatory obligations casted upon the Registrar under the Registration Act and the same needed to be annulled by this court under its writ jurisdiction. In support of his submission counsel has placed reliance upon judgments rendered by the Apex Court in the cases of Raghubar Singh and Others Vs. Gulab Singh and Others, Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, and Rasiklal Manickchand Dhariwal and Another Vs. M.S.S. Food Products,

Per contra, learned counsel for the respondents supported the registration of the Release deed and contended that the Release deed was duly registered as per provisions of the Registration Act and Rules. It was further contended that Smt. Mohan Kanwar voluntarily, in full senses executed the Release deed and there was no question of any fraud being exercised upon her and further, neither there was any obligation on the Registrar to direct Bhagwan Sahay to produce the fact file of the partition suit nor in such suit there was any such order which prevented the registration of the release deed. It was further contended that no Writ could be issued quashing the registration of an instrument when an efficacious remedy was available and as such the Writ was prima-facie not maintainable. It was also submitted that such disputed questions cannot be decided in Writ jurisdiction and the same has been filed just to harass the respondent and to delay the proceedings. Counsel for the respondents on the other hand relied upon judgment of this court in the case of State Vs. Alokik Jain and Others, and judgment of Hon''ble Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI),

Before proceeding further, it would be relevant to refer the relevant provisions of the Registration Act and Registration Rules.

Section 19, 20, 21 and 22 of the Registration Act describe certain situations in which the registering officer can refuse registration. These are: when the document is in a language not understood by the officer, the documents with blanks, eraser, alteration etc., the documents without description of the property sufficient to identify the same and the documents which are presented for registration beyond four months from the date of execution. u/s 32, when a document is presented by some person other than the person who executed the document, the registration can be refused and similarly u/s 35, the registering officer should be satisfied that the document presented for registration is in fact executed by the person, who appears before him and admits the execution. But, registration can be refused when the person by whom the document purported to be executed denies execution or the person, who purportedly executed is dead. Be it noted that by reason of the effect of Sections 17 and 18, all documents whether compulsorily registrable or optionally offered for registration can be accepted for registration by the registering officer subject to the limitations contained in the provisions referred to herein above.

When a document is presented for registration, it should contain the photographs and fingerprints affixed as per Section 32 (if it is a sale deed, the photographs and fingerprints of the buyer and seller must be affixed). After receiving the document, the registering officer has to verify/examine a document with reference to Sections 19 to 22, 32 and 35. The registering officer is also required to follow the Rules promulgated u/s 69 of the Registration Act.

When a document is presented for registration; whether such document is compulsorily registrable or not; the registering officer is bound to examine the document, conduct enquiry and satisfy himself as to the identity of the property, the identity of the person executing the document and as to the compliance with Stamp Act and other provisions of the Registration Act. Unless such an exercise is done, the Registering Officer cannot certify that the document is registered and only after such certification, the registration becomes valid. Sections 60 and 61 of the Registration Act deal with such situation. These provisions read as under.

Certificate of registration:-

(1) After such of the provisions of Sections 34, 35, 58, 59 as apply to any document presented for office shall endorse thereon a certificate containing the word ''registered'', together with the number and page of the book in which the document has been copied.

(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned.

Endorsements and certificate to be copied and document returned:-

(1) The endorsement and certificate referred to and mentioned in Sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plan (if any) mentioned in Section 21 shall be filed in Book No. 1:

Provided that the copying of the items referred to may be done using electronic devices like scanner.

(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52.

The above provisions would show that unless and until there is compliance with the provisions of Sections 35, 58, and 59 of the Registration Act, there cannot be any presumption about the regularity of the proceedings before the Sub-Registrar as contemplated under sub-section (2) of Section 60. When once an endorsement is made as stipulated in Section 60 of the Registration Act, under sub-section (2) of Section 61, registration shall be deemed complete and the document so registered shall have to be returned to the person, who presented for the registration.

Registration Rule 39 read as under:-

Registering officers not concerned with validity of documents-

Registering Officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration and that it would be wrong for them to refuse to register on any such grounds as under-

(1) that the executant was dealing with property not belonging to him;

Provided that the registering officer shall not register the document unless he satisfied himself that the property does not belong to the Govt. or any Local Body

(2) that the instrument infringed the rights of third persons not parties to the transaction;

(3) that the transactions was fraudulent;

(4) that the executant was not agreed to certain conditions of the document;

(5) that the executant was not acquainted with the conditions of the document;

(6) that the executant declared that he had been deceived into executing; and

(7) that the executant is blind and cannot count.

These and such like are matters for decision, if necessary, by competent courts of law, and registering officers, as such, have nothing to do with them. If the document be presented in a proper manner, by a competent person, at the proper office, within the time allowed by law, and if the registering officer be satisfied that the alleged executant is the person he represent himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effects. But the registering officer shall make a note of such objections of the kinds mentioned in grounds (1) to (7) above, as may be brought to his notice in the endorsement required by section 58.

Rule 91 to 95 read as under:-

Conditions of admissibility and examination of documents-On the presentation of a document for registration, the registering officer shall first satisfy himself-

(1) That is has been presented at the proper registration office (Sections 28, 29 and 30)

(2) That if the document is not a Will, it has been presented within the proper time (Section 23 to 26.)

(3) That it is in a language deemed to be commonly used in the district or is accompanied by a true translation into such a language and a true copy (Section 19).

(4) That in the case of any interlineation, blank, erasure or alteration the provisions of section 20 and rule 95 have been complied with.

(5) That, if the document is non-testamentary and relates to immovable property, and contains a map or plan the description is sufficient for its identification and that it is accompanied by the prescribed number of true copies of the maps or plans (Section 21).

(6) That, it bears the proper stamp or is exempted or is not liable to stamp duty.

(7) That, the document has been presented by the person authorised in that behalf (Section 32 or Section 40)

(8) That, the document was executed by the person by whom it purports to have been executed.

Examination as to jurisdiction-

(1) When a document is presented at a registration office, the registering officer will examine it to see whether he has authority to registers it, and on this head Parts V and VIII of the Act should be consulted.

(2) For the purposes of jurisdiction documents may be grouped into four classes;

(1) Non-testamentary document, relating to immovable property mentioned in clauses (a) to (b) of section 17 and clauses (a) to (c) of section 18.

(2) Wills and authorities to adopt.

(3) Copies of decrees and orders of courts.

(4) All other documents.

(3) Instrument of the first class may be accepted for registration by any registering officer within whose district or sub-district any portion of the property concerned is situated. Instruments of the second class may be registered in any office. A copy of a decree or order may be registered in the office of the Sub-Registrar in whose Sub-district the decree or order was made, or if it does not affect immovable property, in the office of any other Sub-Registrar under the Government at which all the persons claiming under decree or order desire the copy to be registered. A document of the fourth class may be registered, either in the office of the sub-Registrar at the place of execution, or, if desired by the executants and persons claiming under it, in the office of any other Sub-Registrar under the Government.

Procedure when registering officer has no jurisdiction-

If the registering officer finds he has no jurisdiction to register a document presented to him, he should endorse on the document the words "Returned for presentation, in the proper office" and return lit to the presenter, informing him at what office he can obtain registration. An entry of the occurrence should at the same time be made in the minute book.

Examination as to time-

When the registering officer finds he has jurisdiction, he should examine the document to see that it has been presented within the time allowed by part IV of the Act. Section 26 refers to documents executed out of India and will be noticed below. With regard to all other documents that law requires with certain exception (Section 23, 23a and 34, sub-section

(1)) that both the presentation for registration and the appearance of the executant shall take place within four months from the date of execution, but in order to avoid hardship in certain cases, it also provides that a further period of four months shall be allowed subject to a fine;

(1) When a document cannot be presented within the first four months, owing to urgent necessity or unavoidable accident (Section 25).

(2) When after a document has been presented the executants, owing also to urgent necessity or unavoidable accident cannot appear or cannot be made to appear to admit execution (Section 34).

Examination as to unverified interpolations, etc-

(1) If the document be brought for registration within the time allowed by law, the registering officer should see whether it contains any unverified interlineations, blanks, erasures or alterations of the kind mentioned in section 20 of the Act; and, in the case of documents, relating to immovable property, whether the description of it is sufficient for identification. If he is not satisfied on either of these points and if the omission cannot be immediately supplied, he should endorse on the document the words "Returned for compliance with section 20" and handover the document back to the presenter in view to the defect being remedied. An entry of the occurrence is to be made in the minute book. Foreign documents should not be accepted unless accompanied by the translation and copies required by section 19, nor document of the kind mentioned in section 21(4) unless accompanied by the required copy or copies of the map or plan.

(2) Where interlineations or corrections occur in a document presented for registration the registering officer must require such interlineations and corrections to be attested by the initials or signature of the executants of the deed, if that has not already been done. If the parties or any of them cannot read or write, the Sub-Registrar should read over to them the correction or interlineation, and add a certificate that has done so, and that the parties agreed thereto to his registration endorsement.

Examination as to stamps-

(1) When a document is presented at a registration office, the endorsement required by section 52 of the Act should be recorded in the form given in rule 185 clause A and signed by registering officer and by the person presenting the document except in the cases referred to in rules 91 to 96 and rule 106."After recording the endorsement, the first duty of the registering officer is to examine the document to see that it is properly stamped when such examination discloses that the documents not properly stamped due to under valuation, incorrect determination of its nature or otherwise and a reference to determine and realise proper duty is to be made to the Collector under the provisions of the Stamp Act, the registering officer shall verbally intimate the parties concerned about the reference proposed, If the person liable to pay the duty offers to make up the deficient duty, the registering officer shall complete all the formalities of registration and shall levy the prescribed fee, accept the additional ''stamp duty in cash or through demand draft or challan'' and acknowledge the same through receipt in Form No. 9 and certify by endorsement on the document that so much amount has been realised as additional stamp duty vide receipt number so and dated so and the document is to be deemed as executed on the stamp of Rs. so much. Where on such verbal intimation, the party is not ready to pay the additional stamp duty, the Registering officer shall levy the fee as chargeable on the value or amount mentioned in the document and complete all formalities u/s 58 and 59 of the Registration Act. Thereafter further proceedings shall be stayed and a memo shall be given to the person presenting the document intimating that in the opinion and on behalf of the registering officer the document requires to such additional duty and the person liable to pay the same may do so, otherwise a reference shall be made to the Collector under the Stamp Act. The receipt of the memo may be obtained on its duplicate copy. The registering officer shall record the facts in the minute book as provided under rule 82 and there after refer the matter to the Collector to determine and realise proper duty, alongwith penalty and proper registration fee under the provisions of the Stamp Act and the Registration Act. While referring the matter to Collector, the registering officer shall mention reasons for believing that proper duty is not paid and also the fact that the party was intimated u/s 47(D) of the Stamp Act did not make up the deficiency.

(2) It is noticed that through ignorance or oversight on the part of registering officers, many insufficiently stamped documents are registered and returned to presenters. The amount involved are usually small but it may happen that Government looses a considerable sum in duty and registration fee. In order to safeguard Government revenue, it is necessary that when instances of such under stamped document come to notice they should be reported to the Collector with a copy of the document prepared from the records of the registration office, for considering the desirability of launching a prosecution u/s 62(1) (b) of the Indian Stamp Act, 1899 as adapted to Rajasthan and of according his sanction thereto u/s 70 of the said Act. Before according his sanction to the prosecution under 70 of the Indian Stamp Act, the Collector should serve the executant with a notice-

(i) to produce the document, and

(ii) to show cause why he should not be prosecuted.

(3) If, in compliance with the notice, the documents produced before the Collector, he should impound it u/s 33 and action should then be taken u/s 40(b) of the Indian Stamp Act as adapted to Rajasthan to recover the duty and penalty. If the duty and penalty are paid up no prosecution need be instituted unless it appears to the Collector that the offence was committed with the intention of evading payment of the proper duty.

(4) If, however, after service of the notice, the document is not produced or no satisfactory cause is shown, the Collector may sanction the prosecution u/s 70 of the Indian Stamp Act as adapted to Rajasthan read with section 62(1)

(b) in cases where the executant was liable to pay the proper stamp duty. No such action need be taken against executants not liable to pay the proper stamp duty u/s 29 of the Indian Stamp Act, as adapted to Rajasthan.

(5) If the document is liable to ad valorem duty under the said Indian Stamp Act of 1899, and the value or consideration is either not stated in money or only partly so stated, the provisions of section 27 and 64 of the Act shall be made known to the person who presented it and he shall be informed in writing by an endorsement on the back of the document that he may, if he chooses, withdraw and complete the document by the addition of the required particulars, under the signature or initials of the executant. If he declines to do so, the matter shall be reported to the Collector and further proceedings shall be stayed.

(6) If a document requiring stamp under the Court Fees Act, 1870 as adapted to Rajasthan is in the opinion of the registering officer improperly stamped, it shall be returned to the person presenting it and not impounded, in order that it may be properly stamped.

(7) When proceedings are suspended under sub-rules (1)(5) and (6) a note shall be made in the minute book and if the document is returned to the person presenting it, the reasons for this shall be endorsed on it.

(8) After the document has been returned duly endorsed by the Collector in the manner prescribed by section 40(a) or 42 of the Indian Stamp Act as adapted to Rajasthan, the registration proceedings shall at once be resumed and completed after duly summoning the parties to the document.

(9) Every Sub-Registrar shall keep a register of documents impounded by him in form NO. 16 given in Appendix

(10) All Collectors, Registering Officers and Dy. Inspector General, Registration and Stamps shall maintain a register in form NO. 24 of Appendix No. 1.

Note-In the case of the registration of any document, the stamp duty paid on which is lower than it would be but for the previous payment of stamp duty on some connected document the registering officer shall note the amount of stamp duty paid on the previous document. This note should be made in the column "Value of stamps" in register I or IV.

Similarly Rule 97,104 and 113 (sub-section 1) and 123 are as under:-

Place of presentation-

Documents must ordinarily be presented for registration at the registration office; but u/s 31, registering officers may on special cause being shown, proceed to the private residence of any person desiring to present a document and may accept it there for registration. This permission, however, must not be interpreted as extending to the acceptance for registration of documents at the private residence of the registering officer.

Parties entitled to present documents for registration-

If the document be not open to any of the objections set forth above, the registering officer before finally accepting it for registration, should satisfy himself that the person presenting it has legal authority to do so. The persons who may present a document for registration are the following-

(a) in the case of a Will, the testator, and after his death any person claiming under it as executor or otherwise;

(b) in the case of an authority to adopt, the donor, and after his death, the donee or the adopted son;

(c) in the case of a copy of a decree or order, any person claiming under the decree or order;

(d) in any other case, any person executing or claiming under the documents;

(e) the representative of assign of any of the foregoing;

(f) the agent of any of the foregoing,

Note-Where the Act or any rule made there under requires or permits any act to be done with reference to a document by a person executing or claiming under the same, and the document has been executed on behalf of a Municipal or District Board or is a document under which a Municipal or District Board claims, the act may, notwithstanding anything to the contrary contained in the Act or in any rule there under, be done (1) in the case of Municipal Board, by the Chairman, the executive officer or a Secretary of the Board, or by other officer of the Board empowered by a regulation in this behalf, and (2) in the case of District Board, by the Chairman, or by any other officer of the Board empowered by regulation in this behalf.

Thumb impressions-

(1) In addition to all or any of the directions laid down in the Act or Rules made thereunder for securing the identification of executants of documents, registering officers shall take the thumb impressions of all executants of documents, whether personally known to them or not, in the following cases:

(1) Registration u/s 17, clauses (a),(b),(c)(d) and (e) of the Act.

(2) Registration u/s 18, clauses (a),(b) and (c) of the Act.

(3) Powers of attorney authenticated u/s 33.

(4) Of all pardanashin women.

Sub-Section (2) to (7).

Copies of reasons for refusing to register-

Section 71 of the Act prescribes that when a Sub-Registrar refuses to register a document except on the ground of jurisdiction, he shall make an order of refusal and record his reasons in book No. II and endorse the words "registration refused" on the document. On application made by any person executing or claiming under the document, the Sub-Registrar shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. The words "without payment" refer to copying fees and not to stamps.

Thus, the provisions of the Registration Act and Registration Rules elaborately deal with the circumstances and situations when the registering officer has to accept and register the document and/or as to when the registering officer has to reject the document for registration.

Once a document is registered by registering authority, the same can be nullified only by a civil court. The power of the registering authority is limited to enquiry as prescribed in the above referred provisions of the Registration Act and Registration Rules. The limited power of the registering officer to enquire into the allegations/objections that the executing party had no right to execute the document get extinguished the moment the document is registered. No such powers inheres in the registering authority to cancel a deed after registration. A party, aggrieved by a registered document, has to file civil suit seeking appropriate remedy under Specific Relief Act read with provisions of the Limitation Act, 1963. A Writ petition is not a proper remedy. This Court in the case of Anukampa Avas Vikas Pvt. Ltd. and Another Vs. State of Rajasthan and Another, after elaborate discussion, categorically held that a party to a registered sale/lease deed has no right to cancel the same and the normal course open is to file a civil suit for cancellation under Specific Relief Act. None of the judgments relied upon by counsel for the petitioner are applicable on the facts and circumstances of present case.

If the petitioner had filed a Civil Suit before a competent civil court for the relief as is prayed herein before this Court, having regard to the pleadings, the Civil Court had to necessarily frame the issues. Some of them would have been somewhat like; (a) Whether Dr. Bhagwan Sahai Rawat fraudulently got the release deed registered in his favour from Smt. Mohan Kanwar?; (b) Whether Smt. Mohan Kanwar was mentally & physically fit to execute the release deed?; (c) Whether Smt. Mohan Kanwar was entitled to execute the release deed in view of her earlier statement/pleadings/documents?; (d) What is the effect on the petitioner''s right if it is concluded that the release deed was lawfully executed and registered?

A disputed question of fact cannot be gone into a Writ petition, is axiomatic. A copious reference to case law is not necessary, however, among many, reference of only two decisions of the Supreme Court may be made in this context.

In State of Bihar and Others Vs. Jain Plastics and Chemicals Ltd., the law was summarized as under:

It is to be reiterated that writ petition under Articles 226 is not the proper proceeding for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226...It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a Court exercising prerogative of issuing writs.

In Orissa Agro Industries Corporation Ltd. and Others Vs. Bharati Industries and Others, , after referring to State Bank of India and Others Vs. State Bank of India Canteen Employees'' Union and Others, ; Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, and National Highway Authority of India Vs. Ganga Enterprises and Another, while reminding that where the dispute involves questions of fact, the matter ought not to be entertained under Article 226 of Constitution of India, the Apex Court observed as under:

Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the Writ petition. As noted above, the Writ petition was primarily founded on allegation of breach of contract. Question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinized and in such a case writ jurisdiction should not be exercised.

As referred to herein above, there are serious disputed questions of fact between the petitioner on the one hand and the respondent-Dr. Bhagwan Sahai Rawat on the other, regarding allegation of fraud and misrepresentation and there are also questions of competence and entitlement of Smt. Mohan Kanwar to execute such document. In the reply filed by the respondents and rejoinder filed by the petitioner, there are serious allegations and counter allegations regarding disputed questions of fact. Thus, in the opinion of this Court, these are matters which are to be decided based on evidence and the affidavit evidence available on record is hardly sufficient to decide all the issues between the contesting parties. Thus, the instant writ petition cannot be said to be a proper remedy.

Conceptually, Law broadly consists of private law and public law. All statutes and majority of common law principles regulating inter-se human relations are often referred to as private law. The principles of law or statute law governing relations between the individual and public authorities (the State, the Government, quasi-Government, statutory and administrative authorities and bodies), is often referred to as public law. In Common Law jurisdictions in one form or the other, the Courts have developed the principles of public law containing normative standards though not always entrenched. These principles have been evolved to ensure that every public body acts within law in a manner, which is not arbitrary and unreasonable. The power of judicial review, therefore, is the process by which statutory Courts--generally constitutional Courts: review functions and activities of public authorities in the field of public law. What are the authorities and what are the functions of such authorities amenable to the power of judicial review is always a question of great significance, with which the Courts perennially grope with. There could be public authorities with wide variety of private law functions as there could be private persons discharging public functions. In the former case, they cannot be dragged to public law Courts and in the later case they cannot escape scrutiny by public law Courts.

It is misnomer to assume that all statutory authorities like registering authority, always discharge public law functions. Some of the functions like registration of documents/instruments may be in exercise of statutory power but such functions may or may not strictly, are concerned with public law. For instance, a registration of gift deed executed by donor in favour of donee is only pursuant to statutory power but the same does not involve any public law function. Similar is the case in the event of registration of a sale deed, mortgage deed or licence deed, compromise deed and/or cancellation of any of these deeds. Judicial review has its own limitations and all decisions of public bodies are not amenable to this public law power.

Nor is it permissible for a reviewing Court to deal with matters which lack adjudicative disposition by reason of prerogative nature of the power exercised by the public authority or exclusive entrustment of powers to a specialized body of the State. As the legislative and executive wings are prohibited from usurping the judicial functions of the State, the judiciary is not expected to discharge legislative and executive functions. The ex-position of the principles of judicial review by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, (1985) AC 374 has attained the classical status of law of judicial review into three broad points, namely, illegality, irrationality and impropriety, the noble Lord observed.

For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always now-a-days a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself, i.e., that part of the common law that is given by lawyers the label of ''the prerogative''.

In the State of U.P. and Another Vs. Johri Mal, the Supreme Court of India reiterated the scope and limitations of judicial review in the following terms:

The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review Court. The limited scope of judicial review, succinctly put, is:

(1) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.

(2) A petition for a judicial review would lie only on certain well-defined grounds.

(3) An order passed by an administrative authority exercising discretion vested in it, cannot be interfered with in judicial review unless it is shown that exercise of discretion itself is perverse or illegal.

(4) A mere wrong decision without anything more is not enough to attract the power of judicial review; the supervisory jurisdiction conferred on a Court is limited to seeking that the Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice.

(5) The Courts cannot be called upon to undertake the government duties and functions. The Court shall not ordinarily interfere with a policy-decision of the State. Social and economic belief of a judge should not be invoked as a substitute for the judgment of the legislative bodies.

Apart from the limitations pointed out by the Supreme Court, the power of judicial review is not available when there is an effective alternative remedy to the aggrieved person. When granting redressal involves adjudication of disputed questions of facts, which require adducing of evidence by the parties, then also ordinarily an application for a judicial review is not accepted. See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, There is justification for the principle. Clive Lewis in Judicial Remedies in Public Law (first edition 1992), Sweet and Maxwell, pp. 229 and 230, explained the rationale for the principle as under:

The rationale for the exhaustion of remedies principle is relevant to the scope of that principle. A twofold justification has been put forward. First, that where Parliament has provided for a statutory appeals procedure, it is not for the Courts to usurp the functions of the appellate body. The principle applies equally to bodies not created by statute which have their own appellate system. Secondly, the public interest dictates that judicial review should be exercised speedily, and to that end it is necessary to limit the number of case in which judicial review is used. To these reasons can be added the additional expertise that the appellate bodies possess. In tax cases, for example the appellate body the General or Special Commissioners, have wide experience of the complex and detailed tax legislation. In employment cases, for example, the system of Industrial and Employment Appeal Tribunals may be better equipped to deal with industrial issues than the High Court.

Registration Act would show that the registering authorities are creations of statutes and they are conferred powers under the statute to enable them to discharge statutory duties. A registering authority has a role of a catalyst in the sense of legitimizing certain transactions by registering as per law. By the action or inaction of Registering authority, there is no involvement of the State or the Government as such, except to the extent of charging registration fee for the service of registration as well as keeping the registers. Therefore, any instrument between the two persons, is governed by private law principles and registration thereof does not play any pervading role in rendering the transaction legal or otherwise. For instance, if a contract is prohibited by reason of its being against public policy, the registration of the document evidencing such contract does not render it valid. Similarly, if two joint owners of immovable property decide to exchange properties and do so without going to registering authority, no law prohibits such exchange. However, if either of them wants to produce such deed as evidence, by reason of Section 49 of the Registration Act, the same cannot be received as evidence of transaction between them. The registration in certain circumstances is notice of a transaction relating to immovable property to a limited extent. Therefore, Registration Act and registering authorities acting thereunder mainly deal and regulate transactions in the realm of private law. For this reason also, the instant Writ Petition cannot be entertained. Consequently, the writ petition is dismissed, as not maintainable.