Himmat Singh Bhati S/o Shri Raj Kumar Singh Bhati, vs The State of Rajasthan,

By way of this writ petition, the petitioner

Himmat Singh Bhati has approached this court

imploring the order (Annexure-7) dated 09.03.2011

issued by the Deputy Secretary, Department of

Personnel being the petitioner''s disciplinary authority,

imposing upon him a penalty of stoppage of one year

annual grade increment with cumulative effect.

Facts relevant and germane for disposal of the

instant writ petition are noted herein below:-

The petitioner entered services of the respondent

Registration and Stamp Department, Government of

Rajasthan in the year 1985. He was serving the

Department satisfactorily without any complaint

whatsoever till the year 2008 when for the first time,

a charge-sheet dated 26.06.2008 was served to the

petitioner for alleged misconduct committed in the

year 2004, while serving on the post of Sub-Registrar,

Udaipur. A sale-deed of agricultural land of

Meetharamji Temple in village Ayar, Tehsil Girwa,

District Udaipur was presented for registration by one

Mahant Shri Ramchandra Das before the petitioner,

who registered the document on 30.11.2004. It was

alleged in the charge-sheet that registration of sale-

deed of agricultural land belonging to temple was

carried out by the petitioner in flagrant violation of

Section 46 of the Rajasthan Tenancy Act, 1955 as well

as the notification dated 10.01.1990 issued by the

Finance Department, Government of Rajasthan.

Alongwith the charge-sheet, statement of allegations

and memorandum of charge were also served to the

petitioner. The petitioner submitted a reply to the

charge-sheet. Referring to Section 34 of the Indian

Registration Act, he contested the charges claiming

that scope of inquiry required to be conducted by the

Registering Officer before registering any document is

very limited. Validity of title of the land described in

the documents presented for registration cannot be

gone into by the registering authority. Reference was

also given to Rule 39 of the Rajasthan Registration

Rules, 1955 as per which, the Registering Officers are

not required to examine or inquire into validity of the

document presented for registration. Reference was

also made to the Division Bench Judgment of this

Court in the case of Basant Nahata vs. The State of

Rajasthan & Ors ., reported in AIR 2001

Rajasthan 127 whereby, Section 22A of the

Registration Act was declared ultra vires and struck

down. It was asserted that the notification dated

10.01.1990 issued under Section 22A of the

registration Act requiring the Registering Officers to

register a document only after satisfying himself that

the property in question does not belong to the State

Government, local body or temple was impliedly

annulled by effect of the above Judgment. The thrust

of the petitioner''s case in the reply and the writ

petition is that with declaration of the main provision

( Section 22A of the Registration Act) to be ultra vires,

any notification issued therein would per se become

null and void and thus, the charge-sheet lacks

foundation. A further case is set up in the writ petition

that pursuant to the Division Bench Judgment, the

Registration Department issued a Circular No.04/2004

intimating all the Registering Authorities that Section

22A of the Registration Act, 1908 had been declared

ultra vires but a note in terms of Rule 39 of the Rules

of 1955 should be appended by the Sub-Registrar

before registering any such document. The petitioner

claims that while registering the disputed document,

he appended thereupon, a note in terms of Rule 39 of

the Rules in his own handwriting mentioning that the

seller claims to be the owner of the property and if

eventually the property was found to be of

Devasthan/Temple, the responsibility would be that of

the seller. The petitioner has further asserted that

without considering the legal issues raised by him in

the reply, the Disciplinary Authority, Principal

Secretary, Department of Personnel, in an absolutely

mechanical manner, proceeded to appoint the

Commissioner, Departmental Inquiries as an enquiry

officer to conduct inquiry against the petitioner. The

Inquiry Officer too, without considering the legal

objections of the petitioner, proceeded to submit an

adverse inquiry report dated 17.11.2009 against the

petitioner. Copy of the inquiry report was provided to

the petitioner by the Department of Personnel. The

petitioner submitted a representation against the

inquiry report to the disciplinary authority reiterating

the abovementioned legal objections. However, the

disciplinary authority passed the order dated

09.03.2011 holding the petitioner guilty of the charges

and imposing upon him the penalty of stoppage of one

annual grade increment with cumulative effect. The

said order has been placed on record as Annexure-7

and is implored in the instant writ petition.

The respondents have filed a reply to the writ

petition wherein, they have attempted to defend the

impugned order on various grounds amongst others.

An averment is made in the reply to the effect that the petitioner has an alternative remedy of approaching

the Appellate Tribunal against the impugned order.

However, about the legal submission raised in the writ

petition regarding the striking down of Section 22A of

the Registration Act and its effect on the controversy,

the reply is tacitly silent.

Shri Vikas Balia, learned counsel for the

petitioner submitted that the above mentioned

Division Bench judgment of this Court in Bharat

Nahta''s Case whereby, Section 22A of the

Registration was declared ultra vires and struck down,

was challenged by the State of Rajasthan by filing a

SLP before the Hon''ble Supreme Court in the case

titled as State of Rajasthan & Ors. vs. Basant

Nahata, reported in (2005) 12 SCC 77 which was

rejected and the Division Bench Judgment was upheld.

He submits that the notification dated 10.01.1990 was

issued under Section 22A of the Registration Act. As

the principal provision was struck down, any

notification issued under such redundant provision

would per se stand annulled and thus, the charge-

sheet issued to the petitioner was totally without

foundation. Consequently, there was no justification in

the action of the respondents in initiating the

department inquiry and subjecting the petitioner to

penalty vide the impugned order. He thus urged that

the impugned order (Annexure-7) dated 09.03.2011

being grossly illegal, perverse, arbitrary and without

jurisdiction deserves to be quashed and set aside and

ensuing consequential service benefits be extended to

the petitioner.

Per contra, Ms. Kusum Rao and Shri N.S.

Rajpurohit, learned Assistant Government Counsel

representing the respondent departments, vehemently

opposed the submissions advanced by the petitioner''s

counsel and urged that the petitioner acted in

contravention of the statutory rules, regulations and

notifications while registering the disputed document.

They urged that the pleas raised by the petitioner are

hyper-technical and not forceful enough so that this

Court should feel persuaded to interfere in the well

reasoned order imposing penalty passed by the

disciplinary authority.

I have heard the arguments advanced by the

learned counsel for the parties and have gone through

the impugned order as well as the material available

on record.

The charge framed against the petitioner in the

questioned disciplinary proceedings reads as below:

VERNACULAR MATTER OMITTED

On a bare reading of the language of the charge,

it is evident that the allegations against the petitioner

were totally founded on the alleged violation of

notification dated 10.01.1990 issued by the

Government of Rajasthan, the relevant part whereof is

reproduced hereinbelow for sake of ready reference:

VERNACULAR MATTER OMITTED

Evidently, the above notification was issued by

the Government of Rajathan while exercising powers

under Section 22A of the Registration (Rajasthan

Amendment) Act, 1976. Validity of Section 22A was

challenged before Division Bench of this Court in

Basant Nahta''s case (supra) and after an exhaustive

analysis of entire legal matrix, the Division Bench

declared the provision to be unconstitutional and

struck the same down vide judgment dated

28.11.2000. The State Government challenged the

said judgment by way of an appeal to the Hon''ble

Supreme Court which too affirmed the judgment of

the Division Bench vide its Judgment reported in

(2005) 12 SCC 77 ( State of Rajasthan & Ors. vs.

Basant Nahata ). Manifestly, no sooner the principal

provision was struck down, any notification issued

while exercising powers thereunder would be impliedly

rendered redundant and stand annulled. After striking

down of Section 22A and consequent automatic

annulment of the notification dated 10.01.1990, the

Inspector General, Registration and Stamp

Department, Government of Rajasthan issued a

circular No.4/2004 adressed to all the Registering

Officers in the following terms:

VERNACULAR MATTER OMITTED

"The writ petition is allowed and section 22- A of the Registration Act as inserted by Rajasthan Amendment Act, 1976 (Act No. 16 of 1976) is declared as unconstitutional and that the said section had all the features of deleterious and being violative of Art. 14 of the Constitution of India."

VERNACULAR MATTER OMITTED

Thus evidently, pursuant to striking down of

Section 22A of the Registration Act and the automatic

nullification of notification dated 10.01.1990, the only

duty cast upon a Registrar registering any document

of the nature specified under the notification would be

to append a note in the document in terms of Rule 39

of the Rajasthan Registration Rules before registering

it. The disputed document registered by the petitioner

has been placed on record of the writ petition as

Annexure-2 wherein, the petitioner appended the

following note before registering the same:-

VERNACULAR MATTER OMITTED

The petitioner apparently registered the

document in question after following all requirements

of law. By no stretch of imagination, could the

petitioner have refused registration of the document in

reference to the notification dated 10.01.1990 as the

same no longer existed. Rather, this Court is of the

opinion that the petitioner could have been made

liable to face disciplinary action had he refused

registration of the document. The petitioner, in his

representation and reply to the statement of

allegations, took a specific plea in the above terms

referring to the Division Bench judgment and implored

the disciplinary authority to drop the proceedings.

However, the disciplinary authority, without even

referring to any of the petitioner''s written legal and

factual submissions, in an absolutely mechanical

manner proceeded to hold him guilty for major

misconduct and inflicted upon him the penalty of

stoppage of one annual grade increment with

cumulative effect vide the impugned order (Annexure-

7) dated 09.03.2011.

In view of the discussion made hereinabove, this

Court is of the firm opinion that the petitioner did not

violate any provision of law, circular/notification issued

by the Government of Rajasthan while registering the

disputed document on 30.11.2004 so as to make him

liable for misconduct. The specific plea set up by the

petitioner, in his reply regarding striking down of

Section 22A and the consequent obligation upon him

to register the document by appending a note in

terms of Rule 39 of the Registration Rules was not

even considered by the disciplinary authority while

passing the impugned order. The impugned order is

grossly arbitrary, laconic, perverse and suffers from

total non-application of mind to the relevant facts and

statutory provisions and cannot be sustained.

Consequently, the writ petition deserves to be

and is allowed. The impugned order (Annexure-7)

dated 09.03.2011 is hereby struck down and set

aside. The petitioner shall be entitled to all

consequential benefits flowing from the above

direction.

No order as to costs.