In the first part, we saw that how the complete administration in the state of Rajasthan appears to have a vested interest in perpetuating corrupt practices & favouring the cheats. The ground reality is so pathetic that the industries minister Mr. Parsadi Lal Meena was compelled to acknowledge openly that honest Tehsildar & Patwaris don’t exist & they work on the basis of bribes only & this was carried in the press on 30.06.2021.

Now, we further deal with the intricacies of the law. The Registration Act, 1908 is applicable & specifically, as per the S 33, the Power of Attorney (PoA) is to be executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides. The Act of Parliament specifically defines the PoA & the execution thereof thus leaving no scope for use of any other PoA.

Complete & abject failure of Rajasthan government in prevention of fraudulent property transfers & registrations – Part 1

Further, please note that if the Registration deed is executed by the PoA holder then the relevant Sale Deed essentially carries a recital therein to the effect that the executor of the registration deed is the PoA holder & that the registration is being executed on behalf of the Principal & the PoA is not revoked & further certifies that the principal is alive. Therefore, once this is accepted in the Sale Deed distinctly then the Sub-Registrar is legally bound by the IGRS Rajasthan departmental Circular No. 10/2015 to ensure that the PoA is issued as per S 33 of the Registration Act, 1908 & no relaxation/reprieve can be exercised by the departmental officials as there is no such express provision in the law. The Circular No. 10/2015 actually binds the department to comply with the S 33 of the Registration Act, 1908.

Therefore, the IGRS officials cannot be absolved from the burden of the examination of the PoA as it is an integral part of the registration document as specified therein to ascertain whether mandatory PoA as defined in the Act of the Parliament exists. If PoA does not confirm to S 33 of the 1908 Act then evidently PoA is non est, therefore no transfer & registrations can proceed legally.

If there is no PoA confirming to the one described in S 33 of the Registration Act, 1908 then the registering officer cannot accept that document even if it bears the legend Power of Attorney on the face of it under any circumstances & proceed with registration because PoA is not simply a piece of trash but a legally well-defined document in S 33 of the Registration Act, 1908 for the transfer & registration of property.

Complete & abject failure of government of Rajasthan in prevention of fraudulent property transfers & registrations - Part 2

Finally, the IGRS officials cannot indulge into manipulative interpretation that they owe no responsibility with a criminal intent & protect & perpetuate the crime. The manipulative interpretation with criminal intent advanced by IGRS officials effectively means that IGRS officials can collect money illegally & indulge freely into illegal registrations because they owe no responsibility & accountability whatsoever. The moot question is whether these officials are put in place for corruption & loot! Whether, the state of Rajasthan permits & supports this kind of administration & whether this is tenable?

Another point of significance to note is that no subordinate legislation can amend/interfere with the Act of the Parliament & therefore IGRS officials cannot escape their responsibility under any circumstances but compliance with the Registration Act, 1908 in respect of the PoA is the only option available to them. This settles the issue at hand finally.

Please note that there is a complete document titled “Margdarshika” issued by the IGRS department so that the frauds cannot take place. It contains all the updated circulars issued by the department from time to time as on 17.6.2015. It is pertinent to point out that departmental circulars are binding on the department as finally settled by the Supreme Court. Now, please note the following:

A. Circular No. 10/2015 dtd. 17.6.15 clearly specifies as per Sr. No. 2, the PoA needs to be authenticated as per S 33 (1) of the Registration Act, 1908. As per Sr. No. 3 (iii), the photograph of the principal needs to be affixed on the Sale deed etc. As per Sr. No. 3 (vi) & 5 (i), Original PoA needs to be obtained & the same compared with the copy submitted on record & the sub registrar need to make an endorsement on the copy that it is true copy of the original PoA. As per Sr. No. 3 (viii), original registration documents of registration in the name of the principal needs to be seen to ensure that the land belongs to the principal. As per Sr. No. 5 (vi), the Sub Registrar is accountable for compliance with the legal provisions. As per Sr. No. 5 (vii), the circular needs to be complied with in respect of all PoAs with effect from 17.6.15 & even if the PoA is issued prior to the date of the circular. Finally, as per Sr. No. 6 (v), in case of PoA without consideration there is a possibility to avoid payment of stamp duty therefore appropriate action as per clause needs to be taken.

As per Sr. No. 10 of the Circular No. 13/2015, the Cess is payable on the PoA. As per Circular No. 16/2015, the officials are advised that inadequately stamped documents should not be accepted as evidence or processed by the department in any case. The sr. No. 6 (v) & (vi) of the circular lays down specifically that if the stamp duty is not paid & Notarial stamp is not affixed then too the document cannot be processed.

B. Not only the above there are several other legal provisions in the circulars.

(i) In part B of the Checklist, there is specific mention about PoA details at Sr. Nos. 1,2,3, & 4.

(ii) The Circular No. 27/2015 specifically states that the Registration Act, 1908, Rajasthan Registration Rules, 1955, Rajasthan Stamp Act, 1998 & Rajasthan Stamp Rules, 2004 need to be complied with in a manner that in case of any wrong being detected, the wrong doer can be traced for appropriate action. The circular warns that any lapse will invite action in accordance with the law. It clearly states that the checklist should be completely filled clearly. The circular states that If the documents are not fit for registration, then dated entry should be made in book No. 2 regarding refusal order. Therefore, in terms of the legal provision, the Dy. Registrars are obligated to exercise due diligence & prevent the fraud. Further, the circular states that if the documents are not adequately stamped then a reference needs to be made to the Collector (Stamps).

If the IGRS officials would have complied with the binding circulars issued by the department diligently, the fraud could not have taken place.

It is pertinent to point out that the in the case study, the Dy. IG, Ajmer referred to the Circular No. 10/2015 while calling for the report from all the three Sub-Registrars & all the 3 Sub-Registrars merely made a statement that Circular No. 10/2015 is not applicable contrary to the binding departmental circulars & the Dy. IG, Ajmer simply accepted the statement without any cogent reasons being cited & without any application of mind, which is untenable. On the contrary, binding circulars of the department are not for showcasing but for strict compliance to prevent the frauds in respect of the property transfers within the state of Rajasthan. Therefore, the state administration is obligated in terms of the legal provisions to take appropriate action against those who have defied the law despite being warned that it is a criminal offence.

As per the IGRS, Rajasthan website in itself, there is stamp duty payable in respect of the Power of Attorney (which is to be used for property transfer) even in those cases where the PoA is issued without any consideration. Further, the PoA needs to be compulsorily authenticated if it pertains to the transfer of property.

Please note that just by using stamp paper & affixing fraudulent stamp of the Public Attorney, a Power of Attorney cannot be made & if that is done then the IGRS officials are duty bound not to accept any such frivolous document because they do not confirm to the requirements of the Registration Act, 1908 & file a police complaint. However, the department officials are bigger criminals because they not only aid & abet a crime but indulge into manipulative interpretation with a criminal bent of mind & trying to fool everybody in the government. These officials are not novices but well experienced & in high positions. These criminals in their official garb are a big threat to the civil society therefore exemplary punishment is warranted to stop the menace of abuse of official position.

The officials cannot run the IGRS as a personal fiefdom & hold the complete IGRS administration captive to their whimsical thinking & indulge into illegalities & be the law unto themselves with no fear of any accountability of whatsoever nature. This nuisance needs to stop. Please note that IPC 166 &/or 167 is an independent provision in respect of the criminal conduct of the officials, which requires no permission for prosecution for obvious reasons & to stop corruption per se & cannot be denounced or taken lightly. It cannot be anybody’s case that the law applies to the common man alone but does not apply to the officials of the government even when they are aiding & abetting a crime. Illegal property transfers are taking place in Rajasthan on an everyday basis & increasing the burden on the courts. This abuse of law cannot be allowed to continue. Therefore, until & unless FIRs under IPC 166 &/or 167 are filed, there is no scope for stoppage of the crime. Please think of the plight of the people who are not well educated & do not understand the intricacies of the law!

The moot question which finally arises is that whether the Parliament is at fault in formulating the law or the state administration of Rajasthan is manipulative or the Apex Court has failed to apply the rigours of the law strictly to the disadvantage of the citizens & to the benefit of perpetual corruption & can this be allowed to continue?

(Author can be reached at rajivgupta.pec@gmail.com)

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Disclaimer: The contents of this article are for information purposes only and do not constitute an advice or a legal opinion and are personal views of the author. It is based upon relevant law and/or facts available at that point of time and prepared with due accuracy & reliability. Readers are requested to check and refer relevant provisions of statute, latest judicial pronouncements, circulars, clarifications etc before acting on the basis of the above write up.  The possibility of other views on the subject matter cannot be ruled out. By the use of the said information, you agree that Author / TaxGuru is not responsible or liable in any manner for the authenticity, accuracy, completeness, errors or any kind of omissions in this piece of information for any action taken thereof. This is not any kind of advertisement or solicitation of work by a professional.

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