(Writ Appeal filed against the order passed by the learned single Judge in W.P. No.25407 of 2005 dated 22.09.2006 as stated therein.

Writ Petition filed for the issuance of a writ of declaration that Section 22- A inserted by Tamil Nadu Act 48 of 1997 and the notification issued thereunder namely G.O. Ms.150, Commercial Taxes dated 22.9.2000 referred to in Annexure I to the writ petition is ultra vires and unconstitutional.)

S.J. Mukhopadhaya, J.

W.P. No.25407/05 was preferred by the appellants, Capt. Dr.R.Bellie and another for a direction on the respondents to register the pending document Nos. 120/04 and 121/04, both dated 28.4.04 and, consequently, hand over the same to the appellants/writ petitioners. In the said case, learned counsel for the appellants referred to a judgment rendered by the Supreme court in the case of State of Rajasthan & Ors. - Vs Basant Nahata reported in 2005 (4) CTC 606 [LQ/SC/2005/898] and a judgment rendered by this Court in W.A. No.1923/05. Learned single Judge, by the impugned order dated 22.9.06 passed in W.P. No. 25407/05, without giving any finding on merit, directed the respondents to pass appropriate order.

2. In the present appeal, the main ground taken by the appellant is that the learned single Judge has failed to take into consideration that even before the appellant purchased the property, the title deeds to the property pertain to the years 1983 and 1969 respectively and the said sale deeds were registered by the very same respondents and, thereby, there was no ground to refuse registration or to keep the documents pending.

3. When the case was taken up, learned counsel for the appellant submitted that similar provision like Section 22-A of the Registration Act, 1908 as amended vide Registration (Tamil Nadu Amendment) Act, 1994 has been held to be ultra vires by the Supreme court in the case of State of Rajasthan & Ors. - Vs Basant Nahata reported in 2005 (4) CTC 606 [LQ/SC/2005/898] and G.O. Ms. No.150, Commercial Taxes, dated 22.9.00 issued in exercise of power conferred by sub-section (1) of Section 22- A has also been held to be illegal and quashed by a learned single Judge of this Court vide judgment dated 20.3.06 passed in W.P. No.7237/06.

4. In the writ petition, W.P. No.42945/06, the petitioner having challenged the validity of Section 22- A as inserted by Registration (Tamil Nadu Amendment) Act, 1994, both the writ appeal as well as the writ petition were heard together. We mainly heard on the question of legality of Section 22- A (State Amendment), which reads as follows :-

"22-A. Documents registration of which is opposed to public policy. - (1) The State Government may, by notification in the Tamil Nadu Government Gazette, declare that the registration of any document or class of documents is opposed to public policy.

(2) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under sub-section (1) is applicable."

5. Admittedly, no statutory rule or any other provision has been made by the Legislature of the State of Tamil Nadu defining "public policy" or "as opposed to public policy". It is the Executive of the State Government vide G.O. Ms. No.150, Commercial Taxes, dated 22.9.00 laid down guideline relating to documents/class of documents "as opposed to public policy", which reads as follows :-

"In exercise of the powers conferred by sub section (1) of Section 22A of the Registration Act, 1908 (Central Act, XVI of 1908), the Governor of Tamil Nadu hereby declares the following documents as opposed to public policy, namely:

1. Any instrument relating to

i) conveyance of properties belonging to the Government or the local bodies such as the Chennai Metropolitan Development Authority or Corporations, or Municipalities, or Town Panchayats, or Panchayat Unions or Village Panchayats; or

ii) conveyance of properties belonging to any religious institutions including temples, mutts, or specific endowments managed by the Hereditary Trustees/Non hereditary trustees appointed to any religious institution under a Scheme settled or deemed to have been settled under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and mutts and temples including specific endowments attached to such of those temples managed by mutts; or

iii) conveyance of properties assigned to or held by

a) The Tamil Nadu State Boodan Yagna Board established under Section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958 (Tamil Nadu Act XV of 1958) or

b) The Tamil Nadu Wakf Board

unless a sealed No Objection Certificate issued by the competent authority as provided under the relevant Act or the rules framed thereunder for this purpose and in the absence of any such provisions in any relevant Act or in the rules framed thereunder authority so authorised by the Government, to the effect that such registration is not in contravention of the provisions of the respective Act, is produced before the Registering Officer;

2. Conveyance of lands, converted as house sites without the approved layouts unless a No Objection Certificate issued by the authority concerned of such local bodies, namely, Corporations, or Municipalities or Town Panchayats, Panchayat Unions, or village Panchayats or Chennai Metropolitan Development Authority is produced before the Registering Officer;

3. Cancellation of sale deeds without the express consent of the parties to the documents."

6. As the matter practically stands settled by the decision of the Supreme Court in the case of State of Rajasthan & Ors. - Vs Basant Nahata reported in 2005 (4) CTC 606 [LQ/SC/2005/898] , it is not necessary to discuss all the facts and provisions of law except the relevant one.

7. A similar (amended) provision like Section 22- A was made by the State of Rajasthan, which reads as under :-

"Section 22- A - Documents registration of which is opposed to public policy (1) The State Government may by notification in the Official Gazette declare that the registration of any document or class of document is opposed to public policy.

(2) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under sub-section 91) is applicable."

8. The said provision was challenged before the Rajasthan High Court, which held the provision unconstitutional and ultra vires Article 14 and 246 of the Constitution of India. While the matter fell for consideration before the Supreme Court in the case of State of Rajasthan & Ors. - Vs Basant Nahata reported in 2005 (4) CTC 606 [LQ/SC/2005/898] , having noticed similar amendment made by other States, such as State of Bihar, Gujarat, Karnataka, Maharashtra and Meghalaya, notices were issued to those States also. In the said case, the Supreme court, while upholding the decision rendered by the Rajasthan High Court, held the aforesaid amendment, Section 22-A, ultra vires and while doing so, made the following observations :-

"42. A party in a suit against whom illegality is pleaded also gets an opportunity to defend himself. Hence this essential function to decide on what is Public Policy cannot be delegated to executive through a subordinate legislation.

43. The legislature of a State, however, may lay down as to which acts would be immoral being injurious to the society. Such a legislation being substantive in nature must receive the legislative sanction specifically and not through a subordinate legislation or executive instructions.

44. The phraseology opposed to Public Policy may embrace within its fold such acts which are likely to deprave, corrupt or injurious to the public morality and, thus, essentially should be a matter of legislative policy.

45. The said phraseology came up for consideration before this court in Central Inland Water Transport corporation Limited and another v. Broio Nath Ganguly and another etc., 1986 (3) SCC 156 , [LQ/SC/1986/114] where a note of caution has been sounder that it being a very unruly horse, once when gets astride one does not know how far it would carry him. The question as to whether the statement as regard the validity of a contract on the ground that it is opposed to public policy must normally be viewed within the parameters fixed therefore by longstanding authorities or precedents but in deciding a case it may not be covered by such authorities and lacking precedents, the preamble of the Constitution or the principles underlying the fundamental rights and the Directive Principles in our Constitution can be taken recourse to. This court in Rattan Chand Hira Chand v. Askar Nawazjung (Dead) by Lrs. and Others, 1991 (3) SCC 67 , [LQ/SC/1991/77] quoted the following from Prof. Winfields Article "Public Policy in the English Common Law" :

"Some judges appear to have thought it (the unruly horse of public policy) more like a tiger, and refused to mount it at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaams case which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community."

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52. A doctrine which is so vague or uncertain, in our opinion, thus, cannot and does not provide any guideline whatsoever. Furthermore, the executive while making a subordinate legislation cannot be permitted to open new heads of public policy in its whims. Towards opposed to public policy, therefore, do not lay down any guidelines to render it constitutional. Execution of power of attorney per se is not invalid. On the other hand, it is lawful.

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59. Hence, Section 22-a of the through a subordinate legislation cannot control the transactions which fall out of the scope thereof."

9. It has already been pointed out that the Legislatures of the State has not laid down defining public policy or documents which are as opposed to public policy. The provision was made vide G.O. Ms. No.150, commercial Taxes, dated 22.9.00, as quoted above, has also been set aside by this Court vide judgment dated 20.3.06 in W.P. No.7237/06. In view of the aforesaid fact, following the ratio laid down by the Supreme Court in the case of Basant Nahata (supra), we also declare the amended provision of Section 22- A as made vide Registration (Tamil Nadu Amendment) Act, 1994, unconstitutional and ultra vires Articles 14 and 246 of the Constitution of India.

10. Accordingly W.P. No.42945 of 2006 is allowed. The impugned order dated 22.9.06 passed by the learned single Judge in W.P. No.25407/05 is set aside and the writ appeal is allowed. The case of the appellants, Capt. Dr. R. Bellie and another is remitted to the competent authority for registration of the documents in accordance with law without taking into consideration the provision of amended Section 22-A of theor G.O. Ms. No.150, Commercial Taxes, dated 22.9.00. There shall be no order as to costs.