- (1.) By this application the petitioner seeks cancellation of order dated 6th May, 2013 and memo dated 10th May, 2013 so also a direction on the registering authorities to accept the documents presented by the petitioner for registration purposes. According to the petitioner by the said two memos/orders mentioned above based on the proceedings in the Saradha Group of Companies registration of documents of a number of companies has been stopped, thereby, transfer of title has been hindered. As the owner of properties the said is an infringement of rights guaranteed to the petitioner to deal with its properties under Article 300A of the Constitution of India. By virtue of the said two orders the petitioners have been deprived of dealing with properties which otherwise it would have been entitled to do. The said orders/memos have no force of law and at best are executive instructions which seeks to deprive the petitioners of its guaranteed rights without any recourse. In 1976 the Rajasthan Legislature brought in a similar legislation. Section 22A of the Registration Act was struck down by the Rajasthan High Court being opposed to public policy and the said decision of the Rajasthan High Court was also upheld by the Supreme Court of India. The reported decision in this regard is AIR 2001 Rajasthan 127 which has been affirmed by the Supreme Court of India in (2005) 12 SCC 77. The reported decision is based on the principle of the said legislation being against public policy as by virtue thereof the authority was given exclusive powers to decide on the issue and liable to be misused and, therefore, struck down on the ground of it being violative of Article 14 of the Constitution of India. The Registration Act does not control transfer. The memo dated 10th May, 2013 is no legislation in the eye of law. The State has assumed to itself powers and refused registration. The said memo dated 10th May, 2013 is de hors the legislative competence of the State. As the order dated 10th May, 2013 is without legislative competence exercisable by the State, the said document can at best be treated as a department circular or an executive instruction and is bad as the executive powers and legislative authority are co-extensive as per Article 162 of the Constitution of India. The preamble of the 1908 Act empowers registration of documents and in no way prohibits registration of documents. As the legislature is not competent to prevent or stop registration, the same cannot also not be done by issuance of executive instruction. Schedule 7 List-II sets out the State list and List-III sets out the Concurrent list. Therefore, for lack of authority by the State the memo dated 10th May, 2013 is a mere instruction to the officers of the State and is not an executive order.
(2.) In 1981 in West Bengal Section 22A was introduced which is not in operation. This has been admitted in the affidavit filed by the State. As an executive instruction the direction given is not permissible, therefore, the memo dated 10th May, 2013 being beyond legislative competence of the legislature be quashed and set aside.
(3.) In opposing the said application Counsel for the State respondent submits that it is on the basis of the order passed in W.P.12197 (W) of 2013 and to protect the interest of the investors in Ponzi Schemes that the orders dated 6th May, 2013 and 10th May, 2013 were issued. A list of companies indulging in Ponzi Schemes was placed before the Lok Sabha on 14th March, 2013. The name of Rahul Heights Limited was included in the said list at Serial No.52. The list placed before the Rajya Sabha produced by the petitioner is not exhaustive and does not in any way exclude the name of the petitioner. It is only on the basis of the information placed before the Parliament that the State thought it fit to stop registration of properties of companies indulging in Ponzi Schemes. It is true that the power has not been exercised under the Registration Act but, it has been exercised to prevent misuse and abuse so also dealing with properties intended to deprive the poor investors. The memo dated 6th May, 2013 was issued on the basis of an order passed in W.P.12197 (W) of 2013 and with the approval of the Government and the Finance Department the Inspector General of Registration and Commissioner of Stamp Revenue, West Bengal were restrained from registering transfer of properties by the companies mentioned. It is at the behest of the Central Government that the memo dated 10th May, 2013 has been issued. Non-inclusion of the name of the petitioner in the list placed before the Rajya Sabha cannot entitle it to deal with its properties or register the same. Therefore, this application merits no order. Any order passed be to safeguard the interest of the investors.;