Kanumuri Satya Suryanarayana Raju And Others v. Sribhashyam Jagannadhaswami And Others

The point that arises for determination in this case is whether a judge who executed a document pursuant to a decree for specific performance of a contract of sale is obliged to furnish a declaration as a transferor of the subject matter of the sale under Section 19 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act (Act 1 of 1973) referred to hereinafter merely as ‘the Act’.

2. Relief Sought For:—This revision under Section 115 of the Code of Civil Procedure is directed against the order and decree made in L.A No. 246 of 1974 in E.P No. 37 of 1974 in O.S No. 40 of 1969 on the file of the Subordinate Judge's Court, Vijayanagaram dated 20-12-1973. That E.A was filed by the decree-holders under Sec. 151 C.P.C requesting the court to direct the respondents-judgment-debtors to appear and submit their declarations in Form No. XIL of Act 1 of 1973 and in case the respondents do not comply with the orders of the court, the court may accept the affidavits that were tiled along with the petition and sign the declarations and send the sale-deed to the Sub-Registiar, Gajapathinagaram for registration. That petition was dismissed by the court below. Hence this revision.

3. Facts‘.—The petitioners instituted the suit O.S No. 40 of 1969 on the file of the Subordinate Judge's Court, Vijayanagaram for the specific performance of a contract of sale for Rs. 12,000/- and obtained a decree on 19-8-1969. As per the terms of that decree defendants 2, 3, and 26 to 30 who are respondents herein were directed to execute a sale-deed in favour of the petitioners in respect of the plaint scheduled lands. The judgment debtors even after notice from the court below were compelled to execute and sign the sale-deed on their behalf in K.P No. 37 of 1974.

4. That sale deed was sent to the Sub-Registrar, Gajapathinagaram for registration. The Sub-Registrar retransmitted the document to the court with an endorsement on the sale deed to the effect that under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Act 1 of 1973) no sale deed can be registered unless the alienor and the alienee sign declarations in the forms specified to the effect that the alienation does not violatie the provisions of tbe Act. The Sub-Registrar therefore returned the document to the court with that endorsement.

5. It is under those circumstances the decree-holders filed a petition requesting the court to direct the respondents to sign the declarations and if ‘they fail to do so, requesting the court further to sign such declarations on behalf of the respondents.

6. The first decree-holder K. Raghava Raju died during the pendency of the execution petition E.P No. 37 of 1974, Petitioners 1 to 5 are his sons, petitioner No. 6 is his wife and petitioners 7 and 8 are his daughters.

7. The first petitioner filed an affidavit in support of the petition giving rise to the above revision wherein he stated among other things that none of Page: 16the judgment debtors, vendors possess agricultural lands exceeding the ceiling area. Himself and other decree-holders undertook to take the risk of the sale deed becoming void if it is provied that the vendors exceed the ceiling limit under Act 1 of 1973. It is further stated in the affidavit thus:—

“While the judgment debtors remained ex parte and did not execute the sale deed and while the court is not in a position to give a declaration under Act 1 of 1973, the decree passed is liable to be infructuous under the circumstances.

To avoid such a contingency, I submit that the court may be pleased to issue notices to the judgment-debtors to appear in person and to give declarations as required under Act 1 of 1973 and in the event of the judgment debtors failure to obey the summons, the court may be pleased to accept affidavit of Village Officers The required declarations on the basis of these affidavits hereto enclosed in the interests of justice as otherwise the decree becomes futile and infructuous and the decree-holders would suffer irreparable loss of property and money.”

The Karnam of the Village who has been working there for the last sixteen years gave an affidavit to the effect that he knew the decree-holders and their late father and also the judgment-debtors who are in possession of the lands of the decree-holders. He speaks to the factum of the proceedings taken in O.S No. 40 of 1969. He stated in his affidavit thus as regards the properties in question:

“The lands agreed to be sold are Acts, 15-00 of dry in extent. From the Village records, I solemnly affirm that the judgment debtors 1 to 3 and 8 have no more land, except these lauds anywhere in their possession. They do not exceed the ceiling limit under Act 1 of 1973 and the other judgment debtors 4, 5, 6, and 7 also have no land except these lands under their lease. They too, do not exceed the ceiling limit under the Act.

1 make this statment from the recitals in village records.

Notices were issued by the court to all the respondents on the application but they remained exparte except respondents 5 to 7 who alone filed counters opposing the petition. The court below being of the view that no. useful purpose would be served under those circumstances in directing the respondents to sign the declarations formulated the point for determination as under:—

“Whether the court can itself can sign the declaration if the respondents failed to do so?”

8. The court below was of the view that the declaration required was to the effect that the alienors have no other lands or that the alienors do not Page: 17have lands exceeding the limit prescribed under the Act and as they are all matters within the exclusive knowledge of the judgment-debtors, it is not possible for the court to verify the correctness or otherwise of those matters and say whether or not the alienation violates the provisions of the Land Ceiling Act. The learned Judge held thus:

“The learned advocate could not satisfy me to the effect that the court is competent to sign such declarations on behalf of the vendors if they fail to do so, after making an enquiry. In the circumstances, I feel that the court has no jurisdiction to sign such declarations on behalf of the vendors, and that there is no porvision of law, enabling the Court to sign the declartaions on behalf of the vendors. Hence this petition is dismissed without costs.”

CONTENTIONS:

9. Sri Sitarama Raju, learned counsel appearing for the petitoners contended that when the court, having regard to the circumstances obtaining in this case chose to execute the document for sale pursuant to the decree obtained in a suit for specific performance of contract of sale, the court must be said to have assumed the role of transferee of property in question. If on account of the enactment of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, the court is disabled from giving a declaration on behalf of the Judgment debtors, needed under Section 19 of the Act, the very object in obtaining the decree for specific performance of the contract would be defeated and.that could not have been the intention of the framers of the Land Ceiling Act.

10. The learned counsel further submitted that if the review of the court below is upheld, it results practically in reducing the provisions contained in the Specific Relief Act to a dead letter and therefore with a view to securing the affectuation of the decree obtained by the petitioners from a civil court to the effect that they are entitled for the specific performance of a contract of sale, especially when the court was required to execute the document because of the recalcitrant attitude of the judgment-debtors, the court must be deemed to answer the description of transferor occuring in Section 19 of the Act, as otherwise, the decree becomes infructuous.

11. PROVISION OF LAW:

Specific Relief Act, 1963.

12. As per Section 10 of the Specific Relief Act, 1963 occuring in Chapter If of the Act, specific performance of any contract may, except as otherwise provided in that Chapter, in the discretion of the court, be enforced under the circumstances mentioned therein.

13. The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so,; but the discretion of the court is not arbitrary but sound and reasonable, Page: 18guided by judicial principles and capable of correction by a court of appeal (Vide Section 20)

CIVIL PROCEDURE CODE:

14. The Civil Procedure Code by Rule 34 of Order XXI provides for the execution of a document pursuant to a decree. Sub-Rule (1) in so far as it is material reads thus:—

“Where a decree is for the execution of a document (x x x) and the judgment-debtor neglects or refuses to obey the decree, the decree- bolder may prepare a draft of the document in accordance with the terms of the decree and deliver the same to the court”.

15. Sub-rules 2 to 5 read thus:

“2. The court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.

3. Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.

4. The decree-holder shall deliver to the court a copy of the draft with such alterations (if any) as the Court may have directed, upon the proper stamp if a stamp is required by the law for the time being in force, and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.

5. The execution of a document x x x x, under this rule may be in the following form namely:—

“C.D Judge of the court of

(or as the case may be), for A.B in a suit by E.F against A.B” and shall have the same effect as the execution of the document by the party ordered to execute”.

6. The Court, or such officer as it may appoint in this behalf shall cause the document to be registered if its registrations is required by the law for the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses of the registration”.

16. Form No. 10 Under the aforesaid rule provides for the issuance of a notice to state objections to draft of the document to be issued.

CIVIL RULES OF PRACTICE

17. Civil Rules of Practice under the Sub-heading “Mode of Execution Page: 19and “Execution of document by the Judge” provided by Rule 151 for the procedure to be adopted in case of execution of documents by court and reads thus:

“The procedure prescribed by Order XXI Rule 34 (1) to (4) of the Code shall apply to all documents whereof the execution by any party has been directed by the Court”.

18. Rule 152 provides that:—

“The decree-holder shall, together with the draft in Order XXI Rule 34 (1) of the Code mentioned, bring into court a duplicate thereof and two copies of a notice in Form No. 54 and the prescribed court-fee stamp for service thereof. One of the said copies shall be annexed to the draft, and shall be served on the person directed to execute the document in the manner prescribed for service of summons on a defendant to a suit”.

19. Rule 153 provides for the form of deed and reads in so far as it is material thus:

“In the case of deed, the concluding portion shall be in Form No. 55, x x x x and the Judge shall sign the name of the party directed to execute the document, and his own name as the said forms, and shall affix the seal of his court, thereto”.

(Emphasis supplied).

20. Form No. 55 under Rule 153 reads thus:

“Concluding portion of a deed executed by the Judge. In witness whereof C.D, the Judge of Court of the District Munsif on behalf of the abovenamed A.B, and in pursuance of the decree, dated the………………day of.…………………and made in a suit in the said Court, numbered……………of……………… wherein the above named E.F was plaintiff, and the said A.B was defendant, has set his hand and the seal of the said Court this……………….day of

L.S (Signed)A.B by C.D Judge”

21. ANDHRA PRADESH LAND REFORMS (CEILING ON Agricultural Holdings) Act, 1973.

22. This Act is enacted to consolidate and amend the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus lands and to provide for the matters connected therewith.

23. Section 2 reads thus:

“Declaration as to giving effect to certain directive principles: It is hereby declared that this Act is for giving effect to the policy of the state towards securing the principles specified in in clauses (b) and (c) of Article 39 of the Constitution of India”,

Section 19 reads thus:

“19. Declaration to be furnished before registering officer:

1. Notwithstanding anything in the Registration Act, 1908 every person presenting before a registering officer appointed under the said Act, for registration on or after the notified date, any document relating to alienation of any land or creation of a trust in respect of any land shall, at the time of such presentation, furnish a declaration in duplicate by the transferor making the alienation, or creating the trust, to the effect that the holding of the transferor does not exceed the ceiling area, and in a case where such transferor is a member of a family unit, that the holdings of all the members of such family unit in the aggregate does not exceed the ceiling area.

2. The declaration mentioned in sub-section (1) shall be in such form and contain such particulars as may be prescribed”:

24. As per sub-section (3) of the aforesaid section, on or after the notified date, no registering officer shall accept for registration any document relating to the alienation, or the creation of any trust, of any land if the document is not accompanied by a declaration mentioned in sub-section (1). As per sub-section (4), the registering officer shall, as soon as may be after the date of registration of the document, forward one copy of the declaration referred to in this section to the Revenae Divisional Officer within whose jurisdiction the holding which is the subject matter of the document - or a major part thereof, is situate and on receipt of such copy, the Revenue Divisional Officer may obtain such information as may be necessary for verifying as to the correctness of the statements contained in the declaration.

25. Every village officer and every officer of the Revenue Registration and Survey and Settlement Departments of the Government, shall have to report to the Revenue Divisional Officer any information which they may receive of transactions in respect of any land made in contravention of any of the provisions of the Act and on receipt of such information, the Revenue Divisional Officer as per sub-section (5) shall have to verify the correctness of the same.

26. Under sub-section (6) where it appears to the Tribunal or the Revenue Divisional Officer as the case may be, as a result of verification that a transaction has taken place in contravention of the provisions of this Act, it or he shall, after giving an opportunity of making representation to the parties likely to be affected and holding such enquiry as it or he may consider necessary by order, determine whether or not the transaction is in contravene-tion of the provisions of this Act; and where any transaction is so determined to be in contravention of the said provisions, it shall be null and void.

Section 24 provides for penalty. Sub-section (1) of which reads thus:

“If any person, who is liable to furnish a declaration under this Act wilfully and without reasonable cause or excuse, fails to furnish the declaration within the period prescribed or specified Page: 21therefor by or under this Aet or famishes any declaration which, he knows or bas reason to believe to be false, incorrect or incomplete he shall be punished with imprisonment for a term. which may extend to two years or with fine which may extend to two thousand rupees or with both”.

27. The Government has been given power under section 27 to make rules to carry out all or any of the purposes of this Act.

28. In exercise of the powers so conferred, the Governor of Andhra Pradesh made the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974,

29. Rule 13 reads thus:—

“13. Form of declaration to be filed by a transferor at the time of registration:—The declaration to be fied with the registering officer under sub-section (1) Section 19 shall be in Form XIV”.

Form XIV under Rule 13 dealing with the declaration reads thus:

DECLARATION

(See Rule 13)

(induplicate)

“Under sub-section (1) of section 19 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Rules, 1974, I…………………… hereby declare to the best of my knowledge and belief that my holding, the particulars of which are given in the schedule below, does not exceed the ceiling area under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.

30. I further declare that the holdings of all the members of the family unit of which I am a member, do not in the aggregate exceed the said ceiling area.

31. I further declare that my holding consists of the lands declared, and described in the schedule hereunder and it does not include any other land.

32. I also declare that the holdings of all the members of the family unit of which I am a member consists of the lands described in the schedule hereunder and that the holdings docs not include any other land.

33. Place

Signature of the Transferor,”

FACTS PROVED OR ADMITTED:

34. It is therefore evident from the foregoing that the petitioners filed a suit under the Specific Relief Act, 1963 seeking the specific performance of a contract of sale of immoveable property for Rs. 12,000/- That suit was decreed. But the judgement-debtors refused to execute the document of sale Page: 22pursuant to that decree. That necessiated the Judge to execute a document of sale under Order 21 Rule 34 (4) C.P.C for judgment-debtors, The judge was obliged to sign the name of the party directed to execute the document and his own name. It has the same effect as the execution of a document by the party ordered to execute the same.

35. The judge is further obliged under sub-rule 6 Rule 34 of Order 21 to cause the document to be registered as it is compulsorily registerable under the Indian Registration Act, 1908. The document was sent to the Sub- Registrar for registration. The Sub-Registrar retransmitted the same to the court with an endorsement to the effect that no registering officer shall accept any document for registration unless declaration in Form XIV under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 signed by the transferor is furnished. The judgment-debtors as transferors refused to sign and furnish such a declaration. The decree-holders requested the judge who executed the document to sign the declaration in Form XIV on behalf of the respondents on the basis of their affidavit and the affidavit filed by the village Kamam. The Judge held that he has no jurisdiction to sign declarations on behalf of the vendors.

36. The point therefore that arises for consideration is whether the expression “transferor” in Section 19 of the Act includes a Judge who executed a document of sale of immovable property persuant to a decree for specific perfomance?

ISSUES INVOLVED:

37. The expression “transferor” is not defined in the Act. The activity associated or involved in defining a statutory expression is essentially and exclusively legislative in nature and character. Is the judiciary competent to define an expression used in a statuete but not defined therein? If it does, is it not judicial legislation in the garb of adjudication? If, so, is it permissible? Do the judges make Jaw? Or do they ever cease to make law through interpretative process under the compulsion of discharging their duty to decide disputes? What difference is there between judicial process and legislative process? These are some of the issues involved in the solution of the problem raised in this case.

38. JUDGE-MADE LAW—LEGISLATIVE THEORY OF JUDICIAL FUNCTION:

39. Distinction between law-making by legislation and law-making by courts:—

“Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator”.

“Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, in so far as they create law, can do so only in application to the cases before them and only in so far as is necessary for Page: 23their solution”. (From Salmond's “Jurisprudence” at page 115). “Judicial law-making is at present” as Professor Jaffee Phrases puts it “is a by-product of an adhoc decision or profess (From “English and American Judges as Law-Makers.”)

“In emphasising the law-making aspects of the judicial process I do not wish to understimate or dispute the settlement aspect. The theory and I think the fact, is that the latter is the Court's job and the former is a conse-quence of it,” (By Jack & Hiller)

“JUDGES” according to cardozo “make law by evolution rather than by revolution”. (From “The Nature and Judicial Process,” 169)

Holmes once said, “I recognize without hesitation that Judges do must legislate, but they do so only interestially, they are confined from molar to molecular motions”. Paradoxically, according to Holmes, bringing the fact out into the open would legitimate or circumspect use of the power of judicial review the fact must be recognized so that judicial legislation might be improved by reducing it”. (From Society and the law” at page 170)

40. Learned Hand whose brilliant opinions have greatly enriched American Law said that “the courts have a modest complimentary power to express “the social will”. (1960—29) Harward Law Review pages 617 to 621.

41. According to patterson, “every appellate judicial decision is lawmaking in character, is based on a semantic argument”. The semantic theory reduces, according to the learned author, judicial “law-making” to the common place.

42. The contextual theory of meaning was developed at page 28:

“Another theory of meaning is that words do not have fixed meanings for all contexts, but rather their meanings depend upon their contexts and vary from contex to context, It is an illusion, sometimes apparent in judicial utterances, that a legal term has and must have a fixed meaning in all legal contexts…………… The well-known practice of construing a statue as a whole so as to give effect to all parts of it expresses the principle that there should be continuity or sameness of meaning when necessary to avoid contradiction or absurd diversity in operational effects”. (Pattern on Jurisprudence)

“All symbols are conventional, that is, the connection between the symbol and what it symbolises is brought about by human beings through agreement or usage (custom).

“Of all the systems of symbols, language is the most fully developed, most effective and most complicated”, (pages 112 and 113). The form of activity which aims at expounding the meaning of an utterance is called interpretation by meaning and interpretation by reference, (at page 117) “Problems of Interpretation—Semantic:

43. The semantic problems of interpretation, in the narrower sense, are those concerning the meaning of the individual words or phrases.

44. On this topic, in the main, the comments made in S. 24 apply. It must be particularly remembered that most words are ambiguous, and that all words are vague, that is, that their field of reference is indefinite, consisting of a core or central zone and a nebulous outer circle of uncertainty; and that the precise meaning of a word in a specific situation is always a function of the whole unit or entity; the uttarence as such, the context and the situation.

45. It is, therefore, erroneous to believe that the semantic interpretation begins by ascertaining the meaning of the individual words and arrives at the meaning of the utterances by adding them together. The starting point is the utterance as a whole and the context in which it occurs, and the problem of the meaning of the individual words is always bound up with this context.” (at page 134).

“The Judge's understanding of the statue will always depend upon his understanding of its social motives and purposes.”

(from “On Law and Justice by Alf Ross).

46. Ogden and Richards in their pioneering work “The Meaning of Meaning” and Glanville Williams in his brilliant essay “Language and the Law” (The Law Quarterly Review volumes 61 and 62) defined the fact that interpretation is nothing but an activity associated with finding what is sought to be symbolised through a symbol bearing in mind the context and the situation.

47. JUDICIAL LEGISLATION IS SUBORDINATE LEGISLATION,

“A large proportion of English law is in reality made by the judges.………the adhesion by our judges to precedent, that is, their habit of deciding one case in accordance with the principle, or supposed principle, which governed a former case, leads inevitably to the gradual formation by the Courts of fixed rules for decision, which are in effect laws. This judicial legislation might appear, at first sight, inconsistent with the supremacy of Parliament. But that is not so. English judges do not claim or exercise any power to repeal a statue, whilst, Acts of Parliament may override and constantly do override the law of the judges. Judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of Parliament.” (An Introduction to the study of the “Law of the Constitution” by A.V Dicey).

48. LEGISLATIVE THEORY OF JUDICIAL FUNCTION:

49. Oliver Wendell Holmes, in his celebrated book “The Common Law” Howe Edition said at page 1:

“The life of the law has not been logic; it has been experience, The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious Page: 25even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determi-ning the rules by which men should be governed.”

Judges really make law, Holmes asserted, because they are moti-vated by the same consideration as is the legislator. Referring’to the need to a more conscious recognition of legislative function of the courts, he said ‘in substance, the growth of the law is legislative’. And this in a deeper sense than that what the Courts declare to have always been the law is in fact new. It is legislative in its grounds”. Comparing the role of the Judge in filling up the gaps, to that of the Legislator, Gardozo in the Holmes tradition, had this to say:

“The choice of methods, the appraisement of values must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt, the limits for the Judges are narrower. He legislates only between gaps. He fills the open spaces in the law”.

(Gardozo “The Nature of Judicial process”)

Speaking about the philosophy of judicial action, Gahill in his Book “Judicial Legislation” at pages 149 and 150 said: “The problem to which the modern jurist addresses himself has been to devise a philosophy of judicial action that would induce the Courts either to accomplish the necessary changes or, at the very least, to refrain from blocking the efforts of others accomplish them. In point of fact, modern jurisprudence has attempted to accomplish both by means of what has come to be called the legislative theory of the judicial function, which, as we have seen holds that courts should be sensitive to legislative considerations both in construing the powers of other agencies of Government and in the development of these areas of the law traditionally in the keeping of the Courts. The promise underlying both phases of the theory is that a dynamic society requires a dynamic legal system”.

At pages 151 and 152.

“………Law of necessity embodies a statement of social policy and can therefore be appropriately judged in terms of that policy. In these terms, Law becomes an instrument of social ends”.

(See the decision in W.P No. 6735/74 dt. 27-7-1977)

TO SUM UP:—

50. Judicial Law-making and Legislative law-making compared and contrasted.

51. In the context of Administration of justice, it is the primary duty of a judge to decide disputes and settle controversies. In the course of discharge of their duties traditionally, the judges have been developing the Law through Page: 26the application of the doctrine of precedent, the invocation of the concept of public policy, the tempering of Law with equitable principles, the creation of legal fictions and the interpretation of statutes.

52. We cannot expect the Legislature to foresee all future circumstances and contingencies while enacting a statute and provide for the same in advance. When a judge is called upon to deal with a situation arising under a statute, but not provided for specifically in the letter of the statute, resort, should necessarily be had to the spirit of the statute and to the entire prevalent legal system. There in lies the freedom of choice involving an element of creativity resulting in law-making judicial decisions. There in lies the active role of a judge in developing the law not in competition with the legislature but in a supplementary role.

53. It is not open to a judge who is called upon to decide a dispute, to refuse to decide for any ostensible want of guidance from precedent or statute. Decide, he must. It is from this compulsion there springs the occasion to make law. Judicial law-making is incidental to the solving of legal disputes where as legislative law-making is the central function of the legislature. Judicial law-making is thus a by-product of decisional process. We cannot under-estimate the dispute settlement aspect while emphasising the law-making aspect of the judicial process. Deciding disputes is the primary job of the courts. Judicial legislation is only a consequence of it. Judicial legislation is subordinate legislation carried on with the assent and subject to the supervision of legislature.

54. Judges do and must legislate; but they do so only interstitially. They make law by evolution rather than by revolution; but they can not initiate legislation. A court must wait for a dispute to arise for making law. The legislature need not wait.

55. Judicial legislation is not an original act of creation. The creative power of the court is limited by existing legal material at their command. They find the material and shape it. The legislature manufactures entiterly new material.

56. In substance, the growth of law is legislative whether it be through direct legislation by the legislature or through subordinate legislation by the Court. The one as well as the other legislates within their respective limits of competence. But the limits for the Judge are narrower. He legislates only between gaps. He fills the open spaces in the law.

57. DEMOCRATIC TRADITION AND JUDICIAL PROCESS:

58. Democratic tradition demands that the judiciary shall disclose reasons as to what it does and why it does. What it does is the realism of judicial process. That disclosure has a great educative value. Confidence based on understanding is more enduring than confidence based on awe and authority and a blind and uncritical imitation of the past. Reluctance on the part of the court to disclose what they do while making law it a Page: 27thing of the past. Recognition and conscious awareness of it and “bringing the fact out into the open would legitimate a circumspect use of the power of judicial review-the fact must be recognised so that judicial legislation might be improved by reducing it.”

59. In the background of the foregoing discussion, it is proposed to consider whether the expression “transferor” in Section 19 of the Act includes a “judge”.

60. The right to acquire, hold and dispose of property is guaranteed by the Constitution. The means through which such a right can be realised is provided by the Indian Contract Act, 1872 through concepts like “agreement” and “contract” and by the Transfer of Property Act, 1882 through “sale” of immovable property.

61. The respondents entered into a contract of sale of immovable property for a consideration of Rs. 12,000/- with the petitioners. They failed to execute the document of sale.

62. Failure on the part of a party to a contract to perform the obligations arising thereunder by executing a document of sale is rendered statutorily redressable through the obtainment of a decree for specific performance of a contract under the Specific Relief Act, 1963 by filing a suit. After such a decree is obtained, if the party refuses to execute the sale-deed, the judge is required to assume the role of an executant under Order 21 Rule 34 (4) of the Code of Civil Procedure and execute a sale-deed signing even the name of the vendor, the transferor.

63. When such a document is found to be compulsorily registerable under the Indian Registration Act, 1908 the judge is further obliged under Order 21 Rule 34 (6) of the Code of Civil Procedure to cause such a document to be registered.

64. The judge sent the document executed by him to the Registrar for registration. The Registrar refused to register the document as it was not accompanied by a declaration form signed by the transferor in Form XIV under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. The owners of the property, the judgement-debtors……respondents refused to sign the declaration form as a transferor, that document cannot be registered.

LEGAL SYSTEM

65. The purpose, object and policy of the entire legal system consisting of the constitution and the statutes mentioned above will be frustrated and defeated if the Judges as “transferror” does not sign the declaration. Even as an executant, the judge was required under Civil Rules of Practice to sign the name of the party directed to execute the document and his own name. Such a document shall have the same effect as the execution of the document by the party ordered to execute. On a pariy of reasoning, the judge can furnish the declaration form XIV signing the name of the transferor.

66. The power or duty conferred or enjoined upon the judge under Order 21 Rule 34 (5) C.P.C to cause the document registered carries along with it Page: 28all necessary, incidental and ancilliary powers and duties including the one pertaining to the signing of the Declaration in order to render the aforesaid provision of law immediately and the entire legal system of which it forms an integral part ultimately effective and operative.

67. The expression “transferor” shall have to be understood and inter-preted, judged by the semantic considerations not merely from the immediate context of the statute where it occurs but also from the wider context of the entire legal system.

68. No violence to the language in Section 19 of the Act is done in interpreting the expression “Transferor” occurring therein as referable to a judge. Under that Section, every person presenting before a registering officer appointed under that Act for registration of any document relating to alienation of any land shall at the time of such presentation furnish a declaration by the transferor making the alienation to the effect that the holding of the transferor does not exceed the ceiling area. The Registering Officer cannot accept for registration any document relating to the alienation if the document is not accompanied by such declaration.

69. The village Karnam and one of the decree-holders in their affidavits furnished the particulars for the declaration to be signed by the judge. The decree-holder said in his affidavit that he holds himself responsible for any inaccurate or false statement in that regard and that he-would take the risk of the sale-deed becoming void for the violation of the Act. Even while executing the document, the judge shall have to depend upon the decree-holder for the particulars relating to area, extent, survey number etc., of the land.

70. The declaration is not intended to be conclusive of the correctness or otherwise of the statement of the particulars it contains. The Registering Officer after registration of the document shall have to forward one copy of the declaration to the concerned Revenue Divisional Officer and the Revenue Divisional Officer is required to verify the correctness of the statements contained in the declaration after obtaining information as may be necessary from the village Officers.

71. Every village officer and every officer of the Revenue, Registration Survey and Settlement Deparments of the Government shall have to report to the Revenue Divisional Officer any information which they may receive of transactions in respect of any land made in contravention of any of the provisions of this Act and on receipt of such information the Revet-nue Divisional Officer may verify the correctness of the same.

72. Where it appears to the Revenue Divisional Officer as a result of verification that a transaction has taken place in contravention of the provisions of the Act, he shall after giving an opportunity of making respresentation to the parties likely to be affected and holding such enquiry as he may consider necessary by order, determine whether or not the transaction is in contravention of the provisions of the Act. Such is the elaborate procedure Page: 29prescribed under Section 19 of the Act for verifying the correctness or other- wise of the particulars in the declaration relating to the transaction of alienation.

73. Where any transaction is so determined under Section 19 to be in contravention of the said provisions it shall be null and void. Therefore, it is not as if the enquiry pertaining to the correctness or otherwise of the particulars the declaration should contain stops merely with the judge's furnishing declaration to the registering officer. There are so many avenues envisaged by the Act to test and correct the particulars contained in the declaration. Nothing therefore decisive turned upon the contents of the declaration to be signed by the judge.

74. Nothing untowards happens even if the statement in the declaration to be signed by the judge on the basis of the affidavits filed is found to be not absolutely correct as their correctness would be verified by the Revenue Divisional Officer in the manner specified under S. 19 of the Act. If on the other hand the judge does not sign the declaration, the decree-holder will be deprived of the fruits of the decree obtained by them frustrating thus the objeet of the entire legal system as referred to heretofore. After all a transaction of alienation if found to be in violation of the provisions of the Act will be null and void and there is provided under the Act an elaborate machinery for finding whether or not a transaction is in violation of the Act,

SECTION 24: PENALTY:

75. That takes us to Section 24 of the Act providing for a penalty of punishment with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both.

76. That section visualises a case of a person who is liabile to furnish a declaration under the Act. It is debatble whether a judge is such a person. Assuming him to be one such, the penalty is attracted only if he wilfully and without reasonable cause or excuse furnishes any declaration which he knows or has reason to believe to be false, incorrect or incomplete. A judge who executed a document of sale pursuant to a decree of specific performance when the judgement-debtors refused to execute and who signs a declaration on the basis of the information furnished to him by the party can never be said to be a person “who wilfully and without reasonable cause or excuse” furnishes any declaration which he knows or has reason to believe it to be false, incorrect or incomplete” to be punished with imprisonment or fine as contemplated by Section 24 of the Act. The pro-visions of Section 24 of the Act have no application to the case of such a judge acting under Order 21 Rule 34 C.P.C read with S. 19 of the Act.

77. I hold therefore agreeing with the contention of Sri Sitaram Raju, learned Counsel appearing for the petitioners that a judge who executed a document of sale pursuant to a decree for specific performance of a contract of Page: 30sale is entitled and oblieged even to furnish a declaration in form XIV as a transferor of the subject matter of the sale under Section 19 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. This it in conscious recognition of the awareness on the part of the court that judges do make law while assigning a meaning to an expression occuring in a status but not defined therein.

78. For the aforesaid reasons, I am satisfied that this revision petition shall have to be allowed and it is hereby accordingly allowed but, in the circumstances, without costs.

C.R.P allowed