The Supreme Court of India, in the case of Samiullah vs. The State of Bihar & Ors., has quashed a 2019 amendment to the Bihar Registration Rules, 2008. The Court ruled that the sub-rules, which empowered registering authorities to refuse registration of sale or gift deeds without proof of mutation (Jamabandi or holding allotment) in the seller’s name, are unconstitutional.
A bench comprising Justice P. S. Narasimha and Justice Joymalya Bagchi held that the impugned sub-rules (xvii) and (xviii) of Rule 19 are ultra vires (beyond the powers of) the rule-making authority under the Registration Act, 1908, and are also “arbitrary and illegal.”
Background of the Case
The appeals challenged a judgment by the High Court of Patna, which had previously upheld the legality of the rules. The impugned rules, introduced by Notification No.-IV.M-1-12/2019-3644 on October 10, 2019, stipulated that a document related to the sale or gift of property could be refused registration if:
- (xvii) Jamabandi allotment to the seller/donor was not mentioned in the deed and no proof of such allotment was produced (for rural land).
- (xviii) Holding allotment to the seller/donor was not mentioned in the deed and no proof of such allotment was produced (for flats/apartments in urban regions).
The judgment noted that these rules made mutation certificates a “condition precedent” for the sale or transfer of immovable property. Aggrieved parties filed writ petitions before the High Court, which were dismissed, leading to the present appeals before the Supreme Court.
Arguments of the Parties
The appellants, represented by Senior Advocate Mr. Manan Kumar Mishra, raised several grounds:
- The rules are ultra vires the Registration Act, 1908, and exceed the rule-making power granted to the Inspector General of Registration under Section 69.
- It is impossible for owners to comply, as land surveys are incomplete, and 80% of Jamabandis are still in the names of ancestors, with 95-98% of those individuals being deceased.
- It is settled law that mutation does not create or confer title, and therefore, making it a mandatory pre-condition for registration is arbitrary.
- The rules illegally empower registering authorities to adjudicate on matters of title, which falls within the exclusive jurisdiction of civil courts.
The State of Bihar, represented by Senior Advocate Mr. Ranjit Kumar, defended the rules, arguing:
- The amendment aims to “synchronize registration of documents with the reality of actual land holding” and subserve integrity in sale transactions.
- The rules are intended to curb the “rising criminal tendencies” and multiplicity of claims over identical pieces of land.
- The Bihar Land Mutation Act, 2011, provides a fixed timeframe (within 21 days) for the grant of mutation, and land records have been digitalized.
The Court’s Analysis and Findings
The Supreme Court allowed the appeals, finding that the rules were both ultra vires and arbitrary.
1. On Rule-Making Power (Ultra Vires)
The Court conducted a detailed analysis of the existing Rule 19 (sub-rules i to xv), noting they “are relatable either to the identity of the property, or the condition or the conduct of the executant.” The Court found the new sub-rules (xvii) and (xviii) to be “qualitatively distinct.”
The judgment states: “For the first time, the sub-rule prescribes ‘mentioning’ with ‘proof’ of the transaction of the registrable property under another statute, namely the Bihar Land Mutation Act, 2011.”
The bench examined Section 69 of the Registration Act, which grants rule-making power to the Inspector General. The Court concluded that the power to frame the impugned rules could not be traced to Section 69 or any other provision of the Act. “There is nothing in Section 69 that would enable the Inspector General to make rules enabling or requiring declaring or enclosing proof of mutation in favour of the vendor, as a condition precedent for registration of documents for sale of property,” the Court held.
The judgment explicitly concluded: “…we have no hesitation in concluding that the impugned sub-rules are ultra vires the rule-making power under Section 69 or any other provisions of the Act.”
2. On Arbitrariness
While the Court appreciated the state’s “intention… to synchronize the registrable document with real time land holding,” it identified a “big missing link.”
The Court accepted the appellants’ submissions on the “ground reality” of mutation and surveys in Bihar. It noted that the State’s own Bihar Special Survey and Settlement Act, 2011, acknowledged that “the tenancy register has not been maintained and mutations effected are not reflected.”
Given this reality, the Court found the rules to be arbitrary. “Under these circumstances and considering the nascent stage at which the empirical data is translated as mutation… interlinking and restraining registration till the jamabandi or holding allotment is effected would be illegal, as it has a direct impact on the right and freedom to purchase and sell property,” the Court observed.
The judgment held that such a requirement “impinge[s] the right to hold and dispose of property” and is “arbitrary and illegal and as such, liable to be set aside.”
Dichotomy of Title and Direction to Law Commission
In its judgment, the Court also reflected on the broader “dichotomy between registration and ownership” in Indian property law. It observed that the Registration Act, 1908, “mandates the registration of documents, not titles,” creating a “presumptive titling system” that is rebuttable in court. This uncertainty, the Court noted, is the “primary contributor to high volume of land related litigation in India,” accounting for an estimated 66% of all civil cases.
The Court suggested that “emerging technologies such as Blockchain” offer a possibility to move towards a system of “conclusive titling.”
In light of this, the Supreme Court requested the Law Commission of India “to examine this issue in detail, consult the Union, the States and all other stakeholders as well as experts in the field of information and technology, and prepare a report on the issue that we have highlighted.”
The Decision
The Supreme Court allowed the civil appeals, set aside the judgment of the High Court, and quashed the Notification No.-IV.M-1-12/2019-3644 dated 10.10.2019, which introduced Rule 19 (xvii) and (xviii) of the Bihar Registration Rules, 2008.
