Orissa High Court
Afr vs State Of Odisha & Others : Opp. Parties on 6 September, 2019
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.9573 OF 2019
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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AFR
Smt. Maitri Mohanty & others : Petitioners
-Versus-
State of Odisha & others : Opp. Parties
For petitioner : M/s. B.Baug, M.R.Baug,
G.R.Sahoo & R.R.Jethi
For O.Ps.1 to 4 : Ms.S.Mishra,
Additional Standing Counsel
For O.P.5 : M/s.M.M.Patnaik & D.R.Sahu
For O.P.6 : M/s.Dr.A.K.Mohapatra, Sr.Advocate,
A.K.Mohapatra, B.Panda, T.Dash,
S.Sarangi, A.Pati, S.Nath & B.Subudhi
PRESENT :-
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Date of Hearing : 22.08.2019 : Date of Judgment : 06.09.2019
Biswanath Rath, J. This writ petition is filed with the following prayer :-
"Under the aforesaid facts and
circumstances, it is, therefore, prayed that this
Hon'ble Court may be graciously pleased to admit
this writ petition and issue a 'Rule-Nisi' calling
upon the Opposite Parties, more particularly the
Opposite Party Nos.4 & 5 to show cause as to why
they shall not be directed to deliver the original sale
deed to the petitioners or to their nominees as per
the ticket within a fixed period after performing the
administrative work by the Opposite Party No.4 to
complete the registration of the sale deed in all
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respects and as to why the Annexures-9 and 11
shall not be quashed and further if the sale deed of
the petitioners executed and registered on
21.5.2019 in respect of the suit land is cancelled,
the said cancellation shall not be quashed and if
the opposite parties fail to show cause or show
insufficient cause make the said rule absolute."
2. Background involving the case is that a piece of
land in Plot No.8846 measuring an area of Ac.0.585 decimals
covered under Khata No.322 of Mouza-Ghatikia under Chandaka
Police Station in the district of Khurda stood recorded in the name
of Smt.Maitri Mohanty, petitioner no.1 and Sri Kedar Nath Nanda,
petitioner no.2 as per the finally published settlement R.O.R. dated
14.11.2013. Kedar Nath Nanda, petitioner no.2, in order to manage,
sell and deal with his share of property under Annexure-1, gave a
General Power of Attorney in favour of Brundaban Nayak on
3.1.2011, who was looking after the land in question for and on
behalf of Kedar Nath Nanda, petitioner no.2. In the meantime, Smt.
Maitri Mohanty, petitioner no.1, for her legal necessity intended to
sell her share of land from the aforesaid plot to one Brundaban
Nayak, husband of Smt. Renubala Samantaray, petitioner no.3, and
accordingly, entered into an agreement for sale with said
Brundaban Nayak on 5.1.2018 and received an advance of Rs.5.00
lakhs by way of Account Payee Cheque dated 5.1.2018. While the
matter stood thus, in spite of cut-off relationship between Maitri
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Mohanty, petitioner no.1 and her husband, Rakesh Kumar Mallick,
in collusion with one Manas Ranjan Mohapatra, her husband,
Rakesh Kumar Mallick managed to execute and register an
agreement to sell the land in the name of petitioner no.1, in favour
of Manas Ranjan Mohapatra on 20.1.2018 thereby completely
forging the signature of petitioner no.1 and making false
impersonation of petitioner no.1 before the Sub-Registrar. Petitioner
no.1 claimed that she has neither signed nor appeared before the
Sub-Registrar nor even has been paid with the consideration
amount involving the sale agreement dated 20.1.2018. In the
meantime, petitioner nos.1 & 2 intended to sell the suit land for due
consideration to petitioner no.3. Accordingly, petitioner nos.1 & 2
being represented by their Power of Attorney executed a sale deed in
respect of the suit land on 21.5.2019 in favour of petitioner no.3
and received the consideration amount thereof. Consequent upon
receipt of consideration amount, they have also handed over the
possession of the suit land to the purchaser. As required under law,
the sale deed was executed by the parties concerned along with true
xerox copies of Hal Settlement R.O.R. and the Encumbrance
Certificate in respect of the suit land, which were presented for
registration on the basis of assessment. The petitioners also averred
that necessary Stamp Duty has also been paid by way of franking.
Further on assessment and demand, they have also paid the
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registration fees and, thereafter, the registration being completed,
O.Ps.4 & 5 issued Registration Ticket to Brundaban Nayak, the
Power of Attorney Holder of petitioner no.2 and the husband of
petitioner no.3 for receiving the sale deed later on the very same
date, i.e., 21.5.2019. Opposite Party no.5, who is also acting as
Opposite Party no.4 on the date of presentation of the sale deed for
registration, has also made his endorsement and attestation
involving the sale deed. The petitioners in order to establish the
aforesaid developments have filed documents, vide Annexure-4 and
ultimately filed the receipt vide Annexure-7. Similarly, they also
established the endorsement of the Sub-Registrar on the sale deed
vide Annexure-8, even granting receipt clearly indicating therein to
release the registered document on 21.5.2019 itself and clearly
mentioning therein the expected date of return of document to be
21.5.2019 as appearing at Annexure-5. The instrument was not
returned back to the petitioners on being registered constraining
the petitioners to file the writ petition in this Court seeking the relief
indicated in the pre-amended writ petition.
3. For the subsequent development taking place
during pendency of the writ petition, the petitioners also brought
the further fact that in a fraudulent attempt of opposite Party no.6
connived with opposite party nos.4 & 5, the petitioners were issued
with a show cause notice, vide Annexure-9 asking them to show
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cause on the allegation of opposite party no.6 in the matter of
constraint involving registration of the instrument.
4. Taking this Court to the documents, vide
Annexures-9, 10 & 11, Sri B.Baug, learned counsel for the
petitioners contended that the letter is a manufactured one and
received much subsequent to submission of the instrument for
registration and the date of registration of the instrument.
As a consequence of subsequent development, the
writ petitioners also made amendment of the writ petition bringing
in the documents at Annexures-9 to 11 and also documents at
Pages-27-A, 27-B, 27-C, 27-D, 27-E, 27-F, 27-G, 27-H, 27-I & 27-J
to the fold of consideration of the writ court along with modified
prayer indicated herein in the first paragraph.
5. Challenging the inaction of the Sub-Registrar and
the illegal proceeding of the Sub-Registrar involving registration of
the instrument involved herein, Sri B.Baug, learned counsel for the
petitioners apart from submitting that once formalities for
registration of an instrument as required under the Registration
Act, 1908 have been complied with and a final receipt has been
granted by the registering authority endorsing therein to hand over
the document being registered on 21.5.2019, the Sub-Registrar had
the only scope of registering the instrument and became functus
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officio to take into consideration any issue subsequent to issuance
of final receipt.
6. To establish his case, Sri B.Baug, learned counsel
for the petitioners taking this Court to the provisions of Sections-
34, 35, 52 & 61 of the Registration Act, 1908 read with Rules-25,
27, 28, 29, 30, 34, 63, 110(15), 111 & 148 of the Orissa
Registration Rules, 1988 attempted to satisfy his case that the
Registrar/Sub-Registrar involved herein by not registering the
instrument submitted before him and undertaking an exercise of
enquiry involving the allegation beyond his scope of consideration is
acting without jurisdiction. Further to satisfy his case, Sri Baug,
learned counsel, referred to two decisions, one of the Hon'ble apex
Court in the case of Satya Pal Anand vrs. State of Madhya
Pradesh & others, reported in (2016)10 SCC 767 and the other
decision of this Court in the case of Amulya Krushna Rana vrs.
Registrar, Jajpur & others reported in 2017(I) OLR 683. Taking
this Court to the above decisions, Sri B.Baug, learned counsel for
the petitioners submitted that above decisions have the direct
application to the case of the petitioners and thus requested for
allowing the writ petition thereby issuing suitable directions as
prayed for.
7. Ms. S.Mishra, learned Additional Standing
Counsel appearing for Opposite Party nos.1 to 4 in her opposition
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taking to the plea involved in the counter affidavit on behalf of
Opposite Party nos.1 to 4, while admitting the compliance of the
formalities in the matter of registration by the petitioners up to the
stage of grant of receipt in favour of the petitioners on 20.5.2019
clearly indicating therein the date of expectation of return of the
document to be 21.5.2019 and formally conceding that the
complain of Opposite Party no.6 was though received in the office of
the Sub-Registrar on 21.5.2019 but for the observation of the Sub-
Registrar and for the allegation brought by way of representation
dated 21.5.2019, the Sub-Registrar, Khandagiri was constrained to
hold on the registration of the instrument involved therein and
issued show cause to the vendor and vendee involved therein for
submission of their written statement within seven days from the
date of issue of notice as appearing at Annexure-9 for his personal
satisfaction before registering the instrument. She also brought to
the notice of the Court through the document at Annexure-11 that
the allegation involving the registration of the instrument is
undertaken by the Sub-Registrar and the matter was though posted
to 4.6.2019 but the Sub-Registrar could not proceed to decide such
allegation for the status quo order in the writ petition at hand
granted by this Court. Resisting the submission of the learned
counsel for the petitioners referring to the provisions and the
decisions, Ms. Mishra, learned Additional Standing Counsel
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submitted that for the dispute being raised on the registerability of
the instrument on the basis of an existing deed of agreement
involving the same property, the Sub-Registrar is duty-bound to
take up the issue before registering the instrument and the
decisions referred to by the learned counsel for the petitioners are
being opposed on the ground of change in the facts and situation
involving the case at hand and the cases involved in the citations.
8. Dr.A.K.Mohapatra, learned senior counsel for
Opposite Party no.6 similarly taking to his client's stand in the
counter affidavit on his behalf, while supporting the stand of the
learned Additional Standing Counsel and taking this Court to the
existence of an agreement for sale of the disputed land involving
Opposite Party no.6 contended that the Sub-Registrar is
duty-bound for the circumstance involved to undertake the enquiry
process before registering the instrument. Dr.Mohapatra, learned
senior counsel, however, taking this Court to the averments in the
counter affidavit of this Opposite Party contended that in the
meantime apprehending danger to the property, Opposite Party
no.6 already instituted a Civil Suit bearing C.S.No.1211 of 2019 on
the file of Civil Judge (Jr.Divn.), Bhubaneswar. It is in the above
premises, Dr.Mohapatra, learned senior counsel for Opposite Party
no.6 prayed for dismissal of the writ petition.
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9. Taking into consideration the pleading of the
respective parties and the documents appended by the respective
parties involving the writ petition, the counter affidavit and the
rejoinder of the respective parties, this Court finds, there is no
dispute as to the existence of two deeds of agreement for sale
involving the disputed property, one being between petitioner no.1
and petitioner no.3 entered into on 5.1.2018 and the other one
alleged to have been executed by the husband of petitioner no.1
with Opposite Party no.6 on 20.1.2018. There is also no dispute
that the sale deed involved being presented, there has been
assessment of Stamp Duty of Rs.6,08,400/-. The Stamp Duty has
been paid on 21.5.2019 appearing at page-26 of the brief. Similarly
on assessment of registration fee of Rs.3,04,200/-, this amount has
also been paid by way of draft appearing at page-25 and receipt
whereof has also been granted, vide Annexure-5. Annexure-8 is the
sale deed, which clearly establishes the grant on 21.5.2019, that
the sale deed has not only been presented but also attested and
endorsed by the Sub-Registrar, Debendra Satapathy, by making his
endorsement and attestation at pages-27-C as well as 27-D. It is at
this stage of the matter, looking to the document at Annexure-5,
this Court again finds, vide the receipt granted under Section 52
Clause (B) of the Act also establishes the completion of formalities
on 21.5.2019 and the expected date of return of document also
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given to be on 21.5.2019. It is at this stage, this Court further
taking into account the complain of Opposite Party no.6 available at
Annexure-10 finds, the same appears to have been received in the
office of the Sub-Registrar on 21.5.2019 as clearly appearing from
page-27-M of the brief, copy of which being sent along with a letter
to the petitioners asking them to show cause dated 25.5.2019
appearing at page-27-K again appears to have been issued to the
petitioners by Speed Post on 28.5.2019 as appearing at page-27-L
of the brief. For the submission of the petitioners, the petitioners
have received the show cause notice along with the letter
accompanied therein on 30.5.2019. Taking into consideration the
allegation of the petitioners at this stage that at about 4.30 p.m. to
5 p.m., Opposite Party no.5 telephoned Brundaban Nayak, the
Power of Attorney Holder representing petitioner no.2 and directed
him to return the Registration Ticket or else the Sub-Registrar will
be cancelling the registration and the response of Opposite Party
no.5 in his counter in paragraph-12, wherein this Opposite Party
admitted as follows :-
"It is a fact that the O.P.No.5 called
Brundaban Nayak, who is the attorney holder of
Kedarnath Nanda and husband of petitioner no.3
asking him to return the registration ticket issued
in his favour."
10. This Court observes, in the above background of
the matter, there is surprise in the behaviour of the Sub-Registrar
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for the reason that in the event the Sub-Registrar was already in
receipt of the complain of Opposite Party no.5 by this time, then
nothing prevented the Sub-Registrar to at least indicate the reason
for return of the ticket. This Court, therefore, opines that the Sub-
Registrar hatched a conspiracy and in connivance with Opposite
Party no.6 anticipating a complaint from Opposite Party no.6
entered into telephonic conversation with the petitioners as made in
paragraph-8 of the writ petition. Be that as it may, looking to the
controversy raised herein and the contentions of the respective
parties, this Court finds, the questions to be decided here are :-
I) looking to the provision in the
Registration Act, 1908 read with the provision in the
Orissa Registration Rules, 1988, whether the
Registering Officer becomes functus officio to entertain
any complaint after a receipt under Section 52 is being
granted in favour of the parties involved and
compliance of all formalities required in the matter of
registration of an instrument ? and
II) further looking to the nature of the
complain at the instance of Opposite Party no.6,
whether such complain is within the domain of the
Sub-Registrar involving Registration of an instrument ?
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It is in this background of the matter, looking to the admitted
situation disclosed herein above, there is already development
taken place up to grant of final receipt under Section 52 Clause
(B) of the Act as appearing at Annexure-5. This Court here likes
to take into account certain provisions of the Act to resolve the
questions framed herein. Provision of Section 34 of the
Registration Act, 1908 dealing with enquiry before registration
by the Registering Officer reads as follows :-
"34. Enquiry before Registration by
Registering Officer :-
(1) Subject to the provisions contained in this
Part and in Sections 41, 43, 45, 69, 75, 77, 88 & 89,
no document shall be registered under this Act, unless
the person executing such document, or their
representatives, assigns or agents authorized as
aforesaid, appear before the registering officer within
the time allowed for presentation under Sections 23,
24, 25 and 26 :
Provided that, if owing to urgent necessity
or unavoidable accident all such persons do not so
appear, the Registrar, in cases where the delay in
appearing does not exceed four months, may direct
that on payment of a fine not exceeding ten times the
amount of the proper registration fee, in addition to
the fine, if any, payable under Section 25, the
document may be registered.
(2) Appearance under Sub-Section (1) may be
simultaneous or at different times.
(3) The registering officer shall thereupon -
(a) enquire whether or not such
document was executed b the
persons by whom it purports to
have been executed ;
(b) satisfy himself as to the identity of
the persons appearing before him
and alleging that they have executed
the document ; and
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(c) in the case of any person appearing
as a representative, assign or agent,
satisfy himself of the right of such
persons so as to appear.
(4) Any application for a direction under
the proviso to Sub-Section (1) may
be lodged with a Sub-Registrar, who
shall forthwith forward it to the
Registrar to whom he is
subordinate.
(5) Nothing in this section applies to
copies of decrees or orders."
This provision of the Act makes it clear with
regard to the scope of enquiry with the Registering Officer.
Provision at Section 35 dealing with procedure
on admission and denial of execution respectively reads as
follows :-
"35. Procedure on admission and denial
of execution respectively--(1) (a) If all the persons
executing the document appear personally before the
registering officer and are personally known to him, or
if he be otherwise satisfied that they are the person
they represent themselves to be, and if they all admit
the execution of the document, or
(b) if in the case of any person appearing
by a representative, assign or agent, such
representative, assign or agent admits the execution,
or
(c) if the person executing the document is
dead, and his representative or assign appears before
the registering officer and admits the execution, the
registering officer shall register the document as
directed in sections 58 to 61 inclusive.
(2) The registering officer may, in order to
satisfy himself that the persons appearing before him
are the persons they represent themselves to be, or for
any other purpose contemplated by this Act, examine
any one present in his office.
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(3) (a) If any person by whom the document
purports to be executed denies its execution, or
(b) if any such person appears to the
registering officer to be a minor, an idiot or a lunatic,
or
(c) if any person by whom the document
purports to be executed is dead, and his representative
or assign denies its execution, the registering officer
shall refuse to register the document as to the person
so denying, appearing or dead:
Provided that, where such officer is a
Registrar, he shall follow the procedure prescribed in
Part XII:
[Provided further that the 2 [State
Government] may, by notification in the 3 [Official
Gazette], declare that any Sub-Registrar named in the
notification shall, in respect of documents the
execution of which is denied, be deemed to be a
Registrar for the purposes of this sub-section and of
Part XII."
Similarly, Section-35 of the Act provides
procedure on admission and denial of execution.
Now at this stage, this Court takes into
account the provision at Rule-63 of the Orissa Registration
Rules, 1988 dealing with enquiry as to execution, which reads as
follows :-
"63. Enquiry as to execution.- (1) The
Registering Officer shall decide the admissibility of a
document on enquiry under Sub-section (3) of Section
34 of the Act, Confining himself to the fact of execution
by the person by whom it purports to have been
executed. He is not required to enquire as to the
validity of the document.
(2) Objection to registration - All applications
objecting to registration shall be retained in the office
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and orders made thereon should be communicated to
the object or free of charge.
(3) If registration is objected to by any person on
any of the following grounds, namely :
(a) that a person appearing or about to appear
before the Registering Officer as an executant or
claimant is not the person he professes to be or that he
is a minor, an idiot or lunatic; or
(b) that the instrument is forged; or
(c) that the person appearing as a representative,
assign or agent has no right to appear in that capacity;
or
(d) that the executing party is not really dead, as
alleged by the party applying for registration, such
objections shall be duly considered by the Registering
Officer and if they are substantiated, the document
shall be returned to the party without registration.
Note - (1) Registration cannot be refused on the
ground that the consideration money has not been
paid or the objects of a document are unlawful or
immoral.
(2) In the case of Pardanashin executants, the
following special precautions shall be observed. The
registering officer shall first have the document read
over and explained to the Pardanashin lady by or in
the presence of her identifier, and thereafter the
Registering Officer shall point out to the lady, in the
presence of her identifier, the nature of the
transaction, consideration money, if any, the name or
names of the claimant or claimants, and the property
(with its extent) affected. Finally when the lady admits
execution, the identifier should be required to record a
certificate on the document in the following form :
"The document was read over and explained
to the lady executant by me (or in my presence) the
execution of which she admitted in my presence".
Provision at Rule 63(3) of the Registration Rules, 1988 clears the
type of objections required to be enquired into by the Registering
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Officer. Looking to the scope of the Authority of the Registrar
under the aforesaid three provisions, further taking into the
allegation by Opposite Party no.6 involved herein through
Annexure-10, this Court finds, for the nature of allegation
involved herein and as the complain does not come under either
of the provisions indicated herein above, there is no scope with
the Registering Officer entering into any such controversy. It is
at this stage, looking to the provision at Section 52 read with
Sections 58, 59, 60 & 61 of the Act, 1908, this Court reading
through the provision again observes, since the Registering
Officer has already issued the final receipt under Section 52 of
the Act, he has the only scope through Sections 58, 59, 60 & 61
of the Act. This Court, therefore, answering the questions framed
herein above in favour of the petitioners holds, since the nature
of complain at Annexure-10 of the brief does not come within the
scope of consideration of the Registering Officer, the Sub-
Registrar went wrong in withholding the registration of the
instrument on the premises of such un-entertainable complain
except leaving the complainant to take shelter of the Civil Court
to remedy out his difficulty through Civil Court and for already
grant of receipt under Section 59(2) of the Act, he had the only
duty to register the instrument taking into account the
provisions at Sections-58, 59, 60 & 61.
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11. It is at this stage, this Court takes into
account the decisions involving Satya Pal Anand (supra) for the
case of cancellation of registration of extinguishment deed in
exercise of power under Section 69 of the Act but however, finds,
in paragraph-46 of the said decision, Hon'ble apex Court has
held as follows :-
"46. In our considered view, the decision
in Thota Ganga Laxmi was dealing with an express
provision, as applicable to the State of Andhra Pradesh
and in particular with regard to the registration of an
extinguishment deed. In absence of such an express
provision, in other State legislations, the Registering
Officer would be governed by the provisions in the 1908
Act. Going by the said provisions, there is nothing to
indicate that the Registering Officer is required to
undertake a quasi-judicial enquiry regarding the
veracity of the factual position stated in the document
presented for registration or its legality, if the tenor of
the document suggests that it requires to be registered.
The validity of such registered document can, indeed, be
put in issue before a Court of competent jurisdiction.
This Court observes, for the issue no.23(4)(d) involved therein
though the decision has no direct application to this case but
the observation of the Hon'ble apex Court in paragraph-46 of the
said decision has an application to the case at hand and this
Court finds, the impugned action of the Sub-Registrar becomes
illegal. Other decision since has no application to the case at
hand does not require to be dealt with.
12. In the circumstances, this Court allowing the
prayer involved in the writ petition issues a Writ of Mandamus
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directing the Registering Officer involved herein to register the
instrument forthwith, since the instrument is obstructed for no
reason attributed to the petitioners and the loss of time in the
meantime, without insisting upon any further condition and
return the registered instrument to the petitioners by completing
the entire exercise within three days from the date of receipt of
certified copy of this judgment.
13. The writ petition succeeds. However, there is
no order as to cost.
A free copy of this judgment be supplied to the
learned Additional Standing Counsel for necessary compliance.
..............................
Biswanath Rath, J.
Orissa High Court, Cuttack. The 6th day of September, 2019/mkr, secy.