Orissa High Court
State Of Odisha vs Shri Manas Kumar Pradhan on 15 July, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. Nos. 226 and 141 of 2022 and W.A.No.738 of 2024
W.A. No.226 of 2022 [arising out of W.P.(C) No.25695 of 2021]
1. State of Odisha, Revenue and Disaster Management
Department, represented through its Secretary, At- Odisha Secretariat
Building, Bhubaneswar, Dist-Khurda.
2. Collector, Puri, At/P.O./Dist-Puri.
3. District Sub-Registrar, Puri, At/P.O./Dist-Puri.
4. Additional District Magistrate-cum-District Registrar, Puri,
At/P.O./Dist-Puri.
...Appellants
-Versus-
Shri Manas Kumar Pradhan, aged about 36 years, S/o. Prahalad
Pradhan, resident of Khadikadanda, G.P. Kusupur, P.O. Anantapur,
P.S. Balikuda, Dist-Jagatsinghpur.
...Respondent
1. Shri Bikash Chandra Sinha, aged about 78 years, S/o. Late
Brindaban Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S.
Ballygunge, State-West Bengal-20.
2. Shri Aninda Sinha, aged about 44 years, S/o. Late Atish
Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S. Ballygunge,
State-West Bengal-20.
...Proforma Respondents.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 1 of 39
W.A. No.141 of 2022 [arising out of W.P.(C) No.25695 of 2021]
Shri Jagannath Bastia, aged about 55 years, S/o. Late Nilamani
Bastia of Dolamandap Sahi, Bank Lane, P.S. Puri Town, P.O./Dist-
Puri, PIN-752001, Odisha.
...Appellant
-Versus-
1. State of Odisha, represented through the Additional Chief
Secretary, Revenue and Disaster Management Department, Secretariat
Building, Bhubaneswar, Dist-Khurda.
2. Collector, Puri, At/P.O./Dist-Puri.
3. District Sub-Registrar, Puri, At/P.O./Dist-Puri.
4. Additional District Magistrate-cum-District Registrar, Puri,
At/P.O./Dist-Puri.
5. Shri Manas Kumar Pradhan, aged about 35 years, S/o.
Prahalad Pradhan of Khadakadanda, G.P. Kusupur, P.O. Anantapur,
P.S. Balikuda, Dist-Jagatsinghpur.
6. Shri Tapan Kumar Hati, S/o. Naba Kishore Hati, At-Trimurti
Apartment, F2B, 79A, Nayapalli Bazar, Salt Lake, Sector-5, Bidhan
Nagar (M), North 24 Pragana, Kushnapur, West Bengal-700102.
7. Shri Bikash Chandra Sinha, aged about 77 years, S/o. Late
Brindaban Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S.
Ballygunge, West Bengal.
8. Shri Aninda Sinha, aged about 43 years, S/o. Late Atish
Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S. Ballygunge,
West Bengal.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 2 of 39
....Respondents
W.A. No.738 of 2024 [arising out of W.P.(C) No.25695 of 2021]
Ayananshu Dutt, aged about 46 years, S/o. Late Kalyan Kumar Dutta,
resident of 94, Chittaranjan Avenue, PO/PS-Bow Bazar, Kolkata-
700012, West Bengal, At present-Dutt Villa, New Marine Drive Road,
Sabik Mouza : Gourabada Sahi, Hal Mouza: Baliapanda, P.S. Sea
Beach, Dist-Puri.
...Appellant.
-Versus-
1. Sri Manas Kumar Pradhan, aged about 40 years, S/o.
Prahallad Pradhan, resident of Khadikadanda, G.P. Kusupur, P.S.
Balikuda, Dist-Jagatsinghpur, Odisha.
2. Collector, Puri, At/P.O./Dist-Puri.
3. District Sub-Registrar, Puri, At/P.O./Dist-Puri.
4. Additional District Magistrate-cum-District Registrar, Puri,
At/P.O./Dist-Puri.
5. Shri Bikash Chandra Sinha, aged about 77 years, S/o. Late
Brindaban Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S.
Ballygunge, State-West Bengal.
6. Shri Aninda Sinha, aged about 43 years, S/o. Late Atish
Chandra Sinha, resident of 2/4, B, Sarat Bose Road, P.S. Ballygunge,
State-West Bengal.
...Respondents
Advocates appeared in these cases:
In W.A.No.226 of 2022
For Appellants-State: Mr. D.K.Mohanty, AGA
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 3 of 39
For Respondent No.1: Mr. K.K.Mishra, Advocate
For Proforma Respondents: Mr. Parthendu Ray, Advocate
For Intervenor: Mr. A.K. Mohapatra-1 &
Mr. V. Mohapatra, Advocates
In W.A.No.141 of 2022
For the Appellant: Mr. Jagannath Bastia, in-person.
For Respondents No.1 to 4: Mr. D.K.Mohanty, AGA
For Respondent No.5: Mr. K.K.Mishra, Advocate
For Respondents No.7 & 8 : Mr. Parthendu Ray, Advocate
For Intervenor: Mr. A.K. Mohapatra-1 &
Mr. V. Mohapatra, Advocates
In W.A.No.738 of 2024
For the Appellant: Mr. A.K. Mohapatra-1,
Mr. V. Mohapatra & Mr.P.R. Parida,
Advocates
For Respondent No.1: Mr. K.K.Mishra, Advocate
For Respondents No.2 to 4: Mr. D.K.Mohanty, AGA
For Respondents No.5 & 6: Mr. Parthendu Ray, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
15.07.2024 W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 4 of 39 Chakradhari Sharan Singh, CJ.
An order dated 10.12.2021 passed by a learned Single Judge of this Court in W.P.(C) No.25695 of 2021 is under challenge in the present intra-court appeals whereby the learned Single Judge has set aside an order dated 28.10.2020 passed by the District Sub-Registrar, Puri (in short, „Sub-Registrar‟) refusing registration of a sale deed executed by the pro forma respondents No.1 and 2 in favour of the respondent-Manas Kumar Pradhan in respect of a piece of land situated at Puri Sadar having following description:-
"Sabik Mouza-Goudabadasahi Touzi No.268 out of Sabik Khata No.l, Sabik Plot No. 136 (P) of 1885 and 1922 ROR measuring an area Ac.0.500 decimal corresponding to Hal Plot No.90, 91, 95/210 and 95/211 measuring area Ac.0.040, 0.460, 0.090 and 0.600 decimal respectively under Hal Khata No.11 of Mouza-Baliapanda, PS-Puri Town, PS No.5, Dist: Puri. (hereinafter referred to as „disputed land‟)".
2. The Sub-Registrar had refused to register the said sale deed on various grounds including the bar under Section 22-A of the Indian Registration Act, 1908 (in short, „Registration Act‟) which has been inserted in the Registration Act by way of an amendment vide Odisha Act 1 of 2014 that came into force with effect from 22.02.2014. The said order of the Sub-Registrar was subsequently confirmed by the Registrar by an order dated 14.07.2021, which order has also been set aside by the learned Single Judge with a direction to the Sub-Registrar to register the documents forthwith upon presentation.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 5 of 393. W.A. No.226 of 2022 has been filed by the State of Odisha assailing the impugned judgment of the learned Single Judge, justifying the orders which were passed by the Sub-Registrar and the Registrar. W.A. No.141 of 2022 has been filed by one Shri Jagannath Bastia, who was not a party in the writ proceeding and has been granted leave to prefer the appeal. Further, W.A. No.738 of 2024 has been filed by one Ayananshu Dutt, who too was not a party in the writ proceeding, by seeking leave of this Court to assail the impugned order. It is his contention that suppressing material facts, the respondents obtained the impugned order without impleading him as a party though he being a necessary party in the facts and circumstances.
4. For the convenience, we have treated W.A. No.226 of 2022 preferred by the State of Odisha as the lead case.
5. In the present judgment, for clarity, the respondent-Shri Manas Kumar Pradhan, who was the writ petitioner, is being referred to as the purchaser and the pro forma opposite parties in the writ proceeding as the vendors.
W.A.No.226 of 20226. In nutshell, it is the case of the purchaser that the pro forma opposite parties (opposite parties No.2, 5 and 6 to the writ petition, hereinafter referred to as "the vendors") are the descendants of original sabik recorded tenant, who succeeded the entire rayati interest in respect of the disputed land. The purchaser, upon examining their title had agreed to purchase the said land and had paid part of the consideration amount to the vendors. Learned Single Judge has relied W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 6 of 39 on a judgment delivered by the Supreme Court in the case of Kumar Bimal Chandra Sinha (deceased) v. State of Orissa and others, AIR 1962 SC 1912 and has concluded that the dispute in the said case was between the predecessor-in-interest of the vendors of the writ petitioner and the State of Odisha.
7. One of the moot questions which has arisen in the present intra- Court appeal is as to whether based on the nature of pleadings in the writ proceeding, a conclusive finding could be recorded by the learned Single Judge, in a proceeding under Article 226 of the Constitution of India that the parties before the Supreme Court in case of Kumar Bimal Chandra Sinha (supra) were the predecessors-in-interest of the vendor (pro forma opposite parties in the writ petition) of the writ petitioner.
8. In order to appreciate the controversy in hand, we need to take note of the case set up by the purchaser seeking the reliefs, which have been granted by the learned Single Judge by the impugned order.
9. It was pleaded in the writ petition that one Rani Harsa Mukhi Dassi was the executrix of the estate after the death of sabik recorded tenants whose name was reflected in the Record of Rights (RoR). The vendors are the descendants of original sabik recorded tenants. Upon enforcement of the Orissa Estates Abolition Act, 1951 (in short, „OEA Act‟) the entire estate of the executrix vested with the Government free from all encumbrances in the year 1953 including the rayati land of the proprietor of the Paikpara Estate. The predecessor of the vendors, being aggrieved by illegal vesting of rayati land, had filed a writ W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 7 of 39 petition giving rise to OJC No.191 of 1956 challenging the decision of the Collector before this Court, which was dismissed. The said decision of this Court was challenged before the Supreme Court of India in Civil Appeal No.177 of 1960 which was allowed and their right over the said land was declared as rayati right and it was further declared that the State Government had illegally taken possession over the disputed land. The said decision of the Supreme Court has been reported in AIR 1962 SC 1912 (Kumar Bimal Chandra Sinha (deceased) Vs. State of Orissa and others. After their death, the vendors inherited the suit land. The purchaser further asserted that in the RoR published in the year 1987, the said Mouza was recorded in the name of the State Government. The vendors were not present in the State of Odisha during the relevant point in time because of which final RoR was erroneously published in the name of the State Government. Further, in the Hal RoR, several such outsiders, who did not have any interest managed to get their names reflected in the remarks column on the basis of void and sham lease deeds executed by the Puri Municipality. Similarly, one Jyotish Chandra Dutta (not impleaded a party in the writ proceeding), who was the caretaker of the vendors also managed to obtain the lease deed in his favour by way of registered lease deed in the year 1968 but subsequently when the Puri Municipality learnt that it was not the owner of the property, it did not further renew the lease.
10. The purchasers being interested in purchase of the suitable piece of land for residential purpose came in contact with the vendors and upon thoroughly examining the title and the Supreme Court‟s decision W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 8 of 39 in the case of Kumar Bimal Chandra Sinha (deceased) (supra) entered into an agreement to purchase the disputed land and paid to them a part of the consideration amount.
11. It is significant to note, which has been stated in the writ petition itself, that the prospective vendors filed a revision petition under Section 15(b) of the Orissa Survey and Settlement Act, 1958 (in short, „OSS Act‟) to revise the RoR and record the name of the vendors, in the Court of Commissioner of Land Records, Bhubaneswar giving rise to revision petition i.e. R.P. No.95 of 2020 which was pending then. The said R.P. No.95 of 2020 is still pending.
12. The purchaser asserted in the writ petition that in the revisional Court, several cases were pending and there was no likelihood of early hearing of the case in near future. However, considering this Court‟s decision in the case of Dhabal Prasad Pradhan Vs. State of Orissa and other reported in 2014 (II) OLR 801, he had agreed to purchase the land on payment of part consideration amount. Relying on the said decision of the learned Single Judge, the respondents asserted that the Sub-Registrar did not have any jurisdiction to insist on submission of final RoR in the name of the vendors.
13. Earlier, when the sale deed was not accepted for registration on the ground of non-submission of RoR, the purchaser had filed a writ petition giving rise to W.P.(C) No.22425 of 2020, which was disposed of with an order permitting him to re-tender the instrument before the Sub-Registrar for registration within a period of seven days and in such event, the Sub-Registrar was required to pass an award on the W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 9 of 39 registrability or otherwise, however, taking into consideration the Supreme Court‟s decision after giving personal hearing to him. It is in the light of the said order of this Court that the sale deed was re- tendered but the Sub-Registrar, without giving the petitioner an opportunity of hearing, passed an order on 20/28.10.2020 by putting a back date. Being aggrieved by the order of the Sub-Registrar, the respondent had preferred an appeal before the Registrar vide Registration Appeal No.1 of 2020 before the Registration under Section 72 of the Registration Act. The said appeal was dismissed by an order dated 14.07.2021. The purchaser asserted in the writ petition that the Sub-Registrar and the Registrar declined to entertain the registration of the sale deed mainly on the ground that the RoR had not been corrected in favour of the vendors.
14. The purchaser also asserted in the writ petition that though the Supreme Court‟s decision in the case of Kumar Bimal Chandra Sinha (deceased) (supra) was taken note of by the Sub-Registrar, he failed to understand the purport of the judgment and erroneously held that the disputed land had vested in the Government pursuant to a notification under Section 3 of the OEA Act. In the background of the facts noted above, the purchaser asserted that the decision of the Registrar and the Sub-Registrar not to register the document is contrary to the provisions of the Registration Act which lays down the necessary requisites for entertaining the registration of any deed of transfer. No provision under the Registration Act authorizes the Sub-Registrar to make an inquiry as regards the existence of title of the parties. The purchaser further asserted that the subject matter of the sale deed consisted of two-storey W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 10 of 39 building and some vacant land standing over the rayati interest of the intermediary. The predecessors-in-interest of the vendors being aggrieved by the illegal vesting of the above nature of land had approached the then Collector to exclude the present land and building as well as other lands of the similar nature, which dispute was set at rest by the Constitution Bench of the Supreme Court in the case of Kumar Bimal Chandra Sinha (deceased) (supra). The purchaser further asserted in the writ petition that in view of clear finding of the Supreme Court there is no doubt that the vendors are the real owners of the disputed land and the registration of the sale deed could not be refused mainly because the same had been recorded in the name of the State Government. The purchaser also asserted that Section 22-A of the Registration Act does not confer jurisdiction on the Registering Officers to decide the right, title and interest over the landed property and such approach of the Registering Authority negates the settled position of law that RoR is not a document of title and RoR can neither create nor extinguish title. Further, preventing a person from selling his land acquired on the strength of the judgment of the Apex Court would be contrary to the provision under Section 8 of the Transfer of Property Act.
15. A counter affidavit was filed in the writ proceeding on behalf of the State of Odisha raising a preliminary objection to the effect that the writ petition was not maintainable as the petitioner had not exhausted alternative remedy under Section 77 of the Registration Act by filing a suit. A specific plea was taken in the counter affidavit that the vendors were not the successors of the intermediary and not a single chit of W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 11 of 39 document was produced before the authority to that effect. As per the Hal RoR which was published in the year 1987-88, the disputed land was recorded in the name of State Government and Jyotish Chandra Dutta was shown in illegal possession of the suit land as reflected in the RoR. Responding to the assertions made in the writ petition, it was averred in the counter affidavit of the State that Paikpara Estate had vested in the State of Odisha by virtue of notification under Section 3 of the Act on 22.08.1953. The Intermediary, at the relevant point of time, had approached this Court vide OJC No.191 of 1956 challenging the action of the State officials taking illegal possession of Tauzi in the year 1954 alleging that the property in question were rayati land of intermediary and the State officials had no authority to take possession of the same in view of Section 5(h) (sic) of the OEA Act. The said application filed by the intermediary was turned down whereafter the intermediary had approached the Supreme Court. The Supreme Court, while adjudicating the aforementioned civil appeal categorically held that the rayati interest of the appellants in that case, in the lands and in the buildings standing on those lands had not been affected with the abolition of his interest as proprietors and that the State authorities had illegally taken possession over the same.
16. After disposal of the appeal by the Supreme Court, neither the then intermediary nor the legal heirs of the said intermediary approached the authority under the OEA Act for resumption of the land and, accordingly, the suit land was rightly recorded in the name of the State Government and RoR was published nearly 28 years after disposal of the appeal by the Supreme Court. Nearly six decades W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 12 of 39 thereafter the vendors filed a case under Section 15(b) of the OSS Act giving rise to R.P. Case No.95 of 2020 for revision in RoR before the Commissioner, Land Records, Bhubaneswar.
17. It was also asserted in the counter affidavit that the purchaser produced the sale deed along with the power of attorney which was executed at Kolkata for registration. The opposite parties, accordingly, refused to register the document on valid grounds duly applying the provisions under Section 22-A of the Registration Act.
18. Non-joinder of Jyotish Chandra Dutta in the writ petition was also taken as a ground on behalf of the State for dismissal of the writ petition, there being dispute pending between the pro forma respondents and said Jyotish Chandra Dutta relating to correction of the RoR.
19. A rejoinder affidavit was also filed on behalf of the purchaser to the counter affidavit filed on behalf of the Appellant. The said rejoinder affidavit does not dispute any fact asserted in the counter affidavit though legal issues raised in the counter affidavit justifying refusal to register the documents have been refuted.
20. After having considered the pleadings on record and submissions advanced on behalf of the parties, learned Single Judge has allowed the writ application by the impugned order and upon quashing the orders passed by the Sub-Registrar and the Registrar, directed the Sub- Registrar to register the documents if the same is re-tendered by the respondent.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 13 of 3921. It would be appropriate to mention at this stage that an interlocutory application (I.A.) seeking interim order against the impugned order of the learned Single Judge was filed on behalf of the appellant vide I.A. No.585 of 2022. On 04.03.2022, while issuing notices to the pro forma respondents, this Court had passed the following order for maintaining status quo:-
"W.A. No.226 of 2022 & I.A. No.585 of 2022
1. Issue notice.
2. Mr. Mohanty accepts notice on behalf of contesting Respondents.
3. Notice be now issued to Proforma-Respondent by Registered Speed Post returnable by the next date. Requisites shall be filed within three working days. Tracking report be placed on record.
4. Till the next date of hearing, status quo shall be maintained as regards the property in question. Till further orders, the further proceedings in CONTC No.1166 of 2022 shall remain stayed.
5. List on 9th May, 2022."
22. Subsequently, by an order passed on 09.05.2022 in the present appeal, the interim order passed earlier was directed to continue during pendency of the appeal. Despite the interim order passed by this Court in the present intra-Court appeal as noted above, the Registering Authority had passed an order directing registration of the sale deed in compliance of the impugned order passed by the learned Single Judge. Taking exception to such conduct of the Registrar, this Court by an order dated 01.12.2023 had directed the learned Addl. Government Advocate to seek instructions as to how an order for registration was passed despite an interim order of status quo passed by this Court. An W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 14 of 39 affidavit has been filed accordingly by the District Sub-Registrar, Puri stating therein that the document re-tendered by the respondent was admitted for registration under Section 58 of the Registration Act on 24.01.2022. However, the signature of the District Sub-Registrar, Puri in the endorsement had not been completed under Sections 60 and 62 of the said Act and, thus, the document has not been delivered to the respondents. After passing of the interim order dated 26.02.2022, nothing has proceeded further as regards completion of the registration.
W.A. No.141 of 202223. The appellant-Shri Jagannath Bastia in W.A. No.141 of 2022 claims to be a journalist, environment activist and a former Member of the Odisha Coastal Zone Management Authority. He has filed the said intra-Court appeal assailing the impugned order passed by the learned Single Judge with a plea that the disputed land comes within the existing sweet water zone where sale/lease/transfer/renewal of lease of land is strictly prohibited by virtue of a direction issued under Section 5 of the Environment Protection Act, 1986 by the Odisha Coastal Zone Management Authority vide letter No.73/OCZMA dated 16.09.2017. He has asserted in his memo of appeal that the disputed land stands recorded in Government Khata in 1987-88 Hal settlement. He has asserted that the claim of the purchaser was not substantiated by filing any piece of document before the District Sub-Registrar, Puri regarding their flow of title and ownership of the suit land except this Court‟s order passed in OJC No.191 of 1956 and the Supreme Court‟s order in Civil Appeal No.177 of 1960.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 15 of 3924. By an order dated 15.09.2023, leave was granted to the appellant of W.A. No.141 of 2022 to pursue the intra-Court appeal against the impugned order, who was not a party to the writ proceeding but claimed to be one of the affected persons.
W.A. No.738 of 202425. W.A. No.738 of 2024 has been filed by one Ayananshu Dutta, who was not a party in the writ proceedings, assailing the same order of the learned Single Judge dated 10.12.2021.
26. An application has been filed vide I.A.No.1975 of 2024 seeking leave of this Court to prefer the present appeal against the impugned order of the learned Single Judge and by filing I.A.No.1976 of 2024 the appellant of W.A. No.738 of 2024 has sought for condonation of delay of 820 days in preferring the appeal. Explaining the reasons for delay in preferring the appeal, it has been stated that the appellant learnt about the impugned order dated 10.12.2021 when the respondent came to the disputed property to disturb the appellant‟s possession on the strength of the said order. He filed an application in the disposed of writ petition for recall of the order dated 10.12.2021 passed by the learned Single Judge. Later, when he learnt that the State had preferred a writ appeal giving rise to W.A. No.226 of 2022 against the said order and the order has been stayed by this Court, the appellant filed an intervention application in the writ appeal instead of preferring the present writ appeal, which according to him, was a bona fide mistake. He has, accordingly, sought for condonation of delay of 820 days in preferring the appeal.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 16 of 3927. So as to sustain his locus standi, it is the case of this appellant that Puri Municipality had leased out the disputed land to late Dr. Raibahadur Haridhan Dutt for a period of 20 years which was renewed from time to time and lastly in the year 1995 for a further period of 20 years in the name of the appellant‟s father and his uncle. According to him, the lease has not been renewed thereafter as the disputed land stood reverted back to the State Government. It has been stated that the appellant‟s father and his uncle have filed a suit for declaration of title and permanent injunction against the State of Odisha and others in the Court of the learned Civil Judge (Senior Division), Puri registered as Civil Suit No.41 of 2004, which has been decreed in their favour vide judgment dated 24.03.2011. It has accordingly been asserted that on the strength of the said impugned order of the learned Single Judge dated 10.12.2021 the respondent and his henchmen are threatening forcible eviction of this appellant from the disputed land because of which the appellant has filed a suit in the Court of the learned Civil Judge (Senior Division), Puri seeking permanent injunction. The said suit for injunction which has been registered as Civil Suit No.89 of 2022 is pending disposal.
28. Considering the facts and circumstances as noted above in these applications, the prayer of the appellant-Ayananshu Dutt to grant leave to prefer the present appeal is allowed. The delay in preferring the appeal stands condoned. We make it clear that we have heard learned counsel for the parties on the point of condonation of delay and grant of leave to prefer the appeal.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 17 of 39Submissions
29. We have heard learned counsel for the parties in the respective cases.
30. Mr. Debakanta Mohanty, learned AGA appearing on behalf of the State-appellants in W.A. No.226 of 2022 has submitted that the writ petition ought not to have been entertained by the learned Single Judge in view of the alternative statutory remedy available under Section 77 of the Registration Act which provides for filing of a suit in Civil Court by the aggrieved party where the Registrar refuses to order a document to be registered under Section 72 of the said Act. He contends that though a specific stand was taken by the State in this regard, learned Single Judge entertained the writ petition and allowed the same by passing the impugned order. He has further submitted that it was pleaded in the counter affidavit that a dispute between the State, the vendors and Jotish Chandra Dutta relating to correction of the RoR was sub judice before the competent authority. The writ petition was, therefore, liable to be dismissed due to non-joinder of necessary party since the said Jyotish Chandra Dutta was not impleaded as party in the writ proceeding. He has also submitted that the registration of the sale deed was rightly rejected, applying the provision under Section 22-A of the Indian Registration Act. Further, there is no material on record based on which it can be inferred that the vendors are the successors of the ex-intermediary Rani Harsamukhi Dasi. The suit land stands recorded in the name of the State Government in the Hal RoR published in the year 1987-88 with a note of possession in favour of one Jyotish Chandra Dutta. The correctness of the entry in the Hal RoR W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 18 of 39 in 1987-88 is now under challenge and sub judice in R.P. Case No.95 of 2020, which has been instituted by the vendors themselves. In this connection, he has submitted, reiterating the stand taken in the counter affidavit that the suit land belonged to Paikapara Estate which stood vested in the State Government by operation of Section 3 of the OEA Act. The vesting order was challenged before this Court on the ground that the State Government was not entitled to take possession of the same by virtue of Section 5(h) of the OEA Act. The matter had travelled to the Supreme Court wherein it was declared that the Rayati interest in the lands had not been affected by the OEA Act and taking over possession by the State Government was illegal. No order was passed, however, for restitution of the property in favour of ex- intermediary and it further transpires that after death of ex- intermediary, no one claiming to be the legal heirs approached the authority under the OEA Act for resumption of possession of the disputed land, as a result of which, the Settlement Authority recorded the suit land in the name of the State Government in the year 1987, nearly 26 years after the disposal of the case by the Supreme Court. Fifty eight years after disposal of the case by the Supreme Court, one of the vendors filed a case for correction of the entries in the RoR which gave rise to R.P. Case No.95 of 2020 under Section 15(b) of the OSS Act, which is still pending. At this stage, vendors are said to have intended to transfer the suit land in favour of the purchaser, the sale deed for which was presented for registration before the Sub-Registrar that was refused in the background of the admitted fact that in the Hal RoR published in 1987-88 the land stood entered in the name of the State Government with a note regarding possession in favour of one W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 19 of 39 Jyotish Chandra Dutta. He has argued that this Court‟s decision in case of Dhabal Prasad Pradhan (supra) relied on by the purchasers is not applicable in the present set of facts because in accordance with the amendment under Section 22-A of the Registration Act, registration of a sale deed cannot be allowed unless flow of title in favour of the vendor was established. In the present case, the respondent failed to establish flow of right, title, interest and possession in favour of the vendors as on the date, in respect of the suit land. It has also been argued that the suit land is admittedly under the sweet water zone and according to the Government of Odisha notification, any sale, lease or construction is prohibited in respect of the land situated within the said zone. He has also argued that a title suit has also been filed by the persons in occupation of the suit land vide C.S No.89 of 2022 for declaration of right, title and interest in respect of the suit land in which the purchaser is a party.
31. Mr. A.K. Mohapatra, learned counsel representing the appellant in W.A. No.738 of 2024 has argued that the impugned order passed by the learned Single Judge is hit by non-joinder of necessary parties as the legal heirs of Dr. Raibahadur Haridhan Dutta including the appellant who were necessary parties particularly in view of the fact that in the earlier writ petition i.e., W.P.(C) No.22425 of 2020, the legal heir of Dr. Raibahadur Haridhan Dutta, namely, Kamal Kumar Dutt was impleaded as opposite party No.5 by the writ petitioner. He has submitted that the writ petitioner intentionally did not implead the appellant as party respondent knowing well that he was in possession of the land in question and in view of the fact that the lease deeds, the W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 20 of 39 ROR and the judgment in Civil Suit No.41 of 2004 clearly demonstrate that the appellant and his family members are in peaceful possession over the disputed land as on the date of vesting with effect from 23.08.1953 and as such the appellant‟s family perfected their title over the disputed land. He has submitted accordingly that the impugned order passed by the learned Single Judge declaring title over the suit land in favour of vendors of the writ petitioner is unsustainable and therefore deserves interference.
32. Mr. K.K. Mishra, learned counsel appearing on behalf of the respondent No.1/writ petitioner (the purchaser) has submitted that the impugned order of the learned Single Judge has already been carried out by the Sub-Registrar and the sale deed has already been executed and registered on the date of filing of the present writ appeal. He has argued that so as to skip the rigours of contempt proceeding, this appeal has been preferred on flimsy grounds, suppressing material facts as regards registration of the sale deed. He has argued that the respondent is a bona fide purchaser and has purchased the land in question from the vendors on payment of stamp duty and the registration fees, the same cannot be called in question in the present appeal. He has, however, conceded that the respondent has been impleaded in the title suit being C.S. No.89 of 2022 by the intervener/appellant in W.A. No.738 of 2024, inter alia, praying for declaration of the right, title and interest and permanent injunction based on cause of action of execution of the sale deed in question in favour of the respondents.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 21 of 3933. Based on the pleadings on record and submissions, which have been advanced on behalf of the parties as noted above, following questions emerge for this Court to consider in the present intra-Court appeal:-
(i) Whether the finding recorded by the learned Single Judge that the vendor is raiyat of the disputed land, relying on the Supreme Court‟s decision in the case of Kumar Bimal Chandra Sinha (supra) is sustainable ?
(ii) Whether the opinion of the learned Single Judge that sub-section (2) of Section 22A of the Registration Act is not applicable to the vendor is sustainable?
(iii) Whether the decision in the case of Dhabal Prasad Pradhan (supra) has been rightly applied by the learned Single Judge with reference to sub-section (2) of Section 22A of the Registration Act ?
(iv) Whether the opinion recorded by the learned Single Judge that Section 77(1) of the Registration Act merely gives an option to the person aggrieved by the order of the Registrar to file a suit, which may or may not be exercised and, therefore, a writ petition would be maintainable?
(v) Whether in the light of the notification issued by the Government of Odisha, as the disputed land is located under sweet water zone, registration of the sale deed in respect of the suit land is permissible or not?W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 22 of 39
Question No.(i)
34. It would be apt to note at the outset, the affidavit, which was filed by the purchaser in the writ petition to support the pleadings thereof:-
"AFFIDAVIT I, Sri Manas Kumar Pradhan aged about 35 years son of Prahalad Pradhan, resident of Khadikadanda, GP-Kusupur P.S- Balikuda Dist- Jagatsinghpur, do hereby solemnly affirm and state as follows;-
1. That I am the petitioner in the present interim application and I have carefully gone through the writ petition and understood the same.
2. That the facts stated above are true to the best of my knowledge and belief."
35. To say the least, the affidavit is not only vague, but also it does not fulfill the requirement of Rule 3(iv) of Chapter-VI of Part II of the Rules of the High Court of Orissa, 1948, which prescribes the formant in which the affidavits are required to be filed. The said format is reproduced hereunder:
"FORM OF AFFIDAVIT IN THE HIGH COURT OF ORISSA, CUTTACK In the matter of:
xxx xxx xxx (5) If the facts stated are true to the best of the knowledge and belief of the deponent/declarant/petitioner/Advocate or otherwise.
(Declaration in the following proforma) "I................the Applicant/Respondent/Petitioner/Opposite Party/Deponent above named do hereby solemnly affirm that the facts stated in Paragraphs .............and............. are true to my own knowledge and in paragraph ......... and ........... are true to the best of my information which I obtained from the following sources ......
I believe the information to be true for the following reasons:............................
Solemnly declare at ................the above said this ..............day of ..........20.....
SIGNATURE BEFORE ME COMMISSIONER OF OATH"
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 23 of 3935.1. Secondly, based on the pleadings on behalf of the purchaser in the writ petition and the rejoinder, we are of the definite view that the purchaser cannot be said to have indisputably established that his vendors were the successors-in-interest of Kumar Bimal Chandra Sinha.
36. Thirdly, it is also evident from the facts noted above that there were disputes in relation to the disputed land pending before the Revenue Authority in R.P. No.95 of 2020 under Section 15(b) of the OSS Act and a Title Suit vide C.S No.89 of 2022 was also pending within the knowledge of the purchaser. It, thus, cannot be said that the title of the vendors over the disputed land was an admitted fact based on the Supreme Court‟s decision in case of Kumar Bimal Chandra Sinha (supra) and that their title was not in dispute otherwise.
37. The law is well settled that questions of title should not be adjudicated upon in the writ proceedings. We reiterate that we do not find any conclusive evidence on record based on which learned Single Judge could have arrived at a definite finding that the vendors were the successors-in-interest of Kumar Bimal Chandra Sinha. We have noticed an attested copy of a genealogical certificate of „Sinha‟ family issued by one Goutam Haldar, Councilor (Ward No.4), Kolkata Municipal Corporation, which was brought on record by way of Annexure-7 to the rejoinder affidavit filed by the purchaser to the counter affidavit filed by the State in the writ proceeding. We are of the considered opinion that based on such document and the pleadings, one W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 24 of 39 cannot reach a definite conclusion that the vendors are successors-in- interest of Kumar Bimal Chandra Sinha. These are questions of fact that could be adjudicated upon in a duly framed suit.
We, accordingly, answer question No.1 and hold that the finding of fact recorded by the learned Single Judge relying on the judgment of Supreme Court in case of Kumar Bimal Chandra Sinha (supra) that the vendors were the successors-in-interest and, thus, rayats of the disputed land is unsustainable.
Question No.(ii)
38. In order to answer question No.(ii), it would be profitable to reproduce Section 22-A of the Registration Act, which reads thus:
"22.A. Refusal to register certain documents-(1) The registering officer shall refuse to register-
(a) any instrument relating to the transfer of immovable properties by way of sale, gift, mortgage, exchange or lease-
(i) belonging to the State Government or the Local Authority;
(ii) belonging to any religious institution to which the Odisha Hindu Religious Endowments Act, 1951 is applicable,
(iii) belonging to or recorded in the name of Lord Jagannath, Puri.
(iv) donated for Bhoodan Yagna and vested in the Odisha Bhoodan Yagna Samiti established under Section 3 of the Odisha Bhoodan and Gramdan Act, 1970;
(v) belonging to Wakfs which are under the supervision of the Odisha Wakf Board established under the Wakf Act, 1995;W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 25 of 39
Unless sanction in this regard issued by the competent authority as provided under the relevant Act or in absence of any such authority, an authority so authorised by the State Government for this purpose, is produced before the registering officer;
xxx xxx xxx
(b) The instrument relating to cancellation of sale deeds without the consent of the person claiming under the said deed; and
(c) any instrument relating to transfer of immovable property, the alienation or transfer of which is prohibited under any State or the Central Act.
(2) Notwithstanding anything contained in this Act, the registering officer shall not register any document presented to him for registration unless the transferor produce the record of rights for the satisfaction of the registering officer that such transferor has right title and interest over the Property so transferred.
xxx xxx xxx"
39. It is apparent on plain reading of Section 22-A of the Registration Act that it mandates the registering officer not to register an instrument in certain circumstances, which includes instruments relating to transfer of immovable properties belonging to the State Government or the local authority, unless a sanction in this regard issued by the competent authority as provided under the relevant Act or in absence of such authority, an authority so authorised by the State Government for the said purpose, is produced before the registering officer. It is an admitted position that in the RoR, the name of State Government was entered against the disputed land. We are conscious of the legal position that entries in the RoR do not conclusively W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 26 of 39 determine the title. However, Section 22-A(1) of the Registration Act, casts statutory duty upon the registering authority not to register lands belonging to the State Government or local authority, and after having seen the entry in the RoR to the aforesaid effect, the registering authority could not have registered the instrument, going against the requirement under Section 22-A(1) of the Registration Act. It has been noted hereinabove that the vendors have approached the Commissioner, Land Records, Bhubaneswar for correction of the revenue records by filing R.P. No.95 of 2020. It is also noted that the legality of the provision under Section 22-A is not under challenge and thus, the registering authority, apparently, taking into account entry in the RoR in the name of the State Government, declined to register the sale deed. It is also pertinent to note that this was not the only ground why the registering authority had declined to register the sale deed. Following were the reasons mentioned by the Sub-Registrar, Puri for refusal to register the sale deed:-
"(A). As per Govt. in Revenue & Disaster Management Department Order No.Stamp-10/06-33287, dated 05.08.2008, Sub-Section of Indian Stamp Act, 1899 (2 of 1899) read with clause (b) of Sub section (2), the Stamp Duty chargeable is the instruments specified in division (b)
(c) (iii) of Article-23 of the scheduIe-l-A of the said Act-the or value of the consideration for such conveyance as set forth therein or the market value of the property whichever is higher, five percent of Stamp Duty will be levied in the whole of State of Odisha.
(B). The power of attorney executed in the State of West Bengal has not been adjudicated by the Collector, U/s.31, 32 and 33 of the Indian Stamp Act, 1899. As per the Indian Stamp (Odisha Amendment) Act, 2014, the power of W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 27 of 39 attorney deed authorising the person other than those mentioned in clause (g) of Article-48 to sale conveyance, the Stamp duty is payable on the instrument on the basis of market value of the property which is subject matter of such instrument."
40. The appellate authority i.e. the Registrar dismissed the appeal by an order dated 14.07.2021, on the following grounds:
"i) The Hon'ble Apex Court has not spelt anything regarding registration of restitution of property in favour of the intermediary.
ii) The intermediary has not approached the OEA Collector for restitution/resumption of the property in his favour though in the meanwhile 58 years have already been passed.
iii) The ambit of the Registering Authority is limited. As per the registration (Odisha Amendment) 2013 Section 22-
(l)(a), the registering officer shall refuse to register any instrument relating to transfer of immovable properties by way of sale, gift, mortgage, exchange or lease. The property belongs to the State Government or the Local Authority and also confirmed the observations made by the Opp.Party No.3 relating to execution of power of attorney."
41. The reason assigned by learned Single Judge for non-application of Section 22-A of the Registration Act is that the said disputed land was already declared rayati land of the appellant(s) before the Supreme Court. The said decision was rendered in the year 1962. It is specific case of the State that the said land remained in possession of the State throughout as neither the then intermediaries nor the legal heirs of the intermediaries approached the authority under the OEA Act for resumption of land and accordingly after 25 years of disposal of the W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 28 of 39 case by the Supreme Court, the land was rightly recorded in the name of the State in 1987.
42. The impugned judgment of learned Single Judge has the effect of a declaration that the disputed land is not a Government land after having declared rayati land of the appellants before the Supreme Court, despite the subsequent developments as noted above.
43. We make it clear our aforementioned observations may not be construed as our opinion that the said disputed land belongs to the State of Odisha. It is a question of fact, which would require adjudication by appropriate authority/Court in accordance with law.
44. Accordingly, we are in respectful disagreement with the opinion formed by the learned Single Judge as regards applicability or otherwise of Section 22A of the Registration Act, in the present set of facts as noted above.
Question No.(iii)
45. Relying on a Single Bench decision of this Court in case of Dhabal Prasad Pradhan (supra), learned Single Judge has held that Sub-Section (2) of Section 22A of the Registration Act does not require production of RoR by the transferer in which land transferred is recorded in the transferer‟s name. We do not take a different view than what has been taken in case of Dhabal Prasad Pradhan (supra) which is based on the principle that RoR neither creates nor extinguishes title. However, the case of Dhabal Prasad Pradhan (supra) is clearly distinguishable as in that case the vendor had produced not only W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 29 of 39 registered sale deed executed by his vendor, but also the RoR in which land purchased by the vendor including the land proposed to be sold by the vendor to the vendee stood recorded in the name of the vendor‟s vendor. The vendor in that case had filed documents to establish the flow of title to him. On the contrary, in the present case, there was absolutely no proof of flow of title to the vendors in respect of the disputed land, in their favour. We are accordingly of the view that the learned Single Judge wrongly applied the decision in case of Dhabal Prasad Pradhan (supra).
Question No.(iv)
46. Section 77 of the Registration Act reads as under:
"77. Suit in case of Order of refusal by Registrar.--(1) Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.
(2) The provisions contained in Sub-sections (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit."W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 30 of 39
47. In no uncertain terms Section 77 provides a statutory remedy to a person where the Registrar refuses to order the document to be registered under Section 72 or Section 76 of the Registration Act by instituting a suit within thirty days after making of order of refusal. There are two aspects which need consideration in this regard. Firstly, the purchaser or the vendor did not institute the suit under Section 77 of the Registration Act challenging the order of the Registrar dated 14.07.2021. They allowed the limitation of one month as stipulated under Section 77 (1) of the Registration Act to expire and presented the writ petition soon thereafter on 24.08.2021. It is true that the existence of an alternative statutory remedy is not a bar for this Court to entertain a writ petition under Article 226 of the Constitution of India. Such power conferred upon the High Court is wide and there is no express limitation on exercise of that power. At the same time, we cannot be oblivious of rules of self-imposed restraint evolved by the constitutional courts, in such matters.
48. In case of United Bank of India v. Satyawati Tandon, 2010 (8) SCC 110, the Supreme Court has held that rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion. The Supreme Court, however, held that it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution ignoring the fact that the litigant could avail effective alternative remedy by filing application, appeal, revision, etc. when a particular legislation contains a mechanism for redressal of his grievance. In case of Assistant Collector of Central Excise v. Dunlop India Ltd., 1985 (1) SCC 260, the Supreme Court W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 31 of 39 has observed that Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. The Supreme Court held "but then the Court must have good and sufficient reason to bypass the alternative remedy provided by the statute". In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala, 2009 (1) SCC 168 , the Supreme Court has highlighted the parameters which are required to be kept in view while exercising the jurisdiction under Article 226 of the Constitution of India, paragraph 29 and 30 thereof are being reproduced herein below for the benefit of the reference:
"29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 32 of 39
30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."
49. The present case is a classical example where the purchaser, in order to avoid the remedy under Section 77 of the Registration Act, allowed the limitation to lapse and thereafter filed the writ petition with W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 33 of 39 the plea of non-availability of alternative remedy which was available to him.
50. We do not agree with the view of learned Single Judge that the remedy of filing a suit under Section 77 of the Registration Act is optional. In our opinion, Section 77 is a statutory remedy to party in case the Registrar refuses to order a document to be registered.
51. In case of Asset Reconstruction Company (India) Limited v. S.P. Velayutham, 2022 (8) SCC 210, the Supreme Court has lucidly dealt with the distinction between the execution of a document and registration of the document and observed that an attack on the authority of the executant of a document, is not to be mixed with the attack on the authority of the Registering Officer to register the document. A challenge to the very execution of document, is a challenge to its very DNA and any defect or illegality on the execution, is congenital in nature. Paragraph-53 to 56 can be usefully noted in this context. On the scope of the exercise of the High Court‟s jurisdiction under Article 226 of the Constitution of India, the Supreme Court in case of Asset Reconstruction Company (India) Limited (supra) held in paragraphs-57 to 61 as under:
"57. In suits for declaration of title and/or suits for declaration that a registered document is null and void, all the aforesaid three steps which comprise the entire process of execution and registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the registering authority to perform his statutory W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 34 of 39 duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted. This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law.
58. It must be noted that when a High Court, in exercise of its jurisdiction under Article 226 finds that there was utter failure on the part of the registering authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void. A declaration that a document is null and void, is exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the registering authority performed his statutory duties in the manner prescribed by law.
59. It is well settled that if something is required by law to be done in a particular manner, it shall be done only in that manner and not otherwise. Examining whether the registering authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in cases where the violations of procedure on the part of the registering authority are not gross or the violations do not shock the conscience of the Court. Lack of jurisdiction is completely different from a refusal to exercise jurisdiction.
60. In the case on hand, the appellant has not sought a declaration from the High Court that the execution of the document in question was null and void or that there was no title for the executant to transfer the property. The appellant assailed before the High W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 35 of 39 Court, only the act of omission on the part of the registering authority to check up whether the person who claimed to be the power agent, had the power of conveyance and the power of presenting the document for registration, especially in the light of the statutory rules. Therefore, the learned Single Judge rightly applied the law and allowed the writ petition filed by the appellant, but the Division Bench got carried away by the sound and fury created by the contesting respondents on the basis of:
(i) pendency of the civil suits;
(ii) findings recorded by the Special Court for CBI cases; and
(iii) the order passed by this Court in the SLP arising out of proceedings under Section 145 Cr.PC.
61. Arguments were advanced on the question whether the registering authority is carrying out an administrative act or a quasi-judicial act in the performance of his statutory duties. But we think it is not relevant for determining the availability of writ jurisdiction. If the registering authority is found to be exercising a quasi-judicial power, the exercise of such a power will still be amenable to judicial review under Article 226, subject to the exhaustion of the remedies statutorily available. On the contrary if the registering authority is found to be performing only an administrative act, even then the High Court is empowered to see whether he performed the duties statutorily ordained upon him in the manner prescribed by law."
52. After having held as above, the Supreme Court made the following observation in the case of Asset Reconstruction Company W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 36 of 39 (India) Limited (supra) which is apt in the present set of facts, relevant portion of paragraph-64 reads thus:-
"If the Registering Officer under the Act is construed as performing only a mechanical role without any independent mind of his own, then even Government properties may be sold and the documents registered by unscrupulous persons driving the parties to go to civil court. Such an interpretation may not advance the cause of justice."
53. Further, we are of the opinion that a statutory remedy gives a person a forum for resolution of the dispute. There is no compulsion for a person to avail that remedy, but at the same time, he cannot take advantage of failure to exercise the option of availing that remedy so as to make out a case of maintainability of a writ petition under Article 226 of the Constitution of India.
Question No.(v)
54. Neither in the order passed by the Registering authority nor the appellate authority, there is any reference to the disputed land located under Sweet Water Zone as a ground to refuse the registration of the instrument. Such stand was however taken in the counter affidavit filed on behalf of the State in the writ proceeding. In the wake of nature of order which we intend to pass, it is not desirable for us in the present proceeding to deal with this question.
55. In view of the discussions as noted above and the conclusions arrived at with reference to Questions No.(i) to (iv), we are of the considered view that the findings of the learned Single Judge in the W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 37 of 39 impugned judgment and consequential direction issued to register the sale deed cannot be sustained.
56. We must notice at this juncture, at the cost of repetition, that the registering authority refused to register the sale deed on two grounds both relating to the provisions under the Indian Stamp Act. The said aspect has not been dealt with by the appellate authority/Registrar on the point of deficiency of stamp duty and adjudication by the Collector on the power of attorney executed in the State of West Bengal under Sections 31, 32 and 33 of the Indian Stamp Act, 1899.
57. The impugned judgment and order passed by the learned Single Judge is accordingly set aside. W.A. No. 226 of 2022 is accordingly allowed.
58. We make it clear that no observation made in the present judgment shall be construed as this Court‟s opinion on the right, title and interest of the parties in relation to the disputed land, which involves complex issues and requires adjudication by a competent Court of civil jurisdiction.
59. We also observe at the same time that this judgment does not amount to restraining the parties from presenting fresh instruments for registration before the registering authority by making good the deficiencies which were noticed by the registering authority and the appellate authority and at the same time, it will be equally open for the registering authority to act in accordance with law.
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 38 of 3960. Since the impugned judgment and order of the learned Single Judge has been set aside, WA No.141 of 2022 and WA No.738 of 2024 also stand disposed of. Interlocutory applications, if any, stand disposed of.
61. There shall be no order as to costs.
(Chakradhari Sharan Singh)
Chief Justice
M.S. Raman, J. I agree.
(M.S. Raman)
Judge
SK Jena/Secy.
Signature Not Verified
Digitally Signed
Signed by: SANJAY KUMAR JENA
Designation: SECRETARY
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 15-Jul-2024 18:55:49
W.A. Nos.226, 141 of 2022 & 738 of 2024 Page 39 of 39