Gujarat High Court
Patel Hirenkumar Jagdishbhai Through ... vs State Of Gujarat on 9 March, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/20054/2019 ORDER DATED: 09/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20054 of 2019
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PATEL HIRENKUMAR JAGDISHBHAI THROUGH POA HOLDER
PATEL NARENDRABHAI GANDABHAI
Versus
STATE OF GUJARAT
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Appearance:
MR NIMESH M PATEL(6780) for the Petitioner(s) No. 1
MS. DHARITRI PANCHOLI, AGP for the Respondent(s) No.
1,2,3,4,5,6
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/03/2022
ORAL ORDER
1. Mr. N.F. Gomes, learned counsel for Mr. Nimesh Patel, learned counsel appearing for the writ-applicant.
2. By way of this writ-application under Article-226 of the Constitution of India, the writ-applicant is seeking the following reliefs:
"A. YOUR LORDSHIPS may be pleased to admit and allow this petition.
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction quashing and setting aside the order/ intimation dated 08.08.2019 passed by respondent no.2-Sub-Registrar, Mehsana at Annexure-A and further be pleased to direct the respondent to register and release the documents of Page 1 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 conveyance being 10342 and 10358 dated 29.09.2018 in favour of the petitioner;
C. Pending hearing and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the registration and release of the documents of conveyance being 10342 and 10358 dated 29.09.2018 in favour of the petitioner.
D. That any other and / or further relief that may be deemed in the facts and circumstances of the present petition may please be granted, in the interest of justice."
3. It is the case of the writ-applicant that the writ- applicant has got the sale deed bearing Nos. 10342 and 10358 for the land bearing revenue survey nos. 931, 932, 929, 1883 and 930 by payment of appropriate consideration to the persons whose names are reflected in the revenue records. The writ-applicant applied for registration of the said documents to the office of the Sub-Registrar, Mehsana on 29.09.2018. The respondent authority declined to register the said sale deed stating that, in view of the pendency of the criminal proceedings attached to the properties in question, the said documents could not be registered and the documents also cannot be released in favour of the writ-applicant.
4. Thereafter, the writ-applicant has preferred the Page 2 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 representation to the office of the Collector seeking the registration and release of the documents, which was forwarded to the office of the Sub-Registrar vide intimation dated 26.02.2019. The respondent no.2 sought for further opinion from the office of the Chief Controller vide communication dated 02.03.2019 and relying on the said opinion received from the Chief Controller, the impugned order / intimation dated 08.08.2019 came to be issued to the writ- applicant stating that the documents could not be released in favour of the writ-applicant, in view of the fact that the said properties were attached in the said criminal offence.
5. Heard Mr. N.F. Gomes, learned counsel for Mr. Nimesh Patel, learned counsel appearing for the writ-applicant and Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent-State authorities.
6. Mr. Gomes, learned counsel appearing for the writ- applicant submitted that the complaint against the writ- applicant is under the provisions of the Gujarat Protection of Investments Act which would not empower the investigating Page 3 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 officer to issue such intimation as to leading to refusal of registration of conveyance deeds as executed in favour of the writ-applicant, without there being any subjective satisfaction as to the said property are the part of the investment made by the depositors or not. He further submitted that, there is no direct nexus to the First Information Report and part of the same is inherited in favour of the said accused persons, which can be seen from the revenue records and hence the same cannot be a reason for non-registration of the sale deed. He further submitted that the registration cannot be denied, as belief of the authorities that the said properties are out of the proceeds of such investment is not justifiable reason to deny the registration and release of the documents unless there is a direct nexus established for the same and in the present case, second lot of lands merely belonged to the person, viz. Maganbhai and has been running in his name, which does not attach any illegality to the said transaction in any manner. Mr. Gomes, learned counsel lastly submitted that the Sub-Registrar did not have the jurisdiction to defer the registration of sale deed as denied in the present case.
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C/SCA/20054/2019 ORDER DATED: 09/03/2022
7. The investigating authority has no power to attach / retain / restrain the registration of the sale deed. The said power can be exercised under Section 102 of the Code of Criminal Procedure that too if it was a movable property, however, in the present case, registration of the sale deed as stated is land in question.
8. Ms. Dharitri Pancholi, learned Assistant Government Pleader appearing for the respondent-State relied upon the circular dated 05.10.2018 and submitted that the competent authority refused the registration in line of the said circular dated 05.10.2018 and relying on the same, it could not be said that the competent authority have committed any error. Ms. Pancholi, learned Assistant Government Pleader relying on the circular dated 05.10.2018 submitted that the respondent authority can refuse the registration in case of pendency of criminal investigation is misplaced, in view of the fact that Ms. Pancholi, learned AGP failed to point out any direct nexus between the criminal investigation with regard to the F.I.R. and the land for which the sale deed is executed and the Page 5 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 registration is sought for. Once no such connection with respect to the above is pointed out, the clause nos. 3 and 4 of the said circular relied upon by the learned AGP would not be applicable and the said contention taken by the learned AGP cannot be accepted.
9. Having heard the learned counsel appearing for the respective parties, it appears that the writ-applicant entered into a sale deed bearing Nos. 10342 and 10358 for the land bearing revenue survey nos. 931, 932, 929, 1883 and 930 on payment of appropriate consideration to the person whose names reflected in the revenue record applied for the registration of the same with Sub-Registrar, Mehsana on 29.09.2018. The Sub-Registrar, Mehsana - the competent authority declined to register the said documents. The writ- applicant then preferred a communication / representation to the office of the competent authority on 22.06.2019 for registration and release of documents, which was forwarded to the office of the Sub-Registrar. The Sub-Registrar by the impugned order dated 08.08.2019 passed the following order. Page 6 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022
C/SCA/20054/2019 ORDER DATED: 09/03/2022 The relevant para reads thus:
"(3) The complainants in the present case, Jivanbhai Dhulabhai etc. and the other complainants, with whom the accused have committed fraud, have lodged a complaint vide Sector-7 Police Station Cr.No. I/ 148/2017 to investigate the offence under Section 406, 420, 114 of I.P.C. The investigation is in progress. Apart from these, the complainants in the present case have also given different complaints before the Hon'ble Chief Minister, Government of Gujarat, Secretariat, Gandhinagar, the Secretary, Revenue Department, Secretariat, Gandhinagar, the Collector, Mahesana, the Collector, Gandhinagar, the Mamlatdar, Mahesana etc. The investigation in this regard is going on. Considering the stated letters and facts thereof, the registration of the Deeds at Sr.no. 10342 and 10358 dated 09/08/2018 produced with regard to registration of the properties at Mauje Langhnaj is stayed in the interest of justice and the government till the investigation of stated offence is completed. Further, it is to state that, the parties having interest in the stated Deeds, if think necessary, may seek relief from the Hon'ble Court. Please take a note that if any court of justice issues order with regard to registering these deeds, the further procedure will be undertaken accordingly."
10. From the above it can easily be inferred that the criminal complaint, which is pending against the writ-applicant is under the provision of Sections 406, 420 and 114 of the Indian Penal Code. The said complaint is under investigation. Clause-3 and 4 of the circular dated 05.10.2018 relied upon by the learned Assistant Government Pleader, read thus:
"(3) Parties of the impounded document are to be informed at the time the document is submitted for the registration itself as to on which ground the same is Page 7 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 impounded and inform them to verify the same by RPAD from time to time.
(4) Punitive action shall be taken for intentionally withholding and not registering the documents other than the cases where, the Court has granted injunction order, where injunction granted under section-33, section-32(C), section 73AA, Disturbed Area Act, permission of the Trust, Income tax Department or from any other Department has been informed."
11. While relying upon the aforesaid clauses, learned Assistant Government Pleader has failed to make out a case as to how the case of the present writ-applicant would fall within the above criteria. Even otherwise merely pendency of the criminal complaint against the person cannot be a reason for non-registration of the sale deed.
12. It is also important to consider the submissions canvased by the learned counsel appearing for the writ- applicant on the powers available to the investigating officer. Learned counsel appearing for the writ-applicant relied upon the decision in the case of Navada Properties Pvt. Ltd. through its Directors v. State of Maharashtra and others, reported in AIR 2019 SC 4554, wherein, the powers of the investigating officer as available under the Code of Criminal Procedure is Page 8 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 explained in detailed. Though, the question as to powers of the investigating officer has no direct bearing on the present proceedings, by which the authority could have exercised the power under Section 102 of the Code of Criminal Procedure is exercised but the nature of the communication which is the basis for differing the registration under such nature which can be equated with a mode of attaching of property. In such situation, the principle as laid down in AIR 2019 SC 4554 will be applicable and in view of this Court, no such powers available with the investigating officer to prefer a communication to the registering authority to differ the registration of the deed of conveyance. Hence, the communication by the investigating officer followed by the action of differing of the registration by the Sub Registrar is appears to be beyond the legal mandate. Further, it is well settled legal position that the powers of Sub Registrar being a purely administrative in nature, does not require any further deliberation in the present proceedings. In view of above, once Section 32 of the Registration Act is complied with, the registering authority has no power to differ the registration on Page 9 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022 C/SCA/20054/2019 ORDER DATED: 09/03/2022 any other ground, the mandate that is required to be followed by the registering authority is under the provisions of the Registration Act.
12. In view of this Court, the documents as supplied by the writ-applicant are required to be considered by the competent authority and register the same. Accordingly, the competent authority is directed to consider the documents supplied by the writ-applicant by an application dated 29.09.2018 seeking registration and release of conveyance deed nos. 10342 and 10358 dated 29.09.2018 be considered and accordingly, to register the sale deed in accordance with law. Consequentially the impugned order dated 08.08.2019 passed by the respondent competent authority is set aside to the aforesaid extent.
13. The writ-application stands allowed to the aforesaid extent.
Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 10 of 10 Downloaded on : Sat Dec 24 12:31:10 IST 2022