Orissa High Court
Bijay Kumar Paikaray vs State Of Odisha And Others on 3 January, 2017
Equivalent citations: AIR 2017 ORISSA 86, (2017) 1 ORISSA LR 439, (2017) 124 CUT LT 161, (2017) 1 CLR 855 (ORI)
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 2355 OF 2009
In the matter of an application under Articles 226 and 227
AFR of the Constitution of India.
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Bijay Kumar Paikaray ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. Parties
For petitioner : M/s. R.K. Mohanty, Sr. Advocate
along with Sri B. Mohanty,
B. Mohapatra, S. Nanda, S.K.Sahoo
and S.S. Kashyap, Advocates.
For opp. parties : Mr. B.P. Pradhan,
Addl. Govt. Advocate
(O.P. No.1)
M/s. Yasobant Das, Sr. Advocate
along with Sri Rajeet Roy,
S.K. Singh and S. Sourav,
Advocates.
(O.P. No.2)
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PRESENT
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Decided on : 03.01.2017
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VINEET SARAN, C.J. By means of this writ petition, the petitioner
has challenged the notification dated 27.06.2008 being SRO
No.336/2008 issued by the Revenue Disaster Management
Department of the State Government.
2. Facts of the case, as stated by the petitioner
are, that opposite party no.2 Sushanta Kumar Patra
purchased an area of Ac.1.020 dec. pertaining to plot
no.831/2077 under Khata no.224/856 of Mouza Sompur,
district Khurda, on 27.06.1988 through a registered sale
deed. A general power of attorney is said to have been
issued thereafter by opposite party no.2 in favour of
opposite party no.3 Suryakanta Pattnaik on 16.10.1990. On
the strength of the said power of attorney, opposite party
no.3 transferred the property (belonging to opposite party
no.2) in favour of M/s Rirtch Investment and Holding
Private Limited (RIH) by means of a registered sale deed.
Thereafter, the Chairman of M/s RIH Pvt. Ltd. gave a power
of attorney in favour of opposite party no.4 Pratap Kumar
Mohanty on 19.01.2005. In turn, opposite party no.4 Pratap
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Kumar Mohanty sold the property to the present petitioner
on 04.06.2005. It is stated that the petitioner, prior to
purchase of the said property, obtained encumbrance
certificate and 'yadast' regarding the property. The property
in question is said to have been mutated in favour of the
petitioner on 07.07.2005. The opposite party no.2 thereafter
filed Civil Suit No.639 of 2007 in the court of the Civil Judge
(Sr. Division), Bhubaneswar, which was for grant of
injunction regarding possession. It is stated at the Bar by
learned counsel for opposite party no.2 that the said suit
has been dismissed in default. Then, on some application
filed by opposite party no.2, the impugned notification dated
27.06.2008was issued declaring the chain of transactions over the property in question to be contrary to law and opposed to public policy. The said order was issued in exercise of power conferred under Section 22A of the Indian Registration Act, 1908, which provides that "The State government may, by notification, declare that the registration of any document or class of documents is 4 opposed to public policy." Aggrieved by the said order, this writ petition has been filed.
3. We have heard Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. B. Mohanty learned counsel for the petitioner; Mr. B.P. Pradhan, learned Addl. Govt. Advocate appearing for State-opposite party no.1 and Mr. Y. Das, learned Sr. Counsel appearing along with Mr. Rajeet Roy, learned counsel for contesting opposite party no.2. The other opposite parties are not represented through any counsel. Pleadings between the petitioner and the contesting opposite party no.2 have been exchanged. The State-opposite party has chosen not to file any counter affidavit. By consent of learned counsel for the parties, this writ petition is being heard and disposed of at this stage.
4. The submission of Mr. R.K. Mohanty learned Senior Counsel for the petitioner is that the transaction, on the basis of the power of attorney dated 16.10.1990 was perfectly valid and the sale deed executed on 13.12.1991 in 5 favour of M/s RIH Pvt. Ltd. was duly registered and possession was also handed over, and thereafter the subsequent owner executed a power of attorney in favour of opposite party no.4- Pratap Kumar Mohanty, who sold the property in favour of the petitioner vide sale deed dated 04.06.2005, on the basis of which the mutation has also been made in favour of the petitioner on 07.07.2005, and possession has also been handed over to the petitioner. It is further contended that opposite party no.2 did not raise any objection with regard to the earlier transactions, and the petitioner herein was the bona fide purchaser of the property by a valid sale deed and in possession of the property. The submission of learned counsel for the petitioner is that it was only in the year 2007 that for the first time opposite party no.2 raised the issue by filing Civil Suit No. 639 of 2007, in which the petitioner entered appearance and filed written statement, and thereafter opposite party no.2 chose not to contest and allowed the civil suit to be dismissed in default.
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5. The specific case of the petitioner is that the power under Section 22A of the Indian Registration Act, 1908 could not have been exercised in the present case, as the said power only entitled the State Government to declare the registration of any document or class of documents to be opposed to public policy and in the absence of the public policy having been defined and also in the absence of any cogent reason given in the notification, the same cannot be sustained in the eye of law. He has further submitted that by the said notification valuable rights of the petitioner have been affected and that the said notification could not have been issued without giving opportunity of hearing to the petitioner. In support of his submission, he has relied on a decision of the apex Court in the case of State of Rajasthan v. Basant Nahata, AIR 2005 SC 3401, wherein the matter before the Supreme Court was with regard to vires of Section 22A of the Indian Registration Act, 1908, which was inserted for the State of Rajasthan by Rajasthan Act no. 16 of 1976 and was pari materia to the said Section 22A inserted in Odisha by 7 Odisha Act No. 8 of 2002. By the said judgment, the said Section 22A has been held to be ultra vires. Mr. Mohanty submitted that even though in the present petition the vires of the said Section 22A has not been challenged, but since the facts of the said case are similar to the facts of the present case, the ratio of the said judgment would be fully applicable to the present case. He has specifically relied on para-55 of the said judgment, wherein it is held that:
"The Act only strikes at the documents not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn".
It is thus contended that the impugned notification dated 27.06.2008 issued by the Government of Odisha is wholly illegal and liable to be quashed.
6. Per contra, Mr. Y. Das, learned Senior Counsel for opposite party no.2 has submitted that opposite party no.2 had never executed any power of attorney in favour of anybody with regard to property in question, and that the alleged power of attorney dated 16.10.1990 was forged and fabricated. It is contended that even otherwise, the property 8 in question was situated in Bhubaneswar, Odisha, whereas the power of attorney and the sale deed both are stated to have been executed in Mumbai, which was contrary to the provisions of the Indian Registration Act, as the Sub-Section (2) of Section 30 has been omitted by Odisha Act No. 19 of 1991. According to learned counsel for opposite party no.2, prior to 1991, the Registrar of a district could receive and register any document of the property which was situated at any part of India, but by the omission of the said Sub- Section (2) that right of the Registrar to register a document relating to the property, not situated within its district, was not permissible in law and, as such, the entire transaction on the basis of power of attorney dated 16.10.1990, and the registration made thereafter in Mumbai, of the property situated in Bhubaneswar, was nullity in the eye of law and was also against the public policy. It is also submitted that the said transaction, being a fraudulent one, was a nullity, as fraud vitiates everything and nothing more is needed to be proved, when it is a case of fraud in law. As regards the filing of the suit in the Court of the Civil Judge (Sr. 9 Division), Bhubaneswar in the year 2007, it has been submitted that the same was done on wrong advice, and opposite party no.2 thereafter rightly did not pursue the same, and approached the government by filing an application under Section 22A of the Indian Registration Act, 1908.
7. It is further contended that when the initial sale deed dated 13.12.1991 itself was result of fraud and nullity in the eye of law, the subsequent transfer made in favour of the petitioner on 04.06.2005 would also be a nullity, as no better title can be transferred than the one which is held by the transferor and when there was no right transferred in favour of opposite party no.3 by the sale deed dated 13.12.1991, the question of petitioner acquiring any right on the basis of subsequent sale deed would not arise. It has also been stated that during pendency of the writ petition, opposite party no.2 filed an FIR under Sections 465/468/467/471/420 read with Section 34 of Indian Penal Code against Surya Kanta Pattnaik (opposite party no.3), Ranjit Kumar Pattnaik (opposite party no.6) and 10 officials of the Sub-Registrar, Mumbai, in which, according to opposite party no.2, certain investigation has been made and findings recorded in favour of opposite party no.2. It is further submitted that on the basis of the impugned notification dated 27.06.2008 the initial sale deed dated 13.12.1991 has been declared as invalid by order dated 19.04.2010 by the Sub-Registrar, Mumbai. Such order has admittedly been passed on the basis of the impugned notification.
8. Although no counter affidavit has been filed by the State-opposite party, learned Additional Government Advocate has submitted that the prohibition by the impugned notification dated 27.06.2008 is with regard to registration of future transactions. On being questioned, learned counsel could not point out the reasons and the basis on which the impugned notification has been issued. Learned counsel also could not state as to whether any opportunity was afforded to the parties concerned before passing of the impugned order.
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9. We carefully examined the submissions made by learned counsel for the parties and perused the records. Section 22A of the Indian Registration Act, 1908, inserted by Odisha Act No. 8 of 2002 with effect from 24.05.2002, reads as under:
"22-A. Document registration of which is opposed to public policy-(1) The State Government may, by notification, declare that the registration of any document or class of documents is opposed to public policy.
(2) Notwithstanding anything contained in this Act, the registering officer shall refuse to register a document to which a notification issued under sub-section (1) is applicable."
10. Though the submission made by learned counsel for opposite party no.2 is that the said provision does not contemplate affording opportunity before issuance of notification under Section 22A, but we are of the opinion that any order or notification issued by the Government affecting the rights of any party could be issued only after complying with the principles of natural justice. It is settled law that once a right has accrued in favour of a person, the same can be withdrawn only after affording the party 12 concerned adequate opportunity of hearing and complying with the principles of natural justice.
The apex Court in State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 held that if there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. Similar view has also been taken in A.K. Kraipak v. Union of India, AIR 1970 SC 150, A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (I.T. & W.T.), AIR 1989 SC 1038.
Thus, even though the said provision may not provide for notice to be given to the party affected before issuance of any order, but the same has to be read down in the said provision.
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In Smt. Menaka Gandhi v. Union of India, AIR 1978 SC 597, the Constitution Bench of the apex Court held as follows:-
"Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice."
Admittedly, in the present case, it is not disputed that certain rights had accrued in favour of the petitioner on the basis of sale deed dated 04.06.2005 and, according to the petitioner, they are also in actual physical possession of the property in question, yet the impugned order has admittedly been passed without giving notice to the petitioner and without affording any opportunity. In our view, on this sole ground, the impugned order/notification dated 27.06.2008 deserves to be quashed.
11. Even otherwise, a plain reading of the impugned notification would make it clear that it has been passed without ascertaining the correct facts of the case. What we 14 notice is that even the execution of initial power of attorney dated 16.10.1990 has wrongly been stated to have been executed by Susanta Kumar Patra (opposite party no.2) in favour of Mihir Kumar Patra, whereas it was issued in favour of opposite party no.3. In the said notification, it is also stated that the power of attorney was executed in violation of Sub-Section (2) of Section 30 of Indian Registration Act, 1908, whereas admittedly, on the date of issuance of notification, the Sub-Section (2) of Section 30 had already been omitted. This shows complete non- application of mind by the authority issuing the notification.
12. It is recorded that opposite party no.2 has alleged that the documents executed at Mumbai were forged and fictitious, as they were not executed by opposite party no.2, and without giving any reason or stating as to what inquiry or investigation was conducted, it has been stated that "a prima facie examination has revealed the contention of Sri S.K. Patra to be true". If the rights of a party are affected by an order, the least that is expected by the authority passing the order is that reasons should be recorded as to on what 15 basis the allegations made by one party against the other are established. The order does not, in any way, state that any proper investigation was carried out by the State authorities. What is meant by "prima facie examination" is not understood by this Court. All that we can understand from the contents of the order is that what was examined were merely allegations made by opposite party no.2, which were taken to be true on the face of it and the final order was passed, holding that the documents were contrary to law and opposed to public policy. If an order is said to be opposed to public policy, then an authority is expected to specify as to what offends the public policy, and also that which public policy is offended. Nothing of that kind has been mentioned in the impugned order. If a transaction is to be declared as a result of a fraud, or if a power of attorney is said to have been executed, which is alleged to have not been signed by a person executing the power of attorney, then the said issue can only be examined in a court of law, and not in such a cursory manner, without making any 16 inquiry and examining any witness, or even without giving opportunity of hearing to the parties affected.
13. Although it is contended that the transaction with regard to a property situated in Bhubaneswar could not have taken place and registered in Mumbai, as sub- section (2) of Section 30 of Indian Registration Act, 1908 had already been omitted, in the impugned order the same has not been stated to be a reason for passing the order. Mr. Das, learned Senior Counsel appearing for opposite party no.2 has vehemently argued, that since the entire action was in violation of the provisions of Section 30 of the Act, hence this Court should not exercise its extraordinary discretionary jurisdiction under Article 226 of the Constitution of India in favour of a person, who has acquired the rights over a property on the basis of a fraudulent transaction. The petitioner before us is not a person, who was part of the transaction, which had taken place in the year 1990 or 1991. He is a subsequent purchaser and claims that he purchased the property after making necessary enquiries and that he is a bona fide 17 purchaser and in possession of the property. Though the opposite party no.2 also claims to be in possession of the property, but at the same time it has been argued that even though there was an order of status quo passed by this Court, the petitioner continued to raise construction, which would mean that actual physical possession was not with opposite party no.2. He had also filed a Civil Suit regarding possession, which he did not contest after written statement was filed by the petitioner.
14. In addition to the above reasons, now what is to be examined is the issue involved in the present case, on the basis of the law laid down by the apex Court in the judgment rendered in Basant Nahata (supra). In the said judgment, the vires of the Section 22A of the Indian Registration Act, which was inserted in the State of Rajasthan by Rajasthan Act no. 16 of 1976 and was pari materia to Section 22A inserted in Odisha by Odisha Act No. 8 of 2002, was under consideration. The apex Court in paragraphs 39, 40, 55, 67, 69 and 70 held as follows: 18
"39. It may not be necessary for us to deal with extensively the case laws dealing with the relevant provisions of the said statutes but it would not, in our opinion, be correct to contend that public policy is capable of being given a precise definition. What is 'opposed to public policy' would be a matter depending upon the nature of the transaction. The pleadings of the parties and the materials brought on record would be relevant so as to enable the court to judge the concept as to what is for public good or in the public interest or what would be injurious or harmful to the public good or the public interest at the relevant point of time as contra- distinguished from the policy of a particular government. A law dealing with the rights of a citizen is required to be clear and unambiguous. Doctrine of public policy is contained in a branch of common law, it is governed by precedents.
40. The principles have been crystallized under different heads and though it may be possible for the courts to expound and apply them to different situations but it is trite that the said doctrine should not be taken recourse to in 'clear and incontestable cases of harm to the public though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world'. (See Gherulal Parakh vs. Mahadeodas Maiya and Others AIR 1959 SC 781 : 1959 (2) SCR 406).
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55. The Act only strikes at the documents and not at the transactions. The whole aim of the Act is to govern documents and not the transactions embodied therein. Thereby only the notice of the public is drawn.
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67. The contention raised on behalf of the Appellants herein that the State, being higher authority, having been delegated with the power of making declaration in terms of Section 22-A of the Act, would not be abused is stated to be rejected. Such a question does not arise herein as the provision has been held to be ultra vires Articles 14 and 246 of the Constitution of India.
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69. For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly. No costs.
70. So far as amendments made by other States are concerned, we are of the opinion that any order passed by a Sub-Registrar or Registrar refusing to register a document pursuant to any notification issued under Section 22-A of the Act would not be reopened."
15. In view of the above, the apex Court declared Section 22A of the Rajasthan Act no.16 of 1976 as ultra vires Articles 14 and 246 of the Constitution of India. Even if the petitioner has not sought for any relief declaring the Section 22A of Odisha Act No. 8 of 2002 as ultra vires, but the underlying principle clearly held in paragraph 55 is that the Act only strikes at the documents, and not at the transaction. The whole aim of the Act is to govern documents and not the transactions embodied therein. Therefore, any document issued pursuant to the impugned notification under Section 22A of the Act would not be sustainable. If any document has been procured/executed by means of fraudulent transaction, the same has to be established by following due procedure of law by the competent Civil Court.
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16. Coming to the contention raised that the documents have been executed fraudulently and, therefore, the fraud vitiates the entire proceeding, nothing is made available on record to indicate how any fraud has been played in executing the document itself. If the fraud has been executed deceitfully to cause loss and harm to other party to the deed, it would be a question of fact, which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Therefore, party aggrieved by such registration of document is free to challenge its validity before the Civil Court. However, the authorities under Indian Registration Act, 1908 have no power in this regard. The apex Court in a recent decision of Satya Pal Anand v. State of Madhya Pradesh, (2016) 10 SCC 767 has taken the aforementioned view. Therefore, we are of the considered view that the petitioner has got an alternative remedy of approaching the competent Court of law to declare the document as void.
17. It is true that in case the sale deed executed on 13.12.1991 is declared null and void, then no right could 21 thereafter be transferred in favour of the petitioner, by the subsequent sale deed dated 04.06.2005. But, the transaction or sale deed executed in 1991 is first to be examined by a competent Court of law, before it is declared to be void. The same has not been declared to be so by any competent Court of law. The declaration made by the notification dated 27.06.2008, impugned in this writ petition, has already been held to be unjustified, without proper reasons and without complying the principles of natural justice and is an outcome of non-application of mind, and thus liable to be quashed.
18. The writ petition accordingly stands allowed. The notification being SRO No.336/2008 dated 27.06.2008 is hereby quashed. No order as to cost.
Sd/-
( VINEET SARAN ) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 3rd January, 2017/Ajaya/GDS True Copy Secretary