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2002 DIGILAW 148 (JK)

Bashir Ahmed Bhat v. State

2002-05-14

SYED BASHIR-UD-DIN

body2002
1. Petitioner has prayed for following relief :- (i) by issuance of a writ of certiorari order dated 23-08-1999 passed by the respondent No.1 be quashed. (ii) by issuance of a writ of Mandamus or any other writ order or direction the respondent No.3 be directed to investigate the crime mentioned by the petitioner in his application (Annexure-B) to CJM Budgam who has forwarded the same to I/C P/S Chanpora, for investigation under law and after recording the statement of the witnesses, who have knowledge of the occurrence seize the so-called sale deed allegedly executed by the petitioner on 15-02-1999 and arrest the respondents 4 to 6 and produce the challan in the court of law against™s them, under relevant provisions of law. (iii) by issuance of a writ of prohibition, respondents 4 to 6 and their representatives or assignees be directed not to cause any interference with the petitioner™s ownership/possession over the land measuring 11 maralas 208 feet, under survey No. 1778/Min. khewat No 373 situated at Natipora/Chanpora Tehsil Chadoora. (iv) any other writ, order or direction which this hon™ble Court may deem fit and proper in the circumstances of the case be also issued in favour of the petitioner and against the respondents.� 2. Petitioner alleges that private respondents 4 to 6 after kidnapping and confining him to some place tortued him to obtain his signatures on some papers which they subsequently used to draw up a sale deed, presented for registration before sub Registrar, Chadura, who refused to register the document on 13-04-1999. However, in Appeal, Registrar District Judge Budgam set aside the order of Sub Registrar and passed direction for registration of the document. Petitioner obtained order from CJM, Budgam on 20-02-1999, in the matter of alleged kidnapping and forgery of the document to concerned police for investigation. However, the police is not investigating in the matter. 3. It is in these circumstance that the order of Registrar directing registration of the document is prayed to be quashed and direction for investigation of the matter by the concerned police station is solicited, besides the writ prohibition restraining respondents from interfering with the petitioner™s alleged ownership and possession over the land is as well prayed . The contesting respondent No. 4 has filed reply. The maintainability of the writ is questioned. The contesting respondent No. 4 has filed reply. The maintainability of the writ is questioned. Petitioner is alleged to have filed a suit challenging the execution of the sale deed and the consequent orders of Registration of the document. Besides, it is stated that petitioner has received three lacs of rupees from the respondent as consideration for sale and has handed over physical possession of land to respondent with a view to derive as much monetary benefit as possible from petitioner, is resorting to litigation. The execution of the sale deed having been proved before the Registrar (District Judge Budgam) has lead to the Registration of the document. 4. Heard Admittedly, the matter focuses on dispute over the title and the possession of a piece of land measuring of a piece of land measuring 11 marals 208 Sq.Feet in survey No. 1778/Min Khewat No. 373, Situated at Natipora/Chanapora Tehsil Chadoora. respondent No. 4 claims title and possession over the land on the basis of the sale deed which he alleges to have been executed in consideration of receipt of Rs 3 lacs by the petitioner. Petitioner alleges that after kidnapping, he was forced to sign some papers which were later on used for sale in question. 5. This disputed version of facts is already pending before the civil Court. Munsiff Chadura, is seized of the suit for declaration and permanent injunction regarding the subject matter of the writ. Parties admit that the suit is live and pending before the court. 6. It is not also disputed that the Chief Judicial Magistrate Budgam has passed certain directions putting in motion the criminal law with regard to alleged kidnapping, torture and forgery of documents. The status report on the present stage of investigations is not available on record and neither part has taken pains to place same on record. However, it is not denied that the chief Judicial Magistrate or any other concerned Judicial magistrate can be approached for activating the investigative process to its logical end. It is not also in dispute that a protest petition can be launched in a criminal court regarding the incident if it amounts to offence(s) as alleged. Even, note is taken of the submissions of Mr. M.I.Qadri on 08-04-2002 that the State Govt. is prepared to take action warranted under law in case the matter has criminal component to offer. 7. Even, note is taken of the submissions of Mr. M.I.Qadri on 08-04-2002 that the State Govt. is prepared to take action warranted under law in case the matter has criminal component to offer. 7. On refusal of registration by the Sub registrar for want of proof of execution by the Sub Registrar, the remedy lies in part XII of the Registration Act, where section 73 is found. It prescribes that such an order of refusal by the sub Registrar can be taken to the Registrar office where the named party can establish his right to have the document registered on proof of the execution of the document and on his satisfaction that the requirement of the law in force have been complied with. Once this is so the Registrar is with in its power to order u/s 75 of the Registration Act, registration of the document. This is what the registrar has done. The Ld. registrar has passed a detailed order, on enquiry and on examination of the witnesses produced by the parties and has recorded that thesale deed has been duly executed by the writ petitioner direction to the Sub Registrar to register the document under rule is supported by facts and law. 8. Apart from the nomenclature of the proceedings labelled as appeal against the order of the Sub Registrar, The facts is that it is an application u/s 73 of the Registration Act and not an appeal u/s 72 of the Registration Act. The matter has been dealt within the parameters of law and no writ can be issued against the statutory provisions to prevent/circumvent exercise of powers in accordance with and within the ambit of such provision of law. 9. In the above view of the matter, as the petitioner has effectively alternate remedy available, both under civil and Criminal law, which infact he has resorted to, petitioner in the totality of facts and circumstances of the case, cannot be given relief as prayed for in this writ petition and that too when disputed question of facts are involved which need to be enquired/investigated into and determined on evidence/material. In result, dismissed.