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2019 DIGILAW 566 (ORI)

Maitri Mohanty v. State of Odisha

2019-09-06

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This writ petition is filed with the following prayer :- "Under the aforesaid facts and circumstances, it is, therefore, prayed that this Hon'ble Court may be graciously pleased to admit this writ petition and issue a 'Rule-Nisi' calling upon the Opposite Parties, more particularly the Opposite Party Nos.4 & 5 to show cause as to why they shall not be directed to deliver the original sale deed to the petitioners or to their nominees as per the ticket within a fixed period after performing the administrative work by the Opposite Party No.4 to complete the registration of the sale deed in all respects and as to why the Annexures-9 and 11 shall not be quashed and further if the sale deed of the petitioners executed and registered on 21.5.2019 in respect of the suit land is cancelled, the said cancellation shall not be quashed and if the opposite parties fail to show cause or show insufficient cause make the said rule absolute." 2. Background involving the case is that a piece of land in Plot No.8846 measuring an area of Ac.0.585 decimals covered under Khata No.322 of Mouza-Ghatikia under Chandaka Police Station in the district of Khurda stood recorded in the name of Smt. Maitri Mohanty, petitioner no.1 and Sri Kedar Nath Nanda, petitioner no.2 as per the finally published settlement R.O.R. dated 14.11.2013. Kedar Nath Nanda, petitioner no.2, in order to manage, sell and deal with his share of property under Annexure-1, gave a General Power of Attorney in favour of Brundaban Nayak on 3.1.2011, who was looking after the land in question for and on behalf of Kedar Nath Nanda, petitioner no.2. In the meantime, Smt. Maitri Mohanty, petitioner no.1, for her legal necessity intended to sell her share of land from the aforesaid plot to one Brundaban Nayak, husband of Smt. Renubala Samantaray, petitioner no.3, and accordingly, entered into an agreement for sale with said Brundaban Nayak on 5.1.2018 and received an advance of Rs.5.00 lakhs by way of Account Payee Cheque dated 5.1.2018. While the matter stood thus, in spite of cut-off relationship between Maitri Mohanty, petitioner no.1 and her husband, Rakesh Kumar Mallick, in collusion with one Manas Ranjan Mohapatra, her husband, Rakesh Kumar Mallick managed to execute and register an agreement to sell the land in the name of petitioner no.1, in favour of Manas Ranjan Mohapatra on 20.1.2018 thereby completely forging the signature of petitioner no.1 and making false impersonation of petitioner no.1 before the Sub-Registrar. Petitioner no.1 claimed that she has neither signed nor appeared before the Sub-Registrar nor even has been paid with the consideration amount involving the sale agreement dated 20.1.2018. In the meantime, petitioner nos.1 & 2 intended to sell the suit land for due consideration to petitioner no.3. Accordingly, petitioner nos.1 & 2 being represented by their Power of Attorney executed a sale deed in respect of the suit land on 21.5.2019 in favour of petitioner no.3 and received the consideration amount thereof. Consequent upon receipt of consideration amount, they have also handed over the possession of the suit land to the purchaser. As required under law, the sale deed was executed by the parties concerned along with true xerox copies of Hal Settlement R.O.R. and the Encumbrance Certificate in respect of the suit land, which were presented for registration on the basis of assessment. The petitioners also averred that necessary Stamp Duty has also been paid by way of franking. Further on assessment and demand, they have also paid the registration fees and, thereafter, the registration being completed, O.Ps.4 & 5 issued Registration Ticket to Brundaban Nayak, the Power of Attorney Holder of petitioner no.2 and the husband of petitioner no.3 for receiving the sale deed later on the very same date, i.e., 21.5.2019. Opposite Party no.5, who is also acting as Opposite Party no.4 on the date of presentation of the sale deed for registration, has also made his endorsement and attestation involving the sale deed. The petitioners in order to establish the aforesaid developments have filed documents, vide Annexure-4 and ultimately filed the receipt vide Annexure-7. Similarly, they also established the endorsement of the Sub-Registrar on the sale deed vide Annexure-8, even granting receipt clearly indicating therein to release the registered document on 21.5.2019 itself and clearly mentioning therein the expected date of return of document to be 21.5.2019 as appearing at Annexure-5. Similarly, they also established the endorsement of the Sub-Registrar on the sale deed vide Annexure-8, even granting receipt clearly indicating therein to release the registered document on 21.5.2019 itself and clearly mentioning therein the expected date of return of document to be 21.5.2019 as appearing at Annexure-5. The instrument was not returned back to the petitioners on being registered constraining the petitioners to file the writ petition in this Court seeking the relief indicated in the pre-amended writ petition. 3. For the subsequent development taking place during pendency of the writ petition, the petitioners also brought the further fact that in a fraudulent attempt of opposite Party no.6 connived with opposite party nos.4 & 5, the petitioners were issued with a show cause notice, vide Annexure-9 asking them to show cause on the allegation of opposite party no.6 in the matter of constraint involving registration of the instrument. 4. Taking this Court to the documents, vide Annexures-9, 10 & 11, Sri B. Baug, learned counsel for the petitioners contended that the letter is a manufactured one and received much subsequent to submission of the instrument for registration and the date of registration of the instrument. As a consequence of subsequent development, the writ petitioners also made amendment of the writ petition bringing in the documents at Annexures-9 to 11 and also documents at Pages-27-A, 27-B, 27-C, 27-D, 27-E, 27-F, 27-G, 27-H, 27-I & 27-J to the fold of consideration of the writ court along with modified prayer indicated herein in the first paragraph. 5. Challenging the inaction of the Sub-Registrar and the illegal proceeding of the Sub-Registrar involving registration of the instrument involved herein, Sri B. Baug, learned counsel for the petitioners apart from submitting that once formalities for registration of an instrument as required under the Registration Act, 1908 have been complied with and a final receipt has been granted by the registering authority endorsing therein to hand over the document being registered on 21.5.2019, the Sub-Registrar had the only scope of registering the instrument and became functus officio to take into consideration any issue subsequent to issuance of final receipt. 6. 6. To establish his case, Sri B. Baug, learned counsel for the petitioners taking this Court to the provisions of Sections 34, 35, 52 & 61 of the Registration Act, 1908 read with Rules-25, 27, 28, 29, 30, 34, 63, 110(15), 111 & 148 of the Orissa Registration Rules, 1988 attempted to satisfy his case that the Registrar/Sub-Registrar involved herein by not registering the instrument submitted before him and undertaking an exercise of enquiry involving the allegation beyond his scope of consideration is acting without jurisdiction. Further to satisfy his case, Sri Baug, learned counsel, referred to two decisions, one of the Hon'ble apex Court in the case of Satya Pal Anand vs. State of Madhya Pradesh & others, (2016) 10 SCC 767 and the other decision of this Court in the case of Amulya Krushna Rana vs. Registrar, Jajpur & others, (2017) 1 OrissaLR 683. Taking this Court to the above decisions, Sri B. Baug, learned counsel for the petitioners submitted that above decisions have the direct application to the case of the petitioners and thus requested for allowing the writ petition thereby issuing suitable directions as prayed for. 7. Ms. S. Mishra, learned Additional Standing Counsel appearing for Opposite Party nos.1 to 4 in her opposition taking to the plea involved in the counter affidavit on behalf of Opposite Party nos.1 to 4, while admitting the compliance of the formalities in the matter of registration by the petitioners up to the stage of grant of receipt in favour of the petitioners on 20.5.2019 clearly indicating therein the date of expectation of return of the document to be 21.5.2019 and formally conceding that the complain of Opposite Party no.6 was though received in the office of the Sub-Registrar on 21.5.2019 but for the observation of the Sub-Registrar and for the allegation brought by way of representation dated 21.5.2019, the Sub-Registrar, Khandagiri was constrained to hold on the registration of the instrument involved therein and issued show cause to the vendor and vendee involved therein for submission of their written statement within seven days from the date of issue of notice as appearing at Annexure-9 for his personal satisfaction before registering the instrument. She also brought to the notice of the Court through the document at Annexure-11 that the allegation involving the registration of the instrument is undertaken by the Sub-Registrar and the matter was though posted to 4.6.2019 but the Sub-Registrar could not proceed to decide such allegation for the status quo order in the writ petition at hand granted by this Court. Resisting the submission of the learned counsel for the petitioners referring to the provisions and the decisions, Ms. Mishra, learned Additional Standing Counsel submitted that for the dispute being raised on the registerability of the instrument on the basis of an existing deed of agreement involving the same property, the Sub-Registrar is duty-bound to take up the issue before registering the instrument and the decisions referred to by the learned counsel for the petitioners are being opposed on the ground of change in the facts and situation involving the case at hand and the cases involved in the citations. 8. Dr. A.K. Mohapatra, learned senior counsel for Opposite Party no.6 similarly taking to his client's stand in the counter affidavit on his behalf, while supporting the stand of the learned Additional Standing Counsel and taking this Court to the existence of an agreement for sale of the disputed land involving Opposite Party no.6 contended that the Sub-Registrar is duty-bound for the circumstance involved to undertake the enquiry process before registering the instrument. Dr. Mohapatra, learned senior counsel, however, taking this Court to the averments in the counter affidavit of this Opposite Party contended that in the meantime apprehending danger to the property, Opposite Party no.6 already instituted a Civil Suit bearing C.S.No.1211 of 2019 on the file of Civil Judge (Jr.Divn.), Bhubaneswar. It is in the above premises, Dr. Mohapatra, learned senior counsel for Opposite Party no.6 prayed for dismissal of the writ petition. 9. Taking into consideration the pleading of the respective parties and the documents appended by the respective parties involving the writ petition, the counter affidavit and the rejoinder of the respective parties, this Court finds, there is no dispute as to the existence of two deeds of agreement for sale involving the disputed property, one being between petitioner no.1 and petitioner no.3 entered into on 5.1.2018 and the other one alleged to have been executed by the husband of petitioner no.1 with Opposite Party no.6 on 20.1.2018. There is also no dispute that the sale deed involved being presented, there has been assessment of Stamp Duty of Rs.6,08,400/-. The Stamp Duty has been paid on 21.5.2019 appearing at page-26 of the brief. Similarly on assessment of registration fee of Rs.3,04,200/-, this amount has also been paid by way of draft appearing at page-25 and receipt whereof has also been granted, vide Annexure-5. Annexure-8 is the sale deed, which clearly establishes the grant on 21.5.2019, that the sale deed has not only been presented but also attested and endorsed by the Sub-Registrar, Debendra Satapathy, by making his endorsement and attestation at pages-27-C as well as 27-D. It is at this stage of the matter, looking to the document at Annexure-5, this Court again finds, vide the receipt granted under Section 52 Clause (B) of the Act also establishes the completion of formalities on 21.5.2019 and the expected date of return of document also given to be on 21.5.2019. It is at this stage, this Court further taking into account the complain of Opposite Party no.6 available at Annexure-10 finds, the same appears to have been received in the office of the Sub-Registrar on 21.5.2019 as clearly appearing from page-27-M of the brief, copy of which being sent along with a letter to the petitioners asking them to show cause dated 25.5.2019 appearing at page-27-K again appears to have been issued to the petitioners by Speed Post on 28.5.2019 as appearing at page-27-L of the brief. For the submission of the petitioners, the petitioners have received the show cause notice along with the letter accompanied therein on 30.5.2019. Taking into consideration the allegation of the petitioners at this stage that at about 4.30 p.m. to 5 p.m., Opposite Party no.5 telephoned Brundaban Nayak, the Power of Attorney Holder representing petitioner no.2 and directed him to return the Registration Ticket or else the Sub-Registrar will be cancelling the registration and the response of Opposite Party no.5 in his counter in paragraph-12, wherein this Opposite Party admitted as follows :- "It is a fact that the O.P.No.5 called Brundaban Nayak, who is the attorney holder of Kedarnath Nanda and husband of petitioner no.3 asking him to return the registration ticket issued in his favour." 10. This Court observes, in the above background of the matter, there is surprise in the behaviour of the Sub-Registrar for the reason that in the event the Sub-Registrar was already in receipt of the complain of Opposite Party no.5 by this time, then nothing prevented the Sub-Registrar to at least indicate the reason for return of the ticket. This Court, therefore, opines that the Sub-Registrar hatched a conspiracy and in connivance with Opposite Party no.6 anticipating a complaint from Opposite Party no.6 entered into telephonic conversation with the petitioners as made in paragraph-8 of the writ petition. Be that as it may, looking to the controversy raised herein and the contentions of the respective parties, this Court finds, the questions to be decided here are :- (I) looking to the provision in the Registration Act, 1908 read with the provision in the Orissa Registration Rules, 1988, whether the Registering Officer becomes functus officio to entertain any complaint after a receipt under Section 52 is being granted in favour of the parties involved and compliance of all formalities required in the matter of registration of an instrument ? and (II) further looking to the nature of the complain at the instance of Opposite Party no.6, whether such complain is within the domain of the Sub-Registrar involving Registration of an instrument ? It is in this background of the matter, looking to the admitted situation disclosed herein above, there is already development taken place up to grant of final receipt under Section 52 Clause (B) of the Act as appearing at Annexure-5. This Court here likes to take into account certain provisions of the Act to resolve the questions framed herein. Provision of Section 34 of the Registration Act, 1908 dealing with enquiry before registration by the Registering Officer reads as follows :- "34. This Court here likes to take into account certain provisions of the Act to resolve the questions framed herein. Provision of Section 34 of the Registration Act, 1908 dealing with enquiry before registration by the Registering Officer reads as follows :- "34. Enquiry before Registration by Registering Officer :- (1) Subject to the provisions contained in this Part and in Sections 41, 43, 45, 69, 75, 77, 88 & 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23, 24, 25 and 26 : Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered. (2) Appearance under Sub-Section (1) may be simultaneous or at different times. (3) The registering officer shall thereupon (a) enquire whether or not such document was executed b the persons by whom it purports to have been executed ; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document ; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such persons so as to appear. (4) Any application for a direction under the proviso to Sub-Section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders." This provision of the Act makes it clear with regard to the scope of enquiry with the Registering Officer. Provision at Section 35 dealing with procedure on admission and denial of execution respectively reads as follows :- "35. (5) Nothing in this section applies to copies of decrees or orders." This provision of the Act makes it clear with regard to the scope of enquiry with the Registering Officer. Provision at Section 35 dealing with procedure on admission and denial of execution respectively reads as follows :- "35. Procedure on admission and denial of execution respectively- (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or (b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or (c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61 inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: [Provided further that the 2 [State Government] may, by notification in the 3 [Official Gazette], declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII." Similarly, Section-35 of the Act provides procedure on admission and denial of execution. Now at this stage, this Court takes into account the provision at Rule-63 of the Orissa Registration Rules, 1988 dealing with enquiry as to execution, which reads as follows :- "63. Now at this stage, this Court takes into account the provision at Rule-63 of the Orissa Registration Rules, 1988 dealing with enquiry as to execution, which reads as follows :- "63. Enquiry as to execution.- (1) The Registering Officer shall decide the admissibility of a document on enquiry under Sub-section (3) of Section 34 of the Act, Confining himself to the fact of execution by the person by whom it purports to have been executed. He is not required to enquire as to the validity of the document. (2) Objection to registration-All applications objecting to registration shall be retained in the office and orders made thereon should be communicated to the object or free of charge. (3) If registration is objected to by any person on any of the following grounds, namely : (a) that a person appearing or about to appear before the Registering Officer as an executant or claimant is not the person he professes to be or that he is a minor, an idiot or lunatic; or (b) that the instrument is forged; or (c) that the person appearing as a representative, assign or agent has no right to appear in that capacity; or (d) that the executing party is not really dead, as alleged by the party applying for registration, such objections shall be duly considered by the Registering Officer and if they are substantiated, the document shall be returned to the party without registration. Note-(1) Registration cannot be refused on the ground that the consideration money has not been paid or the objects of a document are unlawful or immoral. (2) In the case of Pardanashin executants, the following special precautions shall be observed. The registering officer shall first have the document read over and explained to the Pardanashin lady by or in the presence of her identifier, and thereafter the Registering Officer shall point out to the lady, in the presence of her identifier, the nature of the transaction, consideration money, if any, the name or names of the claimant or claimants, and the property (with its extent) affected. Finally when the lady admits execution, the identifier should be required to record a certificate on the document in the following form: "The document was read over and explained to the lady executant by me (or in my presence) the execution of which she admitted in my presence". Finally when the lady admits execution, the identifier should be required to record a certificate on the document in the following form: "The document was read over and explained to the lady executant by me (or in my presence) the execution of which she admitted in my presence". Provision at Rule 63(3) of the Registration Rules, 1988 clears the type of objections required to be enquired into by the Registering Officer. Looking to the scope of the Authority of the Registrar under the aforesaid three provisions, further taking into the allegation by Opposite Party no.6 involved herein through Annexure-10, this Court finds, for the nature of allegation involved herein and as the complain does not come under either of the provisions indicated herein above, there is no scope with the Registering Officer entering into any such controversy. It is at this stage, looking to the provision at Section 52 read with Sections 58, 59, 60 & 61 of the Act, 1908, this Court reading through the provision again observes, since the Registering Officer has already issued the final receipt under Section 52 of the Act, he has the only scope through Sections 58, 59, 60 & 61 of the Act. This Court, therefore, answering the questions framed herein above in favour of the petitioners holds, since the nature of complain at Annexure-10 of the brief does not come within the scope of consideration of the Registering Officer, the Sub-Registrar went wrong in withholding the registration of the instrument on the premises of such un-entertainable complain except leaving the complainant to take shelter of the Civil Court to remedy out his difficulty through Civil Court and for already grant of receipt under Section 59(2) of the Act, he had the only duty to register the instrument taking into account the provisions at Sections-58, 59, 60 & 61. 11. It is at this stage, this Court takes into account the decisions involving Satya Pal Anand (supra) for the case of cancellation of registration of extinguishment deed in exercise of power under Section 69 of the Act but however, finds, in paragraph-46 of the said decision, Hon'ble apex Court has held as follows :- "46. In our considered view, the decision in Thota Ganga Laxmi was dealing with an express provision, as applicable to the State of Andhra Pradesh and in particular with regard to the registration of an extinguishment deed. In our considered view, the decision in Thota Ganga Laxmi was dealing with an express provision, as applicable to the State of Andhra Pradesh and in particular with regard to the registration of an extinguishment deed. In absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the 1908 Act. Going by the said provisions, there is nothing to indicate that the Registering Officer is required to undertake a quasi-judicial enquiry regarding the veracity of the factual position stated in the document presented for registration or its legality, if the tenor of the document suggests that it requires to be registered. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction. This Court observes, for the issue no.23(4)(d) involved therein though the decision has no direct application to this case but the observation of the Hon'ble apex Court in paragraph-46 of the said decision has an application to the case at hand and this Court finds, the impugned action of the Sub-Registrar becomes illegal. Other decision since has no application to the case at hand does not require to be dealt with. 12. In the circumstances, this Court allowing the prayer involved in the writ petition issues a Writ of Mandamus directing the Registering Officer involved herein to register the instrument forthwith, since the instrument is obstructed for no reason attributed to the petitioners and the loss of time in the meantime, without insisting upon any further condition and return the registered instrument to the petitioners by completing the entire exercise within three days from the date of receipt of certified copy of this judgment. 13. The writ petition succeeds. However, there is no order as to cost. A free copy of this judgment be supplied to the learned Additional Standing Counsel for necessary compliance.