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2020 DIGILAW 372 (TS)

DVR Estates Developers and Constructions v. State of Telangana

2020-03-11

T.VINOD KUMAR

body2020
ORDER : 1. These Writ Petitions are filed under Article 226 of the Constitution of India for issuance of writ of mandamus declaring the action of the Inspector of Police/Station House Officer, Bhongir Town police station, Rachakonda Police Commissionerate, whereby the said authority issued proceedings dated 23.09.2016 and 24.03.2019 to the Sub-Registrar, Yadadri-Bhongir District, Telangana to get further registrations stopped in respect of the lands covered by the documents specified in the said letters and by making a note “any where option” in the Sub-Registrar’s record and not to register through “online.” 2. Heard Sri D.V. Sitarama Murthy and Sri V. Ravinder Rao, Learned Senior counsels, appearing for Sri M. Avinash Reddy and Sri N. Bhujanga Rao, learned counsel for the petitioners and Learned Advocate General assisted by Sri. A. Santhosh Kumar, Special Government Pleader and Sri V. Venkata Mayur appearing for the implead petitioner in W.P. No. 16432 of 2019. Counter Affidavit on behalf of 6th respondent in W.P. No. 16432 of 2019, and Counter and Additional Counter Affidavit on behalf of 2nd respondent in W.P. Nos. 15722 and 15724 of 2019 are filed and placed on record. 3. It is the case of the petitioners that the Station House Officer is not empowered to issue the impugned proceedings, whereby the said authority has directed the Sub-Registrar not to entertain any further registrations in respect of the lands as mentioned in the said communication, since there are cases registered against the said lands, which are said to have been got registered by one Gangster by name Nayeemuddin @ Nayeem from the original owners under coercion and threat of death. By the said communication, it is being claimed that the original land owners have approached the police authorities and made a complaint, and for the said reason since these lands were got transferred in the name of the benamies of the said Nayeem, who have subsequently transferred the same in favour of the petitioners, further registrations may be stopped. 4. Assailing the said communication issued by the police authorities, it is urged by both the Learned Senior Counsel appearing for the petitioners that the said authority is not conferred with any power either under the Criminal Procedure Code or under any of the statutes and hence, issuance of the said communication is clearly without jurisdiction and authority of law. 4. Assailing the said communication issued by the police authorities, it is urged by both the Learned Senior Counsel appearing for the petitioners that the said authority is not conferred with any power either under the Criminal Procedure Code or under any of the statutes and hence, issuance of the said communication is clearly without jurisdiction and authority of law. It is submitted on behalf of the petitioners that the power vested with the registering authority not to register documents presented for registration is specified in Section 22A of the Registration Act, 1908 (for short ‘Act’) whereunder the power prohibiting registration of certain documents is specified. 5. It is urged by the Learned Senior Counsel that if the authority intends not to register any document, since the same is either attached by civil or criminal revenue courts and others which are likely to adversely affect the interest, it is only the State Government that is empowered to prohibit registration of such a document by publishing a notification, by virtue of the power conferred under sub-section (2) of Section 22A of the Act. Further, the power is also exercisable by the Registering Officer under sub-section (3) in refusing to register any document for which a notification is issued under clause (e) of sub-section (1). It is the submission of the learned Senior Counsel that no such notification has been issued in respect of the property of the petitioner. 6. Further, the Learned Senior Counsel would also urge that the petitioners purchased the property from its vendor who in turn purchased the same from the previous vendors and the said link document does not find mention in the impugned proceeding addressed by the Station House Officer to the Sub-Registrar and thus, the refusal of the Sub-Registrar in not making further registration in respect of the petitioner’s land on the basis of communication of the police authorities is clearly without authority of law and is contrary to Section 22A of the Registration Act, 1908. 7. 7. Supplementing the above said argument, Sri V. Ravinder Rao, Learned Senior Counsel in W.P. No. 16432 of 2019 would further submit that the impugned communication is in the nature of injunction, and it is only the civil courts which are empowered to grant an injunction and the Station House Officer does not have the statutory power or authority in law to issue the communication of the impugned nature whereby the authority directed the registering authority not to entertain any further registrations in respect of the land of the petitioners. Learned Senior Counsel would also submit that the power under Section 102 of Criminal Procedure Code is only applicable in relation to movable property and since by the impugned proceeding, the authority is refusing to register the documents relating to land would clearly amounts to the authorities seizing immoveable property, which power is not vested with the authorities under Section 102 of Cr.P.C. Further, it is also submitted by the learned Senior Counsel that the petitioners predecessors in title, acquired the lands under document registered in February 1995, which would be the link document and as there is no mention of name of the petitioner company in the complaint made, the refusal to register the documents presented, by the registering authorities cannot be sustained. 8. Further, it is also submitted by the Learned Senior Counsel that the vendor of the petitioner, which is a trust represented by its trustees, had acquired the land and also initiated proceedings before the City Civil Court at Hyderabad in O.S. No. 186 of 2003 which ultimately resulted in settlement between the parties and as a result, the case was withdrawn on 09.11.2011. That, the petitioner having purchased the same under registered document on 05.09.2012 from the impleaded respondent who has succeeded to the estate of her husband and the trust joining the said document as consenting parties and the consideration having been paid to the impleaded respondent as recorded in the sale deed through banking channels, it cannot be said that the said lands have been got registered without the consent of the original owner i.e., the petitioners predecessors in title. 9. 9. Learned Senior Counsel also submits that subsequent to the purchase affected by the petitioner, the petitioner had approached the Hyderabad Metro Development Authority and got the said lands converted into non-agricultural lands and had also obtained lay out approval in December, 2013, when the authorities while sanctioning the final lay out approval had sought for mortgage of part of the property as required under the HMDA Rules. Learned Senior Counsel would also draw attention of this Court to the fact that the impleaded respondent has approached the Station House Officer and withdrew the complaint stated to have been made claiming that her lands were forcibly taken by the persons who claimed to be associated with Gangster Nayeem. Learned Senior Counsel also submitted that the abovementioned complaint had been given in her name by her GPA and not by her itself. Learned Senior Counsel would further submit that the District Registrar, Nalgonda, by his communication dated 19.03.2019, has directed the Sub-Registrar not to entertain transaction in respect of the properties as per the list of properties furnished by the Special Investigating Team (for short ‘SIT’) viz. the authority investigating into cases relating to Nayeem Gangster, and the lands of the petitioner do not figure in the said list of properties. Learned Senior Counsel would submit that the District Registrar having issued proceedings on 19.03.2019 specifying the lands in respect of which no registrations are to be entertained by Sub-Registrar, the non-registration of the documents relating to the petitioner schedule lands in Sy. No. 730, Bhongir Town & Mandal, which do not find mention in the communication dated 19.03.2019, by the registration authorities on the basis of the communication of the Station House Officer is in clear breach of law and in contravention of Section 22-A of the Registration Act, 1908. 10. In support of the submissions, the Learned Senior counsel would place reliance on the judgment of the Hon’ble Supreme Court in the case of Nevada Properties Private Limited vs. State of Maharashtra, AIR 2019 SC 4554 and the judgment of Madurai bench of Madras High Court in R.G. Rathinam vs. The Sub-Registrar, 2009 (3) Law Weekly 890. 11. 10. In support of the submissions, the Learned Senior counsel would place reliance on the judgment of the Hon’ble Supreme Court in the case of Nevada Properties Private Limited vs. State of Maharashtra, AIR 2019 SC 4554 and the judgment of Madurai bench of Madras High Court in R.G. Rathinam vs. The Sub-Registrar, 2009 (3) Law Weekly 890. 11. In reply thereto, Learned Advocate General representing the respondent authorities by placing reliance on the counter affidavits filed, would submit that the communication issued by the Station House Officer cannot be considered as amounting to seizure under Section 102 Cr.P.C. By the said communication, the Station House Officer has only brought to the notice of the registering authorities of various complaints received from persons claiming to the original owners, based on which the police authorities are justified in asking the registering authorities not to register such documents presented, as such complaints are required to be investigated into. 12. Learned Advocate General would further submit that, since, investigation is under progress, allowing registration in respect of the petitioners property in favour of others would result in multiple documents being created and would adversely affect the general public on account of sale transaction being allowed and for the said reason the authorities are empowered in asking the registration authorities not to register documents in exercise of general powers of the investigating authority. Learned Advocate General would also submit that a mere direction to the authorities not to register, would not amount to seizure as sought to be contended by the learned counsel for the petitioners. The Learned Advocate General would also urge that since, the documents relating to title are movable property, the same would be covered by the scope of Section 102 Cr.P.C. and is liable for seizure. He would further urge that essentially the purport of the communication issued by the police authorities, is only to prevent further documents from coming on record which will affect the general public if registrations are permitted in respect of the lands till investigation into the complaints received by the police authorities is complete, as otherwise the power of the authorities investigating into the cases registered would be infringed and submits that no fault can be found with the authorities in issuing the impugned communication to the Sub-Registrar not to register further documents and seeks to sustain the same. 13. 13. In reply, the learned Senior Counsel would submit that the issue which is being agitated in the Writ Petitions relate to the source of power of the Station House Officer, in issuing the impugned proceedings, more so, in absence of any notification having been issued by the State Government prohibiting registrations or any other proceeding having statutory force, particularly in the background of the communication of the District Registrar dated 19.03.2019, would amount to the station house officer usurping powers unto himself without any authority or sanction of law. 14. Having regard to the submissions noted above, the issue that falls for consideration by this Court in these writ petitions is: (i) whether the Station House Officer is bestowed with power under any enactment to issue the communications of impugned nature. (ii) whether the action of the registering authorities in refusing to register a validly executed document presented for registration on the basis of such communication, can be said to be valid and sustained. 15. The power to register a document for registration is vested with the authorities prescribed under the Registration Act, 1908 and the provisions of the said enactment specifies that unless registration of a document is expressly prohibited from being registered, the authorities shall register the same. The power to refuse registration of a document presented is conferred on the Sub-registrar and such power can be exercised only in respect of a property as specified in sub clauses (a) to (e) of Section 22 A of the Act, details of which are entered in the prohibitory register maintained by such registering authority. Such power to refuse to register is limited to cases falling under Section 22-A of the Registration Act, 1908, which reads as under: 22A. Prohibition of Registration of certain documents: (1) The following classes of documents shall be prohibited from registration, namely: (a) documents relating to transfer of immoveable property, the alienation or transfer of which is prohibited under any statute of the State or Central Government. (b) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immoveable property owned by the State or Central Government, executed by persons other than those statutorily empowered to do so. (b) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immoveable property owned by the State or Central Government, executed by persons other than those statutorily empowered to do so. (c) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease exceeding (ten) 10 years in respect of immoveable property, owned by Religious and Charitable Endowments falling under the purview of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 198 7or by Wakfs falling under the Wakfs Act, 1995 executed by persons other than those statutorily empowered to do so. (d) agricultural or urban lands declared as surplus under the Telangana Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the Urban Land (Ceiling and Regulation) Act, 1976. (e) any document or class of documents pertaining to the properties the State Government may, by notification prohibit the registration in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions, those attached by Civil, Criminal, Revenue Courts and Direct and Indirect Tax Laws and others which are likely to adversely affect those interests. (2) For the purpose of clause (e) of sub-section (1), the State Government shall publish a notification after obtaining reasons for and full description of properties furnished by the District Collectors concerned in the manner as may be prescribed. (3) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under clause (e) of sub-section (1). (4) The State Government either suo motu or on an application by any person or for giving effect to the final orders of the High Court of Telangana or Supreme Court of India may proceed to de-notify, either in full or in part, the notification issued under sub-section (2). 16. A reading of the above provision of the Registration Act, 1908 would indicate that in various circumstances, the registering authority can refuse to register document. In so far as immovable properties covered by sub-clause (a) to (d) of Section 22A of the Act are concerned, there is no need for issuance of any notification. 16. A reading of the above provision of the Registration Act, 1908 would indicate that in various circumstances, the registering authority can refuse to register document. In so far as immovable properties covered by sub-clause (a) to (d) of Section 22A of the Act are concerned, there is no need for issuance of any notification. In so far as any immovable property covered by sub-section (e) of Section 22A is concerned, the same needs to be notified by the State Government under sub-section (2) of Section 22A of the Act. By virtue of the power conferred under sub-section(2) of Section 22-A, the State Government is empowered to notify the properties in respect of which prohibition with regard to registration is issued based on reasons obtained and the full description of the properties furnished by the District Collector. It is only upon issuance of notification by the State Government under sub-section (2), that the registering authority would derive power under sub-section (3) of Section 22A of the Act to refuse to register any document presented. Thus, till such time a notification is issued by the State Government mentioning the immovable properties in respect of which no registration is to be entertained, the registering authority is required to register a validly executed and presented document. Further, the sub-section (4) empowers the State Government to issue the notification either suo moto or of an application by any person or for giving effect to final orders of the High Court or the Supreme Court of India. 17. In P. Srinivasulu vs. The Sub-Registrar, Renigunta, Writ Petition No. 21836 of 2012, High Court of Andhra Pradesh, the erstwhile High Court of Andhra Pradesh (for the unified State of A.P.) while dealing the provisions of Section 22A of the Registration Act, 1908, was pleased to observe as under: “A perusal of the aforesaid provisions would show that for class of documents relating to the properties covered by Section 22-A(1)(a), (b), (c) and (d) of the Registration Act, there is prohibition for registration, even without issuing any notification. But for the class of documents covered by Section 22-A(1)(e), the State Government is empowered to issue notification prohibiting registration of the documents relating to the properties in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions is likely to adversely affect.” 18. But for the class of documents covered by Section 22-A(1)(e), the State Government is empowered to issue notification prohibiting registration of the documents relating to the properties in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions is likely to adversely affect.” 18. Further, in Vinjamuri Rajagopala Chary and Others vs. Principal Secretary, Revenue Department, Hyderabad and Others, W.A. No. 343 of 2015, High Court of Andhra Pradesh, a Division Bench of the Common High Court for the State of Telangana and Andhra Pradesh, while dealing with the provisions of Section 22A of the Act, had observed as under: “36. (vi) The properties covered under clause (e) of Section 22-A shall be notified in the official gazette of the State Governments and shall be forwarded, along with the list of properties, and a copy of the relevant notification/gazette, to the concerned registering authorities under the provisions of Registration Act and shall also place the said notification/gazette on the aforementioned websites of both the State Governments. The Registering authorities shall make available a copy of the Notification/Gazette on an application made by an aggrieved party.” 19. Having regard to the position of law as stated above, and the material placed before this court, admittedly, there is no notification issued by the Government in exercise of its powers either suo moto or based on any application by any person. Though, it is stated by the Learned Advocate General that the concerned police authorities having regard to the complaints received, have issued the impugned communications directing the authorities not to register further documents, it is not shown to this Court that any communication having been addressed to the State Government requesting for issue of any notification in relation to the immovable properties from not being registered by placing the same in prohibitory list inter-alia including the petitioners properties. 20. 20. Further, under the provisions of the Act, whereby the power to refuse to register a document being conferred only on the registering authority in respect of the properties for which a notification is issued by the State Government under Section 22-A(e) of the Act, and the Registration Act, 1908, being a complete code in itself, the action of the registering authority in refusing to register a validly executed document on its presentation, on the basis of the impugned communications issued by the police authorities, is contrary to the powers conferred on the said authority under the Act. The submission of the Learned Advocate General that the communication issued directing the Registering authority not to entertain further registration cannot be construed as is not in the nature of seizure contemplated under Section 102 Cr.P.C. and that it is only in the course of investigating into the crimes registered, it is to be seen that exercise of such power by the authority should be expressly conferred on such authority by the statute. No such provision under statute conferring power on the police authorities to address such communication has been shown to this court. 21. The learned Advocate General placing reliance on the judgment of the Hon’ble Supreme Court in Nevada properties (supra) and by drawing attention of this Court to Para-20 of the said judgment, wherein the Hon’ble Supreme Court observed that the authorities are empowered to seize the documents relating to immoveable properties, would submit that the police authorities in the course of investigation into any crime are duly authorized to seize title documents as they are considered as movable property under Section 102 of Cr.P.C. and in the facts of the present case instead of resorting to seizure after such documents are executed, the respondent police authority had issued the impugned communication not to register any documents presented for registration and such action is in preventive nature. 22. 22. Though the above submission of the learned Advocate General is appealing at the first blush, in absence of any provision of law conferring such power on the Station House Officer to issue communication of such nature, the only source of power referable is Section 102 Cr.P.C. If Section 102 of Cr.P.C. is considered as source of power, the same applicable only in respect of moveable property and such power does not extend to immoveable property, as has been observed by the Hon’ble Supreme Court in Nevada properties (supra). Though, the Hon’ble Supreme Court in the above decision has observed that the power under Section 102 Cr.P.C. can be exercised in relation to the documents of title relating to immovable property, no material is placed before this Court to show that any of the documents either relating to the petitioner or petitioners predecessors in title having been seized in connection with any crime under investigation, requiring further alienation from being stopped. 23. The submission of the learned Advocate General that such communication is addressed only to prevent further registrations being made, could have been considered, if only the authority investigating in to the crime registered, having seized any documents relating to petitioners property under Section 102 Cr. P.C. either from the petitioner or predecessor in interest. In the absence of seizure of any such document by the investigating authority, a mere direction to the registering authority, which is general in nature, without even specifying the source of power for issuing such communication, not to entertain any further registrations in respect of the petitioners lands would have to be considered as clearly in the nature of an injunction restraining the alienation of the properties by its registered and rightful owners, which the respondent police authorities are not empowered to do so in law. 24. It is also to be seen that the State Government taking note of the complaints received from various people, of their lands having been taken away and transferred under threat or fear of life by the Nayeem gang, had constituted the ‘SIT’ and directed the general public to approach the said authority and make a complaint in that regard. 24. It is also to be seen that the State Government taking note of the complaints received from various people, of their lands having been taken away and transferred under threat or fear of life by the Nayeem gang, had constituted the ‘SIT’ and directed the general public to approach the said authority and make a complaint in that regard. The said authority upon lodging of complaints by various people, in turn has requested the District Registrar to stop registrations, who in turn by his communication dated 19.03.2019, addressed to the Sub-Registrar including Joint Sub-Registrar-I and II in Nalgonda Registration District, directed the said authority not to entertain any transaction in respect of properties mentioned therein with their survey numbers, as the properties mentioned are stated to be covered by investigation by the SIT constituted to go into the offences committed by Nayeem gang. In view of the specific communication dated 19.03.2019, issued by the District Registrar, upon the request of the specified authority viz. ‘SIT’, specifying therein the name of the village and survey numbers in respect of which the said authority requested not to entertain any transaction in view of on going investigation in to the crimes registered, the communication issued by the 2nd respondent authority to the Sub-registrar, directing the said authority not to entertain any documents for registration in respect of the properties of the petitioners would amount to the said authority exercising parallel jurisdiction, apart from the said action of the authority being without jurisdiction in view of the constitution of SIT, whereby the investigation into the case has been transferred to the specified authority. 25. Since, the power to investigate into the crimes registered against Nayeem gangster having been vested with special team constituted by the State Government, the Station House Officer is clearly precluded from investigating into any crimes relating to Nayeem gangster or take any further action including the power to seize any documents on the pretext of investigation. 25. Since, the power to investigate into the crimes registered against Nayeem gangster having been vested with special team constituted by the State Government, the Station House Officer is clearly precluded from investigating into any crimes relating to Nayeem gangster or take any further action including the power to seize any documents on the pretext of investigation. As the said authority is denuded of power to take any action in respect of offences committed by the gangster Nayeem and others as noted above, the action of the authority in issuing impugned communication/proceedings would have to be considered as inherent lack of jurisdiction and clearly in excess of the power of investigation, which in a given case may be issued by SIT being the competent authority investigating into the crimes for the purposes of further enquiry. 26. Thus, the submission of the Learned Advocate General that the authority in order to prevent further documents from coming on record has issued the impugned proceedings cannot be accepted for the reason as noted herein above, that the investigation into the crimes committed by gangster Nayeem have all been transferred to the specified authority namely ‘SIT’, and it is only that authority who is investigating in to the said crime, can take further action in the matter. Thus, the 2nd respondent authority cannot be stated to have been conferred with power to conduct parallel investigation into the crimes registered in connection with gangster Nayeem. 27. In the case of R.G. Rathinam (supra), relied upon by the counsel for the petitioner, the facts of the case were that the Inspector of Police had gave instructions to the Sub-Registrar, directing him not to register the document in respect of Sy. No. 436/1-B on the ground that a case was registered in Crime No. 7 of 2008 and thus registration cannot be permitted, the Hon’ble High Court of Madras observed that the power of the authority refuse to register can only be on the ground that either the properties not situated within its jurisdiction or as per the conditions stated in Sections 34 and 35 of the Act. In the said decision, it was further observed that the Sub-Registrar is not bound by the instructions or letters given by the police in the matter of registration and the authorities will have to act only in accordance with the Registration Act while admitting or rejecting the documents for registration. 28. The further submission of the Learned Advocate General in W.P. No. 16432 of 2019, that it is based on the complaint of the implead petitioner that her lands have been forcefully and under the threat of life have been transferred in favour of the petitioner company, the 2nd respondent authority has issued the impugned communication, it is to be seen that implead petitioner is before this Court and stated that the complaint has been made by her general power of attorney holder in her name and not by herself. Further, the implead petitioner is also confirming the sale of her land in favour of petitioner company for valuable consideration which has been received by her through banking channels. It is also submitted that the implead petitioner of having approached the authorities in seeking to withdraw the said complaint by giving detailed reply. In view of above said specific assertion made on behalf of the implead petitioner, the submission of Learned Advocate General in this regard does not require further consideration by this Court. 29. Thus, considered from any angle, the action of the respondent police authority (6th respondent in W.P. No. 16432 of 2019 and 2nd respondent in W.P. No. 15722 and 15724 of 2019) in issuing the impugned communication, directing the registration authorities not to entertain further registration of documents (even though validly executed and in order otherwise) in respect of the petitioners lands is to be held as clearly without jurisdiction and authority of law and cannot be sustained. Thus, the impugned communications dated 23.09.2016 and 24.03.2019 issued by the 2nd respondent authority are hereby set-aside. The registering authority shall consider the document presented for registration by acting in accordance with the powers conferred on the said authority under the Registration Act, 1908. 30. Thus, the impugned communications dated 23.09.2016 and 24.03.2019 issued by the 2nd respondent authority are hereby set-aside. The registering authority shall consider the document presented for registration by acting in accordance with the powers conferred on the said authority under the Registration Act, 1908. 30. Since, it is stated that the petitioners in W.P. No. 15722 and 15724 of 2019 being aggrieved by the action of the registering authority in refusing to register the documents presented for registration, having filed appeals before the competent authority on other issues, the said appeals filed by the petitioners shall be considered and disposed by the said authority on its own merit, notwithstanding the fact that the impugned communications are set-aside by this court as indicated above. 31. Accordingly, these Writ Petitions are allowed. No order as to costs. 32. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.