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2023 DIGILAW 212 (ORI)

Jajati Keshari Mohanty v. State of Odisha

2023-11-14

K.R.MOHAPATRA

body2023
JUDGMENT K.R. Mohapatra, J. This matter is taken up through hybrid mode. 2. This writ petition has been filed for a direction to the Opposite Party Nos.2 to 4, more particularly, to the District Sub- Registrar, Balasore-Opposite Party No.4 to release the Registered Sale Deed presented by the Petitioner on 7th July, 2023. 3. Mr. Barik, learned counsel being authorized by Mr. Parida, learned counsel for the Petitioner submits that the Petitioner is the owner in possession over Plot No. 544/1735 under Khata No. 574/84 measuring an area of 2400 sq.fts with a residential house standing thereon situated in Mouza Malikashpur in the district of Balasore (for brevity 'the case land). Due to his legal necessity, he executed a sale deed in respect of the case land in favour of one Anadi Charan Pati and presented it for registration before Opposite Party No.4 on 7th July, 2023. The document was not released to the authorized person after registration. Hence, this writ petition has been filed. 4. It is submitted by learned counsel for the Petitioner that after registration of the document, the District Sub-Registrar, Balasore-Opposite Party No.4 has no authority to withhold the document with him. Materials on record clearly disclose that the document has already been registered, as receipt under Section 52 (b) (Annexure-1) of the Registration Act, 1908 (for short 'the Act') and e-registration ID number (Annexure-2) were issued to the Petitioner on 7th July, 2023, which disclose that the entire process of registration was over on 7th July, 2023. The Opposite Party Nos.3 and 4 filed counter affidavit annexing an order dated 11th July, 2023 (Annexure-C/4), which discloses that the registration of the sale deed was refused. The said order was never communicated either to the Petitioner or to the intended purchaser. It appears that the registration was refused on the ground that a civil suit is pending in respect of the said property and an order of status quo is continuing. The day on which the document was presented for registration, no interim order was passed by any Court of law. But, on 10th July, 2023 (Annexure- B/4), an order of status quo has been passed in respect of the suit property. The day on which the document was presented for registration, no interim order was passed by any Court of law. But, on 10th July, 2023 (Annexure- B/4), an order of status quo has been passed in respect of the suit property. When the process of registration was already over on 7th July, 2023, there was no occasion on the part of the Opposite Party No.4 to pass an order on 11th July, 2023 that too withholding the document for four days. 5. Mr. Barik, learned counsel for the Petitioner also relied upon the decision in the case of M/s. Kukumina Constructions (P) Ltd. -v- Sub-Registrar-cum-Stamp Collector, Khurda and others, reported in 2010 (II) OLR 19 , wherein at Paragraphs-6 and 7, it is held as under: '6. The first question relates to the preliminary objection raised by O.P. No.1 regarding availability of alternative remedy. In the writ petition, the petitioner challenges the action of the registering officer in withholding the original sale deed No.2814 of 2007 after its registration and to quash Annexure-3 dated 06.02.2008 by which the registering officer directed the petitioner to deposit the deficit amount towards stamp duty and registration fee as calculated by him or else to contest the matter to be referred to the next higher forum. The argument of the petitioner is that no power is vested in the registering officer to withhold the sale deed after its registration is completed. The further contention of the petitioner is that the order passed under Annexure-3 is without jurisdiction and hence the same is liable to be quashed. According to the petitioner, there is no such provision either under the Indian Registration Act, 1908 or the Indian Stamp Act, 1899 that empowers the registering officer to issue such notice as under Annexure-3 and to withhold the sale deed after completion of registration. Thus, in the present writ petition, the jurisdiction of the registering officer is under challenge. In course of hearing, the learned counsel appearing for the opp. parties has not brought to our notice any provision either under the Indian Stamp Act or the Indian Registration Act that confers jurisdiction on the registering officer to issue notice in terms of Annexure-3 and to withhold the sale deed after completion of registration. In course of hearing, the learned counsel appearing for the opp. parties has not brought to our notice any provision either under the Indian Stamp Act or the Indian Registration Act that confers jurisdiction on the registering officer to issue notice in terms of Annexure-3 and to withhold the sale deed after completion of registration. A bare perusal of Annexure-3 reveals that the registering officer has issued the said notice without referring to any Section or Rule of any statute under which such notice is intended to be issued. Learned counsel for the opposite parties has also failed to bring to our notice any such provisions of law which give right to the petitioner to challenge such action of the registering officer in withholding the sale deed after its registration and the legality and the validity of order passed under Annexure-3 before any statutory authority. Needless to say, the issue involving jurisdiction always goes to the root of the cause. Law is well settled that when an order is passed by any authority having no jurisdiction or in violation of the principles of natural justice, the superior court shall not refuse to exercise its jurisdiction although there exists an alternative remedy. In Guruvayoor Devaswom Managing Committee and Another Vs. C.K.Rajan, (2003) 7 SCC 546 , the apex Court observed that alternative remedy has been consistently held by it not to operate as a bar at least in any of the four contingencies, namely, where the writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of the Act is challenged. In view of the above, the preliminary objection raised by the opp. parties regarding maintainability of the writ petition on the ground of alternative remedy merits no consideration. 7. The second question is as to whether the registering officer has any power to withhold the original documents after the same are registered. To deal with such a question it is pertinent to examine Section 52(1), Section 61(2), Section 80A of the Indian Registration Act, 1908 (Orissa Amendment) and Rule 100 (1) & (2) of Orissa Registration Rules, 1988, which run as under:- "52. To deal with such a question it is pertinent to examine Section 52(1), Section 61(2), Section 80A of the Indian Registration Act, 1908 (Orissa Amendment) and Rule 100 (1) & (2) of Orissa Registration Rules, 1988, which run as under:- "52. Duties of registering officers when document presented.- (1) (a) The day, hour and place of presentation, the photographs and finger prints affixed under section 32 A, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it; (b) a receipt for such document shall be given by the registering officer to the person presenting the same; and (c) subject to the provisions contained in section 62, where a document is admitted to registration, a true copy thereof shall, without unnecessary delay, be filed in the appropriate book according to the order of its admission." "61 Endorsements and certificate to be copied and document returned.- (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52." "80-A. Recovery of deficient registration fees as arrears of land revenue.- If on inspection or otherwise, it is found that the fee payable under this Act in relation to any document which is registered has been insufficiently paid, the deficient fee shall, after failure to pay the same on demand within the prescribed period, be recoverable from the person who presented such document as arrears of land revenue." "100. Prompt return of documents after registration - (1) Documents admitted to registration shall be completed and made ready for delivery within seven days from the date of their admission and shall be promptly returned to the presentant or the person authorized to receive them and the duplicate receipt returned by the parties shall be posted on to their respective originals. (2) When receipts are granted under Clause (b) of Section 52 (1) to the presentant they shall be informed by the registering officer of the probable date on which their documents will be ready for return. (2) When receipts are granted under Clause (b) of Section 52 (1) to the presentant they shall be informed by the registering officer of the probable date on which their documents will be ready for return. The said date shall be noted on the receipt and every endeavour shall be made to return the document on such date." A conjoint reading of Section 52(1), Section 61(2) and Section 80A of the Indian Registration Act, 1908(Orissa Amendment) and Rule 100 (1) & (2) of Orissa Registration Rules, 1988 makes it amply clear that there is an obligation cast on the registering officer to make every endeavour to return the document promptly after the same is registered. He cannot withhold any document after the same is registered for any other purpose. If upon inspection or otherwise it is found that the fee payable under the Registration Act in relation to any document, which is already registered, has not been paid or has been paid insufficiently, such fee may be recovered from the person who presented such document for registration as an arrear of land revenue.' It is his submission that after registration of the document, the same cannot be withheld by the Registering Officer. In that view of the matter, he prays for a direction to release the document at once. 6. Mr. Mishra, learned Additional Government Advocate submits that the impugned order was passed within four days from the date of receipt of the sale deed presented for registration. On receipt of the document (the sale deed) presented by the Petitioner, acknowledgement receipt under Annexure-1 was issued, as required under Section 52(b) of the Act. That does not reflect that the process of registration was over on that date. Likewise, Annexure-2 is the receipt generating an ID Number to commence the process of registration. Before the process of registration was over, an order of status quo dated 10th July, 2023 (Annexure-B/4) passed by learned Senior Civil Judge, Balasore in I.A. No.92/118 of 2023 (arising out of C.S. No.107/135 of 2023-I) was produced before the District Sub-Registrar, Balasore-Opposite Party No.4. On receipt of the same, the order under Annexure-C/4 was passed refusing to register the sale deed. 7. It is also submitted that on 7th July, 2023, one, Shantilata Das presented a complaint before Opposite Party No.4 stating that the aforesaid civil suit is pending in respect of the land in question. On receipt of the same, the order under Annexure-C/4 was passed refusing to register the sale deed. 7. It is also submitted that on 7th July, 2023, one, Shantilata Das presented a complaint before Opposite Party No.4 stating that the aforesaid civil suit is pending in respect of the land in question. Hence, the Opposite Party No.4 made an enquiry and on 10th July, 2023 the aforesaid order under Annexure-B/4 was presented. As such, the refusal order was passed on 11th July, 2023. Since an order refusing registration has already been passed under Annexure-C/4, the Petitioner has a remedy under Section 72 of the Act to assail the same. Hence, he prays for dismissal of the writ petition. 8. Mr. Barik, learned counsel for the Petitioner vehemently objected to the same. It is his submission that upon receipt of the document, Identification (ID) Number under Annexure-2 was issued in favour of the Petitioner. Further at Paragraph-4 of the counter affidavit, the Opposite Party No.4 himself stated on oath as under: '4. That, it is respectfully submitted that the petitioner has decided to sell his residential building situated at Mouza-Malliksapur, Ps/Dist-Balaosre bearing Plot No.544/1734 and Plot No.544/1735 under Khata No-574/84 measuring an total area of Ac.0.091 dec. with residential house standing over the plot for the purpose of his legal necessity and allied reasons. After complying all the formalities the petitioner has presented the sale deed before the O.P. No.4 and the said document was entered in e- Registration system bearing ID No.62306699 on dated 07.07.2023 in favour of the vendee Sri Anadi Charan Pati. After maintaining due official procedure, ticket was also generated and documents were presented before the O.P. No.4 for execution of admission.' Thus, there is no iota of doubt that the registration process was already over by the time the order of status quo was passed. He, therefore, reiterated the prayer made in the writ petition. 9. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the document, i.e., a sale deed in respect case land was presented by the Petitioner with an intention to sale the property with one, Anadi Charan Pati (not made a party to the writ petition). 9. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the document, i.e., a sale deed in respect case land was presented by the Petitioner with an intention to sale the property with one, Anadi Charan Pati (not made a party to the writ petition). Upon receipt of the sale deed, Annexures-1 and 2 were issued acknowledging the presentation of the document as well as initiating the process of e-registration by issuing an ID Number. Annexures-1 and 2 do not suggest that the document was registered on 7th July, 2023. Those documents only suggest that the sale deed presented by the Petitioner was accepted by the office of the Sub-Registrar and after following due procedure, the sale deed was presented before Opposite Party No.4 for registration. It is brought to the notice of this Court that on the said date, i.e., on 7th July, 2023 one, Shantilata Das lodged a complaint before the Sub-Registrar, Balasore-Opposite Party No.4 requesting him not to register the sale deed due to pendency of a civil suit. Thus, the Sub-Registrar stated to have made enquiry and on 10th July, 2023 an order (Annexure-B/4) was passed directing the parties to the said I.A. to maintain status quo over the suit property. The Petitioner was Opposite Party in the said I.A. 10. Upon receipt of the said order, the order under Annexure- C/4 refusing to register the sale deed was passed on 11th July, 2023 in Refusal Case No.1. Since an order of refusal has already been passed by Opposite Party No.4, the only remedy available to the Petitioner is by filing an appeal under Section 72 of the Act, if he feels aggrieved. The case law cited by Mr. Barik, learned counsel for the Petitioner is of no assistance to him, as the sale deed in question has not been registered by the time the refusal order under Annexure-C/4 was passed. In view of the above, the prayer made in this writ petition cannot be granted. 11. Accordingly, the writ petition being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application.