Allahabad High Court
Purvanchal Anand Vihar Sahkari Avas ... vs Ramdei And 3 Others Others on 30 May, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:99102-DB
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 545 of 2024
Appellant :- Purvanchal Anand Vihar Sahkari Avas Samiti Limited
Respondent :- Ramdei And 3 Others Others
Counsel for Appellant :- Krishna Kant Vishwakarma,Rajesh Kumar Singh
Counsel for Respondent :- Anupam Kulshreshtha,C.S.C., Pratik J. Nagar
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Vikas Budhwar,J.
1. Heard Sri Rajesh Kumar Singh, learned counsel for the appellant, Ms. Meenakshi Singh, learned Standing Counsel for State-Respondent Nos. 2 to 5 and Sri J. Nagar, learned senior Advocate assisted by Sri Anupam Kulshreshtha, learned counsel for Respondent No. 1.
2. This appeal is directed against the order dated 22.12.2023 passed by learned Single Judge in Writ C No. 60732 of 2017, whereby the writ petition filed by Respondent No. 1 questioning the validity of the directions dated 08.09.2017 passed by Additional District Magistrate (Finance & Revenue), Allahabad has been allowed. The Additional District Magistrate, by the impugned order dated 08.09.2017, had directed the Sub Registrar, Karchhana, District Allahabad to register the photocopy of the sale deed dated 13.03.1992 in his books on the appellant depositing the deficient stamp duty.
3. Challenge was laid by the Respondent No. 1, legal representative of transferer, who had executed the sale deed dated 13.03.1992, questioning the validity of the sale deed itself claiming the same to be void based on the law laid down by Hon'ble Supreme Court in the case of Saurav Jain vs. M/s. A.B.P. Design: AIR 2021 SC 3673 and on various other grounds in relation to the order dated 08.09.2017 passed by the said Authority. The petition was contested by the appellant.
4. Learned Single Judge, by the order impugned, noticed all the contentions raised by the parties and concluded as under:
"Observation and conclusion
26. After having the rival versions extended by learned counsel for the parties, and having regards to the judgments relied upon by learned counsel for the petitioner and respondent no. 5, the ratio of the judgment pronounced by Hon'ble Apex court in case of Saurav Jain (supra) is fully applicable over the instant matter which clearly defines Section 32, 32A and 34 of the Registration Act, 1908 wherein, it has now been settled by the Hon'ble Apex Court under para 39(i) and (ii) which is reproduced hereinbelow:
"(i) The purported transfer of the suit land by Zahid Hussain to the first respondent was before the Repeal Act was enacted. The dual conditions stipulated under Section 5(3) of ULCRA were not fulfilled before the transfer was made since the statement under Section 6 had not been submitted and the Competent Authority had not issued a notification under Section 10(1) of the ULCRA (which was in operation at the time). Therefore, even if the Zahid Hussain had the title to the suit land, the transfer to the first respondent was null and void under Section 5(3) of ULCRA;
(ii) When Zahid Hussain had filed a declaration seeking permission for transfer of the suit land, the permission under Section 27 of ULCRA was not granted since there was a pending suit concerning the said land. he then filed another application seeking permission for transfer of land admeasuring 1295 sq. mt of his 'retainable' 2000 sq. mt. of land. The permission that was granted under Section 27 of ULCRA by the Office of the Competent Authority on 5 May 1993 was for the transfer of lands from his 'retainable' property and not the suit land;"
27. The action taken up by the Additional District Magistrate (Finance and Revenue), Prayagraj in directing the Sub-Registrar, Karchana, District Prayagraj to register photocopy of purported sale-deed dated 13.03.1992 in his book after the gap of more than 25 years is highly illegal and the same is not covered under the ratio pronounced by Hon'ble Apex Court.
28. In view of the aforementioned facts and circumstances, order dated 08.09.2017 passed by respondent no. 3 is hereby set aside.
29. Writ petition stands allowed accordingly."
5. Learned counsel for the appellant made submissions that learned Single Judge was not justified in setting aside the order impugned dated 08.09.2017. It was submitted that the respondent had alternative remedy of filing appeal against the said order and on account of availability of the alternative remedy, the writ petition was not maintainable. Further submissions have been made that the grounds on which the order has been set aside, contained in Paragraph No. 26 of the impugned judgement, no finding with regard to the applicability of the judgement in the case of Saurav Jain (Supra) has been discussed and only by citing the judgement, the order has been set aside, which is wholly unjustifed and, therefore, the order impugned deserves to be set aside.
6. Learned counsel for the Respondent No. 1 made submissions that the order impugned cannot be said to be appealable inasmuch as the same has not been passed by exercising jurisdiction under any of the provisions of the Indian Stamp Act, 1899, as adopted in the State of U.P. Further submissions have been made that specific plea pertaining to the applicability of the judgement in the case of Saurav Jain (Supra) was raised, which has not been denied and that several other aspects were raised pertaining to the illegal exercise of power by the Additional District Magistrate while passing the order dated 08.09.2017 and, therefore, the order impugned does not call for any interference.
7. It is submitted by learned counsel for the parties that during pendency of the writ petition, an order directing the parties to maintain status quo had been passed by learned Single Judge.
8. We have considered the submissions made by learned counsel for the parties and perused the material available on record.
9. A bare perusal of the judgement impugned reveals that though extensive submissions made by both the learned counsel for the parties have been noticed. However, the petition has been allowed with reference to the judgement in the case of Saurav Jain (Supra). Nowhere in the judgement impugned, there is even an indication that the facts of the case are similar to that in the case of Saurav Jain (Supra). Further, the order neither deals with the transaction as indicated nor the response of the appellant on the said aspect has been noticed. Even the determination based on the judgement in the case of Saurav Jain (Supra) i.e. the sale deed would be void, has been indicated. Several aspects raised by Respondent No. 1 in the writ petition also were required to be taken into consideration. However, nothing has been deliberated upon and decided by impugned judgement.
10. In view of above fact situation, wherein on the ground on which the petition has been allowed, is not supported by any reason and several other grounds which have been raised, have not been decided, the order impugned passed by the learned Single Judge cannot be sustained.
11. Consequently, the appeal is allowed. The order dated 22.12.2023 passed by learned Single Judge is set aside. The matter is remanded back to the learned Single Judge for re-hearing and deciding the matter afresh.
12. Looking to the nature of the dispute, it is expected that the same would be heard and decided with expedition.
13. Till such time that the matter is taken up and decided by the learned Single Judge, both the parties shall maintain status quo pertaining to the title and possession of the suit property.
Order Date :- 30.5.2024
SK/SL
(Vikas Budhwar, J) (Arun Bhansali, CJ)
