Smt. Reddy Bala Vasanthi Kumari, ... vs Prl. Secretary, Stamps ...
2022 Latest Caselaw 678 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.38483 OF 2015

ORDER:

This writ petition is filed under Article 226 of the

Constitution of India, claiming the following relief:

"To issue writ of mandamus declaring the action of the second respondent in refusing to receive the representation of the petitioner dated 09.10.2015 along with judgment and decree dated 17.04.2015 in O.S.No.135 of 2012 passed by the Court of I Additional Senior Civil Judge to take note of the cancellation of the gift deed dated 02.02.2012 and the gift deed dated 02.02.2012 executed by the 3rd respondent in favour of the 4th respondent are null and void and not binding on the petitioner and to delete the entries in the encumbrance certificate and register in respect of those document in respect of property RCC house bearing door No.16- 34-4/1D in Plot No.69 admeasuring 150 square yards, situated at Block No.16, T.S.No.137, Suryaraopeta, Sambamurtynagar, Kakinada, as illegal, arbitrary and violation of Article 300-A of the Constitution of India and consequently direct the second respondent to receive the same and make necessary entries in the concerned registers and encumbrance certificate in respect of property RCC house bearing door No.16-34-4/1D in Plot No.69 admeasuring 150 square yards, situated at Block No.16, T.S.No.137, Suryaraopeta, Sambamurtynagar, Kakinada."

The contention of the petitioner is that, the petitioner is the

owner of RCC house bearing door No.16-34-4/1D in Plot No.69

admeasuring 150 square yards, situated at Block No.16,

T.S.No.137, Suryaraopeta, Sambamurtynagar, Kakinada, having

got the same from her mother Smt. Sampe Suryakantham, the

third respondent under a registered gift deed dated 30.11.2009.

After execution of gift deed, the third respondent delivered

possession of the said property to the petitioner and the petitioner

has been in possession and enjoyment of the said property.

Subsequently, without any information to the petitioner, the third MSM,J WP.No.38483 of 2015

respondent executed cancellation deed dated 02.02.2012

cancelling the gift deed dated 30.11.2019 and executed another gift

deed dated 02.02.2012 in favour of the fourth respondent herein.

In view of the subsequent developments, the petitioner was

constrained to file O.S.No.135 of 2012 on the file of I Additional

Senior Civil Judge, Kakinada, against Respondent Nos. 3 & 4

seeking declaration of title and for consequential permanent

injunction restraining Respondent Nos. 3 & 4 from interfering with

the possession and enjoyment of the petitioner in respect of the

said property. The said suit was decreed on 17.04.2015 in favour

of the petitioner holding that the cancellation deed dated

02.02.2012 is void under law and therefore, the petitioner herein

need not seek cancellation of the said document while upholding

the gift deed executed in favour of the petitioner and the said

judgment and decree attained finality.

Subsequent to the said decree and judgment, the petitioner

submitted representation dated 09.10.2015 to the second

respondent enclosing copy of the decree and judgment in

O.S.No.135 of 2012 for the purpose of deleting the documents

relating to cancellation of gift deed of the petitioner and the gift

deed executed in favour of the fourth respondent dated

02.02.2012, as the documents are reflecting in the encumbrance

certificate in respect of the subject property and creating cloud on

the ownership of the petitioner. The second respondent refused to

receive the representation holding that they are not parties to the

proceedings and they are not bound by the decree and judgment in MSM,J WP.No.38483 of 2015

the said suit. It is submitted that, by virtue of the refusal of the

second respondent to delete the said documents, it became difficult

for the petitioner to deal with the property in future because of the

cloud created by Respondent Nos. 3 & 4 and the action of the

second respondent in refusing to receive the representation of the

petitioner is illegal, arbitrary, misuse of official powers and

violative of Article 300-A of the Constitution of India. Therefore,

the petitioner filed the present writ petition and sought a direction

as stated supra.

None of the respondents filed counter affidavit.

During hearing, learned counsel for the petitioner, while

reiterating the contentions urged in the affidavit, has drawn

attention of this Court to Rules 141 and 144 of the Andhra

Pradesh Rules under the Registration Act, 1908 (for short „the

Rules‟) and Standing Orders issued by the Registration

Department which deals with cancellation of the document,

making entries in the records. It is also submitted that, when once

the documents are declared as illegal, arbitrary and not binding on

the petitioner, it is for the second respondent to make necessary

entries deleting the document entered into the Register, while

discharging his public duty, being a public officer. But, the second

respondent refused to receive the document along with the

judgment and decree on the lame excuse that, they are not parties

to the suit, thereby, not binding on them. Such conduct of the

second respondent is highly reprehensible, thereby, sought a

direction as stated above.

MSM,J WP.No.38483 of 2015

Whereas, learned Assistant Government Pleader for Stamps

and Registration would contend that, when the documents are

declared as null and void, it is for the Court to send the document

along with judgment and decree to enter into the Register in terms

of the provisions of Specific Relief Act, 1963, but no such

communication was sent to the second respondent in compliance

of the mandatory procedure prescribed under Specific Relief Act,

1963, thereby, based on the representation submitted by these

petitioners, the second respondent is under obligation to make

necessary entries deleting the documents from the Register of

cancellation of documents and requested to dismiss the writ

petition.

Considering rival contentions, perusing the material

available on record, the sole point that arises for consideration is:

"whether the second respondent - District Registrar is under obligation to receive the representation submitted by the petitioner, while discharging his public duty, being a public officer and make necessary entries in the concerned Register(s), deleting the document, as it was declared by the competent civil court as void. If so, whether a writ of mandamus be issued against the second respondent?"

P O I N T:

It is an undisputed fact that the third respondent executed a

gift deed in favour of this petitioner dated 30.11.2009 in respect of

property RCC house bearing door No.16-34-4/1D in Plot No.69

admeasuring 150 square yards, situated at Block No.16,

T.S.No.137, Suryaraopeta, Sambamurtynagar, Kakinada.

MSM,J WP.No.38483 of 2015

Cancellation of the gift deed dated 30.11.2009 and execution of

another gift deed dated 02.02.2012 in favour of the fourth

respondent by the third respondent are undisputed. The simple

question that arose for consideration is, what is the duty of the

Sub-Registrar or District Registrar when the petitioner was

declared as owner of the property and granted an injunction

restraining the respondents therein from interfering with the

possession and enjoyment of the property.

The petitioner did not seek relief of cancellation of gift deed

dated 30.11.2009 executed by the third respondent in favour of

this petitioner and also the third respondent executing another gift

deed dated 02.02.2012 gifting the property to the fourth

respondent, but sought a declaration that the petitioner is the

owner of the property. This would fall within Section 34 of the

Specific Relief Act, 1963.

Section 34 of the Specific Relief Act, 1963, deals with

discretion of Court as to declaration of status or right. According to

it, any person entitled to any legal character, or to any right as to

any property, may institute a suit against any person denying, or

interested to deny, his title to such character or right.

Instead of filing a suit for declaration that the documents

cancelation deed and gift deed executed by third respondent in

favour of the fourth respondent are void, the petitioner sought

declaration of title to the property. In case, the suit is filed for

cancellation, the Court is under obligation to communicate the MSM,J WP.No.38483 of 2015

decree and judgment to the second respondent - District Registrar

with necessary direction to delete the document from the Registers.

According to Section 35 of the Specific Relief Act, 1963,

which deals with effect of declaration, a declaration made under

this Chapter is binding only on the parties to the suit, persons

claiming through them respectively, and, where any of the parties

are trustees, on the persons for whom, if in existence at the date of

declaration, such parties would be trustees. Therefore, the

declaratory decree granted under Section 34 is binding on the

parties to the suit. But the second respondent - District Registrar

is not made as a party to the suit. Consequently, the decree is not

binding on the second respondent - District Registrar.

Learned counsel for the petitioner made a vain attempt to

convince this Court, drawing attention of this Court to Rule 140

and Rule 141 of the Rules. Rule 140 deals with issue of

Encumbrance Certificate on the request made by any individual in

terms of Appendix VII. Rule 141 deals with searches for list of

documents executed by, or in favour of, a particular individual, the

list shall show the number date, nature and value of the servant

documents found, as well as the names of the parties and the

village in which property affected, if any, is situated, but no

description of the properties affected by the document should be

given as in the case of encumbrance certificates on properties. The

list shall not include particulars of documents registered in

Register Books 3 and 4 unless the applicant is entitled to copies of

entries. But, Rules 140 and 141 are not relevant for deciding the MSM,J WP.No.38483 of 2015

issue involved in this matter. At the same time, learned counsel for

the petitioner has drawn attention of this Court to the Standing

Orders.

The enforceability of the Board Standing Orders was

considered by the Division Bench of the High Court of Andhra

Pradesh in Kanumuri Anji Raju v. State of Andhra Pradesh1,

wherein candidly held that the Standing Orders are merely

executive instructions issued for the guidance of officers who are to

carry out the policy of the Government. The said principle was

reiterated by the learned single Judge of the High Court of Andhra

Pradesh in Smt. C. Rajamma v. The District Collector2.

Further, a learned single Judge of this Court in Katta Rattamma

v. Gannamaneni Kotaiah3 held that the Standing Orders are only

administrative instructions and they do not have any statutory

force, or force of law. Hence, standing orders are not having legal

enforceability and they are only guidelines for the purpose of

administration. Therefore, based on such Standing Orders, a

positive direction cannot be issued by this Court to receive and

make necessary entries in the Registers. However, the second

respondent being a public officer is under obligation to receive the

representation made by this petitioner and pass appropriate

orders. But, refusal to receive the representation blatantly on the

ground that the petitioner is not a party to the decree and

judgment is not binding is nothing but disowning his public duty

being a public officer. Therefore, when the second respondent

1960 (2) An.W.R 272 (D.B)

1995 (1) ALT 681

1975 (2) An.W.R 122 MSM,J WP.No.38483 of 2015

being a public officer failed to discharge his public duty, the Court

can issue writ of mandamus directing to discharge his public duty.

Hence, in view of my foregoing discussion, I find that it is a fit case

to issue a direction to the second respondent to receive the

representation submitted by the petitioner dated 09.10.2015 and

to take appropriate action in accordance with law.

In the result, writ petition is disposed of, directing the

second respondent to receive the representation dated 09.10.2015

submitted by the petitioner and pass appropriate orders strictly in

accordance with law. It is made clear that, any amount of deviation

would lead to serious consequences. No costs.

Consequently, miscellaneous applications pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 08.02.2022 SP