Jammu & Kashmir High Court - Srinagar Bench

Bharti Tickoo vs Union Territory Of J And K on 6 May, 2025

                                   S.No. 151
                                   Suppl List
       HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                            WP(C) No. 998/2025

  BHARTI TICKOO                               ...Petitioner(s)/Appellant(s)

  Through: Mr. Arif Sikandar, Advocate &
           Ms. Laraiba, Advocate.
                                     Vs.
  UNION TERRITORY OF J AND K                              ...Respondent(s)
  AND ORS. (REVENUE)
  Through: Ms. Maha Majeed, Assisting Counsel vice
           Mr. Mohsin Qadri, Senior AAG.

  CORAM:
      HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
                                  ORDER

06.05.2025

1. Heard learned counsel for the petitioner at length and perused the

record.

2. Issue notice, which is waived by Ms. Maha Majeed, learned Assisting

Counsel appearing vice Mr. Mohsin Qadri, learned Senior AAG for

the respondents.

3. The learned counsel appearing on behalf of the petitioner has drawn

the attention of this Court to the Order passed by the Divisional

Commissioner Kashmir dated 08.07.2024 vide No. 80 DIVK of 2024,

by virtue of which, the Divisional Commissioner, Kashmir, in

pursuance of powers vested under Section 3 of the Jammu & Kashmir

Migrant Immovable Property (Preservation, Protection and Restraint

on Distress Sales) Act, 1997 has accorded sanction to the alienation of

land measuring 02 kanals 15 marlas falling under Khasra No.

501/443/309 (01K-13M-036Sfts) and No. 502/443/309 (01K-01M- 236Sfts) situated at Rose Colony, Bund Approach, estate Shivpora,

Tehsil South, District Srinagar, subject to the following conditions.

a) That the applicant(s) are rightful owners/occupants of the

property proposed to be alienated and is free from all

encumbrances and the title of the proposed alienor(s) is

certified by the Tehsildar concerned under his seal and

signatures.

b) That the value of the property (land) under proposed alienation

shall be calculated as per the stamp rate prevailing at the time

of execution/registering of Sale Deed applicable under

residential category of land al Rose Colony, Bund Approach'

estate Shivpora, Tehsil South as approved by the Committee

constituted under the J&K Preparation and revision of

market value guideline rules 2011.

c) That any permission under this Act i.e., J&K Migrant

immovable Property (Preservation, Protection & Restraint on

Distress Sales),Act, 1997 and rules made thereunder, shall not

be construed as permission for conversion or change of land

use which may otherwise be prohibited by any Act / Rules there

under for the time being in force.

d) That after completion of all registration formalities, the District

Magistrate, Srinagar (Custodian of the Migrant immovable

Property) shall handover the possession thereof through

prescribed procedure.

4. It is a specific case of the petitioner that the petitioner, who being the

lawful owner of the land in question owing to her professional and personal engagement, has executed a General Power of Attorney in

favour of Mr. Mohd Latif Ganaie whereby he has been authorized to

take all necessary steps for the maintenance, protection, and

representation concerning the said property which includes the sale as

well.

5. The further case of the petitioner is that the Deputy Commissioner

Srinagar thereafter has issued a Certificate dated 18.01.2018,

validating the deed and affirming the amount of Rs. 5,78,812/- for the

property transaction, subject to the applicable stamp duty and the

approval of the competent authority, and, in pursuance to the said

authority, the attorney holder has applied for obtaining the alienation

permission under Section 3 of the Jammu & Kashmir Migrant

Immovable Property (Preservation, Protection and Restraint on

Distress Sales) Act, 1997, [for short "the Act"] and, vide Order dated

08.07.2024, the Divisional Commissioner, Kashmir granted the

permission and authorized the attorney holder to manage, alienate,

and otherwise deal with the said property.

6. The learned counsel for the petitioner further contends that in terms of

the permission so granted, a Sale Deed was executed by the attorney

holder on behalf of the petitioner in favour of Riyaz Ahmad War, for

a total consideration of Rs. 1,05,32,500/- after duly paying requisite

stamp duty amounting to Rs. 7,37,280/- in the year March-2025.

7. The learned counsel for the petitioner further submits that even the

Fard with respect to the said property has already been issued by the

Government of Jammu & Kashmir, confirming the title and

possession of the petitioner over the said land and, despite the execution of the Sale Deed, obtaining all necessary permissions and

the payment of full stamp duty, the Sub-Registrar, Srinagar, is

arbitrarily and illegally refusing to register the Sale Deed, without

assigning any cogent reason.

8. According to the learned counsel for the petitioner, the refusal of

registration is illegal, arbitrary, and violative of the right of the

petitioner guaranteed under Article 300-A of the Constitution of

India, besides being contrary to the mandatory provisions of the

Registration Act and the Transfer of Property Act, and, feeling

aggrieved of the inaction on part of the Sub-Registrar, the instant

petition has been preferred.

9. The learned counsel appearing on behalf of the petitioner has relied

upon the Judgment passed by the Apex Court in case titled as "Satya

Pal Anand vs State of Madhya Pradesh & Others" reported in 2016

10 SCC , 767 wherein, it has been held that the concerned Registrar

cannot decide as to whether a document presented for registration is

executed by person having title as mentioned in the instrument, and,

Section 35 of the Act does not confer a quasi-judicial power on the

Registering Authority. The Registering Officer is expected to reassure

that the document to be registered is accompanied by supporting

documents. He is not expected to evaluate the title or irregularity in

the document as such.

10. For facility of the reference, para 41 of the aforesaid judgment is

reproduced as under:

41."Section 35 of the Act does not confer a quasi-

judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such.The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the 1908 Act. In Park View Enterprises it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition."

11. The learned counsel for the petitioner has also placed reliance upon

the Judgment passed by Jammu Wing of this Court in case titled

"Santosha Devi vs UT of J & K & Ors", WP(C) No. 1385/2023,

decided on 26.03.2025, wherein, in para 13 it has been held as under:

13. It goes without saying that the role of Registering Officer is administrative in nature and does not fall within the ambit of quasi-judicial authority. As per the mandate of the Registration Act and Rules formed thereunder, the role of the Registering Officer is limited to the extent of registering the document if the same is accompanied by supporting documents and he/she is expected to evaluate the title or irregularity in the document as such. The examination to be done by him/her is incidental to ascertain that there is no violation of the provisions of Registration Act and the Registration Officer cannot decide as to whether a document presented for registration is executed by person having title as mentioned in the instrument.

12. Thus, in the light of what has been argued by the learned counsel for

the petitioner coupled with the relevant record which has been placed on record and also in the light of the law laid down by the Apex Court

in catena of Judgments and by this Court, it can safely be concluded

that the role of the Registering Officer is confined to the extent of

purely administrative and not quasi-judicial and the Registering

Officer, while registering the document, cannot go into the question

whether a document presented for registration is executed by person

having title, as mentioned in the instrument, however, he has to

reassure that the document which is to be registered is accompanied

by the supporting documents.

13. Thus, in view of the aforesaid, this Court is of the view that the

action of the respondent No. 4 i.e., Sub-Registrar, Srinagar, is in