Jharkhand High Court
Shah Araf Equbal vs The State Of Jharkhand Through Its Chief ... on 22 January, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3004 of 2020
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1. Shah Araf Equbal
2. Shah Hali Equbal
Both sons of late Shah Mohammad Halim Sahab
3. Shah Abdul Kadir Iqbal
4. Shah Mazhar Equbal
Both sons of late Abdul Kadir Atimi, all residents of Village
Nilkanthpur @ Noorpur, Bilasi Town, Deoghar, PO PS Sub
Division, District Deoghar.
... Petitioners
-versus-
1. The State of Jharkhand through its Chief Secretary, Project
Building, Dhurwa, Ranchi.
2. Principal Secretary Registration Department, Govt. of
Jharkhand, Project Building, Dhurwa, Ranchi.
3. Inspector General of Registration, Department of Registration,
Govt. of Jharkhand, Project Building, Dhurwa, Ranchi.
4. Registrar cum Deputy Commissioner, Deoghar.
5. District Sub Registrar, Deoghar.
6. Sanjari Khatoon wife of late Sah Abu Nazar, resident of Village
Nilkanthapur @ Noorpur Ward No.III, Deoghar, PO Bilashi, PS
Deoghar, Sub Division District Deoghar.
7. Sah Manauwar Eqbal son of late Sah Muzaffar Eqbal, resident
of Village Nilkanthpur @ Noorpur Ward No.III, PO Bilasi, PS
Deoghar, Sub Division District Deoghar.
... Respondents
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CORAM : SRI ANANDA SEN, J.
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For the Petitioners : xxx
For the Respondents: Mr. Sharabhil Ahmed,
AC to SC (Mines) I
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8/ 22.01.2024 No one appears on behalf of the petitioners. Learned counsel for
the State is present.
2. Considering the nature of the prayer made in this writ petition and
the order passed by the Coordinate Bench of this Court in W.P.(C) No. 3103 of
2020, I am not inclined to keep this matter pending or adjourn the same.
3. Petitioner has prayed for quashing the order dated 12.07.2020
passed in Misc. Case No.04 of 2020-21, whereby while exercising jurisdiction
under Sections 82 and 83 of the Registration Act, 1908, the Registrar-cum-
Deputy Commissioner, Deoghar has cancelled the registered sale deeds being
sale Deed No.70, 71 of 21.01.2020 and sale Deed No.130, 131 and 132 dated
31.01.2020, executed by the petitioners in favour of various persons.
4. Similar issue fell for consideration before a Coordinate Bench of
this Court in W.P.(C) No.3103 of 2020, wherein the Coordinate Bench by order
dated 11.01.2024 at paragraphs 24 and 35 thereof has held as under: -
"24. What need to be examined in the present context, is
whether the means to check the menace adopted in the form
of the impugned circular, by vesting power of cancellation
on the Registrar, is legally sustainable or not. Mere right
object cannot cloth an executive order with legality, as the
said order gives power to deprive citizens of their valuable
legal right of property.
35. Unless there is a declaration by a civil Court that a deed
is vitiated by fraud, a registered deed cannot be cancelled
by the Registrar."
5. Further, at paragraph 36 it has been held that power of
cancellation of such document cannot be permitted by an executive order, as it
will be against the scheme of statutory provisions as contained in the
Registration Act, 1908. It has been further held that any circular vesting power
of cancellation on the Registrar is not sustainable in law and was thus, set
aside. It has been specifically held that the Registrar has got no power to
cancel the registered sale and the Government cannot confer such power on
the Registrar by an Executive Order. Consequently, the Coordinate Bench
also set aside any notice, orders including consequential orders for institution
of First Information Report.
6. Paragraph 36 of the order dated 11.01.2024 passed in WP(C)
No.3103 of 2020 reads as under: -
"36. Lastly, I find merit in the plea taken on behalf of the
Petitioners that State cannot by recourse to Article 162 of
the Constitution of India, issue circular/executive order
which is in derogation with the statutory provisions. The
executive power of the State Government under Article 162
is coextensive with the legislative power of the State
legislature. But, in the absence of any law, the State or its
officers in the exercise of executive authority, cannot
infringe citizen's rights merely because legislature has
power to make law on the subject. As discussed above,
registration of an instrument entails legal consequence
affecting the legal rights of a citizen, and power of
cancellation of such document cannot be permitted by an
executive order, as it will be against the scheme of statutory
provisions as contained in the Registration Act, 1908.
Under the circumstance, this Court is of the view that
Registrar has no power to cancel registered sale deed and
the State Government cannot by an executive order, confer
such a power on the Registrar. For the reasons as
discussed above, impugned Circular vesting power of
cancellation on the Registrar is not sustainable in law and is
accordingly set aside, along with the cases instituted/
notices issued/orders passed under it along with the
consequential order for institution of F.I.R. Cancellation of
sale deeds otherwise also by the Registrar, which is under
challenge in the writ petitions is also set aside. Party
aggrieved by the said order will have remedy before the
Civil Court."
7. After going through the prayer, I find that this case is covered by
the aforesaid judgment passed by the Coordinate Bench of this Court, which
learned counsel for the State also cannot dispute.
8. This writ petition is, accordingly, allowed in terms of the order
dated 11.01.2024 passed in W.P.(C) No.3103 of 2020. Order dated
12.07.2020 passed in Misc. Case No.04 of 2020-21 including all consequential
orders are also hereby set aside.
Pending interlocutory applications, if any, stand disposed of.
(Ananda Sen, J.)
Kumar/Cp-02
