Madras High Court
N.Subramani vs The Deputy Superintendent Of ... on 24 November, 2021
W.P.No.260 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2021
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.260 of 2021
1. N.Subramani
2. S.Parimala ... Petitioners
-Vs-
1. The Deputy Superintendent of Police,
EOW-II,
Salem District.
2. The District Registrar,
Salem District.
3. The Sub-Registrar,
Yercod,
Salem District. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, directing the first respondent
to remove encumbrance entries in respect of bearing Document.No.948/2012
in Survey.No.56/18B1A, 56/2B6 of Petitioners property and consequently to
direct the third Respondent to register the documents on presentation for
registration, relating to the land comprised in Survey Nos.56/18B1A (Survey
No.56/31A- Present sub division) and Survey No.56/18B1A (Survey
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Page 1 of 9
W.P.No.260 of 2021
No.56/31B- present sub division) of Sengadu Village, Yercaud Taluk, Salem
District. (Prayer amended vide order dated 05.10.2021 made in
W.M.P.No.22416 of 2021 in W.P.No.260 of 2021).
For Petitioners : Mr.G.Murugendran
For R1 to R3 : Mr.Yogesh Kannadasan
Special Government Pleader
ORDER
This Writ Petition has been filed for the issuance of Writ of
Mandamus, directing the first respondent to remove encumbrance entries in
respect of bearing Document.No.948 of 2012 in Survey.No.56/18B1A, 56/2B6
of Petitioners property and consequently to direct the third respondent to
register the documents on presentation for registration, relating to the land
comprised in Survey Nos.56/18B1A (Survey No.56/31A- Present sub division)
and Survey No.56/18B1A (Survey No.56/31B-present sub division) of
Sengadu Village, Yercaud Taluk, Salem District.
2. Heard Mr.G.Murugendran, learned counsel appearing for the
petitioners and Mr.Yogesh Kannadasan, learned Special Government Pleader
appearing for the respondents 1 to 3.
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W.P.No.260 of 2021
3. The petitioner purchased the property comprised in Survey
No.56/2B6 to an extent of of 37.80 acres and Flats No.49 and 50 in Survey
No.56/18B1A, 56/2B6, by the registered sale deed, dated 14.09.2012
registered vide Document Nos. 947 of 2012 and 948 of 2012, was purchased
by the petitioners from N.Geethalakshmi, wife of K.Govindaraj. The
petitioners had purchased the said property for verification of encumbrance
certificate from the year 1987 to 2012. Thereafter, due to family urgent need
the petitioners decided to sell the property to one Murugesan and accordingly
executed sale deed, dated 04.07.2019 in favour of the said Murugesan and
presented for registration with requisite stamp duty and registration charges
before the third respondent. However, the third respondent refused to receive
the same for the reason that he had shown encumbrance certificate and there is
an endorsement on the request made by the first respondent herein. On the
strength of the FIR registered in Crime No.11 of 2012 on the file of the first
respondent, the said endorsement was made and as such the third respondent
refused the same for registration.
4. The learned counsel for the petitioner would submit that the
petitioner is not an accused in the said Crime No.11 of 2012 and also his
vendor is not an accused. His vendor's husband is an accused in Crime No.11
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W.P.No.260 of 2021
of 2012 on the file of the first respondent. Even assuming that the said
property was purchased from the crime proceeds, the first respondent has no
power or jurisdiction to attach the property.
5. In fact, the mere pendency of the FIR is not an impediment to the
third respondent to register any document in respect of the said property.
Therefore, the first respondent has limited power under Section 102 Criminal
procedure code, to seize the immovable property and the Government only has
the power to attach the immovable property. In this regard, he relied upon the
judgment of the Hon'ble Supreme Court of India held in Crime Appeal
No.1481 of 2019 along with other Crime Appeals, dated 24.09.2019. The
Hon'ble Supreme Court of India held that the Section 102 Criminal Procedure
Code, postulates seizure of the property. Immovable property cannot, in its
strict sense, be seized, though documents of title etc., relating to immovable
property can be seized, taken into custody and produced. Language of Section
102 of the Code does not support the interpretation that the Police Officer has
the power to dispossess a person in occupation and take possession of an
immovable property in order to seize it. In the absence of the Legislature
conferring this express or implied power under Section 102 of the Code to the
Police Officer, that his power should be inferred and is implicit in the power to
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W.P.No.260 of 2021
effect seizure. Thus, it will no appropriate to hold that Section 102 of the Code
empowers a Police Officer to seize immovable property, land, plots, residential
houses, streets or similar properties.
6. If at all, the first respondent is desirous of safeguarding the
interest of the depositors, he should have immediately taken steps to send a
report to the Government for initiating action under Section 3 of the Criminal
Law Amendment Ordinance and not through such a letter issued to the third
respondent. Further, it is always open to the first respondent to call for the
information from the third respondent about the property holdings of an
accused. He can also ask the third respondent to inform him, if any transaction
concerning the properties of the accused is registered. He cannot prohibit the
third respondent from registering a document.
7. Admittedly, neither the petitioner nor his vendor is an accused in
Crime No.11 of 2012 on the file of the first respondent. Even assuming that
the subject property was purchased from the Crime proceeds committed by
petitioner's vendor's husband, the first respondent has no power or jurisdiction
to attach any immovable property.
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W.P.No.260 of 2021
8. A perusal of the counter revealed that after registering FIR in
Crime No. 11 of 2012, the first respondent advised the third respondent not to
permit any encumbrance with regard to the subject property on the basis of the
Crime No.11 of 2012. Therefore, on the said request, the third respondent
made an endorsement in the records.
9. As stated supra, the first respondent has no power or jurisdiction
to restrain the third respondent from registering any deed of conveyance in
respect of the subject property, since the first respondent has no power to seize
or attach the subject property.
10. The subject property was originally purchased by the petitioner's
vendor on 03.08.2012 by the registered sale deeds vide Document Nos.802 and
803 of 2012. Thereafter, she sold out the property in favour of the petitioners
by the registered sale deeds, dated 14.09.2012 registered vide Document Nos.
947 and 948 of 2012. In turn, the petitioner intended to sell the property in
favour of one Murugesan and presented the sale deeds for registration.
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W.P.No.260 of 2021
11. That apart, there is no restrained order as against the third
respondent from registering any deed of conveyance in respect of the subject
property. As such, there absolutely no impediment for the third respondent to
register any deed of conveyance in respect of the subject property, when the
first respondent has no power to attach or seize the immovable property and
the request made by the first respondent has no impediment for the third
respondent from registering the documents.
12. Considering the above, the third respondent is directed to remove
the endorsement made in the encumbrance in respect of the subject property
forthwith. The petitioner and the purchasers of the subject property are
directed to present the sale deed for registration and on receipt of the same, the
third respondent is directed to register the same if otherwise in order. It is also
made clear that, similar registration of document in favour of third parties, do
not have any impediment for the third respondent to proceed further against the
subject property in pursuant to the Crime No.11 of 2012, in accordance with
law.
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W.P.No.260 of 2021
13. With the above directions, this writ petition stands allowed. There
shall be no order as to costs.
24.11.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mn
To
1. The Deputy Superintendent of Police,
EOW-II,
Salem District.
2. The District Registrar,
Salem District.
3. The Sub-Registrar,
Yercod,
Salem District.
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W.P.No.260 of 2021
G.K.ILANTHIRAIYAN, J.
mn
W.P.No.260 of 2021
24.11.2021
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