Manash Kumar Pradhan vs State Of Odisha And Others
2021 Latest Caselaw 12692 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                              W.P.(C) No.25695 of 2021
                              (Through hybrid mode)

             Manash Kumar Pradhan                    ....          Petitioner

                                     Mr. Kishore Kumar Mishra, Advocate

                                          -versus-

             State of Odisha and others              ....    Opposite Parties
                                                     Mr. Y.S.P. Babu, AGA
                      CORAM: JUSTICE ARINDAM SINHA
                                       ORDER

10.12.2021 Order No.

3. 1. Mr. Mishra, learned advocate appears on behalf of petitioner and submits, impugned orders are refusal memo dated 28th October, 2020 passed by the Sub-Registrar and confirmation thereof by the Registrar's order dated 14th July, 2021.

2. His client is purchaser of raiyati land from his vendor. That his vendor is raiyat in respect of subject matter of the sale deed presented for registration is now beyond dispute, it having been settled by the Supreme Court on judgment dated 30th April, 1962 in Civil Appeal no.177 of 1960 (Kumar Bimal Chandra Sinha v. State of Orissa and others). He refers to said judgment, from which following is extracted and reproduced below:

"It is, thus, clear that the rent payable by the appellants as raiyats in respect of the disputed lands would form part of the assets which have to be

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included in the gross assets in determining compensation. But that does not mean that the interests of raiyats also have become vested in the State as a result of the notification under. 3, read with s. 5.

For the reasons aforesaid, it must be held that the appellant's raiyati interests in the lands and in the buildings standing on those lands have not been affected by the abolition of his interest as proprietors, and that the State authorities had-illegally taken possession of those. The appeal is accordingly allowed with costs here and below.

3. He submits, Additional District Magistrate -cum- District Registrar, Puri by impugned order dated 14th July, 2021 confirmed the refusal memo by saying, inter alia, as follows:

"More than 58 years have been passed to the order of the Hon'ble Supreme Court. It seems that the proforma respondents have not taken relevant steps to act upon the said order of the Hon'ble Apex Court in appropriate forum. And now in the face of record the suit land is found in the Govt. Khata with beaini dakhal by one Jotish Chandra Dutta against plot No.90 and 91 having status gharabari. It is also admitted by the appellant that the suit land is disputed between proforma respondents and Jotish Chandra Dutta and the matter is still pending for consideration before the competent authority.

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When the matter stands thus, the appellant presented the sell deed before the Sub-Registrar, Puri to register the suit land which is recorded in Govt. Khata. The ambit of the Registering Authority is limited. The Registering Officer has to verify the Record of Rights where such transferor has right, title and interest over the property so transferred before accepting any instrument to register. And as per the Registration (Odisha Amendment) 2013, Section 22A- (1)(a) "the Registering Officer shall refuse to register and instrument relating to transfer of immovable properties by way of sale, gift, mortgage, exchange or lease. The property belonging to the State Govt. of the Local Authority." Accordingly, the DSR has passed a reasonable order on dated 14.10.2020 by assigning the cause of non- registrability of the suit land and refusal of the same.

The Govt. in R&DM Department vide their letter No.RDM-Reg-CASEHC-0004-2014/ 34141/R&DM dated 17.11.2014 have been pleased to clarify the validity of the provisions contained in section 22-A of the Registration (Odisha Amendment) Act, 2013 after the judgment rendered by the Hon'ble High Court in W.P.(C) No.9997 of 2014 that:

"Section 22-A of the Amended Act inter alia provides that the registering officer shall not register any document presented to him for registration unless the transferor(s) produce the record of rights

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for the satisfaction of the registering officer that such transferor has right, title and interest over the property so transferred. The Amendment has been brought about with a view to check fraudulent transactions of landed property which are taking place in registration offices by some unscrupulous persons.

The Hon'ble High Court in its order indicated supra has categorically held that the provision contained in sub-section 2 of Section 22-A of the Act nowhere requires production of record of rights in respect of the land transferred in the name of vendor or transferor, it simply requires production of the records of rights for satisfaction of the registering officer that such transferor has right title and interest over the property so transferred. It is, therefore, crystal clear that if the record of rights does not stand in the name of the transferor, he has to produce documents to the effects that the title flows to him to the satisfaction of the registering officer that the transferor has right, title and interest over the case land."

In view of the above discussion, this Court finds that the District Sub-Registrar, Puri has not committed any wrong by rejecting the sale deed presented to him by the appellant and hence not inclined to interfere in the decision of the DSR. As a

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result, this appeal is disallowed being devoid of merit."

He submits, his client has approached the writ Court instead of filing suit. This is because on declaration by the Supreme Court of raiyati ownership of his vendor, the Registrar acted beyond his jurisdiction by confirming the refusal memo.

4. Mr. Babu, learned advocate, Additional Government Advocate appears on behalf of State and relies on the counter, paragraphs 4 to 7. His submission, petitioner, if aggrieved by order of the Registrar, statutory remedy requires filing of suit. Secondly, the Registrar was correct in relying upon section 22-A, the local amendment to Registration Act, 1908. The land stands recorded in government khata.

5. To deal with issue arising out of contention regarding power to refuse registration, provision in section 22-A must be seen. Authority to refuse to register certain documents are, inter alia, in respect of immovable property belonging to the State Government or the local authority. Other instances given under clause (a) in sub- section (1) of section 22-A are not relevant for the purpose. This issue can simply be answered on reliance of said judgment dated 30th April, 1962 passed by the Supreme Court of India (Five Judge Bench). State of Odisha was a party. It appears, State of Odisha has accepted the judgment that it could not have appropriated, as vested, the raiyati lands. The judgment was delivered on adversorial proceeding between predecessor-in-interest of vendor of petitioner and the State.

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6. So we come to sub-section (2) in section 22(A). Said sub- section is reproduced below:

"(2) Notwithstanding anything contained in this Act, the registering officer shall not register any document presented to him for registration unless the transferor produce the record of rights for the satisfaction of the registering Officer that such transferor has right title and interest over the Property so transferred."

This sub-section cannot be made applicable to vendor of petitioner because the Government, in appropriating the lands has caused entries in the record (government khata) and vendor of petitioner will not be able to show title or interest based on such record. In any event Mr. Mishra also relied on order dated 21st October, 2014 in W.P.(C) no.9997 of 2014 (Dhabal Prasad Pradhan v. State of Orissa and others), whereby a learned Single Judge of this Court had said, inter alia, as follows:

"On a plain reading of Sub-section (2) of Section 22- A of the Act, it is found that nowhere the provision requires production of Record-of-Rights in respect of the land transferred in the name of vendor or transferor. It simply requires production of the Record- of-Rights for satisfaction of the registering officer that such transferor has right, title and interest over the property so transferred. It is well settled that Record- of-Rights neither creates nor extinguishes title. The contention advanced by the learned counsel for the petitioner that interpretation of the provision under Sub-section (2) of Section 22-A of the Act assigned on

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behalf of the opposite parties is contrary to such settled principle of law is not unfounded. Moreover, it is rightly contended that such a narrow interpretation to the provision would be contrary to the provision under Section 8 of the Transfer of Property Act with regard to transfer of all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof forthwith. Title of the land passes upon valid execution of sale deed. Constitutional right conferred under Article 300-A of the Constitution of India has also to be given a meaningful interpretation to include right to deal with one's own property. In such circumstances, narrow interpretation of the provisions under Sub-Section (2) of Section 22-A of the Act by the opposite parties is unwarranted and not acceptable.

Accordingly, it is held that Sub-section(2) of Section 22-A of the Act does not require production by the transferor of Record-of-Rights in which land transferred is recorded in transferor's name. Any interpretation of the provision to the contrary is arbitrary, illegal and unconstitutional."

He submitted, following said order the Revenue and Disaster Management Department of the Government by circular dated 17th November, 2014 said, inter alia, as follows:

"2. The Hon'ble High Court in its order indicated supra has categorically held that the provision contained in sub-section 2 of Section 22-A of the Act

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nowhere requires production of record of rights in respect of the land transferred in the name of vendor or transferor. It simply requires production of the records of rights for satisfaction of the registering officer that such transferor has right title and interest over the property so transferred. It is, therefore, crystal clear that if the record of rights does not stand in the name of the transferor, he has to produce documents to the effect that the title flows to him to the satisfaction of the registering officer that the transferor has right, title and interest over the case land."

By aforesaid in last two preceding paragraphs and petitioner's reliance on said judgment dated 30th April, 1962 to urge title, it becomes clear that section 22-A cannot be a ground for refusing to register.

7. The next contention is regarding availability of alternative remedy by section 77 to go to the root, by questioning maintainability of the writ petition. It will be sufficient to set out sub-section (1) in section 77.

"77. Suit in case of Order of refusal by Registrar- (1) Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a

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decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree."

It appears, by the provision, Parliament gave option to person aggrieved by order of the Registrar, to file suit within thirty days after the making of refusal, in civil Court of original jurisdiction where the office, in which the document is sought to be registered is situate, for a decree directing the document to be registered in such office on presentation within thirty days after the passing of such decree. This option, if to be exercised by the person aggrieved, must be exercised within thirty days after the making of the order of refusal. It has to be seen as an option and as options go, they may or may not be exercised. The provision is more so an option because limitations for suits are provided by the Limitation Act,1963. The Act of 1908 does not save applicability of the provision from operation of the Limitation Act, 1963. As such, the writ petition maintainable.

8. It appears the Sub-Registrar and the Registrar have not disputed that subject matter of the sale deed are raiyati lands, contended to be so and upheld by the Supreme Court on said judgment. Mr. Mishra submits, the judgment is reported in AIR 1962 SC 1912.

9. The writ petition succeeds. Impugned orders are set aside and quashed. Concerned Sub-Registrar will register the document forthwith upon presentation, along with copy of this order.

(Arindam Sinha) Judge Sks