Jai Maa Santoshi Infrastructure ... vs State Of Odisha & Others
2023 Latest Caselaw 11668 Ori

         THE HIGH COURT OF ORISSA AT CUTTACK

                             WA No.1014 of 2023

Jai Maa Santoshi Infrastructure Pvt. Ltd.
Company                         .......                       Appellant

                           -Versus-
State of Odisha & others    .......              Respondents
______________________________________________________________

     For the Appellant : Ms. Suravi Mohanty, Advocate

  For the Respondents: Mr. Debakanta Mohanty, Addl. Govt. Advocate
______________________________________________________________
      CORAM:

        HONOURABLE THE CHIEF JUSTICE
        HONOURABLE MISS JUSTICE SAVITRI RATHO

                             JUDGMENT

th 26 September, 2023

S. Talapatra, CJ. By means of this intra-court appeal, the order dated

01.05.2023 passed in W.P.(C) No.10637 of 2023 by the learned Single

Judge has been challenged. By the said order dated 01.05.2023, the writ

petition filed by the appellant has been dismissed.

2. The appellant filed the writ petition challenging the action of the

District Sub-Registrar (DSR), Puri who had allowed registration of a

deed of cancellation of irrevocable Power of Attorney without valid

consent of the appellant, inasmuch as by the said irrevocable Power of

Attorney, certain rights of perennial nature has been claimed to have

been acquired by the appellant. The questioned deed of cancellation is at

Annexure-1 to the writ petition. It has been recited in the said deed of

cancellation that the appellant acted against the interest of the principal

(the owner of the land) in order to cause harm to his interest. As the

property owner was apprehensive of huge financial loss, he, as a

measure of security of the property, cancelled the deed Irrevocable

Power of Attorney. Creation of the said Power of Attorney was in terms

of the agreement for development of the land and the appellant,

according to the said agreement dated 20th July, 2018, had got the

authority to develop the said land on several conditions including

sharing of the constructed apartments. That apart, the appellant received

advance from the prospective buyers. The estimated cost of the

construction has been tentatively quantified at Rs.17,00,000,00/-. The

said amount was supposed to be invested by the appellant. Regarding

the identity of the land, there is no dispute. The appellant has asserted

that with ill motive to cause damage to the appellant, the owner (the

respondent No.4) cancelled the deed of irrevocable Power of Attorney.

3. Learned Single Judge by the impugned order dated 01.05.2023

has observed that when the process of registration is under challenge,

WA No.1014 of 2023

the Court has jurisdiction to entertain the writ petition under Article 226

of the Constitution of India as held in Asset Reconstruction Company

(India) Limited vs. S.P. Velayutham and others : (2022) 8 SCC 210.

In Asset Reconstruction Company (India) Limited (supra), it has

been observed that where a party questions only the failure of the

Registering Authority to perform his statutory duties in the course of the

third step, it cannot be said that the jurisdiction of the High Court under

Article 226 stands completely ousted. The writ jurisdiction of the High

Court can only be invoked to ensure that the statutory authorities

perform their duties within the bounds of law. It must be noted that

when a High Court, in exercise of its jurisdiction under Article 226

finds that there was utter failure on the part of the Registering Authority

to stick to the mandate of law, the Court merely cancels the act of

registration, but does not declare the very execution of the documents to

be null and void. A declaration that a document is null and void is

exclusively within the domain of the civil court, but it does not mean

that the High Court cannot examine the question whether or not the

Registering Authority performed his statutory duties in the manner as

prescribed by law. The Court merely cancels the act of registration, but

does not declare the very execution of the documents to be null and

WA No.1014 of 2023

void. It has been observed by the apex court in Asset Reconstruction

Company (India) Limited (supra) that it is well settled that if

something is required by law to be done in a particular manner, it shall

be done only in that manner and not otherwise. Examining whether the

Registering Authority did something in the manner required by law or

otherwise, is certainly within the jurisdiction of the High Court under

Article 226. However, it is needless to say that the High Courts may

refuse to exercise jurisdiction in cases where the violations of procedure

on the part of the Registering Authority are not gross or the violations

do not shock the conscience of the Court. Lack of jurisdiction is

completely different from refusal to exercise the jurisdiction.

4. Learned Single Judge has observed that the writ petitioner (the

writ appellant herein) has already filed a suit for cancellation of deed of

general Power of Attorney in the civil court and the suit is pending

adjudication. The civil court has jurisdiction to scrutinize whether the

Registering Authority has performed a statutory duty in the manner as

prescribed under law or not in the event, such an issue is raised. Learned

Single Judge has observed thereafter as follows:

"Thus, a parallel proceeding in the garb of assailing the manner in which the Registering Authority acted in registering such a document should not be entertained under Article 226 of the Constitution. Further, the registration was made on 31st December, WA No.1014 of 2023

2020 and in the meantime, more than two years have elapsed. Learned counsel for the petitioner, however, submits that the suit will take a long time in declaring the Registered Deed of cancellation of General Power of Attorney as null and void. That cannot be a ground to entertain an application under the writ jurisdiction of this Court."

Having observed thus, the writ petition has been dismissed.

5. Ms. Suravi Mohanty, learned counsel appearing for the appellant

has at the outset stated that the learned Single Judge has misconceived

the law and refused to exercise the jurisdiction. In this regard, she has

pressed into service the following passages from Asset Reconstruction

Company (India) Limited vs. S.P. Velayutham & others:

"49. Actually, the registration of a document comprises of three essential steps among others. They are, (i) execution of the document, by the executant signing or affixing his left hand thumb impression; (ii) presenting the document for registration and admitting to the Registering Authority the execution of such document; and (iii) the act of registration of the document.

50. In cases where a suit for title is filed, with or without the relief of declaration that the registered document is null and void, what gets challenged, is a combination of all the aforesaid three steps in the process of execution and registration. The first of the aforesaid three steps may be challenged in a suit for declaration that the registered document is null and void, either on the ground that the executants did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executants or on the ground that the signature of the executants was obtained by fraud, coercion etc. The second step of presentation of the document and admitting the execution of the same, may also be challenged on the very same grounds hereinabove stated. Such objections to the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document. A challenge to the very execution of a document, is a challenge to its very DNA and any defect or illegality on the execution, is congenital in nature. Therefore, such a challenge, by its very nature, has to be made only before the civil court and certainly not before the writ court.

WA No.1014 of 2023

51. The third step namely the act of registration, is something that the Registering Authority is called upon to do statutorily. While the executant of the document and the person claiming under the document (claimant) are the only actors involved in the first two steps, the Registering Officer is the actor in the third step. Apart from the third step which is wholly in the domain of the Registering Authority, he may also have role to play in the second step when a document is presented for registration and the execution thereof is admitted. The role that is assigned to the Registrar in the second step is that of verification of the identity of the person presenting the document for registration.

52. Thus, the first two steps in the process of registration are substantial in nature, with the parties to the document playing the role of the lead actors and the Registering Authority playing a guest role in the second step. The third step is procedural in nature where the Registering Authority is the lead actor.

53. In suits for declaration of title and/or suits for declaration that a registered document is null and void, all the aforesaid three steps which comprise the entire process of execution and registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted. This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law. It must be noted that when a High Court, in exercise of its jurisdiction under Article 226 finds that there was utter failure on the part of the Registering Authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void. A declaration that a document is null and void, is exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the Registering Authority performed his statutory duties in the manner prescribed by law. It is well settled that if something is required by law to be done in a particular manner, it shall be done only in that manner and not otherwise. Examining whether the Registering Authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in cases where the violations of procedure on the part WA No.1014 of 2023

of the Registering Authority are not gross or the violations do not shock the conscience of the Court. Lack of jurisdiction is completely different from a refusal to exercise jurisdiction."

6. It is evident that the apex court has observed that registration of a

document comprises of three essential steps among others viz. (i)

execution of the document by the executant signing or affixing his left

hand thumb impression; (ii) presenting the document for registration and

admitting to the Registering Authority the execution of such document;

and (iii) the act of registration of the document.

7. It has been further observed in Asset Reconstruction Company

(India) Limited (supra) that a challenge to the very execution of the

document DNA and any defect or illegality in the execution is

congenital in nature and as such challenge has to be made only before

the civil court and not before the writ Court. The third step is the act of

registration is something that the Registering Authority is called upon to

do statutorily. By the executant of the document and the persons

claiming under the document (the claimant) are involved in first two

steps. The Registering Officer is the actor in the third step. Apart from

the third step, the other domain of the Registering Authority is that he

may also have a role to play in the second step when a document is

presented for registration and the execution thereof is admitted. The role

that is assigned to the Registrar in the second step is verification of the WA No.1014 of 2023

identity of the person presenting the document for registration. It has

been finally observed in Asset Reconstruction Company (India)

Limited (supra) that if a party questions the very execution of the

document on the right and title of a person to execute a document and

present it for registration, his remedy will be to go to the civil court. But

where a party questions only failure of the Registering Authority to

perform his statutory duty in course of the third step, it cannot be said

that the jurisdiction of the High Court under Article-226 stands

completely ousted.

8. It has been reiterated that the declaration of a document as null

and void falls exclusively within the domain of the civil court, but it

does not mean that the High Court cannot question whether or not

Registering Authority performed his statutory duties in the manner as

prescribed by law. As already reproduced that the apex court has also

observed that where the violation of the procedure on the part of the

Registering Authority is not gross or the violation does not shock the

conscience of the Court, the High Court should not embark on invoking

its plenary jurisdiction. Lack of jurisdiction is completely different from

refusal to exercise jurisdiction. Therefore, the jurisdiction of the High

Courts under Article 226 of the Constitution of India in the matter of

WA No.1014 of 2023

registration is very narrow and it is limited to the extent whether the

Registering Authority has failed to perform his statutory duties or not.

Any question relating to the title or execution of the document itself can

only be adjudicated by the civil court.

9. In the present case, admittedly the appellant has filed a civil suit

seeking cancellation of the deed of cancellation of the irrevocable

Power of Attorney etc. In these perspectives, the writ petitioner (the

appellant herein) has averred in the writ petition as follows:

"....... It is clearly explained that the first and second of the aforesaid three steps are substantial and they strike at the very root of creation of the document. A challenge to the very execution of a document is a challenge to its very DNA and any defect or illegality on the execution is congenital in nature. Therefore, such a challenge by its very nature has to be made only before the civil court and certainly not before the writ Court and in the present case in hand, the first and second steps are under challenge in the Civil Court, Puri. This aspect has not been taken into consideration by the Hon'ble Single Judge while passing the impugned order." (Para-30.v)

10. According to Ms. Mohanty, learned counsel, the challenge

confined to the third step confers jurisdiction to this Court to exercise its

power under Article 226 of the Constitution of India. The third step is

limited to the question of failure of the Registering Authority in

performing his statutory duties in the third step. It cannot therefore be

said that the jurisdiction of the High Court under Article 226 stands

completely ousted. Accordingly, Ms. Mohanty, learned counsel has

WA No.1014 of 2023

emphatically submitted that the Registering Authority has a duty to have

a glance into the document to see whether the document can be

unilaterally cancelled by a deed of cancellation or not. In the present

case, it is an admitted fact that in terms of the agreement for

development of land, the said irrevocable Power of Attorney was

executed to extend some irrevocable authorities on consideration of

money, as the owner had agreed with the builder (the appellant herein)

to give license or an express permission to enter upon the said property

and to have the absolute authority and competence to commence, carry

on and complete the development of the land and construction of

building. Even in the questioned Power of Attorney, the reference to the

said development agreement has been made and the principal clauses of

the said development agreement has been reproduced in the said deed of

irrevocable General Power of Attorney. In the deed of General

irrevocable Power of Attorney, it has been provided as follows:

"20. This deed of General Power of Attorney cannot be revocable by the Executant in respect of the schedule property at any point of time and it is agreed by the above principal by virtue of this general power of attorney that the acts, deeds and things committed or executed or done by the attorney shall not be subject to challenge by me or my legal heirs, successors assignees and representatives in interest except against the interest of the principal."

WA No.1014 of 2023

11. In the deed of cancellation, the property owner who has been

referred to as the principal in Clause-20, as reproduced, has cancelled

the irrevocable Power of Attorney on the ground that the appellant has

been acting against his interest. The issue therefore is that whether the

appellant had been acting against the interest of the principal (the land

owner or not).

12. Mr. Debakanta Mohanty, learned Addl. Government Advocate

appearing for the State has submitted that the observation made by the

learned Single Judge for dismissing the writ petition do not suffer from

any infirmity inasmuch as from a reading of the deed of cancellation of

the irrevocable Power of Attorney, it surfaces that as the appellant was

acting against the "interest of the principal", he has to cancel the said

Power of Attorney. The Registering Authority is under no obligation to

enquire into this matter and as such, there is no failure on behalf of the

Registering Authority in the third step. Hence, the decision of the apex

court in Asset Reconstruction Company (India) Limited (supra) does

not support the contention of the appellant. In response to the

submission made by Ms. Mohanty, learned counsel for the appellant, he

has stated that the appellant has alleged by filing an additional affidavit

in the writ proceeding that the integrity of the District Sub-Registrar is

WA No.1014 of 2023

highly questionable and as such, the said illegal act might be linked to

illegal purposes.

13. The solitary question that emerges for our decision is as to

whether the District Sub-Registrar has failed to perform his statutory

duty while registering the questioned deed of cancellation of irrevocable

general Power of Attorney as executed and presented by the respondent

No.4, the property owner. In this regard, we may refer to the duties of

the registering authority as laid down in Section-33 of the Registration

Act, which deals with Power-of-attorney recognizable for purposes of

Section 32 of the Registration Act.

Sub-section (2) of Section-33 provides that in the case of every

such person, the Registrar or the Sub-Registrar or the Magistrate, as the

case may be, if satisfied that the power-of-attorney has been voluntarily

executed by the person purporting to be the principal, may attest the

same without requiring his personal attendance at the office or Court

aforesaid.

Sub-section (3) of Section-33 deals with the evidence as to the

voluntary nature of the execution. It postulates that to obtain evidence as

to the voluntary nature of the execution, the Registrar or the Sub-

Registrar or the Magistrate may either himself go to the house of the

WA No.1014 of 2023

person purporting to be the principal, or to the jail in which he is

confined, and examine him, or issue a commission for his examination.

Sub-section-4 is on the different score. It provides that any Power

of Attorney mentioned in the said section may be proved by production

of it, without further proof when purports on the face of it to have been

executed before the authority by the person or the Court in that behalf.

We have considered Section-34 of the Registration Act, 1908 for a

holistic view. Section-34 provides for enquiry before registration by the

registering authority. The registering authority after ascertaining the

identity of the person executing or presenting the document or the

representative assign and agents appearing before the Registering

Officer or in the case of urgent necessity when such persons do not

appear before the Sub-Registrar or the Registrar, in cases where the

delay in appearing does not exceed four months, may direct that on

payment of a fine not exceeding ten times the amount of the proper

registration fee, in addition to the fee, if any, payable under section 25,

the document may be registered.

Sub-section (3) of Section-34 limits the area of enquiry as

follows:

The Registering Officer shall thereupon-

WA No.1014 of 2023

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as representative, assign or agent, satisfy himself of the right of such person so to appear.

14. It may be noted that in exercise of the power conferred by Section

69 of the Registration Act, 1908, the State Government has made the

rules called The Orissa Registration Rules, 1988. In the said rules, the

procedure has been elaborately provided. By Section-33 of the

Registration Act, 1908, recognition of powers of Attorney,

authentication of the Power of Attorney etc. has been made. Rules-59 is

a general provision for revocation of the Power of Attorney. It clearly

stipulates that (a) a principal who desires to revoke an authenticated

power may do so by filing an application together with the power, if

available, before the Registering Officer (b) It has been directed further

that- a register in Form No.18-A Appendix-I should be maintained in

each registration office and in it shall be entered all revocation of

power-of-attorney as aforesaid or intimated by the other Registering

Officers.

WA No.1014 of 2023

15. From the above discussion on the statutory obligation of the

Registering Authority, it appears that the Registering Authority does not

have any power to inquire into whether the interest of the principal has

been affected by the attorney or not. This can only be inquired and

decided by a civil court of the competent jurisdiction and hence, the

case as projected by the appellant is not a case of the third step under

Asset Reconstruction Company (India) Limited (supra).

16. Therefore, the learned Single Judge has rightly dismissed the writ

petition holding that the issue that has been raised in the writ petition is

not amenable to the writ jurisdiction.

17. In the result, this appeal stands dismissed.

18. For avoiding any sort of confusion, it is observed that the

appellant will be at liberty to plead and prove the fact as placed in the

writ petition. Any observation either in the writ petition or in this writ

appeal shall not influence the decision of the civil court where the suit

instituted by the petitioner is pending for decision.

19. There shall be no order as to cost.

                                                                                   (S. Talapatra)
                                                                                    Chief Justice
                           Savitri Ratho, J.                  I agree

Signature Not Verified                                                             (Savitri Ratho)
Digitally Signed                                                                       Judge
Signed by: SUBHASIS MOHANTY
Designation: P.A. I/C Secretary
Reason: Authentication          WA No.1014 of 2023

Date: 26-Sep-2023 17:53:06