Bommareddy Gautham Reddy vs The State Of Telangana And 6 Others
2021 Latest Caselaw 4255 Tel

      THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                              AND
            HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

                  W.P.Nos.28643, 28776 and 28799 of 2021


COMMON ORDER: (per Hon'ble Sri Justice A.Rajasheker Reddy)


       Since the issue involved in all these writ petitions is one

and the same, they are being heard together and disposed of by

way of this Common Order.


2.     In all these writ petitions, the petitioners are one family

members i.e., husband, wife and son, as such, related to each

other.       Assailing the action of the 4th respondent-Inspector of

Police, Economic Offences Wing, Crime Investigation Department,

Hyderabad in issuing letter dated 18.01.2021 to the Sub-

registrars of different areas in both the States i.e., State of

Telangana and State of Andhra Pradesh, directing them not to

register the properties belonging to the petitioners, these writ

petitions have been filed.

3. Since all these writ petitions are challenging the action of

the 4th respondent-Inspector of Police, for the sake of

convenience, the facts, in brief, in W.P.No.28643 of 2021 are

taken into consideration, which are as follows:

The petitioner claims to be the owner and possessor of the

properties mentioned in the affidavit filed in support of the writ

petition, having purchased the same out of own funds and also

out of loans obtained from financial institutions. The petitioner

and one Mr.G.Madhusudhan Reddy, have incorporated a

company in the name and style of RMS Research Labs Private

Limited in the year 2002. However, due to differences, said

G.Madhusudhan Reddy lodged a complaint with the Station

House Officer, Jinnaram Police Station, Medak District, alleging

fraud against the petitioner. As a result of which, the Station

House Officer, Jinnaram registered FIR No.115/2015 on

25.06.2015 under Sections 420, 468 IPC. After filing of the

charge sheet, the same is pending as Calender Case No.533 of

2021 on the file of Additional Judicial Magistrate of First Class,

Sangareddy. Challenging the said FIR and charge sheet, the

petitioner along with wife and son, who are petitioners in

W.P.Nos.28776 and 28799 of 2021, filed W.P.No.25890 of 2021

on the file of this Court, which is pending adjudication.

4. Mr.G.Madhusudhan Reddy also filed a Company Petition

No.1/59/213/241/HBD/2017 complaining Oppression and Mis-

management on the part of the petitioner claiming various reliefs

on the file of National Company Law Tribunal, which is pending

adjudication.

5. While things stood thus, when the petitioner was in need of

funds for meeting his litigation expenses, he tried to raise funds

by mortgaging his properties, the sub-registrars-respondents 5-9

refused to entertain any document stating that there was a

direction from the 4th respondent by way of letters dated

18.01.2021, not to accept any document for registration. The

petitioner obtained said letters dated 18.01.2021 addressed to

the respondents 5-9 separately, under Right to Information Act.

The 4th respondent-Inspector of Police, being investigating officer

has no power or authority to effect attachment of immovable

property of an accused person but he can only seize the property

under Section 102 of the Code. It is further stated that the

respondents 5 to 9 have no authority to act upon the letters

issued by the 4th respondent and include his properties in the list

of prohibited properties under Section 22-A of the Registration

Act, 1908 (for short 'the Act of 1908'). The procedure envisaged

under Section 22-A of the Act of 1908 has not been followed for

placing the subject properties under the list of prohibited

properties, as such, same is illegal and arbitrary.

6. Heard learned counsel for the parties and perused the

record.

7. It is an admitted fact that a case in Cr.No.115/2015 under

Sections 420, 406, 477(A), 464, 467, 468, 471 read with Section

120(B) of Indian penal Code has been registered against the

petitioners. During the course of investigation, the 4th

respondent-Inspector of Police, being investigating officer, wrote

letters to the respondents-Sub-Registrars of different areas in the

State of Telangana and State of Andhra Pradesh, where the

properties of the petitioners are located, directing them not to

entertain any document, as the said case is under investigation.

8. A perusal of one of such letter addressed by the 4th

respondent to the Sub-Registrar, Patamata, Andhra Pradesh-5th

respondent, dated 18.01.2021 goes to show that the case against

the petitioners is under investigation and requested the

authorities to stop the further transactions until further

intimation, as the said properties are to be attached. It is not

known under which provision of law the 4th respondent

addressed such a letter to the 5th respondent requesting to stop

further transactions in respect of subject immovable property

and it is also not mentioned in the said letter under which

provision of law, he addressed such a letter, but learned

Government Pleader for Home stated that it is under Section 102

of Cr.P.C. That apart, on one hand, the letter addressed by the

4th respondent gives an impression that the offences alleged

against the petitioners have been proved and on the other hand,

it is stated that the case is under investigation and the properties

are to be attached, which is nothing but without application of

mind.

9. Police officer has a power to seize certain property under

Section 102 of the Code. For the sake of convenience, Section 102

of the Code is extracted hereunder.

"Section 102 in The Code Of Criminal Procedure, 1973

102. Power of police officer to seize certain property. (1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) 1 Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]"

10. No doubt, Section 102 of the Code provides assistance to

the Investigating Officer to collect and collate evidence to be

produced to prove the charge complained of and set up in the

charge sheet. However, said provision does not show that a

police officer can seize an immovable property. In fact, said

provision is silent about the seizure of the immovable property by

a police officer. Clause (3) of Section 102 makes it clear that

where the property seized is such that it cannot be, conveniently

transported to the Court or where there is difficulty in securing

proper accommodation for the custody of such property, or where

the continued retention of the property in police custody may not

be considered necessary for the purpose of investigation, he may

give custody thereof to any person on his executing a bond

undertaking to produce the property before the Court as and

when required and to give effect to the further orders of the Court

as to the disposal of the same, which means thereby, the

Investigating Officer cannot seize an immovable property. In the

absence of specific power or authority on the part of the 4th

respondent in issuing such letters to the respondent Nos.5-9,

with a direction not to entertain any documents for registration

in respect of the subject properties, the same are illegal, arbitrary

and violative of principles of natural justice.

11. That apart, the language used in Section 102 of the Code

also does not support the interpretation that the police officer has

the power to dispossess a person in occupation and take

possession of 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, we

would hesitate and not hold that this power should be inferred

and is implicit in the power to effect seizure.

12. Section 102 of the Code is not a general provision, which

enables and authorizes the police officer to seize immovable

property for being able to be produced in the Criminal Court

during the trial. This, however, would not bar or prohibit the

police officer from seizing documents/papers of title relating to

immovable property, as it is distinct and different from the

seizure of immovable property. Disputes and matters relating to

the physical and legal possession and title of the property must

be adjudicated upon by a Civil Court. (See Nevada Properties

Private Limited vs. State of Maharashtra & others (AIR 2019 SC

4554].

13. It is pertinent to mention here that the respondent Nos.5-9

are also under no obligation to accede to the request made by the

4th respondent in not entertaining any documents in respect of

the subject property, since it is not in accordance with the

principle/guidelines laid down in the full Bench judgment of this

Court in the case of Vinjamuri Rajagopala Chary and others v.

Principal Secretary, Revenue Department, Hyderabad & others

(2016) 2 ALD 236 (FB) and also against the procedure under

Section 22-A of the Act of 1908. In the said judgment, this Court

laid down the law/guidelines relating to the procedure to be

followed under Section 22-A of the Act stating that the

authorities mentioned in the guidelines, which are obliged to

prepare lists of properties covered by clauses (a) to (d), to be sent

to the registering authorities under the provisions of Registration

Act, shall clearly indicate the relevant clause under which each

property is classified and that the registering authorities would

be justified in refusing registration of documents in respect of the

properties covered under clauses (a) to (d) of sub-section (1) of

section 22-A provided the authorities contemplated under the

guidelines, have communicated the lists of properties prohibited

under these clauses and also that the concerned authorities,

which are obliged to furnish the lists of properties covered under

clauses (a) to (d) of sub-section (1) of section 22-A and the

concerned registering officers shall follow the guidelines

scrupulously. In view of the above, the authorities under the Act

of 1908 have to invariably follow the procedure laid down under

Section 22-A of the Act of 1908. Anything contrary to the rules

made there under, is null and void and the authorities under the

Act cannot place any such properties under the list of prohibited

properties under Section 22-A of the Act, which is not in

accordance with procedure envisaged under said Section. For the

sake of convenience, Section 22-A of the Registration Act is

extracted hereunder.

"22-A. Prohibition of Registration of certain documents.- (1)The following classes of documents shall be prohibited from registration, namely:

(a) documents relating to transfer of immoveable property, the alienation or transfer of which is prohibited under any statute of the State or Central Government;

(b) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immoveable property owned by the State or Central Government, executed by persons other than those statutorily empowered to do so;

(c) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease exceeding (ten) 10 years in respect of immoveable property, owned by Religious and Charitable Endowments falling under the purview of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 or by Wakfs falling under the Wakfs Act, 1995 executed by persons other than those statutorily empowered to do so;

(d) agricultural or urban lands declared as surplus under the Telangana Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 or the Urban Land (Ceiling and Regulation) Act, 1976;

(e) any document or class of documents pertaining to the properties the State Government may, by notification prohibit the registration in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions, those attached by Civil, Criminal, Revenue Courts and Direct and Indirect Tax Laws and others which are likely to adversely affect those interests. (2) For the purpose of clause (e) of sub-section (1), the State Government shall publish a notification after obtaining reasons for and full description of properties furnished by the District Collectors concerned in the manner as may be prescribed.

(3) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under clause (e) of sub-section (1).

(4) The State Government either suo motu or on an application by any person or for giving effect to the final orders of the High Court of Telangana or Supreme Court of India may proceed to de-notify, either in full or in part, the notification issued under sub-section (2). (5) Notwithstanding anything in any judgment, decree or order of a Court, Tribunal or any other authority to the contrary no notification declaring that the registration of any document or class of documents is opposed to public policy and the refusal of the same for registration under section 22- A of the principal Act during the period with effect from 1st April 1999 being the date of commencement of the Registration (Telangana Amendment) Act, 1999 up to the date of the commencement of the Registration (Telangana Amendment) Act, 2006 substituting new section 22-A in the principal Act, shall be deemed to be invalid and the refusal for registration of the said document deemed to have been validly refused for registration and accordingly

(a) no suit or other proceeding shall be maintained or continued in any Court against the State Government or any person or authority whatsoever for the purpose of registration and

(b) no Court shall enforce any decree or order directing to register."

Clauses (a) to (d) of sub-section (1) of Section 22-A are

concerned, it is clear that the concerned authority i.e.,

District Collectors in case of properties covered by Clauses

(a) and (b), Commissioner in case of Endowment and

Secretary in case of Wakf Properties covered by clause (c )

and the Special Officer and competent authority under the

Urban Land Ceiling Act and Regulations in respect of the

properties covered under clause (d) have suo motu power to

add to the list or delete form the list of any property and/or

to modify the list sent to the registering officer, having

jurisdiction over such property and also to the District

Registrar, Deputy Inspector General or to Commissioner and

Inspector General of Registration and Stamps.

14. Admittedly, the letters addressed by the 4th respondent

are not falling under any of the clauses mentioned under

Section 22-A of the Act of 1908, nor procedure envisaged

there under is followed before issuance of impugned letters,

as such, the respondent Nos.5 to 9 are under no obligation

to act upon such letter and deny transactions in respect of

the properties of the petitioners. The respondent Nos. 5 to 9

have acted illegally and included the properties of the

petitioners in the list of prohibited properties under Section

22-A of the Act. The 4th respondent-Inspector of Police is

not an 'authority' prescribed in Section 22-A of the Act of

1908 for preparation of list of properties to be communicated

to the registering authorities i.e., respondent Nos.5 to 9, for

incorporating the same in the list of prohibited properties

under Section 22-A of the Act.

In view of foregoing discussion and reasons, the

impugned letters dated 18.01.2021 addressed by the 4th

respondent to respondents-Sub-Registrars of different areas

of the State of Telangana and State of Andhra Pradesh, are

set aside. However, this order will not preclude the 4th

respondent from taking action against the petitioners/

properties belongs to the petitioners, in accordance with law.

Accordingly, all the Writ Petitions are allowed. There shall

be no order as to costs. As a sequel thereto, miscellaneous

applications, if any, pending in these writ petitions, shall stand

disposed of.

___________________________________ SATISH CHANDRA SHARMA, CJ

_____________________________ A.RAJASHEKER REDDY, J 13.12.2021 kvs

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

W.P.Nos.28643, 28776 and 28799 of 2021

.12.2021

kvs