Telangana High Court

Smt P.Anitha And Another vs The State Of Telangana And 2 Others on 23 February, 2021

Bench: T.Amarnath Goud

 IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
                              ****
                       W.P.No.16272 OF 2019

Between:
Smt.P.Anitha & another
                                                        ....Petitioners
                               And
The State of Telangana,
Rep.by its Principal Secretary,
Revenue Department,
Secretariate, Hyderabad & others

                                                  ....Respondents
JUDGMENT PRONOUNCED ON: 23.02.2021


        THE HON'BLE SRI JUSTICE T.AMARNATH GOUD


1.   Whether Reporters of Local newspapers
     may be allowed to see the Judgments?           : Yes


2.   Whether the copies of judgment may be
     Marked to Law Reporters/Journals?              :     Yes


3.   Whether His Lordship wishes to
     see the fair copy of the Judgment?             :     No




                                          _________________________
                                           T.AMARNATH GOUD, J
                                    2




              * THE HON'BLE SRI T.AMARNATH GOUD


                        + W.P.No.16272 OF 2019

                   % DATED      23rd February, 2021



# Smt.P.Anitha & another
                                                      ....Petitioners


                 Vs.

$ The State of Telangana,
  Rep.by its Principal Secretary,
  Revenue Department,
  Secretariate, Hyderabad & others
                                                          ....Respondents
<Gist:



>Head Note:



! Counsel for the Petitioners          : Parsa Ananth Nageswar Rao

^Counsel for the Respondents           : GP for Revenue


                       ? CASES REFERRED:
                                    3




      THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

                WRIT PETITION NO.16272 OF 2019

ORDER:

This writ petition is filed seeking to declare the impugned

Refusal Order No.92/2019, dated 24.06.2019 issued by

respondent No.3 in refusing to register document

No.P/929/2019, as illegal, arbitrary, violative of Articles 14 and

21 of the Constitution of India.

2. It is the case of the petitioners that petitioner No.1 is the

absolute owner and possessor of open land bearing plot No.231,

admeasuring 300 Sq.yards, equivalent to 250.8 Sq.mtrs in

Sy.Nos.218/11, 218/12 and 218/13, within the approved layout

of Kanti Vanam, situated at Kondapur village, Serilingampally

Mandal and Municipality, Ranga Reddy District, having

purchased the same under a sale deed dated 15.11.1997 from

its original owners Smt.Lali Bhai and others. The said sale deed

was validated vide endorsement U/s.42 of Act II of 1898 vide

No.E/121/7263 of 1999, dated 23.12.1999 by paying deficit

stamp duty.

It is further case of the petitioner that petitioner No.1

intended to gift the said plot in favour of petitioner No.2, who is

her son. Accordingly, a gift settlement deed was prepared and

presented before the 2nd respondent. However, the said

document was not received and processed by him for the

reasons best known to him. The 2nd respondent being the

statutory authority under the Registration Act, is bound to

receive and process the document presented before him and if

the document is in accordance with law, has to register the

same, otherwise, he shall communicate the reasons for refusal of

registration. However, the 2nd respondent did not receive the

document itself for registration. Upon which, the petitioners

filed W.P.No.9000 of 2019 before this Court and the said writ

petition was disposed of by order dated 04.06.2019, permitting

the petitioners to present their documents for registration before

the Sub-Registrar concerned and further directed that in the

event of the documents are other wise found to be in order and

in compliance with the requirements of the Act of 1908 and the

Indian Stamp Act, 1899, the Sub-Registrar concerned shall

complete the registration formalities and release the documents.

Pursuant to the orders of this Court, the petitioners have

presented the document before the 3rd respondent and the 3rd

respondent assigned document No.P929/2019.. However, the

3rd respondent on erroneous view of law and facts refused the

document for registration on the ground that the document is

based on the validated document as a link document and

validated document cannot be taken as a link document vide

Ends.No.CIG Mail/Ar/2008, dated 02.01.2008.

It is further case of the petitioners that the reasons

mentioned for refusal is contrary to law. The 3rd respondent has

not refused the document for want of jurisdiction or on denial of

execution. The reasons mentioned in the impugned order is

unknown to law and are passed without jurisdiction. Though

the 3rd respondent relied upon the circular instruction, but such

instruction cannot go beyond the provisions of the Act. Further

it is not the bounden duty of the 3rd respondent to look for the

link or title of the property mentioned in the document put for

registration. The document was refused not on the ground that

there is deficit stamp duty, or not in accordance with

Registration Act or the property is listed in prohibitory list. The

document was validated by collecting the deficit stamp duty by

the registering authorities, which is admissible in evidence. The

3rd respondent exceeded his jurisdiction in refusing the

document for registration. Though an appeal is provided to

District Registrar, but on the face of the impugned proceedings

the reasons recorded by the 3rd respondent are illegal and out of

jurisdiction and as such, the present writ petition is filed.

3. The petitioners filed I.A.No.1 of 2019 along with the writ

petition to suspend the impugned Refusal Order No.92/2019,

dated 24.06.2019, issued by the 3rd respondent and this Court

while admitting the writ petition passed interim orders dated

06.08.2019 as follows:-

"There shall be interim suspension as prayed for".

4. The respondents filed a counter affidavit, denying the

allegations in the writ petition and stated that respondent No.3

has passed refusal order No.92 of 2019 dated 24.06.2019 vide

pending document No.P/929/2019 as the petitioners herein

have not satisfied the requirements of Stamp Act and

Registration Act and Rules made thereunder. The petitioners if

aggrieved by the orders of 3rd respondent is having right to file

an appeal under Section 72 of the Registration Act. The

petitioners have submitted the document without enclosing any

authenticated documents viz., approved layout or the conversion

permission. The first petitioners claimed to have purchased the

property through a simple sale deed, subsequently validated the

same under Section 42 of the Indian Stamp Act, 1899 and

submitted the document for registration. The petitioners while

claiming the land in SyNos.218/11, 218/12 and 218/13,

forming part of three sub-division survey numbers, have not

enclosed any of the link documents to satisfy the registering

authority that the link document relied by the petitioners was

executed by the person duly authorized by law to transfer the

property and since validated document does not confer

transferable right and basing on the validated documents,

claiming title over the property, the 3rd respondent refused the

document for registration vide refusal order No.92 of 2019. The

petitioners instead of filing the approved layout of sub-division of

Sy.Nos218/11, 218/12 and 218/13 and link registered

documents of their vendors, submitted the document for

registration and the 3rd respondent having not satisfied that the

executants appearing are the persons entitle to transfer the

property, has passed refusal orders. The petitioners, instead of

availing a statutory appeal under Section 72 of the Act have

straight away filed the present writ petition and inviting this

Court to decide the disputed questions relating to nature of the

document, authenticity of the validated document dated

28.12.1999 and as such, the writ petition is not maintainable

and therefore, the writ petition is liable to be dismissed.

5. Heard both sides.

6. For better appreciation of the facts, the relevant provisions

of Stamps and Registration Act, 1899 are extracted hereunder:-

Section 42 of The Indian Stamp Act, 1899:-

42. Endorsement of instruments in which duty has been paid under sections 35, 40 or 41.--

(1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them.

(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:

Provided that--

(a) no instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;

(b) nothing in this section shall affect the Code of Civil Procedure, 1882 (14 of 1882), section 144 clause 3.

Section 70 of The Indian Stamp Act, 1899

70. Institution and conduct of prosecutions.--

(1) No prosecution in respect of any offence punishable under this Act or any Act hereby repealed, shall be instituted without the sanction of the Collector or such other officer generally, or the Collector specially, authorizes in that behalf.

(2) The Chief Controlling Revenue-Authority, or any officer generally or specially authorized by it in this behalf, may stay any such prosecution or compound any such offence.

(3) The amount of any such composition shall be recoverable in the manner provided by section 48.

Section 17 of The Registration Act, 1908:

17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]

Provided that the State Government may, by order published in the 26 Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]

(2) Nothing in clauses (b) and (c) of sub-section (l) applies to--

(i)     any composition deed; or

(ii)    any instrument relating to shares in a joint stock Company,

notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the

Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court 29 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by Government; or

(viii) any instrument of partition made by a Revenue-Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.

Section 72 of The Registration Act, 1908:

72. Appeal to Registrar from orders of Sub-Registrar refusing registration on ground other than denial of execution.--

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in

sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

7. The 3rd respondent, Joint Sub-Registrar filed her counter

affidavit and in the said counter, except denying the contentions

for the sake of formality, she has not categorically made out any

case and has not put any strength in her counter with regard to

the approved lay out of Kanti Vanam and has not substantiated

her defence to support the impugned refusal order dated

24.06.2019. The third respondent has not relied upon the

endorsement dated 2.1.2008, which is stated in the intimation of

refusal. The respondents cannot blow hot and cold in one hand.

They collected layout charges and the document of the vendor

has been validated and the said fact is not denied. Once a

document is validated, it attains the legal force of law and it