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Judgment
Biswanath Somadder, ACJ. : By consent of the parties, the appeal is treated as on the day's list and taken up for consideration along with the application for stay.
The instant appeal arises out of a judgment and order dated 29th August, 2018 passed by a learned Single Judge in W.P. No. 409 of 2016 (Cygnus Developers (India) Pvt. Ltd. vs. Inspector General of Registration & Commissioner of Stamp Revenue, West Bengal & Ors.). By the impugned judgment and order, the learned Single Judge directed the matter to be referred to the Director, Serious Fraud Investigation Office (SFIO) having his office at 2nd MSO Building, 4th Floor, Nizam Palace, AJC Bose Road, Kolkata-700020 for his report to be presented before the Court on the next date. The instant appeal has been preferred by the writ petitioner namely, Cygnus Developers (India) Private Limited.
The issue before the learned Single Judge appears to centre around a conveyance deed which the appellant/writ petitioner claims to have been registered with the Additional Registrar of Assurances-I, Kolkata in Book No. I, Volume No. 20, Pages 7261 to 7316 bearing Reference No. 09065 of the year 2008. Before the learned Single Judge it was contended on behalf of the appellant/writ petitioner that the immovable property - being the subject matter of the said conveyance - was purchased in an auction held by this Court. Pursuant to the said deed, which was dated 4th September, 2008, the appellant/writ petitioner had complied with all formalities relating to payment of taxes and charges connected to the said property. The appellant/writ petitioner further contended that on an application made by it before the concerned Block Land and Land Reform Officer for mutation in its favour in respect of the said property, the said land was surveyed by the concerned Block Land and Land Reform Officer who inter alia found that the said property comprises of several other dag numbers which did not find mention in the said deed. In the light of such circumstances, it was contended by the appellant/writ petitioner that it could not mutate its name in respect of the entirety of the said property. Relevant portion of the order of the learned Single Judge referring to certain facts are quoted hereinbelow :
"Accordingly, by a communication dated the 20th of January, 2014, the Company requested the Official Liquidator to correct the said Deed by incorporating the missing Dag Nos. in the Conveyance. However, no steps having been taken by the Official Liquidator to act in terms of the communication dated 29th January, 2014 (supra), the Company filed an application before this Hon'ble Court registered as CA 327 of 2014. The prayer in CA 327 of 2014 was for a direction on the Official Liquidator to correct the Deed of Conveyance by incorporating the Dag Nos. in the schedule of the said property with a further direction upon the ARA-I/the respondent No.2 to this petition to next register the Deed of Rectification.
On the basis of a report received by the BL & LRO, the Hon'ble Court by its order of 1st August, 2014 in CA 327 of 2014 disposed of the application by directing that the said Deed be rectified by including all/the additional Dag Nos. with a further direction that the Supplemental Deed of Conveyance be now executed to the original Deed bearing the No.09065 dated 4th September, 2008. The petitioner points out that by incorporating the missing Dag Nos. there would be no alteration in the area/quantum of land sold and purchased.
It is next pleaded that pursuant to the order of the Hon'ble Court dated the 1st of August, 2014 in CA 327 of 2014, a Deed of Rectification was prepared by the Company along with the order dated 1st August, 2014. However, since the Company claims to have been refused permission by the Office of the Registrar of Assuarance-I, Kolkata to execute the Supplemental Deed of Rectification without the production of the original (said) Deed dated 4th September, 2008, on 17th of October, 2014 the original Deed dated the 4th of September, 2008 was produced before the Additional Registrar of Assurances-I, Kolkata/the respondent No.3 to this writ petition.
It is the specific stand taken by the Company that the respondent No.3 withheld the original Deed date 4th September, 2008 without issuing any acknowledgement thereof, thereby compelling the Company to report the matter to the Hare Street Police Station on 17th October, 2014. It is further alleged that the respondents, including the respondent No.3, having refused to release the original Deed in favour of the Company, CA 667 of 2014 was filed before this Court for a direction upon the respondents to handover the original Deed dated 4th September, 2008 to the Company.
The petitioner states that in CA 667 of 2014 the stand was taken before the Hon'ble Company Judge by the respondents that fraud has been perpetrated by the Company in procuring the certified copy of the Deed of Conveyance without paying the deficit stamp duty. It was alleged on behalf of the respondents that an investigation by police connected to the procurement of the original Deed by the petitioner has been initiated and, in view of the pending investigation the original Deed dated the 4th of September, 2008 could not be executed.
By order dated 6th February, 2015, the Hon'ble Company Judge was, inter alia, pleased to direct the respondents to immediately register the said Deed dated 4th September, 2008 unless there is any other deficiency in the instrument. It was also directed that the Deed of Rectification, subsequently presented by the Company, be also registered within a period of 3 weeks from the date of registration of the original conveyance.
Aggrieved by the order of the Hon'ble Company Judge dated 6th February, 2015, the respondents preferred an Intra Court Appeal being APO 150 2015 which was decided by the judgment and order dated 27th April, 2015. The Hon'ble Appellate Court also directed the respondents to register the documents on the basis of the stamp duty to be calculated as per the sale price fixed by Court auction with the further direction that the respondents shall be guided by the number which shall be the number of the Deed since any other Deed Number does not appear to belong to the petitioner/the Company. The respondents were permitted to take appropriate steps with the Investigating Authority/the Police by leaving a photocopy of the said Deed with the Police Authority to pursue their investigation."
Before the learned Single Judge, it was also contended on behalf of the appellant/writ petitioner that the order of the Hon'ble Court of Appeal dated 27th April, 2015 was communicated to the Additional Registrar of Assurances-I, Kolkata on 8th May, 2015, with reminders on 25th May, 2015 and 11th June, 2015. However, it was pointed out that on 17th July, 2015, the appellant/writ petitioner received a communication from the Additional Registrar of Assurances-I, Kolkata, to the effect that the document/Deed bearing the Serial No. 10578 of 2008, although admitted for registration on 16th July, 2015 with the Deed No. 05806 of 2015, the said document/Deed could be obtained/delivery taken from the office of the concerned respondents only on production of the original receipt (IGR) as provided under section 52 of the Registration Act, 1908. The appellant/writ petitioner, in reply to the communication dated 17th July, 2015, by a letter dated 28th July, 2015, stated that the receipt under section 52 of the 1908 Act was submitted to the respondents at the time of taking delivery of the original document/Deed dated the 4th of September, 2008. Therefore, there could be no further requirement of submitting any receipt under section 52 of 1908 Act as demanded by the letter of 17th July, 2015. It was argued on behalf of the appellant/writ petitioner before the learned Single Judge that the stand taken by the concerned respondent authority insisting on production of IGR by invoking section 52 of the 1908 Act was deliberate, harassing and a dilatory tactic adopted by the respondent authority to delay the registration as directed by the Hon'ble Single Judge on 6th February, 2015, which was subsequently confirmed by the Hon'ble Court of Appeal in its judgment and order dated 27th February, 2015. A stand that was taken by the State respondents was duly taken note of by the learned Single Judge. This stand essentially centres around the contention that the Deed no. 9065 of 2008 does not pertain to the appellant/writ petitioner at all. The Presentation No.10578 of 2008 also does not correspond to any of the Deeds numbered as 9065 of 2008 or 9065 of 2009. The Deed No.9065 of 2008 is a sale deed presented on 2nd September, 2008 and not on 4th September, 2008. The Deed No.9065 of 2009 is a Deed of Gift in Bengali vernacular presented on 29th May, 2008. This document bore the Presentation No.10578 of 2008. The Presentation No.10578 of 2008 relates to a document which is shown to be pending registration. On verification of the deed of conveyance presented on 17th October, 2015, on behalf of the appellant/writ petitioner bearing presentation no. 10578 of 2008 and the deed no. 9065 of 2009 it was inter alia found by the Additional Registrar of Assurances-I, Kolkata, that the said deed had been tampered. According to the record of the concerned respondent authority, the said deed purporting to bear the presentation no. 10578 of 2008 was still pending registration. Therefore, the Additional Registrar of Assurances-I, Kolkata, having realised the gravity of the offence had seized the deed in question. A First Information Report was filed by the Additional Registrar of Assurances-I, Kolkata, with the Hare Street Police Station and charge-sheet pursuant to the investigation had been submitted. Certain other facts have been brought to the notice of the learned Single Judge including the constitution of an Enquiry Committee by the Registrar of Assurances, Kolkata, in terms of an order dated 27th October, 2014 in order to find out the circumstances under which the deed pending for conveyance and bearing serial no. 10578 of 2008 was allegedly smuggled out of the office of the Additional Registrar of Assurances-I, Kolkata.
In the backdrop of these facts as well as other facts which were taken note of by the learned Single Judge, the matter was referred to the Director, Serious Fraud Investigation Office by the learned Single Judge, in terms of the impugned order dated 29th August, 2018, in order to obtain a report from the Director, SFIO.
The relevant question here is whether the learned Single Judge - in the facts of the instant case - could have issued a direction referring the matter to the Director, Serious Fraud Investigation Office (SFIO), even upon taking note of the fact that pursuant to the FIR lodged by the Additional Registrar of Assurances-I, Kolkata, a criminal proceeding has been initiated and consequently, a charge-sheet has been filed in the matter.
We are of the view that since a Criminal Court of competent jurisdiction is in seisin of the matter, the learned Single Judge could not have referred the matter to the Director, Serious Fraud Investigation Office (SFIO), particularly when charge-sheet has already been submitted in the matter. We, therefore, set aside the direction of the learned Single Judge referring the matter to the Director, Serious Fraud Investigation Office (SFIO).
So far as the principal prayers made in the writ petition are concerned which are in respect of the handing over and/or delivering registered deed of conveyance bearing no. 5806/2015 to the appellant/writ petitioner is concerned, we do not find any justifiable reason for the writ Court to issue such direction. The reason is, the entire issue with regard to deed in question is a subject matter for adjudication before a Criminal Court of competent jurisdiction. That Court is likely to require the original deed to be produced at the time of trial. It will be that Court's prerogative to take a decision in that matter in accordance with law on completion of the proceedings. Neither a writ Court nor this Court of Appeal can issue such a direction. We therefore treat the writ petition as on day's list and the same stands dismissed as we are of the view that there is no merit in the writ petition and the same is liable to be dismissed.
The appeal and the application for stay stand disposed of accordingly.