Y.Johnson vs Andaman And Nicobar Administration & Others

Ashis Kumar Chakraborty, J

This is an appeal at the instance of the writ petitioner in WP No.181 of 2019 passed by the learned Single Judge.

The appellant filed the writ petition, WP No. 181 of 2019 praying for a direction upon the respondents particularly, the respondent no. 3, the Sub-Registrar/ Additional District Magistrate, District of South Andaman to forthwith register the sale deed dated August 17, 2015 executed in his favour by the private respondent no. 5 namely, Smt. Shefali Baroi.

The case of petitioner in the writ petition was that in the year 2015 the private respondent no.5 agreed to transfer a plot of land comprised in survey No.53, area 0.3400 hectare situate at Vijay Nagar village,Havelock, under Port Blair Tehsil, to the petitioner for an agreed consideration of Rs.22 lakhs. On August 17, 2015 the private respondent no.5 executed a sale deed conveying her said property to the petitioner and thereafter the private respondent no.5 delivered possession of the said property to the petitioner. According to the petitioner, as required under Registration Act, 1908 the private respondent No.5 presented the said deed of sale before the respondent no.3 for registration. It is, however, alleged that due to certain extraneous factors the respondent No.3 sat tight over the matter and did not take any step for registration of the said sale deed dated August 17, 2015. The petitioner lodged a criminal complaint before the police authorities which resulted in initiation of a criminal proceeding against the respondent no.3. The Special Judge allowed the petitioner to take back the said sale deed dated August 17, 2015 along with other documents. During pendency of such criminal proceeding, the petitioner filed the writ petition, WP No. 088 of 2019 praying for appropriate relief towards registration of the said sale dated August 17, 2015. The private respondent, however, did not contest the said writ petition. By order dated March 7, 2019 a learned Single Judge of this Court directed the present respondent no.3 to complete the process of registration of the said deed of sale dated August 17, 2015 within a period of four weeks. Thereafter, on June, 7, 2019, the respondent no.3, the Sub-Registrar issued notices to the petitioner as well as the private respondent for a hearing on June 18, 2019 at 10 A.M. In the said notice the respondent no.3 expressly motioned to have received another sale deed executed by the private respondent in respect of said property in favour of Shri Harolal Roy son of late Nirodh Chandra Roy.

Inspite of receipt of said notice dated June 07, 2019 the writ petitioner did not attend the hearing fixed by the respondent no.3 on July 2, 2019. It appears that even the private respondent no.5 also did not attend the said hearing fixed on July 2, 2019.

By a communication dated July 02, 2019 the respondent no. 3 informed the petitioner of his decision to return the original sale deed dated August 17, 2015 on the ground that the executant is unwilling to execute her sale deed. The respondent no.3 further held that the original sale deeds may please be received from its office in person or valid authroised representative. It is the said communication dated July 02, 2019 issued by the respondent no.3 which has been challenged by the writ petitioner in this application.

Assailing the decision of the respondent no.3 to return the sale deed dated August 17, 2015 it is strenuously contended by the petitioner that in view of the order dated March 7, 2019 passed in WP No.088 of 2019 it was mandatory on the part of the respondent no. 3 to register the sale deed dated August 17, 2015. The impugned decision of the respondent no.3 to return the said sale deed dated August 17, 2015 is violative of the direction passed by the learned Single Judge of this Court on March 7, 2019 and the same is void. As mentioned earlier, the petitioner prayed for a direction upon the respondent no.3 to forthwith register the said sale deed dated August 17, 2015 strictly in terms of the order dated March 7, 2019 passed in WP No.088 of 2019. It was the Andaman & Nicobar Administration and the respondent no.3 who contested the writ petition and opposed the prayer of the petitioner in the writ petition. The said respondents raised an objection with regard to the maintainability of the writ petition in view of the provisions contained in section 73 of Registration Act, 1973.

Feeling allegedly aggrieved by the order of the learned Single Judge the petitioner filed the present appeal. Once again it is the Andaman & Nicobar Administration and the respondent no.3 raised strong object to the maintainability of this appeal.

Considering the provisions contained in section 73 of the Registration Act, 1908, the learned Single Judge disposed of the said writ petition by directing the petitioner to approach the concerned Registrar under section 73 of the Registration Act.

The learned counsel appearing for the petitioner submitted that when by order dated March 7, 2019 passed in WP no.088 of 2019 a learned Single Judge of this directed the respondent No.3 to register the sale deed dated August 17, 2015, the latter had no authority to return the original of the deed of sale without registering the same. At this juncture, it is to be noted that the petitioner has not only impleaded the Sub- Registrar by his designation as respondent no.3 he has also impleaded the Sub-Registrar by his personal name as the respondent No.4.

Considering the facts of the case as discussed above, it is evident that the private respondent no.5 has not presented herself before the responded no.3 to register the said deed of sale. Even, as recorded in the notice dated June 21, 2019 issued by the respondent no.3 the private respondent no.5 has presented another deed of sale in respect of the self same property in favour of a third party namely, Shri Harolal Roy. When the private respondent did not present herself, as required under the Registration Act, 1908 to present the said deed of sale for registration and she has also executed another sale deed in respect of self same property in favour of third party, Shri Harolal Roy. By his letter dated August 20, 2018 addressed to the respondent no.3 the petitioner raised objection to the registration of the said conveyance by the private respondent no.5 in favour of the said Horolal Roy. In these facts, we do not find any infirmity in the decision of the respondent no.3 to pass the direction dated July 02, 2019. In the facts of present case, when the private respondent has already executed another deed of sale in respect of self same property, in favour of a third party the property, the remedy of the petitioner lies to filing appropriate suit before the Civil Court and the Registering Authority exercising power under the Registration Act, 1908 cannot be faulted for their inability to register the sale deed dated August 17, 2015. In the present case, the respondent nos.3 acted within his legal bounds to pass the impugned decision.

In view of our above findings, we do not find any infirmity in the impugned decision passed by the respondent No.3.

However, in the present case we have no option but to set aside the impugned order passed by the learned Single Judge although not on the grounds urged by the appellant.

With the above direction the appeal, MA No.034 of 2019 stands disposed of.