THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.1747 of 2013 DATE: 25.06.2014 Between:
Gottumukkala Venkata Satyanarayana Raju, Visakhapatnam District.
… Appellant And Koda Appalamma Srikakulam District and others … Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.1747 of 2013
Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)
The appellant before us being third party to the writ petition, was seeking leave to prefer appeal on the complaint that the impugned judgment and order of the Hon’ble first Court affects his right adversely. This Court granted leave to the appellant to prefer instant appeal. Now, this appeal has come up for admission. We admit the appeal.
Having considered the issues involved in this matter, we thought of hearing out the appeal finally at this stage. Observance of all the formalities for final hearing are felt to be unnecessary, hence the same is dispensed with by consent of the parties before us.
Learned counsel for the writ petitioners-respondents was present yesterday and made submissions and today also he is present. He also does not want to have a formal notice of appeal. He fairly takes notice of appeal.
The fact, which has been narrated in the affidavit filed in support of the writ petition by the writ petitioners-respondents, is as follows:
That the writ petitioners after having entered into agreement for sale and the same having been registered, have decided to cancel the same. So, they further executed document said to be cancellation deed, purporting to cancel agreements for sale and this document was presented before the Joint Sub Registrar–I, Srikakulam, the first respondent as described in the writ petition, who had refused to register this document assigning the reasons as follows:
“In accordance with the orders of the Commissioner and Inspector General of Stamps and Registration dt. 30.12.2009 in Rc.No.General/18492/2009, a GPA-cum- Agreement of Sale, signed by both the parties, if is to be cancelled, both the parties will have to jointly get it registered. If one of those parties approach for cancellation of the document, the same cannot be registered.”
In the body of the writ petition, we do not find any challenge to the orders of the Commissioner and Inspector General of Stamps and Registration dated 30th December, 2009 which is sole basis for refusal to register. Even prayer portion of the writ petition does not whisper questioning about the same and it will be clear from prayer quoted below:
“To issue a writ of Mandamus or any other appropriate Writ, Order or orders, Direction or Directions declaring the action of the first respondent in refusing to register the cancellation deeds dt. 16.6.2012 and 19.6.2012 presented by the petitioners seeking cancellation of the Agreement of Sale cum GPA dt. 2.6.2006 on the ground that all the parties to the earlier agreements should jointly execute the cancellation deed as illegal, arbitrary and opposed to the judgment of this Hon’ble Court reported in 2012(4) ALT page 808 and to consequently direct the first respondent to receive and register the cancellation deeds dt. 16.6.2012 and 19.6.2012 presented by the petitioners seeking cancellation of the Agreement of Sale-cum-GPA dt. 2.6.2006 without raising any objection and pass such other order or orders.”
The learned trial Judge, of course, has not decided anything else and thought it fit to follow a judgment of the learned Single Judge of this Court in the case of Mir Khader Ali Khan v. District
[1]
Registrar, Ranga Reddy District & Appellate AUthority , on the issue of cancellation of agreement for sale.
Learned counsel for the appellant submits that the ratio laid down by the aforesaid judgment is not legally correct. He contends that the aforesaid judgment needs review exercise by us for laying down the law correctly. He urges that the observation recorded in the above judgment affects his client’s interest or right said to have been created by executing the agreement for sale and the instrument of power of attorney. Therefore, suitable ruling shall be made so that his client’s right to challenge the cancellation deed is not taken away by the aforesaid judgment of this Court. He submits that under the law without making him a party to the cancellation instrument, it can neither be executed nor be registered.
Learned counsel for the writ petitioners, countering the aforesaid contention relying on the judgment (supra) submits when registered agreement for sale is unilateral one, cancellation thereof is not required legally to be bilateral. He also contends that even after execution and registration of the same challenge as to legality and validity thereof is available under law, and it can be taken care of by the appropriate forum. His next contention is that his clients approached the writ court with the grievance that the Sub-Registrar has refused the registration or for that matter, reasons recorded for refusal are legally unsupportable and they run counter to the law laid down by this Court in the above quoted judgment. He acknowledges the legal position that cancellation deed is not a compulsorily registerable instrument expressly.
We have taken note of the submissions as they are advanced. But, when we decide we examine those relevant to the issue involved in the lis which was brought before the Hon’ble Trial Judge.
In the writ petition, we have already recorded there is no challenge to the order of Commissioner who appears to have viewed that cancellation of agreement for sale if unilateral, coupled with General Power of Atttorney requires signatures of seller and proposed buyer. Further, above order of Commissioner was not placed before the Hon’ble Trial Judge. We are of the view that the submissions of the learned counsels for the parties do not require consideration at this stage. No one can dispute that the Commissioner and Inspector General of Stamps and Registration in December, 2009 has power to issue orders under the provisions of the Registration Act, 1908. It is settled position of law any order passed by the statutory authority cannot be sidelined to nullify indirectly the effect thereof, howsoever, illegal, unless and until Court of law declare so on a lawful challenge to the same, not even a collateral proceedings.
We think that the learned trial Judge was not assisted in correct direction. His Lordship was given an impression as if the challenge was made to the aforesaid order of the Commissioner. Factually, it is not so. We, accordingly, set aside the judgment and order of the learned trial Judge. We also dismiss the writ petition. The registration done in terms of the order of the learned trial Judge has to be cancelled and we hereby direct the concerned Joint Sub-Registrar to cancel the same. But, we keep this order of cancellation in abeyance for a period of four weeks from date of receipt of this order. It should be open for the writ petitioners to bring any fresh action in accordance with law, as may be advised.
The Writ Appeal is accordingly allowed. There shall be no order as to costs.
Let the Office communicate our order to the Joint Registrar for taking note of the same as required under Section 31(2) of the Specific Relief Act, 1963.
K.J. SENGUPTA, CJ
SANJAY KUMAR, J
Date: 25.06.2014
Note: L.R. Copy to be marked : Yes/No va/pnb
[1] 2012 (4) ALT 808