W.P.(C) No.9997 of 2014 10.
21.10.2014 Heard learned counsel for the petitioner and learned counsel for the State appearing for the opposite parties.
In this writ petition, petitioner has made prayer to direct opposite party no.4-District Sub-Registrar, Cuttack to effect registration of the sale-deed executed by the petitioner in favour of the vendee Akshya Kumar Jena for sale of the case land.
Khata No.285 in Mouza-Gopalpur including plot No.1708 stands recorded solely in the name of petitioner’s vendor Jadunath Behera under Record-ofRights at Annexure-1 to the writ petition.
Petitioner purchased land comprising of an area of Ac.0.22 decimals out of plot No.1708 on the strength of registered sale-deed dated 8.2.2013/11.2.2013 at Annexure-2.
In order to meet expenses for treatment of his cardiac ailments, the petitioner negotiated with the vendee Akshya Kumar Jena for sale of Ac.0.04 decimals out of the land purchased under sale deed at Annexure-2.
While preparing for purchase of stamp 2 papers for execution of sale-deed the petitioner came to kNo.that no sale deed is accepted for registration by the registering officer at Cuttack unless name of the transferor is recorded in the Record-of-Right on the pretext of the bar contained under Sub-section (2) of Section 22-A of the Registration Act,1908 ( for short, ‘the Act’) Registration incorporated (Odisha into the statute Amendment) by Act,2013.
the Sub- Section(2) of Section 22-A of the Act reads as follows: “22-A(1) xxx xxx xxx (2) Notwithstanding anything contained in this Act, the registering officer shall No.register any document presented to him for registration unless the transferor produce the record of rights, for the satisfaction of the registering officer that such transferor has right, title and interest over the property so transferred.
Explanation- For the purpose of this subsection, ‘record-of-rights’ means the record of rights as defined under the Odisha Survey and Settlement Act,1958.”
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Apprehending that the sale-deed executed by him in favour the vendee shall No.be registered by the District Sub-Registrar, the petitioner filed the present writ application.
3 During the pendency of the writ petition, in view of the statement made by the learned counsel for the State that if sale-deed executed by the petitioner is presented for registration appropriate order shall be passed in accordance with the statutory provisions, the following order was passed on 6.8.2014:- “On instructions, learned counsel for the State submits that sale deed has No.been presented by the petitioner for registration so far and that appropriate order with regard to registration/ non-registration shall be passed on presentation of the sale deed.
There is no hindrance in registering the documents in case the sale deed satisfies requirement under the Indian Registration Act and Indian Stamp Act.
In view of such submissions, learned counsel for the petitioner submits that the documents shall be presented for registration within a period of seven days from today.
On presentation of the sale deed along with the records-of-right pertaining to the land proposed to be sold along with any other documents indicating the petitioner’s title over the said land, the registering authority shall proceed to consider registration in accordance with law forthwith.
Put up this matter on 25.8.2014.
Urgent certified copy of this order be granted on proper application.
A free copy of this order be handed over to the learned counsel for the State.”
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4 On 22.8.2014 petitioner filed additional affidavit stating therein that the sale deed, copy of which is at Annexure-3 to the additional affidavit, executed by the petitioner in favour of the vendee was refused to be registered by the opposite party no.4-District SubRegistrar, Cuttack on the strength of endorsement dated 12.8.2014 made in the sale deed.
The endorsement reads as follows: “The document presented for registration canNo.be registered as the transferor could No.produce the R.O.R.in his favour regarding right, title, interest over the property so transferred as contemplated under Sub-section 2 of Section 22-A of the Registration(Odisha Amendment) Act,2013.”
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It is contended by the learned counsel for the petitioner that along with the sale deed at Annexure-3, petitioner also filed Record-of-Rights at Annexure-1 as well as registered sale deed at Annexure-2 to establish petitioner’s right, title and interest over the case land.
However, the opposite party no.4-District Sub- Registrar, Cuttack appears to have misconstrued the provisions under Sub-section(2) of Section 22-A of the 5 Act to mean that sale deed canNo.be registered unless the land proposed to be sold stands recorded in favour of the transferor in the Record-of-Rights.
It is argued that such interpretation unconstitutional.
is illegal as well as Such an interpretation to the above said provision would amount to conferring jurisdiction on the registering officers to decide right, title and interest over landed property.
Such an interpretation also negates the settled position of law that Record-ofRight is No.a document of title and that Record-ofRights can neither create No.extinguish title.
Moreover, preventing a person from selling his land acquired on the strength of valid deed of transfer would be contrary provision under Section 8 of the Transfer of Property Act,1882 which provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Learned counsel for the petitioner also argues 6 that preventing a person from selling a piece of land which he has purchased on the strength of registered sale deed amounts to preventing a person from dealing with his own property and thereby is violative of Article 300-A of the Constitution of India which provides that no person shall be deprived of his property save by authority of law.
By refusing registration of the sale deed executed by the petitioner in respect of the case land which he has purchased, the petitioner is being deprived of his right to deal with his own property without any authority of law.
Such a narrow interpretation by the District Sub-Registrar is prima facie No.tenable.
On a plain reading, it is evident that the provision under Sub-section(2) of Section 22-A of the Act nowhere stipulates that registration of a transfer deed shall be refused in case the land sought to be transferred is No.recorded in the Record-ofRights in the name of the transferor.
A counter-affidavit has been filed on behalf of opposite parties 1,3 and 4.
It is candidly admitted 7 therein that registering authority is No.the authority to decide title of the property of the vendor or vendee who are approaching for registration of the sale deeds.
However, it is averred in the counter-affidavit that on a simple interpretation of provisions under Sub- section(2) of Section 22-A of the Act it is manifestly clear that if a person wants to transfer his property, he has to submit Record-of-Rights at the time of registration showing that the property in question has been recorded in his name.
Object of incorporation of the provision under Sub-Section(2) of Section 22-A of the Act is to prevent illegal and fake sale transactions.
It is No.disputed that on the strength of registered sale deed at Annexure-2 recorded tenant of Record-ofRights at Annexure-1 has sold a piece of land recorded in his name to the petitioner.
Paragraph-7 of the counter-affidavit reads as follows: “ That there is absolutely no doubt that as is event from Annexure-2 the Sale Deed the petitioner is the purchaser of the land from one Jadumani Behera who is the recorded tenant as per Annexure-1, but the fact remains that after 8 purchasing of the property vide Annexure-2 the Sale Deed, the petitioner has No.mutated the land in his favour and has No.corrected the ROR as under Annexure-1 and therefore the requirement being to produce the ROR showing the name of the transferor in respect of the property wanted to be transferred, the refusal by Registering Officer to register the Sale Deed canNo.be said to be illegal or in violation of any right enshrined under the Constitution of India and under the provisions of Transfer of Proper Act.”
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It is further averred that the District Sub-Registrar, opposite party no.4- Cuttack having acted in accordance with the provision under Sub-section(2) of Section 22-A of the Act, refusal to register the sale deed at Annexure-3 does No.violate provisions under Section 8 of the Transfer of Property Act.
It is also argued by the learned counsel for the State that the Registration (Odisha Amendment) Act,2013 incorporated Section 22-A including Sub-Section (2) thereof, has been made in order to prevent illegal and fake sale transactions.
Provision under Sub-Section(2) does No.confer jurisdiction on the Registering authority to decide title over the land proposed to be sold which power can be exercised by competent courts 9 only.
However, keeping in view the object, jurisdiction has been conferred on the registering authority to refuse registration of sale deeds upon being prima facie satisfied regarding transferor’s title over the land proposed to be sale by producing Record-of-Right in respect of such land in the name of the transferor.
In the present case, the petitioner having No.mutated the case land in his name, the opposite party no.4-District Sub-Registrar, Cuttack refused to effect registration of the sale deed.
On a plain reading of Sub-section(2) of Section 22-A of the Act, it is found that nowhere the provision requires production of Record-of-Rights in respect of the land transferred in the name of vendor or transferor.
It simply requires production of the Record-of-Rights for satisfaction of the registering officer that such transferor has right, title and interest over the property so transferred.
It is well settled that Record-of-Rights neither creates No.extinguishes title.
The contention advanced by the learned counsel for the 10 petitioner that interpretation of the provision under Sub-section(2) of Section 22-A of the Act assigned on behalf of the opposite parties is contrary to such settled principle of law is No.unfounded.
Moreover, it is rightly contended that such a narrow interpretation to the provision would be contrary to the provision under Section 8 of the Transfer of Property Act with regard to transfer of all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof forthwith.
Title of the land passes upon valid execution of sale deed.
Constitutional right conferred under Article 300-A of the Constitution of India has also to be given a meaningful interpretation to include right to deal with one’s own property.
In such circumstances, narrow interpretation of the provisions under Sub-Section(2) of Section 22-A of the Act by the opposite parties is unwarranted and No.acceptable.
Accordingly, it is held that Sub-section(2) of Section 22-A of the Act does No.require production by 11 the transferor of Record-of-Rights in which land transferred is recorded in transferor’s name.
Any interpretation of the provision to the contrary is arbitrary, illegal and unconstitutional.
In the present case, along with the sale deed at Annexure-3 petitioner has produced No.only registered sale deed at Annexure-2 executed by his vendor but also Annexure-1 the Record-of-Rights in which land purchased by the petitioner including land proposed to be sold by the petitioner to the vendee stands recorded in the name of petitioner’s vendor.
Petitioner has filed documents to establish the flow title to him.
Therefore, there is no reason for the opposite party no.4-District Sub-Registrar, Cuttack No.to be satisfied that the petitioner has right, title and interest over the case land.
Hence, refusal of registration is No.sustainable.
In view of the above, the writ petition is allowed.
Order of refusal to register sale deed is quashed.
Opposite party no.4-District Sub-Registrar, Cuttack is 12 directed to effect registration of the sale deed at Annexure-3 executed by the petitioner forthwith on presentation.
Urgent certified copy of the order be granted on proper application.
………………….B.K.Patel, J.