High Court · 2009

Order

“The respondents shall not proceed further in pursuance of the Cancellation deed bearing document No. 7925/08 dated 27-10-2008 and similarly, the petitioner shall not alienate the property in question on the basis of the sale deed dated 19- 5-2008 bearing document No. 2076/2008.” The writ petitioner filed Writ Appeal No. 71/2009 partly aggrieved by the order of the learned single Judge in not

suspending the cancellation deed, impugned in the writ petition. At the stage of admission of the writ appeal, the learned counsel for the appellant and the learned Government Pleader for Forests agreed for disposal of the writ petition itself, in view of involvement of a purely legal aspect. We permitted the learned Government Pleader to file counter affidavit in the writ petition and therefore we have heard arguments in the main writ petition itself. In counter affidavit filed by H. Jaipal Reddy, Divisional Forest Officer, Wild Life Management Division, Hyderabad, it is inter alia stated that entire S.No.1 of Kancha Chilkur village in Moinabad Mandal was acquired by the Forest Department along with 13 other kanchas from HEH the Nizam vide Notification No. 13481/1105/A3/55-6, dated 28.2.1956, which was published in Part-I of Hyderabad Government Gazette, dated 15.3.1956, that the said notification the Collector Land Acquisition (Hyderabad District) was appointed as Acquisition Officer and the Collector, Land Acquisition, Hyderabad fixed the compensation for acquisition of the said land admeasuring Ac 1417.15 guntas at R.

4.00 lakhs and that in pursuance of the said land acquisition proceedings, Forest Department took possession of the land in the year 1956. It is further averred in the counter affidavit that it has been in possession and enjoyment of the land in pursuance of the said acquisition and it has proposed to constitute Ac 1211.00 of land as reserved forest, for which, the Government issued notification under section 4 of A.P. (Telangana Area) Forest Act, 1355 Fasli vide G.O.Ms.No.1732, Food & Agriculture (Forest.III), dated 25.6.1965. It is also averred that the said notification was published in State Gazette No. 28, dated 15.7.1965 and that subsequently, proclamation under section 6 of the A.P. Forest Act was issued by the Forest Settlement Officer on 22.10.1965, which was published in the A.P. Gazette, dated 25.8.1966. It is the further case of respondent No.1 that no claim was preferred by any one before the Forest Settlement Officer and that out of Ac

1211.00 of the proposed reserved forest, an extent of Hec. 360.00 was declared as “Mrugavani National Park” under section 35(4) of Wildlife (Protection)Act, 1972, which was published in A.P. Gazette No.341, dated 21.7.1998. It is further stated in the counter affidavit that in view of the above mentioned notifications declaring the property as reserved forest, no private persons have any right over the properties and that on coming to know about the registration of the sale deed in favour of the petitioner, respondent No.1 executed cancellation deed, which was registered on

27.10.2008 by the Registrar. Respondent No.1 further averred that under Rule 26 (k) (i) of the A.P. Rules under Registration Act, (for short “Rules”), respondent No.1 is empowered to execute such a deed. At the hearing, Sri Vedula Venkataramana learned counsel for the petitioners submitted that respondent No. 1 was admittedly not a party to the registered sale deed, dated 19.5.2008 and therefore, he is not entitled to execute the deed of cancellation. Learned Government Pleader for Forest opposing the contention of the learned counsel for the petitioners, has placed reliance on proviso to Rule 26 (k) (i) of the Rules and submitted that respondent No. 1 is empowered to execute the cancellation deed. We have carefully considered the submissions of the learned counsel for the parties. Section 17 of the Registration Act, 1908 enumerates the documents that are required to be compulsorily registered. The sale deed registered in favour of the petitioner is undoubtedly a non testamentary document, which purports or operates to create right in the petitioners and hence, it is compulsorily registerable under the said provision and the said document was accordingly registered. Section 22 A (1) of the Act as it was originally enacted empowers the State Government to issue notification to be published in the official Gazette to declare that the registration of any document or class of documents, is opposed to public policy. Sub section 2 provides that notwithstanding anything contained in the Act, the registering officer is empowered to refuse to register any document to which a notification issue under sub section (1) is applicable. Following the judgment of the Supreme Court in State of Rajasthan and others, vs., Basant Nahata [1] whereby Section

22.A was declared as unconstitutional as it has conferred unbridled power on the State Governments to refuse registration of documents, the Andhra Pradesh State Legislature enacted a new provision in Section 22A which, for convenience, is reproduced below: “22-A Prohibition of registration of certain documents. (1) The following classes of documents shall be prohibited from registration, namely; (a) documents relating immovable property, prohibited under any state of the State or Central Government; transfer of which the alienation or transfer of (b) documents relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease in respect of immovable property owned by the State of Central Government, executed by persons other than those statutorily empowered to do so; (c) document relating to transfer of property by way of sale, agreement of sale, gift, exchange or lease exceeding (ten) 10 years in respect of immovable property, owned by Religious and Charitable Endowments falling under the purview of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 or by Wakfs falling under the Wakfs Act, 1995 executed by persons other than those statutorily empowered to do so; (d) Agricultural or urban lands declared as surplus under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1973 or the Urban Land (Ceiling and Regulation) Act, 1976; (e) Any documents or class of documents pertaining to the State Government may, by the properties notification prohibit the registration in which avowed or accrued interests of Central and State Governments, Local Bodies, Educational, Cultural, Religious and Charitable Institutions, those attached by Civil, Criminal, Revenue Courts and Direct and Indirect Tax Laws and others which are likely to adversely affect these interests. (2) For the purpose of clause (e) of sub-section (1), the State Government shall publish a notification after obtaining reasons for and full description of properties furnished by the District Collectors concerned in the manner as may be prescribed. (3) Notwithstanding anything contained in this Act, the registering officer shall refuse to register any document to which a notification issued under clause (e) of sub- section (1); (4) The State Government either suo moto or on an application by any person or for giving effect to the final orders of the High Court of Andhra Pradesh or Supreme Court of India may proceed to denotify, either in full or in part, the notification issued under sub-section (2).” Rule 26 (k) (i) of the Rules along with its proviso reads as under: “26. (k)(i) The registering officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale; Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government Orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law.” The contention of the learned Government Pleader is based on the reenacted provisions of Section 22A and Rule 26 (k)(i) of the Rules. According to the learned Government pleader since the property in question forms part of Reserve Forest, the same is deemed to be owned by the State Government, the registration of which is prohibited by Section 22A of the Act. He placed reliance on Rule 26 (k)(i) to contend that the ordinary requirement of execution of cancellation deed for registration by all the executant and clamant parties to the previously registered conveyance is done away with in cases falling under the proviso to the said provision. On a careful consideration of this submission of the learned Government Pleader, we have not felt persuaded to accept the same. Undoubtedly, the reenacted provision of Section 22A prohibits registration of documents relating to transfer of property owned by the State or Central Government. In the instant case, we are not concerned with the registration of document as the document was admittedly registered. The question is one of power to unilaterally cancel the document already registered. While as an ordinary rule, Rule 26(k)(i) ordains that all the executant and claimant parties shall execute the document for cancellation of the previous deed, an exception is carved out by proviso to the said rule which provides that such a requirement is dispensed with in cases where cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties which are subject matters of previously registered conveyance deed as either Government, assigned or endowment lands or properties not registerable by any provision of law. Admittedly, the government has not issued any order by declaring the property in question, which is subject matter of the registered sale deed dated 19-5- 2008, as belonging to Government etc., or not registerable by any provision of law. The notifications issued earlier under the provisions of A.P. (Telangana Area) Forests Act 1355 Fasli and the A.P. Forest Act 1964 cannot be read as containing such a declaration. Unless an order is issued with respect to the specified property regarding its non registerability the proviso to Rule 26 (K) (i) is not attracted and consequently the respondents have no right of unilateral cancellation of a registered sale deed. Indisputably, no such order has been issued by the State Government in respect of the property in question, by invoking the power under the proviso to Rule 26 (k) (i). For the above mentioned reasons the cancellation of registered sale deed dated 19-5-2008 is not sustainable in law. The writ petition is accordingly allowed. This order, however, does not preclude the respondents from initiating action afresh in accordance with law and in the light of the observations contained in this order. As a sequel to disposal of the writ petition, writ appeal No. 71/2009 filed against the interlocutory order passed pending the writ petition does not survive for consideration and accordingly, the same is disposed of as infructuous. --------------------------- T MEENA KUMARI J ---------------------------------- C V NAGARJUNA REDDY J Kvrk/nn 17.02.2009 THE HON’BLE SMT JUSTICE T MEENA KUMARI AND THE HON’BLE SRI JUSTICE C V NAGARJUNA REDDY Writ Appeal No. 71 of 2009 And Writ Petition No. 26431 of 2008 (Order of the Division Bench delivered by the Hon’ble Sri. Justice C V Nagarjuna Reddy) 17th February 2009 [1] AIR 2005 Supreme Court 340(1)