The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10637 of 2023 Jai Maa Santoshi Infrastructure Private Limited., Bhubaneswar …. Petitioner Ms. Suravi Mohanty, Advocate -versus- State of Odisha and others ….
Legal Reasoning
Opp. Parties Mr. Ajodhya Ranjan Dash, Additional Government Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 01.05.2023 1. 1. This matter is taken up through Hybrid mode. 2. Petitioner in this writ petition prays for a direction to declare that the registration of cancellation of registered General Power of Attorney No.4 dated 31st December, 2020 (Annexure-1) by the Sub-Registrar, Puri is without jurisdiction and for consequential relief. 3. It is submitted by learned counsel for the Petitioner that pursuant to the registered irrevocable General Power of Attorney executed by Opposite Party No.4, the Petitioner-Developer started construction over the property in question and has invested substantial amount to develop the property. The intending purchasers have also invested money. At that juncture, without any rhyme or reason and without intimating the Petitioner, the Opposite Party No.5 executed a deed of cancelation of General Power of Attorney on 31st December, 2020 and presented it before the District Sub-Registrar, Puri-Opposite Party No.3 for Page 1 of 5 SASANKA SEKHAR SATAPAT HY Digitally signed by SASANKA SEKHAR SATAPATHY Date: 2023.05.05 13:18:39 +05'30' // 2 // registration. The deed of cancellation of General Power of Attorney was registered without following due procedure of law. The Registering authority failed to exercise the statutory power vested in him under the Registration Act. Hence, the entire process of registration of the deed in question is vitiated. Thus, this Court has ample power to examine the same in exercise of power conferred under Article 226 of the Constitution. In support of her submission, learned counsel for the Petitioner relied upon the case of Asset Reconstruction Company (India) Limited. Vs. S.P.Velayutham and others, reported in (2022 8 SCC 210, wherein it is held as under:- “49. Actually, the registration of a document comprises of three essential steps among others. They are, (i) execution of the document, by the executant signing or affixing his left hand thumb impression; (ii) presenting the document for registration and admitting to the Registering Authority the execution of such document; and (iii) the act of registration of the document. xx xx xx 53. In suits for declaration of title and/or suits for declaration that a registered document is null and void, all the aforesaid three steps which comprise the entire process of execution and registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the civil court. But where a party questions only the failure of the Registering Authority to perform his statutory duties in the course of the third step, it cannot be said that the jurisdiction of the High Court under Article 226 stands completely ousted. This is for the reason that the writ jurisdiction of the High Court is to ensure that statutory authorities perform their duties within the bounds of law. It must be noted that when a High Court, in exercise of its jurisdiction under Article 226 finds that there was utter failure on the part of the Registering Authority to stick to the mandate of law, the Court merely cancels the act of registration, but does not declare the very execution of the document to be null and void. A declaration that a document is null and void, is Page 2 of 5 // 3 // exclusively within the domain of the civil court, but it does not mean that the High Court cannot examine the question whether or not the Registering Authority performed his statutory duties in the manner prescribed by law. It is well settled that if something is required by law to be done in a particular manner, it shall be done only in that manner and not otherwise. Examining whether the Registering Authority did something in the manner required by law or otherwise, is certainly within the jurisdiction of the High Court under Article 226. However, it is needless to say that the High Courts may refuse to exercise jurisdiction in cases where the violations of procedure on the part of the Registering Authority are not gross or the violations do not shock the conscience of the Court. Lack of jurisdiction to exercise is completely different jurisdiction.” from a refusal Learned counsel for the Petitioner, therefore, submitted that when the Petitioner challenges the failure of the registering authority to perform his statutory duty in course of registration of the document, the same can be adjudicated in a writ petition. She, therefore, prays for declaring the action of the registering authority in registering the deed in question as illegal and consequently to declare the registration of the deed in question to be null and void. 4. Mr. Dash, learned AGA submits that assailing the execution of the document, the Petitioner has already filed CS No.48 of 2021, which is pending in the Court of learned Civil Judge (Senior Division), Puri, in which the execution of document is under challenge. Thus, two parallel proceedings in the garb of challenging the action of the registering authority in registering the deed of cancellation of General Power of Attorney is not maintainable. The issue involved in this writ petition is already sub judice before Civil Court. As such, the writ petition is not maintainable. Page 3 of 5 // 4 // 5 . Considering the rival contentions of the parties and on perusal of the materials placed, this Court, is of the considered opinion that when the process of registration is under challenge, this Court has jurisdiction to entertain the writ petition under Articles 226 of the Constitution of India as held in Asset Reconstruction Company (India) Limited (supra). But in the instant case, the suit has already been filed and the legality and validity of execution and registration of such deed is in question in the said suit. While adjudicating the validity of the Registered Cancelation deed of General POA, the Civil Court has jurisdiction to scrutinize, whether the Registering Authority has performed its statutory duty in the manner prescribed under law or not, in the event such an issue is raised. It is also held so in Asset Reconstruction Company (India) Limited (supra). Thus, a parallel proceeding in the garb of assailing the manner in which the registering authority acted in registering such a document should not be entertained under Article 226 of the Constitution. Further, the registration was made on 31st December, 2020 and in the meantime, more than two years have elapsed. Learned counsel for the Petitioner, however, submits that the suit will take a long time in declaring the Registered Deed of Cancellation of General Power of Attorney as null and void. That cannot be a ground to entertain an application under the writ jurisdiction of this Court. 6. In view of the above, this Court is not inclined to entertain the writ petition. Accordingly, the writ petition stands dismissed being devoid of any merit. It is, however, open for the Petitioner to Page 4 of 5 // 5 // raise the issue involved in this writ petition before learned trial Court in accordance with law. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 5 of 5