Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WP(C) No.16698 of 2025 An application under Articles 226 & 227 of the Constitution of India. *** Rajendra Kumar Biswal … Petitioner -VERSUS- State of Odisha & Others … Opposite Parties. Counsel appeared for the parties: For the Petitioner : Mr. Satyanarayan Mishra, Advocate For the Opposite Parties : Mr. G.Mohanty, Standing Counsel. P R E S E N T:
Legal Reasoning
HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 24.09.2025 :: Date of Judgment : 24.09.2025 Page 1 of 8 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This writ petition under Article 226 and 227 of the Constitution of India, 1950 has been filed by the Petitioner praying for directing Sub-Registrar, Dhamnagar (O.P. No.3) to receive the deed for sale of the Petitioner for registration. Because, on dated 03.03.2025, the Petitioner had presented the deed for sale (Original or Annexure-1) before the O.P. No.3 for its registration, but, the Sub-Registrar, Dhamnagar (O.P. No.3) refused to receive the same stating that, he (O.P. No.3) cannot receive any deed for sale for registration in respect of transfer of part plot. 2. Heard from the learned counsel for the Petitioner and the learned Standing Counsel for the State. 3. During the course of hearing, the learned standing counsel for the State submitted on the basis of the counter affidavit on behalf of the Opposite Parties that, in fact, the Sub-Registrar, Dhamnagar (O.P. No.3) is not allowing the registration of any deed for sale in respect of the properties of Mouza Gaudabisinuapada along with other villages in respect Page 2 of 8 of which villages Boundary Change Proceeding Case i.e. BCP Case under Rule 61 the OSS Rules, 1962 is going on and in addition to that, on the basis of the letter of the Deputy Collector, Bhadrak, the registration of sale deed in respect of part plot has been stopped. 4. The law concerning the non-acceptance of deed for sale, when any land owner being vendor presents a deed for registration like the Petitioner in this writ petition has already been clarified in the ratio of the following decision:- In a case between North East Infrastructure Private Limited and Ors. Vrs. The State of Andhra Pradesh and Ors. reported in 2025 (2) Civ.C.C. 220 (Andhra Pradesh) that, “the Sub-Registrar/Registrar, cannot orally refuse to receive any document presented for registration, but after receiving, he/she will consider, whether the same is legally fit for registration or not. Because, Section 71 of the Registration Act, 1908 provides that, the Sub-Registrar is to receive a document, which is presented for registration and if the same is fit for registration, he/she shall register that deed as per the Registration Act, 1908 and Rules thereof. If the same is not compliance with the provisions of law, he/she shall pass an order of refusal of registration in writing as indicated in Section 71 of the Registration Act.” 5. So, in view of the propositions of law enunciated in the ratio of the aforesaid decision, the oral refusal of the Page 3 of 8 Sub-Registrar, Dhamnagar (O.P. No.3) to receive the deed for sale of the Petitioner on dated 03.03.2025 is not inconformity with law. For which, the said conduct of the Sub-Registrar, Dhamnagar (O.P. No.3) i.e. refusing to receive the deed of the Petitioner is not legal. 6. So far as, the alienation of any part plot by any land owner like the Petitioner is concerned; alienation of the property is the inherent right of every land owner. Owner of any plot has his inherent right either to sell full plot or part thereof according to his necessity. Because, The Transfer of Property Act, 1882 as well as The Constitution of India, 1950 provides absolute right to every land owner to use his land including his right to sell as per his sweet will without affecting the rights of others in any manner. The Sub-Registrar or any Officer of the State cannot curtail the absolute right of alienation of the property of the land owner through any Notification or the Government. Likewise, the statutory right of registration of the sale deeds of the land owners provided under the Registration Act, 1908 cannot be stopped by any letter of the Government or Government Officials issuing to the Sub-Registrar. Page 4 of 8 On this aspect, the propositions of law has been clarified in the ratio of the following decisions:- (i) In a case between Commissioner of Central Excise, Bolpur Vrs. M/s. Ratan Melting & Wire Industries reported in 2009 (1) CLR (SC) 174 that, Circular, which is contrary to the statutory provisions has really no existence in law. (ii) In a case between Harihar Mohapatra & Others Vrs. Commissioner of Land Records and Settlement, Orissa & Others reported in 1998 (2) OLR 495 that, Executive instruction stands on a lower footing than a statutory rule. (iii) In a case between Radhashyam Panigrahi Vrs. Registrar (Admn.), Orissa High Court & Another reported in 107 (2009) CLT 673 that, Executive instructions do not apply where statutory rules govern the field. (iv) In a case between Gopinath Sahu & Others Vrs. State of Orissa & Others reported in 2020 (2) OLR 559 that, statutory provision cannot be overridden by the executive instructions. In case of conflict, the statutory provision shall prevail the order/instruction, which is ultravires, cannot sustain in the eye of law. (v) In a case between Indian Charge Chrome Ltd. and others Vrs. Union of India (UOI) and others reported in 2003 (1) OLR SC 619 that, any order which has been passed by an officer without any authority would be non-est. (vi) In a case between Sulochanamma Vrs. H.Nanjundaswamy and others reported in 2001(I) Civ.C.C. 568 (Karnataka) in Para No.5 that, Page 5 of 8 Sub-Registrar is not entitled to refuse registration on the basis of the report of the Tahasildar, because, statutory power through Registration Act is with the Sub-Registrar for registration or non-registration of a deed, but, the direction or instruction of any authority curtailing statutory power for non-registration cannot be permissible under law. 8. So, far as the refusal of the Sub-Registrar, Dhamnagar (Opp. Party No.3) for non-registration of the deed for sale of the Petitioner on the ground of pendency of the Boundary Change Proceedings of the village in respect of the properties indicated in the deed for sale is concerned; when the statute i.e. the T.P. Act, 1882 as well as The Constitution of India, 1950 provides statutory rights to the land owners for alienation of his/her full plot or part plot as per his/her necessity and requirements, then, at this juncture, the pendency of any Boundary Change Proceedings in respect of the village, in which, plot for sale is situated cannot stand on the way of the registration of the deed for sale in respect of any land owner like the Petitioner either for full plot or part thereof. 9. As per the discussions and observations made above, the oral refusal of the Sub-Registrar, Dhamnagar (Opp. Party No.3) for receiving the deed for sale of the Petitioner Page 6 of 8 on the ground of sell of part plot of the Petitioner through the said deed for sale is held as illegal. For which, there is no impediment under law to direct the Sub-Registrar, Dhamnagar (Opp. Party No.3) to receive the deed for sale of the Petitioner in respect of selling of his part plot through the same allowing this writ petition filed by the petitioner. 10. Therefore, there is merit in the writ petition filed by the Petitioner. The same must succeed. 11. In result, the writ petition filed by the petitioner is allowed. 12. The Sub-Registrar, Dhamnagar (O.P. No.3) is directed to receive the deed for sale, if presented by the Petitioner annexing the certified copy of this Judgment and to act upon the same on the very same day of its presentation as per The Indian Registration Act, 1908 and The Orissa Registration Rules, 1988. After registration of the sale deed of the Petitioner, the Sub-Registrar, Dhamnagar (O.P. No.3) shall return that registered sale deed to the petitioner within 3 days of its Page 7 of 8 registration after complying all the formalities thereof as per the Rule 100 of The Orissa Registration Rules, 1988 and Notification No.2915 dated 02.08.2017 of I.G.R, Odisha. 13. As such, this writ petition filed by the petitioner is
Decision
disposed of finally. High Court of Orissa, Cuttack 24 .09. 2025// Binayak Sahoo Jr. Stenographer (ANANDA CHANDRA BEHERA) JUDGE Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Sep-2025 11:16:22 Page 8 of 8