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2017 Supreme(Ori) 11
IN THE HIGH COURT OF ORISSA : CUTTACK
VINEET SARAN & B.R. SARANGI, JJ.
Bijay Kumar Paikaray – Petitioner
Versus
State of Odisha and others – Opposite Parties
W.P.(C) NO. 2355 OF 2009
Decided On : 03-01-2017
For the Petitioner: M/s. R.K. Mohanty, Sri. B. Mohanty, B. Mohapatra, S. Nanda, S.K. Sahoo and S.S. Kashyap
For the Opposite Parties : Mr. B.P. Pradhan, M/s. Yasobant Das, Sri. Rajeet Roy, S.K. Singh and S. Sourav
Headnote:1. (INDIAN) REGISTRATION ACT, 1908 - Sec. 22-A (Inserted by O.A. No.8 of 2002) - Any order or notification issued by the Government affecting the rights of any party could be issued only after complying with the principles of natural justice - Once a right has accrued in favour of a person, the same can be withdrawn only after affording the party concerned adequate opportunity of hearing and complying with the principles of natural justice - Even though the provision may not provide for notice, to be given to the party affected before issuance of any order, but the same has to be read down in the said provision.
Apex Court declared Section 22A of the Rajasthan Act no.16 of 1976 as ultra vires Articles 14 and 246 of the Constitution of India. Even if the petitioner has not sought for any relief declaring the Section 22A of Odisha Act No. 8 of 2002 as ultra vires, but the underlying principle clearly held in paragraph 55 is that the Act only strikes at the documents, and not at the transaction. The whole aim of the Act is to govern documents and not the transactions embodied therein. Therefore, any document issued pursuant to the impugned notification under Section 22A of the Act would not be sustainable. If any document has been procured/executed by means of fraudulent transaction, the same has to be established by following due procedure of law by the competent Civil Court. (Paras - 10 and 15)
2. ORDER - If an order is said to be opposed to public policy, then an authority is expected to specify as to what offends the public policy, and also that which public polic is offended. (Para - 12)
3. FRAUD - If the fraud has been executed deceitfully to cause loss and harm to other party to the Deed, it would be a question of fact, which must be pleaded and proved by the party making such allegation - The fact cannot be presumed. (Para - 16)
JUDGMENT :
VINEET SARAN, J.
By means of this writ petition, the petitioner has challenged the notification dated 27.06.2008 being SRO No.336/2008 issued by the Revenue Disaster Management Department of the State Government.
2. Facts of the case, as stated by the petitioner are, that opposite party no.2 Sushanta Kumar Patra purchased an area of Ac.1.020 dec. pertaining to plot no.831/2077 under Khata no.224/856 of Mouza Sompur, district Khurda, on 27.06.1988 through a registered sale deed. A general power of attorney is said to have been issued thereafter by opposite party no.2 in favour of opposite party no.3 Suryakanta Pattnaik on 16.10.1990. On the strength of the said power of attorney, opposite party no.3 transferred the property (belonging to opposite party no.2) in favour of M/s Rirtch Investment and Holding Private Limited (RIH) by means of a registered sale deed. Thereafter, the Chairman of M/s RIH Pvt. Ltd. gave a power of attorney in favour of opposite party no.4 Pratap Kumar Mohanty on 19.01.2005. In turn, opposite party no.4 Pratap Kumar Mohanty sold the property to the present petitioner on 04.06.2005. It is stated that the petitioner, prior to purchase of the said property, obtained encumbrance certificate and ‘yadast’ regarding the property. The property in question is said to have been mutated in favour of the petitioner on 07.07.2005. The opposite party no.2 thereafter filed Civil Suit No.639 of 2007 in the court of the Civil Judge (Sr. Division), Bhubaneswar, which was for grant of injunction regarding possession. It is stated at the Bar by learned counsel for opposite party no.2 that the said suit has been dismissed in default. Then, on some application filed by opposite party no.2, the impugned notification dated 27.06.2008 was issued declaring the chain of transactions over the property in question to be contrary to law and opposed to public policy. The said order was issued in exercise of power conferred under Section 22A of the Indian Registration Act, 1908, which provides that “The State government may, by notification, declare that the registration of any document or class of documents is opposed to public policy.” Aggrieved by the said order, this writ petition has been filed.
3. We have heard Mr. R.K. Mohanty, learned Senior Counsel appearing along with Mr. B. Mohanty learned counsel for the petitioner; Mr. B.P. Pradhan, learned Addl. Govt. Advocate appearing for State-opposite party no.1 and Mr. Y. Das, learned Sr. Counsel appearing along with Mr. Rajeet Roy, learned counsel for contesting opposite party no.2. The other opposite parties are not represented through any counsel. Pleadings between the petitioner and the contesting opposite party no.2 have been exchanged. The State-opposite party has chosen not to file any counter affidavit. By consent of learned counsel for the parties, this writ petition is being heard and disposed of at this stage.
4. The submission of Mr. R.K. Mohanty learned Senior Counsel for the petitioner is that the transaction, on the basis of the power of attorney dated 16.10.1990 was perfectly valid and the sale deed executed on 13.12.1991 in favour of M/s RIH Pvt. Ltd. was duly registered and possession was also handed over, and thereafter the subsequent owner executed a power of attorney in favour of opposite party no.4-Pratap Kumar Mohanty, who sold the property in favour of the petitioner vide sale deed dated 04.06.2005, on the basis of which the mutation has also been made in favour of the petitioner on 07.07.2005, and possession has also been handed over to the petitioner. It is further contended that opposite party no.2 did not raise any objection with regard to the earlier transactions, and the petitioner herein was the bona fide purchaser of the property by a valid sale deed and in possession of the property. The submission of learned counsel for the petitioner is that it was only in the year 2007 that for the first time opposite party no.2 raised the issue by filing Civ
