W.P.(C) No. 2355 of 2009. Case: Bijay Kumar Paikaray Vs State of Odisha and Ors.. High Court of Orissa (India)
| Case Number | W.P.(C) No. 2355 of 2009 |
| Counsel | For Appellant: R.K. Mohanty, Sr. Advocate, B. Mohanty, B. Mohapatra, S. Nanda, S.K. Sahoo and S.S. Kashyap, Advocates and For Respondents: B.P. Pradhan, Addl. Govt. Advocate |
| Judges | Vineet Saran, C.J. and Dr. B.R. Sarangi, J. |
| Issue | Constitution of India - Articles 14, 226, 246; Indian Penal Code 1860, (IPC) - Sections 34, 420, 465, 467, 468, 471; Registration Act, 1908 - Section 30 |
| Judgement Date | January 03, 2017 |
| Court | High Court of Orissa (India) |
Judgment:
Vineet Saran, C.J.
1. 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 re, 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 umar 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 hade 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 Civil Suit No. 639 of 2007, in which the petitioner entered appearance and filed written statement, and thereafter opposite party No. 2 chose not to contest and allowed the civil suit to be dismissed in default.
5. The specific case of the petitioner is that the power under Section 22A of the Indian Registration Act, 1908 could not have been exercised in the present case, as the said power only entitled the State Government to declare the registration of any document or class of documents to be opposed to public policy and in the absence of the public policy having been defined and also in the absence of any cogent reason given in the...
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