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SCA/6571/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6571 of 2007
=========================================================
KALPESHBHAI
VANMALIDAS SHAH & 5 - Petitioner(s)
Versus
SUB-REGISTRAR,AHMEDABAD-3
& 7 - Respondent(s)
=========================================================
Appearance
:
MR
SHALIN N MEHTA for
Petitioner(s) : 1 - 6.
MR LR PUJARI, AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 4, 6, 6.2.1,
6.2.23, 6.2.26,6.2.47
NOTICE UNSERVED for Respondent(s) : 5,
MR
AMAR N BHATT for Respondent(s) : 6.2.2, 6.2.3, 6.2.4, 6.2.5, 6.2.6,
6.2.7, 6.2.8, 6.2.9, 6.2.10, 6.2.11, 6.2.12, 6.2.13, 6.2.14, 6.2.15,
6.2.16, 6.2.17, 6.2.18, 6.2.19, 6.2.20, 6.2.21, 6.2.22, 6.2.24,
6.2.25, 6.2.27, 6.2.28, 6.2.29, 6.2.30, 6.2.31, 6.2.32, 6.2.33,
6.2.34, 6.2.35, 6.2.36, 6.2.37, 6.2.38, 6.2.39, 6.2.40, 6.2.41,
6.2.42, 6.2.43, 6.2.44,6.2.45
- for Respondent(s) : 0.0.0
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 23/07/2008
ORAL
ORDER
The
petitioner by this petition has prayed for the relief inter alia to
prohibit Sub Registrar from registering the sale deed dated 1/2/2007
and the other consequential prayers are also made to declare that
the second sale deed executed by respondent No.6 in favour of
respondent No.5 is fraudulent, null and void.
Heard
Mr.Shalin Mehta, learned advocate for the petitioner and
Mr.L.R.Pujari, learned AGP for the respondent-State authority.
The
contention raised on behalf of the petitioner is that the power of
attorney is not genuine which can be considered from the affidavit
filed by the original owner of the land. The sale deed is fraud and
therefore, Sub Registrar has power to decline the registration. It
has been submitted that therefore, this Court may entertain the
petition and may not relegate the petitioner to approach before the
Civil Court.
It
deserves to be recorded that the subject matter of the petition is
essentially a dispute between the private parties namely the
petitioner on the one hand and the executor of the document of sale
deed. Whether the power of attorney is genuine or not or as to
whether the original author of the power of attorney executed the
power of attorney or not and that power is properly exercised or not
are essentially the dispute between the private parties which can
not be conveniently gone into this petition under Article 226 of the
Constitution of India. So far as the action of the Sub Registrar
for registration of the document is concerned, in normal
circumstances, if the document is properly presented before him and
is properly stamped, he would be required to accept the document for
registration unless there is any prohibitory order of competent
authority or of the competent forum.
If
the petitioner has any grievance about the genuineness of the power
of attorney or the power of attorney is not executed by the author
or that the sale deed is executed by way of playing fraud, the
petitioner has to resort to the appropriate proceedings before the
Civil Court where such question can be conveniently examined and the
rights can be crystallized between the private parties. The
contention of the learned advocate that Sub Registrar has power to
refuse registration on the alleged ground of no genuineness of the
power of attorney or that the author of the power of attorney did
not execute the power of attorney, cannot be entertained by Sub
Registrar while accepting the document presented for registration.
It is essentially a dispute between the private parties and the
Civil Court can only conveniently said issues. Therefore, the
present petition is not maintainable.
The
learned counsel for the petitioner attempted to rely upon the
decision of Gauhati High Court in the case of New India Assurance
Co. Ltd. vs. Member, Motor Accidents Claims Tribunal, Gauhati and
others, reported in 2007 SCJ 1360, by contending that the petition
would be maintainable if it involves the question of fraud. It was
submitted that such fraud would vitiate other action and therefore,
the writ can be maintained.
I
am afraid such contention can be accepted on the ground as sought to
be canvased. The award obtained by fraud in the proceedings of the
Court would stand on different footing with sale deed executed by
private parties. Therefore, the said decision is of no help to the
petitioner.
In
view of the above, as the petitioner has the remedy for ventilating
the grievances by approaching before the Civil Court, the present
petition can not be entertained. The same is disposed of
accordingly. However, it is clarified that such suit if filed the
rights and contentions of both the sides shall remain open.
Mr.Shalin
Mehta, learned counsel prayed that interim relief be continued so as
to enable the petitioner to approach before the Higher Forum.
Considering
the facts and circumstances of the case, said prayer is declined.
(JAYANT
PATEL, J.)
(ila)
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