2018 PLP 1717 (YLR)

SADAQAT HUSSAIN RAJA, J.

The captioned writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made:-- "It is, therefore, very humbly prayed on behalf of petitioner that Hon'ble Court may very graciously be pleased to accept the instant writ petition and the order of learned Registrar/District Judge dated 01.08.2013, along with the order of Assistant Commissioner (Sub-Registrar) dated 19.05.2012, may kindly be declared as null and void. It is further prayed that the private respondents Nos. 3 and 4, may also kindly be directed to be proceeded under the law on the subject. Any other relief to which the petitioner is entitled may also kindly be granted." Precise facts of the case are that petitioner is permanent resident of Baila Noor Shah Tehsil and District Muzaffarabad. It is contended that in 2009, some land from Baila Noor Shah was acquired for construction of Nullochi Bypass Road including survey Nos.76, 103/1, 78 and 519, measuring 12 Marlas which was in the ownership of Iqbal Hussain Shah, real brother of the petitioner and compensation was fixed as Rs.7820000/-. It is further contended that Iqbal Hussain Shah died on 17.01.2009, before issuance of award. It was stated that mutatation of inheritance Iqbal Hussain Shah was entered by the revenue authorities and duly attested as mutation No.467. It is further alleged that the petitioner moved an application to the Collector for payment of compensation amount in favour of legal heirs of the deceased because Iqbal Hussain Shah died unmarried. The petitioner was informed that private respondent No.3, has received the compensation amount of Iqbal Hussain Shah by producing a gift-deed executed in favour of private respondent No.4. The petitioner submitted an application for issuance of certified copy of gift-deed but the authorities reported that no such document is available in their record. The petitioner reported the matter to anti-corruption police for inquiry and the Anti-Corruption Police after detailed preliminary inquiry lodged FIR No.8/2012, in the offences under Sections 467, 468, 471, 109, 419, 420 A.P.C. and 5(2) P.C.A. It is submitted that thereafter private respondents Nos.3 and 4, applied to the Assistant Commissioner Muzaffarabad, who entered the gift-deed in the relevant Register. It is further stated that the petitioner filed an application under Section 68 of the Registration Act, before the Registrar/ District Judge Muzaffarabad for setting aside the order of the sub-Registrar. The learned District Judge after hearing the parties dismissed the application filed by the petitioner through the impugned judgment and order, which is illegal, arbitrary and without lawful authority. Respondents have contested the petition by filing written statement, wherein it is stated that the petitioner has no locus-standi to file the instant writ petition and writ petition is misconceived and incorrect, hence, is liable to be dismissed. It is claimed that petition is not maintainable because an alternate remedy is available to the petitioner. It is further stated that disputed questions of facts have been raised in the petition which cannot be resolved in exercise of writ jurisdiction. It is also stated that name of respondents were entered in the award due to clerical mistake. It is stated that after investigation the complaint of the petitioner was found false, hence, was cancelled by the Court of competent jurisdiction. The other claims of the petitioner have also been refuted. The learned counsel for the petitioner argued that Iqbal Hussain Shah, real brother of the petitioner died before issuance of the award, whose land was acquired for construction of Nulochi Bypass Road. The learned advocate further argued that deceased was unmarried, hence, his compensation was to be divided in his legal heirs in accordance with Sharia. The learned Advocate contended that a mutation in favour of the legal heirs of deceased was entered into the revenue record. The learned advocate submitted that the petitioner applied for issuance of compensation amount in favour of the legal heirs of deceased whereupon, he was informed that respondent No.3, has received the same by producing some gift-deed. The learned advocate contended that sub-Registrar on the move of private respondents has illegally registered the gift-deed at belated stage. The learned advocate further argued that petitioner filed application under section 68 of Registration Act, for cancellation of order of sub-Registrar but the Registrar has dismissed the application on frivolous grounds. The learned advocate further submitted that the impugned judgment and order is illegal against the law, hence, is liable to be set-aside. The learned Advocate appearing for the respondents vehemently argued that on the one hand the petitioner has approached the civil Court for cancellation of gift-deed while on the other hand he filed application under Section 68 of the Registration Act, before District Judge, Muzaffarabad, which has rightly been rejected because the Registrar has no authority to cancel any registered document. The learned advocate further argued that the writ petition is liable to be dismissed because the petitioner has approached the Civil Court for cancellation of gift-deed. I have heard the learned counsel for the parties and gone through the record of the case. It is an admitted position that gift-deed has been entered in the relevant register and the petitioner has approached the Civil Court for cancellation of the same. The sub-Registrar has registered the gift-deed after detailed inquiry and the complaint filed by the petitioner before anti-corruption police has also been consigned to record being frivolous one. After registration of a document the Registrar has no authority to cancel the same under Section 68 of the Registration Act. For proper appreciation Section 68 of the Registration Act, is reproduced as under:- "68. (1) Every Sub-Registrar shall perform the duties or his office under the superintendence and control of the Registrar in whose district the office of such Sub-Registrar is situate. (2) Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act which he considers necessary in respect of any act or omission or any Sub-Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered." A perusal of the above reproduced provision of law reveals that Registrar has no authority to cancel the registration of a document the execution of which was not denied and which had already been registered by the Sub-Registrar. In support of this view a reference can be made to [AIR 1933 Lahore 786], the relevant observation is reproduced as under: "The order of the Registrar, dated 25th April 1925, cancelling the registration was, in my opinion, absolutely unauthorised. He purported to act under S.68(2), Registration Act, but that section does not confer upon him the power of cancelling the registration of a document, the execution of which is not denied and which has been already registered by a Sub-Registrar". It may be observed that Section 68 of the Registration Act, only empowers the Registrar to issue directions to the Sub-Registrars in respect of their ministerial functions and duties. This view lends support from AIR 1955 Madhya Baharat 205, relevant observation is reproduced as under: "This section only provides that every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar and that every Registrar shall have authority to issue any order consistent with the Act, to any Sub-Registrar in respect of any act or omission on his part or in respect of rectification of any error regarding the book or the office in which any document has been registered. To me it appears that S.68 only empowers the Registrar to issue directions to the Sub-Registrars in respect of their ministerial functions and duties. That section does not confer on the Registrar the power of cancelling the registration of a document, the execution of which is not denied and which has already been registered by a Sub-Registrar. I am fortified in this view by a decision of the Lahore High Court in "Hussain Ali Shah v. Sardar Ali Shah, AIR 1933 Lah. 786(a), where it has been pointed out that under the Registration Act, the Registrar has no power to cancel a registration already completed by the Sub-Registrar and that S.68(2) does not confer any such power on the Registrar. In my opinion, the order of the Registrar dated 09.04.1952, cancelling the registration was absolutely unauthorised". As it is clear that the Registrar has no authority under Section 68 of the Registration Act to cancel a registered document, hence, the learned District Judge/Registrar has not committed any illegality while passing the impugned order. Moreover, the petitioner has approached the Civil Court for cancellation of gift-deed which, in my considered view, is a proper forum for the purpose, hence, the writ petition is not maintainable and liable to be dismissed. In view of above finding no force in the instant writ petition, the same stands dismissed. ZC/15/AJK(HC) Petition dismissed.