# Kamla Nehru Educational Society v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-07
- **Case number:** Misc. Bench No. 13415 of 2019
- **Bench:** Munishwar Nath Bhandari, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamla-nehru-educational-society-v-state-of-u-p-ors-45843
- **Pages:** 17

## Headnote

A. Civil Law - Registration Act 1908 -
Section 69 - Registered deed - Cancellation -
Jurisdiction
of
Civil
Court
-
Legality
of
Administrative Order - The distinction between the
jurisdiction of the Civil Court and the Revenue
Court was made - A challenge to the registered
deed can be made only by maintaining a civil suit
- For cancellation of the deed, one need to
approach the Civil Court and thereby, the
cancellation deed after its registration was held to
be wholly void and non est. (Para 45 and 46)
Held -

## Text

_Characters 0–39,943 of 56,258. This is a partial read: ask again with offset=39943 for what follows._

100 INDIAN LAW REPORTS ALLAHABAD SERIES
be placed before the Writ Court for further
proceedings.
----------
(2020)07ILR A100
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2020

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Misc. Bench No. 13415 of 2019
and
Misc. Bench No.31854 of 2019

Kamla Nehru Educational Society
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nikhil Singh, Brijesh Kumar, Viplaw Sharma

Counsel for the Respondents:
C.S.C., Rajendra Pratap Singh, Surendra
Pratap Singh

A. Civil Law - Registration Act 1908 -
Section 69 - Registered deed - Cancellation -
Jurisdiction
of
Civil
Court
-
Legality
of
Administrative Order - The distinction between the
jurisdiction of the Civil Court and the Revenue
Court was made - A challenge to the registered
deed can be made only by maintaining a civil suit
- For cancellation of the deed, one need to
approach the Civil Court and thereby, the
cancellation deed after its registration was held to
be wholly void and non est. (Para 45 and 46)
Held -
47. The direction of the District Magistrate to the
Sub Divisional Magistrate for cancellation of deed
without a civil suit would be illegal and otherwise
mere cancellation of the order dated 09.02.2002
on any ground whatsoever would not be of any
avail after execution of instrument with its
registration unless the process of cancellation of
registered deed by a civil suit is taken, as clarified
hereinabove.
B. Civil Law - Nazul Manual - Rule 28 and 29
- Document - Nature - Method of Determination
- The nomenclature of the document cannot be a
guiding factor - What would prevail is the contents
of the document - The registration of instrument
was necessary in view of the Rule 29 read with
Rule 28 of the Nazul Manual. In the instant case, it
is not a lease deed but to be considered a sale
deed after declaring land to freehold because the
provisions of the Nazul Manual does not provide a
deed of any other kind than lease deed or sale
deed. The lease deed is executed on annual rent
whereas sale deed on payment of consideration.
(Para 14 and 44)
C. Civil Law - Nazul Land - Encroachment -
Regularization in favour of encroacher - The Nazul
Manual does not promote allotment of Nazul land
to the encroachers. The circulars issued by the
government are in ignorance of the provisions of
the Nazul Manual - The encroachment of the
government or Nazul Land takes place either in
connivance of the Government officials or their
negligence otherwise there was no reason for the
petitioners to occupy the land without applying the
means, provided under the law - Court found no
reason to direct the respondents to allot the land
to the encroachers or to restrain them to remove
the encroachment. (Para 13, 14 and 16 of the
Judgment passed in connected writ petition)
Writ Petition allowed; Connected Writ
Petition no. 31854 of 2019 dismissed (E-1)
Cases relied on :-
1. Writ C No. 2973 of 2016; Smt. Kusum Lata Vs
St. of U.P & ors. decided on 18.05.2018
2. Thota Ganga Laxmi & anr. Vs Govt. of A.P. &
ors. (2010) 15 SCC 207
3. City and Industrial Development Vs Ekta
Mahila Mandal & anr decided by Supreme Court
on 17.09.2007
4. Jagpal Singh & ors. Vs St. of Punjab & ors.
decided by S.C. on 28.01.2011

(Delivered by Hon'ble Vikas Kumvar Srivastav, J.)
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
101

1. By way of this writ petition, a
challenge has been made to the order dated
23.3.2019 passed by the opposite party no.2
to cancel the order dated 9.2.2002 by which
land in dispute was declared freehold. It is
with a direction for refund of the amount to
the petioner, as was paid at time of
execution of the deed.

The case has long chequered
history thus need to be given in serratum
for clarity.

2. By the order dated 11.3.1974, a
decision was taken for lease of Nazul land
in dispute to the petitioner society. The
District Collector passed an order on
6.10.1976 for grant of lease for period of
30 years on an annual rent of Rs.1,135/-. It
was as per the direction of the Governor of
the State of U.P. under Rule 51 of the
Nazul Manual. The order dated 6.10.1976
was passed in pursuance to the letter dated
7.7.1976 for grant of lease to the petitioner
society. The name of the petitioner society
was thereafter entered in the Nazul Register
and Khatauni fasli 1389.

3. The District Collector, Raebareli
sent
a
letter
dated
4.4.193
to
the
Government to find out whether lease deed
has been examined to undertake further
process of its execution. The lease deed
was however not executed despite the
aforesaid. A letter was also sent by the
Union Minister to the State Government for
execution of lease deed as the petitioner
society intend to open a Girl's college in
Raebareli.

4. The State Government issued
various general orders from time to time for
conversion of Nazul land to freehold and
accordingly the petitioner society made an
application on 06.02.2001 to declare land
in dispute to be freehold. The application
aforesaid was supported with an amount
equivalent to 25% to the value of the land
in dispute. The letter aforesaid was
processed by the State Government with an
order on 9.2.2002 to declare land in dispute
to free hold. The petitioner society
accordingly
paid
the
amount
of
consideration, as was directed. It was with
deposit of arrear of lease rent. A total sum
of Rs.30,33,600/-, apart from entire amount
of lease rent, as demanded, was deposited.
A deed for transfer of land was then
executed on 6.3.2003. The deed was
registered as per the provisions of the
Registration Act, 1908.

5. A litigation by way of Writ Petition
No.7464 (M/B) of 2006 was initiated by
one Suresh Kumar Maurya and others with
the prayer to quash the registered deed
dated 6.3.2003 alleged to have obtained by
fraud. The said writ petition was dismissed
by the order dated 8.4.2016 on the ground
of laches but with the observation that in
case of fresh cause of action, the order
aforesaid would not be an impediment to
persue it.

6. A writ petition was preferred even
by one Mani Bhadra Singh bearing Writ
Petition No.11634 (M/B) of 2016. It was
decided by this court vide its judgement
dated 25.8.2017 after detailed discussions
of facts. A direction was given to
respondent no.3 therein to take a final
decision in the matter within three months
from the date of production of the copy of
the order. The prayer in the said writ
petition was also to cancel the registered
deed dated 6.3.2003. The impugned order
was then passed by the

7. The writ petition has been
contested by the learned Standing Counsel
102 INDIAN LAW REPORTS ALLAHABAD SERIES
appearing for State Government. The
arguments were advanced even by the
intervenor while pressing their own writ
petition alongwith with the contest of
present one. The allegation of forgery on
the part of the petitioner and all officials
have been made though it has been refuted
by the Standing Counsel.

ARGUMENTS ON BEHALF
OF THE PETITIONER

8. Learned counsel for the petitioner
submits that the impugned order has been
passed by the District Magistrate, Raebareli
in a mechanical manner. The observations
made by this Court in the case of Mani
Bhadra Singh (supra) was taken to be final
contrary to the direction therein. In view of
the above, the impugned order has been
passed with pre conceived notions.

9. The District Magistrate, Raebareli
has
recorded
finding
about
the
manipulation and incorrect statement to get
the order dated 9.2.2002 whereby the land
was declared to be freehold. The petitioner
did not manipulate or made incorrect
statement for passing of the order dated
9.2.2002. Entry in the Nazul Register was
made by the Lekhpal pursuant to the
direction of the District Magistrate. It was
as per the Nazul Manual but ignoring the
aforesaid, erroneous finding has been
recorded against the Lekhpal and entries in
the Nazul Register apart from the revenue
record.

10. The interference in the order dated
9.2.2002 has been made even on the ground
that a lease deed was not executed in
favour of the petitioner, thus, conversion of
Nazul land to freehold was not permissible.
It is in ignorance of the fact that under Rule
14 and 19 of Nazul Manual, sale of the
Nazul land can be made by the State
Government.
The
deed
executed
on
6.3.2003 is nothing but sale of the land. It
has been ignored by the District Magistrate.
The finding has been recorded in ignorance
of the fact that decision to grant lease in
favour of the petitioner was taken under
Rule 51 by Governor of the State. Thus,
registration of lease deed was not a pre
condition as it was otherwise governed by
Section 2 of the Government Grants Act,
1895. It is also stated that if registration of
the deed was a pre condition then the
respondents should not have taken lease
rent for the period of twenty seven years
before execution of the sale deed dated
6.3.2003.

11. The District Magistrate has
directed for cancellation of the entries
made in the Nazul Register apart from
revenue record without taking procss given
under the Uttar Pradesh Revenue Code,
2006. The entries were made by the
Lekhpal on the direction of the District
Magistrate as per Rule 5-A of the Nazul
Manual. The District Collector has failed to
make a reference of the provisions of the
Nazul Manual and ignored its own order
whereby he directed the Lekhpal to make
entries in the Nazul register.

12. A reference of an agreement to
sell by the petitioner has also been given. It
is said to be in violation of the conditions
of lease, whereas lease deed was never
executed even as per the statement of side
opposite. The agreement to sell was
executed subsequent to the registered deed
dated 06.03.2003 when petitioner society
became absolute owner of the land. The
consideration
of
Rs.
30,33,600/-
for
execution of the sale deed dated 06.03.2003
was on the market rate prevalent at the
relevant time. The deed executed therein
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
103
shows State Government to be the seller
and petitioner as purchaser with absolute
ownership right.

13. Once the sale deed was executed
with registration, it cannot be cancelled by
the Administration itself but can be through
a suit for cancellation of deed. It is now
barred by limitation.

14. It is also stated that the
nomenclature of the document cannot be a
guiding factor. What would prevail is the
contents of the document. The registered
deed dated 6.3.2003 shows it to be nothing
but sale of land in favour of the petitioner,
thereby the impugned order deserves to be
quashed even for a direction to S.D.M. to
take steps for its cancelllation.

15. The impugned order sufferes from
non-application of mind as it is based on
the report given by the District Government
Counsel and Deputy Collector, Raebareli
indicating entries in the Nazul records to be
without authority of law. The opinion
aforesaid was given ignoring Rules 5A of
Nazul Manual and otherwise once the
entries were made, it could not have been
ignored without its cancellation after taking
the process, as given under the U.P.
Revenue
Code
of
2006.
The
non
compliance of Rule 5-A of Nazul Manual
has been shown ignoring the fact that
entries in the Nazul registered was made by
the Lekhpal on the direction of the District
Magistrate competent for the aforesaid.

16. In the light of the submissions
made above, the prayer is to set aside the
order dated 23.3.2019. The interference in
the direction to change the name of the land
holder in the Nazul register and revenue
record without undertaking the process, as
given under the Code of 2006 also deserves
to be set aside while maintaining it to the
extent of a direction to evict the trespassers.
The writ petition be allowed with the
aforesaid.

ARGUMENTS ON BEHALF OF
THE STANDING COUNSEL

17. The Standing Counsel has
contested the writ petition. It is submitted
that the order dated 9.2.2002 was passed in
ignorance of the provisions of Nazul
Manual. The order to convert Nazul land to
freehold was without a registered lease
deed in favour of the petitioner society. The
reasonings given by the District Magistrate
to cancel the order dated 9.2.2002 were
reiterated to contest the writ petition and
would
be
considered
alongwith
the
arguments of the counsel for the intervenor.

18. So far as the rights of the
petitioner flowing from the registered deed
are concerned, it has not been disputed. It is
however stated that the Sub Divisional
Magistrate has been given direction for its
cancellation. Thus, whatever rights are
flowing in favour of the petitioner out of
the registered deed, would come to an end
with cancellation of lease deed. It is also
stated that the land would otherwise be
made free from encroachments. The action
for it would be taken forthwith.

19.

A
direction
to
remove
encroachment exist in the impugned order
and to that extent, even the writ petition has
not been been pressed by the petitioner
though a challenge to it has been made in
connected writ petition preferred by the
intervenor. The intervenor are not having
any right to possess the land and being
encroacher,
they
would
be
removed
immediately pursuant to the direction given
by the District Magistrate in its impugned
104 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 23.3.2019.There even the
petitioners would have no right on the land
the moment registered deed is cancelled by
he S.D.M. The land in dispute would vests
in the Government as Nazul free from
encroachment.

20. The prayer is to dismiss the writ
petition.

ARGUMENTS
OF
THE
INTERVENOR

21. Learned counsel for the intervenor
submits that presently the intervenors are in
possession of the land. They are carrying
on their business and few are having
residential houses.

22. In view of the above, connected
writ
petition
bearing
Writ
Petition
No.31854 (M/B) of 2019 has been filed to
seek a direction for allotment of land to the
intervenors.

23. Contesting the writ petition, it is
stated that without execution of the lease
deed in favour of the petitioner society,
conversion of land from Nazul to freehold
by the order dated 9.2.2002 is rightly held
to be illegal.

24. Learned Senior Counsel made a
reference of the document submitted by the
petitioner to show fraudulent entries in the
record. It is to enter the name of the
petitioner society without even execution of
the lease deed pursuant to the order of the
Government. The requirement of lease
deed was even felt by the petitioner and
therefore they pursued the matter through
the then Union Minister late Smt. Sheela
Kaul
who
sent
letter
to
the
State
Government. The District Magistrate has
made reference of the interpolations in the
record. It was otherwise noted by this Court
in the case of Mani Bhadra Singh (supra)
though
it
may
not
be
with
final
conclusions. The District Magistrate has
not based its order on the finding of this
Court in the case of Mani Bhandra Singh
(supra)
but
considered
the
issues
independently.

25. Learned counsel for the intervenor
has further made a reference of the
registered deed dated 06.03.2003 to show it
to be for conversion of Nazul land to
freehold and not for its sale, as stated by
the petitioner. The recital of the deed has
been referred to substantiate the argument
aforesaid. The case does not fall under Rule
14 or 19 of the Nazul Manual as it is not a
case of sale of land but conversion of Nazul
land to freehold. The registration of the
lease deed was necessary as per Nazul
Manual before declaring land to be
freehold. The District Magistrate has
rightly taken note of the aforesaid aspect. It
has also noted the agreement to sale
executed by the petitioner contrary to the
conditions of the lease. Thus, the impugned
order has right been passed other than for a
direction to evict the intervenor. A
challenge to the direction aforesaid has
been made by maintaining a separate writ
petition which has also been argued
alongwith the present writ petition.

26. Learned counsel for the intervenor
has further contested the argument on the
cancellation of the entries in the record by
the impugned order. It is stated that when
entries were fraudulently made, it was
liable to be nullified or cancelled without
taking the process, as provided under the
Code of 2006. It is more so when a
direction was given by this court for
appropriate decision. Thus, the court may
not cause interference in the impugned
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
105
order on any of the ground raised by the
petitioner. A reference of the relevant
provisions of the Nazul Manual apart from
the provisions of the Government Grants
Act, 1895 has been given. In the written
argument, an additional ground in reference
to the conversion charges has been raised
but that is not otherwise the ground for
cancellation of the order dated 9.2.2002.
The aforesaid argument was not raised
earlier before this court during the course
of oral arguments.

27. Learned counsel for the intervenor
however submitted that the arguments for
cancellation of the registered lease deed
without civil suit would be of no
consequence because a direction for its
cancellation has been given to Sub
Divisional Magistrate. The prayer is
accordingly to dismiss the writ petition.

FINDINGS OF THE COURT

28. The writ petition has been filed to
challenge the order dated 23.03.2019
whereby earlier order dated 09.02.2002 to
declare land in dispute to freehold has been
cancelled.

29. Brief facts pertaining to the case
have been narrated hereinabove thus, need
not to be reiterated.

30. The challenge to the order passed
by the District Magistrate is mainly in
reference to Nazul Manual. It is urged that
the District Magistrate while passing the
impugned order has ignored the provisions
of Rule 14 and 19 of the Nazul Manual. It
is stated to be a case of sale of land by the
State Government, as permissible under
Rule 14 of the Nazul Manual. It is seriously
contested by the intervener in reference to
the registered deed. The title of the deed
and contents thereof have been referred to
show it to be a case of conversion of Nazul
land to freehold and not a case of sale.

31. To appreciate the arguments, it
would be relevant to refer Rule 14, 19, 28,
29,
51
and 74,
which
are
quoted
hereunder:-

"14. Sale or lease of a plot for
building
purposes
shall,
subject
to
provisions of Rule 16, be sanctioned by-

(1) the Collector, if the estimated
value does not exceed Rs. 2,500;

(2) the Commissioner, if the
estimated value exceeds Rs. 2,500 but does
not exceed Rs. 10,00;

(3) the State Government in other
cases.

In such cases, the term of sale or
lease as finally arranged, shall be subject
also
of
to
confirmation
by
the
Commissioner or the State Government as
the case may be, unless the terms have
already been set forth in the proposal for
sale or lease and have been approved.
Copies of orders sanctioning sale of nazul
property shall be forwarded to the
Accountant General, Uttar Pradesh.

19.
Notwithstanding
anything
contained in Rule 18, the State Government
may sanction a lease or sale of Nazul had
for such purposes and at such rates as it
may,
having
regard
to
the
special
circumstances of the case, consider proper.

28. Execution of deed of sale or
lease:- Every deed of sale or lease shall be
executed in duplicate by the Secretary to
the State Government or the Commissioner
106 INDIAN LAW REPORTS ALLAHABAD SERIES
or the Collector, as the case may be , who
has sanctioned the sale or lease. At the time
of execution the vendee or lessee shall be
given the duplicate copy of the sale deed or
lease. If the sanction of the State
Government or the Commissioner is
required, three copies of the deed shall be
submitted. Deeds of sale and lease will be
executed in the forms approved by the State
Government, copies of which can be
obtained from the Superintendent, Printing
and Stationary, Uttar Pradesh.

29. The date of sale or lease shall in
all cases be stamped by the transferee or lessee.
The duplicate copy prescribed under Rule 28
shall not be stamped. The deed of sale or lease
under these rules should be registered.

51. Land for charitable purpose-
Ordinarily no lease or sale of nazul land at
concessional rates shall be allowed for
purposes other than charitable purposes such
as, for hospitals, educational institutions and
orphanages, and the concession so allowed
shall not exceed half the annual rental in the
case of lease or half the total market value in
the case of sale.

Provided
that,
subject
to
the
condition that the total amount of concession
does not exceed Rs. 10,000 in value, in places
other than big cities the rate of concession may
exceed the limit aforesaid in the case of the
following categories of institutions:

(i)
Girls'
schools
and
other
educational institutions for women having a
popular manging body.

(ii) Institutions engaged in the uplift
of Harijans and their housing and education :

Provided also that, subject to the
condition that the total amount of concession
does not exceed Rs. 15,000 in value in 'KAVAL'
towns and Rs. 3,000 in other towns, the rate of
concession may exceed the limit aforesaid in
the case of educational institutions proposed to
be started by local bodies in connection with
the compulsory Primary Education Scheme of
the Uttar Pradesh Government.

74. Removal of Encroachments:- the
local body shall comply with any order of the
Collector requiring the removal of any
encroachment upon, or of unauthorized
occupants of nazul.

32. The fact of the case shows that an
application was submitted by the petitioner for
grant of lease of the Nazul property to establish
a girl's college. A decision to grant lease was
taken by the Governor of the State by invoking
Rule 51 of the Nazul Manual and accordingly,
an order to grant lease for a period of 30 years
was issued on 06.10.1976.The annual rent of
Rs. 1,135/- was determined. A direction for
execution of the lease was also given. The said
order was passed subsequent to the earlier
orders dated 07.07.1976 and 11.03.1974.

33. The fact however remains, is that
a lease deed was not executed in favour of
the petitioner. It is despite a request of the
petitioner and the then Union Minister. A
letter dated 04.04.1993 was also sent by the
District Magistrate to find out whether
lease deed has been examined so as to take
further process. The lease deed was
however not executed though name of the
petitioner's institution was recorded in the
Nazul Register and Khatauni Fasali 1389. It
was even in khataunies. The name of the
institution was recorded by the Lekhpal in
pursuance to the order passed by the
District Magistrate authorized for the
aforesaid but it is a fact that registered lease
deed was not executed, as per the Nazul
Manual.
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
107

34. The petitioner's society made an
application in the year 2001 to convert
Nazul land to freehold. The twenty five
percent of the amount, as provided under
Nazul Manual, was deposited along with
the application. The application was
processed and finally a decision was taken
to convert Nazul land to freehold and an
order for it was passed on 09.02.2002,
which has been cancelled by the impugned
order dated 09.02.2002.

35. The main ground to cancel the
order dated 09.02.2002 is absence of a
registered
lease
deed
and
even
manipulation of the enteries in Nazul
Register as well as in the revenue records.
It is also for violation of the condition of
lease by entering into agreement to sale.

36. After proper consideration of the
facts of this case in reference to the Rules
quoted above, we find that despite a
provision requiring registration of lease
deed and request of the petitioner, it was
not executed. The Rules referred above not
only requires execution of lease deed but
even registration thereof, which does not
exist in the present case.

37. According to the petitioner, it is
not a case of conversion of Nazul land to
freehold but sale of land under Rule 14 and
19 of the Nazul Manual. The contest on the
aforesaid has been made in reference to the
registered deed dated 06.03.2003 executed
in favour of the petitioner. The title of the
deed and few references therein show it to
be conversion of Nazul land to freehold
though at many places deed makes a
reference of sale of land pursuant to the
direction of the State Government. The
entries in the register has also been
questioned by the District Magistrate in its
order under challenge.

38. The issues aforesaid need to be
considered in reference to the subsequent
development
also
i.e.
execution
of
registered deed dated 06.03.2003. A
direction has been given to the Sub
Divisional Magistrate for its cancellation.

39. The question for our consideration
would be as to whether a direction for
cancellation of registered deed can be given
in the manner exist in this case. If it is not
permissible than what would be the effect
on the impugned order dated 23.03.2019 to
cancel earlier Government order dated
09.02.2002 to declare land in dispute to
freehold. It is for the reason that after the
order dated 09.02.2002, a registered deed
was
executed.
The
cancellation
of
registered deed is not permissible in the
hands of the Sub Divisional Magistrate or
by the State Government rather it can only
by way of a suit for cancellation of deed. It
is even if deed is said to have obtained by
fraud.

40. This court is accordingly
considering this case first in reference to
the existence of the registered deed in
favour of the petitioner. The Court would
even consider the argument of learned
counsel for the intervener who has urged
that order for conversion of Nazul land to
freehold was not permissible without
execution of the lease deed in favour of
the petitioner. It is even allegation of
manipulation in the record apart from
other grounds for cancellation of the
order dated 09.02.2002. It would be after
consideration of the direction to cancel
the registered deed executed in favour of
the petitioner. The registered deed was
executed to transfer land in dispute to
petitioner
society
after
receiving
consideration. It was registered under the
Registration Act, 1908.
108 INDIAN LAW REPORTS ALLAHABAD SERIES

41. The issue in that regard was
recently considered by this Court in the
case of Smt. Kusum Lata Vs. State of U.P.
and others in its judgment dated 18.05.2018
passed in Writ C No. 2973 of 2016. A
larger bench was constituted in view of the
divergent views taken by different courts.
Following issues were referred to the larger
bench.

"(a). Whether after a sale deed
has been registered, the Assistant Registrar
has any authority of law to cancel the
registered sale deed under the provisions of
the
Registration
Act,
1908
even
if
allegation
of
impersonation/fraud
are
made?

(b). Whether the allegations of
fraud are essentially, an allegation of fact
which need examination of oral or
documentary
evidence
and
can
be
adjudicated on the basis of evidence to be
led by the parties before competent civil
court?

(c). Whether the judgment in the
case of Raj Kumari (supra) or the judgment
in the case of Radhey Shyam Arora (supra)
lays down the correct law?"

42. The relevant paragraphs of the
said judgment are quoted hereunder for
ready reference:-

"Precisely, the issue before us
that whether a sale deed registered under
the Act, 1908 can be cancelled or set aside
by registering authority or by any other
authority invoking administrative powers, if
the registration is questioned on the count
of impersonation/fraud?

The question noticed above has
been
considered
and
dealt
with
threadbare by a Division Bench of this
Court in Krishna Kumar Saxena and
another Versus State of U.P. and 9
others, 2018 (127) ALR 466. In this case,
the
Assistant
Inspector
General
(Registration/Stamp),
Rampur
by
an
order
dated
18.10.2016
withdrew
registration of a sale deed and annulled
that on the count that the same was
executed by fraud and misrepresentation.
The Division Bench after examining all
relevant provisions of the Act, 1908 and
the law applicable held that in no case
registration of sale deed could have been
withdrawn and the sale deed could have
been annulled by administrative fiat. The
Division Bench also quashed the order
dated 13.08.2013 conferring powers upon
registering
authority
to
withdraw
registration of a registered deed and to
annul that. The discussion made by the
Division Bench and the findings arrived
in the case of Krishna Kumar Saxena and
another (supra) deserves to be quoted
and that is as follows:-

"In the light of the rival stand
made
by
the
parties
and
upon
consideration of the various provisions of
law, we find that the Registration Act is
a complete Code by itself for registration
of a certain documents. The procedure
for registration of a document is spelt out
in Part-VI of the Registration Act. Section
32 provides for persons to be present for
registration of the document. If the
document is required to be compulsorily
registered, in which case it becomes
optional for the persons to be present
under section 33 of the Act. Section 34
stipulates that enquiry is required to be
done
by
Registering
Officer
before
registering a document. Section 35
provides the procedure for admission or
denial of execution of the document.
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
109
Section 35 of the Act does not confer any
quasi-judicial power on the Registering
Authority.

The
Registering
Officer
is
expected to reassure himself that the
document to be registered is accompanied
by supporting documents. The Registering
Officer is not required to evaluate the title
or irregularity in the documents. The
examination to be conducted by the
Registering Officer is only to ascertain that
there is no violation of the provisions of the
Registration Act. Section 58 provides
particulars to be endorsed on document
admitted
to
registration.
Section
59
provides for an endorsement to be made
and signed by Registering Officer and
Section 60 provides for the registration of
the document. Where the registering officer
finds that a particular document cannot be
registered in which case he is required to
give reasons under section 71. Any persons
who
intentionally
makes
any
false
statement during the course of enquiry, a
penalty could be imposed under section 82
with imprisonment or with fine. Section 69
provides power to the Inspector General to
frame Rules which is consistent with the
Act. Such Rules so framed are required to
be published in the Official Gazette.

In so far as the case of Thota
Ganga Laxmi versus State of A.P (2010) 15
SCC 207 is concerned, the said decision
was based on a provision of Rule 26(k)(i)
of the Andhra Pradesh Registration Rules
1960 which were framed in exercise of the
power conferred under section 69 of the
Act. It is in the light of the provision of the
Rule 26(k)(i) that the Full Bench of the
Andhra Pradesh High Court held that
Registering Authority had the power to
annul a document where fraud had been
played by the parties. The said decision of
Andhra Pradesh in Yanala Malleshwari
(Supra) was explained by the Supreme
Court in Satya Pal Anand versus State of
M.P and others 2016(10) SCC 761 holding
that the Andhra Pradesh High Court was
only called upon to consider whether a
person can nullify the sale by executing and
registering
a
cancellation
deed
and
whether the Registering Officer was bound
to refuse registration when a cancellation
deed was presented. The Supreme Court
held that in view of the provisions of Rule
26(k)(i) of the Andhra Pradesh Registration
Rules, which was expressly provided in the
Rules
applicable
to
that
State,
the
registration of a document be annulled and
labelled as fraudulent or nullity in law.

No such Rules have been framed
under Section 69 of the Registration Act in
so far as the State of U.P is concerned. In
the absence of any express provision, the
registration of a document cannot be
withdrawn nor a sale deed could be
annulled by an executive fiat on the basis of
a Government Order dated 13.8.2013.

Unless and until there is an
express provision in the Act or in the Rules,
no Government Order could be issued
giving power to a Registering Authority to
annul a document on the administrative
side. Such powers given would be wholly
arbitrary and against and against the
provisions of the Act.

The State Government cannot,
while taking recourse to the executive
power of the State under Art. 162, deprive
a person of his property. Such power can
be exercised only by authority of law and
not by a mere executive fiat or order.
Article 162, as is clear from the opening
words, is subject to other provisions of the
Constitution. It is, therefore, necessarily
110 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to Art. 300A. The word 'law' in the
context of Art. 300A must mean an Act of
Parliament or of a State Legislature, a rule,
or a statutory order; having the force of
law, that is positive or State made law. This
principle was pronounced by the Supreme
Court in Bishambhar Dayal Chandra
Mohan and others versus State of Uttar
Pradesh and others(1982) 1 SCC 39.

The aforesaid principle is also in
consonance with Section 31 of the Specific
Relief Act which sates that it was only the
Court which has the power to cancel an
instrument where it is alleged that the
written instrument is void or violable."

43. The judgment referred above was
given when process for cancellation of
lease was taken by the Sub-Registrar and
thereupon, passed an order to cancel the
sale deed.

44. In the instant case, a dispute about
the nature of the deed has been raised. It is as
to whether it is a sale deed after declaring
land to be freehold. The fact however, could
not be disputed by either parties that deed
executed on 06.03.2003 was registered. The
registration of instrument was necessary in
view of the Rule 29 read with Rule 28 of the
Nazul Manual. In the instant case, it is not a
lease deed but to be considered a sale deed
after declaring land to freehold because the
provisions of the Nazul Manual does not
provide a deed of any other kind than lease
deed or sale deed. The lease deed is executed
on annual rent whereas sale deed on payment
of consideration. In any case, it can not be
disputed that an registered instrument exists
which cannot be cancelled other than by a
civil suit.

45. It is even in view of the judgment of
the Apex Court in the case of Narendra
Kumar Mittal vs. M/s Nuper Housing
Development Pvt. Ltd. and anothers (Civil
Appeal No. 5979 of 2019) dated 31.07.2019.
In that case also, deed was executed in favour
of the company. The challenge to it was
made by filing a civil suit. The prayer was to
cancel the sale deed. The maintainability of
suit was challenged in reference to Section
331 of the Uttar Pradesh Jamindari Abolition
and Land Reforms Act, 1950. It was
precisely on the ground that a civil suit is
barred in a case of agricultural land. The
arguments aforesaid was not accepted by the
Apex Court. The distinction between the
jurisdiction of the Civil Court and the
Revenue Court was made. The Apex Court
held that a challenge to the registered deed
can be made only by maintaining a civil suit.
The jurisdiction for cancellation of registered
deed lies only with the Civil Court.

46. The same view was taken by
Apex Court in another case of Thota Ganga
Laxmi and Another vs. Government of
Andhra Pradesh and others reported in
(2010) 15 SCC 207. In the said case, after
execution of sale deed, a deed for its
cancellation
was
executed
and
even
registered by one of the party. A challenge
to the aforesaid was made. The Apex Court
held that for cancellation of the deed, one
need to approach the Civil Court and
thereby, the cancellation deed after its
registration was held to be wholly void and
non est. A reference of section 69 of the
Registration Act 1908 has been given. The
relevant paragraphs of the said judgment
are quoted hereunder:-

"2.It appears that the father of the
appellants purchased the plot in question
from Respondent 4 by a registered sale
deed dated 21.06.1983 and since then the
appellants have been in possession and
enjoyment
of
the
said
property.
7 All. Kamla Nehru Educational Society Vs. State of U.P. & Ors.
111
Subsequently, it appears that the fourth
respondent purported to get the said sale
deed cancelled unilaterally, executing the
cancellation deed dated 04.08.2005 and the
same
was
registered
by
the
third
respondent without any notice to the
appellants.

3. A writ petition was filed
seeking declaration that the cancellation
deed is illegal and that has been disposed
of by the impugned judgment holding that
the appellants should approach the civil
court.

4. In our opinion, there was no
need for the appellants to approach the
civil court as the said cancellation deed
dated 4-8-2005 as well as registration of
the same was wholly void and non est and
can
be
ignored
altogether.
For
illustration, if A transfers a piece of land
to B by a registered sale deed, then, if it
is not disputed that A had the title to the
land, that title passes to B on the
registration
of
the
sale
deed(retrospectively from the date of the
execution of the same) and B then
becomes the owner of the land. If A wants
to subsequently get that sale deed
cancelled, he has to file a civil suit for
cancellation or else he can request B to
sell the land back to A but by no stretch
of imagination, can a cancellation deed
be executed or registered. This is
unheard of in law.

47. In the light of the aforesaid, the
direction of the District Magistrate to the
Sub
Divisional
Magistrate
for
cancellation of deed without a civil suit
would be illegal and otherwise mere
cancellation
of
the
order
dated
09.02.2002 on any ground whatsoever
would not be of any avail after execution
of instrument with its registration unless
the process of cancellation of registered
deed by a civil suit is taken, as clarified
hereinabove.

48. We are not going deep on the
issue of limitation for filing of the civil suit
as it is otherwise provided under the
Limitation
Act,
1963.The
district
magistrate in passing the impugned order
dated
23.03.2019
has
ignored
the
provisions of law and its authority because
at the end, following directions have been
given which are quoted hereunder for ready
reference:-

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49. The direction in para no.