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2018 (5) TMI 2136 - HC - Indian LawsCancellation of registered sale deed - authority of law to cancel the registered sale deed, after a sale deed has been registered, under the provisions of the Registration Act, 1908 even if allegation of impersonation/fraud are made - 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 or not? - Whether the judgment in the case of RAJ KUMARI VERSUS STATE OF U.P. THR. PRIN. SECY. DEPTT. OF REVENUE, LUCKNOW & OTHERS [2014 (3) TMI 1206 - ALLAHABAD HIGH COURT] or the judgment in the case of RADHEY SHYAM ARORA VERSUS STATE OF U.P. AND 6 OTHERS [2013 (11) TMI 1802 - ALLAHABAD HIGH COURT] lays down the correct law? HELD THAT:- On going through the Division Bench judgments in Raj Kumari and Radhey Shyam Arora, we do not find any conflict in the conclusions arrived. In Raj Kumari, a Division Bench while examining the issue that whether an administrative authority while acting upon the government order dated 13.08.2013 could have cancelled a registered sale deed by relying upon a Full Bench judgment of Andhra Pradesh High Court in Yanalla Malleswari Vs. Ananthalu Sayamma, [2006 (10) TMI 517 - ANDHRA PRADESH HIGH COURT] held that once incumbents who have proceeded to execute the sale deed, have no authority to execute sale deed then rightful order has been passed and accordingly in the facts of the case, there is no occasion for this Court to take a different or contrary view as any interference would subscribe void transactions. 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? - HELD THAT:- The Government Order dated 13.8.2013 confers unfettered and arbitrary powers upon the Registering Authority in violation of the express provisions of the Registration Act and such Government Order cannot be invoked to annul a document. The Government Order dated 13.8.2013 is not only arbitrary but is wholly without jurisdiction and cannot be sustained. If this Court while undertaking the powers under Article 226 of the Constitution of India interferes with the orders challenged in this petition then that would result into restoration of an illegality. It is well settled that powers under Article 226 of the Constitution of India must not be exercised if that restores and perpetuates an illegal order. Hon'ble Supreme Court in G. Venkateswara Rao Versus Government of Andhra Pradesh and others, AIR 1966 SC 828 concluded that though the State Government had no power to review its earlier order but if quashing of order reviewed would lead to restoration of an illegal order then High Court must refuse to exercise its extraordinary discretionary power. It is also well settled that the discretionary power vested with this Court is supposed to be invoked by taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, the nature and extent of injury that is likely to ensue by such grant or refusal, etc. and further that no writ, order or direction is required to be given if that does not subscribe to justice or serves the cause of justice. In the case in hand, as already stated, it is the position admitted even by the petitioner that the sale deed was registered in her favour subsequent to registration of sale deed in favour of respondent no. 4, Smt. Sheela Rai. In view of this admission, it would not be appropriate to invoke the powers under Article 226 of the Constitution of India in favour of the petitioner as that would restore an illegality. The writ petition, as such, deserves to be dismissed. The writ petition, hence, is dismissed.
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