2012 (7) TMI 979 - HC - Indian Laws

Summary

Issues Involved:
1. Competence of Sub Registrar to make an endorsement regarding attachment of immovable property.
2. Applicability of Section 102 and Chapter VII-A of the Code of Criminal Procedure, 1973.
3. Validity of the Sub Registrar's action based on the police officer's request.
4. Provisions of the Registration Act and Rules regarding attachment and encumbrance.

Summary:

1. Competence of Sub Registrar to make an endorsement regarding attachment of immovable property:
The petitioner challenged the unauthorized endorsement of attachment made against their property in the encumbrance certificate. The main issue was whether the Sub Registrar is competent to make such an endorsement based on a request from an investigating officer. The court concluded that the Sub Registrar is not empowered by any provisions of the Code of Criminal Procedure, 1973, to pass an order of attachment and show the same in the encumbrance certificate. An order of attachment can only be passed by a competent court, which was absent in this case.

2. Applicability of Section 102 and Chapter VII-A of the Code of Criminal Procedure, 1973:
The court examined the relevant provisions of the Code of Criminal Procedure, particularly Section 102, which gives power to the police officer to seize certain property. However, it was determined that Section 102 does not include the power to attach immovable property. The court also noted that Chapter VII-A of the Code, which deals with reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property, does not apply to local offences but only to offences with international ramifications, as clarified by the Apex Court in State of M.P. v. Balram Mihani and others {(2010) 2 SCC 602}.

3. Validity of the Sub Registrar's action based on the police officer's request:
The court found that the Sub Registrar's action of making an endorsement in the encumbrance certificate based on the police officer's request was unauthorized and illegal. The letter from the police officer could not be treated as an order of attachment. The court emphasized that the Sub Registrar could not act in the absence of a specific order passed by a competent court.

4. Provisions of the Registration Act and Rules regarding attachment and encumbrance:
The court referred to Section 89 of the Registration Act, which outlines the procedure for filing copies of certain orders, certificates, and instruments with the Registering Officer. It was noted that the Sub Registrar is not empowered to pass an order of attachment or make an endorsement in the registers on their own. The court also highlighted that the meaning of "attachment" and "encumbrance" requires an order of attachment by a competent court to create an encumbrance over the property.

Conclusion:
The writ petition was allowed, and the court directed the second respondent to remove the unauthorized endorsement of attachment from the register. The judgment clarified that this decision does not prevent interested parties from obtaining valid orders of attachment from a competent court. No costs were awarded.