Structure Raised By Purchaser On Migrant Land Cannot By Itself Stall Sale Deed Registration: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that the existence of a structure raised by the purchaser in good faith on land proposed to be purchased from a migrant owner cannot, by itself, be a ground to indefinitely withhold registration of the sale deed if the structure does not belong to the vendor.The Court was hearing a writ petition filed under Article 226 of the Constitution seeking a direction to the Sub-Registrar, Awantipora, to register a sale deed executed between the petitioner-purchaser and respondent No. 3, a Kashmiri migrant, in respect of four kanals of land. The transaction had already received permission from the Divisional Commissioner, Kashmir under Section 3 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.Justice Mohammad Yousuf Wani, while disposing of the petition, observed, “... If it is found by him upon verification that the structure/residential house presently standing on the subject land does not belong to the respondent No.3/vendor and has been raised/constructed by the petitioner/vendee or even by the attorney holder… then in such situation he can admit the document to registration… provided the document is complete in other legal respects.”Background:The petitioner had entered into an agreement to purchase four kanals of land from a Kashmiri migrant. To facilitate the transaction, the vendor executed a power of attorney in favour of Ghulam Mohammad Makroo, the petitioner's father. Since the property belonged to a migrant, the vendor sought permission from the Divisional Commissioner, Kashmir under the Migrant Act, 1997 which came to be granted.After the sale permission was issued, the parties executed the formal sale deed and presented it before the Sub-Registrar, Awantipora for registration.According to the petitioner, she had already raised a residential structure on the land in good faith after execution of the agreement to sell. The Sub-Registrar, however, did not act on the sale deed on the ground that the structure was not reflected in the sale permission issued by the Divisional Commissioner.The petitioner also stated that she was asked to obtain a valuation of the structure and deposit stamp duty and registration charges on its assessed value, which she did, yet the document remained pending for about seven months. Respondent No. 3 stated before the Court that he had no objection to registration of the sale deed.Court's Observation:The Court noted that the sale permission granted by the Divisional Commissioner made no mention of any structure or residential house standing on the land. At the same time, a communication issued by the Tehsildar, Awantipora indicated that a residential house had been constructed on the land by the attorney holder.The Court observed that this raised two possibilities, either the fact regarding the structure had been suppressed in the revenue reports forwarded for obtaining sale permission, or the structure was raised after grant of permission.The Court held that if the structure had been raised by the petitioner or her attorney holder, whether before or after issuance of sale permission, the structure should not form part of the sale deed because it did not belong to the migrant vendor.In this context, the Court categorically observed, “In either case, the said structure should not have been the subject matter of the sale deed in addition to the subject land.”The Court further clarified that the purchaser was not required to include such structure in the sale deed or pay stamp duty on its valuation.Addressing the conduct of the registering authority, the Court acknowledged that the Sub-Registrar had been confronted with a genuine factual and legal issue. However, it emphasized that he was duty-bound to decide the matter in accordance with law rather than keeping the document pending indefinitely.The Court observed: “By keeping the document pending without passing of any orders on the same in accordance with the law, the Sub-Registrar concerned has made the parties to the document to suffer, and remediless.”The Court held that the Sub-Registrar was competent to verify the factual position and revenue record. If upon such verification it was found that the structure did not belong to the vendor and had been constructed by the purchaser or her attorney holder, the sale deed could be admitted to registration with an appropriate note recording that fact.The High Court thus held that a structure raised by the purchaser in good faith on land proposed to be purchased from a migrant owner cannot prevent registration of the sale deed if the structure does not belong to the vendor.Accordingly, the Court disposed of the writ petition and directed the Sub-Registrar, Awantipora, to consider and decide the pending sale deed strictly in accordance with law, keeping in view the observations made in the judgment.Case Title: Nazira Begum v. Union Territory of J&K and...

Structure Raised By Purchaser On Migrant Land Cannot By Itself Stall Sale Deed Registration: J&K&L High Court

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Structure Raised By Purchaser On Migrant Land Cannot By Itself Stall Sale Deed Registration: J&K&L High Court

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