S.K. Mishra, J.—This judgment, arises out of two writ petitions, bearing W.P.(C) No. 13881 of 2015 by the M/s Hi-Tech Estates and Promoters (P) Ltd. and W.P.(C) No. 15473/2015 by the M/s. Rajdhani Systems & Estate (P) Ltd., represented through its Managing Director Tirupati Panigrahi for quashing of the letters issued by the Superintendent/of Police, Economic Offences Wing, CID, Crime Branch, Bhubaneswar, i.e. Opposite Party No. 1 to the Sub-Registrar, Jatni in the district of Khurda, i.e. Opposite Party No. 4 not to register any sale or transfer of the properties of the aforesaid two companies or its Directors without clearance of the Opposite Party no. 1.
2. It is submitted by the learned counsel for the petitioners and it is borne out from the pleadings that the petitioners are dealers in estate and are also involved in construction of buildings and flats. The business in usual course involves activities like purchase of land, obtaining permission for conversation from agriculture land to homestead, development of same and make layout of roads and set back arrangements so as to render the land to be plotted in different sizes to be sold to intending buyers by way of outright purchase or by way of payment in instalments. While continuing such business, the Directors of both the companies were arrested on 25.12.2012 by the Crime Branch (E.O.Ws.), Bhubaneswar upon receipt of allegation from a complaint, who has invested huge amount of money to purchase plot from the petitioners company.
3. In course of investigation, the Investigating Officer ''seized the documents, such as agreement, books of account and land records from the corporate office of the petitioners. However, Annexures-4, issued by the Investigating Officer are the letter of request to the Sub-Registrar, Jatni. The said letter required the Sub-Registrar not to allow registration to sale or purchase. It is proposed to be made by the petitioners company or its Directors. The registering authorities were directed to obtain permission from the Crime Branch to effect and allow registration. The petitioners-counsel submitted that five cases have been registered against the petitioners but the plots, which are described in the schedules to the writ petitions, are not subject matter of any of the criminal cases. It is also borne out from the record that the Hon''ble Supreme Court has granted bail to the petitioners on their depositing crores of rupees in the Registry of Apex Court. In a similar case, in W.P.(C) NO.17313/2014 filed by this two companies, a Bench of this Court has held that the Sub-Registrar, Jatni, without any impediment, has refrained from registering the'' sale deed executed by the petitioners in spite of the judicial order passed by the learned Addl. Sessions Judge, Bhubaneswar. It is further held that the Sub-Registrar is duty bound to effect of registration of sale deed validly executed unless prevented by order of Court or provision of law. In such factual backdrop, the petitioners prayed that Annexures-4 be quashed and they may be allowed to deal with the properties to carry on their day to day business affairs.
4. The opposite party no. 1 in essence challenges the writ petitions treating it as not maintainable as the letter dated 22.05.2013 had early been challenged in W.P.(C) No. 17556/2013, W.P.(C) No. 17313/2014 and CRLMC No. 3751/2014. The W.P.(C) No. 17556/2013 and CRLMC No. 3751 of 2014 were disposed of withdrawn but the W.P.(C) No. 17313/2014 has been disposed of on 30.09.2014 granting some relief to the petitioners but the Hon''ble Court did not" quash the letter dated 22.05.2013. Hence, it is submitted that the principles of res judicata will apply and the relief sought for in the present writ petitions cannot be granted. It is further stated that the petitioners have approached this Court after lapse of two years and there is delay and latches on the part of the petitioners. Therefore, the writ petitions should be dismissed.
Secondly, it is contended by the learned Addl. Government Advocate that as per the provision of Section 102 of the Cr.P.C., a police officer may pass such orders if the property in question has a direct link with the commission of offence. In support of such contention, the learned Addl. Government Advocate relies upon the reported case of State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685, wherein the Hon''ble Supreme Court has held that seizure of bank accounts comes within the meaning of property under Section 102 of the Cr.P.C. and the said document can be seized by the police if it is found to be related or connected of the offence allegedly committed by the petitioners.
5. As regards the first contention, it is appropriate on the part of this Court to examine the records of W.P.(C) NO. 17313/2014. In that case, the petitioners, filed an application to quash Annexure-1 and Annexure-3. Annexure-1 is similar letter written by the Superintendent of Police, EOW, CIO, Crime Branch, Bhubaneswar to the Sub-Registrar Jatni. Moreover, it is seen from the aforesaid records that the earlier writ petition, bearing No. 17313/2014 was filed seeked relief in pursuance of the orders passed by the Hon''ble Supreme Court in SLP (Criminal) Nos. 6749-51, 6961-63, 6942-44, 6983-85 and 6986-88, all of 2013, in which a request was made by the petitioners to permit sale of flats in the projects of Hi-tech Plaza and Hi-tech Heaven. Upon hearing the Hon''ble Supreme. Court by order dated 21.02.2014 made the following observations.
"xxx...... Insofar as the request of the petitioners for permission to effect sale of flats in projects of Hi-tech Plaza, Kalyan Plaza Annex, Hi-tech Plaza Annex and Hi-tech Heaven is concerned we are not prepared to pass any order at this stage. However, we permit the petitioners to make an appropriate application(s) in this regard before the Additional Sessions Judge, Khurda, Bhubaneswar in connection with FIR No. 11 of 2012, 4 of 2013, 1 of 2013, 12 of 2012 and 2 (2) of 2013.
If and when such an application is filed we direct the Learned Additional sessions Judge to, consider the same in accordance of law without being influenced by anyone of the observations made by us in the course of this Order.
The special leave petitions are disposed of accordingly."
In pursuance of the said order, the petitioners approached the learned Addl, Sessions Judge, Bhubaneswar and as per the order dated 16.07.2014 in Criminal Revision No.4/21 of 2014, he'' allowed the application. The operative portion of the combined orders passed in the aforesaid revision applications reads as follows :
"5. After going through the documents filed by the petitioners and after hearing from both the sides, it appears that the petitioners have purchased the land in question and constructed flats thereupon with approval of the competent authority. They have also mutated the land in the name of their company an make conversion of the land to the status of "Gharabari". As the plan is approved by the Government, it appears the flats are constructed within the norms of Orissa Apartment Ownership Act, 1982. Taking into consideration the above facts, the petitioners are permitted to effect the sale of plats in projects of Hi-Tech Plaza, Kalyan Plaza Annex, HiTech Plaza Annex and Hi-Tech Heaven. The petitioners are further directed to (sic) only the flats approved by the competent authority and (sic) at if unauthorisedly constructed deviating the approved plan (sic) not be alienated in any manner to the customers. Accordingly, the petition is disposed of."
6. Assailing that order, the State of Orissa preferred Criminal Revisions, bearing Nos. 734, 742, 743, 744 and 745 of 2014, which were disposed of by this Court on 25.02.2015. After dealing with each and every contention raised by the learned counsel for the State, this Court came to the conclusion that there is hardly scope of interfering with the orders passed by the learned Addl. Sessions Judge, Bhubaneswar and hence all the Criminal Revisions were dismissed being devoid of merit. In the interregnum, after the orders passed by the learned Addl. Sessions Judge, Bhubaneswar, the petitioners sold some flats in the aforesaid complexes but the Sub-Registrar, Jatni refused to register those sale deeds citing Annexure-1 of writ petition No.17313/2014. Therefore, the petitioners filed writ petition before this Court, which was disposed of on 30.09.2015. The exact words used by the Hon''ble Single Judge are quoted below :
"From the rival submission and the averments made on behalf of the parties, it is apparent that it is not disputed that permission has been granted by the learned Additional Sessions Judge, Bhubaneswar to the petitioners for effect of sale of flats of the projects of Hi-Tech Plaza, Kalyan Plaza Annex, Hi-Tech Plaza Annex and Hi-Tech Heaven which is a judicial order. Counter-affidavit filed by the Sub-registrar does not indicate any impediment against implementation of such judicial order passed. Learned counsel for the State fairly conceded that the order of the learned Additional Sessions Judge, Bhubaneswar permitting to effect sale of flats has not been stayed, altered or modified by any competent court. This statement is being made by the learned counsel for the State on instruction made by the Deputy Superintendent of police, Economic Offences Wing, CID, Crime Branch, Odisha who is present in court.
In the above view of the matter, it is abundantly clear that without any impediment the Sub-Registrar, Jatni has refrained from registering the sale-deeds executed by the petitioners in spite of judicial order passed by the learned Additional Sessions Judge, Bhubaneswar. The Sub-Registrar is duty bound to effect registration of the sale-deeds validly executed unless prevented by any order of Court or under any provision of law.
In such view of the matter, the writ petition is disposed of directing the opposite party No. 5-Sub-Registrar, Jatni to effect ''registration of the sale-deeds executed by the petitioners in accordance with the permission granted by the learned Additional-Sessions Judge'', Bhubaneswar in case there is no other legal impediment."
7. The earlier applications like revision application, the order passed by the learned Addl. Sessions Judge confirmed by this Court and the orders in W.P.(C) No. 17313/2014 has been passed in pursuance of the liberty granted to petitioners by the Hon''ble Supreme Court. Moreover, other writ petitions and CRLMCs, preferred above, have been allowed to be withdrawn and liberty has been granted to the petitioners to file fresh petition. The 2nd contention raised by the learned Addl. Government Advocate is regarding the power of police under Section 102 of the Cr.P.C. It is argued that Section 102 of the Cr.P.C. provides for police officer''s power to seize property. In the case of State of Maharashtra v. Tapas D. Neogy (supra), the Hon''ble Supreme Court held that the bank accounts are properties of the accused and if circumstances exist creating suspicion of commission of any offence in relation to those bank accounts, Section 102 of the Cr.P.C. is attracted empowering the police officer to seize the bank account and issuing further orders prohibiting the accounts for being operated upon.
8. It is not disputed that the lands that are sought to be sold and registered in the office of the Sub-Registrar, Jatni are properties. However, it is seen from Annexures-4, which are sought to be quashed in the case that the properties have not been seized, rather a notice has been given to the opposite party No. 4, i.e. Sub-Registrar not to register any sale deed executed by these petitioners or any of their Directors without permission of the Superintendent of Police, E.O.W., CID, Crime Branch, Bhubaneswar. Hence, this Court is of the opinion that power under Section 102 Cr.P.C. has not been exercised in this case and the ratio decided in the case of State of Maharashtra v. Tapas D. Neogy (supra) is not applicable to the present case. The 2nd contention is that the petitioners have come to this Court after a lapse of two years. Hence, they are guilty of latches and application is delayed. However, it is borne out from the records that the Directors of the aforesaid companies were incarcerated for a long period and only by the order of the Hon''ble Supreme Court they have been released on bail after depositing certain amounts as required by the Hon''ble Supreme Court. Moreover, they have been approaching this Court and because of formal defects or other such reasons, the writ petition filed earlier has been withdrawn. So, it cannot be said that the petitioners action can be termed as latches or their application filed after lapse of unreasonably long period of time. Thus, all the contentions raised by the learned Addl. Government Advocate for the State are not acceptable by this Court. The petitioners'' case is that they are in the business of development, sale and purchase of estates and for that purpose they have to purchase and sale of the land and to develop the same. There is allegation against them that they promised certain persons and they have defaulted to sale land and in doing ''so, criminal case has been initiated against them. If the same situation is allowed to prevail, then there will be further criminal cases against them and they will not be able to carry on their business. Also they are required to deposit sums before the Hon''ble Supreme Court, which will not be possible unless they carry out their development activity.
9. Article 300-A of the Constitution of India provides that no personal shall be deprived of his property save by authority of law. Deprivation of property comes in various ways, such as destruction or confiscation or revocation of a proprietary right granted by the proprietor, seizure of goods and immovable property from the possession of individual or assumption of control of a business, in exercise of the police power of a State. Under the Constitution, the Executive cannot deprive a person of his property (any kind) without specific legal authority which can be established in a court of law, however, laudable the motive behind may be such deprivation. The expression of authority of law means by or under any law made by the competent legislature. Admittedly, in the present case, no seizure has been effected under Section 102 of the Cr.P.C. The Superintendent of Police, E.O.W., CBI, Crime Branch has issued a notice to the Sub-Registrar, Jatni for prohibiting him from registering any sale executed by the petitioners or its Directors. Writing of such a letter is not by authority of law. It was open for the Investigating Aqency, prosecuting or the executing agency to proceed under the provisions of Criminal Law Amendment Ordinance, 1944 or the provisions of the Odisha Protection of Interests of Depositors (In Finance Establishments) Act, 2011.
So, instead of taking appropriate action against the petitioners, as the authority of law, they have simply issued a letter to the registering authority, which accordingly to this Court, is not sustainable.
10. In the result, on the basis of the aforesaid discussions, this Court is of the opinion that Annexures-4 of both the writ petitions cannot be upheld by this Court and the same have to be quashed. Accordingly, the Annexures 4, i.e. letter no. 1912/CID-EOW, dated 22.05.2013 issued by the Superintendent of Police, E.O.W., CID, Crime Branch, Odisha, Bhubaneswar in both the writ petitions are quashed. However, this order should not be taken to be mean that the investigating agency or the prosecuting agency or the State Government has any bar to approach the appropriate court under the aforesaid ''provisions of the Criminal Law Amendment Ordinance, 1994 or the OPID Act
With such observations, the writ petitions are allowed.
