Andhra Pradesh High Court - Amravati
M/S.Sri Udaya Bhanu Associates vs State Of ... on 19 April, 2023
Bench: V.Sujatha
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
WRIT PETITION Nos.41920, 41921 and 41922 of 2015;
W.P.Nos.367, 484 and 485 of 2017;
% Dated 19.04.2023
#W.P.Nos.41920, 41921 & 41922 of 2015
M/s. Sri Udaya Bhanu Associates,
Rep. By its Managing Partner
Sri Katari Rama Rao S/o Late Rama Swamy
Aged about 65 years, r/o H.No.48-1-31,
Visakhapatnam. ..... Petitioner
Vs.
$
The State of Andhra Pradesh, rep. by its
Principal Secretary, Revenue (Registration
And Stamps) Department, Secretariat,
Hyderabad and 3 others.
....Respondents
#W.P.Nos.367, 484 & 485 of 2017
M/s. Sri Udaya Bhanu Associates,
Rep. By its Managing Partner
Sri Katari Rama Rao S/o Late Rama Swamy
Aged about 65 years, r/o H.No.48-1-31,
Visakhapatnam. ..... Petitioner
Vs.
The State of Andhra Pradesh, rep. by its
Principal Secretary, Revenue (Registration
And Stamps) Department, Secretariat,
Hyderabad and 4 others.
....Respondents
JUDGMENT PRONOUNCED ON: 19.04.2023
THE HON'BLE SMT. JUSTICE V. SUJATHA
Whether Reporters of Local newspapers
may be allowed to see the Judgments?
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Whether the copies of judgment may be marked to
Law Reporters/Journals
Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
* THE HON'BLE SMT. JUSTICE V. SUJATHA
+ WRIT PETITION Nos.41920, 41921 and 41922 of 2015;
W.P.Nos.367, 484 and 485 of 2017;
% Dated 19.04.2023
#W.P.Nos.41920, 41921 & 41922 of 2015
M/s. Sri Udaya Bhanu Associates,
Rep. By its Managing Partner
Sri Katari Rama Rao S/o Late Rama Swamy
Aged about 65 years, r/o H.No.48-1-31,
Visakhapatnam. ..... Petitioner
Vs.
The State of Andhra Pradesh, rep. by its
Principal Secretary, Revenue (Registration
And Stamps) Department, Secretariat,
Hyderabad and 3 others.
....Respondents
! Counsel for the petitioner :
1. Sri N. Ashwani Kumar
^ Counsel for the respondents :
1. Learned Government Pleader for Stamps and Registration for
respondent Nos.1 to 3.
2. Sri K.V. Ratna Rao, Learned counsel for respondent No.4.
#W.P.Nos.367, 484 & 485 of 2017
M/s. Sri Udaya Bhanu Associates,
Rep. By its Managing Partner
Sri Katari Rama Rao S/o Late Rama Swamy
Aged about 65 years, r/o H.No.48-1-31,
Visakhapatnam. ..... Petitioner
Vs.
The State of Andhra Pradesh, rep. by its
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Principal Secretary, Revenue (Registration
And Stamps) Department, Secretariat,
Hyderabad and 4 others.
....Respondents
! Counsel for the petitioner :
1. Sri N. Ashwani Kumar
^ Counsel for the respondents :
1. Learned Government Pleader for Stamps and Registration for
respondent Nos.1 to 4.
2. Sri T.V.S. Prabhakara Rao. Ratna Rao, Learned counsel for
respondent No.5.
<GIST:
> HEAD NOTE:
? Cases referred
2022 SCC OnLine AP 2774
2016 SCC OnLine Hyd 815
MANU/DE/2661/2012
2022 SCC OnLine AP 2222
1977 RLR 487
AIR 1965 SC 1856
MANU/DE/2661/2012
2012 (1) ALD 90 (SC)
MANU/TN/6694/2022
2016 (10) SCC 767
(2001) 5 Supreme Court Cases 101
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
HONOURABLE SMT. JUSTICE V. SUJATHA
WRIT PETITION Nos.41920, 41921, 41922 of 2015 & 367,
484 and 485 of 2017
COMMON ORDER:
As the issue involved in all these cases is one and the
same, with consent of all, these writ petitions are decided by this
common order.
i) W.P. No.41920 of 2015:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
"...to issue an appropriate Writ, Order or Direction more
particularly one in the nature of Writ of Certiorari to call for
the records relating to the order passed by the 2nd respondent
dt.17.12.2015 in Appeal No.1 of 2015 and quash the same
as being illegal, arbitrary, unilateral, without jurisdiction and
to grant..."
ii) W.P. No.41921 of 2015:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
"...to issue an appropriate Writ, Order or Direction more
particularly one in the nature of Writ of Certiorari to call for the
records relating to the order passed by the 2nd respondent
dt.17.12.2015 in Appeal No.3 of 2015 and quash the same as
being illegal, arbitrary, unilateral, without jurisdiction and to
grant..."
iii) W.P. No.41922 of 2015:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
"...to issue an appropriate Writ, Order or Direction more
particularly one in the nature of Writ of Certiorari to call for the
records relating to the order passed by the 2nd respondent
dt.17.12.2015 in Appeal No.2 of 2015 and quash the same as
being illegal, arbitrary, unilateral, without jurisdiction and to
grant..."
iv) W.P. No.367 of 2017:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
"...to issue any writ, order or direction more particularly one in
the nature of writ of Certiorari call for the records pertaining to the
Impugned proceedings vide Doc. No.9680 of 2015 dated 21.12.2015
passed by 4th respondent i.e. the Deed of Cancellation and quash the
same as being illegal, arbitrary, void, abinitio, without jurisdiction
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
and violation of the provisions of the Act and consequentially
suspend the proceedings vide Doc. No.9680 of 2015, dated
21.12.2015 issued by the 4th respondent..."
v) W.P. No.484 of 2017:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
"...to issue any writ, order or direction more particularly one in
the nature of writ of Certiorari call for the records pertaining to the
Impugned proceedings vide Doc. No.9679 of 2015 dated 21.12.2015
passed by 4th respondent i.e. the Deed of Cancellation and quash the
same as being illegal, arbitrary, void, abinitio, without jurisdiction
and violation of the provisions of the Act and consequentially
suspend the proceedings vide Doc. No.9679 of 2015, dated
21.12.2015 issued by the 4th respondent..."
vi) W.P. No.485 of 2017:
The writ petition came to be filed under Article 226 of the
Constitution of India seeking the following relief:
"...to issue any writ, order or direction more particularly one in
the nature of writ of Certiorari call for the records pertaining to the
Impugned proceedings vide Doc. No.9681 of 2015 dated 21.12.2015
passed by 4th respondent i.e. the Deed of Cancellation and quash the
same as being illegal, arbitrary, void, abinitio, without jurisdiction
and violation of the provisions of the Act and consequentially
suspend the proceedings vide Doc. No.9681 of 2015, dated
21.12.2015 issued by the 4th respondent..."
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
2. As the issue, petitioners as well as the respondents
involved in all these cases is one and the same, all these writ
petitions are decided by way of a common order.
The petitioner, initially filed 3 writ petitions i.e. W.P.
Nos.41920, 41921 and 41922 of 2015 challenging 3 individual
orders passed in 3 Appeals, dated 17.02.2015, and later on filed
the other 3 writ petitions, i.e., W.P. Nos.367, 484 and 485 of
2017 challenging the 3 cancellation deeds, dated 21.12.2015,
which were registered pursuant to the impugned orders of the
District Registrar, dated 17.12.2015. (Interim direction was
passed by this Court on 04.12.2017 suspending the
cancellation deeds subject to the condition that the petitioner
shall not create any third-party rights over the property).
3. The brief facts are that the 4th respondent-'the State
Government Gazetted Officers Co-operative House Buildings
Society (herein after referred as 'Society') being a registered
society purchased the land admeasuring Acs.8.20 cents in Sy.
No.60 of Maddilapalem from one Aratla Surya Narasinga Rao
and his sons by virtue of a registered Sale Deed bearing Doc.
No.634/1970, dated 23.02.1970 and later on, proposed to
construct houses and to allot the same to its members after
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
obtaining the layout and necessary permissions. Subsequently,
the 4th respondent-Society developed the said land by laying the
roads and demarcating the plots and transferred a part of the
plots to some of its members.
4. Apart from the above said land, the 4th respondent-
Society also acquired the adjacent land in Sy. No.61/2 (Part) of
an Ac.0.34 cents for the purpose of laying an approach road by
virtue of an Exchange Deed bearing Doc.No.1624/1977, dated
08.06.1977 and accordingly they have laid road with necessary
permission. After laying the road, an extent of 800 Sq. yards
was available on either side of the road which was encroached
by some unauthorized persons by raising some temporary
structures. Apart from that, some hut-dwellers encroached the
left over land to an extent of Acs.3.07 cents and they filed suit
O.S. No.889 of 1979 on the file of the I Additional District
Munsiff Court, Visakhapatnam, for grant of perpetual injunction
against the 4th respondent-Society, which was dismissed and
after appeals and counter appeals, the matter was remanded to
be tried along with the suit O.S. No.113/1986 and A.S. No.1961
of 1993 were clubbed together in O.S. No.616 of 2012.
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
5. Thereafter, the petitioner purchased a separate
extent of land admeasuring an extent of 595 Square yards
under a registered Sale Agreement-Cum-GPA vide Document
No.5041 of 2016, dated 23.10.2006, for the construction of the
office building and compound wall around the land.
6. As the 4th respondent-Society was not able to
pursue the legal disputes vigorously and resist the illegal
occupants in the land in Sy. No.61/2 Part and in Sy. No.60,
which litigation was pending for the past 3 decades, the 4th
respondent-Society called for a General Body and passed a
resolution on 30.09.2008 to assign the work of settlement of all
legal disputes in the land to the petitioner and after settlement
of disputes, the petitioner would be assigned with construction
of flats total admeasuring 63,000 Square feet in 3150 Square
yards in Sy. No.60 and in Sy. No.61/Part, each flat not less
than 1500 Square feet and get them registered in favour of the
members of the 4th respondent-Society and everything was to be
done at the cost of the petitioner. Upon such settlement and
construction of flats, the 4th respondent-Society shall register
the balance land in favour of the petitioner. The petitioner was
also to construct an office and compound wall.
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
7. The copy of resolution, dated 30.09.2008, was
communicated to the petitioner on the same day and pursuant
to which the petitioner entered into a Compromise Agreement,
dated 21.10.2008, with one Gudla Kamala & 7 others for taking
steps to vacate the encroachers from the land in Sy. No.61/2
part of Maddilapalem Village by paying Rs.13 lakh to the
encroachers on behalf of the 4th respondent-Society to withdraw
all the cases filed by them against the 4th respondent-Society as
a part of out of Court settlement.
8. In the said process, on 24.10.2008, the petitioner
paid an amount of Rs.2,00,000/- to one Mr. A. Kameswararao,
Advocate, Visakhapatnam, as fee for settlement of A.S
No.306/2007 and CMA 98/2006 filed by the said Gudla Kamala
& 7 others on behalf of the 4th respondent-Society, which was
acknowledged by the 4th respondent-Society represented by it's
the then President Dr. Ch. Parvathesam.
9. Thereafter, the petitioner and the 4th respondent-
Society entered into an Agreement/Memorandum of
Understanding, dated 12.07.2009, inter-alia agreeing for
construction of 63,000 Square Feet including common areas in
Sy. No.60 and Sy. No.61/2 part by constructing about 21 Flats
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
with 3,000 Square Feet each (for 21 members of the 4th
respondent-Society) and office building for the 4th respondent-
Society and in consideration the 4th respondent-Society agreed
to register the balance land in Sy. No.60 and 61/2 Part through
a deed of conveyance.
10. Thereupon, the petitioner constructed 15,000
Square feet in the 4th respondent-Society's land in Sy. No.61/2
part in the year 2011 and offered to register the same in the
name of the 4th respondent-Society of its beneficiares in terms of
the MoU dated 12.07.2009 read with clause No.4 of the letter
dated 30.09.2008. However, the 4th respondent-Society refused
to accept the same as four (4) of its members died in a span of
nine (9) months between July, 2009 to March, 2010 and also for
the reason that there were disputes among the members as to
whom the constructed flats of 15,000 Square feet should be
allotted.
11. In view of the changed circumstances, the 4th
respondent-Society entered into an Agreement for Partial
Modification of MoU dated 12.07.2009, on 01.03.2010 by
stipulating that the construction of agreed 3,000 Square feet for
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
each beneficiary to be enhanced to 3860 Square feet to each
member.
12. Accordingly, the 4th respondent-Society entered into
three different registered Agreements of Sale-cum-General
Power of Attorney in favour of the petitioner vide Document
Nos.2420, 2421 and 2422 of 2010 dated 18.03.2010 for
resolving all the disputes with regard to the subject land.
13. In pursuance of the agreement of sale dated
18.03.2010, the petitioner entered into a Settlement Deed with
one Juni Laxmi Bhai Kour, Juni Sarda Chinna Singh, Juni
Thani Singh GPA Holders of Juni Sardar Hanuman Singh and
16 others who are encroachers of the 4th respondent-Society's
land admeasuring 884.22 Square yards in Sy. No.60 by paying
an amount of Rs.10,00,000/- in cash on the date of execution of
the said Settlement Deed i.e.,01.09.2010 and pursued the
litigation in respect of the land in Sy. No.60 and got O.S.
No.930/2008 disposed of on 18.11.2015.
14. While the things stood thus, the 4 th respondent-
Society got issued a legal notice dated 24.01.2012 seeking
cancellation of the MoUs, Construction Agreement and the 3
registered Agreements for Sale-cum-GPA in respect of the land
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
in Sy. Nos.61/2 part and in Sy. No.60 of Maddilapalem of
Visakhapatnam executed in favour of the petitioner, 'in
response to which the petitioner got issued a reply notice on
06.02.2012 through their advocate explaining the efforts put in
by the petitioner in resolving the disputes and the amounts
spent by them for pursuing the cases against the 4th
respondent-Society'. It was further stated in the reply notice
that the registered Agreements-cum-GPA were coupled with
interest and therefore, the same cannot be revoked to the
detriment of the petitioner, to which the 4th respondent-Society
got issued a rejoinder notice on 25.02.2012.
15. In spite of the same, the 4th respondent-Society filed
O.S. No.97 of 2012 on the file of the VI Additional District
Judge, Visakhapatnam seeking cancellation of 3 Agreements of
Sale-cum-General Power of Attorney, dated 18.03.2010 on the
ground that the petitioner committed default and later on, the
same was withdrawn without seeking any liberty on
14.10.2016.
16. Pending the suit seeking cancellation of the 3
Agreements of Sale-cum-General Power of Attorney, dated
18.03.2010, the 4th respondent-Society had presented three
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
deeds of Cancellation of Agreements of Sale-cum-general Power
of Attorney vide Document Nos.2420, 2421 and 2422 of 2010
before the Joint-Sub-Registrar-I, Visakhapatnam and as the
Joint-Sub-Registrar-I, failed to register the cancellation deeds,
the 4th respondent-Society filed W.P. No.5749 of 2014, but
however, the said writ petition was also withdrawn on
13.11.2014.
17. The Joint-Sub-Registrar refused to register the
Cancellation Agreements which are kept pending vide
P.Nos.294, 295 and 296 of 2014. Challenging which (Pending
O.S. No.97 of 2012 on the file of VI Additional District Judge,
Visakkhapatnam) the 4th respondent-Society preferred a
statutory appeal under Section 72 of the Registration Act, 1908
before the 2nd respondent -District Registrar of Assurances,
Visakhapatnam, who allowed the three appeals bearing Nos.1, 2
and 3 of 2015 on 17.12.2015, by passing three individual orders
by directing registration of 3 cancellation deeds, unilaterally
cancelling the three registered Agreements for Sale-Cum-
General Power of Attorney executed in favour of the petitioner
vide Document Nos.2420, 2421 and 2422 of 2010, dated
18.03.2010. Challenging the orders dated 17.12.2015, initially,
the petitioner filed 3 writ petitions i.e. W.P. Nos.41920, 41921
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
and 41922 of 2015. Thereafter, the 3 cancellation deeds were
registered as Document Nos.9679, 9681 and 9680 of 2015
dated 21.12.2015 in spite of the fact that O.S. No.97 of 2012
filed by the 4th respondent-Society seeking similar prayer was
pending for adjudication. Challenging the said unilateral
registration of the 3 cancellation deeds dated 21.12.2015, the
petitioner filed other 3 writ petitions, i.e., W.P. Nos.367, 484
and 485 of 2017.
18. Challenging the order of the 2nd respondent-District
Registrar dated 17.12.2015, the petitioner preferred a revision
to the 1st respondent-The State of Andhra Pradesh, wherein the
1st respondent vide proceedings Memo No.REV01-
REGSOMISC/10/2019-REGN.I-1, dated 03.05.2020, held as
follows:
"...Hence, the Law Department has also
opined that District Registrar Visakhapatnam is not
having any judicial power like civil court to entertain
appeal once documents were registered by both the
parties, hence the order of the District Registrar shall be
set-aside and shall be treated as non-est in the eye of
law.
Government after careful examination of the
matter and as per opinion of the law department, the
Commissioner and Inspector General, Registration and
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Stamps, AP Vijayawada is requested to pass necessary
order in compliance with the above interim orders of
Hon'ble High Court for cancelling the order of the District
Registrar, Visakhapatnam in Appeal Nos.1, 2, 3 of 2015,
dated 17.12.2015 with direction to the Sub-Registrar,
Visakhapatnam to cancel the documents bearing
No.9679, 9680, 9681 dated 21.12.2015 and shall make
necessary entries in the registration books subject to the
result of the W.P. No.367 of 2017, W.P. No.484 of 2017
and W.P. No.485 of 2014 which are pending before the
Hon'ble High Court."
19. Thereafter, the Commissioner and Inspector
General vide Memo G3/425/2020, dated 16.06.2020, gave
directions to the District Registrar, Visakhapatnam, as under:
"In this connection, the District Registrar,
Viskhapatnam is requested to take immediate necessary
action for cancelling the orders of the then District
Registrar, Visakhapatnam in Appeal Nos.1, 2 and 3 of
2015, dated 17.12.2015 with a direction to the Sub-
Registrar, Visakhapatnam, to cancel the documents
bearing Nos.9679, 9680, 9681 dated 21.12.2015 and
shall make necessary entries in registration book subject
to the result of the W.P.No.367 of 2017, W.P. No.484 of
2017 and W.P. No.485 of 2017 which are pending before
the Hon'ble High Court, in accordance with the
provisions of law."
20. The 4th respondent-Society filed a counter affidavit
stating that the disputes arose between the petitioner and the
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Society in the year 2012 itself, as such the Society issued legal
notice dated 24.01.2012 to the petitioner cancelling the MOUs ,
Construction Agreement and GPAs-cum-Sale Agreements
executed by the 4th respondent-Society and the same was
published in Enadu city edition on 25.01.2012, for which, the
petitioner also issued reply through paper add on 28.01.2012
and also issued a reply notice, dated 06.02.2012 inviting the 4 th
respondent-Society for mutual discussions as per clause-16 of
the Construction Agreement within 15 days from the date of
receipt of the reply dated 06.02.2012, failing which, the
petitioner will act in accordance with agreement. The 4 th
respondent-Society has issued a rejoinder dated 25.12.2012 to
the reply notice dated 06.02.2012 informing that the question of
mutual discussion between the petitioner and the 4th
respondent-Society does not arise and also mentioned that the
petitioner may take whatever the action he likes and the same
will be resisted by the 4th respondent-Society. But the petitioner
did not take any steps after exchange of notices even till today
and hence, the legal right of the petitioner seeking claim against
the above subject documents has been barred by limitation.
21. It is further stated in the counter affidavit that the
petitioner by invoking the clause-23 of the MoU, dated
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
12.07.2009, has filed AOP No.867 of 2016 on the file of the II
Additional District Judge, Visakhapatnam and the same was
dismissed on merits on 05.12.2016. The petitioner has also
approached the Co-operative Tribunal by making some or the
other claims against the 4th respondent-Society by suppressing
the material facts and also without having any locus standi
which were dismissed by the Co-operative Tribunal.
22. The 4th respondent-Society has further stated that
suppressing all the above facts, the petitioner has also filed
CAOP No.34/2019 on the file of the Special Judge for Trial and
Disposal of Commercial Disputes at Visakhapatnam under
Section 9 of Arbitration and Conciliation Act invoking the
clause-16 of the Construction Agreement dated 10.03.2010 and
the same was dismissed on merits on 05.08.2021, wherein it is
stated as follows:
"In the present case as seen from the application filed
by the petitioner in para(m) it was categorically stated that the
petitioner is contemplating to initiate appropriate proceedings
by invoking clause 16 of agreement. There is no whisper in the
entire application about the issuance of notice to the 1st
respondent society in the year 2016 i.e., on 05.09.2016 calling
upon the 1st respondent to accept the appointment of a mutual
accepted Arbitrator to refer the disputes. Where Court passes
order for any interim measure under Section 9(1) of the Act
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
before commencement of the Arbitral proceedings, the arbitral
proceedings shall be commenced within period stated in sub-
section. Commencement of arbitral proceedings within period
stated in Section 9(2) of the Act is made mandatory by
parliament. Intention of parliament in making commencement of
arbitral proceedings within period stated in Section 9(2)
mandatory is to see that order for any interim measure passed
under Section 9(1) shall not continue to be in force indefinitely
in absence of arbitral proceedings. Therefore, commencement of
arbitral proceedings within period stated in sub-section (2) is
requirement for legal effectiveness of order passed for any
interim measure. Hence, if arbitral proceedings in respect of
dispute are commenced within period stated in Section 9(2),
order granting any interim measure under Section (1) shall
automatically stand vacated on expiry of the said period."
23. It is also stated in the counter affidavit that the
intention of the 4th respondent-Society in entering into the MoU,
modified MoU, Construction Agreement (3 sale agreements cum
GPAs subjected documents) is to settle the dispute in or outside
the Courts as early as possible as the ages of the members of
the society are advanced and the clauses and conditions
stipulated in the agreements and registered documents reiterate
that the petitioner is to settle all the pending litigations in or
outside the Courts with their funds, thereafter taking of the
possession from the litigants by entering into compromise deeds
between the Society and litigants, was much after making
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
constructions as per the construction agreement. Thereafter it is
agreed between the Society and the petitioner as a consideration
to transfer the remaining property situated in S.No.60 and 61/2
part by way of a registered sale deed and till such time the
petitioner was not conveyed with any right, title, possession or
interest over the subject mentioned property, hence the order of
the 2nd respondent-District Registrar is in accordance with law.
24. It is further stated in the counter affidavit that the
4th respondent-Society took objection that the subject
documents Nos.2420, 2421 and 2422 of 2010, dated
18.03.2010, are not Sale Agreement-cum-GPA, since the
ingredients to treat it as a Agreement of Sale-cum-GPA has not
been satisfied, more particularly there is no transfer of title,
right in the subject matter of the property and admittedly, there
is no consideration or payment to the vendor under the said
document and as such the provision of law of Registration Act
as raised by the petitioner will not come in the way of
cancellation of such document and the registering authority can
cancel it unilaterally. It is also submitted that the GPA-cum-
Sale Agreement will come into force only after the terms and
conditions of the agreement are fulfilled, more particularly as
follows:-
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
i) to settle the disputes,
ii) entering compromise deeds,
iii) construction of 65,620 Sq. ft. of built up area and
iv) handing over the flats to the vendors/Society;
then as a consideration, the vendor promises i.e., the 4 th
respondent-Society to register the remaining land through deed
or deeds of conveyances duly registered in favour of the vendee
i.e., the petitioner, which the petitioner has miserably failed to
do so, and hence the 4th respondent-Society has got every right
to cancel the said document which is executed for settlement of
disputes.
25. It is further stated in the counter affidavit that the
construction agreement was executed by the 4th respondent-
Society in favour of the petitioner for construction of flats in an
extent of 2550 Sq. yards out of 3600 Sq. yards which is in the
North-East corner of the property covered in Sy. No.60 of the 4 th
respondent-Society's land. The 4th respondent-Society has
executed individual sale deeds in favour of 17 individual
members for an extent of 150 Sq. yards each being undivided
and unspecified share out of the total extent of 3600 Sq yards;
therefore, the said individual members became title holders of
the said extent of 2550 Sq. yards collectively and thereby the 4th
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
respondent-Society has lost the right over the said extent; and
accordingly, the said construction agreement became null and
void and non est in the eye of law as the title holders have not
executed the construction agreement in favour of the petitioner
and the construction agreement will come into force only after
compliance of the terms and conditions mentioned in the three
GPAs-cum-Sale Agreements, dated 18.03.2010, construction
agreement, MoU and amended MoU.
26. The further contention made by the Society in the
counter affidavit is that the Society has settled the litigations
with third parties in respect of the subject mentioned properties
by spending huge funds obtained from third parties i.e. M/s.
Sagara Durga Developers (P) Ltd; accordingly acquired
possession from the litigants and hence, there is no chance to
the petitioner to settle the litigations with third parties with its
own cost, which is the first condition of the subject document,
as such the question of consideration through that document
cannot be taken into consideration.
27. The Society has further stated in the counter
affidavit that after refusal by the Joint Sub-Registrar-I,
Visakhapatnam, they preferred an appeal before the District
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Registrar of Assurances, Visakhapatnam, who in turn issued a
notice to the petitioner to appear before him and represent his
case and accordingly, on hearing both the parties on legal
aspect as well as the factual aspect and on perusing the
documents and its recitals, has rightly concluded that the
participation of the petitioner is not necessary for cancelling the
subject document; and as such requested this Court to dismiss
the present writ petitions.
28. Heard learned Senior Counsel Mr. D.V. Sitharama
Murthy representing Mr. N. Ashwani Kumar, learned counsel
for the petitioner; learned Government Pleader for Stamps and
Registration; and learned Senior Counsel Mr. K.S. Murthy
representing Mr. K.V. Ratna Rao and T.V.S. Prabhakar Rao,
learned counsels for the respondent-Society.
Learned Senior Counsel appearing for the petitioner
relied upon the following judgments:
a) Maruturi Raghavendra Rao and Another Vs. State of Andhra
Pradesh and others1
b) Gaddam Laxmaiah and Others Vs. Commissioner and Inspector
general, Registration and Stamps, Hyderabad and others2
c) Hardip Kaur Vs. Kailash and Ors.3
2022 SCC OnLine AP 2774
2016 SCC OnLine Hyd 815
W.P. Nos.41920, 41921, 41922 of 2015,
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VS, J
d) Smt. Tummidi Bala Nagamani Vs. The State of Andhra Pradesh4
e) Harbans Singh vs Shanti Devi5.
f) S.Chattanatha Karayalar v. The Central Bank of India Ltd. &
Ors.6
g) Hardip Kaur Vs. Kailash and Ors. 7
h) Kaitha Narasimha v. the State of A.P. (W.P.NO.3744 of
2007)
i) Thota Ganga Laxmi and another v. Government of Andhra
Pradesh and others8
j) Sasikala Vs. The Revenue Divisional Officer, cum Sub
Collector, Devakottai and others9
k) Satyapal Anand vs. State of Madhya Pradesh 10
Learned counsel for the respondents relied upon the
judgment in Her Highness Maharani Shantidevi Vs. Savjibhai
Haribhai Patel and Others11.
29. Now, for proper appreciation of the case, this Court
feels it appropriate to frame the following issues/points for
consideration;
MANU/DE/2661/2012
2022 SCC OnLine AP 2222
1977 RLR 487
AIR 1965 SC 1856
MANU/DE/2661/2012
2012 (1) ALD 90 (SC)
MANU/TN/6694/2022
2016 (10) SCC 767
(2001) 5 Supreme Court Cases 101
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1. Whether the respondent Society has called for a
General Body meeting before resorting to cancellation of
the Agreement of Sale-cum-GPA ?
1. It is a fact that as the 4th respondent-Society was
not able to pursue the legal disputes vigorously and resist the
illegal occupants in the land in Sy. No.61/2 Part and in Sy.
No.60, which were pending for the past 3 decades, the 4 th
respondent-Society called for a General Body and passed a
resolution on 30.09.2008 to assign the work of settlement of all
legal disputes in the land to the petitioner at the cost of
petitioner and after settlement of disputes, the petitioner would
be assigned with construction of flats total admeasuring 63,000
Square feet in 3150 Square yards in Sy. No.60 and in Sy.
No.61/Part, each flat not less than 1500 Square feet at the cost
of the petitioner and get them registered in favour of the
members of the 4th respondent-Society at the cost of the
petitioner. Upon such settlement and construction of flats, the
4th respondent-Society shall register the balance land in favour
of the petitioner. The petitioner was also to construct an office
and compound wall.
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2. A letter, dated 30.09.2008, was issued by the 4th
respondent-Society to the petitioner communicating the above
said terms and conditions, pursuant to which the petitioner
entered into a Compromise Agreement, dated 21.10.2008, with
Gudla Kamala & 7 others to vacate the land in Sy. No.61/2 part
of Maddilapalem Village by paying Rs.13 lakh to the litigants on
behalf of the 4th respondent-Society to withdraw all the cases
filed by them against the 4th respondent-Society as settled out of
Court.
3. On 24.10.2008, the petitioner paid an amount of
Rs.2,00,000/- to one Mr. A. Kameswararao, Advocate,
Visakhapatnam, as fee for settlement on behalf of the 4 th
respondent-Society in respect of A.S No.306/2007 and CMA
98/2006 filed by the said Gudla Kamala & 7 others, which was
acknowledged by the 4th respondent-Society represented by it's
the then President Dr. Ch. Parvathesam.
4. On 12.07.2009, the petitioner and the 4th
respondent-Society entered into an Agreement/Memorandum of
Understanding, dated 12.07.2009, inter-alia agreeing for
construction of 63,000 Square Feet including common areas in
Sy. No.60 and Sy. No.61/2 part about about 21 Flats with 3,000
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Square Feet each (for 21 members of the 4th respondent-
Society) and office building for the 4th respondent-Society and in
consideration the 4th respondent-Society agreed to register the
balance land in Sy. No.60 and 61/2 Part through a deed of
conveyance.
5. Thereafter, the petitioner constructed 15,000
Square feet in the 4th respondent-Society's land in Sy. No.61/2
part in the year 2011 and offered to register the same in the
name of the 4th respondent-Society of its beneficiares in terms of
the MoU dated 12.0.2009 read with clause No.4 of the letter
dated 30.09.2008. However, the 4th respondent-Society refused
to accept the same as four (4) of its members died in a span of
nine (9) months between July, 2009 to March, 2010 and there
were disputes among the members as to whom the constructed
flats of 15,000 Square feet should be allotted.
6. Thereafter, on 01.03.2010, the 4th respondent-
Society entered into an Agreement for Partial Modification of
MoU dated 12.07.2009, modifying the MoU dated 12.07.2009 by
stipulating that the construction of agreed 3,000 Square feet for
each beneficiary to be enhanced to 3860 Square feet to each
member.
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7. On a perusal of the above facts it is apparent on the
face of the record that Respondent Society entered into MOU
dated 30.09.2008 only after passing of Resolution by the
General Body. Such a resolution was the basis for entering into
three different Registered Agreement of Sale-cum- GPA in favour
of the Petitioner by Doct.Nos. 2420,2421 and 2422 of 2010
dated 18.03.2010. But, however, there is no material to indicate
that any such a resolution was passed before taking a decision
for the cancellation of the above mentioned registered
agreement of sale-cum-GPA.
In view of the same the issue is answered in favour of the
petitioner.
2. Whether the Agreement for Sale-cum-General Power
of Attorney coupled with recitals of
Development/construction executed by the Society in favour
of the petitioner can be treated as a conveyance?
1. For appreciation of the said issue this Court would
like to look into the contents of the Resolution dated 30.09.2008
which are as under:
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"...the General Body resolved to entrust the matter of
settlement of civil and other legal disputes relating to the
Society's land in Sy. No.61/2P and Sy. No.60 to M/s. Sri Udaya
Bhanu Associates, Visakhapatnam. The Executive Committee is
authorized to take immediate action in the matter on the
following guidelines:
i) In respect of Society's land of Ac.0.30 cents in Sy.
No.61/2(Part) M/S. Udaya Bhanu Associates shall get the civil
suits in respect of this land settled in the first place at his cost
and expense.
ii) After settlement of all the disputes in respect of the
above land, he will be assigned the work of construction of flats
in whatever extent of land that is available and admit of
construction as per Municipal Corporation Rules, excluding the
area covered by the 40 feet Approach road laid by the Society
across the land.
iii) The construction of flats shall be according to the
plans approved by the Executive Committee, each flat
measuring not less than 1500 sft each at the cost of the builder
who shall bear all the expenses connected with obtaining
permissions from the VUDA, GVMC and Electricity Board etc.,
and also the cost of construction.
iv) On completion of the construction in Sy. No.61/2 part,
the builder shall offer the flats so constructed in the Society's
land as Security or shall register them in the name of the
Society or its nominees at his cost and expenses and the same
constructed area so registered will be deducted from the total
constructed area of 63,000 sft in Sy. No.60 and Sy. No.61/2
(Part).
v) In respect of Society's land of Ac.3.07 (or whatever
land that is available therein as per Advocate Commissioner's
report in o.S.889/1979) in Sy. No.60. M/s. Sri Udaya Bhanu
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Associates shall have to undertake the responsibility to vacate
the interim stay order in I.A.37/2007 in A.O.P.129/2007 filed
by M/s.ISNAR Estates(Pvt.)Ltd. at his cost and expense.
vi) After getting the stay vacated, an M.O.U. will be
submitted to the Co-operative Department for approval.
vii) After obtaining the approval from the Co-operative
Department, M/s.Sri Udaya Bhanu Associates shall have to
clear all the remaining civil suits in respect of the Society's land
in Ac.3.20 cents in S.No.60 by his efforts and at his cost and
expenses within a time frame stipulated in the M.O.U.
Simultaneously, after settlement of all the civil
disputes and clearing the encroachments M/s.Sri Udaya Bhanu
Associates shall start construction of flats of 36,000 sft
(including common areas) as per the plans and specifications
approved by the Society in an area of 3150 sq. yds in Society's
land in S.No.60 and Sy. No.61/2(Part) at his cost and expense
duly bearing the Registration charges, taxes, levies etc. on
mutually agreed terms as per his letter dated 11th August, 2008
subject to deduction of constructed area and land registered in
the name of the Society members in Sy. No.61/2(Part).
viii) The conditions laid above in respect of Society's land
in S.No.60 will be subject to the result in the Election Petition in
E.O.P.2/2008 ending in favour of the Society.
ix) On fulfillment of all the above conditions by M/s. Sri
Udaya Bhanu Associates, the Society has to Register the
remaining entire available land in Sy. No.60 and Sy. No.61/2 in
favour of the Builder after retaining 63000sft of constrcted area
in 3150 sq. yds. of land."
2. It would be proper to look into the contents of the
MoU made on 12.07.2009, which are as follows:
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"8. Whereas, pursuant to the General Body
Resolution Dt.28.09.2008 as stated in clause-7, the Executive
Committee of the First Party issued a letter Dt.30.09.2008 to
the Second Party to settle all the civil disputes and take
possession of the land in Sy. Nos.61/2 Part and 60 at his cost
and risk and also handover the constructed area of total of
63,000 (Sixty Three Thousand) Sq.ft. of Flats including the
Common Area for the First Party in an area of 3150 (Three
thousand one hundred and Fifty) Sq. yards in Sy. Nos.61/2
Part and 60 and an Office Area of 700(Seven Hundred) Sq. ft.
in Sy. No.61/2 Part as per GVMC Rules.
As a consideration for the above clause, the First Party
agrees to Register the entire remaining First Party's lands in
Sy. No.61/2 part and Sy. No.60 through a Deed or Deeds of
conveyance duly Registered in favour of the Second Party after
fulfillment of the above conditions.
9. Whereas the Second Party having been made aware of
all disputes and civil suits in respect of First Party's lands in
Sy. Nos.61/2 Part and 60 pending in various Courts at several
stages in respect of the above mentioned lands and has
agreed to settle the disputes till final settlement is over and
taking possession of site on behalf of First Party either by
pursuing the litigations in Court or by arriving at a negotiated
settlement outside the Court with the litigant parties at his
cost, expense and efforts.
The Second Party agreed to construct and handover of
total 63,000 (Sixty Three Thousand) Sq. ft. of flats including
common areas in First Party's land in Sy. Nos.61/2 Part and
60 to the First Party in consideration through exchange of the
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entire remaining land of First Party property in Sy. Nos.61/2
part and 60 by the First Party.
10. Whereas, the civil disputes having been settled
outside the Court in respect of First Party's land in Sy. No.61/2
Part between the First Party and the illegal occupants through
the efforts and at the expense of the Second Party and the
First Party had taken delivery of the possession of its land in
Sy. No.61/2 Part (excluding the 40' road) by virtue of Court's
order in A.S. No.486/1987 (E.P.82/03) dated 29.01.2009 and
delivery was made by court Aminas on 07.02.2009 due to
efforts and expenses made by the Second Party.
11. Whereas the First Party agreed to entrust the work of
construction of Flats to Second Party in whatever extent of
land available on East side of the road in Sy. No.61/2 Part as
per GVMC Rules excluding the 40 feet road subject to bearing
the cost and expenses of the construction together with the
necessary permissions from VUDA, GVMC, APEPDCL without
deviating from the approved plan or in violation of GVMC
norms.
12. The First Party entrusted to the Second Party to
construct Office Building and compound wall around the land
of First Party's property for the purpose of construction of
Apartment Complex by the Second Party in Sy. No.61/2 Part in
the Schedule mentioned property.
13. Whereas the Second Party acquired an extent of 595
Sq. yds under a Registered Sale Agreement cum G.P.A. by
paying the entire Sale consideration to the owner through
Doc.No.5041/2006 Dt.23.10.2006 and the land is abutting to
408 Sq. yds of the First Party's property and represented that
in case of construction of individual units in the individual
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sites, there will not be any benefit for both parties and if the
both the plots are clubbed together, both parties will get
additional F.S.I. from GVMC and one more floor on the 3rd floor
will be permitted if the sites of First and Second Parties joined
together. Whereas the General Body of the First Party through
another resolution Dt.29.03.09 authorized the Executive
Committee to negotiate for an increase in the plotted area of
flats to be constructed in the First Party's land in Sy. No.61/2
Part.
The Executive Committee in its resolution Dt.07.05.2009
accepted the proposal of the Second Party as fair, reasonable
and beneficial to the members of the First Party and agreed
the same by the First Party.
The First Party should not insist or claim more than the
constructed area of 63,000 Sft including common areas and
Office Building under any circumstances from the Second
Party.
14. Whereas the Second Party agreed to construct total
15,000 (Fifteen Thousand) Sft constructed Flats including
common areas by way of Flats consisting of cellar, ground plus
four floors for the First Party in the First Party's land of 408
Sq. yds on the east side of 40' road in Sy. No.61/2 Part
clubbed with the Land of 595 Sq. yds acquired by the Second
Party and the Second Party is entitled to sell the constructed
flats in 595 Sy. Yds acquired by the Second Party without the
signatures of the First Party or its members with easement
rights of entry and exit for both.
The application for approval of building plans for the
construction of total 15000 sft of flats including common areas
in First Party land in Sy. No.61/2 Part including Second Party
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land shall be filed by both parties jointly immediately after
Signing of this MoU.
15. Whereas, as stated above the Second Party has
agreed to make all attempts simultaneously for settlement of
other disputes with regard to the land covered by Sy. No.60 of
an extent of Ac.3.07 cents and evacuate the occupiers and
earmark an extent of 3,150 Sq. yds. out of the total extent by
constructing a boundary wall in which he undertook to
construct a total area of 63,000 Sft. including common areas in
Sy. Nos.60 and 61/2 Part i.e. about total 21 (Twenty One) flats
of 3,000 (Three Thousand) Sft including common areas for
each flat as per specifications annexed to this MoU and in
consideration of the construction of the above said 21 Flats of
an area of total 63,000 Sft (Sixty Three Thousand) including
common areas in Sy. Nos.60 and 61/2 Part and office building
for the First Party by the Second Party, the First hereby agreed
to Register the remaining extent of vacant land in Sy. Nos.60
and 61/2 Part through a Deed or Deeds of conveyance duly
registered in favour of the Second Party.
16. This agreement will not be treated as a Partnership
between the First Party and the Second Party. The Second
Party is entitled to the entire remaining land in Sy. Nos.60 and
61/2 Part in the Schedule mentioned Property of First Party's
land after handing over the constructed area of total 63,000 sft
of flats including common areas and Office Building to the First
Party through a Deed or Deeds of conveyance duly registered."
3. The contents of the partial modified MoU made on
01.03.2010, are as follows:
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VS, J
"Now therefore this Agreement seeks to Modify the M.O.U. dated
12.07.2009 as follows:
01. The Second Party agreed to construct 24 flats of
3860 sft for each Flat including common areas in an area of
3600 Sq. yds. With specified boundaries in the North-East
Corner plot of First Party's land in Sy. No.60 of Maddilapalem
after settlement of Disputes of First Party's land in Sy. No.60
of Maddilapalem and handover the 17 flats to the First Party
intended the remaining 17 beneficiary members and
remaining 7 flats shall be retained by the Second Party. The
cost of construction, Registration charges and other levies
shall be borne by the Second Party as agreed in covenant
no.18 of M.O.U. dated 12.072009. The construction of flats
shall be according to the plans approved by the Board of the
First Party and shall conform to the Rules and Regulations of
GVMC and other local Authorities.
02. The First Party agreed to give irrevocable
status to the Second Party for settlement of civil disputes of
First Party's land in Sy. No.60 of Maddilapalem as the Second
Party agreed to spend huge amounts for Registration of
Construction Agreement for 65,620 Sft. Including common
areas to the First Party intended for the following 17
beneficiary members/nominees/legal heirs of the First Party
out of total 92,640 sft., in the First Party's land in Sy. No.60.
03. The First Party agreed to register the First
Party's land of 408 Sq. yds. i.e. East side of the road with
built-up area thereon to be constructed by the Second Party in
Sy. No.61/2 part of Maddilapalem at the time of entering the
Compromise Deed with litigant parties for settlement of
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civil disputes in the First Party's land in Sy. No.60 of
Maddilapalem.
04. The Second Party agreed that the First Party
need not register 2000 Sq. yds. of First Party's land in Sy.
No.60 as a part consideration after settlement of disputes.
05. The Second Party agreed to complete the
construction of flats and handing over to the First Party
intended for the 17 beneficiary members nominated by the
First Party within a period of 18 months from the date of
handing over of First Party's land in Sy. No.60 by the litigants
and if the construction is delayed beyond the stipulated
period by the First Party except for reasons beyond the control
of the First Party, then the First Party shall pay to the First
Party Rs.5000/- per month for each of the 17 Flats.
06. The First Party agrees to register the entire
remaining available First Party's land (after deducting 2550
Sq. yds. utilized for construction of 17 flats in Sy. No.60)
approximately Ac.2.70 cents in Sy. No.60 and also entire
remaining land of First party's land in Sy. No.61/2 part of
Maddilapalem after deducting the office room construction
area in Sy. No.61/2 part in favour of the Second Party as a
full consideration on the date on which the Second Party will
handover the 17 flats to the First Party intended for the 17
beneficiary members. The cost of construction, registration
charges shall be borne by the Second Party.
07. That in case in any of the pending
suits/litigations filed by occupants (Relly and Peetala
families) in respect of 3600 Sq. yds. in Ac.3.07 cents in which
it is proposed to construct 24 flats, if any order is passed by
any court in favour of the litigants for 1000 Sq. yds in Sy.
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No.60, the Second Party agreed to indemnify the First Party to
reallocate similar extent of 3600 Sq. yds. of First Party's land
by the side of present agreed site on the North-east corner in
First Party's land in Sy. No.60 and again to register the same
in favour of First Party or its nominees and Registration
charges including stamp duty will be borne by Second Party.
08. The Second Party undertakes to settle the
disputes at his cost through courts or outside the courts if any
civil or criminal cases are filed by occupiers or litigants either
against the First Party or allottee members or their nominees
or legal heirs of the First Party.
09. The Second Party agreed for settlement of the
pending disputes for First Party's land in Sy. No.60 of
Maddilapalem within a period of 15 months from the date of
Registration of Construction Agreement in favour of the First
Party. If for any reason there is any delay for settlement of
disputes beyond the control of the Second Party, the said
period shall be extended after mutual discussion between the
First Party and Second Party and the M.O.U.dated
12.07.2009 and this Agreement dated 28.02.2010 for partial
modifications to M.O.U. dated 12.07.2009 shall be extended
for a further period as agreed to between the First Party and
Second Party."
4. Admittedly the Resolution dated 30.09.2008, which
is the basis for entering into an MoU dated 12.07.2009 and as
well as the subsequently modified MoU on 01.03.2010, which
lead for the execution of Agreement of sale-cum-GPA vide three
different registered documents dated 18.03.2010,indicate that
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consideration for validating the agreement of sale -cum-GPA is
done in the shape of conveyance.
5. The learned counsel for the Petitioner relied upon a
judgment in Gaddam Laxmaiah and Ors. Vs. Commissioner
and Inspector General, Registration and Stamps and Ors.
(2 Supra), wherein a Division Bench of the then Common High
Court for the State of Telangana and the State of Andhra
Pradesh, held as follows:
"...the use of expression 'conveyance' and the
circumstances warranted making of the said rule, would
lead to a conclusion that it applies not only to cancellation of
sale deeds pure and simple but also to the transactions, that
have the ingredients and characteristics of a sale..."
6. As upheld in High Court of Madras (AIR 2022 Mad
323), even according to Section 202 of the Indian Contract Act,
1872, the power of attorney coupled with interest is irrevocable
and cannot be revoked/terminated even upon the death of the
Principal.
7. In Harbans Singh vs Shanti Devi (5 Supra), the
Court held that the GPA was executed for a valuable
consideration and the agent had an interest in the property and
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therefore, the GPA was irrevocable. It was also held that the
purchaser had an interest in the immovable property for the
purposes of Section 202 of the Contract Act, if not for the
purposes of transfer of Property Act and Registration Act. The
findings of the Division Bench are as under:
"10. For the purposes of the Law of Contract,
therefore, it would not be useful to restrict the meaning of
the word "interest" by the narrow compass in which this
world is used at times in relation to immovable property.
For instance, the last sentence of Section 54 of the Transfer
of Property Act states that a contract for sale of itself does
not create any interest in or change on immovable property.
Similarly, Section 17(1)(b) of the Registration Act makes
only those documents compulsorily registerable which
create, declare, assign, limit or extinguish any right, title or
interest, whether vested or contingent, of the value of one
hundred rupees and upwards to or in Immovable Propety.
Since an agreement for sale does not create such a right,
title or interest, it may not be compulsorily registerable. But
in the context of the Contract Act, it cannot be said that a
person who is the beneficiary of an agreement of sale has
no right or interest in the subject-matter of the sale. He has
a legally enforceable right and interest in enforcing the
contract of sale by the execution of a sale deed and in
getting possession of the property agreed to be sold under
the provisions of the Specific Relief Act. In the English
Common Law, the specific performance of contracts was a
part of the law of contract. This is why Chapter IV of the
Contract Act deals with the performance of contracts which
includes the performance of contracts relating to immovable
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property also. In fact, Section 4 of the Transfer of Property
Act says that the chapters and sections of that Act which
relate to contracts shall be taken as part of the Indian
Contract Act, 1872. Therefore, the respondent in whose
favour the appellant had executed an agreement for the
sale of an immovable property had an interest in the
subject-matter of the contract, namely, the shop, for the
purposes of section 202 of the Contract Act if not for the
purposes of the Transfer of Property and the Registration
Acts."
8. In the case on hand, the original MoU and the
subsequent modified MoU and the Agreement of sale-cum-GPA
executed by the respondent Society in favour of the Petitioner
have created an interest, in favour of the Petitioner who has
performed his part of execution to some extent, and in view of
the same, the principle that the General Power of Attorney was
executed for a valuable consideration and the agent had an
interest in the said property and therefore the GPA is irrevocable
would apply even to the Agreement of sale-cum- GPA dated
18.03.2010. The issue is accordingly answered.
3. Whether all the documents entered into by the
Petitioner and the Respondent Society such as the initial
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MoU, Partial MoU, Agreements of Sale-cum-General Power of
Attorney should be treated as one document?
1. In the present case, the Agreement of Sale-cum-
GPA cannot be considered in isolation, as the activities prior to
such as Resolution of the General Body , MoU and partial MoU
also need to be considered as one document as held by Apex
Court in S.Chattanatha Karayalar v. The Central Bank of
India Ltd. & Ors. (6 Supra) as under:
"The principle is well established that if the
transaction is contained in more than one document between
the same parties they must be read and interpreted together
and they have they have the same legal effect for all
purposes as if they are one document".
2. The said principle laid down by the Apex Court was
also followed by the High Court of Delhi in Hardip Kaur Vs.
Kailash and Ors. (7 Supra)
3. Therefore, all documents and agreements viz.Letter
dated 30.09.2008, Compromise Agreement dated 21.10.2008
between Petitioner, Respondent No.4 and Gudla Kamala & 7
others, Agreement/Memorandum of Understanding dated
12.07.2009, Agreement for Partial Modification to MoU dated
12.07.2009 on 01.03.2010 and registered Agreements of Sale-
cum-General Power of Attorney executed by Respondent No.4 in
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
favour of the Petitioner vide Doc. Nos.2420 of 2010, Doc.
No.2421 of 2010 and Doc. No.2422 of 2010 dated 18.03.2010,
must be read and interpreted together and they have the same
legal effect for all purposes as if they are one document, which
admittedly was not taken into consideration by the respondent
authorities.
The issue is answered accordingly.
4. Whether a Registered Agreement for Sale-cum-
General Power of Attorney coupled with Development
/construction can be cancelled unilaterally?
1. For proper appreciation of the above issue, this Court
feels it appropriate to extract Rule 26(1)k(i) of the Registration
Act, 1908, which is as under:
"..26(1)(k)(i)-The registering officer shall ensure at the time of
presentation for registration of cancellation deeds of previously
registered deed of conveyances on sale before him, that such
cancellation deeds are executed by all the executant and
claimant parties to the previously registered conveyance on sale
and that such cancellation deed is accompanied by a declaration
showing mutual consent or orders of a competent Civil or High
Court or State or Central Government annulling the transaction
contained in the previously registered deed of conveyance on
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
sale; Provided that the registering officer shall dispense with the
execution of cancellation deeds by executant and claimant
parties to the previously registered deeds of conveyance on sale
before him if the cancellation deed is executed by a Civil Judge
or a Government Officer competent to execute Government orders
declaring the properties contained in the previously registered
conveyance on sale to be Government or Assigned or
Endowment lands or properties not registerable by any provision
of law."
2. A plain reading of this Rule does not indicate that
before the deed of cancellation is executed, the affected party is
entitled for a notice. However, the case law relied upon by the
learned counsel includes the judgment in Kaitha Narasimha
v. the State of A.P. (W.P.NO.3744 of 2007), wherein a
Division Bench held that Rule 26(1)(k)(i) of the Andhra Pradesh
Rules under the Registration Act, 1908 incorporates one of the
facets of the rules of natural justice in the procedure laid down
for registration of a cancellation deed. The Rule, according to
the Division Bench, is intended to ensure that a duly registered
sale deed is not cancelled without the executant and the
claimant getting an opportunity to contest the registration of the
cancellation deed.
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
3. In the case of Thota Ganga Laxmi and another v.
Government of Andhra Pradesh and others (8 Supra), the
Hon'ble Supreme Court also considered Rule 26(1)(k)(i). In the
concluding paragraph, the Hon'ble Supreme Court held as
under:
"...that only when a sale deed is cancelled by a
competent Court that the cancellation deed can be registered
and that too after notice to the concerned parties."
In that case, the Hon'ble Supreme Court noticed that
there was no declaration by a competent Court nor was there
any notice to the parties. The said law was also followed by this
Court in Maruturi Raghavendra Rao and Another Vs. State
of Andhra Pradesh and others (1 Supra), wherein the
components of the Rule 26(1)(k)(i) were analyzed as under:
"This is the sum and substance of the Rule in question. If
it is broken down into its component parts, the following are
discernible:
(i) Cancellation deed should be executed by all the parties
concerned.
(ii) There should be a declaration showing mutual consent
which should be presented along with the deed of
cancellation or there should be an order of a competent Civil
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Court or High Court or the State or the Central Government
'annulling' the transaction.
(iii) If the deed is executed by a Government Officer, it
should reflect the fact that: that the properties contained in
the previously registered conveyance are government
properties, assigned lands or endowment lands or
properties are not registerable by any provision of law.
(iv) the Officer executing this deed of cancellation should
also be 'competent to execute the document."
4. The learned counsel for the Petitioner relied upon a
judgment reported in Gaddam Laxmaiah and others v. The
Commissioner and Inspector General, Registration and
Stamps and others, (2 Supra), wherein a Division Bench of the
then Common High Court of the State of Telangana and the
State of Andhra Pradesh has held as follows:
"...28. Thus, having regard to the law laid down by
the Supreme Court and provisions of the Act, in our opinion,
whenever registered documents such as Development
Agreerment-cum-GPA, is sought to be cancelled, execution
and registration of such a document/deed must be at the
instance of both the parties i.e., bilaterally and not
unilaterally. If a deed of cancellation is allowed to be
registered without the knowledge and consent of other party
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
to the deed/document, sought to be cancelled, such
registration would cause violation to the principles of natural
justice and lead to unnecessary litigation, emanating
therefrom. In any case, as stated earlier, in the absence of
any provision specifically empowering the Registrar to
entertain a document of cancellation for registration without
the signatures of both the parties to the document, the deed
cannot be entertained. Moreover, if the Registrars are allowed
to entertain a deed of cancellation for registration without
signatures of both the parties to the document sought to be
cancelled, such power would tantamount to conferring the
power to decide disputed questions between the parties. No
party to the document would ever approach for cancellation
of registered document unilaterally unless there is a dispute
with the other party in respect of the subject-matter of the
document. In the result, we answer the question in the
negative. In other words, we hold that registration ana
unilateral cancellation of documents such as Development
Agreement-cum-General of power of Attorney under the
Registration Act is not permissible in law."
5. The High Court of Madras reported in Sasikala Vs.
The Revenue Divisional Officer, cum Sub Collector,
Devakottai and other (9 Supra), while referring to judgment of
the Hon'ble Supreme Court in Thota Ganga Laxmi & Anr. v.
Government of Andhra Pradesh & Ors. (8 supra) and other
judgments have framed the following propositions:
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
"a) A sale deed or a deed of conveyance other than
testamentary dispositions which is executed and
registered cannot be unilaterally cancelled.
b) Such unilateral cancellation of sale deed or a
deed of conveyance is wholly void and non est and does
not operate to execute, assign, limit or extinguish any
right, title or interest in the property.
c) Such unilateral cancellation of sale deed or deed
of conveyance cannot be accepted for registration.
d) The transferee or any one claiming under him or
her need not approach the civil Court and a Writ Petition
is maintainable to challenge or nullify the registration.
e) However, an absolute deed of sale or deed of
conveyance which is duly executed by the transferor
may be cancelled by the Civil Court at the instance of
transferor as contemplated under Section 31 of Specific
Relief Act.
f) As regards gift or settlement deed, a deed of
revocation or cancellation is permissible only in a case
which fall under Section 126 of Transfer of Property Act,
and the Registering Authority can accept the deed of
cancellation of gift for registration subject to the
conditions specified in para 42 of this judgment.
g) The legal principles above stated by us cannot be
applied to cancellation of Wills or power of Attorney deed
which are revocable and not coupled with interest."
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
6. The Hon'ble Supreme Court of India in Civil Appeal
No.7464 of 2021, while referring to the case of Satyapal Anand
vs. State of Madhya Pradesh (10 Supra) and as well as Thota
Gangalaxmi and another Vs. Government of Andhra
Pradesh and others (8 supra) held as follows:
"It is settled legal position that registration of document is
always subject to adjudication of rights of parties by the
competent Civil Court."
7. The learned Senior counsel appearing for the
respondent relied upon a judgment reported in case Her
Highness Maharani Shantidevi Vs. Savjibhai Haribhai Patel
and Others (11 Supra), wherein this Court held as under:
"51. It has been held that "in the case of an
ambiguous instrument, there is no reason why subsequent
interpreting statement should be inadmissible". In the present
case we are concerned with an unambiguous document and,
therefore, we have to go by its plain meaning. Further, the
affidavit-cum- declaration only reiterated what was contained
in the agreement. It did not enlarge the agreement. It did not
substitute any clause in the agreement. It was not a
document executed between the parties. It was a document
executed by original Defendant 1 alone for the purposes of
filing it before the competent authority. Clause 17 of the
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
agreement does not call for any other interpretation except
that the contract could be unilaterally rescinded before
delivery of possession."
The issue involved in the judgment pertains to an affidavit-
cum-declaration executed by the appellants only for the purpose
of filing it before the competent authority, by which document it
was neither intended to confer any additional rights in favour of
the plaintiffs nor to place restriction on the appellants which was
not envisaged by the agreement. The said agreement also does
not contemplate that the title in the land would pass on to the
plaintiff. But, however, the Court had concluded as under:
"It also deserves to be noticed that, strictly
speaking, it is not a contract for transfer of the property
but is a contract to carry out the scheme which is
incapable of being carried out at this stage on account of
reservation in the master plan and also repeal of the ULC
Act."
8. The above referred judgment has no application to
the facts in the present case on hand. The respondents having
rightly approached the Hon'ble Civil Court by filing O.S.No.97 of
2012 on the file of the VI Additional District Judge,
Vishakhapatnam, seeking cancellation of the three Agreements
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
of sale-cum- GPA dated 18.03.2010, and simultaneously
approached the Joint Sub-Registrar I, Vishakhapatnam seeking
cancellation of the said three Agreements of sale-cum- GPA, and
when the Joint Sub-Registrar failed to register the same, the
Respondent Society filed W.P.no.5749 of 2014, which was also
subsequently withdrawn on 13.11.2014, and thereafter the Joint
Sub-Registrar has refused to register the cancellation of
Agreements of sale-cum- GPA vide P nos 294,295 and 296 of
2015. Challenging the same, the Respondent Society filed
statutory appeals under Section 72 of Registration Act,1908
before the District Registrar, Vishakhapatnam, who erroneously
allowed the three appeals bearing nos.1,2 and 3 of 2015 dated
17.12.2015 by directing the Sub-Registrar to register the three
cancellation deeds, unilaterally cancelling the three registered
Agreements of sale-cum- GPA dated 18.03.2010 and thereafter
the Sub-Registrar registered the three cancellation deeds vide
Doct.No.9679,9681 and 9680 of 2015 dated 21.12.2015 in spite
of pendency of Suit in OS no.97 of 2012 which was later on
withdrawn on 14.10.2016.
9. Though the Petitioner invoked the Arbitration clause
mentioned in the MoU dated 12.07.2010 and filed AOP 867 of
2016 and the same was dismissed on 05.12.2016, on the ground
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
that the Petitioner failed to appoint an arbitrator in terms of
Section 9(2) of Arbitration Act.
10. The entire facts of the present case indicates that
the 3 cancellation deeds dated 21.12.2015 were unilaterally
registered contrary to the provisions of the Indian Stamps and
Registration Act, 1908, Indian Contract Act, 1872 law for
specific performance T.P. Act and as well as the law laid down
by the High Court and Supreme Court.
Accordingly, this issue is answered.
30. The Government also issued Circular memo
no.G1/CAN/4028/2010 dated 31.10.2010 which reads as
follows:
"...the following instructions are issued that no
Registering Officer shall register a deed of
revocation/cancellation of GENERAL POWER OF
ATTORNEY coupled with previously registered
documents of Agreements of Sale to safeguard the
interest of the Agent/Vendee. In case if any such
deeds of revocation/cancellation of General Power of
Attorney combined with Agreement of
Sale/Development Agreements is presented for
registration, the Registering Officers are directed to
refuse the document for registration citing the
instructions issued in this memo."
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
31. The above said circular instructions are binding on
the sub-registrar as well as the District Registrar. The issue was
discussed in the case of Gaddam Laxamaiah and Ors Vs
Commissioner and Inspector General , Registration and
Stamps and Ors. (2 Supra) as under:
"...24. From a plain reading of sub-section (1) of
Section 69, it is clear that it defines two separate
powers of the Inspector General; firstly, general
superintendence over all the registration offices and,
secondly, to make rules consistent with the Act in
respect of different functions specified in clauses (a) to
(f) thereof. Sub-section (2) does not indicate even
remotely, as contended by learned counsel for the
parties opposing circular/instructions of Commissioner
and Inspector General of Registration and Stamps,
that circulars and instructions issued by the Inspector
General, in exercise of power of general
superintendence under Section 69(1) need to be
published in the Official Gazette. Sub-section(2)
provides for publication of only Rules framed in
exercise of powers under Section 69(1) in Official
Gazette. It further provides that on publication, the
Rules shall have effect as if they are enacted under
the Registration Act. The contention that the impugned
circular has not been published in the Official Gazette,
and therefore, has no effect of law deserves to be
rejected outright. In our opinion, the Inspector General
has power to issue circulars. In other words, the
Inspector General, under Section 69 of the
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Registration, Act, can exercise power of general
superintendence over all registering officers in the
territory under the State Government by issuing
directions/circulars/instructions to the registering
officers in the matter of registration of particular type
of document [See B.Ratnasnndari Devi and others v.
The Commissioner of Urban Land Ceiling, A.P.,
Hyderabad and others MANU/AP/0380/1993 : 1993
(2) ALT 428 (DB)]. Even otherwise, in our opinion,
instructions/circulars, issued by the competent
authorities are meant to be followed by all the
subordinates."
32. Pending the present Writ Petitions, challenging the
orders passed by the District Registrar dated 17.12.2015, the
Petitioner preferred a revision to Government, the 1st respondent
herein, who vide Memo No.REV01-REGSOMISC/10/2019-
REGN.1-1, dated 03.05.2020 held as follows:
"...Hence, the Law Department has also
opined that District Registrar, Visakhapatnam is not
having any judicial power like civil court to entertain
appeal once documents were registered by both the
parties, hence the order of the District Registrar shall be
set-aside and shall be treated as non-est in the eye of
law.
Government after careful examination of the
matter and as per opinion of the law department, the
Commissioner and Inspector General, Registration and
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
Stamps, AP Vijayawada is requested to pass necessary
order in compliance with the above interim orders of Hon'ble
High Court for cancelling the order of the District Registrar,
Visakhapatnam in Appeal Nos.1, 2, 3 of 2015, dated
17.12.2015 with direction to the Sub-Registrar,
Visakhapatnam to cancel the documents bearing No.9679,
9680, 9681 dated 21.12.2015 and shall make necessary
entries in the registration books subject to the result of the
W.P. No.367 of 2017, W.P. No.484 of 2017 and W.P. No.485
of 2014 which are pending before the Hon'ble High Court."
33. Thereafter, the Commissioner and Inspector
General Vide memo G3/425/2020 dated 16.06.2020 gave the
following directions to the District Registrar:
"In this connection, the District Registrar,
Visakhapatnam is requested to take immediate necessary
action for cancelling the orders of the then District Registrar,
Visakhapatnam in Appeal Nos.1, 2 and 3 of 2015, dated
17.12.2015 with a direction to the Sub-Registrar,
Visakhapatnam, to cancel the documents bearing Nos.9679,
9680, 9681 dated 21.12.2015 and shall make necessary
entries in registration book subject to the result of the
W.P.No.367 of 2017, W.P. No.484 of 2017 and W.P. No.485
of 2017 which are pending before the Hon'ble High Court, in
accordance with the provisions of law."
34. In spite of the above said directions, no further
course of action could be initiated in view of the pendency of
these writ petitions. But, however, the learned Senior Counsel
appearing for the respondents vehemently argued that in
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
compliance to the Rule 26(i)(k)(i), they got issued a legal
notice to the petitioner which was also published in the
newspaper and thereafter, the petitioners also replied to the
said notice. But, however, to the reasons best known to them,
they have failed to come forward to execute the cancellation
deed. The said argument of the respondents cannot be
accepted in view of the fact that the cancellation deed was not
signed by both the executants in compliance to the provision
of Rule 26(1)(k)(i), and also the law laid down by the Hon'ble
Supreme Court in Gaddam Laxmaiah and Others Vs.
Commissioner and Inspector General, Registration and
Stamps, Hyderabad and others (2 Supra).
35. This Court in Smt. Tummidi Bala Nagamani Vs.
The State of Andhra Pradesh in W.P. No.17394 of 2021 while
referring to the case of Pinnama Raju Ranga Raju Vs. The
State of Andhra Pradesh12, wherein in para (g) in Gaddam
Laxmaiah Vs. The Commissioner and Inspector General,
Registration and Stamps (2 Supra) while dealing with the
question whether unilateral cancellation of Development
Agreement-cum-General Power of Attorney (GPA) and
2020 LAWSuit (AP) 223
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
registration thereof under the Registration Act is permissible
in law, the Division Bench observed that:
"28. ....we hold that registration and unilateral cancellation of
documents such as Development Agreement-cum General of Power of
Attorney under the Registration Act is not permissible in law."
36. As interpreted by this Court with regard to the word
'conveyance on sale' in Ediga Chandrasekhar Gowd's case,
also in view of the language used under Section 126 of T.P. Act,
the impugned cancellation of registration unilaterally is nothing
but violative of Rules 26(i)(k).
37. On the other hand, though the respondent-Society
issued legal notice, for which admittedly the petitioner gave a
reply, but however the fact remains that the said documents of
cancellation of registration does not contain the signatures of
both the parties of the original GPA-cum-Sale Deed, in which
case, the registrar should not have allowed the registration of
cancellation deed as per Rule 26(i)(k) of the Registration Act,
1908 and also as per the law laid down in Gaddam Laxmaiah
and Others Vs. Commissioner and Inspector General,
Registration and Stamps, Hyderabad and others (2 Supra).
Hence, the 3 cancellation deeds dated 21.12.2015 are liable to
be set aside.
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
37. In view of the above observations, the writ petition
Nos.41920, 41921 and 41922 of 2015 filed by the petitioner
challenging the 3 individual orders passed in 3 appeals dated
17.02.2015 are dismissed as infructuous.
38. With regard to the writ petition Nos.367, 484 and
485 of 2017, this Court feels it appropriate to allow the said writ
petitions by setting aside the 3 cancellation deeds registered vide
document Nos. 9680, 9679 and 9681 of 2015, dated 21.12.2015.
Accordingly, the Joint Sub-Registrar-1, Visakhapatnam, is
directed to cancel the execution of 3 cancellation deeds dated
21.12.2015, registered vide document Nos.9680, 9679 and 9681
of 2015, in view of the settled legal position on this issue as
discussed above and also in compliance with the order passed by
the 1st respondent vide Memo No.REV01-REGSOMISC/10/2019-
REGN.1-1, dated 03.05.2020, as expeditiously as possible,
preferably within a period of eight (8) weeks from the date of
receipt of a copy of this order. There shall be no order as to costs.
Consequently, miscellaneous applications pending, if any, shall
stand closed.
_______________________
JUSTICE V. SUJATHA
Date: 19.04.2023
ASH
Note: LR Copy to be marked
W.P. Nos.41920, 41921, 41922 of 2015,
367, 484 and 485 of 2017
VS, J
HONOURABLE SMT. JUSTICE V. SUJATHA
WRIT PETITION Nos.41920, 41921, 41922 of 2015 & 367,
484 and 485 of 2017
Date:19.04.2023
ASH
Note: LR Copy to be marked
