Madras High Court

M/S. Arihant Technocast India Pvt ... vs The Inspector General Of ... on 28 August, 2023

                                                                        W.P.No.19399 of 2023

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 28.08.2023

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                               W.P.No.19399 of 2023 &
                                               W.M.P.No.18673 of 2023

                     M/s. Arihant Technocast India Pvt Ltd,
                     Represented by its Director Mr.S.Murugesan,
                     S.F.No.554/1 & 557, Swaminathapuram Road,
                     Vadavalli Village, Periyaputhur, Annur Taluk,
                     Coimbatore – 641 697                                  ... Petitioner


                                                          Vs.

                     1.The Inspector General of Registration,
                       Santhome High Road,
                       Chennai – 28.

                     2.The District Registrar (Administration),
                       Asst. Inspector General of Registration,
                       Coimbatore.

                     3.Sub Registrar,
                       Mettupalayam,
                       Coimbatore.

                     4.Ajay Ghosh

                     5.Thulasimani @ Thulasiammal


                     Page 1 of 11




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                                                                                           W.P.No.19399 of 2023

                     6.Rajiv Mohan

                     7.Muthammal

                     8.Marudhachalam

                     9.Parvathi

                     10.Selvan

                     11.Chandran

                     12.Jothimani

                     13. Santhi

                     14.Kandasami

                     15.Suseela                                                      ... Respondents

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India for
                     issuance of a Writ of Certiorarified Mandamus, calling for the records of the
                     second         respondent   in   his     proceedings   dated   24.03.2023       bearing
                     No.118/E2/2022 cancelling the sale deed 8493 of 2006 and 2160 of 2009 on
                     the file of the Sub Registrar, Mettupalayam and quash the same as Ultravirus
                     and without jurisdiction and consequently direct the second and third
                     respondents to remove the entires/remarks made in the encumbrance
                     certificate of the petitioners property in SF.Nos.555 and 565, Vadavalli
                     Village,       Avinashi     Taluk      (Presently   Annur   Taluk),    Mettupalayam,
                     Coimbatore, measuring an extent of 32.98 cents.


                     Page 2 of 11




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                                                                                       W.P.No.19399 of 2023




                                        For Petitioner          : Mr.S.Mukunth, Senior Counsel,
                                                                  for M/s.Sarvabhauman Associates

                                        For Respondents 1 to 3 : Mr.D.Ravichander
                                                                 Special Government Pleader

                                        For Respondent 4        : Mr.R.Nalliappan


                                                           ORDER

The order dated 24.03.2023 passed by the District Registrar under

section 77A of the Registration Act is under challenge in the present writ

petition.

2. The petitioner purchased the subject property in the year 2006 and

2009 respectively. The revenue records were also mutated in the name of the

petitioner. The petitioner is in peaceful possession and enjoyment of the

subject property. It is not in dispute that the contesting respondent in the

present writ petition instituted a civil suit in O.S.No.2532 of 2013 on the file

of the III Additional District Munsif Court, Coimbatore and the case was

subsequently transferred to Annur Munsif Court, Coimbatore District. The

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civil suit is pending. While so, the contesting respondent filed a complaint

before the District Registrar under section 77A of the Registration Act, which

was entertained and the District Registrar conducted a summary proceeding

and allowed the complaint by cancelling the documents registered in favour

of the writ petitioner in the year 2006 and 2009.

3. The learned senior counsel appearing on behalf of the writ petitioner

mainly contended that the application of amended provision under section

77A of the Registration Act cannot be exercised for the purpose of cancelling

the documents, which were registered long before and more so, prior to the

amendment. In the event of conferring such power to the District Registrar,

an anomalous situation would be created and several documents will become

the subject matter of section 77A of the Registration Act. Such retrospective

application of the provision would cause prejudice, since during the relevant

point of time when the documents were registered, there is no provision to

cancel such documents.

4. The learned counsel appearing on behalf of the contesting

respondent raised an objection by stating that the documents were

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fraudulently registered and the District Registrar after considering the

grounds raised between the parties cancelled the documents and more so, the

petitioner has not preferred an appeal contemplated under section 77B of the

Registration Act. Thus, the writ petition is liable to be rejected.

5. This court has considered the issues relating to the application of

section 77A of the Registration Act in W.P.No.19239 of 2023 dated

25.07.2023 and the relevant portions of the said order are extracted

hereunder:

“4. Without going into the allegations of fraud or impersonation, this Court has to consider the repercussions in the event of conducting summary proceedings for the purpose of cancelling the documents registered long back. The amendment was made under the Tamil Nadu Act 41 of 2022 with effect from 16.08.2022 and accordingly, Section 77A was inserted.

The provision is ambiguous with reference to its retrospective application. The consequence of retrospective application is to be considered by the Courts. If unguided powers are provided to the District Registrars to cancel the documents, irrespective of the time of registration, the same would result in an

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anomalous situation where the documents registered several decades back also may be the subject matter for cancellation under Section 77A of the Act.

......

9. Therefore, necessarily, the Court has to form an opinion that in respect of the documents falling under Section 22B of the Act, if sought to be cancelled, then the Registrar is empowered to cancel the documents under Section 77A of the Act. In respect of other documents registered prior to the amendment, one has to understand that those documents are to be dealt in accordance with the law prevailing at the time of registration either by approaching the Civil Court of law or otherwise. When all those documents registered prior to the amendment of the year 2022 are subjected to Section 77A of the Act, then this Court is afraid that an anomalous situation would be created by approaching the District Registrar for the purpose of adjudication of disputed issues with reference to those documents registered several years back. The amendment effected from 16.08.2022 has not intended to do so nor the provision expressly provides any such retrospective application. Prior to amendment, Section 22A and

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Section 22B was not in force. Thus, Section 77A cannot have retrospective effect. In other words, Section 77A must be read in conjunction with Section 22A and Section 22B of the Act. Insertion of all these three Sections are to be understood holistically to avoid any inorderliness.

10. Article 59 of the Limitation Act, 1963 stipulates that, to cancel or set aside any instrument or decree for rescission of a contract, the period of limitation is three years. Therefore, even for setting aside an instrument or a decree or for rescission of a contract the period of three years has been contemplated under the Limitation Act, the documents registered several years back or decades back cannot be the subject matter for cancellation of those documents under Section 77A of the Act.

....

14. In the present Writ Petition, disputed issues exist between the parties. Even the second respondent herein was a party respondent in yet another Writ Petition filed by one Mr.T.Arockia Dass in W.P.No.754 of 2023, wherein this Court passed an order on

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10.01.2023. Therefore, the dispute between the parties cannot be resolved by way of summary proceedings under Section 77A of the Act. Normally, amendments under the Statutes are intended for prospective effect, unless retrospective effect has been expressly made under the amendment. Presumptive retrospective implementation of the amendments in the Statutes would cause larger repercussion and would result in disastrous consequences. Lakhs and lakhs of documents registered prior to the amendments will be placed for adjudication before the Registrar to cancel those documents on personal or on varieties of reasons. Therefore, in the absence of any specific provision to implement the amendment retrospectively, the power conferred through amendment is to be exercised with prospective effect with reference to the documents registered subsequent to the amendment and insertion of Sections 22A, 22B and 77A of the Act. Thus, the petitioner as well as the complainant in the present case have to redress their respective grievances before the competent Civil Court of law.”

6. In view of the principles laid down in the Judgment cited supra, the

impugned order is liable to be interfered with. In such circumstances,

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relegating the party to prefer an appeal will become a futile exercise and thus,

this Court is inclined to dispense with the appeal to be preferred under

section 77B of the Act.

7. In view of the facts and circumstances, the order impugned passed

by the District Registrar in the proceedings No.118/E2/2022 dated

24.03.2023 is quashed. The parties are at liberty to adjudicate the issues in

the pending suit or by instituting a fresh proceeding as the case may be to

establish their civil rights based on the documents and evidence available on

record.