Madras High Court
Ramalingam vs The Inspector General Of ... on 17 July, 2023
W.P.No.10124 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.07.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.10124 of 2023
and
W.M.P.No.10149 of 2023
Ramalingam ... Petitioner
Vs.
1.The Inspector General of Registration,
Department of Revenue and Disaster Management,
Government of Puducherry.
2.The District Registrar,
Registration Department,
Office of District Registrar, Saram
Government of Puducherry.
3.Loganadin Camalessane ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, calling for records relating to the impugned
order of the 1st respondent in No.4225/REGN/A3/DRO/2021 dated
05.08.2021 and the consequential impugned notice of the 2nd respondent in
No.4225/DRP-119/DRO/RD/2022/1600 dated 21.09.2022 and quash the
same as without authority and ultra vires to the Registration Act, 1908.
Page 1 of 11
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W.P.No.10124 of 2023
For Petitioner : Mr.K.S.Ilangovan
For M/s.Achari and Antoni
For R1 & R2 : Mr.P.S.Kothanda Raman
Government Advocate
[Puducherry]
For R3 : No Appearance
ORDER
The writ on hand has been instituted questioning the validity of the
circular issued by the 1st respondent / Inspector General of Registration
(Puducherry) in circular dated 05.08.2021.
2. The impugned circular provides power to the District Revenue
Officer to cancel the registration of documents on the ground of fraud and
impersonation. The District Registrars are conferred with the power to
conduct an enquiry under Section 68(2) of the Registration Act, 1908. The
impugned circular provides procedures by invoking Section 69 of the Act.
3. The petitioner states that he is the absolute owner of the property in
No.36, 10th Cross, Main Road Corner, Anna Nagar, Nellithoppu,
Pondicherry. He purchased the property from one Mr.Nava Bharathi by way
of a registered sale deed dated 08.05.2017 registered as Document No.5735
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W.P.No.10124 of 2023
of 2017. The traces towards the above sale way back to the year 1981, where
one Jayamani sold the property to one Kamalatchi by way of registered sale
deed dated 05.06.1981 vide Document No.1212 of 1981. The said
Kamalatchi sold the property to one Rekha on 03.07.2007. The said Rekha in
turn sold the property to the vendor to the petitioner, who is Mr.Nava
Bharathi vide sale deed dated 24/2012 in Document No.266 of 2012.
4. The 3rd respondent submitted a complaint to the 2nd respondent, who
in turn issued an impugned notice dated 21.09.2022 based on impugned
circular issued by the Department of Revenue and Disaster Management
dated 05.08.2021. The petitioner has chosen to challenge the circular as well
as the circular notice issued by the 2nd respondent based on the complaint
filed by the 3rd respondent.
5. The learned counsel for the petitioner mainly contended that the 1st
respondent has no power to issue any such circular under the provisions of
the Registration Act. Unlike the Tamil Nadu Act 41 of 2022 inserting Section
77-A of the Registration Act, no such amendment effected, as far as the
Government of Puducherry is concerned.
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W.P.No.10124 of 2023
6. Therefore, the question arises, whether the Inspector General of
Registration is empowered to issue circular conferring the powers on the
District Registrar to cancel the registered document by conducting an enquiry
in the form of summary proceedings.
7. In this regard, Three Judges Bench of the Hon'ble Supreme Court of
India in the case Satya Pal Anand vs. State of M.P., reported in (2016) 10
SCC 767, held as follows:
“34. The role of the Sub-Registrar
(Registration) stands discharged, once the
document is registered (see Raja Mohammad Amir
Ahmad Khan [State of U.P. v. Raja Mohammad
Amir Ahmad Khan, AIR 1961 SC 787] ). Section 17
of the 1908 Act deals with documents which require
compulsory registration. Extinguishment deed is
one such document referred to in Section 17(1)(b).
Section 18 of the same Act deals with documents,
registration whereof is optional. Section 20 of the
Act deals with documents containing
interlineations, blanks, erasures or alterations.
Section 21 provides for description of property and
maps or plans and Section 22 deals with the
description of houses and land by reference to
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W.P.No.10124 of 2023
government maps and surveys. There is no express
provision in the 1908 Act which empowers the
Registrar to recall such registration. The fact
whether the document was properly presented for
registration cannot be reopened by the Registrar
after its registration. The power to cancel the
registration is a substantive matter. In absence of
any express provision in that behalf, it is not open
to assume that the Sub-Registrar (Registration)
would be competent to cancel the registration of
the documents in question. Similarly, the power of
the Inspector General is limited to do
superintendence of Registration Offices and make
rules in that behalf. Even the Inspector General has
no power to cancel the registration of any
document which has already been registered.
35. The procedure for registration of
documents is spelt out, inter alia, in Part VI of the
1908 Act. Section 32 of the said Act reads thus:
“32.Persons to present documents for
registration.—Except in the cases mentioned in
Sections 31, 88 and 89, every document to be
registered under this Act, whether such registration
be compulsory or optional, shall be presented at
the proper registration office—
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W.P.No.10124 of 2023
(a) by some person executing or claiming under the
same, or, in the case of a copy of a decree or order,
claiming under the decree or order, or
(b) by the representative or assignee of such
person, or
(c) by the agent of such person, representative or
assign, duly authorised by power of attorney
executed and authenticated in manner hereinafter
mentioned.”
36. If the document is required to be
compulsorily registered, but while doing so some
irregularity creeps in, that, by itself, cannot result
in a fraudulent action of the State Authority. Non-
presence of the other party to the extinguishment
deed presented by the Society before the
Registering Officer by no standard can be said to
be a fraudulent action per se. The fact whether that
was done deceitfully to cause loss and harm to the
other party to the deed, is a question of fact which
must be pleaded and proved by the party making
such allegation. That fact cannot be presumed.
Suffice it to observe that since the provisions in the
1908 Act enables the Registering Officer to register
the documents presented for registration by one
party and execution thereof to be admitted or
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W.P.No.10124 of 2023
denied by the other party thereafter, it is
unfathomable as to how the registration of the
document by following procedure specified in the
1908 Act can be said to be fraudulent. As
aforementioned, some irregularity in the procedure
committed during the registration process would
not lead to a fraudulent execution and registration
of the document, but a case of mere irregularity. In
either case, the party aggrieved by such
registration of document is free to challenge its
validity before the civil court.”
8. The Government of Puducherry assumed the powers to cancel the
registered document, which is not conferred otherwise under the provisions
of the Registration Act. Assumption of powers, in the absence of any specific
provision under the Act is impermissible in law. The powers are not traceable
and therefore, the consequential circular issued is untenable. Power to cancel
the document would result in serious repercussion and would also cause
prejudice to the parties. Such powers must be conferred specifically in
enactment and cannot be substituted by way of issuing a circular.
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W.P.No.10124 of 2023
9. In view of the judgment (cited supra) and considering the fact that
the power to cancel the registered document is not traceable under the
Registration Act, the circular cannot stand in the scrutiny of law. More so,
there is no amendment brought by the Government of Puducherry unlike the
Tamil Nadu Government amendment.
10. The Government of Puducherry has to consider the plaint of the
persons, who suffered fraudulent documents and accordingly, initiate
appropriate action to bring amendment to the Registration Act akin to that of
the amendment inserted by Tamil Nadu Act 41 of 22. Similar amendment to
that of Section 22-A of the Tamil Nadu amendment Act is also to be
considered by the Government of Puducherry for the purpose of protecting
the Government properties and also the properties belonging to the religious
institution.
11. In view of the sky-rocketing market value of the immovable
properties such amendments are of paramount importance to safeguard the
interest of the citizen, Government and the religious institution. Thus, the
Chief Secretary to Government may initiate appropriate action for efffecting
necessary amendments in the interest of public.
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W.P.No.10124 of 2023
12. That being the factum, the circular is liable to set aside.
Accordingly, the circular of the 1st respondent in
No.4225/REGN/A3/DRO/2021 dated 05.08.2021 and the consequential
impugned notice of the 2nd respondent in No.4225/DRP-
119/DRO/RD/2022/1600 dated 21.09.2022 are quashed.
13. With the above directions, this Writ Petition stands allowed. No
costs. Consequently, connected Miscellaneous Petition is closed.
17.07.2023
(2/2)
Jeni
Index : Yes
Neutral Citation : Yes
Speaking order
Note: The Registry High Court is directed to communicate the copy of this
order to the Secretary to Government, Law Department, Puducherry.
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W.P.No.10124 of 2023
To
1.The Inspector General of Registration,
Department of Revenue and Disaster Management,
Government of Puducherry.
2.The District Registrar,
Registration Department,
Office of District Registrar, Saram
Government of Puducherry.
3.The Secretary to Government (Law),
Law Department,
Government of Puducherry,
First Floor, B Block,
Chief Secretariat,
Goubert Avenue,
Puducherry – 605 001.
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W.P.No.10124 of 2023
S.M.SUBRAMANIAM, J.
Jeni
W.P.No.10124 of 2023
17.07.2023
(2/2)
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