Madras High Court
K.Kanchana vs Union Of India on 26 July, 2023
W.P.No.15457 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.15457 of 2017
and
W.M.P.Nos.16742 & 16743 of 2017
K.Kanchana ... Petitioner
Vs.
1. Union of India,
Union Territory of Puduchery,
Rep.by the Secry to Govt,
Dept. of Revenue & Disaster Management,
Govt of Puducherry, Puducherry - 605 001.
2. The Inspector General of Registration,
Govt. of Puducherry, Puducherry - 605 001.
3. The District Registrar,
Registration Department,
Govt. of Puducherry,
Puducherry - 605 001.
4. The Sub - Registrar,
Office of the Sub - Registrar,
Oulgaret, Puducherry.
5. P.Gomathi
6. G.Sakthivel
7. Sankar ... Respondents
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W.P.No.15457 of 2017
Prayer :- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorari, calling for the records relating
to the order dated 21.11.2015 made in D.R.P.No.21 / 2015 / 1367 on the
file of the 3rd respondent and the Registration of the said order dated
21.11.2015 as Doc. No.26445 / 2015 on the file of the 4th respondent and
quash the same.
For Petitioner : Mr.T.P.Manoharan, Senior Counsel
M/s.K.P.Jotheeswaran
For Respondents :
(for R1 to R4) : Mr.P.S.Kothanada Raman,
Govt. Advocate (Puducherry)
(for R5) : Not ready in Notice
(for R6 to R7) : No Appearance
ORDER
The order passed by the 3rd respondent in proceeding dated
21.11.2015, cancelling the Sale Deed, Settlement Deed and Power of
Attorney is under challenge in the present writ petition.
2. The petitioner states that based on the Partition Deed dated
03.11.1975, a Power of Attorney Deed, Settlement Deed and Sale Deed
were executed. The fifth respondent filed a complaint before the third
respondent / District Registrar for cancellation of all the three documents
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W.P.No.15457 of 2017
based on the circular issued by the Second respondent / Inspector General
of Registration on 18.3.2015.
3. The learned Senior Counsel appearing on behalf of the petitioner
mainly contended that the second respondent is not vested with the power
to issue any such circular for cancellation of documents and no power has
been conferred to him under the Registration Act. Thus, the circular cannot
be the basis for the purpose of cancelling the Settlement Deed, Sale Seed
and Power of Attorney Deed.
4. The issue raised in this regard has been considered by this Court
in W.P.No.2092 to 2023 dated 14.06.2023 and the relevant paragraphs are
extracted herein under :
“9. The powers of the Registering Authority under the
provisions of the Registration Act, 1908, to cancel the registered
documents are well enumerated by the three Judge Bench of the
Hon'ble Supreme Court of India, in the case of Satya Pal Anand
vs. State of Madhya Pradesh and others, reported in (2016)
10 SCC 767. The Relevant portion of said Judgment reads as
under:-
“34. The role of the Sub-Registrar (Registration)
stands discharged, once the documents is registered
(see Raja Mohammad Amir Ahmad Khan) Section
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W.P.No.15457 of 2017
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
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.”
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W.P.No.15457 of 2017
10. Relying on the above Judgement, the learned counsel for
the petitioners reiterated that the District Registrar erroneously
exercised jurisdiction by entertaining the complaint and adjudicated
the issues on merits. In paragraph 36, the Hon'ble Supreme Court held
as follows:-
“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 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
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W.P.No.15457 of 2017
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.”
Therefore, the learned counsel for the petitioner submits that the
impugned order is liable to be set aside.
11. Let us examine the reason given by the District
Registrar, Puducherry, in the impugned order for declaring the
registered documents as fraudulent deeds.
12. It is stated that the District Registrar initiated
proceedings based on the circular issued by the Inspector General
of Registration, Puducherry dated 05.08.2021, only in connection
with the execution of fraudulent registration of documents, as per
the out come of the direction of the Madurai Bench of Madras
High Court in W.P.No.10177 of 2021 dated 17.06.2021.
13. Admittedly, there is no power provided under the
Registration Act, 1908, for the District Registrar to cancel the
document unlike Tamil Nadu amendment.
14. However, the learned Additional Government Pleader
(Puducherry) states that an enquiry has been undertaken pursuant
to the rules in force. Be that as it may be, the District Registrar
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W.P.No.15457 of 2017
has analyzed the facts by considering the documents filed by the
parties. It is recorded that the 1 st opposite party before the District
Registrar admitted the fact regarding the creation of fraudulent
documents in favour of the 2 nd opposite party namely
Tmt.Kamala Kumari Meera @ Meera for an extent of 1 Are and
11 Centaire, which he had sold the whole extent in proper, but
Thiru.Sathiyamurthy, has no right or authority to execute a sale
deed vide Document No.3642 of 2007 dated 21.06.2007, in
favour of Tmt.Malar W/o.Thiruvengadam for 3,600 Sq.ft, which
is nothing but a fraudulent registration. Based on such wrong sale
deed subsequent sale deed in Document No.5593 of 2012 dated
13.12.2012, which also registered in the Sub-Registry, Oulgaret,
Puducherry, also remains as a fraudulent registration.
15. Perusal of the findings made by the District Registrar
would reveal that he had gone into the details of the documents
presented between the parties and considered the rights of the
parties to execute documents.
16. The constitutional Courts have repeatedly held that the
registering authority is not empowered to go into the civil rights
of the parties. The competent Civil Court of law alone is
empowered to declare the civil rights and the registering authority
has no jurisdiction or authority to adjudicate the disputed facts
regarding the civil rights of the parties in the present case.
17. The District Registrar has gone into the allegations set
out in the complaint regarding the rights of the parties. The
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W.P.No.15457 of 2017
findings amplify that Thiru.Sathiyamurthy S/o. Purushothaman
has no right or authority to execute subsequent sale deed referring
the power deed.
...
19. Fraud or impersonation in the context of the
Registration Act, 1908, is distinguishable. For fraud in the
common parlance have wider connotation and meaning and the
said general meaning of “fraud” cannot be adopted in respect of
the documents registered under the Registration Act.
20. In the event of fraud being committed by any person,
threefold actions are provided for an aggrieved person. Firstly, an
aggrieved person may file a complaint to prosecute the persons
under the Criminal Law. Secondly, such person is entitled to
approach the Civil Court for establishing his civil rights.
21. Thirdly, he can approach the competent authorities for
cancelling the registered documents. As far as the administrative
action under the provisions of the Registration Act is concerned,
the definition of fraud cannot be expanded for the purpose of
adjudication of civil disputes.
22. Only in the event of fraud apparent on record, the
registering authority can interfere but not otherwise. Therefore,
the registering authority is not empowered to usurp the power of
the Civil Court. Such exercise of powers act akin to the powers of
the Civil Court. Even if there is any iota of doubt regarding civil
rights, the parties are to be relegated to the Civil Court of Law for
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W.P.No.15457 of 2017
the purpose of establishing their rights.
23. In the present case, the question arises by declaring a
registered document as fraudulently registered deeds, what would
be the consequence.
24. The learned Additional Government Pleader
(Puducherry) appearing on behalf of the Government of
Puducherry states that the documents were not cancelled.
Therefore, the petitioner has not established any grievances.
However, the impugned order declares that the documents
registered are fraudulently registered deeds.
25. Such declaration has got civil consequences, as the
parties are benefited from and out of such declaration and may
claim certain rights in respect of the properties. Therefore, the
power exercised by the Registering Authority for issuing such
declaration is to be considered by this Court.
26. When the District Registrar has no power to
adjudicate, the civil rights of the parties, he ought not to have
issued any such declaration declaring the registered document as
fraudulently registered deeds. Such a power has been conferred
only on the Civil Court and such declarations cannot be given
based on summary proceedings.
27. In the event of declaring the document as fraudulent
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W.P.No.15457 of 2017
by the District Registrar, merely by conducting summary
proceedings, it would infringe the civil rights of the parties
regarding the properties and more so right to property is of
constitutional right and Article 300 A of the Constitution of India
gets violated, since such right can be taken away only by the
authority of law.
28. The manner in which the allegation in the complaints
are enquired into would apparently show that the District
Registrar has exceeded his jurisdiction beyond the scope of the
provisions of the Registration Act, 1908, Since adjudication of
the case on merits is impermissible.
29. In view of the facts and circumstances, the order
impugned is without jurisdiction. Consequently, the order issued
by the District Registrar in proceeding No.4225/P-
85/DRP/2022/1221/108 dated 03.11.2022 is quashed.
Accordingly, the writ petition stands allowed.”
5. In view of the judgment cited supra, the impugned order in the
present writ petition has got no legs to stand on. Accordingly, the
impugned order passed by the third respondent in D.R.P.No.21 / 2015 /
1367 dated 21.11.2015 and by the fourth respondent as Doc. No.26445 /
2015 dated 21.11.2015 , are quashed.
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W.P.No.15457 of 2017
6. Accordingly the writ petition stands allowed. However, there
shall be no order as to costs. Consequently, connected miscellaneous
petitions are closed.
(sha) 26.07.2023
Index : Yes
Speaking Order
Neutral Citation : Yes
To
1. Union of India,
Union Territory of Puduchery,
Rep.by the Secry to Govt,
Dept. of Revenue & Disaster Management,
Govt of Puducherry, Puducherry - 605 001.
2. The Inspector General of Registration,
Govt. of Puducherry, Puducherry - 605 001.
3. The District Registrar,
Registration Department,
Govt. of Puducherry,
Puducherry - 605 001.
4. The Sub - Registrar,
Office of the Sub - Registrar,
Oulgaret, Puducherry.
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W.P.No.15457 of 2017
S.M.SUBRAMANIAM. J.,
(sha)
W.P.No.15457 of 2017
26.07.2023
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