Madras High Court
S.Essakipandian vs The District Registrar on 20 June, 2023
WP(MD)Nos.2592 of 2016, etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)Nos.2592, 8836, 13463, 14636 of 2016
and
WMP(MD)No.10852 of 2016
WP(MD)No.2592 of 2016:-
S.Essakipandian : Petitioner
Vs.
The District Registrar,
District Registration Office,
Palayamkottai Collector Office,
Kokirakulam, Tirunelveli,
Tirunelveli District – 627 009. : Respondent
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the respondent to consider the
petitioner's representation dated 13.04.2015.
For Petitioner : Mr.A.R.Kannappan
For Respondent : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by
Mr.M.Ramesh,
Government Advocate
Mr.S.Srinivasa Raghavan, Amicus Curiae
*****
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WP(MD)Nos.2592 of 2016, etc., batch
WP(MD)No.8836 of 2016:-
C.Vijayaraj : Petitioner
Vs.
1.The District Registrar,
Office of the District Registrar,
Registration Department,
Pudukottai.
2.The Joint Sub Registrar II,
Pudukottai.
3.A.Jothi
4.N.Ramanujam : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the first respondent to initiate
appropriate action against the respondents 3 & 4 after conducting enquiry as per
Circular No.67, dated 03.11.2011, by considering the petitioner's representation
dated 06.01.2016.
For Petitioner : Mr.J.Anandkumar
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by
Mr.M.Ramesh,
Government Advocate
for R.1, R.2
No appearance for R.3, R.4
Mr.S.Srinivasa Raghavan, Amicus Curiae
*****
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WP(MD)Nos.2592 of 2016, etc., batch
WP(MD)No.13463 of 2016:-
M.Bilavendiran : Petitioner
Vs.
1.The Sub Registrar,
Tiruverumbur,
Vin Nagar, 12th Cross,
Kailashnagar,
Kattar, Trichy – 19.
2.The District Registrar,
District Registrar's Office,
District Court Complex,
Cantonment,
Tiruchirappalli – 1.
3.The Inspector General of Registration,
100, Santhome High Road,
Pattinampakkam,
Chennai – 600 028. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the second respondent to
consider and pass orders on the representation dated 05.04.2016 submitted by the
President, Pudhu Theru Village, Navalpattu Panchayat, Tiruchirappalli District.
For Petitioner : Mr.M.Ashok Kumar
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by
Mr.M.Ramesh,
Government Advocate
Mr.S.Srinivasa Raghavan, Amicus Curiae
*****
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.2592 of 2016, etc., batch
WP(MD)No.14636 of 2016:-
Venkatammal : Petitioner
Vs.
1.The District Registrar (Admin),
Office of the District Registrar,
Dindigul.
2.Pitchai
3.Pandi
4.Vadivel
5.Velmurugan : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the first respondent to consider
the petitioner's representation dated 30.06.2016 and pass appropriate orders.
For Petitioner : Mr.V.Pasumpon
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by
Mr.M.Ramesh,
Government Advocate for R.1
No appearance for R.2, R.3, R.5
Mr.R.M.Makesh Kumaravel for R.4
Mr.S.Srinivasa Raghavan, Amicus Curiae
*****
https://www.mhc.tn.gov.in/judis
WP(MD)Nos.2592 of 2016, etc., batch
COMMON ORDER
The reliefs sought in these writ petitions are for an appropriate action as per
Circular No.67, Registration Department, dated 03.11.2011, for the reason that
some registered documents have been fraudulently created on the petitioners'
property.
2.The brief facts of the cases are as follows:-
2.1.WP(MD).No.2592 of 2016 was filed by its petitioner with a prayer to
consider the petitioner’s representation dated 13.04.2015.The case of the petitioner
is that he purchased the subject land vide Doc.No.1738 of 1999 dated 31.08.1999.
On collusion of one Sangupandian, Raja, Maharaja and Balvannan, power of
attorney vide Doc.No.735 of 2006 was forged with respect to the petitioner’s
property and subsequently, a sale deed vide Doc.No.367 of 2007 was also created.
The petitioner also claims that on the enquiry conducted by the respondent /
District Registrar, the forgers have also admitted the guilt, but the respondent has
not passed the order for cancellation of the document. Hence he seeks remedy
under Circular No.67.
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WP(MD)Nos.2592 of 2016, etc., batch
2.2.WP(MD).No.8836 of 2016 was filed by its petitioner to take action
against the respondents 3 & 4 after conducting an enquiry under Circular No.67,
by considering the representation dated 06.01.2016. The case of the petitioner is
that he entered into a sale agreement with the third respondent on 19.01.2014 and
paid a sum of Rs.2,00,000/- as advance. He claims that thereafter the third
respondent evaded execution of the sale deed and to his surprise, she sold the
property to a third party under Doc.Nos.4058 & 4059 of 2014 dated 08.09.2014.
The petitioner claims that this sale deed was fraudulently executed by the third
respondent impersonating her father and hence, he approached the respondent for
cancelling the same under Circular No.67.
2.3.WP(MD).No.13463 of 2016 was filed by its petitioner for a direction to
the second respondent to pass orders on the representation dated 05.04.2016. The
petitioner has filed this petition as the Vice-President of the Pudhu Theru Village,
Navalpattu Panchayat. The case of the petitioner is that seven persons from his
village have created a forged partition deed concerning a village property vide
Doc.No.561 of 2014 dated 13.10.2014. Hence, he seeks to cancel the same by
invoking Circular No.67.
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WP(MD)Nos.2592 of 2016, etc., batch
2.4.WP(MD).No.14636 of 2016 was filed by its petitioner to direct the first
respondent / District Registrar to consider her representation dated 30.06.2016.
The case of the petitioner is that she is the owner of the subject property by the
judgment dated 25.11.2004 in O.S.No.73 of 2000, passed by the learned District
Munsif, Nilakottai. She further claims that, suppressing the civil Court decree, the
respondents 2 to 5 executed a fraudulent sale deed with respect to the property.
Hence, she seeks to cancel the same by invoking Circular No.67.
3.Since the relief sought for in all these writ petitions is for cancelling a
fraudulently registered document, based on Circular No.67, Registration
Department, dated 03.11.2011, all these petitions are tagged together and are
disposed of by way of this common order.
4.Initially, there was no provision under the Registration Act for the
cancellation of any document registered by a Registering Officer. The Inspector
General of Registration has issued Circular No.67 dated 03.11.2011, setting out
the procedures to deal with fraudulent registration through impersonation or false
documents. The Inspector General of Registration has recorded that the
department was receiving several complaints of fraudulent registration which was
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increasing day by day and the punitive action under Sections 82 and 83 of the
Registration Act was not sufficient to cure the aggrieved. Therefore, to provide
relief, this Circular was issued providing certain procedures to deal with such
complaints of fraudulent registration received by the District Registrar (Admin) of
respective Districts. This Circular has been issued based on the principles laid
down by the Hon’ble Andra Pradesh High Court in Yanala Malleshwari v.
Ananthula Sayamma [(2007) 1 CTC 97] and the Hon’ble Supreme Court in
Indian Bank v. Satyam Fibres (India) Pvt Ltd. [(1996) 5 SCC 550], wherein, it
was held as follows:-
“Inherent power are powers which are resident in all courts,
especially of superior jurisdiction. These powers spring not from
legislation but from the nature and the Constitution of the Tribunals or
Courts themselves so as to enable them to maintain their dignity, secure
obedience to its process and rules, protect its officers from indignity and
wrong and to punish unseemly behavior. This power is necessary for the
orderly administration of the Court's business.”
5.This Circular was challenged in a batch of writ petitions before this Court
in WP(MD).No.5908 of 2013 etc., batch in Ramasamy v. State of Tamil Nadu
[(2014) 4 LW 221]. This Court, by judgment dated 17.07.2014, refused to interfere
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WP(MD)Nos.2592 of 2016, etc., batch
by tracing the powers of the Registrar to Section 68 of the Registration Act and
Section 21 of the General Clauses Act.
6.The Hon’ble Supreme Court in Satya Pal Anand v. State of M.P., [(2016)
10 SCC 767] passed an authoritative pronouncement that the power to cancel the
registration is a substantive matter and in the absence of any express provision on
that behalf, it is not open to assume that the Registering Officer would be
competent to cancel the registration of the documents in question. The Hon’ble
Supreme Court also held that the power of Registrar under Section 68 of the
Registration Act is of superintendence which does not confer any power to cancel
a document which was already registered. The Apex Court further held that the
role of the Sub-Registrar stands discharged, once the document is registered and
the power conferred under Section 68 of the Registration Act cannot be invoked to
cancel the registration of documents. After the decision in Satya Pal Anand's case
(supra), the Inspector General of Registration vide his proceedings in letter No.
41530/u1/2017 dated 20.10.2017 withdrew Circular No.67, dated 03.11.2011 and
the District Registrars were also informed to return the petitions received under
Circular No.67.
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WP(MD)Nos.2592 of 2016, etc., batch
7.Subsequently, the Inspector General of Registration issued another
Circular in letter No.41530/u1/2017 dated 08.11.2017 for enquiry in case of
fraudulent transactions to be conducted under Section 68(2) of the Registration
Act, 1908, by the District Registrars. The Circular also made it clear that the
District Registrar shall not go into the issue of deciding the title of the parties
during the enquiry. In view of the decision of the Hon’ble Supreme Court in Satya
Pal Anand's case (supra), the District Registrar, under Section 68(2) of the Act by
this Circular, shall only record the finding that the document is registered in a
fraudulent manner and he cannot cancel it.
8.Now, the State of Tamil Nadu brought an amendment to the Registration
Act vide the Registration (Tamil Nadu Second Amendment) Act, 2021. By this
amendment, Sections 22B, 77A, 77B, 81A and 81B were inserted in the
Registration Act. Section 77A provides the power to the Registrar to cancel the
registered documents, if found to be fraudulent. For sake of convenience, Section
77A is extracted hereunder:-
“77-A. Cancellation of registered documents in certain cases-
(1) The Registrar, either suo moto or on a complaint received
from any person, is of the opinion, that registration of a document is
made in contravention of section 22-A or section 22-B, shall issue a
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notice to the executant and all the parties to the document and parties to
subsequent documents, if any, and all other persons who, in the opinion
of the Registrar, may be affected by the cancellation of the document, to
show cause as to why the registration of the document shall not be
cancelled. On consideration of reply, if any received therefor, the
Registrar may cancel the registration of the document and cause to
enter such cancellation in the relevant books and indexes.
(2) The power under sub-section (1) may also be exercised by the
Inspector General of Registration.”
9.In view of this amendment, this Court was of the view to dispose of these
batch of writ petitions to seek remedy under Section 77A of the Registration Act
instead of Circular No.67. However, a learned Single Judge of this Court [Hon’ble
Mr. Justice G.R.Swaminathan] in E.Geetha Helan Alexandria v. The Joint Sub-
Registrar No.I, [WP(MD).No.6947 of 2019 dated 02.01.2023] by applying the
ratio of Hon'ble Supreme Court in CIT v. Vatika Township (P) Ltd., [(2015) 1
SCC 1] that unless a contrary intention appears, legislation presumed not to be
intended to have a retrospective operation and that the law passed today cannot
apply to events of the past, has held that Section 77A is not applicable
retrospectively. Since Circular No.67 has now been withdrawn vide letter No.
41530/u1/2017 dated 20.10.2017 and in view of the ratio in Geetha Helan
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Alexandria's case (supra), Section 77A of the Act can be implemented only to
documents that were fraudulently registered after 18.08.2022.
10.However, yet another learned Single Judge of this Court [Hon'ble Mr.
Justice R.Suresh Kumar] in E.Harinath v. Inspector General of Registration,
[W.P.No.3802 of 2023 dated 09.02.2023] has directed the authorities to take action
under Section 77A of the Act in respect of documents which were registered
before the insertion of Section 77A i.e., before 18.08.2022.
11.In view of these two views regarding Section 77A of the Act being
prospective or retrospective, a learned Single Judge of this Court [Hon’ble Mr.
Justice C.V.Karthikeyan] in S.M. Hajabakrutheen v. The Inspector General of
Registration [W.P.(MD) Nos. 14546 of 2022 Batch dated 27.03.2023] has referred
the following issues for consideration by a Larger Bench of this Court:-
“i) whether the recitals in a document presented for registration,
can be examined to determine that such document was fraudulently
executed or registered?
ii) whether a document in which the recitals alone are questioned
can be considered only as voidable which would normally necessitate
the filing of the suit to set aside the particular document or whether
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even those documents can be cancelled by the Sub Registrar under
Section 77A of the Registration Act?
iii) whether exercise of power under Section 77A must be
restricted to registration of documents in contravention to Section 22-A
or 22-B of Registration Act, 1908 alone? and
iv) whether the exercise of such power under Section 77A of the
Registration Act can be prospective in nature or retrospective in
nature?”
12.In view of the above position and in order to maintain judicial discipline,
this Court disposes of these writ petitions with liberty to the petitioners to
approach the competent civil Court and if any suit is filed, the same shall be
entertained by the civil Court by excluding the period for which the writ petitions
were pending before this Court for the purpose of calculating the limitation period.
Liberty is also granted to the writ petitioners to invoke Section 77A of the Act,
upon the outcome of the reference made.
13.This Court places on record it's appreciation to Mr.S.Srinivasa Raghavan,
learned Amicus Curiae for assisting the Court.
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WP(MD)Nos.2592 of 2016, etc., batch
There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
Index : Yes / No 20.06.2023
NCC : Yes / No
gk
To
1.The District Registrar,
District Registration Office,
Palayamkottai Collector Office,
Kokirakulam, Tirunelveli,
Tirunelveli District – 627 009.
2.The District Registrar,
Office of the District Registrar,
Registration Department,
Pudukottai.
3.The Joint Sub Registrar II,
Pudukottai.
4.The Sub Registrar,
Tiruverumbur,
Vin Nagar, 12th Cross,
Kailashnagar,
Kattar, Trichy – 19.
5.The District Registrar,
District Registrar's Office,
District Court Complex,
Cantonment,
Tiruchirappalli – 1.
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WP(MD)Nos.2592 of 2016, etc., batch
6.The Inspector General of Registration,
100, Santhome High Road,
Pattinampakkam,
Chennai – 600 028.
7.The District Registrar (Admin),
Office of the District Registrar,
Dindigul.
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WP(MD)Nos.2592 of 2016, etc., batch
B.PUGALENDHI, J.
gk
WP(MD)Nos.2592, 8836,
13463, 14636 of 2016
20.06.2023
https://www.mhc.tn.gov.in/judis
