Madras High Court
Elayaraj vs The District Registrar (Admin) Cum on 9 August, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)No.11877 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.11877 of 2022
and W.M.P.(MD)No.8441 of 2022
Elayaraj ... Petitioner
Vs.
1.The District Registrar (Admin) Cum
Deputy Inspector General of Registration,
Tuticorin, Tuticorin District.
2.Kanaganaraj .... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorari, calling for the records relating to
the impugned order made by the 1st respondent in Mu.Mu.No.1004/AA4/2022
dated 18.03.2022 and quash the same as illegal .
For Petitioner : Mr.Mahaboob Athiff
Mr.G.Prabhu Rajadurai
For Respondents : Mr.M.Siddarthan,
Addl. Govt. Pleader for R1
Mr.K.Navaneetharaja for R2
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.11877 of 2022
ORDER
This Writ petition has been filed for issuance of Writ of Certiorari calling
for the records relating to the impugned order made by the 1st respondent in
Mu.Mu.No.1004/AA4/2022 dated 18.03.2022 and quash the same as illegal .
2. According to the petitioner, he is the owner of the land to an extent of
38 cents in S.No.254/3D2, situate at Lakshmipuram Village, Tuticorin District.
While that being so, the second respondent made a complaint alleging that the
petitioner's vendor had indeed sold lands in excess of what he is entitled to and it
was further alleged that the petitioner's vendor has infact sold a portion of
petitioner's property to his group viz., the descendants of Chellaidurai Nadar.
According to the second respondent, the subject property originally inherited by
Nallammal and Chelladurai Nadar. The second respondent is the legal heir of said
Nallammal. On the basis of the said complaint, the impugned order came to be
passed. Hence, the impugned order is liable to be dismissed.
3. Heard the learned counsel for the petitioner, the learned Additional
Government Pleader appearing for the first respondent and the learned counsel
appearing for the second respondent.
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4. The first respondent has filed a counter affidavit, in which it is stated
that based on the complaint given by the 2nd respondent, the 1st respondent
conducted enquiry and on the basis of the enquiry, the impugned order has been
passed in accordance with law. Hence, opposed this Writ Petition.
5. Considering the facts and circumstances of the case, this Court is of
the view that merely because, some one has sold the property as owner of the
property, that document cannot be called as forged one and fraudulent one. These
facts has to be established in the manner known to law. In Satya Pal Anand vs.
State of Madhya Pradesh and others reported in (2016) 10 SCC 767, the Hon'ble
Supreme Court has held that power conferred on the Registrar by virtue of Section
68 cannot be invoked to cancel the registration of the document already registered.
Sections 22-A and 22-B were inserted by Tamil Nadu Act 28 of 2022 and Act 41
of 2022 respectively to prevent registration of certain category of the documents.
Thereafter, Section 77-A has been brought by Act 41 of 2022 to cancel the
document registered in contravention of Sections 22-A and 22-B not beyond it.
Now Section 77-A of the Registration Act, 1908 is also struck down by the
Hon'ble Division Bench of this Court in W.P.No.10291 of 2022 batch as
unconditional. Such being the position, this Court is of the definite view that the
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title cannot be decided by the Registering Authorities. These facts have been
discussed by this Court in W.P.No.29706 of 2022 [G.Rajasulochana Vs.
Inspector General of Registration and others] and the Order in the writ petition
is as follows:
“... 3. It is relevant to note that the object of the law of registration is to
provide public notice of the transaction embodied therein. The execution of
documents and its validity, the right created or extinguished is governed by
the substantive law namely the Transfer of Property Act, 1882. The
provisions contained in the Registration Act, 1908 relates to the factum of
registration alone. The Hon'ble Supreme Court in the case of State of
Rajasthan v. Basant Nahata, (2005) 12 SCC 77 has held as follows:
“The Act only strikes at the documents and not at the transactions.
The whole aim of the Act is to govern documents and not the transactions
embodied therein. Thereby only the notice of the public is drawn.”
4. The practice has been developed in the recent past in Tamil Nadu
to entertain the applications given by the so-called affected parties to cancel
all the documents under the pretext of either forgery or fradulent
transactions. The Inspector General of Registration, Government of Tamil
Nadu has brought out Circular No.67 dated 03.11.20211 to deal with the
fraudulent registrations through impersonation. The said circular is mainly
based on the judgment of the Full Bench of the Andhra Pradesh High Court
in the case of YanalaMalleshwari v. AnanthulaSayamma, reported in AIR
2007 AP 57. However, the three bench of Hon'ble Apex Court in the case of
Satya Pal Anand v. State of M.P., reported in (2016) 10 SCC 767 has held
that the power of the Registrar, under the Registration Act, is purely
administrative and not quasi-judicial. The same is extracted hereunder:
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“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 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.”
5. In fact, the Hon'ble Apex Court has held that and in the absence
of any express power to cancel the registered document, the Registrar has
no power to cancel the document. Section 68(2) of the Registration Act,
1908 relied upon by the Registration Department to substantiate the
circular in this regard, when carefully seen. Section 68(2) of the
Registration Act, 1908 reads as follows:
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“68. Power of Registration to superintend and control Sub Registrars.
(1) every Sub Registrar perform the duties of his office under the
superintendence and control of the Registrar in whose district the office of
such Sub Registrar is situate.
(2) Every Registrar shall have authority to issue (Whether on complaint or
otherwise) any order consistent with this Act which he considers necessary
in respect of any act or omission of any Sub Registrar subordinate to him
or in respect of the rectification of any error regarding the book or the
office in which any document has been registered.”
6. The above provision makes it clear that the said section confers
power upon the Registrar to supervise and control all the acts of the Sub-
Registar. Sub-Section 2 empowers the Registrar to issue any order
consistent with the Act, which he considers necessary in respect of any act
or omission of any Sub-Registrar subordinate to him. Similarly, the
Registrar shall also have power in respect of the rectification of any error
regarding the book or the office in which any document has been
registered. The above power empowering the Registar to issue any order is
a power of superitendence and supervision and not a power vested to
cancel the registration of the document. Therefore, relying upon Section
68(2) of the Registration Act, 1908 and issuing such circular cannot be
valid in the eye of law. Unless a specific power and express provision is
made in the Act empowering the Registrar to cancel the document, such
powers cannot be conferred by the Inspector General of Registration by
taking aid of 68(2) of the Registration Act, 1908.”
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6. In view of the above settled position of law, the impugned order
passed by the first respondent stands quashed. If other co-sharers have any share
in the property, it is well open to them to file an appropriate suit for partition. In
that event, mere sale by one of the co-owner will not have any impact on the other
co-owners.
7. Accordingly, this Writ Petition is allowed. There shall be no order as
to costs. Consequently, connected miscellaneous petition is closed.
09.08.2024
NCC : Yes/No
Index : Yes/No
vsm
To
The District Registrar (Admin) Cum
Deputy Inspector General of Registration,
Tuticorin, Tuticorin District.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
vsm
09.08.2024
https://www.mhc.tn.gov.in/judis
