Madras High Court
P.Abraham Lingan vs The District ... on 12 August, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)N.7727 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.08.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.7727 of 2018
and WMP(MD)Nos.7339 &7340 of 2018
P.Abraham Lingan ... Petitioner
Vs.
1.The District Registrar(Administration),
Madurai (South).
2.Rahamath Beevi ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorari, calling for the records relating to the order
dated 29.06.2017 passed by the first respondent in Mu.Mu.Ka.No.
2872/A2/2017 and quash the same as illegal.
For Petitioner : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
For R1 : MrM.Siddharthan
Additional Government Pleader
For R2 : No appearance
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W.P.(MD)N.7727 of 2018
ORDER
This writ petition has been filed challenging the order dated
29.06.2017passed by the first respondent in Mu.Mu.Ka.No.
2872/A2/2017.
2. Heard the learned counsel for the petitioner and the learned
Additional Government Pleader for the first respondent and perused the
materials available on record.
3. The brief facts of the case is that the Tamil Nadu Housing
Board (TNHB) based on the auction held on 13.03.1996, allotted a plot
in Plot No.37 in favour of the second respondent on hire purchase and
the cost of the plot was fixed at Rs.2,09,250/- and a sum of Rs.67,800/-
was paid by the second respondent. Balance amount has to be paid within
36 equal monthly installments. Possession of the plot was handed over to
the second respondent on 03.04.1996. Thereafter, the second respondent
executed a Power of Attorney deed dated 04.11.1998 empowering the
petitioner's wife and his brother's wife to act on her behalf. Consequent
to that, the Power of Attorneys of the second respondent sold the eastern
half portion of the Plot No.37 in favour of the petitioner and the western
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W.P.(MD)N.7727 of 2018
half portion in favour of the petitioner's brother vide sale deeds dated
29.12.2012 for a valuable consideration of Rs.11,43,750/- each.
Subsequently, the Tamilnadu Housing Board executed a sale deed in
favour of the second respondent on 30.05.2014. Thereafter, the second
respondent cancelled the earlier general Power of Attorney deed dated
04.11.1998 by executing a cancellation deed dated 22.05.2014. In the
meantime, the second respondent executed a general Power of Attorney
deed dated on 16.01.2014 empowering her brother to act on her behalf
with respect to the above said Plot No.37 and she filed a petition dated
02.05.2017 through her agent before the first respondent seeking
cancellation of sale deed executed in favour of the petitioner. The first
respondent relying on the Circular No.67 dated 03.11.2011 issued by the
Inspector General of Registration proceeded with enquiry and passed the
impugned order dated 29.06.2017. Hence, challenging the same, the
petitioner has filed this Writ Petition.
4. On the side of the first respondent, no counter has been filed.
Perusal of the materials shows that the Registering authority assumed the
role of the Civil Court which is not permissible in the eye of law and the
Registering Authority has no power to go into all these transactions. In
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W.P.(MD)N.7727 of 2018
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 the 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 the 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 also is 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 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
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W.P.(MD)N.7727 of 2018
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:
“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,
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W.P.(MD)N.7727 of 2018
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:
“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
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W.P.(MD)N.7727 of 2018
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.”
5. In view of the above settled position of law, unless the power
is specifically vested with the registering authority to cancel any
document and to go into the matter, there cannot be any direction to
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W.P.(MD)N.7727 of 2018
cancel the document. All these facts cannot be looked into by this Court
and the same has to be agitated before the Civil Court. Therefore, the
very order passed by the first respondent stands quashed and any entries
with regard to cancellation of the petitioner's document is entered in the
Encumbrance Certificate to be removed forthwith.
6. Accordingly, this Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
12.08.2024
NCC : Yes / No
Index : Yes / No
PJL
To
The District Registrar(Administration),
Madurai (South).
https://www.mhc.tn.gov.in/judis
W.P.(MD)N.7727 of 2018
N.SATHISH KUMAR , J.
PJL
12.08.2024
https://www.mhc.tn.gov.in/judis
