Madras High Court
James Xavior Jayaprakash vs The Inspector General Of Registration on 12 August, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)No.18765 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.08.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.18765 of 2024
and WMP(MD)Nos.15883 & 15884 of 2024
James Xavior Jayaprakash ... Petitioner
Vs.
1.The Inspector General of Registration,
Santhome High Road,
Chennai.
2.The District Registrar (Administration),
Ramanathapuram District,
Ramanathapuram.
3.The Joint Sub Registrar,
Rameswaram,
Ramanathapuram District.
4.S.Gopi Doss
5.Subhasree ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order passed by the 2nd respondent in
Na.Ka.No.3938/A5/2023 dated 25.09.2023 and quash the same and
consequently directing the 2nd respondent to reconsider the representation
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W.P.(MD)No.18765 of 2024
of the petitioner dated 01.08.2023 in accordance with law and pass
appropriate orders for cancellation of the sale deed dated 13.06.2022
registered in Document No.1419 before the 3rd respondent within a time
frame as may be fixed by this Court.
For Petitioner : Mr. C.Jeyaprakash
For R1 to R3 : Mr.P.Subbaraj
Special Government Pleader
For R4 & R5 :Mr.R.Anand
ORDER
This writ petition has been filed challenging the impugned
order passed by the 2nd respondent in Na.Ka.No.3938/A5/2023 dated
25.09.2023 and consequently directing the 2nd respondent to cancel the
sale deed dated 13.06.2022 registered in Document No.1419 before the
3rd respondent within a specific time.
2. Heard both sides and perused the materials available on
record.
3. The case of the petitioner is that the petitioner owned a
property measuring 4 acres 66 ½ cents, situated at S.No.742/2, Patta No.
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9172 in Pamban Village, Rameswaram, Ramanathapuram District. The
petitioner is the resident of Tuticorin District and the said property is
situated at Rameswaram and he wanted to dispose the said property. The
petitioner got acquainted with the fourth respondent, a retired Sub
Registrar. Since the fourth respondent is a resident of Ramanathapuram
District and having significant experience as a Sub Registrar, trusting the
fourth respondent, the petitioner executed a general Power of Attorney in
his favour to deal with the said property and the same has been registered
in Doc.No.757/21 before the Sub Registrar Office, Rameswaram. The
fourth respondent thereafter executed a sale deed for an extent of 1 acre
29 cents to the third parties. As far as the remaining land, for an extent of
3 acres 37 ½ cents, a deceitful registration has been carried out by the
fourth respondent. The 5th respondent, who is the daughter of the 4th
respondent issued a life certificate for herself. According to the
petitioner, with connivance of the 5th respondent, the 4th respondent
engaged in the forgery of documents including the life certificate, to
register the sale deed dated 13.06.2022 in her name and the said sale
deed was registered as Document No.1419. Hence, the petitioner has
filed this Writ Petition seeking to cancel the sale deed.
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4. Considering the facts and circumstances of the case, this
Court is of the view that the Registering Authority has no power to go
into all these transactions. 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
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,
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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:
“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
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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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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
cancel the document. All these facts cannot be looked into by this Court
and the same has to be agitated before the Civil Court. If at all the
petitioner still wants to pursue the remedy, it is open to the petitioner to
challenge the same before the Civil Court. That apart, in the event of any
forgery, it is open to him to prosecute by filing an appropriate complaint
before the appropriate forum.
6. With the above observations, this writ petition is disposed
of. No Costs. Consequently, connected miscellaneous petitions are
closed.
12.08.2024
NCC : Yes / No
Index : Yes / No
PJL
To
1.The Inspector General of Registration,
Santhome High Road,
Chennai.
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2.The District Registrar (Administration),
Ramanathapuram District,
Ramanathapuram.
3.The Joint Sub Registrar,
Rameswaram, Ramanathapuram District.
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N.SATHISH KUMAR , J.
PJL
12.08.2024
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