Madras High Court
P.Anantha Sekaran vs The District Registrar ... on 13 August, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.(MD)No.17163 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD)No.17163 of 2022
P.Anantha Sekaran ... Petitioner
Vs.
1.The District Registrar (Administration),
Thanjavur Registration District, Thanjavur.
2.Sub Registrar,
Vallam, Thanjavur District.
3.K.Srinivasa Reddy .... 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 Mu.Mu.No. 3611/A1/2021 dated
15.06.2022 and quash the same as illegal.
For Petitioner : Mr.Mohamed Arshath
for Mr.MMahaboob Athiff
For Respondents : Mr.P.Subbaraj,
Spl. Govt. Pleader for R1 & R2
Mr.C.Jawahar Ravindran for R3
1/8
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.17163 of 2022
ORDER
This Writ Petition has been filed for issuance of a Writ of Certiorari,
calling for the records relating to the impugned order made by the 1st respondent in
Mu.Mu.No. 3611/A1/2021, dated 15.06.2022 and quash the same as illegal.
2. Heard the learned counsel for the petitioner, the learned Special
Government Pleader appearing for the respondents 1 and 2 and the learned
counsel appearing for the third respondent and perused the materials available on
record.
3. It is the case of the writ petitioner that the subject property is an
ancestral property. The petitioner is in complete possession and enjoyment of the
said property by way of a registered settlement deed dated 04.10.2021, executed
by his father and the same was registered as Document No.2400/2021. While so,
the third respondent sought to interfere with the petitioner's possession claiming
that the petitioner's grandfather's brother had sold the petition mentioned property
in his favour by a sale deed dated 18.05.1953 and in this regard, he has given a
complaint before the first respondent. On the basis of the complaint given by the
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third respondent, the first respondent has conducted an enquiry under Section
68(2) of the Registration Act, 1908 and passed the impugned order stating that
prosecution to be initiated against the petitioner and his father and also directed
the 2nd respondent to make an endorsement in the encumbrance register that the
Document No.2400/2021 is a fraudulent one. Hence, the petitioner has filed this
Writ Petition.
4. The learned counsel appearing for the petitioner submitted that
without serving a copy of the complaint or the documents relied by the third
respondent to the petitioner, the first respondent has passed the impugned order.
Hence, the impugned order is in violation of principles of natural justice and the
same is liable to be set aside.
5. Considering the facts and circumstances of the case, this Court is of
the view that the Registering Authority has no power to cancel the document. 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
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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 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 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
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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, 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.
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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 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
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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, the impugned order
passed by the first respondent is liable to be set aside. Accordingly, the impugned
order of the first respondent in Mu.Mu.No.3611/A1/2021, dated 15.06.2022 is
quashed and the Writ Petition is allowed. There shall be no order as to costs.
13.08.2024
NCC : Yes/No
Index : Yes/No
vsm
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N.SATHISH KUMAR, J.
vsm
To
1.The District Registrar (Administration),
Thanjavur Registration District, Thanjavur.
2.Sub Registrar,
Vallam, Thanjavur District.
13.08.2024
https://www.mhc.tn.gov.in/judis
