Madras High Court

V.Govindan vs State Of Tamil Nadu on 13 August, 2024

Author: N.Sathish Kumar

Bench: N.Sathish Kumar

                                                                               W.P.(MD)No.17627 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.17627 of 2022
                                           and W.M.P.(MD)No.12843 of 2022

                1.V.Govindan
                2.Mrs.E.Balamani                                             ... Petitioners


                                                        Vs.

                1.State of Tamil Nadu,
                  Rep. by its Secretary to its Government,
                  Registration Department.

                2.The Inspector General of Registration,
                  Santhome, Chennai 600 028.

                3.The District Registrar,
                  Combined Court Building,
                  Pudukottai- 622 001.

                4.The Sub-Registrar,
                  Sub Registrar Office,
                  Keeranur- 622 502.

                5.A.Karuppaiah

                6.Pushparai                                      .... Respondents




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                                                                                         W.P.(MD)No.17627 of 2022


                PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,
                praying for the issuance of a Writ of Mandamus, directing the 3rd respondent to
                conduct an enquiry based on the circular issued by the Inspector General of
                Registration in Lt.No.41530/U1/2017 dated 25.03.2022 under Section 68(2) of
                Registration Act, 1908 for the Fraudulent registration of Sale Deed dated
                23.06.2022 vide Doc No. 4252/2022 and to pass orders within a time frame fixed
                by this Court.


                                           For Petitioners          : Mr.R.Vigneshwaran
                                           For Respondents          : Mr.M.Siddarthan,
                                                                      Addl. Govt. Pleader for R1to R4
                                                                      Mr.R.Murugan for R5




                                                             ORDER

This Writ Petition has been filed seeking direction to the 3rd respondent

to conduct an enquiry based on the circular issued by the Inspector General of

Registration in Lt.No.41530/U1/2017 dated 25.03.2022 under Section 68(2) of

Registration Act, 1908 for the Fraudulent registration of Sale Deed dated

23.06.2022 vide Doc No. 4252/2022 and to pass orders within a time frame fixed

by this Court.

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2. Heard the learned counsel for the petitioner, the learned Additional

Government Pleader appearing for the respondents 1 to 4 and the learned counsel

appearing for the fifth respondent and perused the materials available on record.

3. It is the case of the writ petitioners that the subject property belongs to

the father of the first petitioner. The second petitioner is the wife of the

petitioner's brother. After the death of the petitioner's father, the petitioner and his

brother were in occupation of the subject property. While so, the 6th respondent

approached the first petitioner and submitted that the petitioner's father sold the

property to the 5th respondent on 23.06.2022 and he in turn executed a power of

attorney and a sale receipt in favour of the 5th respondent. When the first

petitioner insisted the 6th respondent to furnish the original power of attorney and a

sale certificate, the 6th respondent submitted that the original of those documents

were submitted to the 4th respondent for scrutinizing the same. Thereafter, the

petitioner's son applied for the certified copy of the said sale deed. On

01.07.2022, the impugned sale deed was received and on a perusal of the same, it

was found that there was no reference of the power of attorney/sale receipt and the

recitals did not disclose the proper tracing of title of the property. Hence, the

petitioner made a complaint to the third respondent on 23.07.2022 to conduct an

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enquiry as per the circular of the Inspector General of Registration. Since no

action was taken by taken by the third respondent, the petitioner has filed this Writ

Petition.

4. The third respondent has filed a counter affidavit, in which it is stated

that the complaint given by the petitioner dated 23.07.2022 is pending for enquiry.

It is further stated that the third respondent will pass an appropriate order only

after conducting fair enquiry and after affording reasonable opportunity to them.

Hence, opposed this Writ Petition.

5. 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 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

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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 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

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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. 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.”

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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 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

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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.”

6. In view of the above settled position of law, unless the power is

specifically vested with the registering authority to go into the matter, there cannot

be any direction to conduct an enquiry in respect of the fradulant registration. All

these facts cannot be looked into by authorities and the same has to be agitated

before the civil Court.

7. With the above observations, this Writ Petition is dismissed. There

shall be no order as to costs. Consequently, connected miscellaneous petition is

closed.

13.08.2024 NCC : Yes/No Index : Yes/No

vsm

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1.The Secretary to Government, Registration Department.