Madras High Court
Subramanian vs The District Registrar on 2 September, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P(MD).No.21156 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P(MD).No.21156 of 2023
and
W.M.P(MD).No.17552 of 2023
Subramanian ... Petitioner
Vs.,
1.The District Registrar
(Administration) (Madurai North)
O/o.The District Registrar,
Rajakambeeram, Madurai.
2.The Sub Registrar,
Tamaraipatti Sub Registration Office,
Madurai District.
3.The Sub Registrar,
Othakadai Sub Registration Office,
Madurai District.
4.Nagarethinam
5.S.I.Vignesh
6.Manjula
7.Jagathambal
8.Kumar
9.Nagalakshmi
10.Manikandan ... Respondents
1/8
https://www.mhc.tn.gov.in/judis
W.P(MD).No.21156 of 2023
PRAYER: Petition filed under Article 226 of the Constitution of India to issue a
Writ of Certiorari, to call for the records of the first respondent in No.
3736/A2/2022 dated 21.12.2022 and quash the same as illegal and arbitrary.
For Petitioner : Mr.P.Ganapathi Subramanian
For Respondents : Mr.C.Satheesh (for R1 to R3)
Government Advocate (Crl.side)
Mr.A.Prasanna Rajadurai (for R4)
No appearance (for R6)
ORDER
Challenging the impugned order cancelling the document executed in
favour of the petitioner, the writ petition has been filed.
2. A short fact leading to this writ petition is that the property to an
extent of 1 acre 67 cents in Survey No.130/6A2 & 6A3 (Corresponding Old S.No.
261/6) owned by one Sundari Shanmugampillai, who sold the said property to one
Periyasamy, on 15.07.1992. Out of total extent of subject property, the petitioner's
father has purchased 66 cents, on 12.06.1995 and the eighth respondent purchased
33 cents. However, according to the petitioner, the fourth respondent in collusion
with Sundari Shanmugampillai, filed a suit in O.S.No.657/1992 before the III
Additional Subordinate Court, Madurai, for enforcement of alleged agreement
dated 02.03.1990. Since the said Sundari Shanmugampillai did not appear before
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the Court, ex-parte decree came to be passed on 05.06.1993. Thereafter, the fourth
respondent filed a execution petition in E.P.No.874 of 2012 and the same was
ordered in favour of him. Based on the same, the impugned order has been passed
cancelling the sale deed executed in favour of the petitioner. Challenging the
same, the writ petition has been filed.
3. Heard both sides and perused the materials available on record.
4. 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
already registered. 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 also is struck down by the Hon'ble Division Bench of this Court in
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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
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
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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.”
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
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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 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
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conferred by the Inspector General of Registration by taking aid of 68(2)
of the Registration Act, 1908.”
5. Whether the petitioner is the bona fide purchaser or not, is a matter of
evidence to be decided only by the competent Civil Court.
6. It is stated by the learned counsel for the fourth respondent that the
suit in O.S.No.31 of 2010 has been filed by the writ petitioner's father before the
Subordinate Court, Melur. However, the same was dismissed for default, which
has not been restored so far. If the suit is already filed and not restored, it is for
the writ petitioner to workout his remedy in the manner known to law.
7. In such view of the matter, the impugned order passed by the first
respondent in No.3736/A2/2022 dated 21.12.2022 is set aside and accordingly, the
Writ Petition is allowed. No costs. Consequently, connected Miscellaneous
Petition is closed.
02.09.2024
NCC : Yes/No
Index : Yes/No
Rmk
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
Rmk
To
1.The District Registrar
(Administration) (Madurai North)
O/o.The District Registrar,
Rajakambeeram, Madurai.
2.The Sub Registrar,
Tamaraipatti Sub Registration Office,
Madurai District.
3.The Sub Registrar,
Othakadai Sub Registration Office,
Madurai District.
02.09.2024
https://www.mhc.tn.gov.in/judis
