Madras High Court
J.Abdulkani vs The District Registrar on 2 September, 2024
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P(MD).No.21432 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.21432 of 2023
and
W.M.P(MD).No.17837 of 2023
J.Abdulkani ... Petitioner
Vs.,
1.The District Registrar,
District Registration Office,
Tenkasi.
2.J.Ummal Hasan ... Respondents
PRAYER: 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 notice issued by the first respondent in Na.Ka.No.5062/Aa2/2023 dated
09.08.2023 and quash the same consequently to direct the first respondent to reject
the application dated 14.06.2023 given by the second respondent.
For Petitioner : Mr.M.Ramu
For Respondents : Mr.C.Satheesh (for R1)
Government Advocate (crl.side)
Mr.M.Mohamed Rafi(for R2)
for M/s.Ajmal Associates
1/8
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W.P(MD).No.21432 of 2023
ORDER
This Writ Petition has been filed challenging the notice issued by the
first respondent summoning the petitioner to appear for enquiry.
2. Heard the submissions made on either side and perused the materials
available on record.
3. The petitioner's contention is that he executed a settlement deed in
favour of his son, namely, Ahamed Fasath, vide Doc No.979/2018 dated
30.04.2018 in respect of the subject property and revenue records has also been
mutated in his name and now, he is in possession and enjoyment of the subject
property. While so, based on the application given by the second respondent, who
is the daughter of the petitioner, the first respondent issued a notice to the
petitioner to appear for enquiry. Challenging the same, the petitioner has filed this
writ petition.
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
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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
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:
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“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,
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
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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 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.”
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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. Whether the settlement deed executed by the petitioner in favour of
his son is valid in the eye of law, is a matter of evidence to be decided only by the
competent Civil Court.
6. In view of the above, the enquiry notice issued by the first respondent
cannot be sustained. Accordingly, this writ petition is allowed and the enquiry
notice issued by the first respondent in Na.Ka.No.5062/Aa2/2023 dated
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09.08.2023 is set aside. The parties shall work out their remedy before the
competent Civil Court. No costs. Consequently, connected miscellaneous petition
is closed.
02.09.2024
NCC : Yes/No
Index : Yes/No
Rmk
To
1.The District Registrar,
District Registration Office,
Tenkasi.
https://www.mhc.tn.gov.in/judis
N.SATHISH KUMAR, J.
Rmk
02.09.2024
https://www.mhc.tn.gov.in/judis
