Mr.Selvakumar v. The District Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.04.2024

CORAM

THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR Selvakumar .. Petitioner

Versus

1.The District Registrar, District Registrar Office, Tiruppur District.

2. The Sub Registrar, Avinashi, Tiruppur District.

.. Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the Refusal Check Slip in Refusal Number : RFL/Avinashi/22 /2024 dated 15.03.224 and to quash the same as erroneous, illegal and ultravires and consequently direct the second respondent to register the settlement deed dated 14.03.2024 without insisting for the production of original parent document and original patta passbook within the time that may be stipulated by this Court.

For Petitioner : Mr.P.Kalimuthu For Respondents : Mr.L.S.M.Hasan Fizal Additional Government Pleader 1/8

ORDER

This writ petition is filed to quash the Refusal Check Slip in Refusal Number : RFL/Avinashi/22 /2024 dated 15.03.224 as erroneous, illegal and ultravires and consequently direct the second respondent to register the settlement deed dated 14.03.2024 without insisting for the production of original parent document and original patta passbook within the time that may be stipulated by this Court.

2. Heard learned counsel for the petitioner and the learned Additional Government Pleader appearing for the respondents and perused the materials available on record.

3. The case of the writ petitioner is that at the time when he presented the settlement deed executed by his father, the same has not been registered on the ground that the stamp duty has not been paid.

4. The learned Special Government Pleader appearing for the respondents would submit that the document has not been registered since neither the parent document nor the patta has been produced. 2/8

5. The learned counsel appearing for the petitioner submitted that since the certified copy of the parent document is very well available with the petitioner. That apart joint patt in the name of the grand father is available. Merely because subsequently patta has not been transferred in the name of each of the co-owner, the same cannot be ground to refuse to register the document.

6. I have perused entire records. This Court in Federal Bank Vs. Sub Registrar and two others in W.P.No.2759 of 2023 dated 08.02.2023, has held as follows :

"22. Similarly, the second proviso requires the executant to produce a revenue record to show his "right over the subject property" where the property is ancestral in character and there is no original deed available. Even a tax receipt can be produced under this proviso which is opposed to the fundamental principle of law that revenue records are not documents of title [State of A.P. v Star Bone Mill and Fertilizer Company, 2013 9 SCC 319]. Production of revenue documents to verify the source of title only demonstrates complete ignorance of the settled position of law.

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23. Similarly, the third proviso also defies logic. If the original is lost, it is not understood as to why a certified copy of that document obtained from the file of the concerned SRO cannot be produced. When the best evidence is not available, the best course is to produce a certified copy which is the next best available alternative. Instead, the third proviso requires the executant to obtain a non-traceable certificate and effect paper publication.

24. It is also well settled by the decision of the Supreme Court in J.K. Industries Ltd. v. Union of India, (2007) 13 SCC 673 that a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account vital facts which expressly or by necessary implication are required to be taken into account by the statute or the Constitution. Furthermore, Rule 55-A is a delegated legislation which cannot go beyond the scope of the Parent Act viz., the Registration Act as well the Transfer of Property Act which is the substantive law governing the transfer of immovable properties. Hence, the first proviso is clearly ultra vires and unconstitutional.

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25. In the case at hand, provisional attachment was passed by the G.S.T. authorities. The registration of the Sale Certificate was rejected for this reason. It is relevant to note that the petitioner was a prior mortgagee in the year 2017, whereas the provisional attachment was passed by the G.S.T. authorities on 18.12.2021. This order has already lapsed by operation of law. In this regard, it is useful to extract Sec.83 of The Central Goods and Service Tax Act, 2017 which reads as follows:

''83. Provisional attachment to protect revenue in certain cases:

(i) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the tax able person in such manner as may be prescribed.

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(ii) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (1).''

26. In view of the above, as this Court has held that the first proviso to Rule 55-A has been found to be invalid and ultra vires, the respondent cannot refuse to register the document placing reliance on the aforesaid proviso.

27. Sec.83(2)of G.S.T.Rule makes it clear that every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1). Therefore, provisional attachment made by the second respondent vide order dated 18.12.2021 has ceased to have effect, after expiry of a period of one year. There is no material to show any final order of attachment, or any subsequent order passed by the second respondent pursuant to the aforesaid order. Therefore, this Court is of the view that the impugned order dated 17.10.2022 is liable to be quashed."

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Inspite of the above settled position of law, repeatedly refusing to registration of the document has become an Order of the day. Hence, the refusal check slip issued by the second respondent is set aside. The second respondent is directed to register the settlement deed dated 14.03.2024 without insisting parent documents. Let the petitioner produce joint patta as well as the encumbrance certificate before the registering authority and the document shall be registered within a period of one month from the date of receipt of a copy of this Order.

7. With the above directions, this Writ Petition is allowed. No costs. 04.04.2024 vrc Index :Yes/No Internet :Yes/No : Yes/No To, 1.The District Registrar, District Registrar Office, Tiruppur District.

2. The Sub Registrar, Avinashi, Tiruppur District.

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N. SATHISH KUMAR , J.

vrc W.P.No.9223 of 2024 04.04.2024 8/8