K.Mohan v. The Inspector General Of Registration

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.06.2024

CORAM

THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR K.Mohan .. Petitioner

Versus

1. The Inspector General of Registration, Santhome High Road, Mylapore, Chennai - 600 004.

2. The Sub-Registrar, The Ambattur Sub Registrar Office, Ambattur, Chennai - 600 053.

.. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the second respondent to receive the document i.e.Sale Deed for registration in respect of house Plot No.7E (extent 700 sq.ft) at DNS Avenue in Old Survey No.273/1A1A patta No. 3577 in survey No.273/1A1A2 in New Patta No.7264 in Survey No. 273/19 Morai Village Ambattur Taluk Tiruvallur District in light of the order dated 18.03.2022 in W.P.No.5716/2022 and register the same. For Petitioner : Mr.J.Muthukumaran For Respondents : Mr.L.S.M.Hasan Fizal Additional Government Pleader

ORDER

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With the consent of both sides, this Writ Petition is taken up for final disposal at the admission stage itself.

2. This writ petition is filed to directing the second respondent to receive the document i.e.Sale Deed for registration in respect of house Plot No.7E (extent 700 sq.ft) at DNS Avenue in Old Survey No.273/1A1A patta No. 3577 in survey No.273/1A1A2 in New Patta No.7264 in Survey No. 273/19 Morai Village Ambattur Taluk Tiruvallur District in light of the order dated 18.03.2022 in W.P.No.5716/2022 and register the same.

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

4. The case of the writ petitioner is that at the time when the sale deed dated 18.04.2024 executed by the petitioner has been presented for registration, the same has not been registered on the ground that the parent document has not been produced at the time of registration despite the fact that the petitioner has produced a copy of the First Information Report registered to the effect that the original document was destroyed in an accidental fire. 2/8

Hence, the present Writ Petition has been filed.

5. I have perused entire records. This Court in Federal Bank Vs. Sub Registrar and two others in W.P.No.2758 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.

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 3/8

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.

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 4/8

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.

(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. 5/8

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." In view of the above settled position of law, the respondent cannot insist for production of the original parent document for registration of the document and they cannot refuse to register the document merely on the ground of non production of the original parent document. They can very well verify the certified copy and other documents produced by the petitioner.

6. Accordingly, this Writ Petition is disposed of with a direction to the second respondent to register the sale agreement executed by the petitioner dated 23.02.2024 without insisting on production of original parent document 6/8

within a period of fifteen days from the date of receipt of a copy of this Order. No costs.

19.06.2024 vrc Index :Yes/No Internet :Yes/No : Yes/No To,

1. The Inspector General of Registration, Santhome High Road, Mylapore, Chennai - 600 004.

2. The Sub-Registrar, The Ambattur Sub Registrar Office, Ambattur, Chennai - 600 053.

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N. SATHISH KUMAR , J.

vrc W.P.No.14331 of 2024 19.06.2024 8/8