Shankar v. The Director
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.11.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA Shankar
...Petitioner
Vs.
1 The Director Directorate Of Town And Country Planning 2nd 3rd 4th Floor, C And E Market Road Koyambedu Chennai- 107.
2. The Regional Officer Directorate Of Town And Country Planning No.6 Sannathi Street Subramania Nagar Suramangalam, Salem, Tamil Nadu- 636 302.
3. The Executive Officer Erumaipatty (Town Panchayat) Sendamangalam (TK) Namakkal District.
4. The Sub Registrar Sub Registrar Office, Erumaipatty Block Sendamangalam (TK) Namakkal District.
Tamil Nadu- 637 013.
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5. M/s.Indian Oil Corporation LTd Chennai Division Rep by its Southern Regional Manager, Indian Oil Bhavan No.139 Nungambakkam High Road chennai-31.
6. The Indian Oil Corporation Ltd, Petrol Bunk Outlet, Kakatti Erumaipatty Namakkal.
7. K.Srinivasan
8. S.Elangovan
9. S.Rajeswari 10.S.Dhanalakshmi 11.A.V.R.Venkatesan 12.A.V.R.Ravikumar 13.A.V.R.Kannan
...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to direct the 4th respondent to cancel the Sale Deed No.1144/ 1986 dated 13.11.1986 and to declare the transaction based on this sale deed as illegal based on the petitioner's representation dated 20.04.2024. 2/11
For Petitioner : Mr. S.Shanker-Party-in-Person For Respondents :Mr.A.Selvendran 1 and 2 Special Government Pleader For Respondent-3: Mr.Prashant Kiran Government Advocate For Respondent-4: Mr.M.Shahjahan, Special Government Pleader
O R D E R
This writ petition has been filed for a mandamus to direct the 4th respondent to cancel the Sale Deed No.1144/ 1986 dated 13.11.1986 and to declare the same as illegal based on the petitioner's representation dated 20.04.2024.
2. It is the case of the petitioner that the 7th respondent is none other than his father who was a Transport Operator. The 7th respondent purchased the petition mentioned property from out of personal and ancestral property based income. The 7th respondent with an intention to settle his bad debts sought to sell the said property. Pursuant to 3/11
which a Power of Attorney was executed in favour of one A.V.Ranagasamy.
3. It is the further case of the petitioner that the 7th respondent was forced to execute another Power of Attorney dated 24.03.1986 in favour of one R.Govindasamy being A.V.Rangasamy's in-law. The said R.Govindasamy sold the property vide Sale Deed dated 13.11.1986, registered as Document No.p53/1144 of 1986 to A.V.Rangasamy. The said A.V.Rangasamy executed a gift deed in favour of his three sons namely respondents 11 to 13 herein. The petitioner made a representation to the respondents dated 20.04.2024 seeking to cancel the said sale deed against which no action has been taken. Aggrieved by the same, the petitioner is before this Court.
4. Heard the learned counsel on either side.
5. The constitutional validity of Section 77-A, 77-B and 22-B of the Registration Act which have been introduced by the Registration 4/11
[Tamil Nadu Second Amendment Act] 2021 [Act 91 of 2022] and its retrospective operation had been referred to the Division Bench in the case of M.Kathirvel Vs. Inspector General of Registration Department of Registration and Others reported in (2024) 4 CTC 769. The division bench after tracing the history of the enactment and considering the various judicial precedence had held as follows:- "84. The object of Registration Act is only to maintain public record in relation to immovable properties. Merely because a document executed by a person without title is registered, that does not affect the title of true owner. In other words, the question of title cannot be decided merely on the basis of registered documents of conveyance, even though such documents may be considered as evidence of transactions.
Cancellation of a registered instrument after the transfer of right in immovable property is often the subject matter of suit under Section 31 or Section 34 of the Specific Relief Act. By registration, the Registering Officer only gives the seal of approval to the instrument and by registration, the Registering Officer does not recognise the title of individuals. Registration is a formality to complete the transfer of conveyance between two parties.
the registration is not therefore provided under the Act unless the document of conveyance or cancellation is signed by both parties. Even though the object of Registration Act and the amending Act are not different from the grounds on which the cancellation of registered deeds can happen under Section 77-A, we are of the view that the impugned legislation is nothing but creation of a new forum in the place of Civil Court. This cannot be permitted by constitutional Courts to protect the rights of parties to the documents.
85. Even the Civil Court's jurisdiction to cancel the instrument is only when the transaction as such, is hit by any provisions of Indian Contract Act for being void or voidable. Article 56 of Schedule to Limitation Act deals with suits to declare the forgery of an instrument issued or registered. The limitation for filing a suit is three years from the date of execution or from the date when the plaintiff comes to know about the registration. Article 59 of Schedule to Limitation Act prescribes three years for filing a suit to cancel or to set aside an instrument or decree. Limitation starts when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside become known to the plaintiff. Section 27 of the Limitation Act extinguish the right to property at the 6/11
determination of the period limited to any person for instituting a suit for possession of any property. The principle underlying Section 27 of the Limitation Act is that a person who is having a right to possession fails to file a suit within the prescribed period of limitation, will leave his title in favour of the party in possession. Now under Section 77-A of the Registration Act without any restriction, even documents which were registered some decades ago, can be challenged and the registration of the same can be cancelled on specific grounds which are enumerated under Section 22-A and Section 22-B. In the counter affidavit, the respondents have admitted this position and supported the enactment on the principle of equity. Even though a suit filed under Section 31 of Specific Relief Act is dismissed on the ground of limitation, power under Section 77-A can still be exercised by the Registrar. This situation renders the enactment unconstitutional being contrary to the doctrine of separation of power.
86. When judicial Forum administered by qualified and trained judges who are accountable and guided by procedures, norms, principles and precedents is available, providing parallel remedy before executive authority to decide as to the legal sanctity of registered 7/11
documents, is unconstitutional. There is no certainty to any documents of conveyance if an executive authority is given unguided power which can also be misused to invalidate even genuine transaction in the absence of proper guidelines by legislation."
Thereafter upon considering a few cases which had been decided by the Registrar and which was the subject matter of challenge, the division bench had held as follows:- " From the above discussion on this issue and from perusal of the records including the orders of Registrar under Section 77-A in some of the cases and the principles laid down by Hon'ble Supreme Court above referred to, this Court is unable to sustain the impugned provision, particularly, Section 77-A and has no hesitation to strike down Section 77-A for being contrary to the fundamental principle that judicial power to decide substantial rights of the parties involving complicated issues on facts and law resulting in serious legal implications affecting the property rights of parties to the transactions cannot be delegated to executive authorities."
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6. Therefore, in the light of the above judgement, the request of the petitioner to declare the Sale Deed as null and void cannot be granted and accordingly the Writ Petition is dismissed. No costs. 20.11.2024 Index : Yes/No Internet : Yes/No srn To 1 The Director Directorate Of Town And Country Planning 2nd 3rd 4th Floor, C And E Market Road Koyambedu Chennai- 107.
2. The Regional Officer Directorate Of Town And Country Planning No.6 Sannathi Street Subramania Nagar Suramangalam, Salem, Tamil Nadu- 636 302.
3. The Executive Officer Erumaipatty (Town Panchayat) Sendamangalam (TK) Namakkal District.
4. The Sub Registrar Sub Registrar Office, Erumaipatty Block 9/11
Sendamangalam (TK) Namakkal District.
Tamil Nadu- 637 013.
5. The Southern Regional Manager, M/s.Indian Oil Corporation Ltd.
Chennai Division, Indian Oil Bhavan No.139 Nungambakkam High Road, Chennai-31.
6. The Indian Oil Corporation Ltd, Petrol Bunk Outlet, Kakatti Erumaipatty Namakkal.
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P.T. ASHA, J, srn W.P.No. 33694 of 2024 20.11.2024 11/11