Perumal S v. The Inspector General Of Registration

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.08.2024

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR and W.M.P.(MD)Nos.18455 and 18456 of 2022 S.Perumal ... Petitioner Vs.

1.The Inspector General of Registration, 100, Santhome, Chennai - 600 028.

2.The Director General of Registration, Palayamkottai, Tirunelveli.

3.The District Registrar, Cheranmahadevi, Tirunelveli District - 627 414.

4.The Sub Registrar, Mukkudal, Cheranmahadevi Taluk, Tirunelveli.

5.Suresh .... Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, calling for the 1/10

records of the 2nd respondent in Na.Ka.No.2894/jgp/2020 dated 01.12.2021 pertaining to cancellation of sale deed document No.2102 of 2010 dated 21.09.2010 in petitioner UDR patta No.2230 in favour of 5th respondent and quash the same as illegal and consequently direct the 2nd respondent herein to remove the entry of sale deed dated 2102/2010 from their records and subsequently dispose of the same within a time frame as specified by this Court forthwith.

For Petitioner : Mr.S.Arunnithy For Respondents : Mr.M.Siddarthan, Addl. Govt. Pleader for R1 to R4 Mr.H.Arumugam for R5

O R D E R

This Writ Petition has been filed for issuance of a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent in Na.Ka.No. 2894/jgp/2020 dated 01.12.2021 pertaining to cancellation of sale deed document No.2102 of 2010 dated 21.09.2010 in petitioner UDR patta No.2230 in favour of 5th respondent and quash the same as illegal and consequently, direct the 2nd respondent herein to remove the entry of sale deed dated 2102/2010 from their 2/10

records and subsequently dispose of the same within a time frame as specified by this Court forthwith.

2. It is the case of the Writ Petitioner that the subject property belongs to the petitioner. The petitioner executed a settlement deed in favour of his son. Subsequently, separate patta has also been issued to the petitioner's son and for the remaining portion, the petitioner is in possession and enjoyment. While so, the 5th respondent registered a sale deed without any parent document by using fraudulent document. Hence, the petitioner made a representation to the District Registrar to cancel the said sale deed. The District Registrar passed an order dated 22.06.2020, stating that the District Registrar has no power to cancel the sale deed which was registered by the Sub Registrar and further directed the petitioner to approach the civil Court. As against the said order, the petitioner has filed an appeal before the 2nd respondent and the same was dismissed by confirming the order of the third respondent. Challenging the same, the petitioner has filed this Writ Petition.

3. It is stated by the learned counsel for the 5th respondent that a civil suit has already been filed against the petitioner in O.S.No.7 of 20716 and the same has been decreed. Now EP is pending for removal of superstructure in the subject property. The said statement is recorded.

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4. The third respondent has filed a counter affidavit stating that as a decree in O.S.No.7 of 2016 was passed against the petitioner, the third respondent rightly directed the petitioner to approach the competent civil Court and the said order was rightly confirmed by the second respondent through the impugned order. Hence, opposed this Writ Petition.

5. Heard the submissions made by the respective learned counsel appearing for the parties and perused the materials available on record.

6. On a perusal of the records, this Court is of the view that the impugned order does not require any interference, since the 2nd respondent relegated the parties to the civil Court, as the Registering Authority has no power to cancel the document. 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 22B 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 4/10

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: "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 5/10

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 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.

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."

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 SubRegistar. 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 7/10

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."

7. In view of the above settled position of law, unless the power is specifically vested with the registering authority to cancel any document and to go into the matter, there cannot be any direction to cancel the document. All these facts cannot be looked into by the authorities and the same has to be agitated before the civil Court.

8. With the above observations, this Writ Petition is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

20.08.2024 NCC : Yes/No Index : Yes/No vsm 8/10

To 1.The Inspector General of Registration, 100, Santhome, Chennai - 600 028.

2.The Director General of Registration, Palayamkottai, Tirunelveli.

3.The District Registrar, Cheranmahadevi, Tirunelveli District - 627 414.

4.The Sub Registrar, Mukkudal, Cheranmahadevi Taluk, Tirunelveli.

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N.SATHISH KUMAR , J.

vsm 20.08.2024 10/10