Allowed

Arulraj v. the District Registrar

Madras HC12 Aug 2024WP(MD)/9658/2019

Case brief

AI extract

What is this about?

A writ petition challenged a Registrar's notice for enquiry into cancelling the petitioner's registered sale deed at the instance of rival claimants. Holding registering authorities lack power to cancel registered documents or decide title, the court quashed the notice and left parties to approach the civil court.

What did the court decide?

Impugned notice dated 05.04.2019 in Na.Ka.No.4413/Aa4/2019 set aside; connected miscellaneous petitions closed; no costs.

Arulraj Vs the District Registrar — Property and Title | Madras HC (2024)

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W.P.(MD)No.9658 of 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 12.08.2024

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CORAM:

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THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

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W.P.(MD)No.9658 of 2019 and W.M.P.(MD)Nos.7586 and 7587 of 2019

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Arulraj ... Petitioner

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Vs.

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1.The District Registrar, Tuticorin, Tuticorin District.

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2.P.S.Philominia Angelin 3.P.S.Sweety Grazyana Jesulin .... Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorari, to call for the records relating to the impugned notice made in Na.Ka.No.4413/Aa4/2019, dated 05.04.2019 issued by the first respondent and quash the same.

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For Petitioner : Mr.G.Mohankumar For R1 : Mr.M.Siddharthan Additional Government Pleader For R2 & R3 : Mr.T.Chandrasekaran

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O R D E R

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This Writ Petition has been filed challenging notice made in Na.Ka.No.

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4413/Aa4/2019, dated 05.04.2019 issued by the first respondent.

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2. Heard the submissions made on either side and perused the materials available on record.

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3. It is the case of the writ petitioner that the petitioner purchased the property in question by way of registered sale deed dated 25.11.2003 and he is in possession and enjoyment of the said property. While so, the father of the second and third respondents claiming right over the property on the basis of the partition deed dated 09.08.1976, had filed an application to cancel the said sale deed executed in favour of the petitioner before the first respondent. The said application was rejected after enquiry. Thereafter, in a writ proceedings initiated by the father of the respondents, the patta stood in the name of the petitioner was cancelled. Based on the same, the father of the private respondents herein had executed a settlement deed in their favour. Taking advantage of the said sale deed, the second and third respondents, now made a representation before the first respondent to cancel the sale deed executed in favour of the petitioner. Based on that application, the first respondent issued a notice to the petitioner to appear for enquiry. Challenging the same, this writ petition has been filed.

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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:

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“... 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.”

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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:

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“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.

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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.”

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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:

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“68. Power of Registration to superintend and control Sub Registrars.

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(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.

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(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 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 cancel the registration of the document. Therefore, relying upon Section

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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.”

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5 . In view of the above settled position of law, unless the power is specifically vested with the registering authority to cancel any document, the registering authority cannot go into such disputed facts. All these issues cannot be looked into by this Court and the same has to be agitated before the civil Court. Therefore, the impugned notice cannot be sustained in the eye of law and the same has to be quashed.

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6. With the above observations, this Writ Petition is allowed and the impugned notice 05.04.2019 in Na.Ka.No.4413/Aa4/2019 is set aside. It is for the parties to work out their remedy before the civil Court. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

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12.08.2024

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NCC : Yes/No Index : Yes/No ta To

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The District Registrar, Tuticorin, Tuticorin District.

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