TaxTMI 
TaxTMI 
2016 (10) TMI 1142
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Rule in the State of Madhya Pradesh, the general principle laid down in the case of Thota Ganga Laxmi & Anr. vs. Government of Andhra Pradesh & Ors. (2010)15 SCC 207 would be applicable? 3. Justice V.Gopala Gowda on the other hand allowed the appeal on the finding that the Sub-Registrar (Registration) had no authority to register the Extinguishment Deed presented by the respondent-Society dated 9th August 2001 and his action of registration of that document was void ab initio. For the same reason, the subsequent deeds in respect of the property in question registered by the Sub-Registrar dated 21st April, 2004 and 11th July 2006 were also without authority and void ab initio. His Lordship held that, the High Court should have declared the above position and set aside registration of the subject documents and also the orders passed by the Sub-Registrar (Registration) and Inspector General (Registration). His Lordship allowed the appeal filed by the appellant with compensation amount to be paid by the respondents quantified at Rs. 10 Lakh. 4. Briefly stated, Plot No.7-B at Punjabi Bagh, Raisen Road, Bhopal was allotted to the appellant's mother Smt. Veeravali Anand by Punjabi ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sideration amount accepted by him in furtherance of the compromise deed dated 6th July 2004. The appellant did not pay any heed to that demand and instead continued with the multiple proceedings resorted to by him before the Authority under the Act of 1960, including criminal proceedings. The appellant also moved an application before the Sub-Registrar (Registration) calling upon him to cancel the registration of Extinguishment Deed dated 9th August 2001 and the subsequent two deeds dated 21st April 2004 and 11th July 2006 respectively. This application was filed on 4th February 2008 by the appellant. The Sub-Registrar (Registration) by a speaking order rejected the said application on 28th June 2008 mainly on two counts. Firstly, a dispute was pending between the parties with regard to the same subject matter. Secondly, he had no jurisdiction to cancel the registration of a registered document in question. For, his jurisdiction was limited to registration of the document when presented by the executant before him for that purpose. The appellant then approached the Inspector General (Registration) by way of an application under Section 69 of the Registration Act, 1908 (hereinafter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alore AIR 2000 Kar.46. In para 15 and 16, the High Court observed thus: "15. In view of aforesaid discussion we are of the view that after registration of the extinguished deed or other documents by the Sub-Registrar, if any application is moved by any of the affected party of such document stating that the same was not registered by practicing the fraud with his right then Sub-Registrar in the lack of any specific provision in this regard could neither entertain nor adjudicate such application under the provisions of Section 17, 18 or 69 or some other provisions of the Act. Section 69 of the Act only confers the superintending power of registration offices and to make rules to the Inspector General respondent No.2. It does not give any rights to cancel the earlier registered documents or modifying any entries in the index or in other record at the instance of any of party. So, Section 17(1)(b) read with 69 of the Act is also not helping to the petitioner in this writ petition. Consequently, it is held that Sub-Registrar as well as Inspector General have not committed any fault in dismissing the application of the petitioner with direction to approach the competent forum f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that Act cannot be construed to confer a quasi judicial power on the Registering Authority. His Lordship also referred to the decision of the Madras High Court in Park View Enterprises vs. State of Tamil Nadu AIR 1990 Madras 251 wherein it has been observed that the function of the Sub-Registrar for the purposes of registration is purely administrative and not quasi-judicial. He cannot decide whether a document which is executed by a person has had title as is recited in the given instrument. His Lordship found it difficult to agree with the general principle stated in the case of Thota Ganga Laxmi (supra) that the Registering Authority cannot register a unilateral deed of cancellation or extinguishment, in absence of any specific Rule in that behalf. Therefore, His Lordship opined that the general observation in that case required reconsideration by a larger Bench. Having said this, His Lordship also noted that the validity of the action taken by the Society in execution of the extinguishment deed dated 9th August 2001, cancelling the deed in favour of the appellant's mother dated 22nd March 1962 was the subject matter of a dispute filed by the appellant wherein all relevant is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ive effect for cancellation of the allotment of the plot in the name of appellant's mother vide Extinguishment Deed dated 9th August 2001. The latter is only a subterfuge. Reference is then made to Section 31 of the Specific Relief Act, 1963 to hold that unilateral cancellation of the deed would be in violation of the said provision read with Article 59 of the Limitation Act, 1963, which requires cancellation of any instrument within 3 years. In the present case, the deed in favour of the appellant's mother was executed on 22nd March 1962 and registered on 30th March 1962 concerning the subject plot; and for which reason extinguishment of the said deed after lapse of 39 years was impermissible in law. On this finding, it has been held that the Sub-Registrar had no authority under the Act of 1908 nor by virtue of Section 31 of the Specific Relief Act, 1963 read with Article 59 of the Limitation Act, 1963 to unilaterally cancel the said deed; and consequently, registration of the Extinguishment Deed by the Sub-Registrar amounts to playing fraud on the power vested in the Authority under law. Exercise of power of registering a document by the Sub-Registrar, in the present case, was ul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t a legal notice dated 12th July 2007 to rescind the said agreement and called upon the appellant to refund the amount of Rs. 6.50 Lakh received by him with interest. His Lordship also adverted to the decisions of this Court in CAG vs. K.S.Jagannathan (1986) 2 SCC 679; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs. V.R. Rudani (1989) 2 SCC 691 and Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC 233 to hold that the High Court failed to exercise its discretionary power which has resulted in grave miscarriage of justice and entailing in denial of the valuable right guaranteed under Article 300A of the Constitution of India to the appellant. Accordingly, His Lordship held that the impugned judgment of the Division Bench of the High Court as well as the impugned instruments i.e. Extinguishment Deed dated 9th August 2001 and the subsequent deeds dated 21st April, 2004 and 11th July 2006 respectively, are quashed and set aside. Further direction is given to respondent Nos. 6 and 7 to vacate the subject property and hand over possession thereof to the appellant forthwith. His Lordship was of the view that the appellant was entitled to further rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bmissions on 12th August 2016 which make reference to several reported cases. The decisions referred to in the written submissions are essentially multiplying the cases on the contention already answered in favour of the appellant by His Lordship Justice V.Gopala Gowda. 10. The respondents, on the other hand, contend that the Writ Petition has been justly rejected by the High Court on the ground that the appellant was pursuing remedy for the same reliefs in substantive proceedings by way of a dispute filed under Section 64 of the Act of 1960 before the competent Forum. Besides the said proceedings, it was open to the appellant to take recourse to other appropriate remedy before the Civil Court, to the extent necessary. The High Court in exercise of powers under Article 226 of the Constitution of India not only exercises an equitable jurisdiction but also an extraordinary jurisdiction. The High Court in any case is not expected to enter upon the plea of declaring agreements and documents executed between private parties as illegal or for that matter void ab initio, which remedy is available before the cooperative Forum or the Civil Court. It was contended that if this contention ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... good faith by going ahead with the construction on the plot with the permission of the Society and after obtaining approvals from the Municipal Authorities. They have spent their fortune in doing so. Besides supporting the stand taken by the other respondents, they submit that in the fact situation of the present case no relief in equity is warranted in favour of the appellant. Thus, the Writ Petition filed by the appellant has been justly dismissed with liberty to pursue appropriate remedy. 13. Having considered the rival submissions, including keeping in mind the view taken by the two learned Judges of this Court on the matters in issue, in our opinion, the questions to be answered by us in the fact situation of the present case, can be formulated as under: "(a) Whether in the fact situation of the present case, the High Court was justified in dismissing the Writ Petition? (b) Whether the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is duty bound to declare the registered Deeds (between the private parties) as void ab initio and to cancel the same, especially when the aggrieved party (appellant) has already resor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... deeds in favour of third parties. In this backdrop, the High Court declined to entertain the Writ Petition filed by the appellant, which was essentially to challenge the same Extinguishment Deed and subsequent deeds. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extra-ordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ishment Deed could not have been unilaterally executed by the Society. That plea can be examined by the statutory Forum provided for that purpose. The decision of the Society to cancel the allotment of a plot to its member or to rescind his membership and to allot the plot to another member, is undoubtedly the business of the Society. Any cause of action in that behalf, indeed, can be pursued before the Competent Forum by the aggrieved member or his legal representative. That will require examination of the governing cooperative laws and the Bye-laws of the Society - to ascertain whether it is open to the Society to cancel the allotment of a plot to its members including to cancel the membership of such person. If that action of the Society is held to be just and permissible in law, the appellant may not be entitled to any other relief much less the declaration as sought. Further, remedy of writ cannot be used for declaration of private rights of the parties or enforcement of their contractual rights and obligations. In our considered opinion, it would be unnecessary if not inappropriate to examine any other contention at the instance of this appellant as we agree with the view tak....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ees) in respect of the subject plot, it is doubtful whether it is open to the appellant to question the act of unilateral execution and registration of the stated Extinguishment Deed being irregular much less void and nullity. Indisputably, the respondents-Society is a Cooperative Housing Society Limited and is governed by its Bye-Laws. According to the counsel for the Society, the member is obliged to erect a house on the plot allotted to him within specified time, failing which must suffer the consequence including of cancellation of allotment of plot and removal of his membership. At the time of allotment, the member executes an agreement whereunder he/she undertakes to abide by the conditions specified for erecting a house on the plot allotted to him/her in the manner prescribed therein. Whether the Society is justified in proceeding against the defaulting member by cancelling the allotment of plot as well as membership, is an issue falling within the purview of the business of the Society. The member is bound by the stipulation contained in the agreement executed by him/her and in particular the Bye-laws of the Society. Any action by the Society for breach thereof is just or o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g issue Nos. (d) to (f) 20. It is common ground that the deed regarding allotment of plot to a member of the Society required registration. The allotment of the subject plot in favour of the appellant's mother was accordingly, registered in the office of the Sub-Registrar (Registration). The subject plot was allotted to the appellant's mother consequent to her admission as a member of the Society. As the allotment of the plot by the Society creates and transfers rights in an immovable property, the deed of allotment was required to be registered. But if the member failed to comply with the stipulation of allotment, it would be open to the Society to cancel such allotment and including the membership of that member. In that event, it may become necessary for the Society to execute an Extinguishment Deed qua such allotment deed operating in favour of the concerned member. For, mere cancellation of membership may not be enough. The Society could extinguish the right, title or interest in the immoveable property belonging to the Housing Society, by executing an Extinguishment Deed for that purpose. 21. The role of the Sub-Registrar (Registration) stands discharged, once the docum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority. Non-presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitly to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the Act of 1908 can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the Civil Court. 24. Admittedly, the documents in question do not fall within Sections 31, 88 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on and denial of execution respectively (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3)(a) If any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty committed during the registration of the document. The aggrieved party can challenge the registration and validity of the document before the Civil Court. The majority view of the Full Bench was that if a person is aggrieved by the Extinguishment Deed or its registration, his remedy is to seek appropriate relief in the Civil Court and a Writ Petition is not the proper remedy. 26. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises (supra) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition. 27. In absence of any express provision in the Act of 1908 ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not register able by any provision of law. A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent Court nor was there any notice to the parties. Hence, this rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions." 28. No provision in the State of Madhya Pradesh enactment or the Rules framed under Section 69 of the Act of 1908 has been brought to our notice which is similar to the provision in Rule 26(k)(i) of the Andhra Pradesh Registration Rules framed in exercise of power under Section 69 of the Act of 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Extinguishment Deed should bear the signatures of both the vendor and the purchaser and both must be present before the Registering Officer when the document is presented for registration. Absent such an express provision, insistence of presence of both parties to the documents by the Registering Officer, may be a matter of prudence. It cannot undermine the procedure prescribed for registration postulated in the Act of 1908. 30. The moot question in this case is : whether the action of the Society to cancel the allotment of the plot followed by execution of an Extinguishment Deed was a just action? That will have to be considered keeping in mind the provisions of the Act of 1960 and the Bye-laws of the Society which are binding on the members of the Society. The interplay of the provisions of the Contract Act and the Specific Relief Act and of the Co-operative Laws and the Bye Laws of the Society permitting cancellation of allotment of plot or the membership of the concerned member will have to be considered in appropriate proceedings. Whether the decision of the Society to cancel the allotment of plot made in favour of its member is barred by the law of Limitation Act, is again....