TaxTMI 
TaxTMI 
2015 (8) TMI 1605
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.... Extinguishment on 9.8.2001 unilaterally cancelling the said allotment and on the strength of such document, executed a registered sale deed dated 21.4.2004 in favour of Mrs. Manjit Kaur, the respondent no. 5 herein. Mrs. Manjit Kaur in her turn executed another sale deed dated 11.7.2006 in favour of the respondent nos. 6 and 7, Mrs. Meenakhsi and Mr. S.C. Sharma. 2. As is evident, under these circumstances, the appellant moved the Sub-Registrar (Registration) seeking cancellation of the Deed of Extinguishment dated 9.8.2001. The Sub-Registrar rejected the said prayer on two counts, namely, the dispute between the parties was pending before the competent authority under the M.P. Cooperative Societies Act, 1960 (for short 'the 1960 Act') and secondly, his jurisdiction was limited only to the extent of registering the documents and if any party desired its cancellation, then to verify that the cancellation deed is registered on appropriate stamp paper. Thereafter, the appellant filed an application under Section 69 of the Registration Act, 1908 (for brevity, "the Act"), which was rejected by the Inspector General (Registration) sta stating that the powers conferred on Insp....
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.... The said order vacating the order of injunction was affirmed by the Joint Registrar and the Deputy Registrar was directed to finally adjudicate the dispute. 5. As the factual matrix would unveil as the appellant instituted many a legal proceeding against the respondents, they issued a notice on 12.7.2007 asking him to refund the consideration amount of Rs.6 lakhs. Against various orders, the appellant preferred three special leave petitions, i.e. SLP(C) No. 34857 of 2010, SLP(C) No. 13255 of 2012 and the present appeal arising out of SLP(C) No. 9502 of 2012. The SLP(C) No. 34857 of 2010 was preferred assailing the maintainability of the revision petition and the said SLP is pending. SLP(C) No. 13255 of 2012 relates to appointment of receiver to protect his interest, which stood dismissed by order dated 17.7.2013. I shall refer to the said order in detail at the appropriate time. 6. The High Court took note of the factual assertions, scanned the relevant provisions of the Act, took note of the authorities cited by the appellant and eventually came to hold that the controversy raised by the appellant could be adjudicated before the appropriate forum and not in the writ proceed....
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....ering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineation, blank, erasure or alteration. 11. Section 21 of the Act provides for description of property and maps or plans. The said provision is as under :- "21. Description of property and maps or plans. (1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. (2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered. (3) Other houses and land shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a government map or survey. (4) No non-testamentary document containing ....
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....nd the role of the Registration Officer. It is urged by the appellant that the Extinguishment Deed was registered contrary to the provisions contained in Section 17(1) (b) of the Act and in a fraudulent manner. Section 17(1)(b) stipulates certain categories of documents which are required to be registered. It stipulates registration of non-testamentary documents which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title Ful sector in future rights or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. It is contended by the appellant that authority, on the ground of fraud, can declare the deeds to be null and void. To bolster the said stand, he has drawn inspiration from the authority in Yanala Malleshwari v. Anantula Sayamma [AIR 2007 AP 57] (Full Bench). Before the Full Bench, the arose whether a person can nullify the sale executing and registering a cancellation deed whether the Registering Officer like District Registrar and/or Sub-Registrar appointed by State Government, is bound to refuse registration a cancellation deed is presented. Rao, J., adv....
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....ction of the Courts." 16. In the said case, the minority view is to the following effect :- "The purpose of noting down these provisions of TP Act and the Registration Act is to come to a conclusion as to whether a vendor retains any interest in the property which he sold and of which a sale deed was executed and registered. The answer is emphatic 'no'. Therefore, in my view, when a person transfers all his rights, his rights in the properly get extinguished and if he tries to get back the property, it has to be done by challenging the sale deed which he has executed and which is registered by the Sub-Registrar." 17. It is apt to note here that in the said case, the majority took the view that if a person is aggrieved by the cancellation deed, his remedy is to seek an appropriate relief in the civil court and the writ petition is not the proper remedy. 18. The High Court in the impugned order has also referred to a Division Bench decision of the Madras High Court in E.R. Kalaivan v. Inspector General of Registration, Chennai and Anr [AIR 2010 Madras 18]. In the said case, the Division Bench took note of the decision in Yanala Malleshwari (supra) and Rule 2....
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....00 Karnataka 46], by a learned Single Judge of Karnataka High Court. In the said case, the petitioner therein claimed that he was the lawful owner of the property and the concerned cooperative society had no right over the said site nor could it be sold by the said society in favour of the private respondents. It was contended that the Sub-Registrar could not have registered the sale deed relating to the said site in favour of the second respondent. A notice was sent to the Sub-Registrar by the petitioner calling upon to remove the name of the second respondent as purchaser of the site, but the said request was not complied with by the concerned Sub-Registrar. Being dissatisfied with the said inaction, a writ petition was filed seeking appropriate direction to consider the demand contained in the notice. The learned Single Judge while dealing with the concept of registration of instruments under the Act, observed that :- "The object and intent of providing for registration of instruments under the Act is to create and maintain a public record of transactions relating to immovable properties, on which every person dealing with an immovable property can rely with confidence,....
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....n deed was illegal but the said writ petition was dismissed holding that the appellants should approach the civil court. This Court, in the said factual matrix opined :- "In our opinion, there was no need for the appellants to approach the civil court as the said cancellation deed dated 4-8-2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is not disputed that A had the title to the land, that title passes to B on the registration of the sale deed (retrospectively from the date of the execution of the same) and B then becomes the owner of the land. If A wants to .subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law." Thereafter, the Court referred to Rule 26(k)(i) of Andhra Pradesh Registration Rules framed under Section 69 of the Act which reads as follows :- "(i) The registering officer shall ensure at the time of preparatio....
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.... Section 69 of the Act, which reads as follows :- "69. Power of Inspector-General to superintend registration offices and make rules - (1) The Inspector-General shall exercise a general superintendence over all the registration offices in the territories under the ^59 [State Government], and shall have power from time to time to make rules consistent with this Act- (a) providing for the safe custody of books, papers and documents; RT (aa) providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under sub-section (1) of section 16A;] (b) declaring what language shall be deemed to be commonly used in each district; SUPR Esta (c) declaring what territorial divisions shall be recognized under section 21; (d) regulating the amount of fines imposed under sections 25 and 34, respectively; (e) regulating the exercise of the discretion reposed in the registering officer by section 63; (f) regulating the form in which registering officers are to make memoranda of documents; (g) regulating the authentication by Registrars and ....
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....-A of the Act and that there is compliance with the statutory requirements under Stamp Laws, Taxation Laws, Land Ceiling and Land Reforms Laws etc." It is apt to note there that the learned Single Judge has referred to a decision of the Madras High Court in Park View Enterprises v. State of Tamil Nadu [AIR 1990 Mad 251], wherein it has been observed that function of the Sub-Registrar, for purposes of registration, are purely administrative and not quasi-judicial and, therefore, he cannot decide whether a document which is registered is executed by a person having title as recited in the instrument. 25. Thus, in the absence of any power conferred on the Registering Authority to adjudicate any aspect, it is difficult to agree with the view in Thota Ganga Laxmi (supra) that the Registering Authority cannot unilaterally register a deed of cancellation. In my considered opinion, in the absence of any rule like the one that is prevalent in the State of Andhra Pradesh, which Registering Officer to ensure at the of preparation for registration of cancellation before him that such cancelation deeds are executed by al deeds of previously registered deed of conveyances on sale cancellat....
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....ppeal and other proceedings and, therefore, I refrain from adverting to the same. 28. In this regard, I may refer with profit to the order dated July 17, 2013 on which reliance has been placed by the respondents, passed in Satya Pal Anand v. Punjabi Housing Cooperative Society & Others [SLP(C) No. 13255 of 2012]. In the said case, the Court has taken note of the dispute pending before the ITIDCMENT Registrar under Section 64 of the 1960 Act, questioning the legality of the execution of the Extinguishment Deed and allotment of the property in dispute in favour of other respondents. While dealing with the factum of appointment of receiver, the Court has observed thus :- "We must also mention herein that during the pendency of these proceedings, the second respondent sold the property in favour of respondent nos. 4 and 5 by sale deed dated 11.7.2006. It appears that the Sub-Registrar on inspection of the disputed plot found that there were two constructed duplex and two more near completion as on the date of inspection i.e. on 13.03.2007 of which one was occupied by respondent no.4. It must be remembered that the instant proceedings arise out of the interlocutory ....
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....f this Court in the case of Thota Ganga Laxmi & Anr. v. Government of Andhra Pradesh & Ors. [(2010) 15 SCC 207], wherein the High Court of Andhra Pradesh dismissed the Writ Petition of the appellant therein, relying on the Full Bench decision of Yanala Malleshwari (supra) . 3. I have also taken into consideration the fact that the sale deed of the property in dispute was executed by the Society in favour of the mother of the appellant on 22.03.1962 in respect of the plot involved in this proceeding. The contention urged on behalf of the Society is that as there was no construction raised by the appellant or his deceased mother on the said plot of land and therefore, there has been a violation of the Bye-laws of the Society, as claimed by the Society and hence, it has executed the Extinguishment Deed dated 09.08.2001 with respect to the said plot of land and cancelled the already registered absolute sale deed in favour of the appellant's mother dated 22.03.1962. 4. On the basis of the registration of the Extinguishment Deed with respect to the said plot of land, the subsequent allotment of the said plot of land took place and the sale deed was registered by the society in ....
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....d Mr. S.C. Sharma). The said documents have been fraudulently registered by them which is against the acquired legal rights of the appellant on the said plot of land, the same is void ab initio in law as it is impermissible under the provisions of the Indian Registration Act, 1908 read with Section 31 of the Specific Relief Act, 1963. 9. There is also a reference with regard to the taking of the consideration amount of Rs.6,50,000/- by the appellant from the respondent no.5 vide the execution of the Deed of Compromise dated 06.07.2004. The appellant has also raised a dispute in that regard under Section 64 of the M.P. Co-operative Societies Act, 1960 before the Sub-Registrar, Co-operative Society, Bhopal which is pending in respect of the said plot of land. Besides this, some of the litigations between the parties are pending before different forum i.e. Joint Registrar, Co-operative Society, State Co-operative Tribunal and in the High Court. 10. The appellant filed an application before the Sub-Registrar (Registration), seeking the cancellation of the extinguishment deed dated 09.08.2001 executed by the Society against the appellant's plot of land. By order dated 28.06.2008, ....
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.... M. Ramakrishna Reddy (supra) and dismissed the Writ Petition filed by the appellant in favour of the respondent Society. The correctness of the same is questioned in this Civil Appeal urging various legal grounds. 12. Having regard to the facts, the rival legal contentions and the grounds urged in the writ petition and in these proceedings on behalf of the parties, the following question of law would arise for my consideration: INDIA SUPI "Whether the appellant is entitled to seek for the relief of cancellation of the registered documents dated 09.08.2001, 21.04.2004 and 11.07.2006, registered with respect to the immovable property, i.e. plot No. 7-B, Punjabi Bagh, Raisen Road, Bhopal?" 13. The said point is required to be answered in favour of the appellant for the following reasons : It is an undisputed fact that the Society had executed an absolute sale deed dated 22.03.1962 in favour of the deceased mother of the appellant, Smt. Veeravali which was registered on 30.03.1962. It is also not in dispute that she died on 12.06.1988, leaving behind the appellant and his sister to succeed The respondent-Society has also not disputed the fact that the appellant is th....
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....Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale: Provided that the registering officer shall dispense with the execution of cancellation deeds by executant and claimant 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 registerable 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 parties concerned. 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 ." 16. Further reliance has....
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....on, cannot thereafter be conferred with a power for cancellation of the deed on the ground that consideration the was full not paid sale and received by the vendor. Conferring such power on the Registrar would tantamount to conferring a power to decide the disputed questions. That apart, as already stated, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration, without the signature of both the vendor and the purchaser, the deed cannot be entertained. For the said reason, we find no infirmity in the impugned circular issued by the Inspector General of Registration." 17. Thus, the decision of this Court and the Madras High Court in the cases referred to supra, aptly apply to the fact situation of the present case. In the present case also such an extinguishment deed, which is unilaterally registered would be rescinded, particularly, in the case of sale deed or extinguishment deed. In this context, Section 62 of the Indian Contract Act, 1872 would come into play which provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not ....
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....Limitation Act, 1963, wherein the cancellation of any instrument can be done only within three years, 'when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him'. Therefore, the respondent-Society had no right to unilaterally cancel the absolute sale deed executed in favour of the appellant's mother in the year 1962 with regard to the said plot of land in the year 2001 after lapse of more than 39 years which is totally impermissible in law, both for the Society and the Sub-Registrar. The respondent has neither any authority under the provisions of the Registration Act, 1908 nor under Section 31 of the Specific Relief Act, 1963 read with Article 59 of the Limitation Act, 1963 to unilaterally cancel the sale deed without the authority of law and as such the registration of the document by the sub-Registrar amounts to playing fraud on the power provided to him under law which is ultra vires the relevant statutory provisions and the Constitution of India. Further reliance has been placed upon the judgment of the Constitution Bench of this Court in the case of Pratap Singh v. State of Punjab [AIR 19....
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.... taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head though performed bona fide."" 20. For the aforesaid reasons, I have come to the conclusion that the Society has no right to re-allot the said plot of land in favour of the respondent No. 5 by cancelling the already registered sale deed in favour of the appellant's mother in the year 1962 which was an absolute sale deed. Further, registering the sale deed on 21.04.2004 in COURS favour of respondent no.5, who in turn sold the said plot of land in favour of respondent Nos. 6 and 7, is void ab initio in the light Lays of the fact that according to the bye-Laws of the Society, Mrs. Manjeet-respondent no. 5, could not have come in possession of the said plot in the first place as her husband has already got a plot allotted to him in the very same Society. Therefore, the transfer of the said plot of land via subsequent sale deeds are void ab initio in law and therefore, liable to be set aside. 21. For the above stated reasons, it is clear t....
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....d down the following principles as regards the power of this Court under Article 136: "10. . . . . . i) The powers of this Court Under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of the fact save in exceptional circumstances. ii) It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. iii) It is open to this Court to invoke the power Under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court. iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the ....
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....a deed styled as Extinguishment Deed came to be executed by the first respondent before the Sub-registrar, Bhopal-the legality of which deed is required to be examined separately. However, we do not propose to say anything at this stage." 25. In so far as the document of compromise deed dated 06.07.2004 is concerned, the sum of Rs. 6,50,000/- allegedly voluntarily received by the appellant from the respondent No. die No. 5 to put an end to the dispute over the said property is also a void transaction, as the same has been done during the pendency of the proceedings before the Sub-Registrar in relation to the dispute. The said compromise deed is void ab initio in law and the same cannot be put against the appellant so as to deny him the relief sought by him in the present appeal. Apart from the said reason, the notice dated 12.07.2007 served upon the appellant by the lawyer of respondent No. 5 has rescinded the agreement dated 06.07.2004 and she has claimed the refund of 6,50,000/-, to be returned with interest to her, failing which she will file a suit for claim for payment of Rs. 6,50, 000/- with interest. The said notice is produced at Annexure 'P-6' in the proceedings....
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.... the relevant provisions of the M.P Co-operative Societies Act and Rules, 1962 and the Bye-laws of the Society. The cancellation of the sale deed executed in favour of the appellant's mother in the year 1962 by way of the extinguishment deed could not have been registered by the Sub-Registrar as he is not empowered to do so. Hence, for want of the competent jurisdiction, in registering such document, the High Court should have exercised its extraordinary jurisdiction to annul the extinguishment deed and the transactions of the subsequent sale deeds, which has not been done by it. Reliance has been placed upon the decision of this Court in the case of CAG v. K.S. Jagannathan [(1986) 2 SCC 679], wherein it has been held thus: "19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said: "But, were there no authority upon the subject, we should be....
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....s where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." 20. There is thus no doubt that the High Courts in India exercising their. jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the perfo....
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....." 22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. "7 We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available "to reach injustice wherever it is found". Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." 27. Further, this Court has laid down the following principles with respect to the writ of certiorari in the 7 judge bench decision in the case of Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233]: " .... (1) C....