Madras High Court
K.Kala vs The District Registrar on 18 November, 2015
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.11.2015
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
W.P.(MD)No.101 of 2015
to W.P.(MD)No.115 of 2015
and
M.P.(MD).No.1 of 2015
W.P.(MD).No.101 of 2015
K.Kala ... Petitioner
Vs.
1.The District Registrar,
Madurai (South) Mahal,
Palace Road, Madurai-1.
2.The Joint Sub-Registrar No.1,
Madurai (South),
Palace Road, Madurai-1.
3.T.A.Mariappan
(R.3 is impleaded vide court order
dated 10.09.2015 in M.P.(MD).No.2 of 2015)
... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Mandamus directing the respondents to
release the sale deed executed in the name of the petitioner pending in
P201001052 (book 1) in respect of plot No.32 in S.No.198/E, Anuppanady
Village, Madurai.
!For Petitioner : Mr.S.Manohar
^For R.1&2 : Mr.Mahesh Raja
Govt.Advocate
For R.3 : Mr.J.Ashok for
M/s.Jeyapaul Associates
:COMMON ORDER
Since the issue involved in all these Writ Petitions are one and the same, they are all taken up together and decided by a common order.
2. These Writ Petitions have been filed praying for a Writ of Mandamus directing the respondents to release the sale deeds executed by the petitioners pending in different numbers in respect of their different plot numbers referred in the prayer of each of the writ petitions, all situated at Anuppanady Village, Madurai.
3. The case of the petitioners is that they are the Members of Mela Anuppanadi Small Merchants Sangam, (for short 'the Sangam') registered under the Tamil Nadu Societies Registration Act bearing Registration No.23 of 1996. It is stated that one A.Mohanasundaram was elected as the President of the said Sangam, finally on 04.12.2010, and he held the said post since 2004. It is further averred that the said Mohanasundaram executed the sale deeds as in the capacity of the President of the said Sangam for each of the Writ Petitioners with the official respondents and the said sale deeds were not released even after registration. The further case of the petitioners is that the third respondent T.A.Mariappan (impleaded as one of the respondents vide M.P.(MD).No.2 of 2015 dated 18.09.2015) who was President till 2003 initiated legal proceedings as against the said Sangam. In view of the said legal proceedings, the second respondent has not released the documents in question. According to the petitioners, the said legal proceedings cannot be a bar for the official respondents to release the documents in question. Furthermore, the third respondent is not the present President of the said Sangam. At the maximum, the third respondent could be treated only as a Member of the said Sangam. Therefore, the official respondents cannot keep the document, under the guise of objections raised by the third respondent. In the abovesaid background, these Writ Petitions have been filed by the petitioners for the relief stated earlier.
4. Originally, the Writ Petitions were filed without impleading the third respondent, as one of the respondents. Subsequently, the third respondent was impleaded as one of the respondents. Thereafter, the third respondent has filed a detailed counter affidavit inter alia stating that he is the President of Mela Anupanady Small Traders Association. (for short 'the Association). It is stated that as a President of the said Association, the third respondent participated in the tender process for purchase of land to an extent of 2700 Square meter in S.No.198, Anupanady Village conducted by the Tamil Nadu Housing Board. As a President, the third respondent has also paid the tentative cost of the land to the Tamil Nadu Housing Board. After finalisation of the land cost, the Tamil Nadu Housing Board demanded an additional amount of Rs.8,00,000/- for allotment of the above said land.
5. Aggrieved against the same, the third respondent as a President of Mela Anupanady Small Traders Association filed a Writ Petition in W.P.No.14006 of 2006 before the Principal Bench of this Court, wherein, a direction was given to the third respondent to pay a sum of Rs.19,63,000/- to the Tamil Nadu Housing Board towards the execution of the sale deed in respect of the lands in question. Believing the promissory words of the writ petitioners the third respondent by obtaining loan for interest has paid the amount on 19.02.2009 excluding the registration expenses and got the sale deeds dated 05.02.2010 from the Tamil Nadu Housing Board.
6. While the situation stood thus, the said Mohanasundaram (Writ Petitioner in W.P.No.102 of 2015) and K.S.Ramesh claiming to be the present President & Secretary of the said Sangam, without paying any amount towards the expenditure acquired during the course of execution of sale deed, had executed various bogus sale deeds in favour of 23 persons including the Writ Petitioners. Whereas, the third respondent is the recognised President of the said Association and the same is evident from the letter dated 25.01.2010 of the first respondent. It is further averred in the counter affidavit that the third respondent is the competent person as a President to execute the sale deeds in favour of the Members, whereas, the alleged sale deeds executed by the said Mohanasundaram in the capacity of President of Mela Anupanady Small Traders Association is null and void and it is a clear case of fraud by impersonation.
7. As already stated, the said Mohanasundaram was not elected as the President of Mela Anupanady Small Traders Association at any time, much less from 2004. As a matter of fact, the Tamil Nadu Housing Board executed the sale deed dated 05.02.2010 in favour of Mela Anupanady Small Traders Association represented by the the third respondent as the President of the said Sangam. Hence, the claim of the Writ Petitioners is false and illegal. In fact, the third respondent has given a criminal complaint and therefore, a case in Crime No.8 of 2011 was registered by the Inspector of Police, District Crime Branch, Madurai for offences under Sections 406, 420, r/w.34 & 506(i) of IPC against the Writ Petitioners. After investigation, the Inspector of Police, District Crime Branch, Madurai, filed a charge sheet under Sections 120 (b), 468, 471, 406 r/w.34 & 506(i) of IPC and the same was taken on file as c.c.No.4 of 2014 by the concerned Magistrate Court and the same is pending for trial.
8. Apart from the criminal proceedings, a civil suit in O.S.No.128 of 2011 is filed by the third respondent on the file of the District Munsif, Madurai Taluk against the Writ Petitioners regarding the property in dispute and the same is pending before the civil forum. Now, the third respondent has filed an application in I.A.No.460 of 2015 in O.S.No.128 of 2011 on the file of the District Munsif, Madurai Taluk for amendment of seeking for a prayer to cancel the sale deeds executed by the said Mohanasundaram in favour of the Writ Petitioners which are kept as a pending document by the first and the second respondents.
9. On coming to know about the forged sale deeds in favour of the Writ Petitioners were presented for registration, the third respondent submitted an objection petition dated 20.12.2010, 27.12.2010 and 31.12.2010 to the first and the second respondents praying them not to register the forged sale deeds by enclosing the relevant documents regarding the act of forgery.
10. On being satisfied with the objections, the first and the second respondents kept the sale deeds as pending documents by exercising the powers granted under Sections 34,68,69,82 & 83 of the Registration Act. It is pertinent to mention that the Inspector General of Registration have floated a Circular No.67 dated 03.11.2011 conferring powers to the District Registrar to annul the registered document on the ground of fraud and impersonation. The matter regarding the property in dispute is sub-judiced before the competent civil court and regarding the criminal act, the competent criminal court have seized the issue. Under these circumstances, the Writ Petitioners have no locus standi to seek the prayer for release of pending sale deeds. Further, the Writ Petitioners and the third respondent as a President of Mela Anupanady Small Traders Association have entered into a compromise by executing a compromise deed dated 17.06.2013 that they would pay a sum of Rs.28,50,000/- on or before 15.07.2013, but the Writ Petitioner did not keep their promise. In fact, the Writ Petitioners including the said Mohanasundaram, as a party, have endorsed the signatures in the compromise deed dated 17.06.2013, accepting the third respondent as a President of Mela Anupanady Small Traders Association and as such, the Writ Petitioners cannot turn around and say that the third respondent is not the President of Mela Anupanady Small Traders Association.
11. Earlier, one K.S.Ramesh filed a Writ Petition in W.P.(MD).No.7676 of 2009 before this Court against the petitioner and the Tamil Nadu Housing Board, praying to execute the sale deed in favour of Mela Anupanady Small Traders Association as though the said Mohanasundaram is the President and pursuant to the undertaking given by the third respondent that the third respondent will not alienate the property to the third parties or non-members, this Court was pleaded to dismiss the Writ Petition. It is pertinent to point out that till today, the District Registrar has not accepted Form -6 and Form -7 submitted by the said Mohanasundram as the President of Mela Anupanady Small Traders Association, whereas, the third respondent is recognised as the President of Mela Anupanady Small Traders Association. Eventually, he prayed for the dismissal of the Writ Petitions.
12. When the matters are taken up for consideration, the learned Counsel for the petitioners submitted that the petitioners with their hard earned money have pumped huge amount for purchasing the properties in question. However, the official respondents, without any rhyme or reason, keeping the documents of the petitioners on the ground that the third respondent has filed objections to release the documents in question. He further submitted that time and again, this Court has held that the Sub- Registrar concerned has no right to retain the documents in question, in the absence of any order restraining the Registering Authority from registering the document. He further contended that by any stretch of imagination, the official respondents cannot keep the document pending when it is otherwise fulfilled as contemplated under the Stamp Act as well as the Registration Act. Further, the official respondents have not followed the procedure laid down under Sections 34 and 35 of the Registration Act, 1908. The various representations sent to the official respondents seeking to release the documents went in vain. The official respondents have no locus standi under the Registration Act, 1908 and the Rules framed therein to keep the document of the petitioners and keeping the documents in question is opposed to public policy and the Act of the respondents is violative of Article 300 A of the Constitution of India. It is true that the third respondent has filed a civil suit as against the said Mohanasundaram as well as the other Writ Petitioners, however, he has not obtained any interim order in favour of him restraining the official respondents from releasing the documents in question. Hence, he prayed for the releasing of the documents in question.
13. In support of his contention, he placed the following decisions of this Court:-
(I)In the case of Dharmambal and others reported in (2014 (2) T.N.C.J.605 (Mad) (MB).
(II)In the case of P.M.Elavarasan Vs. The Inspector General of Registration reported in 2014 (5) CTC 1.
(III)An unreported order made in W.P.(MD).No.15047 of 2015 dated 20.08.2015
14. The learned Govt.Advocate was put on notice for the first and the second respondents, who in turn submitted that since the matter is seized by the civil court, the official respondents could not proceed further. Hence, he prayed this Court to pass an appropriate order in the case on hand.
15. Per contra, it is the counter submission of the learned Counsel appearing for the third respondent that he is the President of Mela Anupanady Small Traders Association. However, the said Mohanasundaram and K.S.Ramesh claiming to be the present President and Secretary of the above said Sangam, without paying any amount towards the expenditure incurred during the course of execution of sale deed by the Tamil Nadu Housing Board, had executed various bogus sale deeds in favour of 23 persons including the Writ Petitioners, which is not valid in the eye of law. When the document was executed by impersonation, like the case on hand, as per Circular 67 issued by the Registering authority, the concerned Sub-Registrar has every right to retain the documents in question. Therefore, the alleged sale deed executed by the said Mohanasundaram in the capacity of President of Mela Anupanady Small Traders Association is null and void, as it is clear case of fraud by impersonation. It is pertinent to point out that the said Mohanasundaram was not at all elected as the President of the said Association at any point of time, much leas in the year 2004. As a matter of fact, the Tamil Nadu Housing Board had executed the sale deed dated 05.02.2010 in favour of the said Association represented by the third respondent as the President of the said Association. The third respondent has filed a criminal complaint against the Writ Petitioners and the same was registered in Crime No.8 of 2011 by the District Crime Branch, Madurai and on completion of investigation, charge sheet has been filed and the same was taken on file as c.c.No.4 of 2014 by the concerned Magistrate Court. Further, the third respondent has also filed a Civil suit in O.S.No.128 of 2011, wherein, an interlocutory application has been moved in I.A.No.460 of 2015 in O.S.No.128 of 2011 on the file of the District Munsif, Madurai Taluk for amendment seeking for a prayer to cancel the sale deeds in favour of the Writ Petitioners executed by the said Mohanasundaram, which is kept as a pending document by the first and the second respondents. Further, the Writ Petitioners as well as the said Mohanasundaram, as a party, have endorsed their signatures in the compromise deed dated 17.06.2013, accepting the third respondent as a President of the Association and as such, the Writ Petitioners cannot turn around and say that the third respondent is not the President of the said Association. Till today, the District Registrar has not accepted Form-VI and Form VII submitted by the said Mohanasundaram as President of the said Association. Hence, he prayed for the dismissal of the Writ Petitions.
16. Heard the submissions of the parties concerned and perused the materials available on record.
17. It is seen that the documents pertaining to the petitioners are kept pending on the file of the official respondents primarily on the ground that the third respondent has raised objections in releasing the sale deeds of the petitioners. It is further seen the said Mohanasundarm claims that he is the President of the Association, whereas, the third respondent claims that he is the President of the Association. According to the third respondent, the said Mohanasundaram is not at all the President of the Society in question, and therefore, he is not entitled to execute the sale deeds on behalf of the said Association. Due to the said factor, the official respondents could not proceed in the issue on hand.
17.1. Be that as it may, this Court is of the considered view that in a writ jurisdiction, this Court cannot conduct any roving enquiry as to who is the President of the Association on the date of the execution of the sale deeds in question. In such type of matters, the only course left open to the parties is to approach the Civil Court and work out their remedy in the manner known to law.
17.2. Furthermore, I find that the issue is already pending before the Civil Court in O.S.No.128 of 2011, on the file of the District Munsif, Madurai Taluk, where, the third respondent has also moved an interlocutory application with a prayer to cancel the sale deeds executed in favour of the Writ Petitioners by the said Mohanasundaram. Therefore, when the issue is already pending before the concerned civil Court, there cannot be two parallel proceedings with regard to the issue on hand. Though the third respondent has rightly instituted suit, he has not obtained any interim order in his favour so as to restrain the official respondents herein from releasing the documents in question. In the absence of the said interim order, the official respondents cannot refuse to release the documents.
18. In view of the above factual aspects, irrespective of the submissions made in the Writ Petitions, the following directions are issuedL- (I)At the outset, this Court is of the opinion that the Sub-Registrar cannot retain the document merely based on the objection of the third respondent. Hence, in the absence of any interim order by the c vil Court, I do not find any valid reason for the Registering authority to retain the document. Therefore, the Sub-Registrar is directed to release the documents in question to the Writ Petitioners within a period of four weeks from the date of receipt of a copy of this order.
(II)Secondly, the third respondent is at liberty to work out his remedy before the Civil forum as against the Writ Petitioners, in the manner known to law, if he so desires.
(III) Thirdly, it is made clear that the petitioner cannot take the release of the documents to their advantage in the civil suit instituted by the third respondent in O.S.No.128 of 2011 on the file of the District Munsif, Madurai Taluk. The Civil Court shall dispose of the said suit purely on merits and in accordance with law, without being influenced by the orders of this Court. The relief granted to the petitioners in these writ petitions is confined only to the relief sought for in these writ petitions and it is made clear that the directions given by this Court in these writ petitions shall not be used by the writ petitioners in some other proceedings to their advantage.
On the above terms and conditions, all the Writ Petitions are allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The District Registrar, Madurai (South) Mahal, Palace Road, Madurai-1.
2.The Joint Sub-Registrar No.1, Madurai (South), Palace Road, Madurai-1..