Telangana High Court
Mohd. Baktyaruddin vs Ediga Chandrasekhar Gowd 17 Ors. on 3 March, 2022
Author: Satish Chandra Sharma
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
WRIT APPEAL No.611 of 2017
JUDGMENT:(Per the Hon'ble the Chief Justice Satish Chandra Sharma) The present writ appeal is arising out of order dated 22.03.2017 passed in W.P.No.24073 of 2009.
Learned counsel for the parties has straight away drawn the attention of this Court to the judgment dated 07.04.2016 delivered in W.P.Nos.20683 of 2012 and 2192 of 2013.
The Division Bench of this Court in the aforesaid case has held that keeping in view the Registration Act, 1908 and the Andhra Pradesh Rules framed thereunder, unilateral execution of cancelling earlier registered document such as Development Agreement-cum-GPA is not permissible. Paragraphs 28 to 31 of the judgment read as under:
"28. As seen earlier, Section 17 of the Registration Act deals with the documents where registration is compulsory and Section 18 deals with the documents where registration is optional. Section 32A thereof provides that every document, whether its registration is compulsory or optional, shall be signed by every person such as the vendor as well as the purchaser or the parties on the first part and second part, shall also bear their finger-prints and photographs. Section 34 mandates that registering authority to hold an enquiry in respect of validity of the document presented for registration. Under clause (a) of sub-section (3) thereof registering authority is obliged to enquire before registration whether or not such document was executed by the persons by whom it purports to have been executed. A sale or any other document of similar nature is essentially an executed contract between 2 two parties on mutual agreed conditions. The question is, therefore, whether such agreement can be unilaterally rescinded, particularly, in the case of a sale deed or Development Agreement-cum-GPA for that matter. In this context, we may also refer to Section 62 of the Indian Contract Act, 1872. It provides the contracts which need not be performed. According to this provision, any novation, rescission and alteration of contract can be made by the parties i.e., only bilaterally. A deed of cancellation, in our opinion, amounts to rescission of contract and if the issue in question is viewed from that angle, in the light of the provisions of Section 62 of the Indian Contract Act, 1872, any rescission must be only bilateral. We agree with the view expressed by the Madras High Court in E.K. Kalyan v. Inspector General of Registration [9] . Having regard to the above provisions, in our opinion, a registered sale deed or any other document such as Development Agreement-cum-GPA, which creates right in favour of the party in the subject matter of document, if sought to be cancelled, registration of such deed must be at the instance of both the parties. In other words, even execution of a deed of cancellation of the registered document which created rights in favour of the other party in the subject-matter of the document, cannot be registered unilaterally but it should be bilateral. In any case, the document, which is compulsorily registerable, some restrictions, in our opinion, must be applied even for cancellation of such document as well. The Commissioner has, therefore, rightly issued the circular, restricting registration of a deed of cancellation of any document, such as Development Agreement-cum-GPA, at the instance of only one/first party to such document. We are of the considered opinion that in the absence of any provision specifically empowering registering authority to entertain a document of cancellation for registration, without signatures of both the parties, a deed of cancellation cannot be entertained and registered and that the impugned circular issued by the Inspector General is binding on all parties. Having so observed, we find no infirmity in the impugned circular issued by the Commissioner/Inspector General, in exercise of the powers of general superintendence contemplated by Section 69(1) of the Registration Act. By issuing the impugned circular, in exercise of the powers under sub-section (1) of Section 69 of the Registration Act, this very objective, in our opinion, sought to be achieved.
29. Thus, having regard to the law laid down by the Supreme Court and provisions of the Act, in our opinion, whenever registered documents such as Development Agreement-cum-GPA, is sought to be cancelled, execution and registration of such a document/deed must be at the instance of both the parties i.e., bilaterally and not unilaterally. If a deed of cancellation is allowed to be registered without the knowledge and consent of other party to the deed/document, 3 sought to be cancelled, such registration would cause violation to the principles of natural justice and lead to unnecessary litigation, emanating therefrom. In any case, as stated earlier, in the absence of any provision specifically empowering the Registrar to entertain a document of cancellation for registration without the signatures of both the parties to the document, the deed cannot be entertained. Moreover, if the Registrars are allowed to entertain a deed of cancellation for registration without signatures of both the parties to the document sought to be cancelled, such power would tantamount to conferring the power to decide disputed questions between the parties. No party to the document would ever approach for cancellation of registered document unilaterally unless there is a dispute with the other party in respect of the subject matter of the document.
30. In the result, we answer the question in the negative. In other words, we hold that registration and unilateral cancellation of documents such as Development Agreement- cum-General of Power of Attorney under the Registration Act is not permissible in law.
31. Registry is directed to place all the writ petitions before the appropriate bench for disposal in the light of the opinion expressed on the question referred to for our consideration."
In the light of the aforesaid judgment, the present writ appeal stands dismissed.
Miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.
________________________ SATISH CHANDRA SHARMA, CJ _______________________ ABHINAND KUMAR SHAVILI, J 03.03.2022 ES