Madras High Court
G.Anbumani vs G.Gopalarathinam on 16 April, 2024
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
WP.No.35302 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.04.2024
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
WP.No.35302 of 2019
and W.M.P.No.36107 of 2019 & 500 of 2024
1.G.Anbumani
2.D.Rajamanickam .. Petitioners
Versus
1.G.Gopalarathinam
2.G.Santhanam
3.K.Kalyani
4.The Sub Registrar
Neelankarai
Chennai – 600 041
5.The District Registrar (Administration)
Assistant Registrar of Registration Department
SIDCO Industrial Estate, Electronic Complex
Third Block, Second Floor
Guindy, Chennai – 600 032 .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records leading to passing
of the impugned order passed by the 6th respondent dated 17.10.2019 in
Na.Ka.No.979/E2/2019 and quash the same.
For Petitioner : M/s.Ramya
For Respondents : Mr.T.S.Vijaya Raghavan for R1 to R4
Mr.B.Vijay
Additional Government Pleader
Mr.T.S.Baskaran for R5 & R6
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This writ petition is filed challenging the Order passed by the sixth
respondent cancelling the General Power of Attorney dated 03.12.2004 and the
subsequent sale deed dated 18.03.2010.
2. The impugned order is passed mainly on the ground that there are
discrepancies in the documents and instead of referring the layout in the
General Power of Attorney, the same has not been shown in the General Power
of Attorney. Hence, the General Power of Attorney and the subsequent sale
deed were annulled by the sixth respondent on the ground that the documents
have been executed fraudulently.
3. The learned counsel for the respondents 1 to 4 vehemently submitted
that order passed by the sixth respondent is proper and the writ petitioners have
not appeared before the registering authorities despite the notice being sent to
them.
4. Heard both sides and perused the materials placed on record.
5. Once the registering authorities had cancelled the registered document
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holding that these documents are fraudulent transactions, this Court is of the
view that such order cannot be sustained in the eye of law.
6. It is relevant to point out that in W.P.No.29706 of 2022, I had an
occasion to deal with the power of Registrar in cancelling documents. Order in
the writ petition is as follows:
“... 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:
“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.”
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
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administrative and not quasi-judicial. The same is extracted
hereunder:
“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. 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.”
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:
“68. Power of Registration to superintend and control Sub
Registrars.
(1) every Sub Registrar perform the duties of his office under the
superintendence and control of the Registrar in whose district the
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office of such Sub Registrar is situate.
(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.”
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 Sub-Registar. 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
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.
7. The Division Bench of this Court in the case of N.
Ramayee v Sub-Registrar reported in (2020)6 CTC 697, wherein
it has held as follows:
“21.In Satya Pal Anand v. State of M.P., 2017 (1) CTC 414 (SC):
2016 (10) SCC 767, the Honourable Apex Court has held that the
role of Sub-Registrar (Registration) stands discharged, once the
document is registered. Power to cancel the registration is a
substantive matter.”
8. The said judgment has been confirmed by the Hon'ble
Supreme Court in SLP (Civil) 4844 of 2021. In view of the above
dictum laid by the Hon'ble Supreme Court in the case of Satya Pal
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Anand v. State of M.P., reported in (2016) 10 SCC 767 and the
Division Bench of this Court in the case of N. Ramayee v Sub-
Registrar reported in (2020)6 CTC 697, this Court is of the view
that unless substantive provisions is made in the statute merely on
the basis of circular orders, the cancellation of the registered
document cannot be done by the Registrar merely on the
complaints alleging fraudulent transactions etc.,
9. It is also brought to the notice of this Court that the
Circular No.67 dated 03.11.2011 was withdrawn by issuing
another circular dated 20.10.2017 in Letter No.41530/U1/2017.
Thereafter, another circular dated 08.11.2017 was issued by the
Inspector General of Registration, Chennai to cancel the
fraudulent registration. In the said circular, it was made clear that
the District Registrar cannot decide the title. The said circular
also says that summary procedure to be followed while
conducting enquiry and pass an order.
10. Subsequently, on 09.04.2018, 31.07.2018 and
09.11.2018, circulars were issued empowering the Registrar to
conduct an enquiry and make an entry in Book I, if the document
was found to be fraudulent.
11. It is relevant to note these circulars are mostly issued
under Section 68(2) of the Registration Act, 1908. As alredy held
that the powers conferred under Registration Act in Section 68(2)
is only superentindence and control over the subordinates. Having
such superentindence control, circular could not have been issued
to hold an enquiry particularly in respect of alleged fraudulent
transactions. It is easy for anyone to allege the transaction is a
fraudulent transaction. But fraud has to be proved in the manner
known to law. Fraudulent transaction and fraud have to be proved
in a manner known to law. Only transaction falls within the
category of fraud as defined under Section 17 of the Contract Act.
Such transaction could be held as result of fraud.
12. That apart various presumption of fact and law
declared to be relevant under Indian Evidence Act, 1872 has to be
taken note of. Therefore, without a proper trial particularly before
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the Civil Court merely on the basis of some allegations of
fraudulent transactions, a document cannot be annulled by the
District Registrar by mere so-called summary procedure. The
fraudulent transaction is never defined under the Registration Act,
only forged document is defined under Section 2(5-A). The forged
document shall have the same meaning assigned under 470 of
IPC, 1860. There is no definition of fraudulent transaction. The
word “fraudulently” is defined under IPC. A person is said to do
a thing fraudulently, if he does that thing with intent to defraud
but not otherwise.
13. The fraudulent transfer is defined under Section 53 of
the Transfer of Property Act, 1882, which reads as follows:
“53. Fraudulent transfer.—(1) Every transfer of immoveable
property made with intent to defeat or delay the creditors of the
transferor shall be voidable at the option of any creditor so
defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee
in good faith and for consideration.
Nothing in this sub-section shall affect any law for the time being
in force relating to insolvency.
A suit instituted by a creditor (which term includes a decree
-holder whether he has or has not applied for execution of his
decree) to avoid a transfer on the ground that it has been made
with intent to defeat or delay the creditors of the transferor, shall
be instituted on behalf of, or for the benefit of, all the creditors.
(2) Every transfer of immoveable property made without
consideration with intent to defraud a subsequent transferee shall
be voidable at the option of such transferee.
For the purposes of this sub-section, no transfer made without
consideration shall be deemed to have been made with intent to
defraud by reason only that a subsequent transfer for
consideration was made.”
14. The said fradulent transfer is also voidable, at the most,
such transfer has to be avoided within a period of limitation.
Therefore, merely on the circular orders, the Registrar of District
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Registrar cannot assume the jurisdiction of the Civil Court. The
word “fraud” is defined under Section 17 of the Contract Act,
which would read as follows:
“17. “Fraud” defined.—“Fraud” means and includes any of the
following acts committed by a party to a contract, or with his
connivance, or by his agent , with intent to deceive another party
thereto of his agent, or to induce him to enter into the contract:-
(1) the suggestion, as a fact, of that which is not true, by one who
does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or
belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares
to be fraudulent.”
15. Therefore, unless the documents fall within the ambit of
fraud, such document cannot be cancelled by mere complaint
before the Sub-Registrar. It is also be noted that the fraud at the
most renders the transaction voidable not void. Any such
document result of fraud must be challenged within a period of
Limiation Act. Now, the practice has been followed to annul the
document, several documents registered 20, 30 years back were
sought to be annulled and cancelled alleging that it has been
obtained fraudulently or that has been forged. It is relevant to
note that fraud and forgery or not the one and same. The word
'forgery' is defined under Section 463 of IPC, which reads as
follows:
“463. Forgery.—Whoever makes any false document or false
electronic record or part of a document or electronic record, with
intent to cause damage or injury], to the public or to any person,
or to support any claim or title, or to cause any person to part
with property, or to enter into any express or implied contract, or
with intent to commit fraud or that fraud may be committed,
commits forgery.”
https://www.mhc.tn.gov.in/judis 16. Thus, the essence of the offence of forgery is the making
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of a false document. As to what constitutes a false document is
explained in Section 464 IPC which reads as follows:
“A person is said to make a false document or false
electronicrecord:
First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a
document;
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the
authenticity of theelectronic signature, with the intention of
causing it to be believed that such document or part of a
document, electronicrecord or electronic signature was made,
signed, sealed, executed, transmitted or affixed by or by
theauthority of a person by whom or by whose authority he knows
that it was not made, signed, sealed,executed or affixed; or
Secondly.—Who without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document or
anelectronic record in any material part thereof, after it has been
made, executed or affixed with electronic signatureeither
byhimself or by any other person, whether such person be living
or dead at the time of such alteration; or
Thirdly.—Who dishonestly or fraudulently causes any person to
sign, seal, execute or alter a document or an electronicrecord or
to affix his electronic signature on any electronic record knowing
that such person by reason of unsoundness of mindor intoxication
cannot, or that by reason of deception practised upon him, he
does not know the contents of the document orelectronic record or
the nature of the alteration.”
17. The Hon'ble Supreme Court in the case of Mohd.
Ibrahim v. State of Bihar, reported in (2009) 8 SCC 751 has held
as under:
“There is a fundamental difference between a person executing a
sale deed claiming that the property conveyed is his property, and
a person executing a sale deed by impersonating the owner or
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falsely claiming to be authorised or empowered by the owner, to
execute the deed on owner's behalf. When a person executes a
document conveying a property describing it as his, there are two
possibilities. The first is that he bona fide believes that the
property actually belongs to him. The second is that he may be
dishonestly or fraudulently claiming it to be his even though he
knows that it is not his property. But to fall under first category of
“false documents”, it is not sufficient that a document has been
made or executed dishonestly or fraudulently. There is a further
requirement that it should have been made with the intention of
causing it to be believed that such document was made or
executed by, or by the authority of a person, by whom or by whose
authority he knows that it was not made or executed.
When a document is executed by a person claiming a property
which is not his, he is not claiming that he is someone else nor is
he claiming that he is authorised by someone else. Therefore,
execution of such document (purporting to convey some property
of which he is not the owner) is not execution of a false document
as defined under Section 464 of the Code. If what is executed is
not a false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.”
18. Therefore, from the above dictum it makes it clear that
unless the document in question comes within the category of a
false document as defined in Section 464 of the IPC, there cannot
be a case of forgery, and the same cannot be cancelled.
19. Similarly, the Hon'ble Supreme Court in the case of
Indian Bank v. Satyam Fibres (India) (P) Ltd., reported in (1996)
5 SCC 550, while considering the doctrine of fraud on the Court,
the Supreme Court has observed as under:
“30. Forgery and fraud are essentially matters of evidence which
could be proved as a fact by direct evidence or by inferences
drawn from proved facts.”
20. The power to make an enquiry with regard to any
document is available to the Registrar under Sections 73 & 74 of
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the Registration Act, 1908 to find out the document is executed.
Such power to conduct an enquiry and record evidence under
Section 74 is available only to determine (a) whether the
document has been executed; (b) whether the requirements of the
law for the time being in force have been complied with on the
part of the applicant or person presenting the document for
registration, as the case may be, to entitle the document to
registration. In other words, the Registrar can see whether the
document complies with the requirements of Section 34 or if it
suffers from any of the procedural infirmities in Section 19-22 or
is hit by any of the grounds in Section 22-A or 22-B of the Act.
21. Similarly, the Division Bench of this Court in the case
of Park View Enterprises v State Government of Tamil Nadu,
reported in AIR 1990 Mad 251 held that the Sub-Registrar
performs only executive functions under the Act. In other words,
he is not a quasi-judicial authority deciding a lis. This view has
also been upheld by the Hon'ble Supreme Court in the case of
Satya Pal Anand v. State of M.P., reported in (2016) 10 SCC 767.
Similarly, the Hon'ble Supreme Court in the case of Horil v.
Keshav, reported in (2012) 5 SCC 525, has held that the Revenue
Courts are neither equipped nor competent to effectively
adjudicate on allegations of fraud that have overtones of
criminality and the courts really skilled and experienced to try
such issues are the courts constituted under the Code of Civil
Procedure.
22. From the above discussions, this Court is of the view
that merely on the basis of allegations of fraudulent transactions,
the Registrars have no power to cancel any document. It is also
relevant to note that Section 22-A was introduced vide T.N
Amendment Act 2 of 2009 with effect from 20.10.2016
empowering the Registrar to refuse registration on certain
grounds. Section 22-A reads as follows:
“ 22-A. Refusal to register certain documents .—Notwithstanding
anything contained in this Act, the registering officer shall refuse
to register any of the following documents, namely:—
(1) instrument relating to the transfer of immovable properties by
way of sale, gift, mortgage, exchange or lease,—
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(i) belonging to the State Government or the local authority or
Chennai Metropolitan Development Authority established under
section 9-A of the Tamil Nadu Town and Country Planning Act,
1971;
(ii) belonging to, or given or endowed for the purpose of, any
religious institution to which the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 is applicable;
(iii) donated for Bhoodan Yagna and vested in the Tamil Nadu
State Bhoodan Yagna Board established under section 3 of the
Tamil Nadu Bhoodan Yagna Act, 1958; or
(iv) of Wakfs which are under the superintendence of the Tamil
Nadu Wakf Board established under the Wakf Act, 1995, unless a
sanction in this regard issued by the competent authority as
provided under the relevant Act or in the absence of any such
authority, an authority so authorised by the State Government for
this purpose, is produced before the registering officer;
(2) instrument relating to the transfer of ownership of lands
converted as house sites without the permission for development
of such land from planning authority concerned: Provided that the
house sites without such permission may be registered if it is
shown that the same house site has been previously registered as
house site.
Explanation I.—For the purpose of this section ‘local authority’
means,—
(i) any Municipal Corporation constituted under any law for the
time being in force; or
(ii) a Municipal Council constituted under the Tamil Nadu
District Municipalities Act, 1920 ; or
(iii) a Panchayat Union Council or a Village Panchayat
constituted under the Tamil Nadu Panchayats Act, 1994 ; or
(iv) any other Municipal Corporation, that may be constituted
under any law for the time being in force.
Explanation II.—For the purpose of this section ‘planning
authority’ means the authority constituted under section 11 of, and
includes the Chennai Metropolitan Development Authority
established under section 9-A of the Tamil Nadu Town and
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Country Planning Act, 1971;
(3) instrument relating to cancellation of sale deeds without the
consent of the person claiming under the said sale deed.”
23. On careful perusal of the above section makes it clear
that the scope of enquiry of the Registrar while making
registration is limited. The Sub-Registrar must have some
material to show that the lands belonged to the temple or wakf or
Government or there was no permission for development of such
land from planning authorities and the land has been coverted as
house site. If there is a serious dispute on the title to the land,
such questions cannot be decided by the Registrar at the stage of
registering a document since he is only conducting a limited
summary enquiry.
24. The Division Bench of this Court in the case of Sudha
Ravi Kumar v. Special Commissioner & Commissioner, Hindu
Religious and Charitable Endowments Department, reported in
2017 (3) CTC 135 (DB) has held as follows:
"7. A perusal of Section 22-A of the Act would make it crystal
clear that it is Mandatory on the part of the Registering Authority
to refuse to register any document of sale, transfer, gift, Mortgage,
exchange or lease in respect of any property belonging to or given
or endowed for the purpose of any Religious Institution governed
by TN HR & CE Act. But at the same time, in order to satisfy
himself that the property belongs to or given or endowed for the
purpose of any Religious Institution, he should have some
material before him which can be obtained by holding a Summary
Enquiry."
25. Similarly, the Division Bench of this Court in
W.A.Nos.260 & 261 of 2023 by order dated in 07.06.2023 in the
case of P. Jagannathan v Inspector General of Registration has
held that the power to cancel a document for violation of Section
22-A can be resorted to only if the title of the temple is admitted.
In other words, where the title of the temple is disputed parties
must necessarily be relegated to the civil court, and the Sub-
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Registrar cannot refuse to register the document on that ground
since the rights of parties will have to be decided only by the civil
court.
26. Further, the State of Tamil Nadu introduced the
Registration (T.N Second Amendment) Act (Act 41 of 2022) with
effect from 16.08.2022. The Act introduced Section 22-B into the
Registration Act and reads as follows:
“22-B. Refusal to register forged documents and other
documents prohibited by law.— Notwithstanding anything
contained in this Act, the registering officer shall refuse to register
the following documents, namely:—
(1) forged document;
(2) document relating to transaction, which is prohibited by any
Central Act or State Act for the time being in force;
(3) document relating to transfer of immovable property by way of
sale, gift, lease or otherwise, which is attached permanently or
provisionally by a competent authority under any Central Act or
State Act for the time being in force or any Court or Tribunal;
(4) any other document as the State Government may, by
notification, specify.”
27. Whether the power under Section 77-A would apply to
the documents registered before its introduction ie., from
16.08.2022 has been dealt with by a Division Bench of this Court
in Netvantage Technologies Pvt. Ltd v Inspector General of
Registration, reported in 2024 SCC OnLine Mad 567, wherein it
is held as follows:
“In respect of other documents registered prior to the amendment,
one has to understand that those documents are to be dealt in
accordance with the law prevailing at the time of registration by
approaching the Civil Court of law. When all those documents
registered prior to the amendment of the year 2022 are subjected
to Section 77-A of the Act, then this Court is afraid that an
anomalous situation would be created by approaching the District
Registrar for the purpose of adjudication of disputed issues with
reference to those documents registered several years back. The
amendment effected from 16.08.2022 has not intended to do so
nor the provision expressly provides any such retrospective
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application. Prior to amendment, Section 22-A and Section 22-B
was not in force. Thus, Section 77-A cannot have retrospective
effect. In other words, Section 77-A must be read in conjunction
with Section 22-A and Section 22-B of the Act. Insertion of all
these three Sections are to be understood holistically to avoid any
inorderliness.”
28. In view of the above judgment of the Division Bench of
this Court, Section 77-A cannot be applied retrospectively and can
be applied only after the same is brought as a statute.
29. Therefore, this Court is of the view that unless the
forgery is conclusively established merely on the basis of
allegations of forgery, as a matter of right, a document cannot be
cancelled. The forgery and fraud are essentially a matter of
evidence which shall be proved as per law. Therefore, unless there
is a strong evidence of impersonation or forgery, i.e., a creation of
false record as defined under the Indian Penal Code, merely on
the basis of allegations such documents cannot be cancelled.
Section 22-B relates to forged instrument not a fraudulent
transaction.”
7. At this stage, the learned counsel for the respondents 1 to 4 submitted
that civil suits are pending between the parties. Such view of the matter, it is
for the parties to establish their substantial rights in the civil suit in the manner
known to law. The order of this Court in this writ petition will not stand in the
way of Civil Court to decide the matter on its own merits.
8. Accordingly, the impugned order passed by the sixth respondent in
Na.Ka.No.979/E2/2019 dated 17.10.2019 is set aside and this writ petition
stands allowed. Consequently, connected miscellaneous petitions are closed.
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No costs.
16.04.2024
dhk
Index :Yes/No
Internet :Yes/No
Neutral Citation : Yes/No
To,
1.The Sub Registrar
Neelankarai
Chennai – 600 041
2.The District Registrar (Administration)
Assistant Registrar of Registration Department
SIDCO Industrial Estate, Electronic Complex
Third Block, Second Floor
Guindy, Chennai – 600 032
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N. SATHISH KUMAR, J.
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