Madras High Court
R.Ramasubbu vs The Registrar Of Co-Operative ... on 18 March, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/03/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL W.P.(MD)No.5417 of 2008 R.Ramasubbu .. Petitioner V. 1.The Registrar of Co-operative Societies, (Housing) No.22, 4th Main Road, Gandhi Nagar, Adayar, Chennai - 20. 2.The Deputy Registrar, Co-operative Societies, (Housing) Virudhunagar. 3.The Special Officer, MDA HSC-45, Tamil Nadu Government Officials Co-operative House Site Societies Ltd., S.K.M. Building, Sekkalai Street, Karaikudi. 4.K.R.Subbiah .. Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the records relating to the order passed by the 1st Respondent in his proceedings Na.Ka.No.8457/2007/rg 1 dated 28.04.2008 and quash the same as illegal and consequentially to direct the respondents 3 and 4 to hand over the possession of the plot bearing Survey No.234/2, plot No.B207, Kalanivasal Village, Karaikudi Taluk, Sivagangai District, sold to Petitioner by the 3rd respondent society under the Sale Deed dated 07.03.1986 registered as document No.462 of 1986 in the office of the Joint Sub-Registrar II, Karaikudi. !For Petitioner ... M/s.M.Ajmal Khan ^For Respondents 1 and 2 ... Mr.S.C.Herold Singh, G.A. For 3rd Respondent ... Mr.Pala Ramasamy For 4th Respondent ... Mr.R.Sundar Srinivasan :ORDER
The Petitioner has filed the present Writ Petition seeking the relief of Writ of Certiorarified Mandamus in calling for the records pertaining to the order passed by the 1st Respondent/Registrar of Co-operative Societies, (Housing), Chennai in proceedings Na.Ka.No.8457 /2007/rg 1 dated 28.04.2008 and to quash the same as an illegal one. Further, the Petitioner has also sought for passing of an order by this Court in directing the 3rd & 4th Respondents to hand over the possession of the plot bearing Survey No.234/2, plot No.B207, Kalanivasal Village, Karaikudi Taluk, Sivagangai District, sold to the Petitioner by the 3rd Respondent Society under the Sale Deed dated 07.03.1986 registered in document No.462 of 1986 in the office of the Joint Sub-Registrar II, Karaikudi.
2.The Petitioner became the Member of the 3rd Respondent/Co-operative House Site Societies Limited. His membership No. is 97. The said society purchased the land and converted them into house plots and offered to sell the same to its members who do not own any house of their own.
3.The Petitioner was allotted the plot bearing No.B207 by the 3rd Respondent/Society on 23.06.1985 and executed a registered Sale Deed dated 07.03.1986 for a valuable consideration. On the date of sale itself, he was put in possession of the property. At that point of time, he served as special temporary co-operative Sub-Registrar in the office of Regional Deputy Director Audit Board for Milk Co-operative, Madurai.
4.According to the Petitioner, after purchasing the plot, he obtained a planning permit for construction of a house on 23.12.1987 in the Panchayat Union Office, Sakkottai. He obtained sanction for House Building as per order of Additional Registrar (credit) in No.74388/86 DA2 dated 21.04.1988. He commenced excavation work and laid foundation at a cost of Rs.30,000/-. He could not continue the construction work because of the fact that he was transferred to Madurai and he desired to complete the same as soon as he returned to Karaikudi. When he visited the site during the first week of July 1995, he found that the 4th Respondent was constructing a house. Thereupon, he enquired about the same with the 3rd Respondent/ Society and was informed that the Sale Deed registered in his favour was cancelled because he had not completed the construction as per conditions mentioned in the Sale Deed dated 07.03.1986. Therefore that the said plot was re-allotted to the 4th Respondent.
5.The plea of the Petitioner is that the 3rd Respondent/Society had not issued any notice before cancelling the Sale Deed executed in his favour. Moreover, the 3rd Respondent/Society as per the recitals of the Sale Deed dated 07.03.1986 had no right to re-allot the property to anyone without any notice or hearing him. Also, there was no clause in the Sale Deed dated 07.03.1986 to the effect that if construction was not completed within two years, the Society could cancel the Sale Deed and re-allot the same to any person.
6.The Petitioner instituted a civil suit in O.S.No.57 of 1996 on the file of District Munsif Court, Karaikudi and the said suit was dismissed on the basis that the said dispute can be raised before the 2nd Respondent/Deputy Registrar, Co-operative Societies (Housing), Virudhunagar as per Tamil Nadu Co-operative Societies Act. However, when the matter was taken up on appeal in A.S.No.49 of 1999, the same was confirmed by the learned Sub Judge, Devakottai. Consequently, he raised a dispute in ARC.No.242/02-03 before the 2nd Respondent as per Section 90 of the Tamil Nadu Co-operative Societies Act. The 2nd Respondent passed an award on 29.08.2007 declaring that the cancellation deed dated 03.05.1994 and the Sale Deed made in favour of the 4th Respondent dated 23.05.1994 are invalid. The 2nd Respondent, came to the right conclusion that the 3rd Respondent/ Society has not entitled to cancel the allotment, if the allottee has not completed construction within a period of two years inasmuch as there is no penal provision in the Sale Deed dated 07.03.1986 for such a cancellation.
7.The 4th Respondent filed a Revision Petition No.8457 of 2007 aggrieved against the award of the 2nd Respondent dated 29.08.2007 before the 1st Respondent as per Section 153 of the Tamil Nadu Co-operative Societies Act. The 1st Respondent passed the impugned order in proceedings No.Na.Ka.No.8457/2007/rg 1dated 28.04.2008 allowing the Revision Petition filed by the 4th Respondent and set aside the award of the 2nd Respondent in ARC.No.242/02-03.
8.The Learned Counsel for the Petitioner urges before this Court that the order passed by the 1st Respondent dated 28.04.2008 is arbitrary and an illegal one.
9.The Learned Counsel for the Petitioner submits that once the Sale Deed is executed and registered as per Section 17 of the Indian Registration Act, there is no scope for unilaterally cancelling the Sale Deed. In fact, a Sale Deed can be set aside only by a competent Civil Court in the manner known to law. But, these aspects of the matter have not been adverted to by the 1st Respondent in a proper perspective which has resulted in miscarriage of justice.
10.It is the further contention of the Learned Counsel for the Petitioner that the Petitioner has obtained the planning permit and started the construction of a house as early as on 23.12.1987 well within the prescribed period of two years and as such, he has fulfilled the conditions mentioned in the Sale Deed dated 07.03.1986, but, these have not been appreciated by the 1st Respondent in a proper manner.
11.According to the Learned Counsel for the Petitioner, the 1st Respondent has not taken into account of the fact that notice was not served to the Petitioner before the cancellation of Sale Deed dated 07.03.1986 and as such, there has been a violation of principles of natural justice.
12.Advancing his arguments, the Learned Counsel for the Petitioner takes a plea that the 3rd Respondent deliberately sent the notice dated 01.09.1993 as regards the proposed cancellation of Sale Deed dated 07.03.1986 to the Petitioner to an incorrect address in order to favour the 4th Respondent, although the correct address of the Petitioner was mentioned in the Sale Deed dated 07.03.1986.
13.The Learned Counsel for the Petitioner submits that the 3rd Respondent/Special Officer of the Society sent the cancellation deed dated 04.05.1994 to the correct address of the Petitioner which clearly indicates his malafide intention.
14.Apart from the above, it is the contention of the Learned Counsel for the Petitioner that there is no condition specified in the Sale Deed dated 07.03.1986 in regard to the resumption of land if an allottee had not completed the construction within the two years prescribed period.
15.Lastly, the Learned Counsel for the Petitioner projects an argument that as per Section 54 of the Transfer of Property Act, 1882, the 3rd Respondent/Society has no right whatsoever in respect of the transferred immovable property and therefore, the Special Officer/3rd Respondent Society has no power to re-allot the same to the 4th Respondent and in any event, the 4th Respondent is not a Bona fide purchaser of the property.
16.The Learned Counsel for the 3rd Respondent (Special Officer of the Co- operative House Site Societies Limited) submits that the Petitioner is not in possession of the property in the subject matter in issue after the receipt of Sale Deed and it is not true to state that no notice or intimation was served on the Petitioner before cancellation of the Sale Deed dated 07.03.1986.
17.It is the contention of the Learned Counsel for the 3rd Respondent/Society that notices were served on the Petitioner and also that general publications were effected as regards the cancellation of Sale Deed. Also, the stand of the 3rd Respondent is that in the Sale Deed it is clearly mentioned that all deviation from the clause mentioned in the Sale Deed is liable for cancellation of Sale Deed.
18.The Learned Counsel for the 3rd Respondent brings it to the notice of this Court that a general publication in Tamil Newspaper 'Daily Thanthi' was made on 11.04.1994 and only after following the due procedure the property in issue was re-allotted to the 4th Respondent and the contra plea of the Petitioner that there was violation of principles of natural justice is to be rejected.
19.The Learned Counsel for the 3rd Respondent takes a stand that the Rules and Bye laws of the Society clearly point out that if any member of the Society does not complete the construction within two years from the date of Sale Deed, then, the Society has every right to cancel the Sale Deed and the Petitioner being a member of the 3rd Respondent/Society is bound by the said rules and Bye laws of the society. As such, there is no malafide intention on the part of the 3rd Respondent/Society in re-allocating the property to the 4th Respondent.
20.The Learned Counsel for the 4th Respondent contends that the Petitioner had suppressed about the allotment order pursuant to which the Sale Deed dated 07.03.1986 came to be executed in his favour and in fact, in the Sale Deed, there was a clause that construction should be completed within two years from the date of allotment and that the Sale Deed itself specifies that the sale is subject to the terms and conditions of assignment stipulated by the Government and the Bye laws of the Society.
21.The Learned Counsel for the 4th Respondent submits that the Petitioner had not commenced construction within two years as per terms and conditions of the Sale Deed. Further, the cancellation was made as per rules and after issuance of individual notice and by effecting publication in Newspapers. Subsequently, on 23.05.1994 the property in issue was allotted to him and the Sale Deed had been executed in his favour and further, he had constructed a house in the said property. Moreover, the Sale Deed in favour of the 4th Respondent was executed on 23.05.1994. However, the Sale Deed dated 07.03.1986 executed in favour of the Petitioner was cancelled on 03.05.1994.
22.The Learned Counsel for the 4th Respondent brings it to the notice of this Court that the notice regarding cancellation of Sale Deed was sent to the Petitioner at the address furnished by him and the same was returned as unserved. Indeed, the Petitioner failed to intimate the factum of change of his residential address to the Society and therefore, the Petitioner could not take advantage of his own wrong. As a matter of fact, public notices were issued in Daily Thanthi on 07.04.1993 and 11.04.1994 respectively.
23.The core contention advanced on behalf of the 4th Respondent is that the 4th Respondent is a Bona fide purchaser for value and he also being a Government Servant had retired from service and constructed a residential house by investing all his savings in the property and also borrowed money from L.I.C. and if the Sale Deed in his favour was to be cancelled and re-allotted to the Petitioner, then, it would cause serious inconvenience and prejudice to him. Also that he had put up the construction in the plot and had been in possession of the same.
24.The Learned Counsel for the Petitioner cites the Full Bench decision of this Court in M/s.Latif Estate Line India Limited rep. By its Managing Director V. Mrs.Hadeeja Ammal & others CDJ 2011 MHC 747 wherein at paragraph 59 it is observed as follows:
"(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration.
(ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained with the transferor.
(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of Sale Deed on the ground inter alia of fraud or any other valid reasons."
25.He also cites the decision of this Court in G.D.Subramaniam V. The Sub- Registrar, Office of Konur Sub-Registrar, Sidco Nagar, Chennai-49 and 3 others 2009 (1) CTC 709 at page 724 wherein at paragraph 26 it is held as follows:
"After the Full Bench judgment of the Andhra Pradesh High Court in Yanala Malleshwari and others v. Ananthula Sayamma and others, 2007 (1) CTC 97, the Andhra Pradesh Government introduced Rule 26(k) of the Andhra Pradesh Registration Rules by means of an amendment dated 29.11.2006, which reads as follows:-
(i) The Registering Officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyance on sale before him that such cancellation deeds are executed by all executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual consent or orders of a competent Civil or High Court of State or Central Government annulling the transaction contained 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 registrable by any provision of law.
(ii) Save in the manner provided for above, no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration.
The said rule 26 (k) was challenged before the Andhra Pradesh High Court in Kaitha Narasimha v. The State Government of A.P., rep. by its Principal Secretary, (W.P.No.3744/2007) by contending that the same is ultra vires of the provisions of the Registration Act, 1908 and is contrary to the judgment of the Full Bench in Yanala Malleshwari and others v. Ananthula Sayamma and others, 2007 (1) CTC 97. The Division Bench of the Andhra Pradesh High Court,by order dated 13.3.2007, while upholding the said Rule has held as follows:-
"In our opinion, the impugned rule does not in any manner violate the ratio of the majority judgment of the Full Bench. Rather, as mentioned above, it is a statutory embodiment of one of the rules of natural justice and is intended to curtail unnecessary litigation emanating from the ex parte registration of cancellation deeds."
As indicated in the above judgment, the principles of natural justice are also to be adhered to by the Registering Officer while dealing with a deed of cancellation of sale. If a unilateral cancellation deed is allowed to be registered, without the knowledge and consent of the other party to the earlier contract, as held by the Division Bench of the Andhra Pradesh High Court, such registration would cause violence to the principles of natural justice and lead to unnecessary litigations emanating therefrom."
26.He also invites the attention of this Court to the Division Bench decision of this Court in A.S.Elangode V. A.Palanichamy and 3 others 2009 (4) CTC 627 wherein it is held as follows:
"Section 17 of the Act deals with documents where registration is compulsory and Section 18 deals with the documents where registration is optional. A reading of Section 17(b) shows that a deed of cancellation of sale falls within the purview of that Section, since such document declares no right and title of immovable property. As the said document is compulsorily registrable, some restrictions must be applied for cancellation of such document as well. As indicated in the above judgment, the Principals of Natural Justice are also to be adhered to by the Registering Officer while dealing with a deed of cancellation of sale. If a unilateral cancellation deed is allowed to be registered, without the knowledge and consent of the other party to the earlier contract, as held by the Division Bench of the Andhra Pradesh High Court, such registration would cause violence to the Principles of Natural Justice and lead to unnecessary litigation emanating therefrom.
Further, the Division Bench of this Court in Writ Appeal No.194 of 2009, by judgment dated 1.4.2009, had in fact set aside such a document of cancellation which was registered. The Said judgment of the Division Bench was subsequently followed by another Division Bench in Writ Appeal No.789 of 2009 dated 23.6.2009. We are entirely in agreement with those Division Bench judgments.
Coming to the facts of this case, as already stated, the Writ Petition questioning the unilateral registration of the cancellation deeds was allowed on the ground that the registration has been done by the Registrar without notice to the purchaser. While setting aside the registration, the learned Single Judge gave liberty to the Registrar to proceed further with the registration after due notice to the writ petitioner, namely, the purchaser. However, the Review Application was allowed on the ground that the pendency of the Suit relating to the title and possession was not brought to the notice of the Court. The learned Judge had also relied upon the Full Bench judgment of the Andhra Pradesh High Court in Yanala Malleshwari and others V. Ananthula Sayamma and others, 2007 (1) CTC 97 (F.B) (A.P.). In view of our finding that the said Full Bench judgment cannot be pressed into service for the reasons stated in this order and the pendency of the Suit does not preclude the Court from considering the authority of the Registrar to register the deeds of cancellation of the earlier deeds of conveyance on sale unilaterally, the order dated 10.09.2008 passed in the Writ Petition No.37686 of 2007 should alone be sustained. We also find that there was no error of law or any reason whatsoever for review of the said order and as a necessary corollary, the order in the Review Application should be set aside. We also make it clear that the pending Suit between the parties shall be dealt with on its own merits."
27.However, the Learned Counsel for the 4th Respondent cites the decision of Hon'ble Supreme Court in Indu Kakkar V. Haryana State Industrial Development Corporation Limited and another (1999) 2 SCC 37 wherein it is held that 'the conditional transfer of allotment of an industrial site on condition that the allottee shall establish industry thereon within a specified period failing which the plot shall be resumed is a valid and binding one.'
28.He also cites the decision of Hon'ble Supreme Court in Surya Dev Rai V. Ram Chander Rai and others (2003) 6 Supreme Court Cases 675 at page 694 to 696 wherein paragraph 38 it is held as follows:
"Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
29.He also cites the Judgment of this Court dated 27.09.2002 in S.A.No.790 of 1992 wherein at paragraph 9 to 11, it is held hereunder:
"9.The short question arises for consideration is whether the cancellation of the allotment/Sale Deed in favour of the first respondent is legal and valid in the absence of any bye law, empowering the second respondent to that effect on the date of cancellation order?
10.This Court carefully considered the contentions of both the counsel. Of course generally the bye laws regulate the business of the co-operative societies. Even in the absence of any bye law, empowering the second respondent to cancel the allotment/Sale Deed in favour of any of the allottee/purchaser, when the allotment/Sale Deed specifically imposed certain conditions between the parties, such conditions are to be enforced. Such conditions have no relevance to the existing bye laws. The purchaser/allottee got the allotment of the site as well as the Sale Deed only on the basis of the conditions imposed therein and not with regard to any terms of the existing by laws. When the conditions have been imposed in the Sale Deed/allotment order, it is for the allottee to carry out such conditions, failing which the allottee has to face the consequences which being the cancellation of the allotment.
11.In this case, what the second respondent has done is only the enforcement of the condition incorporated in the allotment proceeding/ Sale Deed for which the first respondent had the full knowledge and a consenting party. In such circumstances, this Court is unable to accept the view taken by the lower appellate court."
30.The Learned Counsel for the 4th Respondent cites the decision of Hon'ble Supreme Court in Mohd Shahnawaz Akhtar and another V. 1st ADJ Varanasi and others Judgment Today 2002 (8) SC 69 wherein it is held as follows:
"The High Court has transgressed the limits of the jurisdiction under Article 226 of the Constitution of India by purporting to re-appreciate the evidence and coming to its own conclusion. The High Court has nowhere stated or concluded that the lower courts had committed an error of jurisdiction or that they had acted illegally and improperly. Further the High Court failed to notice that a case of casual licence was not pleaded or proved by respondent No.4. Therefore, it was not open to the High Court to make out a new case on behalf of the party in its writ jurisdiction under Article 226 of the Constitution."
31.It is to be noted that the object and purpose of the registration as per Section 17 of the Registration Act, 1908 is to provide information to persons, who may deal with the property, as to the nature and extent of the rights which individuals may have affecting that property. To put it differently, it is to enable persons to find out whether any particular piece of property, with which they may be concerned, has been made subject to some particular legal obligation. Also, by registration, one is to give solemnity of form and legal importance to certain classes of documents by directing that they shall be registered. The other aim is to perpetuate documents which may afterwards be of legal importance. The general purpose is to place on record somewhere, where individuals may see the record and enquire, what the particulars are and as far as land is concerned, what obligations exist in regard to it. The object of this is to prevent fraud as per decision Bharat Indu V. Hakim Mohamand Hamid Ali Khan AIR 1921 Privy Council. Ordinarily, in our country registration of a compulsorily registrable document is notice by itself, as opined by this Court.
32.As per Section 49 of the Registration Act, 1908 no document which requires compulsory registration either under Section 17 of that Act or under any provision of the Transfer of Property Act, 1882 any immovable property comprised therein or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered etc.
33.In the instant case on hand, a perusal of the Sale Deed dated 07.03.1986 executed by the 3rd Respondent/Society to and in favour of the Petitioner shows that as per Recital No.3 'the purchaser shall not keep the said plot vacant indefinitely and the purchaser shall commence construction of a building for which purpose the said plot is allotted within two years from this day.'
34.Clause 8 of the Sale Deed dated 07.03.1986 in favour of the Petitioner speaks as follows:
"AND WHEREAS in conformity with the orders of the Government regarding the procedure for allotment, Plot No.207 more fully described in the schedule here under having an approximate extent of cents. 6.92 hereinafter referred to as 'the said plot' has been allotted to the Purchaser as a result of the lots drawn."
35.Also, in the said Sale Deed, there is a Clause No.9 which runs as follows:
"AND WHEREAS the allotment is subject to the terms and conditions of assignment stipulated by the Government in Government orders referred to above and the by- laws of the said Society as well as the conditions imposed by the Senior Deputy Director of Town & Country Planning, Sivaganga."
36.The bye-law No.38 of the 3rd Respondent/Society relating to 'Allotment of House Sites' are as follows:
"The Society shall collect the value of the house sites from the members who occupy them in such instalments as may be determined by the Board and shall remit the hire amounts as so collected from the members towards the repayment of the Government loans borrowed for the purpose.
(1)Every member shall at the time of admission to the society specify the class of house sites proposed to acquire through hire purchase from the society and execute an agreement to that effect to the society undertaking in addition to indemnify the society to the extent of t he loans that may be sustained .. account of the member not keeping to the contract.
(2)He shall have to take fully paid up shares in the society or not less than over one fifth of the value ..... of the house sites he choses to hire purchase .....
(3)The member shall agree to pay the hire purchase money monthly instalments with such period as may be prescribed by the Board not exceeding in any case in 15 years. The hire purchase instalments will be calculated on the cost of the site together with interest not exceeding on percent over the rate to which the society borrowed the loan from the Government. .. is however, no objection to a member paying the balance a few instalments or even in one lump sum. If the entire amount due under the hire purchase is paid, the society shall execute a Sale Deed in his favour conveying the site to him. (4)If a member who took a House site on hire purchase system it has not paid its value in part or in full received the hire purchase contract or failing to keep up the terms of the contract or commits default in the payment of the instalments, .... rates, taxes etc. or in respect of any other terms of the hire purchase contract or otherwise he shall be evicted from the care and such evicted member shall not be entitled to any refund of the instalments he had paid to the Society under the hire purchase system which shall be forfeited to the society. His share capital may be refunded to him in accordance with the bye-law No.9.
(5)The agreement to hire purchase a house sites shall also specify the terms and conditions which may be prescribed by the rules framed by the Boards relating to the lease granted."
37.The bye-law No.39(6) of the 3rd Respondent/Society reads hereunder:
"Every member who has been allotted a plot commence construction of a building thereon within a period of two years from the date of allotment failing which the society shall be competent to presume the site and evict the member from it. Every member shall retain possession of the site with a building thereon for a period of 10 years from the date of allotment. It shall be competent to the Board to permit the transfer the property after this period with the permission of the Registrar. Provided that no transfer of site without any building will be permitted. The conveyance deed executed by the society to the member should take into account the provisions of the bylaws."
.. months he shall be liable for eviction from his tenancy under the bye-law 39
(iv) above."
38.It transpires from the Sale Deed dated 23.05.1994 executed by the 3rd Respondent in favour of the 4th Respondent, there is a clause which reads hereunder:
"And whereas the allotment is subject to the terms and conditions of a assignment stipulated by the Government in Government Orders preferred to above and the by laws of the said society as well as the conditions imposed by the senior Deputy Director of Town & Country Planning, Sivaganga."
39.The 2nd Respondent, in its award in ARC.No.242/02-03 dated 29.08.2007, has, among other things, held that 'the 3rd Respondent/ Society before cancellation of the Sale Deed dated 07.03.1986 and passing of a revised order it has not taken much interest and further, the Sale Deed dated 07.03.1986 in favour of the Petitioner cancelled on 03.05.1994 and subsequently, the Society executing a Sale Deed dated 23.05.1994 in favour of the 4th Respondent is not a legally valid one.
40.The Revision Petition No.8457 of 2007 filed by the 4th Respondent has been allowed on 28.04.2008 by the 1st Respondent/ Registrar of Co-operative Societies (Housing), wherein the award passed by the 2nd Respondent/Deputy Registrar of Co-operaive Societies (Housing), Virudhunagar in ARC.No.242/02-03 dated 29.08.2007 has been set aside and that the 3rd Respondent/Special Officer of the Society has been directed to return the amount paid by the Writ Petitioner together with interest from the date of cancellation of Sale Deed by the Society till date of realisation.
41.A scrutiny of the Tamil Newspaper Publication (Dhinathanthi) dated 11.04.1994 shows that the Writ Petitioner and 14 others have been finally informed that inspite of sufficient time granted to them for construction of houses on the lands and also that registered notices with acknowledgement dues have been sent from them, no reply have been received and also they have not commenced the construction and therefore, through this notice finally they have been informed that from 20.04.1994 the Society will take back the lands allotted to them. That apart, the Petitioner and 14 others/their legal heirs have also been informed that they can claim the site cost and share amounts within 15 days from the date of this notice dated 11.04.1994 with necessary proof thereto. Therefore, it is quite clear that notice in Tamil Daily Dhinathanthi dated 11.04.1994 has been given stating that since the members of the society have not commenced the building construction in the allotment of lands. The society will take back the lands from 20.04.1994 and as such, the contra plea taken by the Petitioner that no notice has been given in respect of society taking over the land is not a correct one, as opined by this Court.
42.The Writ Petitioner, in his deposition, in O.S.No.57 of 1996 on the file of the learned District Munsif-cum-Judicial Magistrate Court, Karaikudi, has deposed as P.W.1 that at the time when site/land has been allotted to him, he has been serving at Karaikudi and also added that at the time when site/land has been allotted to him, he has served at Madurai and at the time when the land has been sold in his favour he has been residing at Devakottai. Further, he has also stated that his office has been at Madurai.
43.The evidence of Petitioner as P.W.1 in O.S.No.57 of 1996 [on the file of District Munsif-cum-Judicial Magistrate Court, Karaikudi] is to the effect that he has dug a pit for the purpose of raising construction after a lapse of 1 " th year viz., after obtaining a Sale Deed in his favour and further added that he has dug a pit during February 1998 and after dugging a pit, he has laid a foundation and his foundation is not according to the plan submitted by him.
44.Also, it is the evidence of Petitioner as P.W.1 (in O.S.No.57 of 1996) that from the year 1980 till the year 1983 he has worked at Devakottai and at that time when the land has been allotted to him, he served at Devakottai and during the year 1984 he has gone to Madurai for the purpose of work and from the 1984 to 1985 he has been at Madurai continuously and later he has been transferred to Trichy.
45.It is not out of place for this Court to point out that definition clause as per Section 3 of the Transfer of Property Act, 1882 defines the term 'a person is said to have notice' as of a fact when he actually know said fact, or when but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The explanation as mentioned thereunder clearly makes the situation to the effect that the said term takes in all such knowledge which would have been well within its know of.
46.In a legal's parlance, the Notice can be described as an information relating to a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else presumed by law to have been acquired by him, which information is considered as equivalent to knowledge in its legal consequences. As such, the notice is the making something known, of what a man was or might be ignorant of before.
47.This Court worth recalls the decision M.Ramakrishna Reddy V. Sub- Registrar, Bangalore and another AIR 2000 Karnataka 46 wherein it is held as follows:
"Before registration, the Registering Officer will peruse the document to be registered and supporting documents (like tax paid receipts, revenue register extracts and even copies of earlier title deeds). But such incidental examination is not with the purpose of ascertaining or verifying the title of the executant, but only to ensure that there is no violation of Section 22-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. If the Registering Officer is not empowered to decide on question of title, it follows that he cannot decide whether a document which is registered is executed by a person having title as recited in the instrument. Therefore, he has no power or authority to modify or delete any entries made in Book I or in the Indexes relating to Book I, by holding an enquiry relating to the validity of the document. Consequently, he cannot delete or modify any entry made in an Encumbrance Certificate (except where it may relate to a clerical error)."
48.Also this Court aptly points out the decision in Lachhman Dass V. Jagat Ram and Others (2007) 10 SCC 448 at page 450 wherein it is held that 'The execution of a registered deed of sale shall also be treated as a Notice in terms of Section 3 of the Transfer of Property Act, 1882'.
49.The object of registration of delivery of possession is to publish to the world that such a document has been executed. In other words, it is the notice to the world as per decision Sohan Lal V. Mohan Lal AIR 1928 Allahabad
726.
50.The term 'Exchange' involves a transfer of property as per decision Ram Kristo Mandal and another V. Dhankristo Mandal AIR 1969 Supreme Court 204.
51.Transfer is known by right which it confers and not by name labelled by the party as per decision Gopal Sahu V. Nand Kumar and Singh 1930 Oudh 300.
52.In Sale, the delivery of possession is not necessary as per decision Pradyaman Prasad Singh V. Mahadeo Singh and others AIR (37) 1950 Patna 85.
53.A sale is complete on execution and registration. The attestation is indispensable one, as opined by this Court.
54.In the decision of Hon'ble Supreme Court in Commissioner of Income Tax V. M/s. Motors and General Stores Private Limited AIR 1968 Supreme Court 200, it is held as follows:
"In the absence of any definition in the T.P. Act, the word 'price' used in Sec. 54, T.P. Act must be construed in the same sense in which it is used in Section 4 read with Section 2(10), Sale of Goods Act. AIR 1922 Mad 311 (FB), Ref. to. The presence of money consideration is therefore an essential element in a transaction of sale. If the consideration is not money but some other valuable consideration it may be an exchange or barter but not a sale. Both under the Sale of Goods Act and the Transfer of Property Act, sale is a transfer of property in the goods or of the ownership in immovable property for a money consideration. But in exchange there is a reciprocated transfer of interest in the immovable property, the corresponding transfer of interest in the movable property being denoted by the word 'barter'. The difference between a sale and an exchange is this, that in the former the price is paid in money, whilst in the latter it is paid in goods by way of barter."
Also, in the aforesaid decision, it is observed as follows:
"In pursuance of an agreement to sell a Cinema house with all its equipments and fittings as a going concern for a consideration of Rs.1,20,000, the assessee company executed a deed called 'the exchange deed' in favour of the vendee and consideration for the same was received by the assessee Company in the shape of transfer of 5 percent tax-free cumulative preference shares held by the vendee. The deed recited separate valuations for the immovable property, movable property and the goodwill of the business. The question for decision was whether the transaction in question was a sale within the meaning of the second proviso to S.10(2)(vii), Income Tax Act so that the amount by which the written down value exceeded the amount for which the assets were actually sold could be included in the taxable profits of the assessee."
55.The Court of law has the jurisdiction to declare a document to be void or even cancel a document. However, under no circumstances an individual claiming to be the owner of a property or holder of a property can require the Revenue Authority to cancel the registration of a document or delete or remove the entry made in the Record of Index.
56.One cannot brush aside an important fact that Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 speaks of 'Suits for cancellation of Decrees or Documents' etc. As a matter of fact, a suit for cancellation of a Document or Decree is to be valued at the amount or the value of the property for which the document has been executed or a Decree has been passed thereto.
57.In the decision Koka Adinarayana Rao Naidu V. Koka Kothandaramayya Naidu and others (1940) 1 MLJ 312:A.I.R. 1940 Mad. 13 it is held that 'Where it is the party that is suing, he should first obtain cancellation before getting any further relief on the footing that the document or decree is not binding on him, and whether cancellation is formally prayed for or not, it is impliedly asked for, and the substance of the suit is one for cancellation.'
58.Also, in the decision Vellayya Konar (died) and another V. Ramaswami Konar and another 1939 (2) MLJ 400 : I.L.R. 1940 Madras 73 at 76, it is held thus:
"When a person seeks to establish a title which cannot be established without removing a decree or an instrument to which he is himself a party, then whatever be the garb in which he dresses the suit, its substantial character must be a suit for cancellation of the decree or instrument."
59.The term 'cancellation' as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 implies the individual suing must be a party to the document or decree, Strangers are not bound by the document or decree and are not obliged to sue for cancellation. They can ignore the document and ask for the appropriate relief that they may be entitled to on that footing and pay the proper court-fee thereon without asking cancellation as per decision In re, Thirupathiammal AIR 1956 Mad. 179 (V. 43, C.53 Mar).
60.In the present case on hand, the Writ Petitioner is not a novice. In reality, he is a person working as Co-operative Sub-Registrar in the Co- operative Society. Added further, he has become a Member of the 3rd Respondent Society. As a Co-operative Sub-Registrar, he cannot feign ignorance about the terms and conditions of assignment of Sale Deed dated 07.03.1986 (executed in his favour) and also about the relevant clauses of the Bye laws of the 3rd Respondent/Society etc. Further, the Petitioner has failed to intimate his change of residential address to the Society. Earlier, he filed O.S.No.57 of 1996 on the file of District Munsif-cum-Judicial Magistrate Court, Karaikudi and the same has been dismissed etc. The Petitioner is a consenting party to the clauses of Bye laws of the 3rd Respondent/ Society pertaining to the allotment of house sites etc. The Bye laws regulate the business of the Co-operative Societies.
61.On a careful consideration of the respective contentions and the facts and circumstances of the present case and also in the light of detailed discussions mentioned supra, this Court is of the considered view that a cancellation of Sale Deed dated 07.03.1986 unilaterally made by the 3rd Respondent/Society is not a legally permissible one, in the eye of law. Further, in the instant case, the 3rd Respondent/Society has executed a Sale Deed dated 23.05.1994 subsequently [in respect of the plot allotted to the Petitioner earlier] to the 4th Respondent. In the said plot/land/site, the 4th Respondent has constructed a residential house after investing all his savings and taking loan from L.I.C. [as informed by the Learned Counsel for the 4th Respondent before this Court] and as on date, he is in possession and enjoyment of the said property on re-allotment. As such, the proper and prudent course open to the Petitioner in law is to file a cancellation of Sale Deed dated 23.05.1994 executed in favour of the 4th Respondent by the 3rd Respondent/Society by taking recourse to the competent Civil Court praying for the relief of cancellation of Sale Deed dated 23.05.1994 or for Declaration that the Sale Deed dated 23.05.1994 is Void or for any other appropriate relief thereto, if so advised, [by arraying the necessary parties to the suit] and to seek a complete and comprehensive remedy in the manner known to law and in accordance with law, so as to give a complete quietus to the whole issue.
62.With these observations, the Writ Petition is disposed of, leaving the parties to bear their own costs.
Sgl To
1.The Registrar of Co-operative Societies, (Housing) No.22, 4th Main Road, Gandhi Nagar, Adayar, Chennai - 20.
2.The Deputy Registrar, Co-operative Societies, (Housing) Virudhunagar.
3.The Special Officer, MDA HSC-45, Tamil Nadu Government Officials Co-operative House Site Societies Ltd., S.K.M. Building, Sekkalai Street, Karaikudi.