Madras High Court
M.Dhinesh Kumar vs The District Registrar ... on 11 June, 2024
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
WP.No.14931 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.06.2024
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
WP.No.14931 of 2024
M.Dhinesh Kumar .. Petitioner
Versus
1. The District Registrar [Administration],
Nallipalayam 637 003, Namakkal District.
2. The Sub Registrar, Rasipuram SRO,
Rasipuram – 637 408, Namakkal District. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus calling for the records
relating to the impugned Refusal Check Slip in RFL/Rasipuram/142/2024
dated 02.05.2024 passed by the second respondent, quash the same and
consequently direct the respondents to register the settlement deed dated
30.04.2024 executed by the petitioner's mother Tmt.Megala, in petitioner's
name in respect of the house site measuring 1747½ sq.ft., in
S.F.No.99/1A1A1A1Aand S.F.No.99/2A1 now sub divided as S.No.99/45
measuring an extent of 0.01.62 as per separate patta No.525 of Koneripatti
Village, Rasipuram Taluk, Namakkal District.
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WP.No.14931 of 2024
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.Yogesh Kannadasan
Special Government Pleader
ORDER
With the consent of both sides, this Writ Petition is taken up for final disposal at the admission stage itself.
2. This writ petition is filed to quash the impugned Refusal Check Slip in RFL/Rasipuram/142/2024 dated 02.05.2024 passed by the second respondent and consequently direct the respondents to register the settlement deed dated 30.04.2024 executed by the petitioner's mother Tmt.Megala, in favour of the petitioner in respect of the house site measuring 1747½ sq.ft. as per separate patta No.525 of Koneripatti Village, Rasipuram Taluk, Namakkal District.
3. Heard learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents and perused the materials available on record.
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4. The case of the writ petitioner is that at the time when the settlement deed dated 26.09.2023 executed in favour of the petitioner has been presented for registration, the same has not been registered on the ground that the parent document has not been produced at the time of registration and if the parent document is missing, the complaint filed for the same along with non traceable certificate has to be produced at the time of registration of the document. Challenging the same, the present Writ Petition has been filed.
5. The learned Additional Government Pleader appearing for the respondent would submit that the document has not been registered since neither the parent document nor the non traceable certificate for missing o the parent document has been produced.
6. I have perused entire records. This Court in Federal Bank Vs. Sub Registrar and two others in W.P.No.2758 of 2023 dated 08.02.2023, has held as follows :
“22. Similarly, the second proviso requires the executant to produce a revenue record to show his “right over the subject property” where the property is ancestral in character and there is no original deed available. Even a tax https://www.mhc.tn.gov.in/judis 3/9 WP.No.14931 of 2024 receipt can be produced under this proviso which is opposed to the fundamental principle of law that revenue records are not documents of title [State of A.P. v Star Bone Mill and Fertilizer Company, 2013 9 SCC 319]. Production of revenue documents to verify the source of title only demonstrates complete ignorance of the settled position of law.
23. Similarly, the third proviso also defies logic. If the original is lost, it is not understood as to why a certified copy of that document obtained from the file of the concerned SRO cannot be produced. When the best evidence is not available, the best course is to produce a certified copy which is the next best available alternative. Instead, the third proviso requires the executant to obtain a non-traceable certificate and effect paper publication.
24. It is also well settled by the decision of the Supreme Court in J.K. Industries Ltd. v. Union of India, (2007) 13 SCC 673 that a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account vital facts which expressly or by necessary implication are required to be taken into account by the statute or the https://www.mhc.tn.gov.in/judis 4/9 WP.No.14931 of 2024 Constitution. Furthermore, Rule 55-A is a delegated legislation which cannot go beyond the scope of the Parent Act viz., the Registration Act as well the Transfer of Property Act which is the substantive law governing the transfer of immovable properties. Hence, the first proviso is clearly ultra vires and unconstitutional.
25. In the case at hand, provisional attachment was passed by the G.S.T. authorities. The registration of the Sale Certificate was rejected for this reason. It is relevant to note that the petitioner was a prior mortgagee in the year 2017, whereas the provisional attachment was passed by the G.S.T. authorities on 18.12.2021. This order has already lapsed by operation of law. In this regard, it is useful to extract Sec.83 of The Central Goods and Service Tax Act, 2017 which reads as follows:
''83. Provisional attachment to protect revenue in certain cases:
(i) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion https://www.mhc.tn.gov.in/judis 5/9 WP.No.14931 of 2024 that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the tax able person in such manner as may be prescribed.
(ii) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (1).''
26. In view of the above, as this Court has held that the first proviso to Rule 55-A has been found to be invalid and ultra vires, the respondent cannot refuse to register the document placing reliance on the aforesaid proviso.
27. Sec.83(2)of G.S.T.Rule makes it clear that every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1). Therefore, provisional attachment made by the second respondent vide order dated 18.12.2021 has ceased to have effect, after expiry of a period of one year.
There is no material to show any final order of attachment, or any subsequent order passed by the second respondent https://www.mhc.tn.gov.in/judis 6/9 WP.No.14931 of 2024 pursuant to the aforesaid order. Therefore, this Court is of the view that the impugned order dated 17.10.2022 is liable to be quashed.” Despite the above settled position of law, the settlement deed presented for registration has not been registered on the ground that parent document has not been produced. In view of the above the substantive provision of law, the respondent cannot refuse to register the document citing non production of parent document. They can very well verify the certified copies available with them.
7. With the above direction, this Writ Petition is allowed and the refusal check slip dated 02.05.2024 issued by the second respondent is quashed. The respondents are directed to register the Settlement Deed dated 30.04.2024 without insisting parent document, within a period of one month from the date of receipt of a copy of this Order. No costs.
11.06.2024
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Index :Yes/No
Internet :Yes/No
Neutral Citation : Yes/No
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WP.No.14931 of 2024
To,
1. The District Registrar [Administration], Nallipalayam 637 003, Namakkal District.
2. The Sub Registrar, Rasipuram SRO, Rasipuram – 637 408, Namakkal District.
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