Madras High Court
B.Visalakshi vs The Inspector on 12 September, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.13327 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.13327 of 2022
B.Visalakshi ... Petitioner
v.
1.The Inspector General of Registration,
O/o.Inspector General of Registration,
No.120, Santhome High Road,
Chennai – 600 028.
2.The District Registrar (Administration),
O/o.Registration Department,
Collectorate,
Dindigul.
3.The Sub Registrar,
Kodaikanal,
Dindigul District.
4.Sujith Dharman
5.Baby Joseph ... Respondents
1/8
https://www.mhc.tn.gov.in/judis
WP(MD)No.13327 of 2022
Writ Petition filed under Article 226 of the Constitution of India
seeking issuance of a Writ of Mandamus directing the respondents 1 to 3 to
cancel the sale deed vide Doc.Nos.329/2007, 241/2016 on the file of the third
respondent, as per Circular No.41530/U1/2017 dated 31.07.2018 and Circular
No.20217/U1/2021 dated 09.07.2021 issued by the first respondent, based on
the petitioner's representations dated 25.10.2021, 19.05.2022.
For Petitioner : Mr.S.Karthik
For Respondents : Mrs.D.Farjana Ghoushia,
Special Government Pleader
for R.1 to R.3
Mr.H.Lakshmi Shankar
for R.4, R.5
*****
ORDER
According to the petitioner, the subject properties belong to her family, however, the private respondents herein by creating forged documents have transferred the properties in their names. Therefore, the petitioner has made a representation to the official respondents for cancellation of the forged documents and alleging inaction on the part of the official respondents, the petitioner has moved this writ petition.
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2.The Hon’ble Supreme Court in Satya Pal Anand v. State of M.P., [(2016) 10 SCC 767] has held that that the power to cancel the registration is a substantive matter and in the absence of any express provision on that behalf, it is not open to assume that the Registering Officer would be competent to cancel the registration of the documents in question. Therefore, for cancellation of registered documents, the State of Tamil Nadu brought an amendment to the Registration Act, vide the Registration (Tamil Nadu Second Amendment) Act, 2021. By this amendment Act, Sections 22B, 77A, 77B, 81A and 81B were inserted in the Registration Act. Section 77A provides the power to the Registrar to cancel registered documents, if it is found to be in contravention of sections 22A and 22B.
3.Whereas, this Court in S.M. Hajabakrutheen Vs. The Inspector General of Registration [W.P.(MD) Nos. 14546 of 2022 batch, dated 27.03.2023], in view of the conflicting views taken by two different benches of this Court regarding the applicability of Section 77A, has referred various issues for consideration by a Larger Bench of this Court. The relevant portion 3/8 https://www.mhc.tn.gov.in/judis WP(MD)No.13327 of 2022 of the reference order is extracted as follows-
“20. In view of the reasonings of the Full Bench and in view of the conflicting views of the two learned Single Judges the following issues are referred for due consideration by a Larger Bench of this Court.
i) whether the recitals in a document presented for registration, can be examined to determine that such document was fraudulently executed or registered;
ii) whether a document in which the recitals alone are questioned can be considered only as voidable which would normally necessitate the filing of the suit to set aside the particular document or whether even those documents can be cancelled by the Sub Registrar under Section 77A of the Registration Act;
iii) whether exercise of power under Section 77A must be restricted to registration of documents in contravention to Section 22-A or 22-B of Registration Act, 1908 alone?
iv) whether the exercise of such power under Section 77A of the Registration Act can be prospective in nature or retrospective in nature?
21. To determine these issues, the Registry may place all the writ petitions before the Hon'ble Administrative Judge for 4/8 https://www.mhc.tn.gov.in/judis WP(MD)No.13327 of 2022 constitution of a Larger Bench to examine the issues in detail.
22. Till a decision is rendered by the Larger Bench, let no further action be taken by any of the Sub Registrars, who may await further orders of the Larger Bench.”
4.By referring to the above order, this Court in A.Shanthi v. The District Registrar [WP.No.18814 of 2023, dated 27.06.2023] has reiterated that the District Registrars across Tamil Nadu shall not take any action on an application under Section 77A of the Registration Act, till the reference is answered by the Larger Bench. The relevant portion is extracted as follows:-
“4.In the light of the above order, there is no scope for considering the representation made by the petitioner at present and the petitioner has to necessarily await for the final orders to be passed by the Larger Bench on the issue. Hence, this writ petition is closed for the present.
5.It is brought to the notice of this Court that in spite of the above order passed by this Court, the District Registrars are entertaining the applications under Section 77A of the Registration Act and even orders are passed. It is not known as to whether this 5/8 https://www.mhc.tn.gov.in/judis WP(MD)No.13327 of 2022 order was circulated to all the District Registrars in State of Tamil Nadu. In view of the above order, this Court once again reiterates that the District Registrars across Tamil Nadu shall not take any further action on the application submitted under Section 77A of the Registration Act, till a final decision is rendered by the Larger Bench. The Inspector General of Registration is directed to issue a Circular in this regard to all the District Registrars across the State of Tamil Nadu immediately”
5.In view of the above decisions, this Court is not inclined to issue any positive direction in this writ petition. During the course of hearing, it is represented by the learned Counsel on either side that at the instance of the private respondents herein, a suit in O.S.No.329 of 2022 was already filed before the Sub Court, Palani and the same is pending consideration.
Therefore, this writ petition is disposed of with liberty to the petitioner to work out her claim in the pending suit. The learned Subordinate Judge, Palani, is directed to expedite the proceedings in O.S.No.329 of 2022 and to dispose of the same, as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. Liberty is also 6/8 https://www.mhc.tn.gov.in/judis WP(MD)No.13327 of 2022 granted to the petitioner to invoke Section 77A of the Act upon the outcome of the reference made or to file a fresh suit, if so required. There shall be no order as to costs.
Index : Yes / No 12.09.2023
NCC : Yes / No
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Note:
Mark a copy of this order to
The Subordinate Judge,
Palani.
To
1.The Inspector General of Registration, O/o.Inspector General of Registration, No.120, Santhome High Road, Chennai – 600 028.
2.The District Registrar (Administration), O/o.Registration Department, Collectorate, Dindigul.
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3.The Sub Registrar, Kodaikanal, Dindigul District.
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