SATYA PAL ANAND Vs STATE OF M.P. .
Bench: RANJAN GOGOI,PRAFULLA C. PANT,A.M. KHANWILKAR
Case number: C.A. No.-006673-006673 / 2014
Diary number: 29226 / 2011
Advocates: PETITIONER-IN-PERSON Vs
MISHRA SAURABH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6673 OF 2014
Satya Pal Anand ……Appellant
Vs.
State of M.P. & Ors. …..Respondents
J U D G M E N T
A.M.KHANWILKAR, J.
This appeal has been placed before a three Judges’ Bench in
terms of order dated August 25, 2015, consequent to the difference
of opinion between the two learned Judges of the Division Bench.
2. Justice Dipak Misra took the view that, in the fact situation of
the present case the Writ Petition filed by the appellant challenging
the order passed by the Sub-Registrar (Registration) and the
Inspector General (Registration) was rightly dismissed by the High
Court. However, His Lordship opined that a question would still
arise for consideration, namely, whether in absence of any specific
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Rule in the State of Madhya Pradesh, the general principle laid
down in the case of Thota Ganga Laxmi & Anr. vs. Government
of Andhra Pradesh & Ors.1 would be applicable?
3. Justice V.Gopala Gowda on the other hand allowed the appeal
on the finding that the Sub-Registrar (Registration) had no
authority to register the Extinguishment Deed presented by the
respondent-Society dated 9th August 2001 and his action of
registration of that document was void ab initio. For the same
reason, the subsequent deeds in respect of the property in question
registered by the Sub-Registrar dated 21st April, 2004 and 11th July
2006 were also without authority and void ab initio. His Lordship
held that, the High Court should have declared the above position
and set aside registration of the subject documents and also the
orders passed by the Sub-Registrar (Registration) and Inspector
General (Registration). His Lordship allowed the appeal filed by the
appellant with compensation amount to be paid by the respondents
quantified at Rs.10 Lakh.
1
(2010)15 SCC 207
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4. Briefly stated, Plot No.7-B at Punjabi Bagh, Raisen Road,
Bhopal was allotted to the appellant’s mother Smt. Veeravali Anand
by Punjabi Housing Cooperative Society Ltd. (hereinafter referred to
as the “Society”), vide a registered deed dated 22nd March 1962.
Smt. Veeravali Anand expired on 12th June 1988. After her death,
the Society through its Office Bearer executed a Deed of
Extinguishment on 9th August 2001, unilaterally, cancelling the
said allotment of plot to Smt. Veeravali Anand because of violation
of the Bye-laws of the Society in not raising any construction on the
plot so allotted within time. On the basis of the said
Extinguishment Deed, the Society executed and got registered a
deed dated 21st April, 2004 in favour of Mrs. Manjit Kaur
(Respondent No.5) in respect of the same plot. The appellant
objected to the said transaction. However, a compromise deed was
executed between the Society and Mrs. Manjit Kaur (Respondent
No.5) on the one hand and the appellant on the other hand -
whereunder the appellant received consideration of Rs.6.50 Lakh
(Rupees Six Lakh Fifty Thousand) - Rs.4.50 Lakh (Rupees Four
Lakh Fifty Thousand) by a demand draft and Rs.2/- Lakh by a
post-dated cheque). Notwithstanding the compromise deed, the
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appellant filed a dispute under Section 64 of the Madhya Pradesh
Cooperative Societies Act, 1960 (hereinafter referred to as the “Act
of 1960”), before the Deputy Registrar, Cooperative Societies
bearing Dispute No. 81 of 2005. The appellant challenged the
Society’s action of unilaterally registering the Extinguishment Deed
dated 9th August 2001 and allotting the subject plot to Mrs Manjit
Kaur vide deed dated 21st April, 2004; and prayed for a declaration
that he continues to be the owner of the subject plot allotted by the
Society to his mother, having inherited the same. In the said
dispute, the appellant filed interim applications praying for restraint
order and for appointment of a Receiver. It is not necessary to dilate
on those facts to consider the issues on hand. Suffice it to note that
the said dispute is still pending adjudication.
5. During the pendency of the said dispute, the Society permitted
transfer of the subject plot in favour of Mrs. Meenakshi and Mr.
S.C. Sharma (Respondent Nos. 6 & 7) vide registered Deed dated
11th July 2006. Since the appellant was perseverating the dispute
and resorting to multiple proceedings in relation to the subject plot,
the respondents issued a notice on 12th July 2007 asking the
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appellant to refund the consideration amount accepted by him in
furtherance of the compromise deed dated 6th July 2004. The
appellant did not pay any heed to that demand and instead
continued with the multiple proceedings resorted to by him before
the Authority under the Act of 1960, including criminal
proceedings. The appellant also moved an application before the
Sub-Registrar (Registration) calling upon him to cancel the
registration of Extinguishment Deed dated 9th August 2001 and the
subsequent two deeds dated 21st April 2004 and 11th July 2006
respectively. This application was filed on 4th February 2008 by the
appellant. The Sub-Registrar (Registration) by a speaking order
rejected the said application on 28th June 2008 mainly on two
counts. Firstly, a dispute was pending between the parties with
regard to the same subject matter. Secondly, he had no jurisdiction
to cancel the registration of a registered document in question. For,
his jurisdiction was limited to registration of the document when
presented by the executant before him for that purpose. The
appellant then approached the Inspector General (Registration) by
way of an application under Section 69 of the Registration Act,
1908 (hereinafter referred to as the “Act of 1908”). The Inspector
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General (Registration) vide order dated 19th September 2008
rejected the said application on the ground that powers conferred
on him were limited to the general superintendence of the
Registration Offices and making Rules.
6. The appellant thereafter approached the High Court of Madhya
Pradesh, Judicature at Jabalpur, by way of Writ Petition
No.13505/2008 under Article 226 of the Constitution of India to
challenge the order passed by the Inspector General (Registration)
dated 15th September 2008 as also the order passed by the
Sub-Registrar (Registration) dated 28th June 2008. The appellant
further prayed for a declaration that the Extinguishment Deed
dated 9th August 2001 as well as the subsequent two deeds dated
21st April, 2004 and 11th July 2006 are void ab initio with a further
direction to the Inspector General (Registration) and the
Sub-Registrar (Registration) to record the cancellation of those
documents. This Writ Petition was dismissed by the Division Bench
of the High Court primarily on the ground that the appellant had
already resorted to a remedy (a dispute) before the appropriate
Forum under the Act of 1960, which was pending; and the
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declaration, as sought, can be considered in those proceedings after
recording of the evidence and production of other material to be
relied on by the parties therein. Accordingly, the High Court held
that since an alternative remedy before a competent Forum was
available and was pending between the parties, it was not feasible
to invoke the writ jurisdiction under Article 226 of the Constitution
of India. Indeed, the High Court adverted to the reported cases
relied on by the parties to buttress their stand. The High Court took
note of the decision of the Full Bench of the Andhra Pradesh High
Court in the case of Yanala Malleshwari vs. Ananthula
Sayamma2 and the decision of Madras High Court in
E.R.Kalaivan vs. Inspector General of Registration, Chennai &
Anr.3 The High Court held that the arguments of the appellant
deserve to be negatived in light of the majority view of the Full
Bench of Andhra Pradesh High Court and that the dictum in the
case before the Madras High Court was distinguishable. The High
2
AIR 2007 Andhra Pradesh 57 [FB] 3
AIR 2010 Madras 18
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Court also referred to the decision of the Karnataka High Court in
M.Ramakrishna Reddy vs. Sub-Registrar, Bangalore4. In para
15 and 16, the High Court observed thus:
“15. In view of aforesaid discussion we are of the view that after registration of the extinguished deed or other documents by the Sub-Registrar, if any application is moved by any of the affected party of such document stating that the same was not registered by practicing the fraud with his right then Sub-Registrar in the lack of any specific provision in this regard could neither entertain nor adjudicate such application under the provisions of Section 17, 18 or 69 or some other provisions of the Act. Section 69 of the Act only confers the superintending power of registration offices and to make rules to the Inspector General respondent No.2. It does not give any rights to cancel the earlier registered documents or modifying any entries in the index or in other record at the instance of any of party. So, Section 17(1)(b) read with 69 of the Act is also not helping to the petitioner in this writ petition. Consequently, it is held that Sub-Registrar as well as Inspector General have not committed any fault in dismissing the application of the petitioner with direction to approach the competent forum for adjudication of his dispute.
16. Apart the above the alleged dispute and allegations of the alleged fraud could not be adjudicated by this Court under the writ jurisdiction. The same could be adjudicated by the Civil Court under the common law after recording the evidence of the parties and on appreciation of the same in a duly constituted suit.”
The High Court then adverted to the decision in the case of
Government of U.P. vs. Raja Mohammad Amir Ahmad Khan5. It
4
AIR 2000 Kar.46. 5
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held that since the Registering Officer registered the document
presented to him for registration, his function is exhausted. He
would then become functus officio and no power to impound the
document under Section 33 of the Act. This decision of the High
Court is the subject matter of challenge in the present appeal.
7. When this appeal came up for hearing before the Division
Bench of the two learned Judges, as aforesaid, His Lordship Justice
Dipak Misra found that the High Court did not commit any error in
dismissing the Writ Petition filed by the appellant. His Lordship,
however, adverted to all the relevant provisions of the Act of 1908
and also analysed the decision of the Full Bench of the Andhra
Pradesh High Court in Malleshwari’s case (supra) and also of the
Madras High Court in Kalaivan (supra) and of the Karnataka High
Court in M.R.Reddy (supra). Finally, His Lordship considered the
decision of this Court in Thota Ganga Laxmi (supra) and noted
two aspects. That, in that case, the Court had opined that a
unilateral cancellation deed cannot be registered with reference to
Rule 2(k)(i) of the Rules framed by the State of Andhra Pradesh
under Section 69 of the Act of 1908. His Lordship was of the view AIR 1961 SC 787
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that the dictum of the Court in Thota Ganga Laxmi (supra) must
be considered in the context of a specific Rule framed by the State
of Andhra Pradesh, which had come into force after the
pronouncement by the Full Bench in the case of Malleshwari
(supra). His Lordship then observed that the principle stated in the
case of Thota Ganga Laxmi (supra) cannot be made applicable to
the case on hand in absence of a specific Rule in that regard in the
State of Madhya Pradesh. Further, on a careful reading of the
provisions of the Act of 1908, there is no prohibition to register a
document of cancellation of a deed of extinguishment; and that the
procedure under Section 35 of that Act cannot be construed to
confer a quasi judicial power on the Registering Authority. His
Lordship also referred to the decision of the Madras High Court in
Park View Enterprises vs. State of Tamil Nadu6 wherein it has
been observed that the function of the Sub-Registrar for the
purposes of registration is purely administrative and not
quasi-judicial. He cannot decide whether a document which is
executed by a person has had title as is recited in the given
6
AIR 1990 Madras 251
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instrument. His Lordship found it difficult to agree with the general
principle stated in the case of Thota Ganga Laxmi (supra) that the
Registering Authority cannot register a unilateral deed of
cancellation or extinguishment, in absence of any specific Rule in
that behalf. Therefore, His Lordship opined that the general
observation in that case required reconsideration by a larger Bench.
Having said this, His Lordship also noted that the validity of the
action taken by the Society in execution of the extinguishment deed
dated 9th August 2001, cancelling the deed in favour of the
appellant’s mother dated 22nd March 1962 was the subject matter of
a dispute filed by the appellant wherein all relevant issues could be
answered appropriately. For, that Authority is competent to
consider the validity of action of the Society to unilaterally cancel
the allotment of the plot made in favour of the appellant’s mother.
His Lordship also adverted to the other proceedings between the
parties including the order passed by this Court in SLP (Civil) No.
13255/2012 dated July 12, 2013, taking note of the Inspection
Reports submitted by the Sub-Registrar dated 13th March 2007
mentioning that two duplex were constructed and two more were
near completion standing on the subject plot on the date of
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inspection. His Lordship also adverted to the factum of compromise
deed entered by the appellant with the respondents and having
received consideration in that behalf from the subsequent
purchaser and yet the appellant was pursuing remedy before the
Sub-Registrar for cancellation of the Extinguishment Deed.
8. His Lordship Justice V.Gopala Gowda, however, formulated a
question in para 12 of the judgment as to whether the appellant
was entitled to seek relief of cancellation of the registered
documents dated 9th August 2001, 21st April 2004 and 11th July
2006, registered in respect of the immovable property in question.
His Lordship, inter-alia, following the exposition in Thota Ganga
Laxmi (supra) found that the Registrar could not have permitted
registration of Extinguishment Deed dated 9th August 2001,
unilaterally cancelling the allotment of the subject plot made to the
appellant’s mother. His Lordship held that the Extinguishment
Deed was a nullity, in law. His Lordship then considered the dictum
in Kalaivan’s case of the Madras High Court and opined that it
aptly applied to the facts of the present case and held that as the
Extinguishment Deed was unilaterally registered it ought to be
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rescinded. His Lordship proceeded to examine the issue in the light
of Section 62 of the Indian Contract Act, 1872. It provides that if
the parties to a contract agree to substitute a new contract for it, or
to rescind or alter, the original contract need not be performed.
Thus, for any novation, rescission and alteration of the contract, it
can be made only bilaterally and with amicable consent of both the
parties. His Lordship then adverted to the scope of Clause 43(1) of
the Bye-laws of the Society as amended in the year 1991 and
opined that the said Clause can have no retrospective effect for
cancellation of the allotment of the plot in the name of appellant’s
mother vide Extinguishment Deed dated 9th August 2001. The latter
is only a subterfuge. Reference is then made to Section 31 of the
Specific Relief Act, 1963 to hold that unilateral cancellation of the
deed would be in violation of the said provision read with Article 59
of the Limitation Act, 1963, which requires cancellation of any
instrument within 3 years. In the present case, the deed in favour of
the appellant’s mother was executed on 22nd March 1962 and
registered on 30th March 1962 concerning the subject plot; and for
which reason extinguishment of the said deed after lapse of 39
years was impermissible in law. On this finding, it has been held
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that the Sub-Registrar had no authority under the Act of 1908 nor
by virtue of Section 31 of the Specific Relief Act, 1963 read with
Article 59 of the Limitation Act, 1963 to unilaterally cancel the said
deed; and consequently, registration of the Extinguishment Deed by
the Sub-Registrar amounts to playing fraud on the power vested in
the Authority under law. Exercise of power of registering a
document by the Sub-Registrar, in the present case, was ultra vires
the relevant provisions and the Constitution of India. Reference is
then made to the decision of the Constitution Bench of this Court in
Pratap Singh vs. State of Punjab7 to hold that the
respondent-Society had no authority to re-allot the subject plot to
respondent No.5 by cancelling the registered deed which has
become absolute and been acted upon by the parties. As a
consequence of this conclusion, His Lordship held that the deed
executed in favour of respondent No.5 or for that matter respondent
Nos.6 and 7 was also void ab initio; and also because respondent
No.5 could not be allotted the subject plot as her husband was
already allotted another plot by the same Society. His Lordship then
7
AIR 1964 SC 72
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went on to observe that the appellant has got a valid Constitutional
right over the said plot of land as guaranteed under Article 300A of
the Constitution of India and could not be deprived of that property
without authority of law. His Lordship was of the view that merely
because the Extinguishment Deed could be challenged by
approaching the Civil Court cannot denude the appellant of the
relief, as sought in the Writ Petition, qua the Extinguishment Deed
dated 9th August 2001 which was void ab initio; and for the same
reason order could be passed against respondent No.5 to 7 - as the
deeds in their favour rested on the Extinguishment Deed. For that,
His Lordship adverted to the dictum in the case of Arunachalam
vs. P.S.R.Sadhanantham & Anr.8 and Ganga Kumar Shrivastav
vs. State of Bihar9. Further, having noticed that the
septuagenarian appellant had been litigating for last 14 years
because of the untenable action of the Society and also of the
Sub-Registrar, affecting his valuable Constitutional right under
8
(1979) 2 SCC 297 9
(2005) 6 SCC 211
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Article 300A of the Constitution of India, His Lordship was of the
opinion that the relief claimed by him in the Writ Petition deserved
to be granted. As regards the observation made by this Court
dismissing the Special Leave Petition No.13255/2012 vide order
dated 17th July 2013, His Lordship held that the same will be of no
avail much less to denude the appellant of the reliefs due to him.
His Lordship then held that the compromise executed by the
appellant on 6th July 2004 also cannot denude the appellant of the
relief - because it is an admitted position that the respondent No.5
through Advocate had sent a legal notice dated 12th July 2007 to
rescind the said agreement and called upon the appellant to refund
the amount of Rs.6.50 Lakh received by him with interest. His
Lordship also adverted to the decisions of this Court in CAG vs.
K.S.Jagannathan10; Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs.
V.R. Rudani11 and Hari Vishnu Kamath vs. Ahmad Ishaque12 to
10
(1986) 2 SCC 679 11
(1989) 2 SCC 691 12
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hold that the High Court failed to exercise its discretionary power
which has resulted in grave miscarriage of justice and entailing in
denial of the valuable right guaranteed under Article 300A of the
Constitution of India to the appellant. Accordingly, His Lordship
held that the impugned judgment of the Division Bench of the High
Court as well as the impugned instruments i.e. Extinguishment
Deed dated 9th August 2001 and the subsequent deeds dated 21st
April, 2004 and 11th July 2006 respectively, are quashed and set
aside. Further direction is given to respondent Nos. 6 and 7 to
vacate the subject property and hand over possession thereof to the
appellant forthwith. His Lordship was of the view that the appellant
was entitled to further relief of compensation amount of
Rs.10,00,000/- (Rupees Ten Lakhs) to be paid to the appellant for
his suffering and the injustice caused to him by the respondents for
the last 14 years.
9. The appellant appeared in person. He adopted the view taken
by His Lordship Justice V. Gopala Gowda as his argument. He
placed reliance on the decisions noted hereinabove and adverted to
in the two separate judgments given by Their Lordships. In AIR 1955 SC 233
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substance, his argument was that the respondent-Society could not
have unilaterally executed the Extinguishment Deed dated 9th
August 2001 in relation to the subject plot. That action of the
respondent-Society was in violation of the governing laws and void
ab initio. Further, the Sub-Registrar had no authority to register
such a document and in any case unilaterally. Hence, the act of
registration of Extinguishment Deed was also void ab initio. As a
consequence, the Society had no authority, in law, to execute the
subsequent deed in favour of respondent No.5 or to put her in
possession of the subject plot and the respondent No.5 in turn
could not have executed the deed in favour of respondent Nos. 6
and 7. In other words, the deeds executed between the respondent
No. 4 - Society and respondent No. 5 and also respondent Nos. 6
and 7 were void ab initio. That declaration must follow and the High
Court was duty bound to allow the Writ Petition filed by him, as the
action of the respondent No.4-Society was replete with fraud on the
Statute and also on the Constitutional right guaranteed to the
appellant. In all fairness to the appellant, it must be mentioned
that he has additionally relied on Suo Motu Proceedings against
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R.Karuppan, Advocate13, R.S.Maddanappa (D) by LRs. vs.
Chandramma & Anr.14 , Rattan Chand Hira Chand vs. Askar
Nawaj Jung (D) by Lrs. & Ors.15, Central Inland Water
Transport Corporation Ltd. & Anr. vs. Brojo Nath Ganguly &
Anr.16, Indian Council for Enviro-Legal Action vs. Union of
India & Ors.17, Trishala Jain & Anr. vs. State of Uttaranchal
& Anr.18, Hamza Haji vs. State of Kerala & Anr.19 and
S.P.Chengalvaraya Naidu (D) By LRs. vs. Jagannath (D) by Lrs.
13
(2001) 5 SCC 289 14
AIR 1965 SC 1812 15
(1991) 3 SCC 67 16
AIR 1986 SC 1571 17
(2011) 8 SCC 161 18
(2011) 6 SCC 47 19
(2006) 7 SCC 416
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& Ors.20, during the arguments. Besides the oral arguments, the
appellant has filed written submissions on 11th July 2016 and
additional written submissions on 12th August 2016 which make
reference to several reported cases. The decisions referred to in the
written submissions are essentially multiplying the cases on the
contention already answered in favour of the appellant by His
Lordship Justice V.Gopala Gowda.
10. The respondents, on the other hand, contend that the Writ
Petition has been justly rejected by the High Court on the ground
that the appellant was pursuing remedy for the same reliefs in
substantive proceedings by way of a dispute filed under Section 64
of the Act of 1960 before the competent Forum. Besides the said
proceedings, it was open to the appellant to take recourse to other
appropriate remedy before the Civil Court, to the extent necessary.
The High Court in exercise of powers under Article 226 of the
Constitution of India not only exercises an equitable jurisdiction
but also an extraordinary jurisdiction. The High Court in any case
20
AIR 1994 SC 853
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is not expected to enter upon the plea of declaring agreements and
documents executed between private parties as illegal or for that
matter void ab initio, which remedy is available before the
cooperative Forum or the Civil Court. It was contended that if this
contention is accepted, it may not be necessary to answer the other
issue noted in the judgment of Justice Dipak Misra as the same can
be considered in an appropriate proceedings, if and when the
occasion arises. Alternatively, it was contended that the dictum of
this Court in Thota Ganga Laxmi’s case (supra) must be
understood as applicable to the express procedure prescribed for
registration of an Extinguishment Deed or cancellation deed in the
State of Andhra Pradesh in terms of statutory Rules. Inasmuch as,
in absence of any express provision about the procedure for
registration of such document, that requirement cannot be
considered as mandatory. For, it is not possible to hold that no
Extinguishment or cancellation deed can ever be executed by the
party to the earlier concluded contract, considering the express
provision in that behalf in Section 17(1)(b) of the Act of 1908 read
with other enabling provisions in the same Act or other substantive
law. According to the respondents, the questions posed in the
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judgment of Justice V. Gopala Gowda would be relevant and can be
conveniently answered in the substantive proceedings already
resorted to by the appellant, by way of a dispute under Section 64
of the Act of 1960. The answer to the said questions may require
adjudication of disputed facts and also application of settled legal
position. It is not a pure question of law. Being disputed question of
facts, the High Court was right in refusing to interfere and exercise
its writ jurisdiction.
11. The counsel for the State in particular submitted that the legal
position is well-settled. That, the Sub-Registrar is not expected to
decide the title or rights of the parties to the agreement nor is
expected to examine the document to ascertain whether the same is
legal and permissible in law or undertake an analytical analysis
thereof. If the document registered by the Sub-Registrar is illegal or
there is any irregularity, that must be challenged by invoking an
appropriate proceedings before a Court of competent jurisdiction. If
any cause of action accrues to a member of the Society, in relation
to the business of the Society, can be pursued before the
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cooperative Forum. The appellant has already invoked such
remedy.
12. The respondent Nos. 6 and 7 additionally submit that they are
purchasers of the subject plot for consideration. They have acted to
their detriment in good faith by going ahead with the construction
on the plot with the permission of the Society and after obtaining
approvals from the Municipal Authorities. They have spent their
fortune in doing so. Besides supporting the stand taken by the
other respondents, they submit that in the fact situation of the
present case no relief in equity is warranted in favour of the
appellant. Thus, the Writ Petition filed by the appellant has been
justly dismissed with liberty to pursue appropriate remedy.
13. Having considered the rival submissions, including keeping in
mind the view taken by the two learned Judges of this Court on the
matters in issue, in our opinion, the questions to be answered by us
in the fact situation of the present case, can be formulated as
under:
“(a) Whether in the fact situation of the present case, the High Court was justified in dismissing the Writ Petition?
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(b) Whether the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is duty bound to declare the registered Deeds (between the private parties) as void ab initio and to cancel the same, especially when the aggrieved party (appellant) has already resorted to an alternative efficacious remedy under Section 64 of the Act of 1960 before the competent Forum whilst questioning the action of the Society in cancelling the allotment of the subject plot in favour of the original allottee and unilateral execution of an Extinguishment Deed for that purpose?
(c) Even if the High Court is endowed with a wide power including to examine the validity of the registered Extinguishment Deed and the subsequent registered deeds, should it foreclose the issues which involve disputed questions of fact and germane for adjudication by the competent Forum under the Act of 1960?
(d) Whether the Sub-Registrar (Registration) has authority to cancel the registration of any document including an Extinguishment Deed after it is registered? Similarly, whether the Inspector General (Registration) can cancel the registration of Extinguishment Deed in exercise of powers under Section 69 of the Act of 1908?
(e) Whether the Sub-Registrar (Registration) had no authority to register the Extinguishment Deed dated 9th August 2001, unilaterally presented by the Respondent Society for registration?
(f) Whether the dictum in the case of Thota Ganga Laxmi (supra) is with reference to the express statutory Rule framed by the State of Andhra Pradesh or is a general proposition of law applicable even to the State of Madhya Pradesh, in absence of an express provision in that regard?”
Regarding Issue Nos. (a) to (c):
14. The answer to the first three questions will have to be given in
the backdrop of the factual matrix of the present case. Indisputably,
the appellant entered into a compromise deed and accepted the
consideration amount of Rs.6.50 Lakh. Despite that, he chose to file
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a dispute under Section 64 of the Act of 1960 before the Deputy
Registrar, Cooperative Societies challenging the action of the Society
in unilaterally executing and causing registration of the subject
Extinguishment Deed dated 9th August 2001 and also the
allotment of the subject plot to third party. Pending that dispute, he
filed an application before the Sub-Registrar (Registration) for the
same relief of cancellation of registration of the Extinguishment
Deed and the subsequent deeds in favour of third parties. In
addition, the appellant resorted to criminal complaint with
reference to the same Extinguishment Deed and the subsequent
deeds in favour of third parties. In this backdrop, the High Court
declined to entertain the Writ Petition filed by the appellant, which
was essentially to challenge the same Extinguishment Deed and
subsequent deeds. It is a well established position that the remedy
of Writ under Article 226 of the Constitution of India is
extra-ordinary and discretionary. In exercise of writ jurisdiction, the
High Court cannot be oblivious to the conduct of the party invoking
that remedy. The fact that the party may have several remedies
for the same cause of action, he must elect his remedy and
cannot be permitted to indulge in multiplicity of actions. The
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exercise of discretion to issue a writ is a matter of granting
equitable relief. It is a remedy in equity. In the present case, the
High Court declined to interfere at the instance of the appellant
having noticed the above clinching facts. No fault can be found with
the approach of the High Court in refusing to exercise its writ
jurisdiction because of the conduct of the appellant in pursuing
multiple proceedings for the same relief and also because the
appellant had an alternative and efficacious statutory remedy to
which he has already resorted to. This view of the High Court has
found favour with Justice Dipak Misra. We respectfully agree with
that view.
15. The other view of Justice V. Gopala Gowda, however, is that it
was the duty of the High Court to answer the matters in issue
because of the unilateral registration of the Extinguishment Deed
by the Society without authority and a nullity. Ordinarily, if the
party had not resorted to any other remedy provided by law and
had straightway approached the High Court to question the action
of the statutory Authority of registering a document improperly and
in particular in disregard of the prescribed procedure, that would
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stand on a different footing. In the present case, however, the
appellant not only entered into a compromise deed with the Society
and the subsequent purchaser but also resorted to statutory
remedy. Having entered into a compromise deed, it is doubtful
whether the appellant can be heard to complain about the
irregularity in the registration of the Extinguishment Deed, if any. It
is noticed that the appellant has not disputed the execution of the
compromise deed, nor has he paid any heed to the notice given by
the other party to refund the amount accepted by him in
furtherance of the compromise deed. No Court can be party to a
speculative litigation much less the High Court in exercise of writ
jurisdiction. Having said this it must necessarily follow that the
Writ Petition filed by the appellant deserved to be dismissed, as was
rightly dismissed by the High Court.
16. As the Writ Petition is liable to be dismissed with liberty to the
appellant to pursue other statutory remedy already invoked by him,
examining any other contention at his instance would be awarding
premium to a litigant who does not deserve such indulgence. The
fact whether the compromise deed entered into by the appellant
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was voluntary and at his own volition or under duress, is
essentially a question of fact. That cannot be adjudicated in writ
jurisdiction. Depending on the answer thereto, the other issues may
become relevant and would arise for consideration. The only relief
that can be granted and which has already been clarified by the
High Court in the impugned judgment, is to keep all questions open
to enable the appellant to pursue the statutory remedy already
invoked by him. It is open to the appellant to contend in those
proceedings that the Extinguishment Deed could not have been
unilaterally executed by the Society. That plea can be examined by
the statutory Forum provided for that purpose. The decision of the
Society to cancel the allotment of a plot to its member or to rescind
his membership and to allot the plot to another member, is
undoubtedly the business of the Society. Any cause of action in that
behalf, indeed, can be pursued before the Competent Forum by the
aggrieved member or his legal representative. That will require
examination of the governing cooperative laws and the Bye-laws of
the Society - to ascertain whether it is open to the Society to cancel
the allotment of a plot to its members including to cancel the
membership of such person. If that action of the Society is held to
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29
be just and permissible in law, the appellant may not be entitled to
any other relief much less the declaration as sought. Further,
remedy of writ cannot be used for declaration of private rights of the
parties or enforcement of their contractual rights and obligations. In
our considered opinion, it would be unnecessary if not
inappropriate to examine any other contention at the instance of
this appellant as we agree with the view taken by the High Court in
summarily dismissing the Writ Petition with liberty to the appellant
to pursue statutory remedy. At best, further observation or
clarification would suffice to the effect that the competent Forum
before whom the dispute has been filed by the appellant shall
consider all contentions available to the parties, uninfluenced by
the factum of registered Extinguishment Deed. In that, if the
competent Forum was to hold that it was open to the Society to
cancel the allotment and membership of the concerned member and
thereafter to allot the same plot to another person enrolled as a
member of the society, no other issue would arise for consideration.
On the other hand, if the competent Forum was to answer the
relevant fact in favour of the appellant, only then the argument of
the effect of unilateral registration of the Extinguishment Deed
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followed by compromise deed voluntarily executed by the appellant
may become available to the Society and to the subsequent
purchasers/allottees of the subject plot. At their instance, those
issues can be examined on the basis of settled legal position.
Neither the observation or the opinion recorded by one of the
dissenting Judge of this Court need any further dissection nor
would it be appropriate to enlarge the scope of the proceedings
before this Court on those aspects. This would subserve the twin
requirements. Firstly, to avoid an exposition on matters and
questions which do not arise for our consideration in the fact
situation of the present case at this stage; and secondly, also
provide an opportunity to the parties to pursue all contentions and
other remedies as may be permissible in law.
17. The exposition of the Constitution Bench of this Court in
Pratap Singh (supra) adverted to in the dissenting opinion would
be attracted in cases where the State Authority acts in bad faith or
corrupt motives. Merely because some irregularity has been
committed in registration of Extinguishment Deed unilaterally
presented by the Society for registration or in respect of the
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31
subsequent deeds registered at the instance of third party without
notice to the appellant, that, by itself, will not result in registration
of those documents due to corrupt motives of the State Authority.
Moreso, in the present case, the appellant having entered into a
compromise deed with the Society and third party (subsequent
allottees) in respect of the subject plot, it is doubtful whether it is
open to the appellant to question the act of unilateral execution and
registration of the stated Extinguishment Deed being irregular
much less void and nullity. Indisputably, the respondents-Society
is a Cooperative Housing Society Limited and is governed by its
Bye-Laws. According to the counsel for the Society, the member is
obliged to erect a house on the plot allotted to him within specified
time, failing which must suffer the consequence including of
cancellation of allotment of plot and removal of his membership. At
the time of allotment, the member executes an agreement
whereunder he/she undertakes to abide by the conditions specified
for erecting a house on the plot allotted to him/her in the manner
prescribed therein. Whether the Society is justified in proceeding
against the defaulting member by cancelling the allotment of plot as
well as membership, is an issue falling within the purview of the
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business of the Society. The member is bound by the stipulation
contained in the agreement executed by him/her and in particular
the Bye-laws of the Society. Any action by the Society for breach
thereof is just or otherwise can be questioned before the statutory
Forum under the Act of 1960. Those are matters which can and
must be answered in the proceedings resorted to by the appellant
before the statutory Forum.
18. The aforementioned reported decision has noted the subtle
distinction between ultra vires act of the Statutory Authority and a
case of a simple infraction of the procedural Rule. The question,
whether the Society was competent to unilaterally cancel the
allotment of a plot given to its member and to cancel the
membership of such member due to default committed by the
member, is within the purview of the business of the Society. Any
cause of action in that regard must be adjudicated by the procedure
prescribed in that behalf. It is not open to presume that the Society
had no authority in law to take a decision in that behalf. The right
of the appellant qua the plot of land would obviously be subject to
the final outcome of such action. The appellant being the legal
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representative of the original allottee, cannot claim any right higher
than that of his predecessor qua the Housing Society, which is the
final authority to decide on the issue of continuation of membership
of its member. The right of the member to remain in occupation of
the plot allotted by the Society would be entirely dependent on that
decision.
19. Reference made to the other decisions of this Court with
regard to the scope of Article 136 of the Constitution of India in the
case of Arunachalam vs. P.S.R. Sadhanantham and Anr. and
Ganga K. Shrivastav vs. State of Bihar (supra) will be of no avail
in the fact situation of the present case. Similarly, The other
decisions adverted to in the dissenting opinion under consideration
in the case of CAG vs. K.S. Jagannathan and Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust vs. V.R. Rudani (supra), Hari Vishnu
Mamath (supra) will be of no avail in the fact situation of the
present case. Suffice it to observe that the High Court had, in our
opinion, justly, summarily dismissed the writ petition with liberty to
the appellant to pursue statutory remedy under the provisions of
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the Act of 1960 or by way of a civil suit. Thus understood, it may
not be necessary or appropriate to dwelve upon the other issues
regarding the merits of the controversy which may have to be
adjudicated by the competent Forum.
Regarding issue Nos. (d) to (f)
20. It is common ground that the deed regarding allotment of plot
to a member of the Society required registration. The allotment of
the subject plot in favour of the appellant’s mother was accordingly,
registered in the office of the Sub-Registrar (Registration). The
subject plot was allotted to the appellant’s mother consequent to
her admission as a member of the Society. As the allotment of the
plot by the Society creates and transfers rights in an immovable
property, the deed of allotment was required to be registered. But if
the member failed to comply with the stipulation of allotment, it
would be open to the Society to cancel such allotment and including
the membership of that member. In that event, it may become
necessary for the Society to execute an Extinguishment Deed qua
such allotment deed operating in favour of the concerned member.
For, mere cancellation of membership may not be enough. The
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Society could extinguish the right, title or interest in the
immoveable property belonging to the Housing Society, by executing
an Extinguishment Deed for that purpose.
21. The role of the Sub-Registrar (Registration) stands discharged,
once the document is registered (see Raja Mohammad Amir
Ahmad Khan (supra). Section 17 of the Act of 1908 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 Act of 1908
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
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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.
22. The procedure for registration of documents is spelt out, inter
alia, in part VI of the Act of 1908. Section 32 of the said Act reads
thus:
PART VI
OF PRESENTING DOCUMENTS FOR REGISTRATION
“32. Persons to present documents for registration.- Except in the cases mentioned in 24[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office-
(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assignee of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.”
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23. If the document is required to be compulsorily registered, but
while doing so some irregularity creeps in, that, by itself, cannot
result in a fraudulent action of the State Authority. Non-presence of
the other party to the Extinguishment Deed presented by the
Society before the Registering Officer by no standard can be said to
be a fraudulent action per se. The fact whether that was done
deceitly to cause loss and harm to the other party to the Deed, is a
question of fact which must be pleaded and proved by the party
making such allegation. That fact cannot be presumed. Suffice it to
observe that since the provisions in the Act of 1908 enables the
Registering Officer to register the documents presented for
registration by one party and execution thereof to be admitted or
denied by the other party thereafter, it is unfathomable as to how
the registration of the document by following procedure specified in
the Act of 1908 can be said to be fraudulent. As aforementioned,
some irregularity in the procedure committed during the
registration process would not lead to a fraudulent execution and
registration of the document, but a case of mere irregularity. In
either case, the party aggrieved by such registration of document is
free to challenge its validity before the Civil Court.
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24. Admittedly, the documents in question do not fall within
Sections 31, 88 and 89. Further, Section 32 does not require
presence of both parties to the document when it is presented for
registration. In that sense, presentation of Extinguishment Deed by
the authorized person of the Society for registration cannot be
faulted with reference to Section 34 of the Act of 1908. That
provision stipulates the enquiry to be done by the Registering
Officer before registration of the document. The same reads thus:
“34. Enquiry before registration by registering officer.- (1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26:
PROVIDED that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.
(2) Appearances under sub-section (l) may be simultaneous or at different times.
(3) The registering officer shall thereupon-
(a) enquire whether or not such document was executed by the person by whom it purports to have been executed;
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(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and
(c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.”
Even this provision does not require presence of both parties to the
document when presented for registration before the Registering
Officer. Section 35 of the Act of 1908 provides for procedure of
admission or denial of execution respectively. The same reads thus:
“35. Procedure on admission and denial of execution respectively (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or
(b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or
(c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution,
the registering officer shall register the document as directed in sections 58 to 61, inclusive.
(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they
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represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.
(3)(a) If any person by whom the document purports to be executed denies its execution, or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be executed is dead, and his representative or assignee denies its execution,
the registering officer shall refuse to register the document as to the person so denying, appearing or dead:
PROVIDED that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:
28[PROVIDED FURTHER that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII. ]”
Section 36 of the Act of 1908 provides for procedure when
appearance of the executant or witness is insisted upon. The same
reads thus:
PART VII
OF ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES
“36. Procedure where appearance of executant or witness is desired.-If any person presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in
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his discretion, call upon such officer or court as the State Government directs in this behalf to issue a summons requiring him to appear at the registration-office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named therein.”
25. The Andhra Pradesh High Court, in the case of Yanala
Malleshwari (supra) was called upon to consider whether a person
can nullify the sale by executing and registering a cancellation deed
and whether the Registering Officer like District Registrar and/or
Sub-Registrar appointed by the State Government is bound to
refuse registration when a cancellation deed is presented. The fact
remains that if the stipulation contained in Sections 17 and 18 of
the Act of 1908 are fulfilled, the Registering Officer is bound to
register the document. The Registering Officer can refuse to register
a document only in situations mentioned in Sections such as 19 to
22, 32 and 35. At the same time, once the document is registered, it
is not open to the Registering Officer to cancel that registration even
if his attention is invited to some irregularity committed during the
registration of the document. The aggrieved party can challenge the
registration and validity of the document before the Civil Court. The
majority view of the Full Bench was that if a person is aggrieved by
the Extinguishment Deed or its registration, his remedy is to seek
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appropriate relief in the Civil Court and a Writ Petition is not the
proper remedy.
26. Section 35 of the Act does not confer a quasi-judicial power on
the Registering Authority. The Registering Officer is expected to
reassure that the document to be registered is accompanied by
supporting documents. He is not expected to evaluate the title or
irregularity in the document as such. The examination to be done
by him is incidental, to ascertain that there is no violation of
provisions of the Act of 1908. In the case of Park View Enterprises
(supra) it has been observed that the function of the Registering
Officer is purely administrative and not quasi-judicial. He cannot
decide as to whether a document presented for registration is
executed by person having title, as mentioned in the instrument.
We agree with that exposition.
27. In absence of any express provision in the Act of 1908
mandating the presence of the other party to the Extinguishment
Deed at the time of presentation for registration, by no stretch of
imagination, such a requirement can be considered as mandatory.
The decision in the case of Thota Ganga Laxmi (supra) is with
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reference to an express provision contained in the Andhra Pradesh
Rules in that behalf. That Rule was framed by the State of Andhra
Pradesh after the decision of Full Bench of the High Court.
Therefore, the dictum in this decision cannot have universal
application to all the States (other than State of Andhra Pradesh). It
is apposite to reproduce paragraphs 4 and 5 of the said judgment
which read thus:
“4. In our opinion, there was no need for the Appellants to approach the civil Court as the said cancellation deed dated 4.8.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if 'A' transfers a piece of land to 'B' by a registered sale deed, then, if it is not disputed that 'A' had -the title to the land, that title passes to 'B' on the registration of the sale deed (retrospectively from the date of the execution of the same) and 'B' then becomes the owner of the land. If 'A' wants to subsequently get the sale deed cancelled, he has to file a civil suit for cancellation or else he can request 'B' to sell the land back to 'A' but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.
5. In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states:
“(i) The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
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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 register able by any provision of law.
A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent Court nor was there any notice to the parties. Hence, this rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.”
28. No provision in the State of Madhya Pradesh enactment or the
Rules framed under Section 69 of the Act of 1908 has been brought
to our notice which is similar to the provision in Rule 26(k)(i) of the
Andhra Pradesh Registration Rules framed in exercise of power
under Section 69 of the Act of 1908. That being a procedural
matter must be expressly provided in the Act or the Rules
applicable to the concerned State. In absence of such an express
provision, the registration of Extinguishment Deed in question
cannot be labelled as fraudulent or nullity in law. As aforesaid,
there is nothing in Section 34 of the Act of 1908 which obligates
appearance of the other party at the time of presentation of
Extinguishment Deed for registration, so as to declare that such
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registration of document to be null and void. The error of the
Registering Officer, if any, must be regarded as error of procedure.
Section 87 of the Act of 1908 postulates that nothing done in good
faith by the Registering Officer pursuant to the Act, shall be
deemed invalid merely by reason of any defect in the procedure. In
the present case, the subject Extinguishment Deed was presented
by the person duly authorized by the Society and was registered by
the Registering Officer. Once the document is registered, it is not
open to any Authority, under the Act of 1908 to cancel the
registration. The remedy of appeal provided under the Act of 1908,
in Part XII, in particular Section 72, is limited to the inaction or
refusal by the Registering Officer to register a document. The
power conferred on the Registrar by virtue of Section 68 cannot be
invoked to cancel the registration of documents already registered.
29. In the dissenting opinion, reference has been made to the
decision of the Division Bench of the Madras High Court in the case
of E.R. Kalaivan (supra). It was a case where the Registering
Officer refused to register the deed of cancellation presented before
him on the ground that the cancellation deed was sought to be
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registered without there being a consent from the purchaser. The
aggrieved person approached the Inspector General of Registration
who in turn issued a circular dated 5.10.2007 addressed to all the
Registering Officers in the State, that the deed of cancellation
should bear the signatures of both the vendor and the purchaser.
The validity of this circular was challenged by way of Writ Petition
before the High Court. In the present case, our attention has
neither been invited to any express provision in the Act of 1908,
Rules framed by the State of Madhya Pradesh nor any circular
issued by the Competent Authority of the State of Madhya Pradesh
to the effect that the Extinguishment Deed should bear the
signatures of both the vendor and the purchaser and both must be
present before the Registering Officer when the document is
presented for registration. Absent such an express provision,
insistence of presence of both parties to the documents by the
Registering Officer, may be a matter of prudence. It cannot
undermine the procedure prescribed for registration postulated in
the Act of 1908.
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30. The moot question in this case is : whether the action of the
Society to cancel the allotment of the plot followed by execution of
an Extinguishment Deed was a just action? That will have to be
considered keeping in mind the provisions of the Act of 1960 and
the Bye-laws of the Society which are binding on the members of
the Society. The interplay of the provisions of the Contract Act and
the Specific Relief Act and of the Co-operative Laws and the Bye
Laws of the Society permitting cancellation of allotment of plot or
the membership of the concerned member will have to be
considered in appropriate proceedings. Whether the decision of the
Society to cancel the allotment of plot made in favour of its member
is barred by the law of Limitation Act, is again a matter to be tested
in the proceedings before the Cooperative Forum where a dispute
has been filed by the appellant, if the appellant pursues that
contention.
31. In our considered view, the decision in the case of Thota
Ganga Laxmi (supra) was dealing with an express provision, as
applicable to the State of Andhra Pradesh and in particular with
regard to the registration of an Extinguishment Deed. In absence of
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48
such an express provision, in other State legislations, the
Registering Officer would be governed by the provisions in the Act of
1908. Going by the said provisions, there is nothing to indicate that
the Registering Officer is required to undertake a quasi judicial
enquiry regarding the veracity of the factual position stated in the
document presented for registration or its legality, if the tenor of the
document suggests that it requires to be registered. The validity of
such registered document can, indeed, be put in issue before a
Court of competent jurisdiction.
32. In the present case, the document in question no doubt is
termed as an Extinguishment Deed. However, in effect, it is
manifestation of the decision of the Society to cancel the allotment
of the subject plot given to its member due to non fulfillment of the
obligation by the member concerned. The subject document is
linked to the decision of the Society to cancel the membership of the
allottee of the plot given to him/her by the Housing Society. In other
words, it is the decision of the Society, which the Society is entitled
to exercise within the frame work of the governing cooperative laws
and the Bye-laws which are binding on the members of the Society.
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The case of Thota Ganga Laxmi (supra), besides the fact that it
was dealing with an express provision contained in the Statutory
Rule, namely Rule 26 (k)(i) of the Andhra Pradesh Registration
Rules 1960, was also not a case of a deed for cancellation of
allotment of plot by the Housing Society. But, of a cancellation of
the registered sale deed executed between private parties, which
was sought to be cancelled unilaterally. Even for the latter reason
the exposition in the case of Thota Ganga Laxmi (supra) will have
no application to the fact situation of the present case.
33. Taking any view of the matter, therefore, we are of the
considered opinion that, the High Court has justly dismissed the
writ petition filed by the appellant with liberty to the appellant to
pursue statutory remedy resorted to by him under the Act of 1960
or by resorting to any other remedy as may be advised and
permissible in law. All questions to be considered in those
proceedings will have to be decided on its own merits.
34. Accordingly, we dismiss this appeal in the above terms with no
order as to costs.
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………………………..J. (Ranjan Gogoi)
…………………………J. (Prafulla C. Pant)
…………………………J. (A.M.Khanwilkar)
New Delhi, Dated: 26th October, 2016