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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  6673 OF 2014

Satya Pal Anand ... Appellant Versus

State of M.P. and Others      ... Respondents

J U D G M E N T

Dipak Misra, J.

The appellant,  a septuagenarian, filed an application

dated 4.2.2008 in the office of  the Sub-Registrar, Bhopal,

the third respondent  herein,  for  cancellation of  registered

documents dated 9.8.2001, 21.4.2004 and 11.7.2006 which

pertain to registration of immoveable property situated on

Plot No. 7-B, Punjabi Bagh, Raisen Road, Bhopal.  As put

forth by the appellant in his application, the said plot was

allotted to his mother, Smt. Veeravali Anand, by the Punjabi

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Housing Cooperative Society Ltd. (for short, “the Society”),

the fourth respondent herein, by entering into a sale deed

dated 22.3.1962, registered on 30.03.1962.  Smt. Veeravali

Anand expired on 12.6.1988.  After her death, the fourth

respondent,  through  its  office  bearer  executed  a  Deed  of

Extinguishment on 9.8.2001 unilaterally cancelling the said

allotment and on the strength of such document, executed a

registered  sale  deed  dated  21.4.2004  in  favour  of  Mrs.

Manjit Kaur, the respondent no. 5 herein.  Mrs. Manjit Kaur

in her turn executed another sale deed dated 11.7.2006 in

favour of the respondent nos. 6 and 7, Mrs. Meenakhsi and

Mr. S.C. Sharma.    

2. As  is  evident,  under  these  circumstances,  the

appellant  moved  the  Sub-Registrar  (Registration)  seeking

cancellation of the Deed of Extinguishment dated 9.8.2001.

The Sub-Registrar rejected the said prayer on two counts,

namely, the dispute between the parties was pending before

the  competent  authority  under  the  M.P.  Cooperative

Societies Act, 1960 (for short ‘the 1960 Act’) and secondly,

his jurisdiction was limited only to the extent of registering

the  documents  and  if  any  party  desired  its  cancellation,

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then  to  verify  that  the  cancellation  deed is  registered  on

appropriate stamp paper.  Thereafter, the appellant filed an

application under Section 69 of the Registration Act, 1908

(for brevity, “the Act”), which was rejected by the Inspector

General (Registration) stating that the powers conferred on

Inspector General (Registration) under Section 69 of the Act

is  limited  to  general  superintendence  of  the  registration

office and making rules and not to provide hearing by any

Sub-Registrar.  The Inspector General further intimated him

that against the order of Sub-Registrar, it was open to the

appellant to initiate appropriate proceedings before a Court

of competent jurisdiction.   

3. Being aggrieved by the aforesaid orders, the appellant

preferred W.P.  No.  13505 of  2008 before the High Court.

The  prayer  in  the  writ  petition  was  for  declaring  the

Extinguishment Deed as well as the subsequent sale deeds

as void ab initio with a further direction to the respondents

to  record  the  cancellation  of  such  documents.   It  was

contended before the High Court that the Extinguishment

Deed was registered contrary to the provisions contained in

Section  17(1)(b)  of  the  Act  by  the  Sub-Registrar  and,

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therefore,  it  was  obligatory  on  the  part  of  the  higher

authorities in exercise of powers under Section 69 of the Act

to declare the said action as ab initio void and consequently

the subsequent sale deeds to be void.    

4. The  said  stand  and  stance  of  the  appellant  was

resisted  by  the  contesting  respondents  contending,  inter

alia, that as the initial allottee, Smt. Veeravali Anand, did

not take any steps for 35 years to raise any construction on

the plot  in  question,  the  respondent  no.  4  registered the

Extinguishment Deed on 9.8.2001.  On the strength of said

deed,  the  respondent  society  executed and registered the

sale deed dated 21.4.2004 in favour of Manjit Kaur.  At that

juncture, the appellant and the respondents, to avoid any

controversy,  entered  into  a  deed  of  compromise  dated

6.7.2004 whereunder the appellant  received consideration

of Rs.6,50,000/- (rupees six lakhs fifty thousand only); Rs.

4,50,000/-  by  demand draft  and  Rs.2,00,000/-  lakhs  by

post  dated  cheques.   Thereafter,  the  appellant  filed  an

application under Section 64 of the 1960 Act before the Dy.

Registrar, Cooperative Societies, forming the subject matter

of Dispute No. 81 of 2005.  Along with said application, an

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application under Section 57(1) of the 1960 Act was filed for

ad  interim  injunction  which  was  granted  by  the  said

authority on 1.2.2006 restraining the respondents to make

any construction over the said property.  The said order of

injunction  stood  vacated  by  order  dated 12.4.2006.   The

said order vacating the order of injunction was affirmed by

the Joint Registrar and the Deputy Registrar was directed to

finally adjudicate the dispute.   

5. As  the  factual  matrix  would  unveil  as  the  appellant

instituted many a legal proceeding against the respondents,

they issued a notice on 12.7.2007 asking him to refund the

consideration  amount  of  Rs.6  lakhs.   Against  various

orders, the appellant preferred three special leave petitions,

i.e. SLP(C) No. 34857 of 2010, SLP(C) No. 13255 of 2012

and the present appeal arising out of SLP(C) No. 9502 of

2012.   The  SLP(C)  No.  34857  of  2010  was  preferred

assailing the maintainability of the revision petition and the

said SLP is pending.  SLP(C) No. 13255 of 2012 relates to

appointment of receiver to protect his interest, which stood

dismissed by order dated 17.7.2013.  I shall refer to the said

order in detail at the appropriate time.  

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6. The  High  Court  took  note  of  the  factual  assertions,

scanned the relevant provisions of the Act, took note of the

authorities  cited by the appellant  and eventually came to

hold that the controversy raised by the appellant could be

adjudicated before the appropriate forum and not in the writ

proceeding.   The  High  Court  further  held  that  the

authorities  under  the  Act  had  correctly  stated  that  they

have no jurisdiction to decide the soundness of registration

of Extinguishment Deed or the sale deeds and declare them

as null and void.  

7. I have heard Mr. Satya Pal Anand, appellant-in-person

and Mr. S.K. Dubey, learned senior counsel for respondent

nos. 1 to 3 and Mr. Satyajit A. Desai, learned counsel for

respondent nos. 5 to 7.

8. Though there are manifold assertions by the appellant

and counter asseverations covering various arenas, the core

issue that arises for consideration in the obtaining factual

matrix  is  whether  the  Deed  of  Extinguishment  and  the

subsequent  sale  deeds  registered  by  the  Sub-Registrar

under the Act could be cancelled by the Sub-Registrar or by

his superior authority in exercise of powers conferred under

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the Act.  There is no cavil over the fact that Extinguishment

Deed was registered on 9.8.2001 and subsequent sale deeds

were registered thereafter.  The stand of the respondents is

that they had paid the amount to the appellant and there is

a finding to that effect in the Special Leave Petition that has

been dismissed by this Court.  

9. Presently,  I  shall  deal  with  the  scheme  of  the  Act.

Section 17 occurring in Part III  of  the Act deals with the

documents  of  which  registration  is  compulsory.   The

controversy pertains to Section 17(1)(b) of the Act, as urged

by the appellant.  The said provision reads as follows:-

“17(1)(b)   other  non-testamentary  instruments which  purport  or  operate  to  create,  declare, assign, limit or extinguish, whether in present or in  future,  any  right,  title  or  interest,  whether vested or contingent, of the value of one hundred rupees  and  upwards,  to  or  in  immovable property;”

10. Section  18  of  the  Act  deals  with  the  documents  of

which registration is optional.  Section 20 of the Act deals

with  the  documents  containing  interlineations,  blanks,

erasures or alterations.  The said provision is reproduced

below:-  

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“20.  Documents  containing  interlineations, blanks,  erasures  or  alterations. –  (1)  The registering officer may in his discretion refuses to accept  for  registration  any  document  in  which any  interlineation,  blank,  erasure  or  alteration appears,  unless  the  persons  executing  the document attest with their signatures or initials such interlineation, blank, erasure or alteration. (2)  If  the  registering  officer  registers  any  such document, he shall, at the time of registering the same,  make  a  note  in  the  register  of  such interlineation, blank, erasure or alteration.

11. Section  21  of  the  Act  provides  for  description  of

property  and  maps  or  plans.   The  said  provision  is  as

under:-

“21.  Description  of  property  and  maps  or plans. (1)  No  non-testamentary  document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. (2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and  by  their  existing  and  former  occupancies, and by their numbers if the houses in such street or road are numbered. (3) Other houses and land shall be described by their  name,  if  any,  and as  being the  territorial division in which they are situate, and by their superficial  contents,  the  roads  and  other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a government map or survey. (4) No non-testamentary document containing a map or plan of  any property comprised therein

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shall  be  accepted  for  registration  unless  it  is accompanied by a true copy of the map or plan, or,  in  case  such  property  is  situate  in  several districts,  by such number of  true copies of  the map or plans as are equal to the number of such districts.”

12. Section 22 deals with the description of  houses and

land by reference to Government maps or surveys.  The said

provision is as follows:-

“22.  Description  of  houses  and  land  by reference to government maps of surveys. – (1) Where  it  is,  in  the  opinion  of  the  State Government, practicable to describe houses, not being houses in towns, and lands by reference to a  government  map  or  survey,  the  State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall,  for  the  purposes  of  section  21,  be  so described. (2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions  of  section  21,  sub-section  (2)  or sub-section (3), shall not disentitle a document to be registered if the description of the property to which  it  relates  is  sufficient  to  identify  that property.”

13. Section 32 of the Act, which occurs in Part VI provides

for persons to present documents for registration.   The said

provision is reproduced below:-

“32.  Persons  to  present  documents  for registration – Except  in the cases mentioned in

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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.”

14. Section 32A of the Act which has been inserted w.e.f.

24.9.2001, lays down compulsory affixing of  photographs,

etc.  Section 33 of the Act stipulates the power of attorney

recognizable for purposes of Section 32.  Section 34 of the

Act  provides  for  enquiry  before  registration  by  the

Registering Officer.  

15. I  have  referred  to  the  aforesaid  provisions  to

understand the scheme of registration and the role of the

Registration Officer.  It is urged by the appellant that the

Extinguishment  Deed  was  registered  contrary  to  the

provisions contained in Section 17(1) (b) of the Act and in a

fraudulent  manner.   Section  17(1)(b)  stipulates  certain

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categories of documents which are required to be registered.

It  stipulates  registration  of  non-testamentary  documents

which purport or operate to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title

or interest, whether vested or contingent, of the value of one

hundred rupees and upwards, to or in immovable property.

It  is  contended  by  the  appellant  that  authority,  on  the

ground of fraud, can declare the deeds to be null and void.

To bolster the said stand, he has drawn inspiration from the

authority in Yanala Malleshwari v. Anantula Sayamma1

(Full  Bench).    Before the Full  Bench, the question arose

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.  Rao, J.,

adverting to the provisions of  the Act  and the Rules and

dwelling upon the concept of fraud held thus:-

“The person, who has ex facie right whether such right is registered or not can always approach the registering authority, with a request to cancel a sale deed, which was registered earlier by such

1  AIR 2007 AP 57

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registering authority by showing that subsequent registration was obtained by fraud by a person who  is  not  entitled  to  transfer  the  property  or that  such  transfer  was  registered  by  playing fraud on  the  owner  or  on the  stranger.  In  the present statutory dispensation, namely, Transfer of Property Act, Contract Act, Specific Relief Act and Registration Act, the Court does not see any prohibition operating on the exercise of inherent power by the registering authority to cancel the sale  deed  earlier  registered,  which  is  likely  to cause prejudice to the true owner as well as to the entire public at large.”

Chandraiah, J., while concurring with Rao, J. opined

that:-

“I would like to reiterate that there is no specific prohibition under the Registration Act, 1908 (for short 'the Act') to register a deed of cancellation. The Registering Officer can refuse registration in the  situations  arising  under  Sections 19  - 22, 32 and 35 and  the  relevant  rules  are  Rules 26, 58 and 117. But in all other cases where the conditions  under  the  Act  i.e., Sections 17 and 18 of  the  Act  are  fulfilled,  the Registering  Officer  is  bound  to  register  the document  and  it  is  not  in  dispute  that  the cancellation  deed  fulfills  the  conditions  for  the purpose  of  registration.  However,  the  Act  does not permit the Registering Officer to enquire into the title of the party presenting the document for registration and the situations mentioned in the above  said  provisions  under  which  the registration  can  be  refused  are  for  different purpose and only under those contingencies he can refuse. This Court cannot enlarge the scope of  these  provisions  under  the  guise  of interpretation of  statute.  Further when there is no  prohibition  under  the  Act  the  Registering

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Officer has to register the documents presented for registration in accordance with law and this Court  by  judicial  interpretation  cannot  impose the same into the statute. It is well settled that what  has  not  been  provided  for  in  a  statute cannot be supplied by Courts and to do so will amount to legislating which is not the function of the Courts.”

16. In the said case, the minority view is to the following

effect:-

“The purpose of noting down these provisions of TP Act and the Registration Act is to come to a conclusion  as  to  whether  a  vendor  retains  any interest  in  the  property  which  he  sold  and  of which a sale deed was executed and registered. The  answer  is  emphatic  'no'.  Therefore,  in  my view, when a person transfers all his rights, his rights in the properly get extinguished and if he tries to get back the property, it has to be done by  challenging  the  sale  deed  which  he  has executed  and  which  is  registered  by  the Sub-Registrar.”

17. It is apt to note here that in the said case, the majority

took  the  view  that  if  a  person  is  aggrieved  by  the

cancellation deed, his remedy is to seek an appropriate relief

in  the  civil  court  and the  writ  petition  is  not  the  proper

remedy.  

18. The  High  Court  in  the  impugned  order  has  also

referred to a Division Bench decision of the Madras High

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Court  in  E.R.  Kalaivan  v.  Inspector  General  of

Registration, Chennai and Anr2.   In the said case, the

Division  Bench  took  note  of  the  decision  in  Yanala

Malleshwari (supra)  and  the  Rule  26(k)  of  the  Andhra

Pradesh Registration Rules  that  was introduced after  the

verdict of the Full Bench.  The Division Bench dealt with

decision  of  the  High  Court  of  Andhra  Pradesh  and  the

constitutional  validity  of  the  newly  amended Rule,  which

provides for adherence to the principles of natural justice

when there is presentation of unilateral cancellation deed.

The  Madras  High  Court  observed  that  the  situation  is

prevalent in Andhra because of rule position and thereafter

proceeded to state thus:-

“In this context, we may also usefully refer to the judgment of a learned single Judge of this Court in  G.D.  Subramaniam  v.  The  Sub-Registrar, Konur3.  The  learned  Judge  has  extensively considered  the  scope  of  registration  of cancellation of sale deed and had ultimately held that such unilateral cancellation of deed cannot be made in the absence of any specific provision for  the  Registrar  to  do  so.  We  are  entirely  in agreement  with  the  said  view  taken  by  the learned single Judge.”

2  AIR 2010 Madras 18 3  2009 CIJ 243 Madras

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Be it noted, after so stating, the Division Bench opined

thus:-

“That  apart,  on  the  facts  of  this  case,  our attention  is  not  drawn  to  any  of  the  specific provision under the Registration Act empowering the  Registrar  to  entertain  a  document  of cancellation for  registration on the ground that the  sale  consideration  was  not  paid  and consequently, received by the vendor. Further, in our opinion, when the Registrar satisfies himself on  the  perusal  of  the  document,  wherein  it  is stated that the full sale consideration is received and on such satisfaction, entertain the document for  registration,  cannot  thereafter  be  conferred with a power for cancellation of the deed on the ground that the full  sale consideration was not paid and received by the vendor. Conferring such power  on  the  Registrar  would  tantamount  to conferring  a  power  to  decide  the  disputed questions.  That apart,  as already stated, in the absence of any provision specifically empowering the  Registrar  to  entertain  a  document  of cancellation  for  registration,  without  the signature of both the vendor and the purchaser, the  deed  cannot  be  entertained.  For  the  said reason,  we  find  no  infirmity  in  the  impugned circular  issued  by  the  Inspector  General  of Registration.”

19. In this  regard,  I  may usefully  refer  to  the  judgment

referred  in  M.  Ramakrishna  Reddy  v.  Sub  Registrar,

Bangalore  and  Another4,  by  a  learned  Single  Judge  of

Karnataka  High  Court.   In  the  said  case,  the  petitioner

therein claimed that he was the lawful owner of the property 4  AIR 2000 Karnataka 46

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contingent, in regard to an immovable property, the value of which is Rs. 100/- or more, and all Gift Deeds as also leases relating to immovable properties for any term exceeding one year, are compulsory registrable.”

Thereafter,  the  learned  Judge  referred  to  various

provisions of the Transfer of Property Act, 1885 and also of

the Act and concluded as follows:-

“.......when a person who claims to be the owner or a person interested in an immovable property, finds  that  someone  else  has  executed  and registered a sale deed or other deed in regard to his  property,  claiming  to  be  the  owner  or  a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs. If he is satisfied such sale deed is  executed by a person without  any title and that the deed is void ab initio, he may even choose  to  ignore  the  same  and  leave  it  to  the person  claiming  title  under  such  deed  to establish his title in appropriate proceedings. A Court  of  Law has  the  jurisdiction  to  declare  a document to be void or even cancel a document. But under no circumstances, a person claiming to be the owner of  a property or  a holder of  a property, can require the Registering Authority to cancel the registration of a document.”

20. In this context,  we may refer  to a two-Judge Bench

decision of this Court in Thota Ganga Laxmi and another

v. Government of Andhra Pradesh and others5.  In the

said case, the High Court of Andhra Pradesh had dismissed 5  (2010) 15 SCC 207

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the  writ  petition  relying  on  the  Full  Bench  decision  in

Yanala Malleshwari (supra).  The father of the appellants

therein  had  purchased  the  plot  in  question  from the  4th

respondent by a registered sale deed dated 21.6.1983 and

since then they were in possession and enjoyment of  the

said  property.   Subsequently,  the  fourth  respondent

unilaterally  registered  the  cancellation  deed  without  any

notice to the appellants.  A writ petition was filed seeking

declaration that  the  cancellation deed was illegal  but the

said writ petition was dismissed holding that the appellants

should approach the civil  court.   This  Court,  in the said

factual matrix opined:-

“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  that  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.”

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Thereafter,  the  Court  referred  to  Rule  26(k)(i)  of

Andhra Pradesh Registration Rules framed under Section 69

of the Act which reads as follows:-

“(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:

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 registerable by any provision of law.”

After  reproducing  the  Rule,  the  Court  proceeded  to

state:-

“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 parties concerned. In

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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.”

21. On a reading of the aforesaid judgment, two aspects

are noticed.  It is evident from paragraph 4 of the judgment

that the Court has opined that the cancellation deed cannot

be executed or registered; and in paragraph 5 of the said

judgment, reference has been made to Rule 26(k)(i) which

has  been  framed  by  the  State  of  Andhra  Pradesh  under

Section 69 of the Act and on that basis, it has been ruled

that the said Rule supports the observations made by the

Court.  It is apt to note here that the case had arisen from

the State of Andhra Pradesh, where specific rule  had come

into force after the pronouncement by the Full Bench in the

case  of  Yanala  Malleshwari (supra).   That  apart  the

observations  made  in  paragraph  4  of  the  decision  is  of

general import.   

22. At this juncture, I think it apt to refer to Section 69 of

the Act, which reads as follows:-

“69.  Power of Inspector-General to superintend registration  offices  and  make  rules  –  (1)  The

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Inspector-General  shall  exercise  a  general superintendence over all the registration offices in the territories under the 59 [State Government], and shall have power from time to time to make rules consistent with this Act—

(a) providing  for  the  safe  custody  of  books, papers and documents;  

(aa) providing  the  manner  in  which  and  the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic  form  under  sub-section  (1)  of  section 16A;]

(b) declaring what language shall be deemed to be commonly used in each district;

(c) declaring  what  territorial  divisions  shall  be recognized under section 21;

(d) regulating the amount of fines imposed under sections 25 and 34, respectively;

(e) regulating  the  exercise  of  the  discretion reposed in the registering officer by section 63;

(f) regulating  the  form  in  which  registering officers are to make memoranda of documents;

(g) regulating  the  authentication  by  Registrars and  Sub-Registrars  of  the  books  kept  in  their respective offices under section 51;

(gg) regulating  the  manner  in  which  the instruments  referred  to  in  sub-section  (2)  of section 88 may be presented for registration;

(h) declaring the  particulars to be contained in Indexes Nos. I, II, III and IV, respectively;

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(i) declaring the holidays that shall be observed in the registration offices; and

(j) generally,  regulating  the  proceedings  of  the Registrars and Sub-Registrars.

(2) The rules so made shall be submitted to the State  Government  for  approval,  and,  after  they have been approved, they shall be published in the  Official  Gazette,  and  on  publication  shall have effect as if enacted in this Act.”

23. The Rule which I  have reproduced has been framed

under the aforesaid provision and has been incorporated as

Rule 26(k)(i).  The question that emerges for consideration is

whether in the absence of any specific rule in the State of

Madhya Pradesh, the general principle laid down in the case

of Thota Ganga Laxmi (supra) would be applicable.     

24. On a careful reading of the provisions of the Act, I do

not find there is any prohibition to register a document of

cancellation or deed of extinguishment.  Section 35 of the

Act  which  deals  with  procedure  cannot  be  construed  to

confer a quasi-judicial  power on the registering authority.

The learned Single Judge of the High Court of Karnataka in

M. Ramakrishna Reddy (supra) has observed that:-

“... If a duly stamped document is presented for registration  with  required  registration  fee  (with supporting  enclosures  required  to  satisfy  the

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provisions relating to valuation and payment of stamp  duty  under  the  Karnataka  Stamp  Act, 1957 and the requirements of Section 230-A or 269-UL  of  Income  Tax  Act,  1961  and  Section 22-A of  the  Registration Act  and Section 26 of Urban Land (Ceiling and Regulation)  Act,  1976 and any other relevant statutory provisions), the Sub-Registrar  will  proceed  to  register  the document.   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.”

It is apt to note there that the learned Single Judge

has referred to a decision of the Madras High Court in Park

View Enterprises v. State of Tamil Nadu6, wherein it has

been  observed  that  function  of  the  Sub-Registrar,  for

purposes of registration, are purely administrative and not

quasi-judicial  and,  therefore,  he cannot  decide whether  a

document  which  is  registered  is  executed  by  a  person

having title as recited in the instrument.   

25. Thus,  in the absence of  any power conferred on the

Registering Authority to adjudicate any aspect, it is difficult 6  AIR 1990 Mad 251

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to agree with the view in Thota Ganga Laxmi (supra) that

the Registering Authority cannot unilaterally register a deed

of cancellation. In my considered opinion, in the absence of

any rule like the one that is prevalent in the State of Andhra

Pradesh, which commands the Registering Officer to 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  declaration  showing  natural

consent, the Registering Authority or the superior authority

cannot refuse to register a deed of cancellation solely on the

ground that the claimant parties to the previously registered

conveyance are not present or they have not given consent.   

26. Section 69 empowers the Inspector General  to  make

rules consistent with the Act.  He has been allocated certain

areas  to  frame  rules.   Rule  26(k)(i)  relating  to  Andhra

Pradesh under Section 69 of the Act may come under any

such regulatory measure.  I do not intend to express any

opinion with regard to the validity of the Rule.  The Rule

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actually provides the manner of verification of execution.  It

is a condition precedent for the purpose of execution and

registration.  In the absence of any rule to opine that by no

stretch of imagination can a cancellation deed be accepted

or registered by the Registering Authority does not appear to

be correct.  It seems to me that it has been broadly stated.

Hence, I am of the view that general observations in Thota

Ganga Laxmi (supra) requires to be considered by a larger

Bench.   

27. Having said that, I would have directed the Registry to

place the  papers before  the Hon’ble  the  Chief  Justice  for

constitution of the larger Bench, but I  am constrained to

refer to certain other facts which are imperative to be stated.

In the case at hand the factual score that is evincible is that

the Society had executed a sale deed in favour of the mother

of the appellant on 22.2.1962.  As the construction was not

raised and there was violation, as claimed by the society, it

executed  the  Extinguishment  Deed  dated  9.8.2001  and

cancelled the sale deed dated 22.2.1962.  On the strength of

the  Extinguishment  Deed,  the  Society  executed  and

registered a sale deed in favour of other private respondents

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and further transactions took place.  As the factual matrix

would  reveal,  the  dispute  raised  by  the  appellant  under

Section  64  of  the  1960  Act  is  still  pending  before  the

competent  authority  for  adjudication.   The said authority

has  the  jurisdiction  to  hold  whether  cancellation  of  the

allotment made in favour of the mother of the appellant was

justified in law.  The said order is further subject to appeal

and  other  proceedings  and,  therefore,  I  refrain  from

adverting to the same.   

28. In this regard, I may refer with profit to the order dated

July 17,  2013 on which reliance has been placed by the

respondents,  passed  in  Satya  Pal  Anand  v.  Punjabi

Housing Cooperative Society & Others7.  In the said case,

the Court has taken note of the dispute pending before the

Registrar under Section 64 of the 1960 Act, questioning the

legality of  the execution of  the Extinguishment Deed and

allotment  of  the  property  in  dispute  in  favour  of  other

respondents.  While dealing with the factum of appointment

of receiver, the Court has observed thus:-

7  SLP(C) No. 13255 of 2012

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“We  must  also  mention  herein  that  during  the pendency  of  these  proceedings,  the  second respondent  sold  the  property  in  favour  of respondent  nos.  4  and  5  by  sale  deed  dated 11.7.2006.  It appears that the Sub-Registrar on inspection of the disputed plot found that there were two constructed duplex and two more near completion as on the date  of  inspection i.e.  on 13.03.2007  of  which  one  was  occupied  by respondent no.4.   

It  must  be  remembered  that  the  instant proceedings  arise  out  of  the  interlocutory proceedings seeking appointment of the receiver at the instance of the petitioner herein.  Having regard to the fact that respondent no. 4 was in possession  of  the  property  in  dispute  at  least since  13.03.2007  admittedly  and  also  having regard to the fact that the petitioner received an amount  of  Rs.6,50,000/-  we  do  not  see  any justification for the appointment of the receiver.”

29. I  have  noted  this  aspect  as  the  counsel  for  the

respondent  has  highlighted  the  said  aspect  for  two

purposes, namely, a dispute before the appropriate forum is

pending for adjudication and that the appellant had entered

into a compromise with the respondents.  It is also urged

that the compromise was entered into to buy peace. Thus,

the appellant has raised a dispute, accepted the money from

the subsequent purchasers and moved the authority under

the Act to cancel the deed of extinguishment.   In such a

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situation, in my view, the writ court has rightly declined to

exercise the jurisdiction.  

30. In view of the foregoing analysis, while not finding any

error  on  the  factual  score  of  the  dismissal  of  the  writ

petition by the High Court,  as stated earlier,  I  am of the

view that the principle by way of general observations stated

in Thota Ganga Laxmi (supra) requires consideration by a

larger Bench and, therefore, the papers be placed before the

Hon’ble the Chief Justice for constitution of a larger Bench.  

.............................J. [Dipak Misra]

New Delhi August 25, 2015

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REPORTABLE IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION   CIVIL APPEAL NO. 6673  OF 2014

      (Arising Out of SLP (C) No.9502 of 2012)

SATYA PAL ANAND                ………APPELLANT

Vs.

STATE OF M.P. AND ORS.         ………RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

   I have gone through the judgment of my

learned  brother  Judge,  Justice  Dipak  Misra,

wherein  certain  relevant  facts  have  been

adverted  to  by  my  learned  brother  on  the

contentious legal issues urged on behalf of the

parties. My learned brother has also adverted

to the relevant provisions under Sections 20,

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21, 22 and 32 of the Indian Registration Act,

1908.

2.    My  learned  brother  Judge  has  also

referred to the full bench decision of the

Andhra  Pradesh  High  Court  in  the  case  of

Yanala Malleshwari  v.  Anantula Sayamma8, the

judgment of the Madras High Court in the case

of  E.R.  Kalaivan  v.  Inspector  General  of

Registration,  Chennai  &  Anr.9 and  the

judgment of the Karnataka High Court in the

case  of  M.  Ramakrishna  Reddy  v.  Sub

Registrar,  Bangalore  &  Anr.10 My  learned

brother judge has also referred the decision

of  this  Court  in  the  case  of  Thota  Ganga

Laxmi & Anr. v. Government of Andhra Pradesh

& Ors.11,  wherein the High Court of Andhra

Pradesh dismissed the Writ Petition of the

appellant therein, relying on the Full Bench

decision of Yanala Malleshwari (supra).

 8 AIR 2007 AP 57 9 AIR 2010 Madras 18 10 AIR 2000 Karnataka 46 11 (2010) 15 SCC 207

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3.  I have also taken into consideration the

fact that the sale deed of the property in

dispute was executed by the Society in favour

of the mother of the appellant on 22.03.1962

in  respect  of  the  plot  involved  in  this

proceeding. The contention urged on behalf of

the  Society  is  that  as  there  was  no

construction raised by the appellant or his

deceased mother on the said plot of land and

therefore, there has been a violation of the

Bye-laws of the Society, as claimed by the

Society  and  hence,  it  has  executed  the

Extinguishment  Deed  dated  09.08.2001  with

respect  to  the  said  plot  of  land  and

cancelled  the  already  registered  absolute

sale deed in favour of the appellant’s mother

dated 22.03.1962.

 4.   On the basis of the registration of the

Extinguishment Deed with respect to the said

plot of land, the subsequent allotment of the

said plot of land took place and the sale

deed was registered by the society in favour

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of  Mrs.  Manjeet  Kaur-respondent  No.5,  who

further  alienated  the  said  plot  and

registered another sale deed in favour of the

respondent Nos.6 and 7.

 5.  My  learned  brother  Judge  has  also

referred to the order dated 17.07.2013 passed

by this Court in SLP (C) No. 13255 of 2012

(Satya  Pal  Anand  v.  Punjabi  Housing

Cooperative Society & Ors.), arising out of

the order dated 03.08.2011, passed in Writ

Petition No. 14548 of 2008 by the High Court

of  M.P.  at  Jabalpur  in  relation  to  the

appointment of receiver with respect to the

said plot of land. This Court held that since

the  respondent  No.5-Mrs.  Manjeet  Kaur  was

already  in  possession  of  the  property  in

dispute  and  the  appellant  had  received  an

amount  of  Rs.6,50,000/-  by  way  of  a

compromise deed, there was no justification

for the appointment of the receiver in the

light of the fact that there was a pending

dispute between the parties under Section 69

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of the M.P. Co-operative Societies Act, 1960,

before the Registrar of Societies. Hence, the

Special Leave Petition filed by the appellant

was  dismissed  by  this  Court.  My  learned

brother, in the present case has also based

his findings on similar reasons.

6.  I respectfully dissent with the said view

taken by my learned brother Judge by giving

the following reasons.

7.  It  is  an  undisputed  fact  that  the

respondent No.4-Punjabi Housing Co-operative

Society Ltd. Bhopal (for short “the Society”)

had allotted the said plot of land in favour

of  the  appellant’s  mother  namely,  Smt.

Veeravali  Anand  and  it  had  executed  the

absolute  sale  deed  dated  22.03.1962  with

regard to the said plot of land in her favour

and  the  same  was  registered  on  30.03.1962

before the jurisdictional Sub-Registrar. The

mother of the appellant died on 12.06.1988,

leaving behind the appellant and his sister

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as her legal heirs to succeed her intestate

property comprising of the said plot of land.

 8.  Subsequent  to  the  death  of  the

appellant’s mother, the Society, represented

by  its  office  bearer  has  executed  an

extinguished  deed  dated  09.08.2001,

unilaterally  cancelling  their  already

registered sale- deed with regard to the said

plot of land. Thereafter, on the strength of

the extinguished deed, the Society executed a

registered  sale  deed  dated  21.04.2004  in

favour of respondent No.5- Mrs. Manjit Kaur

who in turn has executed another sale deed

dated  11.07.2006  in  favour  of  respondent

Nos.6  and  7  (Mrs.  Minakshi  and  Mr.  S.C.

Sharma).  The  said  documents  have  been

fraudulently  registered  by  them  which  is

against  the  acquired  legal  rights  of  the

appellant on the said plot of land, the same

is  void  ab  initio  in  law  as  it  is

impermissible  under  the  provisions  of  the

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Indian  Registration  Act,  1908  read  with

Section 31 of the Specific Relief Act, 1963.

 9.  There is also a reference with regard to

the  taking  of  the  consideration  amount  of

Rs.6,50,000/-  by  the  appellant  from  the

respondent  no.5  vide  the  execution  of  the

Deed  of  Compromise  dated  06.07.2004.  The

appellant has also raised a dispute in that

regard  under  Section  64  of  the  M.P.

Co-operative Societies Act, 1960 before the

Sub-Registrar,  Co-operative  Society,  Bhopal

which is pending in respect of the said plot

of  land.  Besides  this,  some  of  the

litigations between the parties are pending

before different forum i.e. Joint Registrar,

Co-operative  Society,  State  Co-operative

Tribunal and in the High Court.

10. The  appellant  filed  an  application

before  the  Sub-Registrar  (Registration),

seeking  the  cancellation  of  the

extinguishment deed dated 09.08.2001 executed

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by the Society against the appellant’s plot

of  land.  By  order  dated  28.06.2008,  the

Sub-Registrar  (Registration)  dismissed  the

application  of  the  appellant,  holding  that

since the question of sustainability of the

extinguished  deed  dated  09.08.2001  and

interpretation  of  Clause  43(1)  of  the

Bye-Laws of Society are still pending before

Sub-Registrar,  Co-operative  Society  and

various  other  competent  forum,  the

jurisdiction of the Sub-Registrar is limited

only to the extent to register the document.

The Sub-Registrar further held that if any of

the parties want its cancellation, then the

relevant party may file for the registration

of the cancellation deed with regard to the

said plot of land. The appellant filed an

application  under  Section  69  of  the  M.P.

Co-operative Societies Act, 1960, before the

Inspector General, Registration and the same

was dismissed on the ground that it is not

maintainable  and  further  directed  the

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appellant to approach the competent court in

this  regard.  Therefore,  the  aforesaid  Writ

Petition was filed before the High Court by

the appellant wherein he has questioned the

correctness  of  the  order  dated  15.09.2008

passed  by  the  Inspector  General,

Registration, Bhopal wherein it has been held

that  the  Inspector  General  of  Registration

has  the  powers  of  only  general

superintendence  over  the  registration

officers and to make Rules in that regard. He

is  however,  not  empowered  to  hear  any

proceedings  against  the  order  of

Sub-Registrar.

 11. The High Court after adverting to the

aforesaid facts and noting the decision of

the Full Bench of the Andhra Pradesh High

Court in the judgment of  Yanala Malleshwari

(supra) and the judgment of the Madras High

Court  in  the  case  of  E.R.  Kalaivan  v.

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Inspector  General  of  Registration12 and

further, referring to Section 17(1)(b) read

with Rule 69 of the Registration Act, 1908

and Rules, and other judgments of this Court

in the cases of  Government of U.P.  v.  Raja

Mohammad Amir Ahmad Khan13 and  Government of

Uttar Pradesh v. Khan,  has held that as soon

as the registering officer has registered the

documents presented to him for registration,

his function of performance for such document

produced before him is over and therefore, he

becomes a functus officio and does not have

the power even to impound the document under

Section  33  of  the  Registration  Act,  1908.

Further, the High Court has referred to the

judgment of the Karnataka High Court in the

case  of  M.  Ramakrishna  Reddy  (supra)  and

dismissed  the  Writ  Petition  filed  by  the

appellant  in  favour  of  the  respondent

Society.  The  correctness  of  the  same  is

12 AIR 2010 Madras 18 13 AIR 1961 SC 787

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Page 39

questioned  in  this  Civil  Appeal  urging

various legal grounds.  

    12. Having regard to the facts, the rival

legal contentions and the grounds urged in

the writ petition and in these proceedings on

behalf of the parties, the following question

of law would arise for my consideration:  

“Whether  the  appellant  is entitled to seek for the relief of  cancellation  of  the registered  documents  dated 09.08.2001,  21.04.2004  and 11.07.2006,  registered  with respect  to  the  immovable property,  i.e.  plot  No.7-B, Punjabi  Bagh,  Raisen  Road, Bhopal?”  

13. The  said  point  is  required  to  be

answered in favour of the appellant for the

following reasons:

   It is an undisputed fact that the Society

had  executed  an  absolute  sale  deed  dated

22.03.1962 in favour of the deceased mother

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Page 40

of the appellant, Smt. Veeravali which was

registered on 30.03.1962. It is also not in

dispute that she died on 12.06.1988, leaving

behind  the  appellant  and  his  sister  to

succeed  her  intestate  property.  The

respondent-Society has also not disputed the

fact that the appellant is the legal heir of

the deceased Smt. Veeravali Anand, in whose

favour the sale deed was executed for the

said plot of land.

14. The  said  sale  deed  was  unilaterally

cancelled by the Society by way of executing

an extinguishment deed dated 09.08.2001, with

regard  to  the  said  plot  of  land  and

thereafter,  on  the  strength  of  such

extinguished deed, the Society again executed

a  registered  sale  deed  on  21.04.2004  in

favour  of  respondent  No.5  who  in  turn

executed another sale deed dated 11.07.2006

in favour of respondent Nos. 6 and 7.

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 15. The contention urged by the appellant is

that  the  action  of  the  Society  and  the

Sub-Registrar,  who  has  cancelled  the

initially registered sale deed in favour of

Smt.  Veeravali  Anand  by  registering  the

extinguished deed unilaterally, is contrary

to  the  statutory  provisions  of  the  Indian

Registration Act, 1908. In this regard, the

judgment of this Court in the case of Thota

Ganga Laxmi & Anr. (supra) has been relied

upon, wherein this Court has held thus:  

“4. In our opinion, there was no need for  the  appellants  to  approach  the civil court as the said cancellation deed  dated  04-08-2005  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  that  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

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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(k)(i)  relating  to Andhra Pradesh under Section 69 of the Registration Act, 1908, 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:

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

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Bank N.A. v. Standard Chartered Bank and Ors.(2004 (1) SCC 12).

        XXX        XXX           XXX

19. That apart, on the facts of this case, our attention is not drawn to any  of  the  specific  provision  under the  Registration  Act  empowering  the Registrar to entertain a document of cancellation for registration on the ground that the sale consideration was not paid and consequently, received by the vendor. Further, in our opinion, when the Registrar satisfies himself on  the  perusal  of  the  document, wherein  it  is  stated  that  the  full sale consideration is received and on such  satisfaction,  entertain  the document  for  registration,  cannot thereafter be conferred with a power for cancellation of the deed on the ground  that  the  full  sale consideration  was  not  paid  and received  by  the  vendor.  Conferring such  power  on  the  Registrar  would tantamount  to  conferring  a  power  to decide  the  disputed  questions.  That apart,  as  already  stated,  in  the absence of any provision specifically empowering the Registrar to entertain a  document  of  cancellation  for registration, without the signature of both the vendor and the purchaser, the deed  cannot  be  entertained.  For  the said reason, we find no infirmity in

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the  impugned  circular  issued  by  the Inspector General of Registration.”

17. Thus, the decision of this Court and the

Madras High Court in the cases referred to

supra, aptly apply to the fact situation of

the present case. In the present case also

such  an  extinguishment  deed,  which  is

unilaterally registered would be rescinded,

particularly, in the case of sale deed or

extinguishment deed. In this context, Section

62 of the Indian Contract Act, 1872 would

come into play which provides that if the

parties to a contract agree to substitute a

new contract for it, or to rescind or alter

it,  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 the amicable

consent of both the parties. Thus, a deed of

cancellation of the earlier registered sale

deed executed in favour of the Smt. Veeravali

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Anand would amount to an illegal rescission

of  the  absolute  sale  deed  because  if  the

issue  in  question  is  viewed  from  the

application  of  Section  62  of  the  Indian

Contract Act, 1872, then it is clear that any

rescission must be done only bilaterally.

 18. In the case on hand, undisputedly, the

extinguishment deed dated 09.08.2001 and the

cancellation  of  the  sale  deed  dated

22.03.1962 in respect of the said plot of

land involved in this case is unilaterally

done  by  applying  the  clause  43(1)  of  the

Bye-laws  of  the  Society  which  has  been

amended in the year 1991 bearing No.Panji/

Gram  Nirman  90/24  dated  02.01.1992,

communicated  to  the  Society  by  the  Deputy

Registrar, Co-operative Society, Bhopal. The

said  clause  cannot  have  a  retrospective

effect with regard to the cancellation of the

sale deed in the name of the mother of the

appellant and for executing extinguished deed

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with regard to the said plot of land as the

cancellation  deed  which  was  registered  on

09.08.2001  is  only  a  subterfuge.  The  said

clause  of  the  Society  by-laws,  cannot

override  the  statutory  provisions  under

Section 31 of the Specific Relief Act, 1963.

Section 31 of the Specific Relief Act reads

thus:

“31.  When  cancellation  may  be ordered: (1) Any person against whom a  written  instrument  is  void  or voidable,  and  who  has  reasonable apprehension  that  such  instrument, if  left  outstanding  may  cause  him serious injury, may sue to have it adjudged void or voidable; and the court  may,  in  its  discretion,  so adjudge  it  and  order  it  to  be delivered up and cancelled.  

(2) If  the  instrument  has  been registered  under  the  Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office  the  instrument  has  been  so registered;  and  such  officer  shall note on the copy of the instrument

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contained in his books the fact of its cancellation.”

19.  Therefore, the unilateral cancellation

of the sale deed with regard to the said plot

of land against the appellant is contrary to

the provisions as provided under Section 31

of the Specific Relief Act, 1963 read with

Article  59  of  the  Limitation  Act,  1963,

wherein  the  cancellation  of  any  instrument

can be done only within three years, ‘when

the facts entitling the plaintiff to have the

instrument or decree cancelled or set aside

or the contract rescinded first become known

to  him’.  Therefore,  the  respondent-Society

had  no  right  to  unilaterally  cancel  the

absolute sale deed executed in favour of the

appellant’s  mother  in  the  year  1962  with

regard to the said plot of land in the year

2001 after lapse of more than 39 years which

is totally impermissible in law, both for the

Society and the Sub-Registrar. The respondent

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has  neither  any  authority  under  the

provisions of the Registration Act, 1908 nor

under Section 31 of the Specific Relief Act,

1963 read with Article 59 of the Limitation

Act,  1963  to  unilaterally  cancel  the  sale

deed without the authority of law and as such

the  registration  of  the  document  by  the

sub-Registrar amounts to playing fraud on the

power  provided  to  him  under  law  which  is

ultra vires the relevant statutory provisions

and  the  Constitution  of  India.  Further

reliance has been placed upon the judgment of

the Constitution Bench of this Court in the

case of  Pratap Singh  v. State of Punjab14,

wherein  the  Constitution  Bench,  with

reference to the House of Lords,  has clearly

laid down the aforesaid principle as under :

“6. If this were put aside, the second ground of attack on the orders may be viewed  from  two  related  aspects—of ultra  vires  pure  and  simple  and secondly as an infraction of the rule that  every  power  vested  in  a  public body  or  authority  has  to  be  used honestly,  bona  fide  and  reasonably,

14  AIR 1964 SC 72

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though the two often slide into each other.  Thus  Sir  Lyman  Duff,  speaking (in  Municipal  Council  of  Sydney v. Campbell)  in  the  context  of  an allegation  that  the  statutory  power vested  in  a  municipal  corporation  to acquire property had been used in bad faith  which  was  held  to  have  been proved, stated:

“A  body  such  as  the  Municipal Council  of  Sydney,  authorised  to take  land  compulsorily  for specified  purposes,  will  not  be permitted  to  exercise  its  powers for different purposes, and if it attempts to do so, the Courts will interfere. As Lord Loreburn said, in  Marquess  of  Clanricarde  v. Congested Districts Board  

‘Whether it does so or not is a  question  of  fact.'  Where the  proceedings  of  the Council,  are  attacked  upon this  ground,  the  party impeaching  those  proceedings must,  of  course,  prove  that the  Council,  though professing  to  exercise  its powers  for  the  statutory purpose, is in fact employing them  in  furtherance  of  some ulterior object.”

Similarly,  in  Short v.  Poole Corporation Pollock M.R. observed:

“The appellants (represented before the  Court  by  Maugham  K.C.— afterwards  Lord  Maugham)  do  not contest the proposition that where an  authority  is  constituted  under statute  to  carry  out-statutory

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powers  with  which  is  entrusted it, ... if an attempt is made to exercise those powers corruptly—as under the influence of bribery, or mala  fides  —  for  some  improper purpose, such an attempt must fail. It is null and void:  see Reg. v. Governors of Darlington School”.

In the same case Warrington, L.J. said: “No  public  body  can  be regarded  as  having  statutory authority to act in. bad faith or  from  corrupt  motives,  and any  action  purporting  to  be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly  be  held  to  be inoperative. It  may  be  also  possible  to prove  that  an  act  of  the public body, though performed in good faith and without the taint  of  corruption,  was  so clearly  founded  on  alien  and irrelevant  grounds  as  to  be outside  the  authority conferred  upon  the  body,  and therefore  inoperative.  It  is difficult  to  suggest  any  act which  would  be  held  ultra vires  under  this  head  though performed bona fide.””

20. For the aforesaid reasons, I have come

to the conclusion that the Society has no

right to re-allot the said plot of land in

favour of the respondent No. 5 by cancelling

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the already registered sale deed in favour of

the appellant’s mother in the year 1962 which

was  an  absolute  sale  deed.  Further,

registering the sale deed on 21.04.2004 in

favour of respondent no.5, who in turn sold

the said plot of land in favour of respondent

Nos. 6 and 7, is void ab initio in the light

of the fact that according to the bye-Laws of

the  Society, Mrs.  Manjeet-respondent  no.5,

could not have come in possession of the said

plot in the first place as her husband has

already got a plot allotted to him in the

very same Society. Therefore, the transfer of

the said plot of land via subsequent sale

deeds  are  void  ab  initio  in  law  and

therefore, liable to be set aside.

21. For the above stated reasons, it is clear

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, wherein it has been

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stated  that  the  deprivation  of  property

without  the  authority  of  law  is  totally

impermissible  in  law.  Merely  because  the

cancellation of the void extinguishment deed

with regard to the said plot of land and the

subsequent sale deed executed in favour of

the respondent No.5 has not been sought for

by  the  appellant  by  approaching  the  civil

court, it does not disentitle him for seeking

the relief with regard to the said plot of

land for the reason that the cancellation of

the sale deed dated 30.03.1962 after a lapse

of  39  years  has  been  done  without  the

authority  of  law  by  the  Society.  The

subsequent actions of re-registering the sale

deed in favour of the respondent No.5 and

thereafter in favour of respondents Nos.6 and

7 are void ab initio in law. Thus, this Court

has the power to closely examine the same in

these  proceedings  having  regard  to  the

peculiar  facts  and  circumstances  of  the

present case.  

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22. The scope of the powers of this Court under

Article 136 of the Constitution of India has

been discussed in a catena of cases.  In the

case of Arunachalam v. P.S.R. Sadhanantham and

Anr.15 , Chinappa Reddy, J. observed as under:

“4....  Article 136 of  the  Constitution  of India  invests  the  Supreme  Court  with  a plenitude of plenary, appellate power over all  Courts  and  Tribunals  in  India.  The power is plenary in the sense that there are  no  words  in  Article 136 itself qualifying that power. But, the very nature of  the  power  has  led  the  Court  to  set limits to itself within which to exercise such power. It is now the well established practice  of  this  Court  to  permit  the invocation  of  the  power  Under Article 136 only  in  very  exceptional circumstances, as when a question of law of general  public  importance  arises  or  a decision  shocks  the  conscience  of  the Court. But within the restrictions imposed by  itself,  this  Court  has  the  undoubted power  to  interfere  even  with  findings  of fact making no distinction between judgment of  acquittal  and  conviction,  if  the  High Court, in arriving at those findings, has acted  "perversely  or  otherwise improperly"....”

More recently, in the case of  Ganga Kumar

Shrivastav  v. State  of  Bihar16,  this  Court

15 (1979) 2 SCC 297 16 (2005) 6 SCC 211

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laid down the following principles as regards

the power of this Court under Article 136:

“10. ..... i) The  powers  of  this  Court  Under

Article 136 of the Constitution are very wide but in criminal appeals this Court does  not  interfere  with  the  concurrent findings of the fact save in exceptional circumstances.

ii) It  is  open  to  this  Court  to  interfere with the findings of fact given by the High  Court  if  the  High  Court  has acted perversely or otherwise improperly.

iii) It is open to this Court to invoke the power  Under  Article 136 only  in very exceptional  circumstances as  and  when  a question  of  law  of  general  public importance  arises or  a  decision  shocks the conscience of the Court.

iv) When  the  evidence  adduced  by  the prosecution fell  short  of  the  test  of reliability and acceptability and as such it is highly unsafe to act upon it.

v)   Where the appreciation of evidence and finding is vitiated by any error of law of  procedure  or  found  contrary  to  the principles of natural justice, errors of record  and  misreading  of  the  evidence, or where  the  conclusions  of  the  High Court  are  manifestly  perverse  and unsupportable  from  the  evidence  on record.”

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As can be seen from the above case law, the

power vested with this Court is quite wide

and the Court can examine any case to prevent

miscarriage of justice.

23. Therefore, the High Court ought to have

granted  the  relief  to  the  appellant  by

holding that the extinguishment deed executed

with regard to the appellant’s said plot of

land  on  09.08.2001,  without  following  the

procedure contemplated under Section 31(1) &

(2)  of  the  Specific  Relief  Act,  1963  and

Section 54 of the Transfer of Property Act,

1882, is void ab initio in law. The same is

required to be interfered with by this Court

in exercise of its appellate jurisdiction as

there is a grave miscarriage of justice and

the  septuagenarian  appellant  has  been

suffering unnecessarily for the past 14 years

at  the  hands  of  the  Society  and  the

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Sub-Registrar,  who  have  violated  the

provisions of law and deprived the appellant

of  his  valuable  constitutional  right

guaranteed  under  Article  300A  of  the

Constitution of India upon the said property.

Therefore, the appellant is entitled for the

relief as prayed for in this appeal.

24. The contention urged on behalf of the

respondents,  namely  that  this  Court  has

already dismissed the SLP No.13255 of 2012

filed by the appellant earlier, wherein, this

Court  has  examined  the  correctness  of  the

order dated 08.11.2008 of the Joint Registrar

passed  in  exercise  of  his  revisional

jurisdiction with regard to the appointment

of the receiver under Section 64 of the M.P.

State Cooperative Societies Act 1960, at the

instance of the respondents, has no relevance

to  the  reliefs  sought  for  in  the  present

appeal. The prayer sought for in the present

appeal is with regard to cancellation of the

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extinguishment deed and the subsequent sale

deed  executed  by  Society  in  favour  of

respondent  No.5,  who  in  turn  has  executed

another  sale  deed  in  favour  of  respondent

Nos. 6 and 7 with regard to the said plot of

land. Therefore, the prayer in the present

appeal is totally different from the one in

SLP  No.13255  of  2012.  The  order  dated

17.07.2013 passed in SLP No. 13255 of 2012 by

this Court, at para 4, is very clear with

regard to the extinguishment deed which reads

thus:

“4. It appears that after lapse of 40 years, the first respondent purported  to  have  cancelled  the sale  made  in  favour  of  the petitioner’s  deceased  mother.  On 9.8.2001,  a  deed  styled  as Extinguishment  Deed  came  to  be executed by the first respondent before  the  Sub-registrar, Bhopal-the legality of which deed is  required  to  be  examined separately.  However,  we  do  not propose to say anything at this stage.”

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25. In so far as the document of compromise

deed dated 06.07.2004 is concerned, the sum

of  Rs.6,50,000/-  allegedly  voluntarily

received by the appellant from the respondent

No.5 to put an end to the dispute over the

said property is also a void transaction, as

the same has been done during the pendency of

the proceedings before the Sub-Registrar in

relation to the dispute. The said compromise

deed is  void ab initio  in law and the same

cannot be put against the appellant so as to

deny  him  the  relief  sought  by  him  in  the

present appeal. Apart from the said reason,

the notice dated 12.07.2007 served upon the

appellant by the lawyer of respondent No.5

has rescinded the agreement dated 06.07.2004

and she has claimed the refund of 6,50,000/-,

to be returned with interest to her, failing

which  she  will  file  a  suit  for  claim  for

payment of Rs.6,50,000/- with interest. The

said notice is produced at Annexure ‘P-6’ in

the proceedings. The relevant clause 4 of the

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said  notice  is  extracted  hereunder  which

reads thus:-

“4.That after receipt of money by you  frivolous  disputes  are  being raised  by  you.  By  raising unnecessary  disputes  you  have violated compromise dated 6.7.2004. Therefore,  my  client  being constrained  (makes  demand  of  the amount paid to you). Therefore, you are liable to return and pay to my client the amount of Rs.6,50,000/- (Rupees  six  lakh  and  fifty thousand).

Therefore, by means of the notice you are informed that the amount of Rs.6,50,000/- (Rupees six lakh and fifty  thousand)  and  interest thereon at bank rate from date of receipt till the date of payment be returned  to  my  client  within  30 days of receipt of this notice and obtain a receipt in writing after the said period my client shall be entitled to take action before you in the court of law in accordance with law…”

    In view of the aforesaid demand notice,

since the agreement has been rescinded, it

does  not  subsist  and  the  High  Court  by

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placing reliance upon the same has committed

an  error  in  fact  and  in  law  and  has

wrongfully denied the relief to the appellant

even  though  the  same  was  brought  to  the

notice of the High Court by the appellant in

the proceedings before it. For the reasons

stated supra, I have to grant the reliefs in

favour of the appellant as prayed by him and

quash  the  extinguishment  deed  dated

09.08.2001  along  with  the  subsequent  sale

deeds registered in favour of the respondent

No.5 who in turn has sold property in favour

of  respondent  Nos.6  and  7  without  the

authority  of  law.  The  sale  deed  can  be

cancelled under Section 31 of the Specific

Relief  Act,  1963,  by  the  competent  civil

court if the same is challenged within the

period of limitation stipulated under Article

59 of the Limitation Act, 1963. Since the

facts are undisputed in the case on hand and

the respondent Society, after the lapse of 39

years has erroneously and illegally cancelled

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the absolute sale deed registered in favour

of the appellant’s mother, the appellant has

acquired a valid and absolute title to the

property in question and the same could not

have been cancelled by the respondent Society

and the Sub-Registrar as it is void ab initio

in law. Hence, the High Court should have

responsibly  exercised  its  extraordinary

jurisdiction  and  should  have  examined  the

documents of the sale deed with respect to

the  relevant  provisions  of  the  M.P

Co-operative  Societies  Act  and  Rules,  1962

and  the  Bye-laws  of  the  Society.  The

cancellation  of  the  sale  deed  executed  in

favour of the appellant’s mother in the year

1962 by way of the extinguishment deed could

not have been registered by the Sub-Registrar

as he is not empowered to do so. Hence, for

want  of  the  competent  jurisdiction,  in

registering  such  document,  the  High  Court

should  have  exercised  its  extraordinary

jurisdiction to annul the extinguishment deed

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and the transactions of the subsequent sale

deeds,  which  has  not  been  done  by  it.

Reliance has been placed upon the decision of

this  Court  in  the  case  of  CAG  v.  K.S.

Jagannathan17, wherein it has been held thus:

“19. Even  had  the  Division  Bench issued a writ of mandamus giving the directions  which  it  did,  if circumstances  of  the  case  justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions.  Almost  a  hundred  and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said:

“But,  were  there  no  authority upon  the  subject,  we  should  be prepared upon principle to affirm the  judgment  of  the  Court  of Queen’s  Bench.  That  court  has power, by the prerogative writ of mandamus,  to  amend  all  errors which tend to the oppression of the  subject  or  other misgovernment,  and  ought  to  be used when the law has provided no specific remedy, and justice and good  government  require  that there  ought  to  be  one  for  the execution  of  the  common  law  or the provisions of a statute:  

Comyn’s  Digest,  Mandamus (A)....  Instead  of  being astute  to  discover  reasons

17 (1986) 2 SCC 679

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for not applying this great constitutional  remedy  for error and misgovernment, we think  it  our  duty  to  be vigilant  to  apply  it  in every case to which, by any reasonable  construction,  it can be made applicable.”

The principle enunciated in the above case was approved and followed in   King v.   Revising Barrister for the Borough of  Hanley  .  In    Hochtief  Gammon  case this Court pointed out that the powers of  the  courts  in  relation  to  the orders of the government or an officer of  the  government  who  has  been conferred any power under any statute, which  apparently  confer  on  them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on  irrelevant  considerations  or  on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In    Padfield   v.    Minister of Agriculture,  Fisheries  and  Food   the House  of  Lords  held  that  where Parliament had conferred a discretion on  the  Minister  of  Agriculture, Fisheries  and  Food,  to  appoint  a committee of investigation so that it could be used to promote the policy and  objects  of  the  Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court  and  though  there  might  be reasons  which  would  justify  the Minister  in  refusing  to  refer  a complaint  to  a  committee  of investigation, the  Minister’s discretion was not unlimited and if it

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appeared  that  the  effect  of  his refusal  to  appoint  a  committee  of investigation  was  to  frustrate  the policy  of  the  Act,  the  court  was entitled to interfere by an order of mandamus.  In  Halsbury’s  Laws  of England, 4th Edn., vol. I, para 89, it is stated that the purpose of an order of mandamus

“is  to  remedy  defects  of justice;  and  accordingly  it will  issue,  to  the  end  that justice  may  be  done,  in  all cases where there is a specific legal  right  and  no  specific legal remedy for enforcing that right;  and  it  may  issue  in cases where, although there is an  alternative  legal  remedy, yet  that  mode  of  redress  is less convenient, beneficial and effectual.”

20. There is thus no doubt that the High Courts in India exercising their jurisdiction  under  Article  226  have the power to issue a writ of mandamus or a writ in the nature of mandamus or to  pass  orders  and  give  necessary directions where the government or a public  authority  has  failed  to exercise or has wrongly exercised the discretion  conferred  upon  it  by  a statute or a rule or a policy decision of  the  government  or  has  exercised such  discretion  mala  fide  or  on irrelevant  considerations  or  by ignoring  the  relevant  considerations and materials or in such a manner as to frustrate the object of conferring such  discretion  or  the  policy  for implementing which such discretion has been conferred. In all such cases and

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in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give  directions  to  compel  the performance  in  a  proper  and  lawful manner  of  the  discretion  conferred upon  the  government  or  a  public authority, and in a proper case, in order to prevent injustice resulting to  the  concerned  parties,  the  court may  itself  pass  an  order  or  give directions which the government or the public authority should have passed or given  had  it  properly  and  lawfully exercised its discretion.”

                       (Emphasis laid by me)

26. Further reliance has been placed upon the

decision of this Court in the case of  Andi

Mukta  Sadguru  Shree  Muktajee  Vandas  Swami

Suvarna Jayanti Mahotsav Smarak Trust v. V.R.

Rudani18, wherein it has been held thus:  

“20. The  term  “authority”  used  in Article  226,  in  the  context,  must receive a liberal meaning unlike the term  in  Article  12.  Article  12  is relevant  only  for  the  purpose  of enforcement  of  fundamental  rights under Article 32. Article 226 confers power  on  the  High  Courts  to  issue writs  for  enforcement  of  the fundamental  rights  as  well  as

18 (1989) 2 SCC 691

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non-fundamental  rights.  The  words “any  person  or  authority”  used  in Article 226 are, therefore, not to be confined  only  to  statutory authorities and instrumentalities of the State. They may cover any other person  or  body  performing  public duty. The form of the body concerned is  not  very  much  relevant.  What  is relevant  is  the  nature  of  the  duty imposed on the body. The duty must be judged  in  the  light  of  positive obligation  owed  by  the  person  or authority to the affected party. No matter  by  what  means  the  duty  is imposed,  if  a  positive  obligation exists mandamus cannot be denied. 21. In  Praga  Tools  Corpn. v.  C.A. Imanual this  Court  said  that  a mandamus can issue against a person or  body  to  carry  out  the  duties placed on them by the statutes even though they are not public officials or statutory body. It was observed:  

“It is, however, not necessary that  the  person  or  the authority  on  whom  the statutory duty is imposed need be  a  public  official  or  an official body. A niandamus can issue,  for  instance,  to  an official  of  a  society  to compel  him  to  carry  out  the terms of the statute under or by  which  the  society  is constituted  or  governed  and also  to  companies  or corporations  to  carry  out duties placed on them by the statutes  authorising  their undertakings. A mandamus would also  lie  against  a  company constituted  by  a  statute  for

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the  purpose  of  fulfilling public responsibilities.”

22. Here again we may point out that mandamus  cannot  be  denied  on  the ground that the duty to be enforced is  not  imposed  by  the  statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one  imposed  by  statute.  It  may  be sufficient for the duty to have been imposed  by  charter,  common  law, custom or even contract.”7 We share this view. The judicial control over the  fast  expanding  maze  of  bodies affecting  the  rights  of  the  people should  not  be  put  into  watertight compartment.  It  should  remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available  “to  reach  injustice wherever it is found”. Technicalities should  not  come  in  the  way  of granting  that  relief  under  Article 226.  We,  therefore,  reject  the contention  urged  for  the  appellants on  the  maintainability  of  the  writ petition.”

27. Further,  this  Court  has  laid  down  the

following principles with respect to the writ

of certiorari in the 7 judge bench decision in

the  case  of  Hari  Vishnu  Kamath  v. Ahmad

Ishaque19: 19 AIR 1955 SC 233

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“….(1) Certiorari will  be  issued  for correcting  errors  of  jurisdiction, as when  an  inferior  Court  or Tribunal acts without jurisdiction or in  excess  of  it,  or  fails  to exercise it.

(2) Certiorari  will  also  be  issued when the Court or Tribunal acts

illegally  in  the  exercise  of  its undoubted  jurisdiction,  as  when  it decides  without  giving  an opportunity  to  the  parties  to  be heard, or  violates  the principles of natural justice.

(3)  The  court  issuing  a  writ  of certiorari  acts  in  exercise  of  a supervisory  and  not  appellate jurisdiction. One consequence of this is that the court will  not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.

(4)   An  error  in  the  decision  or determination  itself  may  also be amenable to a writ of "certiorari" if it is a manifest error apparent on the  face  of  the  proceedings,  e.g., when it is based on clear ignorance or  disregard  of  the  provisions  of law. In other words, it is a patent error  which  can  be  corrected  by "certiorari"  but  not  a  mere  wrong decision. What is an error apparent on the face of the record cannot be defined  precisely  or  exhaustively, there  being  an  element  of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

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28. Thus, the High Court has failed to exercise

its discretionary power which has resulted in a

grave  miscarriage  of  justice,  thereby,

depriving  the  valuable  constitutional  right

guaranteed  under  Article  300A  of  the

Constitution  of  India  to  the  appellant.  I,

hereby, set aside the said order of the learned

single Judge of the High Court and quash the

impugned  instruments  i.e.  the  extinguishment

deed dated 09.08.2001 and the subsequent sale

deeds  dated  21.04.2004  and  11.07.2006  and

further direct the respondent Nos.6 and 7 to

vacate  the  said  property  and  hand  over  the

possession of the same to the appellant. The

respondents  are  further  directed  to  pay  the

appellant a compensation amount of Rs.10 Lakhs

for his sufferings and the injustice caused to

him by the society for the last 14 years as he

was deprived of his right to enjoy the property

on  account  of  the  arbitrary  and  unilateral

action taken by the society in cancelling the

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sale  deed  in  respect  of  the  property  in

question  executed  in  favour  of  his  deceased

mother.

29.  The appeal is allowed in the above terms.

                     ……………………………………………………………J.                       [V.GOPALA GOWDA]

                                                                       New Delhi, August 25, 2015

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Reportable  IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6673 OF 2014

Satya Pal Anand         Appellant(s)                  Versus State of M.P. and Others     Respondent(s)  

O R D E R  

In view of the difference of opinion between us, the Registry is directed to place the matter before Hon'ble  the  Chief  Justice  of  India,  so  that  an appropriate Bench could be constituted for hearing the matter.

......................J. (Dipak Misra)

......................J.  (V. Gopala Gowda)

New Delhi; August 25, 2015.

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