G.D.Subramaniam v. The Sub Registrar & Ors.

07.07.2006. The petitioner purchased the said property by means ofa registered sale deed dated 14.07.2006 for a consideration ofRs.14,00,000/- from the second respondent through the thirdrespondent. On behalf of the second respondent, the thirdrespondent executed the sale deed and the same was registered at theoffice of the first respondent as document No.3503 of 2006.According to the petitioner, he was put in possession of the saidproperty on the same day and from then onwards, he has been incontinuous possession and enjoyment of the same. 2. Subsequently, the third respondent has entered into a saleagreement with the fourth respondent, who is the brother of thethird respondent, on 03.08.2007 thereby agreeing to sell the verysame property to the fourth respondent and got the documentregistered at the office of the first respondent as document No.3917of 2007. Not stopping with that, on 10.09.2007, the thirdrespondent, without the knowledge and consent of the petitioner,executed a deed styling the same as a "Cancellation Deed" therebynullifying the sale dated 14.07.2006 and got the same registered atthe Office of the first respondent as document No.4433 of 2007.Seeking to quash the said document and for further orders, thepetitioner has come forward with this writ petition.The Issues:-3. It is the contention of the petitioner that the sale madein his favour is perfectly valid in law; when that be so, theunilateral cancellation of the same by the third respondent by meansof the Deed of Cancellation is void under law; that the firstrespondent ought not to have registered the said document as thesame is opposed to public policy and also contrary to the IndianContract Act, the Transfer of Property Act and the IndianRegistration Act; more particularly, Section 32-A of the IndianRegistration Act and so, the registration of the Cancellation Deedto which the petitioner was not a party, is illegal. On thesegrounds, the petitioner has come forward with this writ petition.4. The first respondent has not filed any counter. Therespondents 2 to 4 have filed a common counter, wherein it iscontended that due to long association between the petitioner andthe fourth respondent, at the instance of the fourth respondent whohappens to be the brother of the third respondent, he executed thesale deed dated 14.07.2006 in favour of the petitioner on thepromise of the petitioner that he would pay the sale considerationin due course. It is further contended that though the sale deedwas registered, possession was never handed over to the petitioner.And, since the petitioner did not keep up his promise to pay thesale consideration, the respondents 3 and 4 reasonably believed thatthe petitioner had cheated them and so, in order to avoid anyfurther transaction by the petitioner in respect of the property, https://hcservices.ecourts.gov.in/hcservices/ the Cancellation Deed was executed. In the counter, in respect ofthe other grounds raised in the affidavit of the petitioner, thereis no response.5. With regard to the maintainability of the writ petition,though no ground has been raised in the counter, the learned counselfor the respondents 2 to 4 raised a preliminary objection duringhis arguments regarding the maintainability of the writ petition onthe ground that this writ petition is not maintainable in view ofthe fact that the petitioner has got alternative remedy of gettinghis title declared or getting the cancellation deed cancelled by aCivil Court. The learned counsel relies on a Full Bench judgment ofthe Andhra Pradesh High Court in Yanala Malleshwari and others v.Ananthula Sayamma and others reported in 2007 (1) CTC 97, wherein,by majority, it has been held that a writ Court under Article 226 ofThe Constitution of India has got no power to entertain a writpetition to invalidate a cancellation deed or cancellation of aninstrument which purports to nullify a sale deed. 6. Per contra, the learned counsel for the petitioner wouldsubmit that mere availability of alternative remedy is not a bar forthis Court to entertain the writ petition if such alternative remedyis not efficacious and effective and thus, the writ petition is verymuch maintainable. In support of his contention, the learned counselrelies on a judgment of this Court in P.Rajagurusamy v. The SubRegistrar, Sub Registrar Office, Alandur at Nanganallur, Chennai,reported in 2008 (1) CTC 284, wherein a learned Single Judge of thisCourt, having analysed the scope of Section 32-A of the RegistrationAct, has held that registration of a deed of cancellation of a saleagreement unilaterally executed by one party to the agreement is notlegal and therefore, the same is liable to be quashed. The Analysis:- i)Maintainability:7. Though 59 years have passed off, since we, the people, havegiven to ourselves the Constitution of India, and the Hon'bleSupreme Court has on several occasions well pronounced the lawrelating to the scope of the power of judicial review of the HighCourts under Article 226 of The Constitution of India, more oftenthan not, the High Courts are again and again confronted with suchquestions. In view of the well settled position of law on thissubject, it may not be necessary for this Court to make a copiousreference to too many judgments on this aspect except referring tothe following to reproduce the law laid down:-(i) In Whirlpool Corporation v. Registrar of Trade Marks,Mumbai and others, reported in (1998) 8 SCC 1, the Hon'ble SupremeCourt has vividly stated the law on the subject as follows:- https://hcservices.ecourts.gov.in/hcservices/ " The power to issue prerogative writs underArticle 226 of the Constitution is plenary in nature andis not limited by any other provision of theConstitution. The High Court, having regard to thefacts and circumstances of the case, has a discretion toentertain or not to entertain a writ petition. But theHigh Court has imposed upon itself certain restrictions,one of which is that if an effective and efficaciousremedy is available, the High Court would not normallyexercise its jurisdiction. But the alternative remedyhas been consistently held by the Hon'ble Supreme Courtnot to operate as a bar in atleast three contingenciesviz., where the writ petition has been filed for theenforcement of the any of the fundamental rights orwhere there has been a violation of the principles ofnatural justice or where the order or proceedings arewholly without jurisdiction or the virus of an Act ischallenged.""Therefore, the jurisdiction of the High Court inentertaining a writ petition under Article 226 of theConstitution, in spite of the alternative statutoryremedies, is not affected, specially in a case where theauthority against whom a writ is filed is shown to havehad no jurisdiction or had purported to usurpjurisdiction without any legal foundation."(ii) In ABL International Ltd. And another vs. Export CreditGuarantee Corporation of India Ltd., and others reported in (2004) 3SCC 553, in para 28 of the judgment, the Hon'ble Supreme Court hasheld that " while entertaining an objection as to themaintainability of a writ petition under Article 226 of theConstitution of India, the court should bear in mind the fact thatthe power to issue prerogative writs under Article 226 of theConstitution is plenary in nature and is not limited by any otherprovisions of the Constitution. The High Court having regard to thefacts of the case, has a discretion to entertain or not to entertaina writ petition. The Court has imposed upon itself certainrestrictions in the exercise of this power. (See WhirlpoolCorporation v. Registrar of Trade Marks, Mumbai and others ) Andthis plenary right of the High Court to issue a prerogative writwill not normally be exercised by the Court to the exclusion ofother available remedies unless such action of the State or itsinstrumentality is arbitrary and unreasonable so as to violate theconstitutional mandate of Article 14 or for other valid andlegitimate reasons, for which the Court thinks it necessary toexercise the said jurisdiction". 8. Keeping in view the above principles laid down by theHon'ble Supreme Court, if the issues involved in the instant case https://hcservices.ecourts.gov.in/hcservices/ are viewed, I am sure, for the forthcoming discussions andconclusions, the power of judicial review under Article 226 wouldengulf into its ambit the said issues and thus, this writ petitionis maintainable. 9. Complaints, in plenty, flood the police stations in theState of Tamil Nadu very often, in recent times, alleging that,unscrupulous sellers and landgrabbers, indulge in nullifying thevalid sale made by means of registered sale deeds, by executingcancellation deeds unilaterally and getting the same registered inan ingenious way. The modus operandi is, this court is informed,that unscrupulous elements like landgrabbers approach the formerowners of properties, practice a kind of deception by paying paltryamounts, induce them to execute cancellation deeds without theknowledge and consent of the purchasers and then to execute freshsale deeds in their favour. It is, indeed, a fraud. Based on suchsale deeds, these mighty people squat upon the properties therebydepriving the real owners, who are generally meek, from enjoying theproperties thereby leaving them in the lurch. It is also commonknowledge that the doors of subordinate Courts are knocked at withnumber of Civil Suits where the real owners have to fight forjustice to get their title declared as against these unscrupulouselements. Going by the past experience, the Civil Suits, in normalcourse, take years to conclude. In the meanwhile, it also happensthat some more encumbrance is made thereby creating further cloud inthe title so as to make the issues more complex and complicated.10. "Fraud avoids all judicial acts, ecclesiatical ortemporal" observed Chief Justice Edward Coke of England about threecenturies ago. Therefore, neither the Government nor the Courts oflaw can turn a deaf ear to the distress cries of the aggrieved andbe blind to the alarming situation. The jurisdiction of this Courtunder Article 226 of the Constitution is undoubtedly wide. But,while exercising the same, as a matter of caution, the Courts haveformulated self imposed restrictions on their powers so as to leavethe parties to avail the alternative remedies. But when suchalternative remedy, as in the instant case, is neither efficaciousnor easy to secure without undue hardship and delay, the said selfimposed restrictions cannot be an impediment for the Writ Court toexercise its jurisdiction in order to render substantial justice.The issues involved in the instant case need to have a deep approachof a socio-legal scientist to invent a solution acceptable to thesociety, particularly, the parties to this lis. (vide WhirlpoolCorporation v. Registrar of Trade Marks, Mumbai and others). So, Ihold that availability of alternative remedy,in the facts andcircumstances enumerated above, is not a bar to entertain theinstant writ petition. https://hcservices.ecourts.gov.in/hcservices/ ii)Powers of Registering Officer: 11. A sale is essentially an executed contract, whereby theseller has transferred his title and declared that by means of theexecution of the sale deed for lawful consideration, the purchaserhas become the owner of the property. Thus it is bi-lateral. No suchcontract can be cancelled unilaterally by one party, unless such aright has been reserved in the contract itself. There is nospecific provision for cancellation of a sale in the Transfer OfProperty Act. Section 4 of the said act states that the chapters andsections of the said Act which relate to contracts shall be taken aspart of the Indian Contract Act. Since, a sale is an executedcontract, Sec. 62 of the Indian Contract Act is applicable whichspeaks of conditions under which novation, recession and alterationof a contract can take place. In City Bank, N.A. v. StandardChartered Bank and others reported in (2004) 1 SCC 12, the Hon'bleSupreme Court holds "novation, recession or alteration of a contractunder Section 62 of the Indian Contract Act can only be done withthe agreement of both the parties to the contract. Both the partieshave to agree to set aside the original contract with the newcontract or for recession or for alteration". Thus, it is now toowell settled that a cancellation deed, which is executedunilaterally by one party to the contract is illegal.12. When such a cancellation deed, executed unilaterally byone party is presented before a statutory authority viz., theRegistering officer, the question is, whether he is bound toregister the same despite the fact that obviously the said documentis void or illegal and that the document has not been duly executedas per law. 13. It is the contention of the respondents 2 to 4 that as perthe Indian Registration Act, when a document is presented forregistration, the Registering officer has got only limited powersto make an enquiry as provided under Section 34 of the Act, whereinhe is required to ascertain the following viz., "Section 34 (3)(a):- enquire whether or not suchdocument was executed by the persons by whom it purports tohave been executed;(b) satisfy himself as to the identity of the personsappearing before him and alleging that they have executedthe document (or they are claiming under the document); and(c) in the case of any person appearing as arepresentative, assign or agent, satisfy himself of theright of such person so to appear. https://hcservices.ecourts.gov.in/hcservices/ If he is satisfied on the above aspects, according to the learnedcounsel, the Registering officer has no other option except toregister the document. In the case on hand, it is contended, sincethese conditions were satisfied, the Sub Registrar was right andvery much within his jurisdiction to register the said cancellationdeed. 14. In my considered opinion, it is too hard to accept thesaid contention. Of course, Section 34 of the Act does notexpressly provide that the Registering officer should hold anenquiry in respect of the validity of the document presented forregistration. But, Rule 55 of the Registration Rules states thus:- " 55. It forms no part of a registering officer'sduty to enquire into the validity of a document broughtto him for registration or to attend to any written orverbal protest against the registration of a documentbased on the ground that the executing party had no rightto execute the document; but he is bound to considerobjections raised on any of the grounds stated below:-(a) that the parties appearing or about to appearbefore him are not the persons they profess to be;(b) that the document is forged;(c) that the person appearing as a representative,assign or agent, has no right to appear in that capacity;(d) that the executing party is not really dead, asalleged by the party applying for registration; or(e) that the executing party is a minor or an idiotor a lunatic.At the first blush, on going through Sections 34 and Rule 55, onecan have an impression that it is none of the duty of theRegistering Officer to find out the validity of the document beforeproceeding to register the same. But, indeed, it is not so.Section 34 and Rule 55 speak of the limitations on the powers ofthe Registering Officer to hold enquiry, which would only mean thatthe Registering Officer is not required to hold a roving enquiry todecide the validity of a document presented for registration. Onthe other hand, if, by simply glancing through the document, withoutthere being any necessity to hold any enquiry, the RegisteringOfficer is satisfied that the document is either void ab initio orillegal, in such a situation, it cannot be said at any stretch ofimagination, that the Registering Officer has to blindly registerthe said document. Such kind of construction of Section 34 and Rule55 would only defeat the very object of the Act and the public https://hcservices.ecourts.gov.in/hcservices/ interest. For example, if two persons enter into an agreementthereby one party agrees to kill one "X" for the consideration to bepaid by the other and present the deed for registration, can it besaid that the Registering Officer is bound to register the saiddocument?" If such documents, which are patently void ab initio orillegal, are allowed to be registered, then,such kind ofinterpretation of the Registration Act would not serve the cause ofjustice. The Hon'ble Supreme Court in Kishan Chandar v. GaneshPrasad reported in A.I.R. 1954 SC 316, has held "the registrationAct lays down the formalities and rules of procedure which must becomplied with before the document is presented for registration. Itis the duty of the Registrar to see proper compliance with theprovisions of the Act before the document is registered". 15. In the said backdrop, if the entire scheme of the Act andthe rules are analysed, then it would make one to understand withoutany doubt, that the Registering Officer either on enquiry or withoutan enquiry, should, besides other things, prima facie be satisfiedthat the document is neither illegal nor void and then to registerthe same provided the other requirements are satisfied. If thedocument is ipso facto illegal or void, then, he is not obliged toregister the same and instead he should refuse to register the saiddocument. 16. Section 17 of the Act deals with documents of whichregistration is compulsory and Section 18 of the Act deals with thedocuments of which registration is optional. Section 17(b) isrelevant for our case, which reads as follows:-"Section 17(b): other non-testamentary instruments whichpurport or operate to create, declare, assign, limit orextinguish, whether in present or in future, any right,title or interest, whether vested or contingent, of thevalue of one hundred rupees and upwards, to or inimmovable property."17. A plain reading of the above provision would disclose thatall non testamentary instruments declaring a right or title overimmovable properties worth Rs.100/-and upwards shall be registered.A deed of cancellation of a sale falls within the purview of such aninstrument declaring right and title for an immovable property. Ifany such document cancelling the sale is presented for registration,since the same is compulsorily registrable under Section 17, theRegistering officer is obliged to register the same, provided theexecution of the said document is validly made by mutual consent ofthe parties and the same is not illegal or void. To constitute avalid execution, it should be executed by all parties to the earliersale. Needless to say that unless there is valid execution bycompetent persons, the Registering Officer has to necessarily refuseto register the document. Thus, in a situation where the document is https://hcservices.ecourts.gov.in/hcservices/ either void or illegal or there is no valid execution, theregistering Officer is bound to refuse to register the same. De horssuch a position, if the Registering officer proceeds to register thesaid document, then the said registration would be withoutjurisdiction and not valid.18. Now, let me consider the scope of Section 32-A of the Act.Before the introduction of Section 32-A of the Indian RegistrationAct, there were complaints of impersonations. That would have beenone of the reasons why the parliament,in fitness of things, thoughtit fit to amend the Indian Registration Act so as to introduceSection 32-A which provides that all such deeds shall be signed bythe seller as well as the purchaser and the same shall also beartheir finger prints and photographs. 19. This is undoubtedly a mandatory provision. Unless therequirements of Section 32-A are complied with, the registeringofficer shall refuse to register the document. The proviso added toSection 32-A of the act does not specifically speak of a sale andinstead, it speaks of any document relating to transfer of ownershipof immovable property. Thus, a document nullifying an earlier saleof an immovable property would also fall within the scope of provisoto Section 32-A of the Act. In P.Rajagurusamy vs. The SubRegistrar, Sub Registrar Office, Alandu at Nanganallur Chennaireported in 2008 (1) CTC 284, while dealing with cancellation of anagreement for sale unilaterally by one party to the agreement, alearned Judge of this Court has taken the view that even in respectof cancellation of a mere agreement for sale, while the same ispresented for registration, Section 32-A of the Act requires to becomplied with. The finding of the learned Judge in para 8 is asfollows:-" A reading of the above provision would clearlyindicate that when the document relates to the transfer ofownership of immovable property, the passport sizephotograph and finger prints of each buyer and seller ofsuch property mentioned in the document, should be affixedto the document. In the instant case, though the documentin question is not one transferring the ownership ofimmovable property, but only an agreement for sale enteredinto between the buyer and the seller, this provisionmaking the affixure of the photographs and finger printsof both the buyer and the seller of the property in thedocument, can also be extended to the same. This wouldequally apply to a document for cancellation of anagreement for sale which is placed for registration beforethe Sub Registry."I am in respectful agreement with the said view. Therefore, if adeed of cancellation, unilaterally executed by one party without the https://hcservices.ecourts.gov.in/hcservices/ signature of the other party and without his photograph and fingerprints, is presented for registration, for non-compliance of Section32-A of the Act, the Registering officer should refuse to registerthe document. 20. Now, turning to the judgment of the Full Bench of theAndhra Pradesh High Court in Yanala Malleshwari and others,speaking for majority, His Lordship Justice V.V.S.Rao, after havingelaborately dealt with the identical questions, has ultimately heldin para 66 as follows:-"Therefore, when the provisions of the RegistrationAct and Registration Rules elaborately deal with thecircumstances and situations when the registering officerhas to accept and register the documents and / or as towhen registering officer has to reject the documents forregistration, it is not possible to hold as a generalrule that whenever a cancellation deed is submitted, theregistering officer is bound to reject the acceptance andregistration of the same. Such interpretation wouldrender Section 126 of TP Act (which enables the donor ofa gift to cancel / revoke the same) ineffective. Second,there could be unimaginable number of circumstances whenthe executant himself on his own volition comes beforethe registering officer and desires to cancel the earlierdocument. As already pointed out supra, under Section23-A of the Registration Act, the registering officer canre-register a document totally ignoring the earlierregistration. Further more, under schedule 1-A to theIndian Stamp Act as amended by the Stamp (A.P.Amendment)Act, 1922, cancellation deed is one of the legal documentrecognized in law and a transaction for transfer ofimmovable property is no exception."21.With respect, I am unable to subscribe myself to the saidview taken by the majority for the reasons which follow. Though inpara 54 of the judgment, a reference has been made to Section 32-Aof the Indian Registration Act, which was recently introduced, thelearned Judge has not dealt with the same elaborately. Nobody canhave any quarrel over the legal position that a deed of cancellationof a sale of immovable property of value Rs.100/-and upwards, is adocument which needs compulsory registration. But the learned Judgehas taken the view that to revoke a sale or to cancel the same, theconsent or knowledge of the purchaser is not at all required. In myconsidered opinion, as I have already stated, a sale being abilateral contract, more particularly in view of Section 32-A of theIndian Registration Act, if to be cancelled, it should be donebilaterally by both the parties to the sale. The learned Judge hasexpressed the apprehension that if the law is so interpreted so asto hold that the Registering Officer has power to refuse to register https://hcservices.ecourts.gov.in/hcservices/ a cancellation deed, then, it would render Section 126 of theTransfer of Property Act, which enables the donor of a gift tocancel it or revoke the same, ineffective. With respect, I am ofthe view, that such apprehension has no basis. Section 126 of theTransfer of Property Act is a special provision dealing with thepower of the donor to revoke a gift deed in certain circumstances.Such kind of revocation does not require the consent of thebeneficiary of the gift. Basically, such a gift is not a contractin terms of the definition of contract as found in the IndianContract Act, since gift is a transfer made voluntarily withoutconsideration, whereas, a sale of an immovable property is acontract entered into between two parties where consideration is asine-qua -non. Therefore, revocation of a gift deed cannot beequated to cancellation of a sale deed. Both operate on differentspheres. A reference has also been made in the judgment to Section23-A of the Registration Act. In my considered opinion, Section 23-A which speaks of re-registration of certain documents has nothingto do with cancellation of a validly executed document. It is notto say that invariably in all cases, the registering officer shouldrefuse to register a cancellation deed. We cannot generalise alldeeds of cancellation as illegal or void so as to say that suchdocuments cannot be registered at all. All I would say is that suchcancellation deeds which are executed bilaterally by both theparties to the earlier document can be registered by the registeringofficer, provided, the other requirements of the Indian RegistrationAct are satisfied. But those cancellation deeds executedunilaterally by one party to the earlier transaction, without theconsent of the other party and without complying with therequirements of Section 32-A of the Indian Registration Act, aloneare to be rejected by the Registering Officer. 22. In the minority judgment of His Lordship Justice BilalNazki in para 120, the learned Judge has held as follows:-" Lastly, it was contended by the respondents thatunder no provision of law the Sub-Registrar is requiredto register a document after an enquiry as to theownership of the property with respect to which adocument is sought to be registered. It may be true thatthere is no such provision in the Registration Act, butif strictly interpreted, then the Registration Act wouldnot empower the registering authority to register anydocument unless it falls within Section 17 or 18 of theRegistration Act. Section 17 mentions those documentswhich are compulsorily registrable and Section 18mentions those documents, of which, the registration isoptional, but, the whole scheme of the Registration Actshows that it is incumbent upon the Registrar not toregister documents that are unlawful. Obviously if aperson has no right in the property and his interests in https://hcservices.ecourts.gov.in/hcservices/ the property had extinguished, if he tries to execute anydocument for the same property, the document would beillegal......................."".........It is only on mere reading of the document thatSub-Registrar would come to a conclusion that thedocument, which was sought to be registered, was anillegal document and as such could not be registered.Therefore, the argument of the learned counsel forrespondents that the Sub-Registrar has no authority tomake enquiries with regard to the title of the partieswho executes the documents, would have to be acceptedwith exceptions. That document has no title over theproperty, the Sub-Registrar is not bound to register sucha document. The Scheme of the Registration Act shows thatdocuments which create interest or extinguish interestare either compulsorily registerable or are to beregistered at the option of the executor. Besides this,what is sought to be revoked by this cancellation deed,is the earlier registered sale deed." (Emphasis supplied)23. In Badugu Venkata Durga Rao v. Surneni Lakshmi reported in2001 (1) ALD 86, a learned Single Judge of the Andhra Pradesh HighCourt has also taken the view that a person who has executed a saledeed and got it registered cannot subsequently execute a documentunilaterally cancelling the earlier sale deed. This view has beenaccepted by His Lordship Bilal Nazki in the minority judgment. 24. In the case on hand, the cancellation deed was executedunilaterally by the third respondent on the ground thatconsideration was not paid by the petitioner. Admittedly, Section32-A of the Act also has not been complied with. Above all,cancellation was made on the ground of non payment of considerationby the petitioner. All the reported decisions are to the effect thatsuch a sale is a completed transaction notwithstanding that theprice agreed upon at the time of execution has never been paid.(vide. A Division Bench Judgement of this court in Govindammalvs.Gopalachariar, reported in 1906 vol.XVI MLJ, page 524). Onpresentation of the said document, the first respondent ought tohave refused to register the same. Thus, the registration of thesaid document is without jurisdiction and therefore, the same isliable to be set aside.25. The view taken by me herein, thus, draws full support fromthe minority judgment in Yanala Malleshwari and others v. AnanthulaSayamma and others and the learned Single Judge of the AndhraPradesh High Court in Badugu Venkata Durga Rao v. Surneni Lakshmiand a learned single Judge of this court in P.Rajagurusamy vs. TheSub Registrar, Sub Registrar Office, Alandu at Nanganallur Chennai. https://hcservices.ecourts.gov.in/hcservices/

26. After the Full Bench judgment of the Andhra Pradesh HighCourt in Yanala Malleshwari and others v. Ananthula Sayamma andothers case, the Andhra Pradesh Government introduced Rule 26-(k) ofthe Andhra Pradesh Registration Rules by means of an amendment dated29.11.2006, which reads as follows:-(i) The Registering Officer shall ensure at the timeof presentation for registration of cancellation deeds ofpreviously registered deed of conveyance on sale beforehim that such cancellation deeds are executed by allexecutant and claimant parties to the previouslyregistered conveyance on sale and that such cancellationdeed is accompanied by a declaration showing mutualconsent or orders of a competent Civil or High Court ofState or Central Government annulling the transactioncontained the previously registered deed of conveyance onsale;Provided that the registering officer shall dispensewith the execution of cancellation deeds by executant andclaimant parties to the previously registered deeds ofconveyances on sale before him if the cancellation deed isexecuted by a Civil Judge or a Government Officercompetent to execute Government orders declaring theproperties contained in the previously registeredconveyance on sale to be Government or Assigned orEndowment lands or properties not registrable by anyprovision of law.(ii) Save in the manner provided for above, nocancellation deed of a previously registered deed ofconveyance on sale before him shall be accepted forpresentation for registration. The said rule 26 (k) was challenged before the Andhra Pradesh HighCourt in Kaitha Narasimha v. The State Government of A.P., rep. Byits Principal Secretary,(W.P.No.3744/2007) by contending that thesame is ultra vires of the provisions of the Registration Act, 1908and is contrary to the judgment of the Full Bench in YanalaMalleshwari and others v. Ananthula Sayamma and others. TheDivision Bench of the Andhra Pradesh High Court,by order dated13.3.2007., while upholding the said Rule has held as follows:-" In our opinion, the impugned rule does not in anymanner violate the ratio of the majority judgment of theFull Bench. Rather, as mentioned above, it is a statutoryembodiment of one of the rules of natural justice and isintended to curtail unnecessary litigation emanating fromthe ex parte registration of cancellation deeds." https://hcservices.ecourts.gov.in/hcservices/ As indicated in the above judgment, the principles of naturaljustice are also to be adhered to by the Registering Officer whiledealing with a deed of cancellation of sale. If a unilateralcancellation deed is allowed to be registered, without the knowledgeand consent of the other party to the earlier contract, as held bythe Division Bench of the Andhra Pradesh High Court, suchregistration would cause violence to the principles of naturaljustice and lead to unnecessary litigations emanating therefrom.27. When a public authority has acted without jurisdiction orin violation of principles of natural justice, while performing apublic function, the self imposed restrictions on the powers of theHigh Court under Article 226 of The Constitution of India,cannot place hurdles upon this court to interfere so as tosafeguard the buyer's rights by setting aside the said act of thepublic authority. 28. Now, it is time to have a glance through the judgment ofthe Hon'ble Supreme Court in State of Rajasthan v. Basanth Nahatareported in A.I.R. 2005 SCC 3401, wherein the constitutionality ofSection 22-A of the Registration Act as amended by the State ofRajasthan and also the notifications issued by it in terms thereofwere tested. Section 22-A as it stood introduced is as follows:-" 22-A. Documents registration of which is opposedto public policy:- (1) The State Government may, bynotification in the Tamil Nadu Government Gazette,declare that the registration of any document or class ofdocuments is opposed to public policy.(2) Notwithstanding anything contained in this Act,the registering officer shall refuse to register anydocument to which a notification issued under sub-section(1) is applicable." 29. While striking down Section 22-A of the Act, the Hon'bleSupreme Court has held " the necessity of the legislature’sdelegating its powers in favour of the executive is a part oflegislative function. It is a constituent element of the legislativepower as a whole under Article 245 of the Constitution. Suchdelegation of power, however, cannot be wide, uncanalised orunguided. The legislature while delegating such power is required tolay down the criteria or standard so as to enable the delegatee toact within the framework of the statute. A subordinate legislationwhich is not backed up by any statutory guideline under thesubstantive law and opposed to the enforcement of a legal right,would not be valid. The principle on which the power of thelegislature is to be exercised is required to be disclosed. It isalso trite that essential legislative functions cannot be delegated. https://hcservices.ecourts.gov.in/hcservices/ The procedural powers are, therefore, normally left to be exercisedby the executive by reason of a delegated legislation...........""The executive while making a subordinate legislation cannot bepermitted to open new heads of public policy in its whims . Theprovisions of the Act, therefore, do not lay down any guidelines torender it constitutional. The notifications issued by the State ofRajasthan themselves show that the uncertain position to which theparties to a transaction evidenced by a deed or a document can beput to. Despite the words of caution that the Court's duty is toexpound the law and not expand, new heads of illegality of contractbeing opposed to public policy have been found out and in any event,there exists such a possibility........""The legislature of a State may lay down as to which acts wouldbe immoral being injurious to the society. Such a legislation beingsubstantive in nature must receive the legislative sanctionspecifically and not through a subordinate legislation or executiveinstructions. The phraseology "opposed to public policy" mayembrace within its fold such acts which are likely to deprave,corrupt or injurious to the public morality and, thus, essentiallyshould be a matter of legislative policy." 30. The State of Tamil Nadu also introduced a similarprovision viz., Section 22-A. Based on the decision of the Hon'bleSupreme Court in the above judgment, a Division Bench of this Courtin the case of B.Purushuothaman (Died), P.Indhurani and PratheepKumar (Minor) rep. By his mother andnatural guardian,P.Indhurani VSK.Chandran, The Inspector General of Registration, The Joint SubRegistrar-I and the Tahsildar in W.P.Nos.757 and 758 of 2007,struck down the said Tamil Nadu State amendment. The Government ofTamil Nadu had in exercise of power under Sec.22A, issuedG.O.Ms.No.150, Commercial Tax Department dated 22.09.2000, which wasalso struck down. The suggestion:After the above developments, the State of TamilNadu,obviously, has not considered the situation prevailing in theState necessitating introduction of an appropriate provision in theAct or in the Rules itself so as to prevent registration ofdocuments which are opposed to public policy. As we have noticed,the Andhra Pradesh Government has duly introduced Rule 26(k) of theAndhra Pradesh Registration Rules making it mandatory for theRegistering Officer, not to register a deed of cancellation of asale deed, if it is not executed mutually by the parties to theearlier sale deed. If it is the intention of the Government ofTamil Nadu, not to allow registration of certain kinds of deeds suchas deeds of cancellation of sale, executed unilaterally, even now,it is left open to the Government of Tamil Nadu to bring an https://hcservices.ecourts.gov.in/hcservices/ appropriate amendment to the Registration Act or to the Rules as hasbeen done in Andhra Pradesh in tune with the law declared by theHon'ble Supreme Court in State of Rajasthan v. Basanth Nahata bymaking it mandatory for the Registering officers to refuse toregister certain documents which are opposed to public policy bysuccinctly defining the documents in the statute itself withoutdelegating the power to define the same to the Executive. This courtis hopeful, that the Government will take serious note of thesituation prevailing in the State and fall in line with AndhraPradesh Rules.The conclusions:31. Out of the foregoing discussions, the emerging conclusionsare summed up as follows:-(i) Challenging registration of a unilaterally executed deedof cancellation of a sale, a writ petition is maintainable underArticle 226 of the Constitution of India;(ii) A deed of cancellation of a sale executed by mutualconsent by all parties to the sale deed, if presented forregistration, the registering Officer is bound to register the sameprovided the other requirements like Section 32-A of theRegistration Act have been complied with.(iii) The Registering Officer is obliged legally to reject andto refuse to register a deed of cancellation of a sale unilaterallyexecuted without the knowledge and consent of other parties to thesale deed and without complying with sec.32A of the RegistrationAct.The Result:32. In the result, the writ petition is allowed. Theregistration of the cancellation deed (document No.4433 of 2007) bythe first respondent is hereby quashed. Having regard to the factsand circumstances of the case, the respondents 2 to 4 are directedto pay a cost of Rs.10,000/- (Rupees ten thousand only) to thepetitioner. Consequently, connected miscellaneous petitions areclosed.sd/-Asst.Registrar/true copy/Sub Asst.Registrarsbi/pal https://hcservices.ecourts.gov.in/hcservices/ To1. The Sub Registrar, Office of Konur Sub Registrar, Sidco Nagar, Chennai-49.2. The Secretary to Government, State of Tamil Nadu, Fort St.George, Chennai - 9. (for circulation to all the Registering Officers through out the State of Tamil Nadu for compliance.)+ 1 c.c. to Mr. N. Sreenivasulu, Advocate. S.R.No.5395.+ 1 c.c. to Mr. P. Murugan, Advocate. S.R.No.5453.+ 1 c.c. to The Government Pleader. S.R.No.5813. Order in W.P.No.8567 of 2008KLT (CO)GSK 13.02.2009.