Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.11.2007C O R A MTHE HONOURABLE Mr.JUSTICE P.JYOTHIMANIW.P.No.19530 of 2007R.Sreedher.. Petitioner-Vs.-1. The Registering Officer (District Registrar), Office of the Sub Registrar, Virugambakkam, Chennai – 83.

The Inspector General of Registration, Santhome, Chennai – 1... Respondents PRAYER: Petition under Article 226 of the Constitution of India prayingfor the issuance of a Writ of Mandamus directing the respondents tocomplete the registration formalities of the original sale deed dated29.12.2006 registration receipt No.P200600083 dated 29.12.2006 and returnthe same. For Petitioner : Mr.K.Kannan, for Mr.Sunil Kumar. For Respondents : Mr.N.Senthil Kumar, Government Advocate (Writs)

O R D E R This writ petition is filed for a direction against the respondentsto complete the registration formalities of the original sale deedexecuted on 29.12.2006 with registration receipt No.P200600083 dated29.12.2006. 2. The property of an extent of 21.05 acre of land at MaduraivoilVillage comprised in old Survey Nos.432/1, 452/1, 453/1 & 2, 454,455 and 456/1, now comprised in new Survey Nos. 432/1, 452/1A, 453/1,453/2, 454/1, 455 and 456/1A in Chengelpet District originally belongedto M/s. Alstom Limited now known as M/s. Areva T & D India Limited. OneKanchi Kamakoti Janakalyan Trust appears to have shown interest inpurchasing the property for promotion of its own charitable objects andentered into an agreement of sale on 23.10.2002 for a consideration ofRs.9,65,00,000/-. Since the trust could not proceed with the purchase ofthe property, by letter dated 31.03.2002, the petitioner was assigned theright under the agreement authorising him to take further steps forsecuring the sale of the property. Out of the total extent of theproperty, an extent of 32 cents comprised in Survey No.453/2 was stated asa pond porampoke and therefore steps have to be taken for the purpose of https://hcservices.ecourts.gov.in/hcservices/ obtaining patta in respect of that property and there are someencroachments in the said property.

The vendor M/s. Alstom Limited due to their own compulsion forimmediate registration of the document and therefore the petitioner hasobtained a sale deed in respect of the said total extent of the propertyon 29.12.2006. The original sale consideration agreed namelyRs.77,20,000/- corresponding to the market value as stated in the saledeed was also paid by the petitioner to the vendor by way of a DemandDraft. The sale deed itself was entered in pursuance to the original deedof agreement dated 23.10.2002 with Janakalyan Trust as stated above. Thepetitioner paid the registration fee of Rs.9,65,000/- and all othermiscellaneous charges which are required for registration. The documentswere presented to the first respondent for registration on 29.12.2006.However, the first respondent has not registered the document and returnedthe same to the petitioner till date. According to the petitioner, thefirst respondent has no right to retain the document except if it is acase under Section 47(A) of the Indian Stamp Act in respect of undervaluation of the property. As far as the present sale deed is concerned, it is not in dispute that the valuation of the property has been correctlygiven and the same is properly valued and therefore the conduct of thefirst respondent in not completing the registration and returning thedocuments amount to gross illegality affecting the right of the citizenunder Article 14 of the Constitution of India. It is in view of the same, the petitioner has come forward with the present writ petition for therelief as stated above.

The respondents have filed a counter affidavit. The case of therespondents in the counter affidavit is that it is true that in respect ofthe said extent of the property stated above, the sale deed was executedby the vendor in favour of the petitioner on 29.12.2006 and the documentwas presented for registration before the first respondent on payment ofrequired charges in accordance with law. It is also admitted that thestamp duty of Rs.77,20,000/- was paid apart from the registration fee ofRs.9,65,000/- which was also collected from the petitioner. However, itis the case of the respondents as seen in the counter affidavit that thepetitioner gave a representation along with the sale deed when it waspresented for registration that the petitioner had to obtain patta foran extent of 0.32 acres of land comprised in S.No.453/2 which is appearingin the 'A' Register as 'Pond' and therefore the petitioner requested thefirst respondent not to complete the registration till the patta inrespect of the said property is obtained vide his letter dated 29.12.2006.It is the further case of the respondents that in view of the fact thatthe petitioner has no right to sell or transfer the property which hasbeen maintained as 'Pond' and patta having been not issued, no illegalityhas been committed by the first respondent in retaining the document.

Mr.K.Kannan, learned counsel appearing for the petitioner wouldsubmit that when the facts are not in dispute, there is no right on thepart of the first respondent to retain the documents. According to thelearned counsel even assuming that the petitioner has given such arequest, that request itself will not enable the first respondent toretain the document when the petitioner seeks to complete the process ofregistration. As far as the contention in the counter affidavit filed by https://hcservices.ecourts.gov.in/hcservices/ the respondent that a portion of the property of an extent of 0.32 acrescomprised in Survey No.453/2 is stated as pond in the 'A' Registermaintained by the Government, even then it is not the right on the part ofthe first respondent to retain the document on that ground alone. As faras the issuance of patta is concerned, it is for the local or revenueauthority to decide about that and it is not open to the first respondentto decided about the legality or otherwise of title in respect of theproperty.

The learned counsel for the petitioner would also submit thatunder the Registration Act, Section 22-A which as stood earlier dealt withregistration of documents which are opposed to public policy and therewere three circumstances under which the registering authority wereempowered to refuse registration of the documents namely,(a) cases were properties belonged to the Government orthe local bodies such as the Chennai Metropolitan DevelopmentAuthority or Corporations, or Municipalities, or TownPanchayats, or Panchayat Unions or Village Panchayats; or(b) where sale of the property relates to un-approved lay out; or(c) where the properties belong to any religiousinstitutions. The validity of the said Section was considered by the Division Bench ofthis Court reported in 2007 (3) CTC 513 (Captain Dr.R.Bellie and anotherVs. The Sub-Registrar, Registration Office, Sulur, Coimbatore District andothers). The Division Bench has struck down Section 22-A of the Registration Act as unconstitutional and ultra vires of Article 14 of the Constitution of India. The Government has issued a Notification inG.O.Ms.No.150, Commercial Taxes, dated 22.09.2000 in exercise of thepowers conferred under Section 22-A (1) of the Act and that was also cameto be challenged before this Court and a learned Single Judge of this Court has held in W.P.No.7237 of 2006 that once the said Section 22-A hasbeen struck down, any Notification issued under that Section is illegaland not valid.

Thus Mr.K.Kannan, learned counsel would submit that in pursuanceto the judgment of the learned single judge of this Court as stated above, the Government by its Notification in G.O.Ms.No.139, Commercial Taxes and Registration (J1) Department dated 25.07.2007 has withdrawn the saidnotification itself. Further according to the learned counsel, as on dateno such power which was original given to the registering authorities isavailable and therefore there is absolutely no justification on the partof the respondents to retain the document. Mr.K.Kannan, learned counselalso referred to the Tamil Nadu Registration Rules especially withreference to Rule 162 which contemplates circumstances wherein theregistering authority can refuse to register the documents and accordingto the learned counsel, in the case on hand, the first respondent has nojurisdiction to retain or refuse to register the document. In view of thesame, he would contend that there is absolutely no authority on the partof the first respondent to retain the document especially when there is nomaterial to impeach the valuation and in view of the fact that thepetitioner has paid the stamp duty and other registration charges asrequired under law. https://hcservices.ecourts.gov.in/hcservices/

On the other hand Mr.N.Senthil Kumar, learned Government Advocateappearing for the respondents would submit that the first respondent hadto keep the document in abeyance only due to the reason that thepetitioner has given a representation dated 29.12.2006. In fact thelearned Government Advocate produced the letter of the petitioner dated29.12.2006, in which the petitioner has clearly stated that he has takensteps for the purpose of obtaining patta in respect of the said disputedproperty and immediately after the patta is obtained he can proceed forregistration. According to the learned Government Advocate, since a partof the land sought to be registered is a public property and that publicproperty is the subject matter of sale, it cannot be stated as if theregistering authority has no right to raise questions. In this regard, the learned Government Advocate relied upon the Judgement of the FirstBench of this Court rendered in W.P.No.22274 of 2007 wherein the FirstBench has held that in respect of water body / water source porombokelands revenue authorities cannot issue any patta. Therefore, accordingto the learned Government Advocate, when the petitioner has given aletter stating that after obtaining patta from the revenue authorities, hewill approach the registering authorities for the purpose of completingthe sale, since no patta can be issued as per the Judgment of this Court, there is no illegality on the part of the first respondent in notregistering the document.

Heard Mr.K.Kannan, learned counsel appearing for the petitionerand Mr.N.Senthil Kumar, learned Government Advocate appearing for therespondents and perused the entire materials available on record.

On the face of the sale deeds it can been seen that thepetitioner's vendor have originally purchased the property under a saledeed dated 31.07.1963. In the sale deed of the previous vendor there is aclause in respect of the said disputed 32 cents of land which is stated tobe in possession of the previous vendor from the said year onwards andeven in the subsequent documents in 1965, there is reference to thedisputed land and therefore on the face of it, it is clear that as per thesale deed dated 31.07.1963, i.e. from 1963 onwards the disputed portionviz., 32 cents has been in possession of the previous vendors and thequestion as to whether patta to such property can be issued or not, thematter cannot be decided by the registering authority. It is for therevenue authority to decide about the grant of patta in respect of theproperties which are encroachments on the water body / water sourceporamboke lands. Therefore the contention of the learned GovernmentAdvocate that no patta was obtained to this portion of the property andtherefore there is justification on the part of the first respondent inkeeping the document in abeyance, has no meaning.

On the other hand, as rightly pointed out by the learned counselfor the petitioner, under the Registration Act as per Section 22-A of the Act, as enumerated above, only under the said three circumstances therewas justification on the part of the registering authorities in retainingthe documents and that has also now been taken away as per the decision ofthe Division Bench of this Court reported in 2007 (3) CTC 513 (CaptainDr.R.Bellie and another Vs. The Sub-Registrar, Registration Office, Sulur, Coimbatore District and others). The Division Bench of this Court https://hcservices.ecourts.gov.in/hcservices/ following the Judgment of the Hon'ble Apex Court in State of Rajasthan &Ors V. Basant Nahata (2005 (4) CTC 606) has struck down Section 22-A ofthe Registration Act, 1908 as unconstitutional and ultra vires of Article14 of the Constitution of India. The said decision was held on the basisof the concept of public policy in respect of the properties sought to beregistered.

2. Conveyance of lands, converted as house sites withoutthe approved layouts unless a No Objection Certificate issued bythe authority concerned of such local bodies, namelyCorporations, or Municipalities or Town Panchayats, PanchayatUnions, or village Panchayats or Chennai Metropolitan DevelopmentAuthority is produced before the Registering Officer;3. Cancellation of sale deeds without the express consentof the parties to the documents. "6..........7..........8..........ultimately, the Division Bench has held in Para 9 as follows: "9. It has already been pointed out that the Legislatures'of the State has not laid down defining 'public policy' ordocuments which are 'as opposed to public policy'. The provisionwas made vide G.O.Ms.No.150, Commercial Taxes, dated 22.09.00, asquoted above, has also been set aside by this Court vide judgmentdated 20.03.2006 in W.P.No.7237/06. In view of the aforesaidfact, following the ratio laid down by the Supreme Court in thecase of Basant Nahata (supra), we also declare the amendedprovision of Section 22-A as made vide Registration (Tamil NaduAmendment) Act, 1994, unconstitutional and ultra vires Articles14 and 246 of the Constitution of India. "Therefore, as per the the legal position which stands as on date, there isno power on the part of the registering authorities either to retain thedocument or deferring the documents from registration for any reason.

There is one other provision under the Registration Rules forrefusal of registration viz., Rule 162 which reads as follows: "Rule 162: When registration is refused the reasons forrefusal shall be at once recorded in Book 2. They will usuallycome under one or more of the heads mentioned below--I. Section 19:- That the document is written in a languagewhich the registering officer does not understand and which isnot commonly used in the district, and that it is unaccompaniedby a true translation and a true copy.II. Section 20:- That it contains unattestedinterlineations, blanks, erasures or alterations which in theopinion of the registering officer require to be attested.III. Section 21:- (1) to (3) and Section 22:- That thedescription of the property is insufficient to identify it ordoes not contain the information required by rule 18.IV. Section 21 (4):- That the document is unaccompanied bya copy or copies of any may or plan which it contains.V. Rule 32:- That the date of execution is not stated inthe document or that the correct date is not ascertainable.VI. Sections 23,24,25,26,72,75 and 77:- That it ispresented after the prescribed time. https://hcservices.ecourts.gov.in/hcservices/ VII. Sections 32,33,40 and 43:- That it is presented by aperson who has no right to present it.VIII. Section 34:- That the executing parties or theirrepresentatives, assigns or agents have failed to appear withinthe prescribed time.IX. Sections 34 and 43:- That the registering officer isnot satisfied as to the identity of a person appearing before himwho alleges that he has executed the document.X. Sections 34 and 40:- That the registering officer isnot satisfied as to the right of a person appearing as arepresentative, assign, or agent so to appear.XI. Section 35:- That execution is denied by any personpurporting to be an executing party or by his agent.XII. Section 35:- That the person purporting to haveexecuted the document is a minor, or idiot or a lunatic.XIII. Section 35:- That execution is denied by therepresentation or assign of a deceased person by whom thedocument purports to have been executed.XIV. Section 35 and 41:- That the alleged death of aperson by whom the document purports to have been executed hasnot been proved.XV. Section 41:- That the registering officer is notsatisfied as to the fact of execution in the case of a will or ofan authority to adopt presented after the death of the testatoror donor.XVI. Section 25, 34 and 80:- That prescribed fee or finehas not been paid.XVII. Section 230 (A) of the Income Tax Act, 1961 (Act 43of 1961):- That the prescribed certificate from the Income TaxOfficer has not been produced.XVIII. Section 10 of the Tamil Nadu Land Reforms (Fixationof Ceiling of Land) Act, 1961 (Act 58 of 1961):- That thedeclaration has not been filed by the transfer.XIX. Section 27 of the Tamil Nadu Urban Land (Ceiling and Registration)Act, 1978 (Act 24 of 1978):- That the statement hasnot been filed by the transferror and transferee. " A reference to the said rules shows that the issue involved in this casedoes not apply to any one of the instances mentioned therein. Thereforethe first respondent cannot seek protection under any of the provisions ofthe Registration Act as well as the Rules framed therein.

Therefore, in my considered view, the contention of the learnedcounsel appearing for the petitioner that the first respondent has noauthority to retain the document is well founded. The contentions raisedby the learned Government Advocate that in respect of public property, poramboke lands as well as water bodies, the local authority has no powerto issue any patta as per the Full Bench decision of this Court renderedin W.P.No.22274 of 2007 is not in dispute. The learned GovernmentAdvocate referred to the G.O.Ms.No.854, Revenue Department, dated30.12.2006, wherein the Government has issued direction in respect ofissue of patta to those persons occupying Government poramboke land, holding that the guidelines issued by the Government under the said https://hcservices.ecourts.gov.in/hcservices/ Government Order will not enable the revenue authorities to issue patta inrespect of encroachers who have encroached water bodies / water sourceporomboke lands and therefore it is clear that if the said extent of landin the sale deed remains to be a 'pond' then the revenue authorities canreject the claim of any one to issue patta. Therefore it is made clearthat merely because the first respondent has registered and released thedocuments it does not prevent the revenue authorities from considering therequest for issuance of patta in accordance with law as stated above. Itis always open to the local authority to reject such claim if the saidportion is a water body.

In view of the above said facts, the writ petition standsallowed and the first respondent is directed to complete the process ofregistration in respect of the sale deed dated 29.12.2006, if all theother requirements relating to the registration are satisfied and releasethe same within two weeks from the date of receipt of a copy of thisorder. It is needless to state that in the event of the local authoritytaking any action in respect of the issue involved in the presentpetition regarding the said portion of the land, it is always open tothe authorities to proceed as per law and in that event it is also opento the petitioner to raise all his defence in accordance with lawincluding his claim that the portion of the property is in his possessionfrom the year 1963 onwards. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarkkTo1. The Registering Officer (District Registrar), Office of the Sub Registrar, Virugambakkam, Chennai – 83.2. The Inspector General of Registration, Santhome, Chennai – 1.1 cc To Mr.K.Kannan, Advocate, SR.67495.1 cc To The Government Pleader, SR.67398. W.P.No.19530 of 2007 VG(CO)RVL 23.11.2007