Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19-9-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.Nos.28488 and 28551 of 2007andM.P.Nos.1 to 3 & 5 of 2007 in WP No.28551/2007andM.P.Nos.1 and 2 of 2007 in WP No.28488 of 2007WP No.28488 of 2007:A.AppasamyTrusteeVallivalam Desikar Educational TrustPannai Illam, Vallivalam VillageThirukuvalai Taluk, Nagapattinam District.. Petitioner vsThe District RegistrarNagapattinam.. Respondent WP No.28551 of 2007:A.ManaazhaganManaging TrusteeValivalam Desikar Educational TrustBungalow Street, Valivalam & PostThirukuvallai Taluk, Nagapattinam District.. Petitionervs1.The Inspector General of Registration 120, Santhome High Road Santhome, Chennai 4.

The Director of Technical Education Guindy, Chennai 25.

The Sub Registrar Thiruvarur, Thiruvarur District4.A.Appaswamy5.M.Anbarasi6.M.Madhuramangai(RR5 & 6 impleaded as per order ofthe Court in MP No.4/2007 in WP.28551/07dated 19-9-2007).. Respondents https://hcservices.ecourts.gov.in/hcservices/ WP No.28488 of 2007 filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records of therespondent ending with proceedings No.Nil dated 24.8.2007 and quash thesame.WP No.28551 of 2007 filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the first respondentand the District Registrar, Nagapattinam, to furnish the report submittedby the District Registrar, Nagapattinam, on the basis of the enquiry madepursuant to the notice dated 24.8.2007 to the petitioner and quash thesame (prayer amended as per order dt.19.9.07 and made in MP.6/07 inWP.No.28551/07)For Petitioner inWP 28488/2007: Mr.Muthukumarasamy Senior Counsel for Mr.G.R.M.PalaniappanFor Petitioner inWP 28551/2007: Ms.G.ThilakavathiFor Respondents: Mr.V.Arun Additional GovernmentPleader for respondent in WP 28488/2007 and for RR1 to 3 in WP 28551/2007 Mr.Muthukumarasamy Senior Counsel for Mr.G.R.M.Palaniappan for R4 in WP 28551/2007 Mr.V.Raghavachari for RR5 and 6 in WP 28551/2007COMMON ORDERThis order shall govern these two writ petitions in WP Nos.28488 of2007 and 28551 of 2007. 2. The Court heard the learned Counsel on either side. The affidavitsalong with the grounds in respect of the writ petitions are perused. 3.WP No.28488/2007 has been brought forth seeking a writ ofcertiorari to quash a notice issued by the respondent District Registrar, Nagapattinam, dated 24.8.2007, while WP No.28551/2007 is brought forthoriginally seeking a writ of certiorari to quash the entire recordsculminating to the filing of the amendment deed dated 16.8.2007, under https://hcservices.ecourts.gov.in/hcservices/ Document No.336/2007 registered on 16.8.2007, on the file of the thirdrespondent.

The case of the petitioner in WP 28488/2007 in short is that thepetitioner is a Trustee of Vallivalam Desikar Educational Trust; that hehad executed a deed of amendment to the declaration of the Trust on16.8.2007; that the document was registered on the file of the SubRegistrar, Thiruvarur, on the very day, as document No.336/07; that thesaid document was registered only after the Officer satisfying himself asto whether the provisions of the Registration Act had been strictlycomplied with, and made an endorsement thereon, and thus, the registrationhas become completed; that the document has also been handed over; thatwhile the matter stood thus, the impugned notice was issued by the District Registrar on 24.8.2007 stating that the petitioner should appearbefore the Sub Registrar, Thiruvarur, pursuant to a protest petitiongiven, and challenging the same, this writ petition has been brought forth.

As regards WP No.28551/2007, the case of the petitioner therein inshort is that the petitioner is the Managing Trustee of M/s.ValivalamDesikar Educational Trust; that it came into existence by way of aregistered document; that the Trust was established by Manaithunai NathaDesikar; that the petitioner is the grandson; that by a registered Will inthe year 1965, the said Desikar appointed his daughter Kannagammal as the Trustee after his life time; that Kannagammal who succeeded to hisinterest as Trustee, nominated the petitioner as the Managing Trustee forthe Trust to succeed to the interest of the Trust; that the nomination wasdeclared by a deed of declaration on 25.8.2003 which was registered beforethe Sub Registrar, Thiruvarur, and thus, he has been effectivelyfunctioning as the sole Managing Trustee; that the Trust is running aPolytechnic College, known as Valivalam Desikar Polytechnic College, Nagapattinam, which is also a Society registered under the Act; that themembers were nominated by the Founder Trustee; that through the GoverningCouncil of Society, the administration of the College was made; that thepetitioner is made as Chairman for life time; that following the death ofthe mother of the petitioner, now he is in control and management of theaffairs of the institutions; that while the matter stood thus, the fourthrespondent has presented a document before the third respondent, the SubRegistrar, Thiruvarur, seeking an amendment of the Trust Deed andsuppressing all the necessary material facts; that the facts mentioned byhim in the document, are thoroughly false; but, the document has also beenregistered; that the fourth respondent having been removed as the Chairmanof the sole trustee by a letter dated 11.9.2003, has already instituted asuit in O.S.No.410/2004 on the file of the District Munsif's Court, Nagapattinam; that the same is pending; that the fourth respondent ismaking attempts to usurp the administration of the Polytechnic which isthe subject matter of the pending proceedings; that all these matters havebeen suppressed by him when the document for amendment of the trust deedwas submitted by him, on 16.8.2007; that under such circumstances, thepetitioner gave a protest petition before the District Registrar, and itis also pending; and that in view of the same, the entire document and theregistration thereof have got to be quashed by issuance of a writ ofcertiorari. https://hcservices.ecourts.gov.in/hcservices/

When WP No.28551/2007 is pending, the petitioner has taken MP No.6of 2007 seeking an amendment of the prayer in the writ petition, wherebyhe seeks a writ of mandamus to direct the first respondent and the District Registrar, Nagapattinam, to furnish the report submitted by the District Registrar, Nagapattinam, on the basis of the enquiry madepursuant to the notice dated 24.8.2007, to the petitioner. That amendmenthas also been ordered.

In support of WP No.28488/2007, the learned Senior CounselMr.Muthukumarasamy, appearing for the petitioner, would submit that theimpugned notice has got to be quashed since it was made without any legalsanction; that it is an admitted position that the document was placed, and only on being satisfied, the document has been registered by the SubRegistrar; that while the matter stood thus, the District Registrar has nopower or jurisdiction either to summon or to conduct an enquiry on thedocument, which has already been registered, and under the circumstances, that notice has got to be quashed.

The learned Additional Government Pleader for the respondent namelythe District Registrar, would submit that the powers vested under Sec.68of the Registration Act is wide; that only in exercise of the powers, thenotice under challenge has been issued; that while there were suppressionsmade in the document filed for registration, those powers could beexercised by the Registrar to summon, conduct enquiry and proceedaccordingly, and hence, the writ petition has got to be dismissed.

The learned Counsel appearing for the writ petitioner in WPNo.28551/2007, would submit that in the instant case, the document wasplaced by the fourth respondent for making an amendment in the Trust Deed, but suppressing all the necessary facts; that if those facts were broughtto the notice of the Sub Registrar, the document would not have beenregistered; that after coming to know about the same, a protest petitionwas placed by the petitioner herein before the District Registrar; thatthe District Registrar, in view of the powers given under Sec.68 of the Act, has issued the impugned notice; that apart from that, the powers areavailable to him to proceed against the suppression of facts which led tothe registration; that he has also got powers even to prosecute thepersons and impose penalty as one envisaged under Sec.82 of the Act; thatthough he could not punish, in view of the powers available under Sec.82of the Act, it has got to be rightly invoked; that for that purpose, now, the amendment is sought for for filing the report of the DistrictRegistrar after the enquiry is made, before the first respondent, the Inspector General of Registration, in order to exercise his powers under Sec.82 of the Act, and hence, a writ has got to be issued.

The Court paid its anxious consideration on the submissions made. Both the writ petitions for disposal require a short order. 11. It is not in controversy that a Deed of amendment was placedbefore the Sub Registrar, Nagapattinam, on 16.8.2007. The document hasbeen registered and also on completion of the registration, the documenthas been handed over to the petitioner in WP No.28488/2007. While thematter stood thus, the impugned notice calling that petitioner to appearbefore the District Registrar, the respondent therein, has been issued on24.8.2007, which is the subject matter of challenge in that writ petition. https://hcservices.ecourts.gov.in/hcservices/ According to the learned Additional Government Pleader, the notice hasbeen issued pursuant to the powers given to the Registrar under Sec.68 ofthe Registration Act. It would be more apt and appropriate to reproduceSection 68 Sub Section (2) of the Registration Act, 1908, as follows: "68(2): Every Registrar shall have authority to issue (whetheron complaint or otherwise) any order consistent with this Actwhich he considers necessary in respect of any act or omissionof any Sub-Registrar subordinate to him or in respect of therectification of any error regarding the book or the office inwhich any document has been registered. "

The very reading of the above provision would clearly reveal thatthe legislative intent was only to empower the Registrar to issuedirections to the Sub-Registrar in respect of the ministerial functionsand duties. Now, what has been done is a notice issued by the DistrictRegistrar, calling upon the party to appear before the Sub Registrarpursuant to a protest petition in respect of a document which was placedfor registration and registered also. In the instant case, only beingsatisfied, the Sub Registrar could have registered the document. Now, theact of registration is complete. A reading of the above provision wouldclearly reveal that no powers are vested with the Registrar to summon aparty to explain about a document already registered, and whether the actof registration is complete. This provision is only intended forexercising the powers of the Registrar over his subordinates namely the Sub-Registrar, in respect of the ministerial functions and duties. Itdoes not contemplate anything to be done to call for or summon a party toa document either for an enquiry or otherwise. Thus, it would be quiteclear that the notice what has been issued by the Registrar underchallenge, is one without a sanction of law, and hence, it has got to bequashed.

The other writ petition in WP No.28551/2007 has been brought forthoriginally for quashing the document by which the original trust deed wasamended. If the petitioner therein is aggrieved by such an amendment, this is not the forum before which he could approach. The petitioner ifreally aggrieved, must approach the Court of civil law for appropriateremedy. It is a case where an effective and appropriate remedy isavailable. Hence, the petitioner has to approach the Court of civil lawsince that is the only forum before which he could approach, and it is notwithin the ambit of writ jurisdiction of this Court. In suchcircumstances, WP No.28551/2007 has got to be dismissed.

The petitioner has sought for amendment of the prayer in WPNo.28551/2007. By that amendment, he seeks for furnishing a copy of thereport submitted by the District Registrar, Nagapattinam, on the basis ofthe enquiry made pursuant to the notice dated 24.8.2007, to the firstrespondent. Now, at this juncture, it is pertinent to point out that eventhe earliest notice dated 24.8.2007, itself is quashed as above. In suchcircumstances, there is no question of further enquiry or facing the samebefore the first respondent, or a report thereon or giving a copy to thepetitioner that would arise. Hence, WP No.28551/2007 automatically comesto an end. At the same time, the observations made by this Court, willnot impede the petitioner taking appropriate remedy before the appropriateforum if so advised. https://hcservices.ecourts.gov.in/hcservices/

Accordingly, WP No.28488/2007 is allowed quashing the notice ofthe respondent dated 24.8.2007. WP No.28551/2007 is dismissed. No costs. Consequently, connected MPs are closed.nsv/Sd/-Asst. Registrar/true copy/ Sub Asst. RegistrarTo:1.The Inspector General of Registration 120, Santhome High Road Santhome, Chennai 4.2.The Director of Technical Education Guindy, Chennai 25.3.The Sub Registrar Thiruvarur, Thiruvarur District. 4. The District Registrar Nagapattinam.+2 ccs to M/s.G.R.M.Palaniappan, Advocate Sr.Nos.58358,58359.+1 cc to M/s.G.Thilakavathi, Advocate Sr.No.58421.+1 cc to M/s.V.Raghavachari, Advocate Sr.No.58406.+2 ccs to Government pleader Sr.No.58593,58597.AD(CO)dcp/3.10WP Nos.28488 and28551 of 2007