TMI Blog2016 (10) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... tered Extinguishment Deed and the subsequent registered deeds, should it foreclose the issues which involve disputed questions of fact and germane for adjudication by the competent Forum under the Act of 1960? Held that: - the appellant having entered into a compromise deed with the Society and third party (subsequent allottees) in respect of the subject plot, it is doubtful whether it is open to the appellant to question the act of unilateral execution and registration of the stated Extinguishment Deed being irregular much less void and nullity. Indisputably, the respondents-Society is a Cooperative Housing Society Limited and is governed by its Bye-Laws. According to the counsel for the Society, the member is obliged to erect a house on the plot allotted to him within specified time, failing which must suffer the consequence including of cancellation of allotment of plot and removal of his membership. At the time of allotment, the member executes an agreement whereunder he/she undertakes to abide by the conditions specified for erecting a house on the plot allotted to him/her in the manner prescribed therein. Whether the Society is justified in proceeding against the defaultin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al has no power to cancel the registration of any document which has already been registered. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitly to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Admittedly, the documents in question do not fall within Sections 31, 88 and 89. Further, Section 32 does not require presence of both parties to the document when it is presented for registration. In that sense, presentation of Extinguishment Deed by the authorized person of the Society for registration cannot be faulted with reference to Section 34 of the Act of 1908. In absence of any express provision in the Act of 1908 mandating the presence of the other party to the Extinguishment Deed at the time of present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petition filed by the appellant challenging the order passed by the Sub-Registrar (Registration) and the Inspector General (Registration) was rightly dismissed by the High Court. However, His Lordship opined that a question would still arise for consideration, namely, whether in absence of any specific Rule in the State of Madhya Pradesh, the general principle laid down in the case of Thota Ganga Laxmi Anr. vs . Government of Andhra Pradesh Ors. (2010)15 SCC 207 would be applicable? 3. Justice V.Gopala Gowda on the other hand allowed the appeal on the finding that the Sub-Registrar (Registration) had no authority to register the Extinguishment Deed presented by the respondent-Society dated 9th August 2001 and his action of registration of that document was void ab initio . For the same reason, the subsequent deeds in respect of the property in question registered by the Sub-Registrar dated 21st April, 2004 and 11th July 2006 were also without authority and void ab initio. His Lordship held that, the High Court should have declared the above position and set aside registration of the subject documents and also the orders passed by the Sub-Registrar (Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject plot in favour of Mrs. Meenakshi and Mr. S.C. Sharma (Respondent Nos. 6 7) vide registered Deed dated 11th July 2006. Since the appellant was perseverating the dispute and resorting to multiple proceedings in relation to the subject plot, the respondents issued a notice on 12th July 2007 asking the appellant to refund the consideration amount accepted by him in furtherance of the compromise deed dated 6th July 2004. The appellant did not pay any heed to that demand and instead continued with the multiple proceedings resorted to by him before the Authority under the Act of 1960, including criminal proceedings. The appellant also moved an application before the Sub-Registrar (Registration) calling upon him to cancel the registration of Extinguishment Deed dated 9th August 2001 and the subsequent two deeds dated 21st April 2004 and 11th July 2006 respectively. This application was filed on 4th February 2008 by the appellant. The Sub-Registrar (Registration) by a speaking order rejected the said application on 28th June 2008 mainly on two counts. Firstly, a dispute was pending between the parties with regard to the same subject matter. Secondly, he had no jurisdiction to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 18. The High Court held that the arguments of the appellant deserve to be negatived in light of the majority view of the Full Bench of Andhra Pradesh High Court and that the dictum in the case before the Madras High Court was distinguishable. The High Court also referred to the decision of the Karnataka High Court in M.Ramakrishna Reddy vs. Sub-Registrar, Bangalore AIR 2000 Kar.46. In para 15 and 16, the High Court observed thus: 15. In view of aforesaid discussion we are of the view that after registration of the extinguished deed or other documents by the Sub-Registrar, if any application is moved by any of the affected party of such document stating that the same was not registered by practicing the fraud with his right then Sub-Registrar in the lack of any specific provision in this regard could neither entertain nor adjudicate such application under the provisions of Section 17, 18 or 69 or some other provisions of the Act. Section 69 of the Act only confers the superintending power of registration offices and to make rules to the Inspector General respondent No.2. It does not give any rights to cancel the earlier registered documents or modifying any entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then observed that the principle stated in the case of Thota Ganga Laxmi (supra) cannot be made applicable to the case on hand in absence of a specific Rule in that regard in the State of Madhya Pradesh. Further, on a careful reading of the provisions of the Act of 1908, there is no prohibition to register a document of cancellation of a deed of extinguishment; and that the procedure under Section 35 of that Act cannot be construed to confer a quasi judicial power on the Registering Authority. His Lordship also referred to the decision of the Madras High Court in Park View Enterprises vs. State of Tamil Nadu AIR 1990 Madras 251 wherein it has been observed that the function of the Sub-Registrar for the purposes of registration is purely administrative and not quasi-judicial. He cannot decide whether a document which is executed by a person has had title as is recited in the given instrument. His Lordship found it difficult to agree with the general principle stated in the case of Thota Ganga Laxmi (supra) that the Registering Authority cannot register a unilateral deed of cancellation or extinguishment, in absence of any specific Rule in that behalf. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract agree to substitute a new contract for it, or to rescind or alter, the original contract need not be performed. Thus, for any novation, rescission and alteration of the contract, it can be made only bilaterally and with amicable consent of both the parties. His Lordship then adverted to the scope of Clause 43(1) of the Bye-laws of the Society as amended in the year 1991 and opined that the said Clause can have no retrospective effect for cancellation of the allotment of the plot in the name of appellant s mother vide Extinguishment Deed dated 9th August 2001. The latter is only a subterfuge. Reference is then made to Section 31 of the Specific Relief Act, 1963 to hold that unilateral cancellation of the deed would be in violation of the said provision read with Article 59 of the Limitation Act, 1963, which requires cancellation of any instrument within 3 years. In the present case, the deed in favour of the appellant s mother was executed on 22nd March 1962 and registered on 30th March 1962 concerning the subject plot; and for which reason extinguishment of the said deed after lapse of 39 years was impermissible in law. On this finding, it has been held that the Sub-Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. As regards the observation made by this Court dismissing the Special Leave Petition No.13255/2012 vide order dated 17th July 2013, His Lordship held that the same will be of no avail much less to denude the appellant of the reliefs due to him. His Lordship then held that the compromise executed by the appellant on 6th July 2004 also cannot denude the appellant of the relief - because it is an admitted position that the respondent No.5 through Advocate had sent a legal notice dated 12th July 2007 to rescind the said agreement and called upon the appellant to refund the amount of ₹ 6.50 Lakh received by him with interest. His Lordship also adverted to the decisions of this Court in CAG vs . K.S.Jagannathan (1986) 2 SCC 679 ; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Tru st vs. V.R. Rudani (1989) 2 SCC 691 and Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 SC 233 to hold that the High Court failed to exercise its discretionary power which has resulted in grave miscarriage of justice and entailing in denial of the valuable right guaranteed under Article 300A of the Constitution of India to the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 3 SCC 67, Central Inland Water Transport Corporation Ltd. Anr. vs. Brojo Nath Ganguly Anr. AIR 1986 SC 1571, Indian Council for Enviro-Legal Action vs . Union of India Ors. (2011) 8 SCC 161, Trishala Jain Anr . vs. State of Uttaranchal Anr. (2011) 6 SCC 47, Hamza Haji vs. State of Kerala Anr . (2006) 7 SCC 416 and S.P.Chengalvaraya Naidu (D) By LRs. vs. Jagannath (D) by Lrs. Ors. AIR 1994 SC 853 , during the arguments. Besides the oral arguments, the appellant has filed written submissions on 11th July 2016 and additional written submissions on 12th August 2016 which make reference to several reported cases. The decisions referred to in the written submissions are essentially multiplying the cases on the contention already answered in favour of the appellant by His Lordship Justice V.Gopala Gowda. 10. The respondents, on the other hand, contend that the Writ Petition has been justly rejected by the High Court on the ground that the appellant was pursuing remedy for the same reliefs in substantive proceedings by way of a dispute filed under Section 64 of the Act of 1960 before the competent Forum. Besides the said proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in law or undertake an analytical analysis thereof. If the document registered by the Sub-Registrar is illegal or there is any irregularity, that must be challenged by invoking an appropriate proceedings before a Court of competent jurisdiction. If any cause of action accrues to a member of the Society, in relation to the business of the Society, can be pursued before the cooperative Forum. The appellant has already invoked such remedy. 12. The respondent Nos. 6 and 7 additionally submit that they are purchasers of the subject plot for consideration. They have acted to their detriment in good faith by going ahead with the construction on the plot with the permission of the Society and after obtaining approvals from the Municipal Authorities. They have spent their fortune in doing so. Besides supporting the stand taken by the other respondents, they submit that in the fact situation of the present case no relief in equity is warranted in favour of the appellant. Thus, the Writ Petition filed by the appellant has been justly dismissed with liberty to pursue appropriate remedy. 13. Having considered the rival submissions, including keeping in mind the view taken by the two le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puty Registrar, Cooperative Societies challenging the action of the Society in unilaterally executing and causing registration of the subject Extinguishment Deed dated 9th August 2001 and also the allotment of the subject plot to third party. Pending that dispute, he filed an application before the Sub-Registrar (Registration) for the same relief of cancellation of registration of the Extinguishment Deed and the subsequent deeds in favour of third parties. In addition, the appellant resorted to criminal complaint with reference to the same Extinguishment Deed and the subsequent deeds in favour of third parties. In this backdrop, the High Court declined to entertain the Writ Petition filed by the appellant, which was essentially to challenge the same Extinguishment Deed and subsequent deeds. It is a well established position that the remedy of Writ under Article 226 of the Constitution of India is extra-ordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se deed entered into by the appellant was voluntary and at his own volition or under duress, is essentially a question of fact. That cannot be adjudicated in writ jurisdiction. Depending on the answer thereto, the other issues may become relevant and would arise for consideration. The only relief that can be granted and which has already been clarified by the High Court in the impugned judgment, is to keep all questions open to enable the appellant to pursue the statutory remedy already invoked by him. It is open to the appellant to contend in those proceedings that the Extinguishment Deed could not have been unilaterally executed by the Society. That plea can be examined by the statutory Forum provided for that purpose. The decision of the Society to cancel the allotment of a plot to its member or to rescind his membership and to allot the plot to another member, is undoubtedly the business of the Society. Any cause of action in that behalf, indeed, can be pursued before the Competent Forum by the aggrieved member or his legal representative. That will require examination of the governing cooperative laws and the Bye-laws of the Society - to ascertain whether it is open to the Soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted in cases where the State Authority acts in bad faith or corrupt motives. Merely because some irregularity has been committed in registration of Extinguishment Deed unilaterally presented by the Society for registration or in respect of the subsequent deeds registered at the instance of third party without notice to the appellant, that, by itself, will not result in registration of those documents due to corrupt motives of the State Authority. Moreso, in the present case, the appellant having entered into a compromise deed with the Society and third party (subsequent allottees) in respect of the subject plot, it is doubtful whether it is open to the appellant to question the act of unilateral execution and registration of the stated Extinguishment Deed being irregular much less void and nullity. Indisputably, the respondents-Society is a Cooperative Housing Society Limited and is governed by its Bye-Laws. According to the counsel for the Society, the member is obliged to erect a house on the plot allotted to him within specified time, failing which must suffer the consequence including of cancellation of allotment of plot and removal of his membership. At the time of allotm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs . V.R. Rudani (supra), Hari Vishnu Mamath (supra) will be of no avail in the fact situation of the present case. Suffice it to observe that the High Court had, in our opinion, justly, summarily dismissed the writ petition with liberty to the appellant to pursue statutory remedy under the provisions of the Act of 1960 or by way of a civil suit. Thus understood, it may not be necessary or appropriate to dwelve upon the other issues regarding the merits of the controversy which may have to be adjudicated by the competent Forum. Regarding issue Nos. (d) to (f) 20. It is common ground that the deed regarding allotment of plot to a member of the Society required registration. The allotment of the subject plot in favour of the appellant s mother was accordingly, registered in the office of the Sub-Registrar (Registration). The subject plot was allotted to the appellant s mother consequent to her admission as a member of the Society. As the allotment of the plot by the Society creates and transfers rights in an immovable property, the deed of allotment was required to be registered. But if the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented 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. 23. If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitly to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders. Even this provision does not require presence of both parties to the document when presented for registration before the Registering Officer. Section 35 of the Act of 1908 provides for procedure of admission or denial of execution respectively. The same reads thus: 35. Procedure on admission and denial of execution respectively (1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration when a cancellation deed is presented. The fact remains that if the stipulation contained in Sections 17 and 18 of the Act of 1908 are fulfilled, the Registering Officer is bound to register the document. The Registering Officer can refuse to register a document only in situations mentioned in Sections such as 19 to 22, 32 and 35. At the same time, once the document is registered, it is not open to the Registering Officer to cancel that registration even if his attention is invited to some irregularity committed during the registration of the document. The aggrieved party can challenge the registration and validity of the document before the Civil Court. The majority view of the Full Bench was that if a person is aggrieved by the Extinguishment Deed or its registration, his remedy is to seek appropriate relief in the Civil Court and a Writ Petition is not the proper remedy. 26. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation 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 register able by any provision of law. A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent Court nor was there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to all the Registering Officers in the State, that the deed of cancellation should bear the signatures of both the vendor and the purchaser. The validity of this circular was challenged by way of Writ Petition before the High Court. In the present case, our attention has neither been invited to any express provision in the Act of 1908, Rules framed by the State of Madhya Pradesh nor any circular issued by the Competent Authority of the State of Madhya Pradesh to the effect that the Extinguishment Deed should bear the signatures of both the vendor and the purchaser and both must be present before the Registering Officer when the document is presented for registration. Absent such an express provision, insistence of presence of both parties to the documents by the Registering Officer, may be a matter of prudence. It cannot undermine the procedure prescribed for registration postulated in the Act of 1908. 30. The moot question in this case is : whether the action of the Society to cancel the allotment of the plot followed by execution of an Extinguishment Deed was a just action? That will have to be considered keeping in mind the provisions of the Act of 1960 and the Bye-law ..... 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