IN THE HIGH COURT OF ANDHRA PRADESH : AT AMARAVATI

* * * *

Writ Petition No.19021 of 2015

Between

Captain Paida Janardhana Reddy (died) per LRs

Smt. P. Malathi and another

.… Petitioners

And

The State of Andhra Pradesh, rep. by its

Commissioner & Inspector General,

Registration & Stamps Department,

M.J. Road, Hyderabad.

…. Respondents

JUDGMENT PRONOUNCED ON : 04.03.2020

THE HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI :

1. Whether Reporters of Local newspapers : NO

may be allowed to see the Judgments?

2. Whether the copies of judgment may be : YES

Marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to : YES

see the fair copy of the Judgment?

2

* THE HON’BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

+ Writ Petition No. 19021 of 2015

% 04.03.2020

# Captain Paida Janardhana Reddy (died) per LRs

Smt. P. Malathi and another

…Petitioners

Vs.

$ The State of Andhra Pradesh, rep. by its

Commissioner & Inspector General,

Registration & Stamps Department,

M.J. Road, Hyderabad.

… Respondents

! Counsel for Petitioners : Sri J. Ugra Narasimha

^ Counsel for Respondents 1 & 2 : GP for Stamps and Registration

Counsel for Respondent No.4 : Sri D. Kodanda Rami Reddy

Counsel for Respondent No.5 : Sri S. Srinivas Reddy

<Gist :

>Head Note :

? Cases referred:

1. (2007) 4 SCC 221

2. (2010) 8 SCC 383

3. (1994) 2 SCC 647

4. 2017 (3) ALT 420

5. (2016) 10 SCC 767

6. (1998) 8 SCC 1

7. (2007) 9 SCC 593

8. 2017 (5) ALT 614

9. (2004) 4 SCC 714

10. 2017(5) ALT 614

11. (2008) 12 SCC 306

12. 2015(1) ALT 579

13. (2010) 15 SCC 207

14. 2019(2) ALT 290

3

HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

Writ Petition No.19021 of 2015

Order:

This writ petition is filed “to declare the action of the 2

nd

respondent in registering Document No.322/2011, dated 14.02.2011, as

illegal, without jurisdiction, vitiated by fraud, contrary to the provisions of

Section 6B and 6D of the A.P. Rights in Land and Pattadar Pass Books Act,

1971 (for short ‘the Act’) and Section 32-A of the Registration Act, 1908

and consequently set aside the same”.

Case of the petitioner is that, petitioner’s late father Paida

Chengalvaraya Reddy, was the original owner of the land admeasuring an

extent of Ac.7.94 cents in Sy.No.263 of Pannur Village and after his

demise, petitioner’s name was recorded as pattadar in the record of rights

(Patta No.42) and Pattadar Passbook/title deed was also issued in his

favour under the provisions of the Act; the 4

th

respondent taking

advantage of the absence of the petitioner from the village, executed

fraudulent sale deed dated 14.02.2011, which was registered as

document No.322/2011 in favour of the 5

th

respondent, including the land

of the petitioner admeasuring an extent of Ac.7.94 cents, by appending

the petitioner’s pattadar pass book and making it part of the said sale

deed; in the said sale deed, the 4

th

respondent also made a false

statement that Patta No.42 and Pattadar Pass Book No.K200943, i.e.,

subject land was in the name of her father P. Suresh Reddy, though the

same stands in the name of the petitioner; the 2

nd

respondent registered

the said document, which relates to the total extent of Ac.14.95 cents,

which includes the petitioner’s land without his knowledge and consent;

the Sub Registrar is a party to the said fraud and he also affixed his

4

signature and seal on the pattadar passbook standing in the name of the

petitioner; the said action of the Sub Registrar is contrary to Section 6-B

of the Act and Section 52 of the Registration Act; hence the Writ Petition.

After filing the Writ Petition, the petitioner died, hence petitioners 2

and 3 were brought on record as legal heirs of the deceased 1

st

petitioner

as per the orders of this Court passed in WPMP No.53623 of 2017, dated

28.12.2017.

Counter-affidavit is filed by the 2

nd

respondent stating inter-alia

that as on the date of registration of the said sale deed, production of

Pattadar Passbook and Title Deed was not necessary, as exemption has

been granted by the government; only from 08.05.2012, it was made

mandatory by Circular Memo dated 08.05.2012 and the provisions of

Section 58 of the Registration Act do not authorize the Registering Officer

to enquire into the validity of the instrument; instructions were issued vide

Memo dated 03.04.2010 directing the Registering Officers to accept the

documents presented for registration without insisting pattadar pass

books and title deeds until further orders; subject document was

registered on 14.02.2011 and as on that date, the instructions of the

Commissioner and Inspector General were in force; this Court in WA

No.972 of 2004 held that the Registering Officer is not under statutory

obligation to make any enquiry into the document.

Counter-affidavit is also filed by the 4

th

respondent stating, inter-

alia, that the subject sale deed was executed by her with the consent of

the petitioner and that the petitioner has knowledge about the agreement

of sale in favour of the 5

th

respondent; at the time of registration of the

document, it is not compulsory to obtain finger prints and that petitioner

5

could have approached the civil court seeking cancellation of the

document.

Counter-affidavit is also filed by the 5

th

respondent stating inter-alia

that it has paid substantial consideration for purchase of the subject

property; after verification of the revenue records, it was revealed that the

said pattadar passbook bearing No.K 200943 which relates to the subject

land of Ac.7.95 cents does not stand in the name of the 4

th

respondent’s

father as alleged by her and that the owner of the said land is

P. Janardhan Reddy, father of the present writ petitioner; when the 5

th

respondent questioned the 4

th

respondent, the 4

th

respondent agreed to

return the sale consideration and also addressed a letter dated 20.12.2017

requesting the 5

th

respondent to grant some time for returning the sale

consideration and in fact, she returned a part of the sale consideration

and sought time for payment of balance amount and the copy of the said

letter is also filed along with the counter-affidavit of the 5

th

respondent.

Reply-affidavit has been filed by the petitioner to the counter-

affidavit of the 4

th

respondent stating, inter-alia, that the 4

th

respondent

did not deny in her counter-affidavit with regard to appending of the

pattadar passbook and title deed of the petitioner’s father to the subject

sale deed; contention of the 4

th

respondent that the sale deed was

executed with the consent of the petitioner and that the petitioner is

aware of the registered sale deed is false in view of the statement made

by the 4

th

respondent in the sale deed stating that the property belongs to

her late father; pattadar pass book clearly shows the khata number of the

petitioner; yet it was stamped and signed by the registering authority (2

nd

respondent) permitting the said land to be included in the schedule of the

6

said sale deed; Respondent No.4 also admitted in her letter addressed to

the 5

th

respondent about the illegality committed by her.

Heard Sri J. Ugra Narasimha, learned counsel for the petitioner,

learned Government Pleader for respondents 1 and 2, Sri D. Kodanda

Rami Reddy, learned counsel for the 4

th

respondent and Sri S.Srinivas

Reddy, learned counsel for the 5

th

respondent. Perused the record.

Learned counsel for the petitioner submits that the 4

th

respondent

has appended the pattadar passbook and title deed belonging to the

petitioner to the said sale deed; in the registered sale deed dated

14.02.2011, it is stated by the 4

th

respondent that the subject land was

inherited by her father and pattadar pass book bearing No.K 200943 was

obtained in her name after the demise of her father P Suresh Reddy and

that the 4

th

respondent has inherited the said land as a legal heir. He

further submits that the 4

th

respondent also addressed a letter to the 5

th

respondent admitting that she has illegally sold the subject land and in

fact reimbursed a part of sale consideration to the 5

th

respondent and in

view of her conduct of repaying the sale consideration and recital in the

sale deed, the question of consent does not arise at all. He further

submits that when the public authority commits fraud, the same has to be

rectified and hence, the writ petition is maintainable.

Learned counsel for the petitioner relies upon the decision of the

Hon’ble Supreme Court in ‘A.V.Papayya Sastry vs. Government of

Andhra Pradesh

1

’ and submits that acts of fraud can be challenged in any

court at any time and even in a writ petition. He also relies upon the

decision of the Hon’ble Supreme Court in ‘Meghmala vs. G.Narasimha

1

(2007) 4 SCC 221

7

Reddy’

2

and submits that the High Court while exercising equitable

jurisdiction should not perpetuate the fraud. He also relies on the decision

of the Apex Court in ‘A.P. State Financial Corporation vs. Gar Re-Rolling

Mills

3

’ and submits that the High Court under Article 226 must prevent

perpetration of legal fraud and promote good faith and honesty. He also

relies upon the decision in ‘State of Andhra Pradesh vs. Ediga

Chandrsekhar Gowd

4

’, wherein this Court set aside the registration of

the documents in the writ petition. He also submits that the decision of

the Hon’ble Supreme Court in ‘Satya Pal Anand vs. State of M.P.,

5

is not

applicable to the facts of the present case and that the ratio laid down

therein does not say that the writ petition cannot be entertained even in a

case of fraud. He also further submits that the availability of alternative

remedy is not a bar for filing of the writ petition, and relies on the

judgment of the Hon’ble Supreme Court in ‘Whirlpool Corporation vs.

Registrar of Trade Marks, Mumbai

6

’ and ‘Popcorn Entertainment vs.

City Industrial Development Corporation

7

’. He further submits that the

memo relied upon by the Sub Registrar cannot supersede the provisions

of Section 6B and 6D of the Act.

On the other hand, learned counsel for the 4

th

respondent relied

upon the decision of this Court in WP No.4174 of 2008 & batch, dated

18.08.2017, wherein this Court while relying on Satya Pal Anand’s case

(supra), dismissed the writ petitions as not maintainable. He contends

that as the petitioner herein has got an alternative remedy of filing a suit

2

(2010) 8 SCC 383

3

(1994) 2 SCC 647

4

2017(3) ALT 420

5

(2016) 10 SCC 767

6

(1998) 8 SCC 1

7

(2007) 9 SCC 593

8

and as disputed questions of fact are involved, the Writ Petition is not

maintainable. He further contends that the subject sale deed has been

executed by the 4

th

respondent with the consent and knowledge of the

writ petitioner and prays to dismiss the Writ Petition.

The undisputed facts, so far as the present writ petition is

concerned, are that the 4

th

respondent executed the sale deed in favour

of the 5

th

respondent by appending the pattadar passbook of the

petitioner bearing Khata No.K 200943 and was signed by the Sub

Registrar; according to the letter addressed by the 4

th

respondent to the

5

th

respondent on 20.12.2017, which is filed along with the counter-

affidavit of the 5

th

respondent, the 4

th

respondent admitted that she sold

the subject property wrongfully and requested the 5

th

respondent-

management to consider her plea and grant time for reimbursement of

the amount collected towards sale consideration for the subject land, as

she has included the land of the petitioner wrongfully in the subject sale

deed. The said letter dated 20.12.2017, which is filed along with the

counter-affidavit of the 5

th

respondent, is not denied by the 4

th

respondent. The 4

th

respondent returned a part of consideration and

requested time to pay the balance amount. In the sale deed it is stated

thus by the 4

th

respondent “WHEREAS VENDOR (Respondent No.4)

represent that the agricultural land situated at No.109 Pannur village

accounts, Vijayapuram Mandal, Nagari Sub-District, Sri Balaji Registration

District, Chittoor District, comprised in Survey No.263 measuring to an

extent of Ac.7.95 cents was inherited by P.Suresh Reddy as ancestral

property and got Patta No.42 (Patta Pass Book Code No:K200943) in his

name and after the demise of said P.Suresh Reddy, the VENDOR herein

inherited the said land as legal heir”. Admittedly, the said Patta No.42 and

9

Pass book belong to the petitioner. In view of the admitted facts it can

safely be concluded that fraud has been played on the petitioner.

Learned counsel for the respondent relied upon the judgment of

this Court in ‘P Veda Kumari vs Sub Registrar

8

’ for the proposition that

power of judicial review is not available when there is an effective

alternative remedy to the aggrieved person. The learned Single Judge in

the said case relied on Satyapal Anand’s case and also ‘The State of

U.P. vs. Johri Mal

9

’, wherein the scope of judicial review is discussed. In

Johri Mal’s case Hon’ble Supreme Court at para 28 held that ‘an order

passed by an administrative authority exercising discretion vested in it,

cannot be interfered in judicial review unless it is shown that exercise of

discretion itself is perverse or illegal.’ In the present case the act of

registering the document on the basis of title deed of petitioner and by

affixing the same to the document is not in conformity with Section 6D (2)

of the Act. This Hon’ble Court in Veda Kumari’s case in the last para,

held as follows:

“Even it is assumed that the action of the registering

authority was accentuated by fraud, it has to be proved by

specific averments and no such averment is made in these writ

petitions and fraud cannot be assumed from a mere registration

of a document by the registering authority as observed by the

Supreme Court. In these circumstances, holding as mentioned

above, writ petitions were dismissed.”

In Satyapal Anand’s case (supra), relied upon by the learned

counsel for the 4

th

respondent, consequent to difference of opinion

between two learned Judges of the Division Bench, the appeal bearing

Civil Appeal No.6673 of 2014 has been placed before the three Judges

Bench of the Hon’ble Supreme Court. In the said case, a plot was allotted

8

2017(5) ALT 614

9

(2004) 4 SCC 714

10

to the appellants mother by a Housing Cooperative Society Limited vide a

registered deed. The appellants mother expired thereafter and after her

death the Society executed a deed of extinguishment unilaterally

cancelling the said allotment of plot. On the basis of the said

extinguishment deed, the Society executed a registered deed in favour of

the 5

th

respondent therein. The appellant objected to the said

transaction. However, a compromise deed was executed between the

Society, the subsequent purchaser and the appellant, where under the

appellant received consideration and notwithstanding the compromise

deed the appellant filed a dispute under Section 64 of the Madhya

Pradesh Cooperative Societies Act, 1960 before the Deputy Registrar,

Cooperative Societies challenging the action of the Society in unilaterally

registering the extinguishment deed and allotting the subject plot to the

5

th

respondent therein and sought declaration that he continues to be the

owner of the subject plot allotted by the Society to his mother. Since the

appellant filed a dispute, the respondents issued a notice asking the

appellant to refund the consideration amount accepted by him in

furtherance of the compromise deed, but the appellant did not heed to

that demand, but continued with the proceedings. He also filed an

application before the Sub-Registrar calling upon him to cancel the

registration of extinguishment deed and subsequent two deeds. The Sub-

Registrar, by a speaking order, rejected the said application on the ground

that the dispute was pending between the parties with regard to the same

subject matter and secondly on the ground that he has no jurisdiction to

cancel the registration of a registered document in question. The

appellant then approached the Inspector General (Registration) by way of

an application under Section 69 of the Registration Act, 1908 and the said

11

application was rejected on the ground that powers conferred on him

were limited to the general superintendence of the Registration Offices

and making Rules. The appellant, thereafter, approached the High Court

of Madhya Pradesh by way of a Writ Petition challenging the order of the

Inspector General (Registration) and the Sub-Registrar and prayed for a

declaration that the extinguishment deed as well as the subsequent two

deeds are void ab initio with a further direction to the Inspector General

Registration and the Sub-Registrar (Registration) to record the

cancellation of those documents. The said Writ Petition was dismissed by

the Division Bench of the High Court on the ground that the appellant had

already resorted to a remedy before appropriate Forum under the Act of

1960. The High Court held that since an alternative remedy before a

competent Forum was available and was pending between the parties, it

was not feasible to invoke the writ jurisdiction under Article 226 of the

Constitution of India. The Division Bench of the High Court also observed

that the allegations of the alleged fraud could not be adjudicated by this

Court under the writ jurisdiction. The said decision of the High Court was

the subject matter of challenge in the appeal before the Hon’ble Supreme

Court. When the appeal came up for hearing before the Division Bench,

His Lordship Justice Dipak Misra found that the High Court did not commit

any error in dismissing the Writ Petition and His Lordship Justice V. Gopala

Gowda observed that the Registrar could not have permitted registration

of extinguishment deed, unilaterally cancelling the allotment of the subject

plot and His Lordship held that the extinguishment deed was a nullity in

law. His Lordship further held that registration of the extinguishment

deed by the Sub-Registrar amounts to playing fraud on the power vested

in the Authority under law and opined that the relief claimed by the

12

appellant in the Writ Petition deserves to be granted. The contention of

the appellant before the Full Bench was that the society could not have

unilaterally executed the extinguishment deed and the respondents, on

the other hand, contended 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. Having

considered the rival submissions, the Full Bench formulated the questions

to be answered in the fact situation and one of the questions framed is

“Whether the High Court in exercise of writ jurisdiction under Article 226

of the Constitution of India is duty bound to declare the registered deeds

as void ab initio and to cancel the same, especially when the aggrieved

party has already resorted to an alternative efficacious remedy under

Section 64 of the Act of 1960 before the competent Forum whilst

questioning the action of the society in cancelling the allotment of the

subject plot in favour of the original allottee and unilateral execution of an

extinguishment deed for that purpose”. In those circumstances, the Full

Bench of the Hon’ble Supreme Court observed as follows.

“………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 indulge in multiplicity of

actions. The exercise of discretion to issue a writ is a

matter of granting equitable relief. It is a remedy in equity.

In the present case, the High Court declined to interfere at

the instance of the appellant having noticed the above

clinching facts. No fault can be found with the approach of

the High Court in refusing to exercise its writ jurisdiction

because of the conduct of the appellant in pursuing multiple

13

proceedings for the same relief and also because the

appellant had an alternative and efficacious statutory

remedy to which he has already resorted to. This view of

the High Court has found favour with Justice Dipak Misra.

We respectfully agree with that view.”

The Full Bench further categorically held as follows.

“……Ordinarily, if the party had not resorted to any

other remedy provided by law and had straightway

approached the High Court to question the action of the

statutory authority of registering a document improperly

and in particular in disregard of the prescribed procedure,

that would stand on a different footing. In the present

case, however, the appellant not only entered into a

compromise deed with the society and the subsequent

purchaser but also resorted to statutory remedy. Having

entered into a compromise deed, it is doubtful whether the

appellant can be heard to complain about the irregularity in

the registration of the extinguishment deed, if any. It is

noticed that the appellant has not disputed the execution of

the compromise deed, nor has he paid any heed to the

notice given by the other party to refund the amount

accepted by him in furtherance of the compromise deed.

No Court can be party to a speculative litigation much less

the High Court in exercise of writ jurisdiction. Having said

this it must necessarily follow that the Writ Petition filed by

the appellant deserved to be dismissed, as was rightly

dismissed by the High Court.”

In view of the peculiar facts of that case, as the appellant has entered into

a compromise deed and again complained that there is irregularity in the

registration of extinguishment deed, and also availed remedy of statutory

appeal, the Writ Petition was dismissed.

14

In the present case, the petitioner has not resorted to any other

alternative remedy and fraud has been pleaded specifically and proved by

the petitioner, through documents like, pattadar passbook, title deed of

petitioner, letter of the 4

th

respondent addressed to the 3

rd

respondent,

which are not denied by the 4

th

respondent and the recital in the sale

deed is that the 4

th

respondent is the owner of the property.

The judgment relied upon by the learned counsel for the 4

th

respondent in P. Veda Kumari v. The Sub-Registrar, Banjara Hills,

Hyderabad

10

, does not apply to the facts of the present case. In the

said case, Writ Petitions were filed seeking setting aside the deeds of

cancellation of sale deeds and the gift settlement deeds unilaterally by the

executants. In the said case it was specifically observed as follows: “The

facts in these cases are not adverted to as the writ petitions are

considered and disposed on the point of law only. Even it is assumed that

the action of the registering authority was accentuated by fraud, it has to

be proved by specific averments and no such averment is made in these

writ petitions and fraud cannot be assumed from a mere registration of a

document by the registering authority as observed by the Supreme

Court.” And in those circumstances, it was held that “It is well established

rule of administrative law that an authority, which is vested with power,

may exercise it rightly or wrongly, but this Court while exercising the

power of judicial review, subject to its limitations, would interfere with

such actions and one of such limitations for exercising judicial review is

availability of alternative remedy and the discharge of public law duty”

and held that the Writ Petitions are not maintainable. According to the

10

2017(5) ALT 614

15

facts of the said case, as fraud is not alleged and as there is an alternative

remedy of appeal, the Writ Petitions were dismissed.

As the facts of the present case are entirely different, the said

judgment does not apply to the facts of the present case.

In Behari Kunj Sahkari Avas Samiti v. State of Uttar

Pradesh

11

, relied upon by the learned counsel for the petitioner, the

Hon’ble Supreme Court held that when a public authority commits fraud

with an intention to evade the provisions of the statute, the same can be

corrected in writ proceedings.

Learned counsel for the petitioner also relied upon the decision in

A.V.Papayya Sastry’s case ( supra), wherein the Hon’ble Supreme Court

held that a judgment, decree or order obtained by playing fraud on the

Court, Tribunal or authority is a nullity and that the same can be

challenged in any court, at any time, and even in a Writ Petition. In the

said judgment, the Hon’ble Supreme Court held as follows.

“21. Now, it is well settled principle of law that if any

judgment or order is obtained by fraud, it cannot be said to be

a judgment or order in law. Before three centuries, Chief Justice

Edward Coke proclaimed:

"Fraud avoids all judicial acts, ecclesiastical or

temporal".

22. It is thus settled proposition of law that a judgment,

decree or order obtained by playing fraud on the Court,

Tribunal or Authority is a nullity and non est in the eye of law.

Such a judgment, decree or order - by the first Court or by the

final Court - has to be treated as nullity by every Court, superior

or inferior. It can be challenged in any Court, at any time, in

appeal, revision, writ or even in collateral proceedings.

11

(2008) 12 SCC 306

16

23. In the leading case of Lazarus Estates Ltd. v.

Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR

502 (CA), Lord Denning observed: (All ER p. 345 C)

"No judgment of a court, no order of a Minister, can be

allowed to stand, if it has been obtained by fraud."

24…………………

25. It has been said; fraud and justice never dwell

together (fraus et jus nunquam cohabitant); or fraud and deceit

ought to benefit none (fraus et dolus nemini patrocinari

debent).

26. Fraud may be defined as an act of deliberate

deception with the design of securing some unfair or

undeserved benefit by taking undue advantage of another. In

fraud one gains at the loss of another. Even most solemn

proceedings stand vitiated if they are actuated by fraud. Fraud

is thus an extrinsic collateral act which vitiates all judicial acts,

whether in rem or in personam. The principle of 'finality of

litigation' cannot be stretched to the extent of an absurdity that

it can be utilized as an engine of oppression by dishonest and

fraudulent litigants.”

In Meghmala’s case (supra), it was held that “once a fraud is

proved, all advantages gained by playing fraud can be taken away. In

such an eventuality the questions of non-executing of the statutory

remedies or statutory bars like doctrine of res judicata are not attracted”.

Availability of alternative remedy is also not a bar for entertaining

the Writ Petition as has been held in Whirlpool Corporation’s case

(supra) and in Popcorn Entertainment’s case (supra). In Whirlpool

Corporation’s case, it was held as follows:

“Therefore, the jurisdiction of the High Court in

entertaining a writ petition under Article 226 of the Constitution,

in spite of the alternative statutory remedies, is not affected,

specially in a case where the authority against whom the writ is

filed is shown to have had no jurisdiction or had purported to

usurp jurisdiction without any legal foundation”.

17

In A.P. State Financial Corporation’s case (supra), it was held

that “A court of equity, when exercising its equitable jurisdiction under

Article 226 of the Constitution should not so act as to prevent perpetration

of a legal fraud as the courts are obliged to do justice by promotion of

good faith. Equity is always known to depend the law from crafty evasions

and new subtleties invented to evade law”.

In G Krishna Reddy vs. Government of A.P .

12

, the procedure

prescribed was admittedly not been followed and the petitioners were not

put on notice before registering the deed cancelling the agreement of

sale. In those circumstances, this Court held that if the registration is not

in conformity to the requirements of law, the registration of document

was to be declared as null and void and of no effect and accordingly the

Writ Petition was allowed.

In Ediga Chandrasekhar Gowd’s case (supra), this Court allowed

the writ petition, wherein cancellation of a document was done

unilaterally, without relegating them to the civil Court.

In Meghmala’s case, the Hon’ble Supreme Court held as follows:

“It is settled proposition of law that where an applicant

gets an order/office by making misrepresentation or playing fraud

upon the competent Authority, such order cannot be sustained in

the eyes of law. "Fraud avoids all judicial acts ecclesiastical or

temporal." (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. v.

Jagannath (dead) by L.Rs. and Ors. (AIR 1994 SC 853). In

Lazarus Estate Ltd. v. Besalay 1956 All. E.R. 349, the Court

observed without equivocation that "no judgment of a Court, no

order of a Minister can be allowed to stand if it has been obtained

by fraud, for fraud unravels everything."

12

2015(1) ALT 579

18

In Smt. Shrisht Dhawan v. Shaw Brothers (AIR 1992 SC

1555), it has been held as under:

Fraud and collusion vitiate even the most solemn

proceedings in any civilised system of jurisprudence. It is a

concept descriptive of human conduct.

In United India Insurance Co. Ltd. v. Rajendra Singh and

Ors. (AIR 2000 SC 1165), this Court observed that "Fraud and

justice never dwell together" (fraus et jus nunquam cohabitant)

and it is a pristine maxim which has never lost its temper over all

these centuries.

The ratio laid down by this Court in various cases is that

dishonesty should not be permitted to bear the fruit and benefit

to the persons who played fraud or made misrepresentation and

in such circumstances the Court should not perpetuate the fraud.

(See District Collector & Chairman, Vizianagaram Social Welfare

Residential School Society, Vizianagaram and Anr. v. M. Tripura

Sundari Devi (1990) 3 SCC 655; Union of India and Ors. v. M.

Bhaskaran (1995) Supp. 4 SCC 100; Vice Chairman, Kendriya

Vidyalaya Sangathan and Anr. v. Girdharilal Yadav (2004) 6 SCC

325; State of Maharashtra v. Ravi Prakash Babulalsing Parmar

(2007) 1 SCC 80; Himadri Chemicals Industries Ltd. v. Coal Tar

Refining Company (AIR 2007 SC 2798) and Mohammed Ibrahim

and Ors. v. State of Bihar and Anr. (2009) 8 SCC 751.

Fraud is an intrinsic, collateral act, and fraud of an

egregious nature would vitiate the most solemn proceedings of

courts of justice. Fraud is an act of deliberate deception with a

design to secure something, which is otherwise not due. The

expression "fraud" involves two elements, deceit and injury to the

person deceived. It is a cheating intended to get an advantage.

(Vide Dr. Vimla v. Delhi Administration (AIR 1963 SC 1572) Indian

Bank v. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550; State

of Andhra Pradesh v. T. Suryachandra Rao (AIR 2005 SC 3110);

K.D. Sharma v. Steel Authority of India Ltd. and Ors. (2008) 12

SCC 481; and Regional Manager, Central Bank of India v.

Madhulika Guruprasad Dahir and Ors. (2008) 13 SCC 170).”

19

The contention of the learned counsel for the 4

th

respondent is that

the 1

st

respondent – Commissioner and Inspector General, Registration

and Stamps Department has issued a draft memo directing the registering

authorities to accept the documents without insisting for production of

pattadar passbooks and title deeds, whereas the contention of the learned

counsel for the petitioner is that the said memo is contrary to the

provisions of Section 6-B and 6-D of the Act. The purport of the memo is

that it directs the Registering Officers to accept the documents without

insisting pattadar passbooks and title deeds, but the allegation against the

Sub-Registrar in the present case is not that he registered the sale deed

without insisting for production of pattadar passbooks and title deeds of

the vendors. The allegation is that the pattadar passbooks and title deeds

of the petitioner herein have been appended to the sale deed that is

executed by the 4

th

respondent and the property of the petitioner is sold

by the 4

th

respondent, who is not the owner of the subject land.

Learned counsel also contends that the act of Sub-Registrar is

contrary to Section 6D (2) of the Act as it was then, reads as follows:

“Notwithstanding anything contained in the Registration Act, the

registering authority shall not register any document relating to a

‘transaction of the nature referred to in sub-section (1) without the

production of the title deed and pass book by both the parties to the

transaction”.

In the present case, title deed and pass books were produced by

the vendor of the property, relating to the property of the petitioner.

However, the Sub-Registrar did not even verify the names of the parties in

the impugned document and the names which are there in the passbook

and title deed. As the pass book and title deed do not belong to the

20

vendor i.e., the 4

th

respondent the Sub Registrar under Section 6-D(2)

ought not to have registered the document as the word used there is

‘shall not’. Hence the sale deed executed is not valid.

Another contention of the learned counsel for the petitioner is that

the action of the Sub-Registrar is contrary to Section 32-A of the

Registration Act, 1908. According to Section 32-A, where the document

relates to the transfer of ownership of immovable property, the passport

size photograph and finger prints of each buyer and seller of such

property mentioned in the document shall also be affixed to the

document. The said Section only says buyer and seller of such property

mentioned in the document and the document refers to the 4

th

respondent as seller for the entire land. Hence, there is no infraction of

Section 32-A technically, though patta is in favour of the petitioner.

In ‘Thota Ganga Laxmi vs Government of A.P .,

13

’, the Hon’ble

Supreme Court set aside the judgment of the High Court directing the

petitioners therein to approach the civil Court, in a case where a

declaration is sought to declare the cancellation deed as illegal. The

Hon’ble Supreme Court held that unilateral cancellation deed as well as

registration thereof were wholly void and non-est and meaningless

transactions.

Similarly in ‘Kolli Rajesh Chowdary vs. State of A.P.

14

, this Court in

a case, challenging registration of revocation deed, declared the same as

null and void. Even in the said case, a contention has been raised that the

13

(2010) 15 SCC 207

14

2019(2) ALT 290

21

aggrieved party has to approach the civil court, but the same was

negatived by the court observing thus:

“Before parting, it is to be noted that the learned

Government Pleader, while not disputing the settled legal

position, had contended that if the petitioner is aggrieved of the

cancellation or revocation deed he has to approach a civil Court

and seek the common law remedy for setting aside the same but

he cannot approach the writ court. In the considered view of this

Court such a contention needs a mention only to be rejected for

the reason that when the cancellation deed or revocation deed

unilaterally executed is null and void and that when such

transaction is meaningless, it is just land fair to allow the writ

petition.”

It is also relevant to note here that in view of the settled legal

position that no one can convey a better title than what he has, the 4

th

respondent cannot transfer title to the 5

th

respondent through the sale

deed.

Unilateral cancellation of sale deed is also challenged in WP

No.20852 of 2018 and vide order dated 19.03.2019, the High Court of

Telangana, allowed the writ petition and set aside the sale deed as invalid

in eye of law and illegal, following Thota Ganga Lakshmi’s case (supra).

In the present case, petitioner, who is the owner of the part of the

property mentioned in the sale deed, did not execute the sale deed. As a

single document is registered for both the properties belonging to the

petitioner and the 4

th

respondent, this Court is unable to apply the

principle of, doctrine of severability and save the registration in so far as

the 4

th

respondent’s land is concerned.

22

In the facts and circumstances of the case, as it is demonstrated by

the petitioner, that fraud has been played by the 4

th

respondent,

availability of an alternative remedy is not a bar to the entertainment of

the Writ Petition. In view of the admitted facts as narrated supra, the Writ

Petition is allowed and the registration of sale deed bearing document

No.322 of 2011, dated 14.02.2011, is set aside and declared as null and

void. There shall be no order as to costs.

As a sequel thereto, the miscellaneous petitions, if any, pending in

this Writ Petition shall stand closed.

______________________

Kongara Vijaya Lakshmi, J

Date: 04

th

March, 2020

Note:

LR copy to be marked

(B/O)

Nsr/Bss

23

HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

Writ Petition No.19021 of 2015

Date: 04

th

March, 2020

Nsr/Bss