M/s. Sri Udaya Bhanu Associates Vs. The State of Andhra Pradesh Case Summary You Can Listen To on Caseon

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M/s. Sri Udaya Bhanu Associates Vs. The State of Andhra Pradesh

Andhra Pradesh High Court W.P.Nos.41920, 41921 & 41922 of 2015

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

WRIT PETITION Nos.41920, 41921 and 41922 of 2015 ;

W.P.Nos.367, 484 and 485 of 2017;

% Dated 19.04.2023

#W.P.Nos.41920, 41921 & 41922 of 2015

M/s. Sri Udaya Bhanu Associates,

Rep. By its Managing Partner

Sri Katari Rama Rao S/o Late Rama Swamy

Aged about 65 years, r/o H.No.48-1-31,

Visakhapatnam. ….. Petitioner

Vs.

The State of Andhra Pradesh, rep. by its

Principal Secretary, Revenue (Registration

And Stamps) Department, Secretariat,

Hyderabad and 3 others.

….Respondents

#W.P.Nos.367, 484 & 485 of 2017

M/s. Sri Udaya Bhanu Associates,

Rep. By its Managing Partner

Sri Katari Rama Rao S/o Late Rama Swamy

Aged about 65 years, r/o H.No.48-1-31,

Visakhapatnam. ….. Petitioner

Vs.

The State of Andhra Pradesh, rep. by its

Principal Secretary, Revenue (Registration

And Stamps) Department, Secretariat,

Hyderabad and 4 others.

….Respondents

JUDGMENT PRONOUNCED ON: 19.04.2023

THE HON’BLE SMT. JUSTICE V. SUJATHA

Whether Reporters of Local newspapers

may be allowed to see the Judgments?

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Whether the copies of judgment may be marked to

Law Reporters/Journals

Whether Their Ladyship/Lordship wish to see the fair

copy of the Judgment?

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

* THE HON’BLE SMT. JUSTICE V. SUJATHA

+ WRIT PETITION Nos.41920, 41921 and 41922 of 2015 ;

W.P.Nos.367, 484 and 485 of 2017;

% Dated 19.04.2023

#W.P.Nos.41920, 41921 & 41922 of 2015

M/s. Sri Udaya Bhanu Associates,

Rep. By its Managing Partner

Sri Katari Rama Rao S/o Late Rama Swamy

Aged about 65 years, r/o H.No.48-1-31,

Visakhapatnam. ….. Petitioner

Vs.

The State of Andhra Pradesh, rep. by its

Principal Secretary, Revenue (Registration

And Stamps) Department, Secretariat,

Hyderabad and 3 others.

….Respondents

! Counsel for the petitioner :

1. Sri N. Ashwani Kumar

^ Counsel for the respondents :

1. Learned Government Pleader for Stamps and Registration for

respondent Nos.1 to 3.

2. Sri K.V. Ratna Rao, Learned counsel for respondent No.4.

#W.P.Nos.367, 484 & 485 of 2017

M/s. Sri Udaya Bhanu Associates,

Rep. By its Managing Partner

Sri Katari Rama Rao S/o Late Rama Swamy

Aged about 65 years, r/o H.No.48-1-31,

Visakhapatnam. ….. Petitioner

Vs.

The State of Andhra Pradesh, rep. by its

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Principal Secretary, Revenue (Registration

And Stamps) Department, Secretariat,

Hyderabad and 4 others.

….Respondents

! Counsel for the petitioner :

1. Sri N. Ashwani Kumar

^ Counsel for the respondents :

1. Learned Government Pleader for Stamps and Registration for

respondent Nos.1 to 4.

2. Sri T.V.S. Prabhakara Rao. Ratna Rao, Learned counsel for

respondent No.5.

<GIST:

> HEAD NOTE:

? Cases referred

2022 SCC OnLine AP 2774

2016 SCC OnLine Hyd 815

MANU/DE/2661/2012

2022 SCC OnLine AP 2222

1977 RLR 487

AIR 1965 SC 1856

MANU/DE/2661/2012

2012 (1) ALD 90 (SC)

MANU/TN/6694/2022

2016 (10) SCC 767

(2001) 5 Supreme Court Cases 101

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

HONOURABLE SMT. JUSTICE V. SUJATHA

WRIT PETITION Nos.41920, 41921, 41922 of 2015 & 367,

484 and 485 of 2017

COMMON ORDER:

As the issue involved in all these cases is one and the

same, with consent of all, these writ petitions are decided by this

common order.

i) W.P. No.41920 of 2015:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

“...to issue an appropriate Writ, Order or Direction more

particularly one in the nature of Writ of Certiorari to call for

the records relating to the order passed by the 2

respondent

dt.17.12.2015 in Appeal No.1 of 2015 and quash the same

as being illegal, arbitrary, unilateral, without jurisdiction and

to grant…”

ii) W.P. No.41921 of 2015:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

“...to issue an appropriate Writ, Order or Direction more

particularly one in the nature of Writ of Certiorari to call for the

records relating to the order passed by the 2

respondent

dt.17.12.2015 in Appeal No.3 of 2015 and quash the same as

being illegal, arbitrary, unilateral, without jurisdiction and to

grant…”

iii) W.P. No.41922 of 2015:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

“...to issue an appropriate Writ, Order or Direction more

particularly one in the nature of Writ of Certiorari to call for the

records relating to the order passed by the 2

respondent

dt.17.12.2015 in Appeal No.2 of 2015 and quash the same as

being illegal, arbitrary, unilateral, without jurisdiction and to

grant…”

iv) W.P. No.367 of 2017:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

“…to issue any writ, order or direction more particularly one in

the nature of writ of Certiorari call for the records pertaining to the

Impugned proceedings vide Doc. No.9680 of 2015 dated 21.12.2015

passed by 4

th respondent i.e. the Deed of Cancellation and quash the

same as being illegal, arbitrary, void, abinitio, without jurisdiction

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

and violation of the provisions of the Act and consequentially

suspend the proceedings vide Doc. No.9680 of 2015, dated

21.12.2015 issued by the 4

th respondent…”

v) W.P. No.484 of 2017:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

“…to issue any writ, order or direction more particularly one in

the nature of writ of Certiorari call for the records pertaining to the

Impugned proceedings vide Doc. No.9679 of 2015 dated 21.12.2015

passed by 4

th respondent i.e. the Deed of Cancellation and quash the

same as being illegal, arbitrary, void, abinitio, without jurisdiction

and violation of the provisions of the Act and consequentially

suspend the proceedings vide Doc. No.9679 of 2015, dated

21.12.2015 issued by the 4

th respondent…”

vi) W.P. No.485 of 2017:

The writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

“…to issue any writ, order or direction more particularly one in

the nature of writ of Certiorari call for the records pertaining to the

Impugned proceedings vide Doc. No.9681 of 2015 dated 21.12.2015

passed by 4

th respondent i.e. the Deed of Cancellation and quash the

same as being illegal, arbitrary, void, abinitio, without jurisdiction

and violation of the provisions of the Act and consequentially

suspend the proceedings vide Doc. No.9681 of 2015, dated

21.12.2015 issued by the 4

th respondent…”

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

2. As the issue, petitioners as well as the respondents

involved in all these cases is one and the same, all these writ

petitions are decided by way of a common order.

The petitioner, initially filed 3 writ petitions i.e. W.P.

Nos.41920, 41921 and 41922 of 2015 challenging 3 individual

orders passed in 3 Appeals, dated 17.02.2015, and later on filed

the other 3 writ petitions, i.e., W.P. Nos.367, 484 and 485 of

2017 challenging the 3 cancellation deeds, dated 21.12.2015,

which were registered pursuant to the impugned orders of the

District Registrar, dated 17.12.2015. (Interim direction was

passed by this Court on 04.12.2017 suspending the

cancellation deeds subject to the condition that the petitioner

shall not create any third-party rights over the property).

3. The brief facts are that the 4

th respondent-'the State

Government Gazetted Officers Co-operative House Buildings

Society (herein after referred as 'Society') being a registered

society purchased the land admeasuring Acs.8.20 cents in Sy.

No.60 of Maddilapalem from one Aratla Surya Narasinga Rao

and his sons by virtue of a registered Sale Deed bearing Doc.

No.634/1970, dated 23.02.1970 and later on, proposed to

construct houses and to allot the same to its members after

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

obtaining the layout and necessary permissions. Subsequently,

the 4

th respondent-Society developed the said land by laying the

roads and demarcating the plots and transferred a part of the

plots to some of its members.

4. Apart from the above said land, the 4

th respondent-

Society also acquired the adjacent land in Sy. No.61/2 (Part) of

an Ac.0.34 cents for the purpose of laying an approach road by

virtue of an Exchange Deed bearing Doc.No.1624/1977, dated

08.06.1977 and accordingly they have laid road with necessary

permission. After laying the road, an extent of 800 Sq. yards

was available on either side of the road which was encroached

by some unauthorized persons by raising some temporary

structures. Apart from that, some hut-dwellers encroached the

left over land to an extent of Acs.3.07 cents and they filed suit

O.S. No.889 of 1979 on the file of the I Additional District

Munsiff Court, Visakhapatnam, for grant of perpetual injunction

against the 4

th respondent-Society, which was dismissed and

after appeals and counter appeals, the matter was remanded to

be tried along with the suit O.S. No.113/1986 and A.S. No.1961

of 1993 were clubbed together in O.S. No.616 of 2012.

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

5. Thereafter, the petitioner purchased a separate

extent of land admeasuring an extent of 595 Square yards

under a registered Sale Agreement-Cum-GPA vide Document

No.5041 of 2016, dated 23.10.2006, for the construction of the

office building and compound wall around the land.

6. As the 4

th respondent-Society was not able to

pursue the legal disputes vigorously and resist the illegal

occupants in the land in Sy. No.61/2 Part and in Sy. No.60,

which litigation was pending for the past 3 decades, the 4

respondent-Society called for a General Body and passed a

resolution on 30.09.2008 to assign the work of settlement of all

legal disputes in the land to the petitioner and after settlement

of disputes, the petitioner would be assigned with construction

of flats total admeasuring 63,000 Square feet in 3150 Square

yards in Sy. No.60 and in Sy. No.61/Part, each flat not less

than 1500 Square feet and get them registered in favour of the

members of the 4

th respondent-Society and everything was to be

done at the cost of the petitioner. Upon such settlement and

construction of flats, the 4

respondent-Society shall register

the balance land in favour of the petitioner. The petitioner was

also to construct an office and compound wall.

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

7. The copy of resolution, dated 30.09.2008, was

communicated to the petitioner on the same day and pursuant

to which the petitioner entered into a Compromise Agreement,

dated 21.10.2008, with one Gudla Kamala & 7 others for taking

steps to vacate the encroachers from the land in Sy. No.61/2

part of Maddilapalem Village by paying Rs.13 lakh to the

encroachers on behalf of the 4

respondent-Society to withdraw

all the cases filed by them against the 4

respondent-Society as

a part of out of Court settlement.

8. In the said process, on 24.10.2008, the petitioner

paid an amount of Rs.2,00,000/- to one Mr. A. Kameswararao,

Advocate, Visakhapatnam, as fee for settlement of A.S

No.306/2007 and CMA 98/2006 filed by the said Gudla Kamala

& 7 others on behalf of the 4

th respondent-Society, which was

acknowledged by the 4

th respondent-Society represented by it’s

the then President Dr. Ch. Parvathesam.

9. Thereafter, the petitioner and the 4

th respondent-

Society entered into an Agreement/Memorandum of

Understanding, dated 12.07.2009, inter-alia agreeing for

construction of 63,000 Square Feet including common areas in

Sy. No.60 and Sy. No.61/2 part by constructing about 21 Flats

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

with 3,000 Square Feet each (for 21 members of the 4

respondent-Society) and office building for the 4

th respondent-

Society and in consideration the 4

th respondent-Society agreed

to register the balance land in Sy. No.60 and 61/2 Part through

a deed of conveyance.

10. Thereupon, the petitioner constructed 15,000

Square feet in the 4

respondent-Society’s land in Sy. No.61/2

part in the year 2011 and offered to register the same in the

name of the 4

respondent-Society of its beneficiares in terms of

the MoU dated 12.07.2009 read with clause No.4 of the letter

dated 30.09.2008. However, the 4

respondent-Society refused

to accept the same as four (4) of its members died in a span of

nine (9) months between July, 2009 to March, 2010 and also for

the reason that there were disputes among the members as to

whom the constructed flats of 15,000 Square feet should be

allotted.

11. In view of the changed circumstances, the 4

respondent-Society entered into an Agreement for Partial

Modification of MoU dated 12.07.2009, on 01.03.2010 by

stipulating that the construction of agreed 3,000 Square feet for

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

each beneficiary to be enhanced to 3860 Square feet to each

member.

12. Accordingly, the 4

th respondent-Society entered into

three different registered Agreements of Sale-cum-General

Power of Attorney in favour of the petitioner vide Document

Nos.2420, 2421 and 2422 of 2010 dated 18.03.2010 for

resolving all the disputes with regard to the subject land.

13. In pursuance of the agreement of sale dated

18.03.2010, the petitioner entered into a Settlement Deed with

one Juni Laxmi Bhai Kour, Juni Sarda Chinna Singh, Juni

Thani Singh GPA Holders of Juni Sardar Hanuman Singh and

16 others who are encroachers of the 4

respondent-Society’s

land admeasuring 884.22 Square yards in Sy. No.60 by paying

an amount of Rs.10,00,000/- in cash on the date of execution of

the said Settlement Deed i.e.,01.09.2010 and pursued the

litigation in respect of the land in Sy. No.60 and got O.S.

No.930/2008 disposed of on 18.11.2015.

14. While the things stood thus, the 4

respondent-

Society got issued a legal notice dated 24.01.2012 seeking

cancellation of the MoUs, Construction Agreement and the 3

registered Agreements for Sale-cum-GPA in respect of the land

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

in Sy. Nos.61/2 part and in Sy. No.60 of Maddilapalem of

Visakhapatnam executed in favour of the petitioner, 'in

response to which the petitioner got issued a reply notice on

06.02.2012 through their advocate explaining the efforts put in

by the petitioner in resolving the disputes and the amounts

spent by them for pursuing the cases against the 4

respondent-Society'. It was further stated in the reply notice

that the registered Agreements-cum-GPA were coupled with

interest and therefore, the same cannot be revoked to the

detriment of the petitioner, to which the 4

respondent-Society

got issued a rejoinder notice on 25.02.2012.

15. In spite of the same, the 4

th respondent-Society filed

O.S. No.97 of 2012 on the file of the VI Additional District

Judge, Visakhapatnam seeking cancellation of 3 Agreements of

Sale-cum-General Power of Attorney, dated 18.03.2010 on the

ground that the petitioner committed default and later on, the

same was withdrawn without seeking any liberty on

14.10.2016.

16. Pending the suit seeking cancellation of the 3

Agreements of Sale-cum-General Power of Attorney, dated

18.03.2010, the 4

respondent-Society had presented three

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

deeds of Cancellation of Agreements of Sale-cum-general Power

of Attorney vide Document Nos.2420, 2421 and 2422 of 2010

before the Joint-Sub-Registrar-I, Visakhapatnam and as the

Joint-Sub-Registrar-I, failed to register the cancellation deeds,

the 4

th respondent-Society filed W.P. No.5749 of 2014, but

however, the said writ petition was also withdrawn on

13.11.2014.

17. The Joint-Sub-Registrar refused to register the

Cancellation Agreements which are kept pending vide

P.Nos.294, 295 and 296 of 2014. Challenging which (Pending

O.S. No.97 of 2012 on the file of VI Additional District Judge,

Visakkhapatnam) the 4

respondent-Society preferred a

statutory appeal under Section 72 of the Registration Act, 1908

before the 2

nd respondent –District Registrar of Assurances,

Visakhapatnam, who allowed the three appeals bearing Nos.1, 2

and 3 of 2015 on 17.12.2015, by passing three individual orders

by directing registration of 3 cancellation deeds, unilaterally

cancelling the three registered Agreements for Sale-Cum-

General Power of Attorney executed in favour of the petitioner

vide Document Nos.2420, 2421 and 2422 of 2010, dated

18.03.2010. Challenging the orders dated 17.12.2015, initially,

the petitioner filed 3 writ petitions i.e. W.P. Nos.41920, 41921

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

and 41922 of 2015. Thereafter, the 3 cancellation deeds were

registered as Document Nos.9679, 9681 and 9680 of 2015

dated 21.12.2015 in spite of the fact that O.S. No.97 of 2012

filed by the 4

th respondent-Society seeking similar prayer was

pending for adjudication. Challenging the said unilateral

registration of the 3 cancellation deeds dated 21.12.2015, the

petitioner filed other 3 writ petitions, i.e., W.P. Nos.367, 484

and 485 of 2017.

18. Challenging the order of the 2

respondent-District

Registrar dated 17.12.2015, the petitioner preferred a revision

to the 1

respondent-The State of Andhra Pradesh, wherein the

respondent vide proceedings Memo No.REV01-

REGSOMISC/10/2019-REGN.I-1, dated 03.05.2020, held as

follows:

“…Hence, the Law Department has also

opined that District Registrar Visakhapatnam is not

having any judicial power like civil court to entertain

appeal once documents were registered by both the

parties, hence the order of the District Registrar shall be

set-aside and shall be treated as non-est in the eye of

law.

Government after careful examination of the

matter and as per opinion of the law department, the

Commissioner and Inspector General, Registration and

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Stamps, AP Vijayawada is requested to pass necessary

order in compliance with the above interim orders of

Hon’ble High Court for cancelling the order of the District

Registrar, Visakhapatnam in Appeal Nos.1, 2, 3 of 2015,

dated 17.12.2015 with direction to the Sub-Registrar,

Visakhapatnam to cancel the documents bearing

No.9679, 9680, 9681 dated 21.12.2015 and shall make

necessary entries in the registration books subject to the

result of the W.P. No.367 of 2017, W.P. No.484 of 2017

and W.P. No.485 of 2014 which are pending before the

Hon’ble High Court.”

19. Thereafter, the Commissioner and Inspector

General vide Memo G3/425/2020, dated 16.06.2020, gave

directions to the District Registrar, Visakhapatnam, as under:

“In this connection, the District Registrar,

Viskhapatnam is requested to take immediate necessary

action for cancelling the orders of the then District

Registrar, Visakhapatnam in Appeal Nos.1, 2 and 3 of

2015, dated 17.12.2015 with a direction to the Sub-

Registrar, Visakhapatnam, to cancel the documents

bearing Nos.9679, 9680, 9681 dated 21.12.2015 and

shall make necessary entries in registration book subject

to the result of the W.P.No.367 of 2017, W.P. No.484 of

2017 and W.P. No.485 of 2017 which are pending before

the Hon’ble High Court, in accordance with the

provisions of law.”

20. The 4

th respondent-Society filed a counter affidavit

stating that the disputes arose between the petitioner and the

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Society in the year 2012 itself, as such the Society issued legal

notice dated 24.01.2012 to the petitioner cancelling the MOUs ,

Construction Agreement and GPAs-cum-Sale Agreements

executed by the 4

th respondent-Society and the same was

published in Enadu city edition on 25.01.2012, for which, the

petitioner also issued reply through paper add on 28.01.2012

and also issued a reply notice, dated 06.02.2012 inviting the 4

respondent-Society for mutual discussions as per clause-16 of

the Construction Agreement within 15 days from the date of

receipt of the reply dated 06.02.2012, failing which, the

petitioner will act in accordance with agreement. The 4

respondent-Society has issued a rejoinder dated 25.12.2012 to

the reply notice dated 06.02.2012 informing that the question of

mutual discussion between the petitioner and the 4

respondent-Society does not arise and also mentioned that the

petitioner may take whatever the action he likes and the same

will be resisted by the 4

th respondent-Society. But the petitioner

did not take any steps after exchange of notices even till today

and hence, the legal right of the petitioner seeking claim against

the above subject documents has been barred by limitation.

21. It is further stated in the counter affidavit that the

petitioner by invoking the clause-23 of the MoU, dated

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

12.07.2009, has filed AOP No.867 of 2016 on the file of the II

Additional District Judge, Visakhapatnam and the same was

dismissed on merits on 05.12.2016. The petitioner has also

approached the Co-operative Tribunal by making some or the

other claims against the 4

th respondent-Society by suppressing

the material facts and also without having any locus standi

which were dismissed by the Co-operative Tribunal.

22. The 4

respondent-Society has further stated that

suppressing all the above facts, the petitioner has also filed

CAOP No.34/2019 on the file of the Special Judge for Trial and

Disposal of Commercial Disputes at Visakhapatnam under

Section 9 of Arbitration and Conciliation Act invoking the

clause-16 of the Construction Agreement dated 10.03.2010 and

the same was dismissed on merits on 05.08.2021, wherein it is

stated as follows:

"In the present case as seen from the application filed

by the petitioner in para(m) it was categorically stated that the

petitioner is contemplating to initiate appropriate proceedings

by invoking clause 16 of agreement. There is no whisper in the

entire application about the issuance of notice to the 1

respondent society in the year 2016 i.e., on 05.09.2016 calling

upon the 1

st respondent to accept the appointment of a mutual

accepted Arbitrator to refer the disputes. Where Court passes

order for any interim measure under Section 9(1) of the Act

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

before commencement of the Arbitral proceedings, the arbitral

proceedings shall be commenced within period stated in sub-

section. Commencement of arbitral proceedings within period

stated in Section 9(2) of the Act is made mandatory by

parliament. Intention of parliament in making commencement of

arbitral proceedings within period stated in Section 9(2)

mandatory is to see that order for any interim measure passed

under Section 9(1) shall not continue to be in force indefinitely

in absence of arbitral proceedings. Therefore, commencement of

arbitral proceedings within period stated in sub-section (2) is

requirement for legal effectiveness of order passed for any

interim measure. Hence, if arbitral proceedings in respect of

dispute are commenced within period stated in Section 9(2),

order granting any interim measure under Section (1) shall

automatically stand vacated on expiry of the said period.”

23. It is also stated in the counter affidavit that the

intention of the 4

th respondent-Society in entering into the MoU,

modified MoU, Construction Agreement (3 sale agreements cum

GPAs subjected documents) is to settle the dispute in or outside

the Courts as early as possible as the ages of the members of

the society are advanced and the clauses and conditions

stipulated in the agreements and registered documents reiterate

that the petitioner is to settle all the pending litigations in or

outside the Courts with their funds, thereafter taking of the

possession from the litigants by entering into compromise deeds

between the Society and litigants, was much after making

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

constructions as per the construction agreement. Thereafter it is

agreed between the Society and the petitioner as a consideration

to transfer the remaining property situated in S.No.60 and 61/2

part by way of a registered sale deed and till such time the

petitioner was not conveyed with any right, title, possession or

interest over the subject mentioned property, hence the order of

the 2

respondent-District Registrar is in accordance with law.

24. It is further stated in the counter affidavit that the

respondent-Society took objection that the subject

documents Nos.2420, 2421 and 2422 of 2010, dated

18.03.2010, are not Sale Agreement-cum-GPA, since the

ingredients to treat it as a Agreement of Sale-cum-GPA has not

been satisfied, more particularly there is no transfer of title,

right in the subject matter of the property and admittedly, there

is no consideration or payment to the vendor under the said

document and as such the provision of law of Registration Act

as raised by the petitioner will not come in the way of

cancellation of such document and the registering authority can

cancel it unilaterally. It is also submitted that the GPA-cum-

Sale Agreement will come into force only after the terms and

conditions of the agreement are fulfilled, more particularly as

follows:-

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

i) to settle the disputes,

ii) entering compromise deeds,

iii) construction of 65,620 Sq. ft. of built up area and

iv) handing over the flats to the vendors/Society;

then as a consideration, the vendor promises i.e., the 4

respondent-Society to register the remaining land through deed

or deeds of conveyances duly registered in favour of the vendee

i.e., the petitioner, which the petitioner has miserably failed to

do so, and hence the 4

respondent-Society has got every right

to cancel the said document which is executed for settlement of

disputes.

25. It is further stated in the counter affidavit that the

construction agreement was executed by the 4

th respondent-

Society in favour of the petitioner for construction of flats in an

extent of 2550 Sq. yards out of 3600 Sq. yards which is in the

North-East corner of the property covered in Sy. No.60 of the 4

respondent-Society’s land. The 4

th respondent-Society has

executed individual sale deeds in favour of 17 individual

members for an extent of 150 Sq. yards each being undivided

and unspecified share out of the total extent of 3600 Sq yards;

therefore, the said individual members became title holders of

the said extent of 2550 Sq. yards collectively and thereby the 4

W.P. Nos.41920, 41921, 41922 of 2015,

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respondent-Society has lost the right over the said extent; and

accordingly, the said construction agreement became null and

void and non est in the eye of law as the title holders have not

executed the construction agreement in favour of the petitioner

and the construction agreement will come into force only after

compliance of the terms and conditions mentioned in the three

GPAs-cum-Sale Agreements, dated 18.03.2010, construction

agreement, MoU and amended MoU.

26. The further contention made by the Society in the

counter affidavit is that the Society has settled the litigations

with third parties in respect of the subject mentioned properties

by spending huge funds obtained from third parties i.e. M/s.

Sagara Durga Developers (P) Ltd; accordingly acquired

possession from the litigants and hence, there is no chance to

the petitioner to settle the litigations with third parties with its

own cost, which is the first condition of the subject document,

as such the question of consideration through that document

cannot be taken into consideration.

27. The Society has further stated in the counter

affidavit that after refusal by the Joint Sub-Registrar-I,

Visakhapatnam, they preferred an appeal before the District

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Registrar of Assurances, Visakhapatnam, who in turn issued a

notice to the petitioner to appear before him and represent his

case and accordingly, on hearing both the parties on legal

aspect as well as the factual aspect and on perusing the

documents and its recitals, has rightly concluded that the

participation of the petitioner is not necessary for cancelling the

subject document; and as such requested this Court to dismiss

the present writ petitions.

28. Heard learned Senior Counsel Mr. D.V. Sitharama

Murthy representing Mr. N. Ashwani Kumar, learned counsel

for the petitioner; learned Government Pleader for Stamps and

Registration; and learned Senior Counsel Mr. K.S. Murthy

representing Mr. K.V. Ratna Rao and T.V.S. Prabhakar Rao,

learned counsels for the respondent-Society.

Learned Senior Counsel appearing for the petitioner

relied upon the following judgments:

a) Maruturi Raghavendra Rao and Another Vs. State of Andhra

Pradesh and others

b) Gaddam Laxmaiah and Others Vs. Commissioner and Inspector

general, Registration and Stamps, Hyderabad and others

c) Hardip Kaur Vs. Kailash and Ors.

2022 SCC OnLine AP 2774

2016 SCC OnLine Hyd 815

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

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d) Smt. Tummidi Bala Nagamani Vs. The State of Andhra Pradesh

e) Harbans Singh vs Shanti Devi

f) S.Chattanatha Karayalar v. The Central Bank of India Ltd. &

Ors.

g) Hardip Kaur Vs. Kailash and Ors.

h) Kaitha Narasimha v. the State of A.P. (W.P.NO.3744 of

2007)

i) Thota Ganga Laxmi and another v. Government of Andhra

Pradesh and others

j) Sasikala Vs. The Revenue Divisional Officer, cum Sub

Collector, Devakottai and others

k) Satyapal Anand vs. State of Madhya Pradesh

Learned counsel for the respondents relied upon the

judgment in Her Highness Maharani Shantidevi Vs. Savjibhai

Haribhai Patel and Others

29. Now, for proper appreciation of the case, this Court

feels it appropriate to frame the following issues/points for

consideration;

MANU/DE/2661/2012

2022 SCC OnLine AP 2222

1977 RLR 487

AIR 1965 SC 1856

MANU/DE/2661/2012

2012 (1) ALD 90 (SC)

MANU/TN/6694/2022

2016 (10) SCC 767

(2001) 5 Supreme Court Cases 101

W.P. Nos.41920, 41921, 41922 of 2015,

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1. Whether the respondent Society has called for a

General Body meeting before resorting to cancellation of

the Agreement of Sale–cum-GPA ?

1. It is a fact that as the 4

th respondent-Society was

not able to pursue the legal disputes vigorously and resist the

illegal occupants in the land in Sy. No.61/2 Part and in Sy.

No.60, which were pending for the past 3 decades, the 4

respondent-Society called for a General Body and passed a

resolution on 30.09.2008 to assign the work of settlement of all

legal disputes in the land to the petitioner at the cost of

petitioner and after settlement of disputes, the petitioner would

be assigned with construction of flats total admeasuring 63,000

Square feet in 3150 Square yards in Sy. No.60 and in Sy.

No.61/Part, each flat not less than 1500 Square feet at the cost

of the petitioner and get them registered in favour of the

members of the 4

th respondent-Society at the cost of the

petitioner. Upon such settlement and construction of flats, the

respondent-Society shall register the balance land in favour

of the petitioner. The petitioner was also to construct an office

and compound wall.

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2. A letter, dated 30.09.2008, was issued by the 4

respondent-Society to the petitioner communicating the above

said terms and conditions, pursuant to which the petitioner

entered into a Compromise Agreement, dated 21.10.2008, with

Gudla Kamala & 7 others to vacate the land in Sy. No.61/2 part

of Maddilapalem Village by paying Rs.13 lakh to the litigants on

behalf of the 4

respondent-Society to withdraw all the cases

filed by them against the 4

respondent-Society as settled out of

Court.

3. On 24.10.2008, the petitioner paid an amount of

Rs.2,00,000/- to one Mr. A. Kameswararao, Advocate,

Visakhapatnam, as fee for settlement on behalf of the 4

respondent-Society in respect of A.S No.306/2007 and CMA

98/2006 filed by the said Gudla Kamala & 7 others, which was

acknowledged by the 4

th respondent-Society represented by it’s

the then President Dr. Ch. Parvathesam.

4. On 12.07.2009, the petitioner and the 4

respondent-Society entered into an Agreement/Memorandum of

Understanding, dated 12.07.2009, inter-alia agreeing for

construction of 63,000 Square Feet including common areas in

Sy. No.60 and Sy. No.61/2 part about about 21 Flats with 3,000

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Square Feet each (for 21 members of the 4

th respondent-

Society) and office building for the 4

th respondent-Society and in

consideration the 4

th respondent-Society agreed to register the

balance land in Sy. No.60 and 61/2 Part through a deed of

conveyance.

5. Thereafter, the petitioner constructed 15,000

Square feet in the 4

respondent-Society’s land in Sy. No.61/2

part in the year 2011 and offered to register the same in the

name of the 4

respondent-Society of its beneficiares in terms of

the MoU dated 12.0.2009 read with clause No.4 of the letter

dated 30.09.2008. However, the 4

respondent-Society refused

to accept the same as four (4) of its members died in a span of

nine (9) months between July, 2009 to March, 2010 and there

were disputes among the members as to whom the constructed

flats of 15,000 Square feet should be allotted.

6. Thereafter, on 01.03.2010, the 4

th respondent-

Society entered into an Agreement for Partial Modification of

MoU dated 12.07.2009, modifying the MoU dated 12.07.2009 by

stipulating that the construction of agreed 3,000 Square feet for

each beneficiary to be enhanced to 3860 Square feet to each

member.

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7. On a perusal of the above facts it is apparent on the

face of the record that Respondent Society entered into MOU

dated 30.09.2008 only after passing of Resolution by the

General Body. Such a resolution was the basis for entering into

three different Registered Agreement of Sale-cum- GPA in favour

of the Petitioner by Doct.Nos. 2420,2421 and 2422 of 2010

dated 18.03.2010. But, however, there is no material to indicate

that any such a resolution was passed before taking a decision

for the cancellation of the above mentioned registered

agreement of sale-cum-GPA.

In view of the same the issue is answered in favour of the

petitioner.

2. Whether the Agreement for Sale-cum-General Power

of Attorney coupled with recitals of

Development/construction executed by the Society in favour

of the petitioner can be treated as a conveyance?

1. For appreciation of the said issue this Court would

like to look into the contents of the Resolution dated 30.09.2008

which are as under:

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“…the General Body resolved to entrust the matter of

settlement of civil and other legal disputes relating to the

Society’s land in Sy. No.61/2P and Sy. No.60 to M/s. Sri Udaya

Bhanu Associates, Visakhapatnam. The Executive Committee is

authorized to take immediate action in the matter on the

following guidelines:

i) In respect of Society’s land of Ac.0.30 cents in Sy.

No.61/2(Part) M/S. Udaya Bhanu Associates shall get the civil

suits in respect of this land settled in the first place at his cost

and expense.

ii) After settlement of all the disputes in respect of the

above land, he will be assigned the work of construction of flats

in whatever extent of land that is available and admit of

construction as per Municipal Corporation Rules, excluding the

area covered by the 40 feet Approach road laid by the Society

across the land.

iii) The construction of flats shall be according to the

plans approved by the Executive Committee, each flat

measuring not less than 1500 sft each at the cost of the builder

who shall bear all the expenses connected with obtaining

permissions from the VUDA, GVMC and Electricity Board etc.,

and also the cost of construction.

iv) On completion of the construction in Sy. No.61/2 part,

the builder shall offer the flats so constructed in the Society’s

land as Security or shall register them in the name of the

Society or its nominees at his cost and expenses and the same

constructed area so registered will be deducted from the total

constructed area of 63,000 sft in Sy. No.60 and Sy. No.61/2

(Part).

v) In respect of Society’s land of Ac.3.07 (or whatever

land that is available therein as per Advocate Commissioner’s

report in o.S.889/1979) in Sy. No.60. M/s. Sri Udaya Bhanu

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Associates shall have to undertake the responsibility to vacate

the interim stay order in I.A.37/2007 in A.O.P.129/2007 filed

by M/s.ISNAR Estates(Pvt.)Ltd. at his cost and expense.

vi) After getting the stay vacated, an M.O.U. will be

submitted to the Co-operative Department for approval.

vii) After obtaining the approval from the Co-operative

Department, M/s.Sri Udaya Bhanu Associates shall have to

clear all the remaining civil suits in respect of the Society’s land

in Ac.3.20 cents in S.No.60 by his efforts and at his cost and

expenses within a time frame stipulated in the M.O.U.

Simultaneously, after settlement of all the civil

disputes and clearing the encroachments M/s.Sri Udaya Bhanu

Associates shall start construction of flats of 36,000 sft

(including common areas) as per the plans and specifications

approved by the Society in an area of 3150 sq. yds in Society’s

land in S.No.60 and Sy. No.61/2(Part) at his cost and expense

duly bearing the Registration charges, taxes, levies etc. on

mutually agreed terms as per his letter dated 11

th August, 2008

subject to deduction of constructed area and land registered in

the name of the Society members in Sy. No.61/2(Part).

viii) The conditions laid above in respect of Society’s land

in S.No.60 will be subject to the result in the Election Petition in

E.O.P.2/2008 ending in favour of the Society.

ix) On fulfillment of all the above conditions by M/s. Sri

Udaya Bhanu Associates, the Society has to Register the

remaining entire available land in Sy. No.60 and Sy. No.61/2 in

favour of the Builder after retaining 63000sft of constrcted area

in 3150 sq. yds. of land.”

2. It would be proper to look into the contents of the

MoU made on 12.07.2009, which are as follows:

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"8. Whereas, pursuant to the General Body

Resolution Dt.28.09.2008 as stated in clause-7, the Executive

Committee of the First Party issued a letter Dt.30.09.2008 to

the Second Party to settle all the civil disputes and take

possession of the land in Sy. Nos.61/2 Part and 60 at his cost

and risk and also handover the constructed area of total of

63,000 (Sixty Three Thousand) Sq.ft. of Flats including the

Common Area for the First Party in an area of 3150 (Three

thousand one hundred and Fifty) Sq. yards in Sy. Nos.61/2

Part and 60 and an Office Area of 700(Seven Hundred) Sq. ft.

in Sy. No.61/2 Part as per GVMC Rules.

As a consideration for the above clause, the First Party

agrees to Register the entire remaining First Party's lands in

Sy. No.61/2 part and Sy. No.60 through a Deed or Deeds of

conveyance duly Registered in favour of the Second Party after

fulfillment of the above conditions.

9. Whereas the Second Party having been made aware of

all disputes and civil suits in respect of First Party's lands in

Sy. Nos.61/2 Part and 60 pending in various Courts at several

stages in respect of the above mentioned lands and has

agreed to settle the disputes till final settlement is over and

taking possession of site on behalf of First Party either by

pursuing the litigations in Court or by arriving at a negotiated

settlement outside the Court with the litigant parties at his

cost, expense and efforts.

The Second Party agreed to construct and handover of

total 63,000 (Sixty Three Thousand) Sq. ft. of flats including

common areas in First Party's land in Sy. Nos.61/2 Part and

60 to the First Party in consideration through exchange of the

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entire remaining land of First Party property in Sy. Nos.61/2

part and 60 by the First Party.

10. Whereas, the civil disputes having been settled

outside the Court in respect of First Party's land in Sy. No.61/2

Part between the First Party and the illegal occupants through

the efforts and at the expense of the Second Party and the

First Party had taken delivery of the possession of its land in

Sy. No.61/2 Part (excluding the 40' road) by virtue of Court's

order in A.S. No.486/1987 (E.P.82/03) dated 29.01.2009 and

delivery was made by court Aminas on 07.02.2009 due to

efforts and expenses made by the Second Party.

11. Whereas the First Party agreed to entrust the work of

construction of Flats to Second Party in whatever extent of

land available on East side of the road in Sy. No.61/2 Part as

per GVMC Rules excluding the 40 feet road subject to bearing

the cost and expenses of the construction together with the

necessary permissions from VUDA, GVMC, APEPDCL without

deviating from the approved plan or in violation of GVMC

norms.

12. The First Party entrusted to the Second Party to

construct Office Building and compound wall around the land

of First Party’s property for the purpose of construction of

Apartment Complex by the Second Party in Sy. No.61/2 Part in

the Schedule mentioned property.

13. Whereas the Second Party acquired an extent of 595

Sq. yds under a Registered Sale Agreement cum G.P.A. by

paying the entire Sale consideration to the owner through

Doc.No.5041/2006 Dt.23.10.2006 and the land is abutting to

408 Sq. yds of the First Party’s property and represented that

in case of construction of individual units in the individual

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sites, there will not be any benefit for both parties and if the

both the plots are clubbed together, both parties will get

additional F.S.I. from GVMC and one more floor on the 3

rd floor

will be permitted if the sites of First and Second Parties joined

together. Whereas the General Body of the First Party through

another resolution Dt.29.03.09 authorized the Executive

Committee to negotiate for an increase in the plotted area of

flats to be constructed in the First Party’s land in Sy. No.61/2

Part.

The Executive Committee in its resolution Dt.07.05.2009

accepted the proposal of the Second Party as fair, reasonable

and beneficial to the members of the First Party and agreed

the same by the First Party.

The First Party should not insist or claim more than the

constructed area of 63,000 Sft including common areas and

Office Building under any circumstances from the Second

Party.

14. Whereas the Second Party agreed to construct total

15,000 (Fifteen Thousand) Sft constructed Flats including

common areas by way of Flats consisting of cellar, ground plus

four floors for the First Party in the First Party’s land of 408

Sq. yds on the east side of 40’ road in Sy. No.61/2 Part

clubbed with the Land of 595 Sq. yds acquired by the Second

Party and the Second Party is entitled to sell the constructed

flats in 595 Sy. Yds acquired by the Second Party without the

signatures of the First Party or its members with easement

rights of entry and exit for both.

The application for approval of building plans for the

construction of total 15000 sft of flats including common areas

in First Party land in Sy. No.61/2 Part including Second Party

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land shall be filed by both parties jointly immediately after

Signing of this MoU.

15. Whereas, as stated above the Second Party has

agreed to make all attempts simultaneously for settlement of

other disputes with regard to the land covered by Sy. No.60 of

an extent of Ac.3.07 cents and evacuate the occupiers and

earmark an extent of 3,150 Sq. yds. out of the total extent by

constructing a boundary wall in which he undertook to

construct a total area of 63,000 Sft. including common areas in

Sy. Nos.60 and 61/2 Part i.e. about total 21 (Twenty One) flats

of 3,000 (Three Thousand) Sft including common areas for

each flat as per specifications annexed to this MoU and in

consideration of the construction of the above said 21 Flats of

an area of total 63,000 Sft (Sixty Three Thousand) including

common areas in Sy. Nos.60 and 61/2 Part and office building

for the First Party by the Second Party, the First hereby agreed

to Register the remaining extent of vacant land in Sy. Nos.60

and 61/2 Part through a Deed or Deeds of conveyance duly

registered in favour of the Second Party.

16. This agreement will not be treated as a Partnership

between the First Party and the Second Party. The Second

Party is entitled to the entire remaining land in Sy. Nos.60 and

61/2 Part in the Schedule mentioned Property of First Party’s

land after handing over the constructed area of total 63,000 sft

of flats including common areas and Office Building to the First

Party through a Deed or Deeds of conveyance duly registered.”

3. The contents of the partial modified MoU made on

01.03.2010, are as follows:

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“Now therefore this Agreement seeks to Modify the M.O.U. dated

12.07.2009 as follows:

01. The Second Party agreed to construct 24 flats of

3860 sft for each Flat including common areas in an area of

3600 Sq. yds. With specified boundaries in the North-East

Corner plot of First Party’s land in Sy. No.60 of Maddilapalem

after settlement of Disputes of First Party’s land in Sy. No.60

of Maddilapalem and handover the 17 flats to the First Party

intended the remaining 17 beneficiary members and

remaining 7 flats shall be retained by the Second Party. The

cost of construction, Registration charges and other levies

shall be borne by the Second Party as agreed in covenant

no.18 of M.O.U. dated 12.072009. The construction of flats

shall be according to the plans approved by the Board of the

First Party and shall conform to the Rules and Regulations of

GVMC and other local Authorities.

02. The First Party agreed to give irrevocable

status to the Second Party for settlement of civil disputes of

First Party’s land in Sy. No.60 of Maddilapalem as the Second

Party agreed to spend huge amounts for Registration of

Construction Agreement for 65,620 Sft. Including common

areas to the First Party intended for the following 17

beneficiary members/nominees/legal heirs of the First Party

out of total 92,640 sft., in the First Party’s land in Sy. No.60.

03. The First Party agreed to register the First

Party’s land of 408 Sq. yds. i.e. East side of the road with

built-up area thereon to be constructed by the Second Party in

Sy. No.61/2 part of Maddilapalem at the time of entering the

Compromise Deed with litigant parties for settlement of

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civil disputes in the First Party’s land in Sy. No.60 of

Maddilapalem.

04. The Second Party agreed that the First Party

need not register 2000 Sq. yds. of First Party’s land in Sy.

No.60 as a part consideration after settlement of disputes.

05. The Second Party agreed to complete the

construction of flats and handing over to the First Party

intended for the 17 beneficiary members nominated by the

First Party within a period of 18 months from the date of

handing over of First Party’s land in Sy. No.60 by the litigants

and if the construction is delayed beyond the stipulated

period by the First Party except for reasons beyond the control

of the First Party, then the First Party shall pay to the First

Party Rs.5000/- per month for each of the 17 Flats.

06. The First Party agrees to register the entire

remaining available First Party’s land (after deducting 2550

Sq. yds. utilized for construction of 17 flats in Sy. No.60)

approximately Ac.2.70 cents in Sy. No.60 and also entire

remaining land of First party’s land in Sy. No.61/2 part of

Maddilapalem after deducting the office room construction

area in Sy. No.61/2 part in favour of the Second Party as a

full consideration on the date on which the Second Party will

handover the 17 flats to the First Party intended for the 17

beneficiary members. The cost of construction, registration

charges shall be borne by the Second Party.

07. That in case in any of the pending

suits/litigations filed by occupants (Relly and Peetala

families) in respect of 3600 Sq. yds. in Ac.3.07 cents in which

it is proposed to construct 24 flats, if any order is passed by

any court in favour of the litigants for 1000 Sq. yds in Sy.

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No.60, the Second Party agreed to indemnify the First Party to

reallocate similar extent of 3600 Sq. yds. of First Party’s land

by the side of present agreed site on the North-east corner in

First Party’s land in Sy. No.60 and again to register the same

in favour of First Party or its nominees and Registration

charges including stamp duty will be borne by Second Party.

08. The Second Party undertakes to settle the

disputes at his cost through courts or outside the courts if any

civil or criminal cases are filed by occupiers or litigants either

against the First Party or allottee members or their nominees

or legal heirs of the First Party.

09. The Second Party agreed for settlement of the

pending disputes for First Party’s land in Sy. No.60 of

Maddilapalem within a period of 15 months from the date of

Registration of Construction Agreement in favour of the First

Party. If for any reason there is any delay for settlement of

disputes beyond the control of the Second Party, the said

period shall be extended after mutual discussion between the

First Party and Second Party and the M.O.U.dated

12.07.2009 and this Agreement dated 28.02.2010 for partial

modifications to M.O.U. dated 12.07.2009 shall be extended

for a further period as agreed to between the First Party and

Second Party.”

4. Admittedly the Resolution dated 30.09.2008, which

is the basis for entering into an MoU dated 12.07.2009 and as

well as the subsequently modified MoU on 01.03.2010, which

lead for the execution of Agreement of sale-cum-GPA vide three

different registered documents dated 18.03.2010,indicate that

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consideration for validating the agreement of sale –cum-GPA is

done in the shape of conveyance.

5. The learned counsel for the Petitioner relied upon a

judgment in Gaddam Laxmaiah and Ors. Vs. Commissioner

and Inspector General, Registration and Stamps and Ors.

(2 Supra), wherein a Division Bench of the then Common High

Court for the State of Telangana and the State of Andhra

Pradesh, held as follows:

“…the use of expression ‘conveyance’ and the

circumstances warranted making of the said rule, would

lead to a conclusion that it applies not only to cancellation of

sale deeds pure and simple but also to the transactions, that

have the ingredients and characteristics of a sale…”

6. As upheld in High Court of Madras (AIR 2022 Mad

323), even according to Section 202 of the Indian Contract Act,

1872, the power of attorney coupled with interest is irrevocable

and cannot be revoked/terminated even upon the death of the

Principal.

7. In Harbans Singh vs Shanti Devi (5 Supra), the

Court held that the GPA was executed for a valuable

consideration and the agent had an interest in the property and

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therefore, the GPA was irrevocable. It was also held that the

purchaser had an interest in the immovable property for the

purposes of Section 202 of the Contract Act, if not for the

purposes of transfer of Property Act and Registration Act. The

findings of the Division Bench are as under:

“10. For the purposes of the Law of Contract,

therefore, it would not be useful to restrict the meaning of

the word “interest” by the narrow compass in which this

world is used at times in relation to immovable property.

For instance, the last sentence of Section 54 of the Transfer

of Property Act states that a contract for sale of itself does

not create any interest in or change on immovable property.

Similarly, Section 17(1)(b) of the Registration Act makes

only those documents compulsorily registerable which

create, declare, assign, limit or extinguish any right, title or

interest, whether vested or contingent, of the value of one

hundred rupees and upwards to or in Immovable Propety.

Since an agreement for sale does not create such a right,

title or interest, it may not be compulsorily registerable. But

in the context of the Contract Act, it cannot be said that a

person who is the beneficiary of an agreement of sale has

no right or interest in the subject-matter of the sale. He has

a legally enforceable right and interest in enforcing the

contract of sale by the execution of a sale deed and in

getting possession of the property agreed to be sold under

the provisions of the Specific Relief Act. In the English

Common Law, the specific performance of contracts was a

part of the law of contract. This is why Chapter IV of the

Contract Act deals with the performance of contracts which

includes the performance of contracts relating to immovable

W.P. Nos.41920, 41921, 41922 of 2015,

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property also. In fact, Section 4 of the Transfer of Property

Act says that the chapters and sections of that Act which

relate to contracts shall be taken as part of the Indian

Contract Act, 1872. Therefore, the respondent in whose

favour the appellant had executed an agreement for the

sale of an immovable property had an interest in the

subject-matter of the contract, namely, the shop, for the

purposes of section 202 of the Contract Act if not for the

purposes of the Transfer of Property and the Registration

Acts.”

8. In the case on hand, the original MoU and the

subsequent modified MoU and the Agreement of sale-cum-GPA

executed by the respondent Society in favour of the Petitioner

have created an interest, in favour of the Petitioner who has

performed his part of execution to some extent, and in view of

the same, the principle that the General Power of Attorney was

executed for a valuable consideration and the agent had an

interest in the said property and therefore the GPA is irrevocable

would apply even to the Agreement of sale-cum- GPA dated

18.03.2010. The issue is accordingly answered.

3. Whether all the documents entered into by the

Petitioner and the Respondent Society such as the initial

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MoU, Partial MoU, Agreements of Sale-cum-General Power of

Attorney should be treated as one document?

1. In the present case, the Agreement of Sale–cum-

GPA cannot be considered in isolation, as the activities prior to

such as Resolution of the General Body , MoU and partial MoU

also need to be considered as one document as held by Apex

Court in S.Chattanatha Karayalar v. The Central Bank of

India Ltd. & Ors. (6 Supra) as under:

“The principle is well established that if the

transaction is contained in more than one document between

the same parties they must be read and interpreted together

and they have they have the same legal effect for all

purposes as if they are one document”.

2. The said principle laid down by the Apex Court was

also followed by the High Court of Delhi in Hardip Kaur Vs.

Kailash and Ors. (7 Supra)

3. Therefore, all documents and agreements viz.Letter

dated 30.09.2008, Compromise Agreement dated 21.10.2008

between Petitioner, Respondent No.4 and Gudla Kamala & 7

others, Agreement/Memorandum of Understanding dated

12.07.2009, Agreement for Partial Modification to MoU dated

12.07.2009 on 01.03.2010 and registered Agreements of Sale-

cum-General Power of Attorney executed by Respondent No.4 in

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

favour of the Petitioner vide Doc. Nos.2420 of 2010, Doc.

No.2421 of 2010 and Doc. No.2422 of 2010 dated 18.03.2010,

must be read and interpreted together and they have the same

legal effect for all purposes as if they are one document, which

admittedly was not taken into consideration by the respondent

authorities.

The issue is answered accordingly.

4. Whether a Registered Agreement for Sale-cum-

General Power of Attorney coupled with Development

/construction can be cancelled unilaterally?

1. For proper appreciation of the above issue, this Court

feels it appropriate to extract Rule 26(1)k(i) of the Registration

Act, 1908, which is as under:

"..26(1)(k)(i)-The registering officer shall ensure at the time of

presentation for registration of cancellation deeds of previously

registered deed of conveyances on sale before him, that such

cancellation 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 mutual 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

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

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 conveyance 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 registerable by any provision

of law.”

2. A plain reading of this Rule does not indicate that

before the deed of cancellation is executed, the affected party is

entitled for a notice. However, the case law relied upon by the

learned counsel includes the judgment in Kaitha Narasimha

v. the State of A.P. (W.P.NO.3744 of 2007), wherein a

Division Bench held that Rule 26(1)(k)(i) of the Andhra Pradesh

Rules under the Registration Act, 1908 incorporates one of the

facets of the rules of natural justice in the procedure laid down

for registration of a cancellation deed. The Rule, according to

the Division Bench, is intended to ensure that a duly registered

sale deed is not cancelled without the executant and the

claimant getting an opportunity to contest the registration of the

cancellation deed.

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

3. In the case of Thota Ganga Laxmi and another v.

Government of Andhra Pradesh and others (8 Supra), the

Hon’ble Supreme Court also considered Rule 26(1)(k)(i). In the

concluding paragraph, the Hon 'ble Supreme Court held as

under:

"...that 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 that case, the Hon'ble Supreme Court noticed that

there was no declaration by a competent Court nor was there

any notice to the parties. The said law was also followed by this

Court in Maruturi Raghavendra Rao and Another Vs. State

of Andhra Pradesh and others (1 Supra), wherein the

components of the Rule 26(1)(k)(i) were analyzed as under:

“This is the sum and substance of the Rule in question. If

it is broken down into its component parts, the following are

discernible:

(i) Cancellation deed should be executed by all the parties

concerned.

(ii) There should be a declaration showing mutual consent

which should be presented along with the deed of

cancellation or there should be an order of a competent Civil

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Court or High Court or the State or the Central Government

'annulling' the transaction.

(iii) If the deed is executed by a Government Officer, it

should reflect the fact that: that the properties contained in

the previously registered conveyance are government

properties, assigned lands or endowment lands or

properties are not registerable by any provision of law.

(iv) the Officer executing this deed of cancellation should

also be 'competent to execute the document.”

4. The learned counsel for the Petitioner relied upon a

judgment reported in Gaddam Laxmaiah and others v. The

Commissioner and Inspector General, Registration and

Stamps and others, (2 Supra), wherein a Division Bench of the

then Common High Court of the State of Telangana and the

State of Andhra Pradesh has held as follows:

"…28. Thus, having regard to the law laid down by

the Supreme Court and provisions of the Act, in our opinion,

whenever registered documents such as Development

Agreerment-cum-GPA, is sought to be cancelled, execution

and registration of such a document/deed must be at the

instance of both the parties i.e., bilaterally and not

unilaterally. If a deed of cancellation is allowed to be

registered without the knowledge and consent of other party

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

to the deed/document, sought to be cancelled, such

registration would cause violation to the principles of natural

justice and lead to unnecessary litigation, emanating

therefrom. In any case, as stated earlier, in the absence of

any provision specifically empowering the Registrar to

entertain a document of cancellation for registration without

the signatures of both the parties to the document, the deed

cannot be entertained. Moreover, if the Registrars are allowed

to entertain a deed of cancellation for registration without

signatures of both the parties to the document sought to be

cancelled, such power would tantamount to conferring the

power to decide disputed questions between the parties. No

party to the document would ever approach for cancellation

of registered document unilaterally unless there is a dispute

with the other party in respect of the subject-matter of the

document. In the result, we answer the question in the

negative. In other words, we hold that registration ana

unilateral cancellation of documents such as Development

Agreement-cum-General of power of Attorney under the

Registration Act is not permissible in law."

5. The High Court of Madras reported in Sasikala Vs.

The Revenue Divisional Officer, cum Sub Collector,

Devakottai and other (9 Supra), while referring to judgment of

the Hon'ble Supreme Court in Thota Ganga Laxmi & Anr. v.

Government of Andhra Pradesh & Ors. (8 supra) and other

judgments have framed the following propositions:

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

“a) A sale deed or a deed of conveyance other than

testamentary dispositions which is executed and

registered cannot be unilaterally cancelled.

b) Such unilateral cancellation of sale deed or a

deed of conveyance is wholly void and non est and does

not operate to execute, assign, limit or extinguish any

right, title or interest in the property.

c) Such unilateral cancellation of sale deed or deed

of conveyance cannot be accepted for registration.

d) The transferee or any one claiming under him or

her need not approach the civil Court and a Writ Petition

is maintainable to challenge or nullify the registration.

e) However, an absolute deed of sale or deed of

conveyance which is duly executed by the transferor

may be cancelled by the Civil Court at the instance of

transferor as contemplated under Section 31 of Specific

Relief Act.

f) As regards gift or settlement deed, a deed of

revocation or cancellation is permissible only in a case

which fall under Section 126 of Transfer of Property Act,

and the Registering Authority can accept the deed of

cancellation of gift for registration subject to the

conditions specified in para 42 of this judgment.

g) The legal principles above stated by us cannot be

applied to cancellation of Wills or power of Attorney deed

which are revocable and not coupled with interest.”

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

6. The Hon’ble Supreme Court of India in Civil Appeal

No.7464 of 2021, while referring to the case of Satyapal Anand

vs. State of Madhya Pradesh (10 Supra) and as well as Thota

Gangalaxmi and another Vs. Government of Andhra

Pradesh and others (8 supra) held as follows:

"It is settled legal position that registration of document is

always subject to adjudication of rights of parties by the

competent Civil Court."

7. The learned Senior counsel appearing for the

respondent relied upon a judgment reported in case Her

Highness Maharani Shantidevi Vs. Savjibhai Haribhai Patel

and Others (11 Supra), wherein this Court held as under:

“51. It has been held that "in the case of an

ambiguous instrument, there is no reason why subsequent

interpreting statement should be inadmissible". In the present

case we are concerned with an unambiguous document and,

therefore, we have to go by its plain meaning. Further, the

affidavit-cum- declaration only reiterated what was contained

in the agreement. It did not enlarge the agreement. It did not

substitute any clause in the agreement. It was not a

document executed between the parties. It was a document

executed by original Defendant 1 alone for the purposes of

filing it before the competent authority. Clause 17 of the

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

agreement does not call for any other interpretation except

that the contract could be unilaterally rescinded before

delivery of possession.”

The issue involved in the judgment pertains to an affidavit-

cum-declaration executed by the appellants only for the purpose

of filing it before the competent authority, by which document it

was neither intended to confer any additional rights in favour of

the plaintiffs nor to place restriction on the appellants which was

not envisaged by the agreement. The said agreement also does

not contemplate that the title in the land would pass on to the

plaintiff. But, however, the Court had concluded as under:

“It also deserves to be noticed that, strictly

speaking, it is not a contract for transfer of the property

but is a contract to carry out the scheme which is

incapable of being carried out at this stage on account of

reservation in the master plan and also repeal of the ULC

Act.”

8. The above referred judgment has no application to

the facts in the present case on hand. The respondents having

rightly approached the Hon’ble Civil Court by filing O.S.No.97 of

2012 on the file of the VI Additional District Judge,

Vishakhapatnam, seeking cancellation of the three Agreements

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

of sale-cum- GPA dated 18.03.2010, and simultaneously

approached the Joint Sub-Registrar I, Vishakhapatnam seeking

cancellation of the said three Agreements of sale-cum- GPA, and

when the Joint Sub-Registrar failed to register the same, the

Respondent Society filed W.P.no.5749 of 2014, which was also

subsequently withdrawn on 13.11.2014, and thereafter the Joint

Sub-Registrar has refused to register the cancellation of

Agreements of sale-cum- GPA vide P nos 294,295 and 296 of

2015. Challenging the same, the Respondent Society filed

statutory appeals under Section 72 of Registration Act,1908

before the District Registrar, Vishakhapatnam, who erroneously

allowed the three appeals bearing nos.1,2 and 3 of 2015 dated

17.12.2015 by directing the Sub-Registrar to register the three

cancellation deeds, unilaterally cancelling the three registered

Agreements of sale-cum- GPA dated 18.03.2010 and thereafter

the Sub-Registrar registered the three cancellation deeds vide

Doct.No.9679,9681 and 9680 of 2015 dated 21.12.2015 in spite

of pendency of Suit in OS no.97 of 2012 which was later on

withdrawn on 14.10.2016.

9. Though the Petitioner invoked the Arbitration clause

mentioned in the MoU dated 12.07.2010 and filed AOP 867 of

2016 and the same was dismissed on 05.12.2016, on the ground

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

that the Petitioner failed to appoint an arbitrator in terms of

Section 9(2) of Arbitration Act.

10. The entire facts of the present case indicates that

the 3 cancellation deeds dated 21.12.2015 were unilaterally

registered contrary to the provisions of the Indian Stamps and

Registration Act, 1908, Indian Contract Act, 1872 law for

specific performance T.P. Act and as well as the law laid down

by the High Court and Supreme Court.

Accordingly, this issue is answered.

30. The Government also issued Circular memo

no.G1/CAN/4028/2010 dated 31.10.2010 which reads as

follows:

“…the following instructions are issued that no

Registering Officer shall register a deed of

revocation/cancellation of GENERAL POWER OF

ATTORNEY coupled with previously registered

documents of Agreements of Sale to safeguard the

interest of the Agent/Vendee. In case if any such

deeds of revocation/cancellation of General Power of

Attorney combined with Agreement of

Sale/Development Agreements is presented for

registration, the Registering Officers are directed to

refuse the document for registration citing the

instructions issued in this memo.”

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

31. The above said circular instructions are binding on

the sub-registrar as well as the District Registrar. The issue was

discussed in the case of Gaddam Laxamaiah and Ors Vs

Commissioner and Inspector General , Registration and

Stamps and Ors. (2 Supra) as under:

“…24. From a plain reading of sub-section (1) of

Section 69, it is clear that it defines two separate

powers of the Inspector General; firstly, general

superintendence over all the registration offices and,

secondly, to make rules consistent with the Act in

respect of different functions specified in clauses (a) to

(f) thereof. Sub-section (2) does not indicate even

remotely, as contended by learned counsel for the

parties opposing circular/instructions of Commissioner

and Inspector General of Registration and Stamps,

that circulars and instructions issued by the Inspector

General, in exercise of power of general

superintendence under Section 69(1) need to be

published in the Official Gazette. Sub-section(2)

provides for publication of only Rules framed in

exercise of powers under Section 69(1) in Official

Gazette. It further provides that on publication, the

Rules shall have effect as if they are enacted under

the Registration Act. The contention that the impugned

circular has not been published in the Official Gazette,

and therefore, has no effect of law deserves to be

rejected outright. In our opinion, the Inspector General

has power to issue circulars. In other words, the

Inspector General, under Section 69 of the

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Registration, Act, can exercise power of general

superintendence over all registering officers in the

territory under the State Government by issuing

directions/circulars/instructions to the registering

officers in the matter of registration of particular type

of document [See B.Ratnasnndari Devi and others v.

The Commissioner of Urban Land Ceiling, A.P.,

Hyderabad and others MANU/AP/0380/1993 : 1993

(2) ALT 428 (DB)]. Even otherwise, in our opinion,

instructions/circulars, issued by the competent

authorities are meant to be followed by all the

subordinates.”

32. Pending the present Writ Petitions, challenging the

orders passed by the District Registrar dated 17.12.2015, the

Petitioner preferred a revision to Government, the 1

st respondent

herein, who vide Memo No.REV01-REGSOMISC/10/2019-

REGN.1-1, dated 03.05.2020 held as follows:

“…Hence, the Law Department has also

opined that District Registrar, Visakhapatnam is not

having any judicial power like civil court to entertain

appeal once documents were registered by both the

parties, hence the order of the District Registrar shall be

set-aside and shall be treated as non-est in the eye of

law.

Government after careful examination of the

matter and as per opinion of the law department, the

Commissioner and Inspector General, Registration and

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

Stamps, AP Vijayawada is requested to pass necessary

order in compliance with the above interim orders of Hon’ble

High Court for cancelling the order of the District Registrar,

Visakhapatnam in Appeal Nos.1, 2, 3 of 2015, dated

17.12.2015 with direction to the Sub-Registrar,

Visakhapatnam to cancel the documents bearing No.9679,

9680, 9681 dated 21.12.2015 and shall make necessary

entries in the registration books subject to the result of the

W.P. No.367 of 2017, W.P. No.484 of 2017 and W.P. No.485

of 2014 which are pending before the Hon’ble High Court.”

33. Thereafter, the Commissioner and Inspector

General Vide memo G3/425/2020 dated 16.06.2020 gave the

following directions to the District Registrar:

“In this connection, the District Registrar,

Visakhapatnam is requested to take immediate necessary

action for cancelling the orders of the then District Registrar,

Visakhapatnam in Appeal Nos.1, 2 and 3 of 2015, dated

17.12.2015 with a direction to the Sub-Registrar,

Visakhapatnam, to cancel the documents bearing Nos.9679,

9680, 9681 dated 21.12.2015 and shall make necessary

entries in registration book subject to the result of the

W.P.No.367 of 2017, W.P. No.484 of 2017 and W.P. No.485

of 2017 which are pending before the Hon’ble High Court, in

accordance with the provisions of law.”

34. In spite of the above said directions, no further

course of action could be initiated in view of the pendency of

these writ petitions. But, however, the learned Senior Counsel

appearing for the respondents vehemently argued that in

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

compliance to the Rule 26(i)(k)(i), they got issued a legal

notice to the petitioner which was also published in the

newspaper and thereafter, the petitioners also replied to the

said notice. But, however, to the reasons best known to them,

they have failed to come forward to execute the cancellation

deed. The said argument of the respondents cannot be

accepted in view of the fact that the cancellation deed was not

signed by both the executants in compliance to the provision

of Rule 26(1)(k)(i), and also the law laid down by the Hon’ble

Supreme Court in Gaddam Laxmaiah and Others Vs.

Commissioner and Inspector General, Registration and

Stamps, Hyderabad and others (2 Supra).

35. This Court in Smt. Tummidi Bala Nagamani Vs.

The State of Andhra Pradesh in W.P. No.17394 of 2021 while

referring to the case of Pinnama Raju Ranga Raju Vs. The

State of Andhra Pradesh

12, wherein in para (g) in Gaddam

Laxmaiah Vs. The Commissioner and Inspector General,

Registration and Stamps (2 Supra) while dealing with the

question whether unilateral cancellation of Development

Agreement-cum-General Power of Attorney (GPA) and

2020 LAWSuit (AP) 223

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

registration thereof under the Registration Act is permissible

in law, the Division Bench observed that:

“28. ….we hold that registration and unilateral cancellation of

documents such as Development Agreement-cum General of Power of

Attorney under the Registration Act is not permissible in law."

36. As interpreted by this Court with regard to the word

‘conveyance on sale’ in Ediga Chandrasekhar Gowd’ s case,

also in view of the language used under Section 126 of T.P. Act,

the impugned cancellation of registration unilaterally is nothing

but violative of Rules 26(i)(k).

37. On the other hand, though the respondent-Society

issued legal notice, for which admittedly the petitioner gave a

reply, but however the fact remains that the said documents of

cancellation of registration does not contain the signatures of

both the parties of the original GPA-cum-Sale Deed, in which

case, the registrar should not have allowed the registration of

cancellation deed as per Rule 26(i)(k) of the Registration Act,

1908 and also as per the law laid down in Gaddam Laxmaiah

and Others Vs. Commissioner and Inspector General,

Registration and Stamps, Hyderabad and others (2 Supra).

Hence, the 3 cancellation deeds dated 21.12.2015 are liable to

be set aside.

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

37. In view of the above observations, the writ petition

Nos.41920, 41921 and 41922 of 2015 filed by the petitioner

challenging the 3 individual orders passed in 3 appeals dated

17.02.2015 are dismissed as infructuous.

38. With regard to the writ petition Nos.367, 484 and

485 of 2017, this Court feels it appropriate to allow the said writ

petitions by setting aside the 3 cancellation deeds registered vide

document Nos. 9680, 9679 and 9681 of 2015, dated 21.12.2015.

Accordingly, the Joint Sub-Registrar-1, Visakhapatnam, is

directed to cancel the execution of 3 cancellation deeds dated

21.12.2015, registered vide document Nos.9680, 9679 and 9681

of 2015, in view of the settled legal position on this issue as

discussed above and also in compliance with the order passed by

the 1

st respondent vide Memo No.REV01-REGSOMISC/10/2019-

REGN.1-1, dated 03.05.2020, as expeditiously as possible,

preferably within a period of eight (8) weeks from the date of

receipt of a copy of this order. There shall be no order as to costs.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

_______________________

JUSTICE V. SUJATHA

Date: 19.04.2023

ASH

Note: LR Copy to be marked

W.P. Nos.41920, 41921, 41922 of 2015,

367, 484 and 485 of 2017

VS, J

HONOURABLE SMT. JUSTICE V. SUJATHA

WRIT PETITION Nos.41920, 41921, 41922 of 2015 & 367,

484 and 485 of 2017

Date:19.04.2023

ASH

Note: LR Copy to be marked

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