Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6673 OF 2014

Satya Pal Anand ... Appellant

Versus

State of M.P. and Others ... Respondents

J U D G M E N T

Dipak Misra, J.

The appellant, a septuagenarian, filed an application

dated 4.2.2008 in the office of the Sub-Registrar, Bhopal,

the third respondent herein, for cancellation of registered

documents dated 9.8.2001, 21.4.2004 and 11.7.2006 which

pertain to registration of immoveable property situated on

Plot No. 7-B, Punjabi Bagh, Raisen Road, Bhopal. As put

forth by the appellant in his application, the said plot was

allotted to his mother, Smt. Veeravali Anand, by the Punjabi

Page 2 Housing Cooperative Society Ltd. (for short, “the Society”),

the fourth respondent herein, by entering into a sale deed

dated 22.3.1962, registered on 30.03.1962. Smt. Veeravali

Anand expired on 12.6.1988. After her death, the fourth

respondent, through its office bearer executed a Deed of

Extinguishment on 9.8.2001 unilaterally cancelling the said

allotment and on the strength of such document, executed a

registered sale deed dated 21.4.2004 in favour of Mrs.

Manjit Kaur, the respondent no. 5 herein. Mrs. Manjit Kaur

in her turn executed another sale deed dated 11.7.2006 in

favour of the respondent nos. 6 and 7, Mrs. Meenakhsi and

Mr. S.C. Sharma.

2.As is evident, under these circumstances, the

appellant moved the Sub-Registrar (Registration) seeking

cancellation of the Deed of Extinguishment dated 9.8.2001.

The Sub-Registrar rejected the said prayer on two counts,

namely, the dispute between the parties was pending before

the competent authority under the M.P. Cooperative

Societies Act, 1960 (for short ‘the 1960 Act’) and secondly,

his jurisdiction was limited only to the extent of registering

the documents and if any party desired its cancellation,

2

Page 3 then to verify that the cancellation deed is registered on

appropriate stamp paper. Thereafter, the appellant filed an

application under Section 69 of the Registration Act, 1908

(for brevity, “the Act”), which was rejected by the Inspector

General (Registration) stating that the powers conferred on

Inspector General (Registration) under Section 69 of the Act

is limited to general superintendence of the registration

office and making rules and not to provide hearing by any

Sub-Registrar. The Inspector General further intimated him

that against the order of Sub-Registrar, it was open to the

appellant to initiate appropriate proceedings before a Court

of competent jurisdiction.

3.Being aggrieved by the aforesaid orders, the appellant

preferred W.P. No. 13505 of 2008 before the High Court.

The prayer in the writ petition was for declaring the

Extinguishment Deed as well as the subsequent sale deeds

as void ab initio with a further direction to the respondents

to record the cancellation of such documents. It was

contended before the High Court that the Extinguishment

Deed was registered contrary to the provisions contained in

Section 17(1)(b) of the Act by the Sub-Registrar and,

3

Page 4 therefore, it was obligatory on the part of the higher

authorities in exercise of powers under Section 69 of the Act

to declare the said action as ab initio void and consequently

the subsequent sale deeds to be void.

4.The said stand and stance of the appellant was

resisted by the contesting respondents contending, inter

alia, that as the initial allottee, Smt. Veeravali Anand, did

not take any steps for 35 years to raise any construction on

the plot in question, the respondent no. 4 registered the

Extinguishment Deed on 9.8.2001. On the strength of said

deed, the respondent society executed and registered the

sale deed dated 21.4.2004 in favour of Manjit Kaur. At that

juncture, the appellant and the respondents, to avoid any

controversy, entered into a deed of compromise dated

6.7.2004 whereunder the appellant received consideration

of Rs.6,50,000/- (rupees six lakhs fifty thousand only); Rs.

4,50,000/- by demand draft and Rs.2,00,000/- lakhs by

post dated cheques. Thereafter, the appellant filed an

application under Section 64 of the 1960 Act before the Dy.

Registrar, Cooperative Societies, forming the subject matter

of Dispute No. 81 of 2005. Along with said application, an

4

Page 5 application under Section 57(1) of the 1960 Act was filed for

ad interim injunction which was granted by the said

authority on 1.2.2006 restraining the respondents to make

any construction over the said property. The said order of

injunction stood vacated by order dated 12.4.2006. The

said order vacating the order of injunction was affirmed by

the Joint Registrar and the Deputy Registrar was directed to

finally adjudicate the dispute.

5.As the factual matrix would unveil as the appellant

instituted many a legal proceeding against the respondents,

they issued a notice on 12.7.2007 asking him to refund the

consideration amount of Rs.6 lakhs. Against various

orders, the appellant preferred three special leave petitions,

i.e. SLP(C) No. 34857 of 2010, SLP(C) No. 13255 of 2012

and the present appeal arising out of SLP(C) No. 9502 of

2012. The SLP(C) No. 34857 of 2010 was preferred

assailing the maintainability of the revision petition and the

said SLP is pending. SLP(C) No. 13255 of 2012 relates to

appointment of receiver to protect his interest, which stood

dismissed by order dated 17.7.2013. I shall refer to the said

order in detail at the appropriate time.

5

Page 6 6.The High Court took note of the factual assertions,

scanned the relevant provisions of the Act, took note of the

authorities cited by the appellant and eventually came to

hold that the controversy raised by the appellant could be

adjudicated before the appropriate forum and not in the writ

proceeding. The High Court further held that the

authorities under the Act had correctly stated that they

have no jurisdiction to decide the soundness of registration

of Extinguishment Deed or the sale deeds and declare them

as null and void.

7.I have heard Mr. Satya Pal Anand, appellant-in-person

and Mr. S.K. Dubey, learned senior counsel for respondent

nos. 1 to 3 and Mr. Satyajit A. Desai, learned counsel for

respondent nos. 5 to 7.

8.Though there are manifold assertions by the appellant

and counter asseverations covering various arenas, the core

issue that arises for consideration in the obtaining factual

matrix is whether the Deed of Extinguishment and the

subsequent sale deeds registered by the Sub-Registrar

under the Act could be cancelled by the Sub-Registrar or by

his superior authority in exercise of powers conferred under

6

Page 7 the Act. There is no cavil over the fact that Extinguishment

Deed was registered on 9.8.2001 and subsequent sale deeds

were registered thereafter. The stand of the respondents is

that they had paid the amount to the appellant and there is

a finding to that effect in the Special Leave Petition that has

been dismissed by this Court.

9.Presently, I shall deal with the scheme of the Act.

Section 17 occurring in Part III of the Act deals with the

documents of which registration is compulsory. The

controversy pertains to Section 17(1)(b) of the Act, as urged

by the appellant. The said provision reads as follows:-

“17(1)(b) other non-testamentary instruments

which purport or operate to create, declare,

assign, limit or extinguish, whether in present or

in future, any right, title or interest, whether

vested or contingent, of the value of one hundred

rupees and upwards, to or in immovable

property;”

10.Section 18 of the Act deals with the documents of

which registration is optional. Section 20 of the Act deals

with the documents containing interlineations, blanks,

erasures or alterations. The said provision is reproduced

below:-

7

Page 8 “20. Documents containing interlineations,

blanks, erasures or alterations. – (1) The

registering officer may in his discretion refuses to

accept for registration any document in which

any interlineation, blank, erasure or alteration

appears, unless the persons executing the

document attest with their signatures or initials

such interlineation, blank, erasure or alteration.

(2) If the registering officer registers any such

document, he shall, at the time of registering the

same, make a note in the register of such

interlineation, blank, erasure or alteration.

11.Section 21 of the Act provides for description of

property and maps or plans. The said provision is as

under:-

“21. Description of property and maps or

plans. (1) No non-testamentary document

relating to immovable property shall be accepted

for registration unless it contains a description of

such property sufficient to identify the same.

(2) Houses in towns shall be described as situate

on the north or other side of the street or road

(which should be specified) to which they front,

and by their existing and former occupancies,

and by their numbers if the houses in such street

or road are numbered.

(3) Other houses and land shall be described by

their name, if any, and as being the territorial

division in which they are situate, and by their

superficial contents, the roads and other

properties on which they abut, and their existing

occupancies, and also, whenever it is practicable,

by reference to a government map or survey.

(4) No non-testamentary document containing a

map or plan of any property comprised therein

8

Page 9 shall be accepted for registration unless it is

accompanied by a true copy of the map or plan,

or, in case such property is situate in several

districts, by such number of true copies of the

map or plans as are equal to the number of such

districts.”

12.Section 22 deals with the description of houses and

land by reference to Government maps or surveys. The said

provision is as follows:-

“22. Description of houses and land by

reference to government maps of surveys. – (1)

Where it is, in the opinion of the State

Government, practicable to describe houses, not

being houses in towns, and lands by reference to

a government map or survey, the State

Government may, by rule made under this Act,

require that such houses and lands as aforesaid

shall, for the purposes of section 21, be so

described.

(2) Save as otherwise provided by any rule made

under sub-section (1), failure to comply with the

provisions of section 21, sub-section (2) or

sub-section (3), shall not disentitle a document to

be registered if the description of the property to

which it relates is sufficient to identify that

property.”

13.Section 32 of the Act, which occurs in Part VI provides

for persons to present documents for registration. The said

provision is reproduced below:-

“32. Persons to present documents for

registration – Except in the cases mentioned in

9

Page 10 sections 31, 88 and 89, every document to be

registered under this Act, whether such

registration be compulsory or optional, shall be

presented at the proper registration office-

(a) by some person executing or claiming under

the same, or, in the case of a copy of a decree or

order, claiming under the decree or order, or

(b) by the representative or assignee of such a

person, or

(c) by the agent of such a person, representative

or assign, duly authorised by power-of-attorney

executed and authenticated in manner

hereinafter mentioned.”

14.Section 32A of the Act which has been inserted w.e.f.

24.9.2001, lays down compulsory affixing of photographs,

etc. Section 33 of the Act stipulates the power of attorney

recognizable for purposes of Section 32. Section 34 of the

Act provides for enquiry before registration by the

Registering Officer.

15.I have referred to the aforesaid provisions to

understand the scheme of registration and the role of the

Registration Officer. It is urged by the appellant that the

Extinguishment Deed was registered contrary to the

provisions contained in Section 17(1) (b) of the Act and in a

fraudulent manner. Section 17(1)(b) stipulates certain

1

Page 11 categories of documents which are required to be registered.

It stipulates registration of non-testamentary documents

which purport or operate to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title

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

hundred rupees and upwards, to or in immovable property.

It is contended by the appellant that authority, on the

ground of fraud, can declare the deeds to be null and void.

To bolster the said stand, he has drawn inspiration from the

authority in Yanala Malleshwari v. Anantula Sayamma

1

(Full Bench). Before the Full Bench, the question arose

whether a person can nullify the sale by executing and

registering a cancellation deed and whether the Registering

Officer like District Registrar and/or Sub-Registrar

appointed by the State Government, is bound to refuse

registration when a cancellation deed is presented. Rao, J.,

adverting to the provisions of the Act and the Rules and

dwelling upon the concept of fraud held thus:-

“The person, who has ex facie right whether such

right is registered or not can always approach the

registering authority, with a request to cancel a

sale deed, which was registered earlier by such

1

AIR 2007 AP 57

11

Page 12 registering authority by showing that subsequent

registration was obtained by fraud by a person

who is not entitled to transfer the property or

that such transfer was registered by playing

fraud on the owner or on the stranger. In the

present statutory dispensation, namely, Transfer

of Property Act, Contract Act, Specific Relief Act

and Registration Act, the Court does not see any

prohibition operating on the exercise of inherent

power by the registering authority to cancel the

sale deed earlier registered, which is likely to

cause prejudice to the true owner as well as to

the entire public at large.”

Chandraiah, J., while concurring with Rao, J. opined

that:-

“I would like to reiterate that there is no specific

prohibition under the Registration Act, 1908 (for

short 'the Act') to register a deed of cancellation.

The Registering Officer can refuse registration in

the situations arising under Sections 19 -

22, 32 and 35 and the relevant rules are Rules

26, 58 and 117. But in all other cases where the

conditions under the Act i.e.,

Sections 17 and 18 of the Act are fulfilled, the

Registering Officer is bound to register the

document and it is not in dispute that the

cancellation deed fulfills the conditions for the

purpose of registration. However, the Act does

not permit the Registering Officer to enquire into

the title of the party presenting the document for

registration and the situations mentioned in the

above said provisions under which the

registration can be refused are for different

purpose and only under those contingencies he

can refuse. This Court cannot enlarge the scope

of these provisions under the guise of

interpretation of statute. Further when there is

no prohibition under the Act the Registering

1

Page 13 Officer has to register the documents presented

for registration in accordance with law and this

Court by judicial interpretation cannot impose

the same into the statute. It is well settled that

what has not been provided for in a statute

cannot be supplied by Courts and to do so will

amount to legislating which is not the function of

the Courts.”

16.In the said case, the minority view is to the following

effect:-

“The purpose of noting down these provisions of

TP Act and the Registration Act is to come to a

conclusion as to whether a vendor retains any

interest in the property which he sold and of

which a sale deed was executed and registered.

The answer is emphatic 'no'. Therefore, in my

view, when a person transfers all his rights, his

rights in the properly get extinguished and if he

tries to get back the property, it has to be done

by challenging the sale deed which he has

executed and which is registered by the

Sub-Registrar.”

17.It is apt to note here that in the said case, the majority

took the view that if a person is aggrieved by the

cancellation deed, his remedy is to seek an appropriate relief

in the civil court and the writ petition is not the proper

remedy.

18.The High Court in the impugned order has also

referred to a Division Bench decision of the Madras High

1

Page 14 Court in E.R. Kalaivan v. Inspector General of

Registration, Chennai and Anr

2

. In the said case, the

Division Bench took note of the decision in Yanala

Malleshwari (supra) and the Rule 26(k) of the Andhra

Pradesh Registration Rules that was introduced after the

verdict of the Full Bench. The Division Bench dealt with

decision of the High Court of Andhra Pradesh and the

constitutional validity of the newly amended Rule, which

provides for adherence to the principles of natural justice

when there is presentation of unilateral cancellation deed.

The Madras High Court observed that the situation is

prevalent in Andhra because of rule position and thereafter

proceeded to state thus:-

“In this context, we may also usefully refer to the

judgment of a learned single Judge of this Court

in G.D. Subramaniam v. The Sub-Registrar,

Konur

3

. The learned Judge has extensively

considered the scope of registration of

cancellation of sale deed and had ultimately held

that such unilateral cancellation of deed cannot

be made in the absence of any specific provision

for the Registrar to do so. We are entirely in

agreement with the said view taken by the

learned single Judge.”

2

AIR 2010 Madras 18

3

2009 CIJ 243 Madras

1

Page 15 Be it noted, after so stating, the Division Bench opined

thus:-

“That apart, on the facts of this case, our

attention is not drawn to any of the specific

provision under the Registration Act empowering

the Registrar to entertain a document of

cancellation for registration on the ground that

the sale consideration was not paid and

consequently, received by the vendor. Further, in

our opinion, when the Registrar satisfies himself

on the perusal of the document, wherein it is

stated that the full sale consideration is received

and on such satisfaction, entertain the document

for registration, cannot thereafter be conferred

with a power for cancellation of the deed on the

ground that the full sale consideration was not

paid and received by the vendor. Conferring such

power on the Registrar would tantamount to

conferring a power to decide the disputed

questions. That apart, as already stated, in the

absence of any provision specifically empowering

the Registrar to entertain a document of

cancellation for registration, without the

signature of both the vendor and the purchaser,

the deed cannot be entertained. For the said

reason, we find no infirmity in the impugned

circular issued by the Inspector General of

Registration.”

19.In this regard, I may usefully refer to the judgment

referred in M. Ramakrishna Reddy v. Sub Registrar,

Bangalore and Another

4

, by a learned Single Judge of

Karnataka High Court. In the said case, the petitioner

therein claimed that he was the lawful owner of the property

4

AIR 2000 Karnataka 46

1

Page 16 and the concerned cooperative society had no right over the

said site nor could it be sold by the said society in favour of

the private respondents. It was contended that the

Sub-Registrar could not have registered the sale deed

relating to the said site in favour of the second respondent.

A notice was sent to the Sub-Registrar by the petitioner

calling upon to remove the name of the second respondent

as purchaser of the site, but the said request was not

complied with by the concerned Sub-Registrar. Being

dissatisfied with the said inaction, a writ petition was filed

seeking appropriate direction to consider the demand

contained in the notice. The learned Single Judge while

dealing with the concept of registration of instruments

under the Act, observed that:-

“The object and intent of providing for

registration of instruments under the Act is to

create and maintain a public record of

transactions relating to immovable properties, on

which every person dealing with an immovable

property can rely with confidence, for a full and

complete account of the transactions by which

his title to the immovable property, may be

affected. Section 17 of the Act enumerates the

documents of which the registration is

compulsory. All instruments (except Wills) which

purport or operate to create, declare, assign, limit

or extinguish, whether in present or in future,

any right, title or interest, whether vested or

1

Page 17 contingent, in regard to an immovable property,

the value of which is Rs. 100/- or more, and all

Gift Deeds as also leases relating to immovable

properties for any term exceeding one year, are

compulsory registrable.”

Thereafter, the learned Judge referred to various

provisions of the Transfer of Property Act, 1885 and also of

the Act and concluded as follows:-

“.......when a person who claims to be the owner

or a person interested in an immovable property,

finds that someone else has executed and

registered a sale deed or other deed in regard to

his property, claiming to be the owner or a

person interested in the property, the appropriate

course for him is to file a suit for declaration and

consequential reliefs. If he is satisfied such sale

deed is executed by a person without any title

and that the deed is void ab initio, he may even

choose to ignore the same and leave it to the

person claiming title under such deed to

establish his title in appropriate proceedings. A

Court of Law has the jurisdiction to declare a

document to be void or even cancel a document.

But under no circumstances, a person claiming

to be the owner of a property or a holder of a

property, can require the Registering Authority to

cancel the registration of a document.”

20.In this context, we may refer to a two-Judge Bench

decision of this Court in Thota Ganga Laxmi and another

v. Government of Andhra Pradesh and others

5

. In the

said case, the High Court of Andhra Pradesh had dismissed

5

(2010) 15 SCC 207

1

Page 18 the writ petition relying on the Full Bench decision in

Yanala Malleshwari (supra). The father of the appellants

therein had purchased the plot in question from the 4

th

respondent by a registered sale deed dated 21.6.1983 and

since then they were in possession and enjoyment of the

said property. Subsequently, the fourth respondent

unilaterally registered the cancellation deed without any

notice to the appellants. A writ petition was filed seeking

declaration that the cancellation deed was illegal but the

said writ petition was dismissed holding that the appellants

should approach the civil court. This Court, in the said

factual matrix opined:-

“In our opinion, there was no need for the

appellants to approach the civil court as the said

cancellation deed dated 4-8-2005 as well as

registration of the same was wholly void and non

est and can be ignored altogether. For

illustration, if A transfers a piece of land to B by

a registered sale deed, then, if it is not disputed

that A had the title to the land, that title passes

to B on the registration of the sale deed

(retrospectively from the date of the execution of

the same) and B then becomes the owner of the

land. If A wants to subsequently get that sale

deed cancelled, he has to file a civil suit for

cancellation or else he can request B to sell the

land back to A but by no stretch of imagination,

can a cancellation deed be executed or registered.

This is unheard of in law.”

1

Page 19 Thereafter, the Court referred to Rule 26(k)(i) of

Andhra Pradesh Registration Rules framed under Section 69

of the Act which reads as follows:-

“(i) The registering officer shall ensure at the

time of preparation 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 natural consent or orders of

a competent Civil or High Court or State or

Central Government annulling the transaction

contained in the previously registered deed of

conveyance on sale:

Provided that the registering officer shall dispense

with the execution of cancellation deeds by

executant and claimant parties to the previously

registered deeds of conveyances on sale before him

if the cancellation deed is executed by a Civil

Judge or a government officer competent to

execute government orders declaring the properties

contained in the previously registered conveyance

on sale to be government or assigned or

endowment lands or properties not registerable by

any provision of law.”

After reproducing the Rule, the Court proceeded to

state:-

“A reading of the above Rule also supports the

observations we have made above. It is only when

a sale deed is cancelled by a competent court

that the cancellation deed can be registered and

that too after notice to the parties concerned. In

1

Page 20 this case, neither is there any declaration by a

competent court nor was there any notice to the

parties. Hence, this Rule also makes it clear that

both the cancellation deed as well as registration

thereof were wholly void and non est and

meaningless transactions.”

21.On a reading of the aforesaid judgment, two aspects

are noticed. It is evident from paragraph 4 of the judgment

that the Court has opined that the cancellation deed cannot

be executed or registered; and in paragraph 5 of the said

judgment, reference has been made to Rule 26(k)(i) which

has been framed by the State of Andhra Pradesh under

Section 69 of the Act and on that basis, it has been ruled

that the said Rule supports the observations made by the

Court. It is apt to note here that the case had arisen from

the State of Andhra Pradesh, where specific rule had come

into force after the pronouncement by the Full Bench in the

case of Yanala Malleshwari (supra). That apart the

observations made in paragraph 4 of the decision is of

general import.

22.At this juncture, I think it apt to refer to Section 69 of

the Act, which reads as follows:-

“69. Power of Inspector-General to superintend

registration offices and make rules – (1) The

2

Page 21 Inspector-General shall exercise a general

superintendence over all the registration offices in

the territories under the

59

[State Government], and

shall have power from time to time to make rules

consistent with this Act—

(a) providing for the safe custody of books,

papers and documents;

(aa)providing the manner in which and the

safeguards subject to which the books may be kept

in computer floppies or diskettes or in any other

electronic form under sub-section (1) of section

16A;]

(b)declaring what language shall be deemed to

be commonly used in each district;

(c) declaring what territorial divisions shall be

recognized under section 21;

(d)regulating the amount of fines imposed under

sections 25 and 34, respectively;

(e)regulating the exercise of the discretion

reposed in the registering officer by section 63;

(f)regulating the form in which registering

officers are to make memoranda of documents;

(g)regulating the authentication by Registrars

and Sub-Registrars of the books kept in their

respective offices under section 51;

(gg)regulating the manner in which the

instruments referred to in sub-section (2) of

section 88 may be presented for registration;

(h)declaring the particulars to be contained in

Indexes Nos. I, II, III and IV, respectively;

2

Page 22 (i)declaring the holidays that shall be observed

in the registration offices; and

(j)generally, regulating the proceedings of the

Registrars and Sub-Registrars.

(2)The rules so made shall be submitted to the

State Government for approval, and, after they

have been approved, they shall be published in

the Official Gazette, and on publication shall

have effect as if enacted in this Act.”

23.The Rule which I have reproduced has been framed

under the aforesaid provision and has been incorporated as

Rule 26(k)(i). The question that emerges for consideration is

whether in the absence of any specific rule in the State of

Madhya Pradesh, the general principle laid down in the case

of Thota Ganga Laxmi (supra) would be applicable.

24.On a careful reading of the provisions of the Act, I do

not find there is any prohibition to register a document of

cancellation or deed of extinguishment. Section 35 of the

Act which deals with procedure cannot be construed to

confer a quasi-judicial power on the registering authority.

The learned Single Judge of the High Court of Karnataka in

M. Ramakrishna Reddy (supra) has observed that:-

“... If a duly stamped document is presented for

registration with required registration fee (with

supporting enclosures required to satisfy the

2

Page 23 provisions relating to valuation and payment of

stamp duty under the Karnataka Stamp Act,

1957 and the requirements of Section 230-A or

269-UL of Income Tax Act, 1961 and Section

22-A of the Registration Act and Section 26 of

Urban Land (Ceiling and Regulation) Act, 1976

and any other relevant statutory provisions), the

Sub-Registrar will proceed to register the

document. Before registration, the Registering

Officer will peruse the document to be registered

and supporting documents (like tax paid receipts,

revenue register extracts and even copies of

earlier title deeds). But such incidental

examination is not with the purpose of

ascertaining or verifying the title of the executant,

but only to ensure that there is no violation of

Section 22-A of the Act and that there is

compliance with the statutory requirements

under Stamp Laws, Taxation Laws, Land Ceiling

and Land Reforms Laws etc.”

It is apt to note there that the learned Single Judge

has referred to a decision of the Madras High Court in Park

View Enterprises v. State of Tamil Nadu

6

, wherein it has

been observed that function of the Sub-Registrar, for

purposes of registration, are purely administrative and not

quasi-judicial and, therefore, he cannot decide whether a

document which is registered is executed by a person

having title as recited in the instrument.

25.Thus, in the absence of any power conferred on the

Registering Authority to adjudicate any aspect, it is difficult

6

AIR 1990 Mad 251

2

Page 24 to agree with the view in Thota Ganga Laxmi (supra) that

the Registering Authority cannot unilaterally register a deed

of cancellation. In my considered opinion, in the absence of

any rule like the one that is prevalent in the State of Andhra

Pradesh, which commands the Registering Officer to ensure

at the time of preparation 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 declaration showing natural

consent, the Registering Authority or the superior authority

cannot refuse to register a deed of cancellation solely on the

ground that the claimant parties to the previously registered

conveyance are not present or they have not given consent.

26.Section 69 empowers the Inspector General to make

rules consistent with the Act. He has been allocated certain

areas to frame rules. Rule 26(k)(i) relating to Andhra

Pradesh under Section 69 of the Act may come under any

such regulatory measure. I do not intend to express any

opinion with regard to the validity of the Rule. The Rule

2

Page 25 actually provides the manner of verification of execution. It

is a condition precedent for the purpose of execution and

registration. In the absence of any rule to opine that by no

stretch of imagination can a cancellation deed be accepted

or registered by the Registering Authority does not appear to

be correct. It seems to me that it has been broadly stated.

Hence, I am of the view that general observations in Thota

Ganga Laxmi (supra) requires to be considered by a larger

Bench.

27.Having said that, I would have directed the Registry to

place the papers before the Hon’ble the Chief Justice for

constitution of the larger Bench, but I am constrained to

refer to certain other facts which are imperative to be stated.

In the case at hand the factual score that is evincible is that

the Society had executed a sale deed in favour of the mother

of the appellant on 22.2.1962. As the construction was not

raised and there was violation, as claimed by the society, it

executed the Extinguishment Deed dated 9.8.2001 and

cancelled the sale deed dated 22.2.1962. On the strength of

the Extinguishment Deed, the Society executed and

registered a sale deed in favour of other private respondents

2

Page 26 and further transactions took place. As the factual matrix

would reveal, the dispute raised by the appellant under

Section 64 of the 1960 Act is still pending before the

competent authority for adjudication. The said authority

has the jurisdiction to hold whether cancellation of the

allotment made in favour of the mother of the appellant was

justified in law. The said order is further subject to appeal

and other proceedings and, therefore, I refrain from

adverting to the same.

28.In this regard, I may refer with profit to the order dated

July 17, 2013 on which reliance has been placed by the

respondents, passed in Satya Pal Anand v. Punjabi

Housing Cooperative Society & Others

7

. In the said case,

the Court has taken note of the dispute pending before the

Registrar under Section 64 of the 1960 Act, questioning the

legality of the execution of the Extinguishment Deed and

allotment of the property in dispute in favour of other

respondents. While dealing with the factum of appointment

of receiver, the Court has observed thus:-

7

SLP(C) No. 13255 of 2012

2

Page 27 “We must also mention herein that during the

pendency of these proceedings, the second

respondent sold the property in favour of

respondent nos. 4 and 5 by sale deed dated

11.7.2006. It appears that the Sub-Registrar on

inspection of the disputed plot found that there

were two constructed duplex and two more near

completion as on the date of inspection i.e. on

13.03.2007 of which one was occupied by

respondent no.4.

It must be remembered that the instant

proceedings arise out of the interlocutory

proceedings seeking appointment of the receiver

at the instance of the petitioner herein. Having

regard to the fact that respondent no. 4 was in

possession of the property in dispute at least

since 13.03.2007 admittedly and also having

regard to the fact that the petitioner received an

amount of Rs.6,50,000/- we do not see any

justification for the appointment of the receiver.”

29.I have noted this aspect as the counsel for the

respondent has highlighted the said aspect for two

purposes, namely, a dispute before the appropriate forum is

pending for adjudication and that the appellant had entered

into a compromise with the respondents. It is also urged

that the compromise was entered into to buy peace. Thus,

the appellant has raised a dispute, accepted the money from

the subsequent purchasers and moved the authority under

the Act to cancel the deed of extinguishment. In such a

2

Page 28 situation, in my view, the writ court has rightly declined to

exercise the jurisdiction.

30.In view of the foregoing analysis, while not finding any

error on the factual score of the dismissal of the writ

petition by the High Court, as stated earlier, I am of the

view that the principle by way of general observations stated

in Thota Ganga Laxmi (supra) requires consideration by a

larger Bench and, therefore, the papers be placed before the

Hon’ble the Chief Justice for constitution of a larger Bench.

.............................J.

[Dipak Misra]

New Delhi

August 25, 2015

2

Page 29 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6673 OF 2014

(Arising Out of SLP (C) No.9502 of 2012)

SATYA PAL ANAND ………APPELLANT

Vs.

STATE OF M.P. AND ORS. ………RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

I have gone through the judgment of my

learned brother Judge, Justice Dipak Misra,

wherein certain relevant facts have been

adverted to by my learned brother on the

contentious legal issues urged on behalf of the

parties. My learned brother has also adverted

to the relevant provisions under Sections 20,

2

Page 30 21, 22 and 32 of the Indian Registration Act,

1908.

2. My learned brother Judge has also

referred to the full bench decision of the

Andhra Pradesh High Court in the case of

Yanala Malleshwari v. Anantula Sayamma

8

, the

judgment of the Madras High Court in the case

of E.R. Kalaivan v. Inspector General of

Registration, Chennai & Anr.

9

and the

judgment of the Karnataka High Court in the

case of M. Ramakrishna Reddy v. Sub

Registrar, Bangalore & Anr.

10

My learned

brother judge has also referred the decision

of this Court in the case of Thota Ganga

Laxmi & Anr. v. Government of Andhra Pradesh

& Ors.

11

, wherein the High Court of Andhra

Pradesh dismissed the Writ Petition of the

appellant therein, relying on the Full Bench

decision of Yanala Malleshwari (supra).

8

AIR 2007 AP 57

9

AIR 2010 Madras 18

10

AIR 2000 Karnataka 46

11

(2010) 15 SCC 207

3

Page 31 3. I have also taken into consideration the

fact that the sale deed of the property in

dispute was executed by the Society in favour

of the mother of the appellant on 22.03.1962

in respect of the plot involved in this

proceeding. The contention urged on behalf of

the Society is that as there was no

construction raised by the appellant or his

deceased mother on the said plot of land and

therefore, there has been a violation of the

Bye-laws of the Society, as claimed by the

Society and hence, it has executed the

Extinguishment Deed dated 09.08.2001 with

respect to the said plot of land and

cancelled the already registered absolute

sale deed in favour of the appellant’s mother

dated 22.03.1962.

4. On the basis of the registration of the

Extinguishment Deed with respect to the said

plot of land, the subsequent allotment of the

said plot of land took place and the sale

deed was registered by the society in favour

3

Page 32 of Mrs. Manjeet Kaur-respondent No.5, who

further alienated the said plot and

registered another sale deed in favour of the

respondent Nos.6 and 7.

5. My learned brother Judge has also

referred to the order dated 17.07.2013 passed

by this Court in SLP (C) No. 13255 of 2012

(Satya Pal Anand v. Punjabi Housing

Cooperative Society & Ors. ), arising out of

the order dated 03.08.2011, passed in Writ

Petition No. 14548 of 2008 by the High Court

of M.P. at Jabalpur in relation to the

appointment of receiver with respect to the

said plot of land. This Court held that since

the respondent No.5-Mrs. Manjeet Kaur was

already in possession of the property in

dispute and the appellant had received an

amount of Rs.6,50,000/- by way of a

compromise deed, there was no justification

for the appointment of the receiver in the

light of the fact that there was a pending

dispute between the parties under Section 69

3

Page 33 of the M.P. Co-operative Societies Act, 1960,

before the Registrar of Societies. Hence, the

Special Leave Petition filed by the appellant

was dismissed by this Court. My learned

brother, in the present case has also based

his findings on similar reasons.

6. I respectfully dissent with the said view

taken by my learned brother Judge by giving

the following reasons.

7. It is an undisputed fact that the

respondent No.4-Punjabi Housing Co-operative

Society Ltd. Bhopal (for short “the Society”)

had allotted the said plot of land in favour

of the appellant’s mother namely, Smt.

Veeravali Anand and it had executed the

absolute sale deed dated 22.03.1962 with

regard to the said plot of land in her favour

and the same was registered on 30.03.1962

before the jurisdictional Sub-Registrar. The

mother of the appellant died on 12.06.1988,

leaving behind the appellant and his sister

3

Page 34 as her legal heirs to succeed her intestate

property comprising of the said plot of land.

8. Subsequent to the death of the

appellant’s mother, the Society, represented

by its office bearer has executed an

extinguished deed dated 09.08.2001,

unilaterally cancelling their already

registered sale- deed with regard to the said

plot of land. Thereafter, on the strength of

the extinguished deed, the Society executed a

registered sale deed dated 21.04.2004 in

favour of respondent No.5- Mrs. Manjit Kaur

who in turn has executed another sale deed

dated 11.07.2006 in favour of respondent

Nos.6 and 7 (Mrs. Minakshi and Mr. S.C.

Sharma). The said documents have been

fraudulently registered by them which is

against the acquired legal rights of the

appellant on the said plot of land, the same

is void ab initio in law as it is

impermissible under the provisions of the

3

Page 35 Indian Registration Act, 1908 read with

Section 31 of the Specific Relief Act, 1963.

9. There is also a reference with regard to

the taking of the consideration amount of

Rs.6,50,000/- by the appellant from the

respondent no.5 vide the execution of the

Deed of Compromise dated 06.07.2004. The

appellant has also raised a dispute in that

regard under Section 64 of the M.P.

Co-operative Societies Act, 1960 before the

Sub-Registrar, Co-operative Society, Bhopal

which is pending in respect of the said plot

of land. Besides this, some of the

litigations between the parties are pending

before different forum i.e. Joint Registrar,

Co-operative Society, State Co-operative

Tribunal and in the High Court.

10.The appellant filed an application

before the Sub-Registrar (Registration),

seeking the cancellation of the

extinguishment deed dated 09.08.2001 executed

3

Page 36 by the Society against the appellant’s plot

of land. By order dated 28.06.2008, the

Sub-Registrar (Registration) dismissed the

application of the appellant, holding that

since the question of sustainability of the

extinguished deed dated 09.08.2001 and

interpretation of Clause 43(1) of the

Bye-Laws of Society are still pending before

Sub-Registrar, Co-operative Society and

various other competent forum, the

jurisdiction of the Sub-Registrar is limited

only to the extent to register the document.

The Sub-Registrar further held that if any of

the parties want its cancellation, then the

relevant party may file for the registration

of the cancellation deed with regard to the

said plot of land. The appellant filed an

application under Section 69 of the M.P.

Co-operative Societies Act, 1960, before the

Inspector General, Registration and the same

was dismissed on the ground that it is not

maintainable and further directed the

3

Page 37 appellant to approach the competent court in

this regard. Therefore, the aforesaid Writ

Petition was filed before the High Court by

the appellant wherein he has questioned the

correctness of the order dated 15.09.2008

passed by the Inspector General,

Registration, Bhopal wherein it has been held

that the Inspector General of Registration

has the powers of only general

superintendence over the registration

officers and to make Rules in that regard. He

is however, not empowered to hear any

proceedings against the order of

Sub-Registrar.

11.The High Court after adverting to the

aforesaid facts and noting the decision of

the Full Bench of the Andhra Pradesh High

Court in the judgment of Yanala Malleshwari

(supra) and the judgment of the Madras High

Court in the case of E.R. Kalaivan v.

3

Page 38 Inspector General of Registration

12

and

further, referring to Section 17(1)(b) read

with Rule 69 of the Registration Act, 1908

and Rules, and other judgments of this Court

in the cases of Government of U.P. v. Raja

Mohammad Amir Ahmad Khan

13

and Government of

Uttar Pradesh v. Khan, has held that as soon

as the registering officer has registered the

documents presented to him for registration,

his function of performance for such document

produced before him is over and therefore, he

becomes a functus officio and does not have

the power even to impound the document under

Section 33 of the Registration Act, 1908.

Further, the High Court has referred to the

judgment of the Karnataka High Court in the

case of M. Ramakrishna Reddy (supra) and

dismissed the Writ Petition filed by the

appellant in favour of the respondent

Society. The correctness of the same is

12

AIR 2010 Madras 18

13

AIR 1961 SC 787

3

Page 39 questioned in this Civil Appeal urging

various legal grounds.

12.Having regard to the facts, the rival

legal contentions and the grounds urged in

the writ petition and in these proceedings on

behalf of the parties, the following question

of law would arise for my consideration:

“Whether the appellant is

entitled to seek for the relief

of cancellation of the

registered documents dated

09.08.2001, 21.04.2004 and

11.07.2006, registered with

respect to the immovable

property, i.e. plot No.7-B,

Punjabi Bagh, Raisen Road,

Bhopal?”

13.The said point is required to be

answered in favour of the appellant for the

following reasons:

It is an undisputed fact that the Society

had executed an absolute sale deed dated

22.03.1962 in favour of the deceased mother

3

Page 40 of the appellant, Smt. Veeravali which was

registered on 30.03.1962. It is also not in

dispute that she died on 12.06.1988, leaving

behind the appellant and his sister to

succeed her intestate property. The

respondent-Society has also not disputed the

fact that the appellant is the legal heir of

the deceased Smt. Veeravali Anand, in whose

favour the sale deed was executed for the

said plot of land.

14.The said sale deed was unilaterally

cancelled by the Society by way of executing

an extinguishment deed dated 09.08.2001, with

regard to the said plot of land and

thereafter, on the strength of such

extinguished deed, the Society again executed

a registered sale deed on 21.04.2004 in

favour of respondent No.5 who in turn

executed another sale deed dated 11.07.2006

in favour of respondent Nos. 6 and 7.

4

Page 41

15.The contention urged by the appellant is

that the action of the Society and the

Sub-Registrar, who has cancelled the

initially registered sale deed in favour of

Smt. Veeravali Anand by registering the

extinguished deed unilaterally, is contrary

to the statutory provisions of the Indian

Registration Act, 1908. In this regard, the

judgment of this Court in the case of Thota

Ganga Laxmi & Anr. (supra) has been relied

upon, wherein this Court has held thus:

“4. In our opinion, there was no need

for the appellants to approach the

civil court as the said cancellation

deed dated 04-08-2005 as well as

registration of the same was wholly

void and non est and can be ignored

altogether. For illustration, if A

transfers a piece of land to B by a

registered sale deed, then, if it is

not disputed that A had the title to

the land, that title passes to B on

the registration of the sale deed

(retrospectively from the date of the

execution of the same) and B then

becomes the owner of the land. If A

wants to subsequently get that sale

deed cancelled, he has to file a civil

suit for cancellation or else he can

request B to sell the land back to A

4

Page 42 but by no stretch of imagination, can

a cancellation deed be executed or

registered. This is unheard of in law.

5. In this connection, we may also

refer to Rule 26( k)(i) relating to

Andhra Pradesh under Section 69 of the

Registration Act, 1908, which states:

“(i) The registering officer

shall ensure at the time of

preparation 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 natural

consent or orders of a competent

Civil or High Court or State or

Central Government annulling the

transaction contained in the

previously registered deed of

conveyance on sale:

Provided that the registering

officer shall dispense with the

execution of cancellation deeds

by executant and claimant

parties to the previously

registered deeds of conveyances

on sale before him if the

cancellation deed is executed by

a Civil Judge or a government

officer competent to execute

government orders declaring the

properties contained in the

previously registered conveyance

on sale to be government or

assigned or endowment lands or

4

Page 43 properties not registerable by

any provision of law.”

A reading of the above Rule also

supports the observations we

have made above. It is only when

a sale deed is cancelled by a

competent court that the

cancellation deed can be

registered and that too after

notice to the parties concerned.

In this case, neither is there

any declaration by a competent

court nor was there any notice

to the parties. Hence, this Rule

also makes it clear that both

the cancellation deed as well as

registration thereof were wholly

void and non est and meaningless

transactions.”

16.Further reliance has been placed upon

the decision of the Madras High Court in the

case of E.R. Kalaivan v. The Inspector

General of Registration Chennai & Anr.

(supra) wherein the powers of the Registrar

with regard to the cancellation of the

document have been elaborately discussed. The

relevant paras of the case read thus:

“12. In this context, we may also

refer to Section 32A of the Indian

Registration Act providing that all

such deeds shall be signed by the

4

Page 44 vendor as well as the purchaser and

the same shall also bear the finger

prints and photographs. Section 34 of

the Act also needs a reference,

whereby the Registering Authority is

mandated to hold an enquiry in respect

of the validity of the document

presented for registration. Having

regard to the above provisions, in our

opinion, a registered sale deed, if

sought to be cancelled, registration

of such deed must be at the instance

of both the parties viz., bilaterally

and not unilaterally. Section 34A of

the Act, whereby the Registering

Authority is to enquire whether or not

such document was executed by the

persons by whom it purports to have

been executed. A sale is essentially

an executed contract between two

parties on mutual agreed conditions.

Question is as to whether such

contract can be unilaterally

rescinded, particularly, in a case of

sale deed. In this context, we may

refer to Section 62 of the Indian

Contract Act, 1872 which provides that

contract which need not be performed.

By that provision, any novation,

rescission and alteration of a

contract can be made only bilaterally.

A deed of cancellation will amount to

rescission of contract and if the

issue in question is viewed from the

application of Section 62 of the

Indian Contract Act, any rescission

must be only bilaterally. See City

4

Page 45 Bank N.A. v. Standard Chartered Bank

and Ors.(2004 (1) SCC 12).

XXX XXX XXX

19. That apart, on the facts of this

case, our attention is not drawn to

any of the specific provision under

the Registration Act empowering the

Registrar to entertain a document of

cancellation for registration on the

ground that the sale consideration was

not paid and consequently, received by

the vendor. Further, in our opinion,

when the Registrar satisfies himself

on the perusal of the document,

wherein it is stated that the full

sale consideration is received and on

such satisfaction, entertain the

document for registration, cannot

thereafter be conferred with a power

for cancellation of the deed on the

ground that the full sale

consideration was not paid and

received by the vendor. Conferring

such power on the Registrar would

tantamount to conferring a power to

decide the disputed questions. That

apart, as already stated, in the

absence of any provision specifically

empowering the Registrar to entertain

a document of cancellation for

registration, without the signature of

both the vendor and the purchaser, the

deed cannot be entertained. For the

said reason, we find no infirmity in

4

Page 46 the impugned circular issued by the

Inspector General of Registration.”

17.Thus, the decision of this Court and the

Madras High Court in the cases referred to

supra, aptly apply to the fact situation of

the present case. In the present case also

such an extinguishment deed, which is

unilaterally registered would be rescinded,

particularly, in the case of sale deed or

extinguishment deed. In this context, Section

62 of the Indian Contract Act, 1872 would

come into play which provides that if the

parties to a contract agree to substitute a

new contract for it, or to rescind or alter

it, the original contract need not be

performed. Thus, for any novation, rescission

and alteration of the contract, it can be

made only bilaterally and with the amicable

consent of both the parties. Thus, a deed of

cancellation of the earlier registered sale

deed executed in favour of the Smt. Veeravali

4

Page 47 Anand would amount to an illegal rescission

of the absolute sale deed because if the

issue in question is viewed from the

application of Section 62 of the Indian

Contract Act, 1872, then it is clear that any

rescission must be done only bilaterally.

18.In the case on hand, undisputedly, the

extinguishment deed dated 09.08.2001 and the

cancellation of the sale deed dated

22.03.1962 in respect of the said plot of

land involved in this case is unilaterally

done by applying the clause 43(1) of the

Bye-laws of the Society which has been

amended in the year 1991 bearing No.Panji/

Gram Nirman 90/24 dated 02.01.1992,

communicated to the Society by the Deputy

Registrar, Co-operative Society, Bhopal. The

said clause cannot have a retrospective

effect with regard to the cancellation of the

sale deed in the name of the mother of the

appellant and for executing extinguished deed

4

Page 48 with regard to the said plot of land as the

cancellation deed which was registered on

09.08.2001 is only a subterfuge. The said

clause of the Society by-laws, cannot

override the statutory provisions under

Section 31 of the Specific Relief Act, 1963.

Section 31 of the Specific Relief Act reads

thus:

“31. When cancellation may be

ordered: (1) Any person against whom

a written instrument is void or

voidable, and who has reasonable

apprehension that such instrument,

if left outstanding may cause him

serious injury, may sue to have it

adjudged void or voidable; and the

court may, in its discretion, so

adjudge it and order it to be

delivered up and cancelled.

(2) If the instrument has been

registered under the Indian

Registration Act, 1908 (16 of 1908),

the court shall also send a copy of

its decree to the officer in whose

office the instrument has been so

registered; and such officer shall

note on the copy of the instrument

4

Page 49 contained in his books the fact of

its cancellation.”

19. Therefore, the unilateral cancellation

of the sale deed with regard to the said plot

of land against the appellant is contrary to

the provisions as provided under Section 31

of the Specific Relief Act, 1963 read with

Article 59 of the Limitation Act, 1963,

wherein the cancellation of any instrument

can be done only within three years, ‘when

the facts entitling the plaintiff to have the

instrument or decree cancelled or set aside

or the contract rescinded first become known

to him’. Therefore, the respondent-Society

had no right to unilaterally cancel the

absolute sale deed executed in favour of the

appellant’s mother in the year 1962 with

regard to the said plot of land in the year

2001 after lapse of more than 39 years which

is totally impermissible in law, both for the

Society and the Sub-Registrar. The respondent

4

Page 50 has neither any authority under the

provisions of the Registration Act, 1908 nor

under Section 31 of the Specific Relief Act,

1963 read with Article 59 of the Limitation

Act, 1963 to unilaterally cancel the sale

deed without the authority of law and as such

the registration of the document by the

sub-Registrar amounts to playing fraud on the

power provided to him under law which is

ultra vires the relevant statutory provisions

and the Constitution of India. Further

reliance has been placed upon the judgment of

the Constitution Bench of this Court in the

case of Pratap Singh v. State of Punjab

14

,

wherein the Constitution Bench, with

reference to the House of Lords, has clearly

laid down the aforesaid principle as under :

“6. If this were put aside, the second

ground of attack on the orders may be

viewed from two related aspects—of

ultra vires pure and simple and

secondly as an infraction of the rule

that every power vested in a public

body or authority has to be used

honestly, bona fide and reasonably,

14

AIR 1964 SC 72

5

Page 51 though the two often slide into each

other. Thus Sir Lyman Duff, speaking

(in Municipal Council of Sydney v.

Campbell) in the context of an

allegation that the statutory power

vested in a municipal corporation to

acquire property had been used in bad

faith which was held to have been

proved, stated:

“A body such as the Municipal

Council of Sydney, authorised to

take land compulsorily for

specified purposes, will not be

permitted to exercise its powers

for different purposes, and if it

attempts to do so, the Courts will

interfere. As Lord Loreburn said,

in Marquess of Clanricarde v.

Congested Districts Board

‘Whether it does so or not is

a question of fact.' Where

the proceedings of the

Council, are attacked upon

this ground, the party

impeaching those proceedings

must, of course, prove that

the Council, though

professing to exercise its

powers for the statutory

purpose, is in fact employing

them in furtherance of some

ulterior object.”

Similarly, in Short v. Poole

Corporation Pollock M.R. observed:

“The appellants (represented before

the Court by Maugham K.C.—

afterwards Lord Maugham) do not

contest the proposition that where

an authority is constituted under

statute to carry out-statutory

5

Page 52 powers with which is entrusted

it, ... if an attempt is made to

exercise those powers corruptly—as

under the influence of bribery, or

mala fides — for some improper

purpose, such an attempt must fail.

It is null and void: see Reg. v.

Governors of Darlington School”.

In the same case Warrington, L.J. said:

“No public body can be

regarded as having statutory

authority to act in. bad faith

or from corrupt motives, and

any action purporting to be

that of the body, but proved

to be committed in bad faith

or from corrupt motives, would

certainly be held to be

inoperative.

It may be also possible to

prove that an act of the

public body, though performed

in good faith and without the

taint of corruption, was so

clearly founded on alien and

irrelevant grounds as to be

outside the authority

conferred upon the body, and

therefore inoperative. It is

difficult to suggest any act

which would be held ultra

vires under this head though

performed bona fide.””

20.For the aforesaid reasons, I have come

to the conclusion that the Society has no

right to re-allot the said plot of land in

favour of the respondent No. 5 by cancelling

5

Page 53 the already registered sale deed in favour of

the appellant’s mother in the year 1962 which

was an absolute sale deed. Further,

registering the sale deed on 21.04.2004 in

favour of respondent no.5, who in turn sold

the said plot of land in favour of respondent

Nos. 6 and 7, is void ab initio in the light

of the fact that according to the bye-Laws of

the Society, Mrs. Manjeet-respondent no.5,

could not have come in possession of the said

plot in the first place as her husband has

already got a plot allotted to him in the

very same Society. Therefore, the transfer of

the said plot of land via subsequent sale

deeds are void ab initio in law and

therefore, liable to be set aside.

21.For the above stated reasons, it is clear

that the appellant has got a valid

constitutional right over the said plot of

land as guaranteed under Article 300A of the

Constitution of India, wherein it has been

5

Page 54 stated that the deprivation of property

without the authority of law is totally

impermissible in law. Merely because the

cancellation of the void extinguishment deed

with regard to the said plot of land and the

subsequent sale deed executed in favour of

the respondent No.5 has not been sought for

by the appellant by approaching the civil

court, it does not disentitle him for seeking

the relief with regard to the said plot of

land for the reason that the cancellation of

the sale deed dated 30.03.1962 after a lapse

of 39 years has been done without the

authority of law by the Society. The

subsequent actions of re-registering the sale

deed in favour of the respondent No.5 and

thereafter in favour of respondents Nos.6 and

7 are void ab initio in law. Thus, this Court

has the power to closely examine the same in

these proceedings having regard to the

peculiar facts and circumstances of the

present case.

5

Page 55 22.The scope of the powers of this Court under

Article 136 of the Constitution of India has

been discussed in a catena of cases. In the

case of Arunachalam v. P.S.R. Sadhanantham and

Anr.

15

, Chinappa Reddy, J. observed as under:

“4.... Article 136 of the Constitution of

India invests the Supreme Court with a

plenitude of plenary, appellate power over

all Courts and Tribunals in India. The

power is plenary in the sense that there

are no words in Article 136 itself

qualifying that power. But, the very nature

of the power has led the Court to set

limits to itself within which to exercise

such power. It is now the well established

practice of this Court to permit the

invocation of the power Under

Article 136 only in very exceptional

circumstances, as when a question of law of

general public importance arises or a

decision shocks the conscience of the

Court. But within the restrictions imposed

by itself, this Court has the undoubted

power to interfere even with findings of

fact making no distinction between judgment

of acquittal and conviction, if the High

Court, in arriving at those findings, has

acted "perversely or otherwise

improperly"....”

More recently, in the case of Ganga Kumar

Shrivastav v. State of Bihar

16

, this Court

15

(1979) 2 SCC 297

16

(2005) 6 SCC 211

5

Page 56 laid down the following principles as regards

the power of this Court under Article 136:

“10.

.....

i)The powers of this Court Under

Article 136 of the Constitution are very

wide but in criminal appeals this Court

does not interfere with the concurrent

findings of the fact save in exceptional

circumstances.

ii)It is open to this Court to interfere

with the findings of fact given by the

High Court if the High Court has

acted perversely or otherwise improperly.

iii)It is open to this Court to invoke the

power Under Article 136 only in very

exceptional circumstances as and when a

question of law of general public

importance arises or a decision shocks

the conscience of the Court.

iv)When the evidence adduced by the

prosecution fell short of the test of

reliability and acceptability and as such

it is highly unsafe to act upon it.

v) Where the appreciation of evidence and

finding is vitiated by any error of law

of procedure or found contrary to the

principles of natural justice, errors of

record and misreading of the evidence,

or where the conclusions of the High

Court are manifestly perverse and

unsupportable from the evidence on

record.”

5

Page 57 As can be seen from the above case law, the

power vested with this Court is quite wide

and the Court can examine any case to prevent

miscarriage of justice.

23.Therefore, the High Court ought to have

granted the relief to the appellant by

holding that the extinguishment deed executed

with regard to the appellant’s said plot of

land on 09.08.2001, without following the

procedure contemplated under Section 31(1) &

(2) of the Specific Relief Act, 1963 and

Section 54 of the Transfer of Property Act,

1882, is void ab initio in law. The same is

required to be interfered with by this Court

in exercise of its appellate jurisdiction as

there is a grave miscarriage of justice and

the septuagenarian appellant has been

suffering unnecessarily for the past 14 years

at the hands of the Society and the

5

Page 58 Sub-Registrar, who have violated the

provisions of law and deprived the appellant

of his valuable constitutional right

guaranteed under Article 300A of the

Constitution of India upon the said property.

Therefore, the appellant is entitled for the

relief as prayed for in this appeal.

24. The contention urged on behalf of the

respondents, namely that this Court has

already dismissed the SLP No.13255 of 2012

filed by the appellant earlier, wherein, this

Court has examined the correctness of the

order dated 08.11.2008 of the Joint Registrar

passed in exercise of his revisional

jurisdiction with regard to the appointment

of the receiver under Section 64 of the M.P.

State Cooperative Societies Act 1960, at the

instance of the respondents, has no relevance

to the reliefs sought for in the present

appeal. The prayer sought for in the present

appeal is with regard to cancellation of the

5

Page 59 extinguishment deed and the subsequent sale

deed executed by Society in favour of

respondent No.5, who in turn has executed

another sale deed in favour of respondent

Nos. 6 and 7 with regard to the said plot of

land. Therefore, the prayer in the present

appeal is totally different from the one in

SLP No.13255 of 2012. The order dated

17.07.2013 passed in SLP No. 13255 of 2012 by

this Court, at para 4, is very clear with

regard to the extinguishment deed which reads

thus:

“4. It appears that after lapse

of 40 years, the first respondent

purported to have cancelled the

sale made in favour of the

petitioner’s deceased mother. On

9.8.2001, a deed styled as

Extinguishment Deed came to be

executed by the first respondent

before the Sub-registrar,

Bhopal-the legality of which deed

is required to be examined

separately. However, we do not

propose to say anything at this

stage.”

5

Page 60 25.In so far as the document of compromise

deed dated 06.07.2004 is concerned, the sum

of Rs.6,50,000/- allegedly voluntarily

received by the appellant from the respondent

No.5 to put an end to the dispute over the

said property is also a void transaction, as

the same has been done during the pendency of

the proceedings before the Sub-Registrar in

relation to the dispute. The said compromise

deed is void ab initio in law and the same

cannot be put against the appellant so as to

deny him the relief sought by him in the

present appeal. Apart from the said reason,

the notice dated 12.07.2007 served upon the

appellant by the lawyer of respondent No.5

has rescinded the agreement dated 06.07.2004

and she has claimed the refund of 6,50,000/-,

to be returned with interest to her, failing

which she will file a suit for claim for

payment of Rs.6,50,000/- with interest. The

said notice is produced at Annexure ‘P-6’ in

the proceedings. The relevant clause 4 of the

6

Page 61 said notice is extracted hereunder which

reads thus:-

“4.That after receipt of money by

you frivolous disputes are being

raised by you. By raising

unnecessary disputes you have

violated compromise dated 6.7.2004.

Therefore, my client being

constrained (makes demand of the

amount paid to you). Therefore, you

are liable to return and pay to my

client the amount of Rs.6,50,000/-

(Rupees six lakh and fifty

thousand).

Therefore, by means of the notice

you are informed that the amount of

Rs.6,50,000/- (Rupees six lakh and

fifty thousand) and interest

thereon at bank rate from date of

receipt till the date of payment be

returned to my client within 30

days of receipt of this notice and

obtain a receipt in writing after

the said period my client shall be

entitled to take action before you

in the court of law in accordance

with law…”

In view of the aforesaid demand notice,

since the agreement has been rescinded, it

does not subsist and the High Court by

6

Page 62 placing reliance upon the same has committed

an error in fact and in law and has

wrongfully denied the relief to the appellant

even though the same was brought to the

notice of the High Court by the appellant in

the proceedings before it. For the reasons

stated supra, I have to grant the reliefs in

favour of the appellant as prayed by him and

quash the extinguishment deed dated

09.08.2001 along with the subsequent sale

deeds registered in favour of the respondent

No.5 who in turn has sold property in favour

of respondent Nos.6 and 7 without the

authority of law. The sale deed can be

cancelled under Section 31 of the Specific

Relief Act, 1963, by the competent civil

court if the same is challenged within the

period of limitation stipulated under Article

59 of the Limitation Act, 1963. Since the

facts are undisputed in the case on hand and

the respondent Society, after the lapse of 39

years has erroneously and illegally cancelled

6

Page 63 the absolute sale deed registered in favour

of the appellant’s mother, the appellant has

acquired a valid and absolute title to the

property in question and the same could not

have been cancelled by the respondent Society

and the Sub-Registrar as it is void ab initio

in law. Hence, the High Court should have

responsibly exercised its extraordinary

jurisdiction and should have examined the

documents of the sale deed with respect to

the relevant provisions of the M.P

Co-operative Societies Act and Rules, 1962

and the Bye-laws of the Society. The

cancellation of the sale deed executed in

favour of the appellant’s mother in the year

1962 by way of the extinguishment deed could

not have been registered by the Sub-Registrar

as he is not empowered to do so. Hence, for

want of the competent jurisdiction, in

registering such document, the High Court

should have exercised its extraordinary

jurisdiction to annul the extinguishment deed

6

Page 64 and the transactions of the subsequent sale

deeds, which has not been done by it.

Reliance has been placed upon the decision of

this Court in the case of CAG v. K.S.

Jagannathan

17

, wherein it has been held thus:

“19. Even had the Division Bench

issued a writ of mandamus giving the

directions which it did, if

circumstances of the case justified

such directions, the High Court would

have been entitled in law to do so for

even the courts in England could have

issued a writ of mandamus giving such

directions. Almost a hundred and

thirty years ago, Martin, B., in Mayor

of Rochester v. Regina said:

“But, were there no authority

upon the subject, we should be

prepared upon principle to affirm

the judgment of the Court of

Queen’s Bench. That court has

power, by the prerogative writ of

mandamus, to amend all errors

which tend to the oppression of

the subject or other

misgovernment, and ought to be

used when the law has provided no

specific remedy, and justice and

good government require that

there ought to be one for the

execution of the common law or

the provisions of a statute:

Comyn’s Digest , Mandamus

(A).... Instead of being

astute to discover reasons

17

(1986) 2 SCC 679

6

Page 65 for not applying this great

constitutional remedy for

error and misgovernment, we

think it our duty to be

vigilant to apply it in

every case to which, by any

reasonable construction, it

can be made applicable.”

The principle enunciated in the above

case was approved and followed in King

v. Revising Barrister for the Borough

of Hanley . In Hochtief Gammon case

this Court pointed out that the powers

of the courts in relation to the

orders of the government or an officer

of the government who has been

conferred any power under any statute,

which apparently confer on them

absolute discretionary powers, are not

confined to cases where such power is

exercised or refused to be exercised

on irrelevant considerations or on

erroneous ground or mala fide, and in

such a case a party would be entitled

to move the High Court for a writ of

mandamus. In Padfield v. Minister of

Agriculture, Fisheries and Food the

House of Lords held that where

Parliament had conferred a discretion

on the Minister of Agriculture,

Fisheries and Food, to appoint a

committee of investigation so that it

could be used to promote the policy

and objects of the Agricultural

Marketing Act, 1958, which were to be

determined by the construction of the

Act which was a matter of law for the

court and though there might be

reasons which would justify the

Minister in refusing to refer a

complaint to a committee of

investigation, the Minister’s

discretion was not unlimited and if it

6

Page 66 appeared that the effect of his

refusal to appoint a committee of

investigation was to frustrate the

policy of the Act, the court was

entitled to interfere by an order of

mandamus. In Halsbury’s Laws of

England, 4th Edn., vol. I, para 89, it

is stated that the purpose of an order

of mandamus

“is to remedy defects of

justice; and accordingly it

will issue, to the end that

justice may be done, in all

cases where there is a specific

legal right and no specific

legal remedy for enforcing that

right; and it may issue in

cases where, although there is

an alternative legal remedy,

yet that mode of redress is

less convenient, beneficial and

effectual.”

20. There is thus no doubt that the

High Courts in India exercising their

jurisdiction under Article 226 have

the power to issue a writ of mandamus

or a writ in the nature of mandamus or

to pass orders and give necessary

directions where the government or a

public authority has failed to

exercise or has wrongly exercised the

discretion conferred upon it by a

statute or a rule or a policy decision

of the government or has exercised

such discretion mala fide or on

irrelevant considerations or by

ignoring the relevant considerations

and materials or in such a manner as

to frustrate the object of conferring

such discretion or the policy for

implementing which such discretion has

been conferred. In all such cases and

6

Page 67 in any other fit and proper case a

High Court can, in the exercise of its

jurisdiction under Article 226, issue

a writ of mandamus or a writ in the

nature of mandamus or pass orders and

give directions to compel the

performance in a proper and lawful

manner of the discretion conferred

upon the government or a public

authority, and in a proper case, in

order to prevent injustice resulting

to the concerned parties, the court

may itself pass an order or give

directions which the government or the

public authority should have passed or

given had it properly and lawfully

exercised its discretion. ”

(Emphasis laid by me)

26.Further reliance has been placed upon the

decision of this Court in the case of Andi

Mukta Sadguru Shree Muktajee Vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust v. V.R.

Rudani

18

, wherein it has been held thus:

“20. The term “authority” used in

Article 226, in the context, must

receive a liberal meaning unlike the

term in Article 12. Article 12 is

relevant only for the purpose of

enforcement of fundamental rights

under Article 32. Article 226 confers

power on the High Courts to issue

writs for enforcement of the

fundamental rights as well as

18

(1989) 2 SCC 691

6

Page 68 non-fundamental rights. The words

“any person or authority” used in

Article 226 are, therefore, not to be

confined only to statutory

authorities and instrumentalities of

the State. They may cover any other

person or body performing public

duty. The form of the body concerned

is not very much relevant. What is

relevant is the nature of the duty

imposed on the body. The duty must be

judged in the light of positive

obligation owed by the person or

authority to the affected party. No

matter by what means the duty is

imposed, if a positive obligation

exists mandamus cannot be denied.

21. In Praga Tools Corpn. v. C.A.

Imanual this Court said that a

mandamus can issue against a person

or body to carry out the duties

placed on them by the statutes even

though they are not public officials

or statutory body. It was observed:

“It is, however, not necessary

that the person or the

authority on whom the

statutory duty is imposed need

be a public official or an

official body. A niandamus can

issue, for instance, to an

official of a society to

compel him to carry out the

terms of the statute under or

by which the society is

constituted or governed and

also to companies or

corporations to carry out

duties placed on them by the

statutes authorising their

undertakings. A mandamus would

also lie against a company

constituted by a statute for

6

Page 69 the purpose of fulfilling

public responsibilities.”

22. Here again we may point out that

mandamus cannot be denied on the

ground that the duty to be enforced

is not imposed by the statute.

Commenting on the development of this

law, Professor de Smith states: “To

be enforceable by mandamus a public

duty does not necessarily have to be

one imposed by statute. It may be

sufficient for the duty to have been

imposed by charter, common law,

custom or even contract.” 7 We share

this view. The judicial control over

the fast expanding maze of bodies

affecting the rights of the people

should not be put into watertight

compartment. It should remain

flexible to meet the requirements of

variable circumstances. Mandamus is a

very wide remedy which must be easily

available “to reach injustice

wherever it is found”. Technicalities

should not come in the way of

granting that relief under Article

226. We, therefore, reject the

contention urged for the appellants

on the maintainability of the writ

petition.”

27.Further, this Court has laid down the

following principles with respect to the writ

of certiorari in the 7 judge bench decision in

the case of Hari Vishnu Kamath v. Ahmad

Ishaque

19

:

19

AIR 1955 SC 233

6

Page 70 “….(1) Certiorari will be issued for

correcting errors of jurisdiction,

as when an inferior Court or

Tribunalacts without jurisdiction or

in excess of it, or fails to

exercise it.

(2) Certiorari will also be issued

when the Court or Tribunal acts

illegally in the exercise of its

undoubted jurisdiction, as when it

decides without giving an

opportunity to the parties to be

heard, or violates the principles

of natural justice.

(3) The court issuing a writ of

certiorari acts in exercise of a

supervisory and not appellate

jurisdiction. One consequence of

this is that the court will not

review findings of facts reached by

the inferior Court or Tribunal, even

if they be erroneous.

(4) An error in the decision or

determination itself may also

be amenable to a writ of "certiorari"

if it is a manifest error apparent on

the face of the proceedings, e.g.,

when it is based on clear ignorance

or disregard of the provisions of

law. In other words, it is a patent

error which can be corrected by

"certiorari" but not a mere wrong

decision. What is an error apparent

on the face of the record cannot be

defined precisely or exhaustively,

there being an element of

indefiniteness inherent in its very

nature, and it must be left to be

determined judicially on the facts of

each case.”

7

Page 71 28.Thus, the High Court has failed to exercise

its discretionary power which has resulted in a

grave miscarriage of justice, thereby,

depriving the valuable constitutional right

guaranteed under Article 300A of the

Constitution of India to the appellant. I,

hereby, set aside the said order of the learned

single Judge of the High Court and quash the

impugned instruments i.e. the extinguishment

deed dated 09.08.2001 and the subsequent sale

deeds dated 21.04.2004 and 11.07.2006 and

further direct the respondent Nos.6 and 7 to

vacate the said property and hand over the

possession of the same to the appellant. The

respondents are further directed to pay the

appellant a compensation amount of Rs.10 Lakhs

for his sufferings and the injustice caused to

him by the society for the last 14 years as he

was deprived of his right to enjoy the property

on account of the arbitrary and unilateral

action taken by the society in cancelling the

7

Page 72 sale deed in respect of the property in

question executed in favour of his deceased

mother.

29. The appeal is allowed in the above terms.

…………………………………………………………… J.

[V.GOPALA GOWDA]

New Delhi,

August 25, 2015

7

Page 73 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6673 OF 2014

Satya Pal Anand Appellant(s)

Versus

State of M.P. and Others Respondent(s)

O R D E R

In view of the difference of opinion between

us, the Registry is directed to place the matter before

Hon'ble the Chief Justice of India, so that an

appropriate Bench could be constituted for hearing the

matter.

......................J.

(Dipak Misra)

......................J.

(V. Gopala Gowda)

New Delhi;

August 25, 2015.

7