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2023 DIGILAW 818 (AP)

Himatmal Bhermal Jain v. State of Andhra Pradesh

2023-06-13

V.SUJATHA

body2023
ORDER : (i) W.P. No.s13729 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 Mandamus declaring the action of the third respondent in registering the documents registered as document Nos.D/1573/2015, 1574/2015, 1575/2015, 1576/2015, 1577/2015 and 1578/2015 all dated 10.03.2015, in violation of the mandatory provisions of the Registration Act, 1908 and the Rules made thereunder, as being illegal, arbitrary and violative of Article 14 and 300-A of the Constitution of India and the principles of natural justice and accordingly, set aside the same and pass such other order…” (ii) W.P. No.20850 of 2017 : 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 Mandamus directing the respondent Nos.2 to 4 to conduct further proceedings in pursuance of the Memo No.S/1306/2015, dated 29.12.2015 and the show cause notice No.G1/684/2017, dated 12.04.2017 issued by the 4th respondent on the basis of the report of the 4th respondent bearing No.G1/3213/2015 dated 30.05.2016 and further direct the respondent Nos.2a to 4 to pass final orders within one month and pass such other order…” 2. As the issue, petitioners as well as the respondents involved in both these cases is one and the same, these writ petitions are decided by way of a common order. 3. The brief facts are that the respondent Nos.5 to 7 (in W.P. No.13729 of 2015), trustees in the 4th respondent Trust, along with the respondent Nos.8 & 9 approached the petitioners stating that the Board of Trustees of the 4th respondent Trust have resolved to sell its property admeasuring Ac.1.10 cents equivalent to 665 Ankanas with patta No.82 in Sy. No.887 of Nellore Bit-II, near Balijapalem, with a view to construct Kalyana Mandapam. They offered to sell the said property for a total consideration of Rs.2,70,00,000/- and believing their statements, the petitioners have agreed to purchase and paid an amount of Rs.90,00,000/- out of Rs.2,70,00,000/- towards part sale consideration and accordingly, an Agreement of Sale was executed on 09.02.2015. Thereafter, the respondent Nos.4 to 7 had also agreed to register the said document. They offered to sell the said property for a total consideration of Rs.2,70,00,000/- and believing their statements, the petitioners have agreed to purchase and paid an amount of Rs.90,00,000/- out of Rs.2,70,00,000/- towards part sale consideration and accordingly, an Agreement of Sale was executed on 09.02.2015. Thereafter, the respondent Nos.4 to 7 had also agreed to register the said document. However, the 5th respondent suddenly reported ill and sent her Special General Power of Attorney in favour of another Trustee i.e. respondent No.6, who was registered as Special Power of Attorney No.1/2015 before the Joint Sub-Registrar-I of District Registrar Cadre, Vellore, Tamilnadu, on 10.02.2015, and sent the same through the respondent Nos.8 and 9 to Nellore. On receipt of the Special General Power of Attorney, the Agreement of Sale was presented for registration before the 3rd respondent by paying an amount of Rs.12,15,200/- towards stamp duty and registration fee and other charges and the same was registered as document No.872/2015 on 11.02.2015. 4. As per the terms of the Agreement of Sale dated 09.02.2015 registered vide document No.872/2015, dated 11.02.2015, the total consideration payable was Rs.2,70,00,000/- out of which Rs.90,00,000/- was paid. (a) The vendors should fence the entire property, survey the area and extent of the land, deliver the original title deeds and settle the claims in O.S. No.9 of 2008 on the file of the learned VI Additional District Judge, Nellore; and in O.S. No.86 of 2007 on the file of the learned District Judge, Nellore. (b) The balance of consideration should be paid on or before 02.04.2015 by cheque or cash and registration of sale deed was to be obtained. (c) If terms and conditions are not fulfilled within time, extension of time was agreed. 5. The respondents failed to comply with any of their obligations under the Agreement of Sale as stated above, in spite of repeated reminders by the petitioners from the 2nd week of March, 2015, both at Vellore as well as at Nellore and therefore, the petitioners addressed a letter dated 13.04.2015 to the respondent Nos.4 to 9 requesting them to comply with the terms and conditions of the agreement of sale. But, however, having acknowledged the said letter, the respondents have failed to respond for the same. But, however, having acknowledged the said letter, the respondents have failed to respond for the same. Therefore, the petitioners visited the office of the 3rd respondent and came to know that the respondents have cancelled the agreement of sale, vide document dated 10.03.2015 and thereafter, executed 5 registered sale deeds in favour of the respondent Nos.10 to 12. 6. It is evident from those certified copies that all those documents were allegedly presented between 4.00 PM and 5.00 PM, the same were generated between 9.13 P.M and 9.21 P.M and all of them were registered on the same day i.e., on 10.03.2015 as document Nos.1573, 1574, 1575, 1576, 1577 and 1578 of 2015 by the 3rd respondent, which has created doubt regarding the actual time of presentation. 7. The said alleged sale deeds shows that they were executed on behalf of the 4th respondent Trust, but the cancellation deed executed by the 5th respondent in her personal capacity claiming the very same property as her personal property inherited by her from her late husband contrary to the recitals in the agreement of sale. Further, the Agreement of Sale is executed by the respondent Nos.5 to 7 as trustees, whereas the cancellation deed was executed by the respondent No.5 alone in her personal capacity. 8. Further, the terms of the agreement provide for only extension of time and do not provide for cancellation of the agreement and at any rate. The terms and conditions of Agreement of Sale are as under : “1. It is arranged that an amount of Rs.2,70,00,000/- is decided to be the said consideration of the said property admeasuring Ac.1.10 cents, and out of which, a sum of rs.90,00,000/- (Rs.55,00,000/- (Rupees Fifty Five lakhs only) paid by you earlier to the trustees in respect of this transaction and Rs.35,00,000/- (Rupees Thirty Five Lakhs Only) is received as having been paid by you. 2. It is arranged that remaining amount of Rs.1,70,00,000/- (Rupees One Crore Seventy Lakhs) shall be payable on or before 02.04.2015 by way of cheque or cash either in your name or in the name of persons authorized by you and shall register the same. 3. 2. It is arranged that remaining amount of Rs.1,70,00,000/- (Rupees One Crore Seventy Lakhs) shall be payable on or before 02.04.2015 by way of cheque or cash either in your name or in the name of persons authorized by you and shall register the same. 3. It is also arranged to fence the said property with barbed wife, having measure the same and to hand over all the original documents along with map and all other connected record of this property and hand over the same to you on behalf of Trust, before the registration. 4. The two suits pending (1) O.S. No.9 of 2008 on the file of VI Additional District Court and (2) O.S. No.86 of 2007 on the file of District Court shall be got settled out of court with our expenditure and efforts and hand over its vacant and peaceful possession to you. Agreement has been entered into by making you to believe that the said property has not been alienated either to the trust or anybody earlier. 5. If we fail to register the said property and drag on the matter on you are ready and come forward for registration with sale consideration, you are at liberty and shall have every right to initiate action by through court and get the same registered. 6. This agreement of sale is made and executed with an agreement that if the above conditions are not fulfilled within the stipulated time, the same shall be extended for some time.” 8. It is stated in the cancellation deed, that the respondent No.5 alleged that she is unable to read Telugu language and therefore, the respondent Nos.6 and 7 have obtained her signatures on the Special General Power of Attorney and the agreement of sale by playing fraud and misrepresentation. But, she herself is shown as the scribe for the deed of cancellation of the Agreement of Sale. The allegations made therein against the respondent Nos.6 and 7 are false and are invited for the purpose of the cancellation deed and in fact, all the respondent Nos.5 to 9 are closely related. 9. All the sale deeds executed by her and presented simultaneously with the cancellation deed were also written in Telugu. The allegations made therein against the respondent Nos.6 and 7 are false and are invited for the purpose of the cancellation deed and in fact, all the respondent Nos.5 to 9 are closely related. 9. All the sale deeds executed by her and presented simultaneously with the cancellation deed were also written in Telugu. Further, in the cancellation deed, the 5th respondent claimed the property as her own but the five sale deeds presented and registered simultaneously, the same property was shown as trust property. In the sale deeds, the respondent Nos.8 and 9 joined as Chairman and Managing Trustee and Treasurer respectively, without any basis. The Special General Power of Attorney dated 10.02.2015 was in fact registered at their house, attested by them and they only brought the document to Nellore. In all the sale deeds executed on behalf of the 4th respondent Trust, the respondent No.8 signed as Managing Trustee-cum-Chairman and the respondent No.5 as Secretary and the respondent No.9 as Treasurer. No document of proceedings of the Trustees was recited, much less presented or attached to the sale deeds. Further, in the cancellation deed, the 5th respondent disowned her position as Managing Trustee of the Trust and stated that she had nothing to do with the trust at all contrary to the recitals in the agreement of sale as well as the Special General Power of Attorney attested by the respondent Nos.8 and 9. Thus, all the above said documents suffer from patent and incurable defects as to the competence of the executants and hence, could not have been received and registered. Hence, the impugned action of the Joint Sub-Registrar in registering the cancellation deed and the sale deeds is without any enquiry is illegal, arbitrary and jurisdiction. 10. It is also stated in the affidavit that the said unilateral cancellation deed affects the rights of the parties to the principal document and in this case, the Agreement of Sale. In view of the apparent infirmities and contradictions in the documents presented simultaneously for registration, as to the competence and the representative capacity of the executants, the 3rd respondent ought to have conducted an enquiry under Section 35(2) of the Act read with Chapter XII of the Rules, particularly Rules 57 to 60, but no such enquiry was conducted. 11. In view of the apparent infirmities and contradictions in the documents presented simultaneously for registration, as to the competence and the representative capacity of the executants, the 3rd respondent ought to have conducted an enquiry under Section 35(2) of the Act read with Chapter XII of the Rules, particularly Rules 57 to 60, but no such enquiry was conducted. 11. The 3rd respondent, alleged to be aware that the cancellation deed seriously affects the rights of the petitioners under Agreement of Sale dated 09.02.2015, ought to have given notice to the petitioners to raise their objections, which he is bound to consider under Rules 58 (a) and (c). Aggrieved by such unilateral registration of cancellation of agreement of sale deeds, W.P. No.13729 of 2015 is filed. 12. In the meanwhile, the petitioners submitted a representation dated 19.12.2015 to the respondent Nos.2 and 3 in (W.P. No.20850 of 2017) i.e., The Commissioner and Inspector General of Registration and Stamps, The Deputy Inspector General of Registration and Stamps, to take action against the persons involved in the illegal registration and to prohibit registration of further documents. The 3rd respondent was pleased to forward the same under Memo No.S/1306/2015, dated 29.12.2015 to the 4th respondent i.e., The District Registrar, with a request to enquire into the matter and submit a report within 15 days. The District Registrar after issuance of notice to all the parties including the 5th respondent i.e., the Joint Sub-Registrar and by conducting enquiry, submitted a detailed report dated 30.05.2016, stating that the action of the Joint Sub-Registrar is in clear violation of Rule 26 (k)(i) of the Rules and without seeing the particulars of the cancellation deed, registered five sale deeds and the property in question is kept in prohibitory register to avoid further complications. 13. Later, the petitioner made an application under RTI Act and obtained a copy of the report of the respondent No.4, which was issued under the cover of letter No.G3/1324/2016, dated 08.06.2016. The 4th respondent-District Registrar, Nellore, has also issued notices to the private respondents under Sections 82(a) and 83 of the Registration Act, 1908 under letter bearing No.G1/684/2017 dated 12.04.2017, but, however, no further action was taken on the ground that the W.P. No.13729 of 2015 is pending. 14. In fact, as per the Circular Memo No.G1/1843/2015, dated 08.04.2015, such registration are liable to be cancelled. 14. In fact, as per the Circular Memo No.G1/1843/2015, dated 08.04.2015, such registration are liable to be cancelled. Aggrieved by the inaction on the part of the respondent Nos.2 and 3 in taking further action, basing on the enquiry report dated 30.05.2016 and show cause notices dated 12.04.2017, W.P. No.20850 of 2017 is filed. 15. In W.P. No.13729 of 2015, denying all the averments made in the writ petition, counter affidavit is filed on behalf of Joint Sub-Registrar, wherein it is stated that the 5th respondent executed a deed of Cancellation of Agreement of sale and presented the same before the Joint Sub-Registrar for registration, alleging that she is the absolute owner of the subject property and she cannot read Telugu language and that the respondent Nos.6 and 7 by misrepresenting the facts and by playing fraud obtained her signatures on some blank stamp papers and Special Power of Attorney, executed the above said Agreement of sale in favour of the petitioners in respect of the subject property and she has not received any amount towards advance. 16. It is also stated that as the regular Sub-Registrar was on leave, the incharge Sub-Registrar had registered the cancellation deed vide document No.1573 of 2015 on 10.03.2015 and on the same day, the 5th respondent and respondent Nos.8 and 9 executed 5 sale deeds in favour of respondent Nos.10 to 12 in respect of the subject property and presented the same in the office of the 3rd respondent. After registration of the cancellation deed, the incharge Sub-Registrar has registered all the 5 sale deeds vide document Nos.1574 to 1578 of 2015, dated 10.03.2015. 17. Another counter affidavit is filed on behalf of 3rd respondent-The Deputy Inspector General of Registration and Stamps in W.P. No.20850 of 2017, stating that basing on the preliminary enquiry report from the District Registrar, Nellore vide letter No.G1/3213/2015, dated 30.05.2016, Departmental Proceedings were initiated and framed article of charges vide Memo.No.S/1306/2015, dated 18.03.2017, under Rule 20 of A.P. Civil Services (CC&A) Rules, 1991 and framed article of charges, against G. Vinay Kumar, former Sub-Registrar(I/C). It is also stated that vide proceeding No.S/1306/2015, dated 09.05.2017, the District Registrar, Market Value and Audit, Nellore, was posted as Regular Enquiry Officer and the District, Registrar, Nellore as presenting Officer to enquire on the above article of charges made against the incharge Sub-Registrar. 18. It is also stated that vide proceeding No.S/1306/2015, dated 09.05.2017, the District Registrar, Market Value and Audit, Nellore, was posted as Regular Enquiry Officer and the District, Registrar, Nellore as presenting Officer to enquire on the above article of charges made against the incharge Sub-Registrar. 18. It is further stated in the counter affidavit that petitioners submitted another representation to the Deputy Inspector General, Nellore on 18.03.2017, requesting to initiate punitive action in accordance with law. As the District Registrar, Nellore, is the competent authority to initiate action under Section 82(a) and 83 of the Registration Act, 1908, the District Registrar was instructed vide memo No.S/1306/2015, dated 18.03.2017, to take necessary action in view of the circular Memo No.G1/1843/2015, dated 08.04.2015, issued by the Director and Inspector General of Registration and Stamps. 19. Heard learned counsel for the petitioners and learned Government Pleader for Stamps and Registration. 20. For better appreciation of the case, this Court feels it relevant to refer to Section 26 (i) (k) of the Indian Stamps and Registration Act, which reads as follows : “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 sale; Provided that the registering officer shall dispense with the execution of cancellation deeds by executants 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. (ii) Save in the manner provided for above no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration.” 21. (ii) Save in the manner provided for above no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation for registration.” 21. On a perusal of the entire material on record it appears that, the 5th respondent, being a scriber, has executed the said document in Telugu and on the other hand, she executed the cancellation deed, by stating that she cannot read Telugu language and as such, the respondent Nos.6 and 7 have obtained her signatures on the Special General Power of Attorney and the agreement of sale. It is further clear that the 3rd respondent, has cancelled the agreement of sale and executed five (5) registered sale deeds in favour of the respondent Nos.10 to 12, without giving a proper notice to the petitioner and without even conducting any enquiry as under Section 26 (i) (k) (i) of the Act. 22. In view of the above, this Court feels it appropriate to Allow these Writ Petitions by setting aside the 5 registered sale deeds i.e., document Nos.1573, 1574, 1575, 1576, 1577 and 1578 of 2015, dated 10.03.2015. Accordingly, the Joint Sub Registrar i.e., the respondent No.3 herein, is directed to cancel the execution of 5 cancellation deeds dated 10.03.2015, registered vide document Nos. 1573, 1574, 1575, 1576, 1577 and 1578 of 2015, in view of the settled legal position on this issue as discussed above, as expeditiously as possible, preferably, within a period of eight (8) weeks from the date of receipt of a copy of this order. 23. Accordingly, these writ petitions are allowed. There shall be no order as to costs. Consequently, miscellaneous applications pending, if any, shall stand closed.