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Friday, October 28, 2016

whether the action of the Society to cancel the allotment of the plot followed by execution of an Extinguishment Deed was a just action? That will have to be considered keeping in mind the provisions of the Act of 1960 and the Bye-laws of the Society which are binding on the members of the Society. The interplay of the provisions of the Contract Act and the Specific Relief Act and of the Co-operative Laws and the Bye Laws of the Society permitting cancellation of allotment of plot or the membership of the concerned member will have to be considered in appropriate proceedings. Whether the decision of the Society to cancel the allotment of plot made in favour of its member is barred by the law of Limitation Act, is again a matter to be tested in the proceedings before the Cooperative Forum where a dispute has been filed by the appellant, if the appellant pursues that contention.- the case of Thota Ganga Laxmi (supra) was dealing with an express provision, as applicable to the State of Andhra Pradesh and in particular with regard to the registration of an Extinguishment Deed. In absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the Act of 1908. Going by the said provisions, there is nothing to indicate that the Registering Officer is required to undertake a quasi judicial enquiry regarding the veracity of the factual position stated in the document presented for registration or its legality, if the tenor of the document suggests that it requires to be registered. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction.- the document in question no doubt is termed as an Extinguishment Deed. However, in effect, it is manifestation of the decision of the Society to cancel the allotment of the subject plot given to its member due to non fulfillment of the obligation by the member concerned. The subject document is linked to the decision of the Society to cancel the membership of the allottee of the plot given to him/her by the Housing Society. In other words, it is the decision of the Society, which the Society is entitled to exercise within the frame work of the governing cooperative laws and the Bye-laws which are binding on the members of the Society. The case of Thota Ganga Laxmi (supra), besides the fact that it was dealing with an express provision contained in the Statutory Rule, namely Rule 26 (k)(i) of the Andhra Pradesh Registration Rules 1960, was also not a case of a deed for cancellation of allotment of plot by the Housing Society. But, of a cancellation of the registered sale deed executed between private parties, which was sought to be cancelled unilaterally. Even for the latter reason the exposition in the case of Thota Ganga Laxmi (supra) will have no application to the fact situation of the present case.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  6673 OF 2014

Satya Pal Anand                                          ……Appellant

                                     Vs.

State               of               M.P.               &               Ors.
…..Respondents

                             J U D G M E N T


A.M.KHANWILKAR, J.


This appeal has been placed before a three Judges’ Bench in terms  of  order
dated August 25, 2015, consequent to the difference of opinion  between  the
two learned Judges of the Division Bench.


2.    Justice Dipak Misra took the view that, in the fact situation  of  the
present case the Writ Petition filed by the appellant challenging the  order
passed  by  the  Sub-Registrar  (Registration)  and  the  Inspector  General
(Registration) was  rightly  dismissed  by  the  High  Court.  However,  His
Lordship opined  that  a  question  would  still  arise  for  consideration,
namely, whether in absence of any specific  Rule  in  the  State  of  Madhya
Pradesh, the general principle laid down in the case of Thota Ganga Laxmi  &
Anr.  vs. Government of Andhra Pradesh & Ors.[1] would be applicable?


3.    Justice V.Gopala Gowda on the other hand allowed  the  appeal  on  the
finding that the Sub-Registrar (Registration) had no authority  to  register
the Extinguishment  Deed  presented  by  the  respondent-Society  dated  9th
August 2001 and his action of registration of  that  document  was  void  ab
initio. For the  same  reason,  the  subsequent  deeds  in  respect  of  the
property in question registered by the Sub-Registrar dated 21st April,  2004
and 11th July 2006 were also without  authority  and  void  ab  initio.  His
Lordship held that, the High Court should have declared the  above  position
and set aside registration of the subject  documents  and  also  the  orders
passed  by  the   Sub-Registrar   (Registration)   and   Inspector   General
(Registration). His Lordship allowed the appeal filed by the appellant  with
compensation amount to be paid by the respondents quantified at Rs.10 Lakh.


4.    Briefly stated, Plot No.7-B at Punjabi Bagh, Raisen Road,  Bhopal  was
allotted to the appellant’s mother Smt. Veeravali Anand by  Punjabi  Housing
Cooperative Society Ltd. (hereinafter referred to as the “Society”), vide  a
registered deed dated 22nd March 1962. Smt. Veeravali Anand expired on  12th
June 1988. After her death, the Society through its Office  Bearer  executed
a Deed of Extinguishment on 9th August 2001,  unilaterally,  cancelling  the
said allotment of plot to Smt. Veeravali Anand because of violation  of  the
Bye-laws of the Society in not raising  any  construction  on  the  plot  so
allotted within time. On the basis of  the  said  Extinguishment  Deed,  the
Society executed and got registered a deed dated 21st April, 2004 in  favour
of Mrs. Manjit Kaur (Respondent No.5) in  respect  of  the  same  plot.  The
appellant objected to the said transaction. However, a compromise  deed  was
executed between the Society and Mrs. Manjit Kaur (Respondent No.5)  on  the
one hand and the appellant on the other  hand  -  whereunder  the  appellant
received consideration of Rs.6.50 Lakh (Rupees Six Lakh  Fifty  Thousand)  -
Rs.4.50 Lakh (Rupees Four Lakh Fifty Thousand) by a demand draft and  Rs.2/-
Lakh by a post-dated  cheque).  Notwithstanding  the  compromise  deed,  the
appellant  filed  a  dispute  under  Section  64  of  the   Madhya   Pradesh
Cooperative Societies Act, 1960 (hereinafter referred  to  as  the  “Act  of
1960”), before the Deputy Registrar, Cooperative Societies  bearing  Dispute
No.  81  of  2005.  The  appellant  challenged  the  Society’s   action   of
unilaterally registering the Extinguishment Deed dated 9th August  2001  and
allotting the subject plot to Mrs Manjit Kaur vide deed  dated  21st  April,
2004; and prayed for a declaration that he continues to be the owner of  the
subject plot allotted by the Society to his  mother,  having  inherited  the
same. In the said dispute, the appellant filed interim applications  praying
for restraint order and for appointment of a Receiver. It is  not  necessary
to dilate on those facts to consider the issues on hand. Suffice it to  note
that the said dispute is still pending adjudication.


5.    During the  pendency  of  the  said  dispute,  the  Society  permitted
transfer of the subject plot in  favour  of  Mrs.  Meenakshi  and  Mr.  S.C.
Sharma (Respondent Nos. 6 & 7) vide registered Deed dated  11th  July  2006.
Since the appellant was perseverating the dispute and resorting to  multiple
proceedings in relation to  the  subject  plot,  the  respondents  issued  a
notice on 12th July 2007 asking the appellant to  refund  the  consideration
amount accepted by him in furtherance of the compromise deed dated 6th  July
2004. The appellant did  not  pay  any  heed  to  that  demand  and  instead
continued with the multiple  proceedings  resorted  to  by  him  before  the
Authority under  the  Act  of  1960,  including  criminal  proceedings.  The
appellant also moved an application before the Sub-Registrar  (Registration)
calling upon  him to cancel the registration of  Extinguishment  Deed  dated
9th August 2001 and the subsequent two deeds dated 21st April 2004 and  11th
July 2006 respectively. This application was filed on 4th February  2008  by
the  appellant.  The  Sub-Registrar  (Registration)  by  a  speaking   order
rejected the said application on  28th  June  2008  mainly  on  two  counts.
Firstly, a dispute was pending between the parties with regard to  the  same
subject matter. Secondly, he had no jurisdiction to cancel the  registration
of a registered document in question. For, his jurisdiction was  limited  to
registration of the document when presented by the executant before him  for
that  purpose.  The  appellant  then  approached   the   Inspector   General
(Registration)  by  way  of  an  application  under  Section   69   of   the
Registration Act, 1908 (hereinafter referred to as the “Act of  1908”).  The
Inspector General  (Registration)  vide  order  dated  19th  September  2008
rejected the said application on the ground that  powers  conferred  on  him
were limited to the general superintendence of the Registration Offices  and
making Rules.


6.    The appellant thereafter approached the High Court of Madhya  Pradesh,
Judicature at Jabalpur, by way of Writ Petition No.13505/2008 under  Article
226 of the Constitution of India  to  challenge  the  order  passed  by  the
Inspector General (Registration) dated  15th  September  2008  as  also  the
order passed by the Sub-Registrar (Registration) dated 28th June  2008.  The
appellant further prayed for a  declaration  that  the  Extinguishment  Deed
dated 9th August 2001 as well as the subsequent two deeds dated 21st  April,
2004 and 11th July 2006 are void ab initio with a further direction  to  the
Inspector General (Registration) and  the  Sub-Registrar  (Registration)  to
record  the  cancellation  of  those  documents.  This  Writ  Petition   was
dismissed by the Division Bench of the High Court primarily  on  the  ground
that the appellant had already resorted to a remedy (a dispute)  before  the
appropriate Forum under  the  Act  of  1960,  which  was  pending;  and  the
declaration, as  sought,  can  be  considered  in  those  proceedings  after
recording of the evidence and production of other material to be  relied  on
by the parties therein. Accordingly, the  High  Court  held  that  since  an
alternative remedy before a competent Forum was available  and  was  pending
between the parties, it was not feasible to  invoke  the  writ  jurisdiction
under Article 226 of the Constitution  of  India.  Indeed,  the  High  Court
adverted to the reported cases relied on by the parties  to  buttress  their
stand. The High Court took note of the decision of the  Full  Bench  of  the
Andhra Pradesh High Court in the case of Yanala  Malleshwari  vs.  Ananthula
Sayamma[2] and the  decision  of  Madras  High  Court  in  E.R.Kalaivan  vs.
Inspector General of Registration, Chennai & Anr.[3]  The  High  Court  held
that the arguments of the appellant deserve to be negatived in light of  the
majority view of the Full Bench of Andhra Pradesh High Court  and  that  the
dictum in the case before the Madras High  Court  was  distinguishable.  The
High Court also referred to the decision of  the  Karnataka  High  Court  in
M.Ramakrishna Reddy vs. Sub-Registrar, Bangalore[4]. In para 15 and 16,  the
High Court observed thus:


“15.  In view of  aforesaid  discussion  we  are  of  the  view  that  after
registration of the  extinguished  deed  or  other  documents  by  the  Sub-
Registrar, if any application is moved by any of the affected party of  such
document stating that the same was not registered by  practicing  the  fraud
with his right then Sub-Registrar in the lack of any specific  provision  in
this regard could neither entertain nor adjudicate  such  application  under
the provisions of Section 17, 18 or 69 or some other provisions of the  Act.
Section 69 of the Act only confers the superintending power of  registration
offices and to make rules to the Inspector General respondent No.2. It  does
not give any rights to cancel the earlier registered documents or  modifying
any entries in the index or in other  record  at  the  instance  of  any  of
party. So, Section 17(1)(b) read with 69 of the Act is also not  helping  to
the petitioner in this writ petition. Consequently, it  is  held  that  Sub-
Registrar as well as Inspector General  have  not  committed  any  fault  in
dismissing the application of the petitioner with direction to approach  the
competent forum for adjudication of his dispute.


16.   Apart the above the alleged dispute and  allegations  of  the  alleged
fraud could not be adjudicated by this Court under  the  writ  jurisdiction.
The same could be adjudicated by the Civil Court under the common law  after
recording the evidence of the parties and on appreciation of the same  in  a
duly constituted suit.”


The High Court then adverted to the decision in the case  of  Government  of
U.P.  vs.  Raja  Mohammad  Amir  Ahmad  Khan[5].  It  held  that  since  the
Registering  Officer  registered  the  document   presented   to   him   for
registration, his function  is  exhausted.  He  would  then  become  functus
officio and no power to impound the document under Section 33  of  the  Act.
This decision of the High Court is the subject matter of  challenge  in  the
present appeal.


7.    When this appeal came up for hearing before the Division Bench of  the
two learned Judges, as aforesaid, His Lordship  Justice  Dipak  Misra  found
that the High Court  did  not  commit  any  error  in  dismissing  the  Writ
Petition filed by the appellant. His Lordship, however, adverted to all  the
relevant provisions of the Act of 1908 and also  analysed  the  decision  of
the Full Bench of the  Andhra  Pradesh  High  Court  in  Malleshwari’s  case
(supra) and also of the Madras High Court in Kalaivan  (supra)  and  of  the
Karnataka High Court in M.R.Reddy (supra). Finally, His Lordship  considered
the decision of this Court in  Thota  Ganga  Laxmi  (supra)  and  noted  two
aspects. That, in  that  case,  the  Court  had  opined  that  a  unilateral
cancellation deed cannot be registered with reference  to  Rule  2(k)(i)  of
the Rules framed by the State of Andhra Pradesh under Section 69 of the  Act
of 1908. His Lordship was of the view that the dictum of the Court in  Thota
Ganga Laxmi (supra) must be considered in the context  of  a  specific  Rule
framed by the State of Andhra Pradesh, which had come into force  after  the
pronouncement by the Full Bench in the  case  of  Malleshwari  (supra).  His
Lordship then observed that the principle stated in the case of Thota  Ganga
Laxmi (supra) cannot be made applicable to the case on hand in absence of  a
specific Rule in that regard in the State of Madhya Pradesh. Further,  on  a
careful reading  of  the  provisions  of  the  Act  of  1908,  there  is  no
prohibition  to  register  a  document  of  cancellation  of   a   deed   of
extinguishment; and that the procedure under Section 35 of that  Act  cannot
be construed to confer a quasi judicial power on the Registering  Authority.
His Lordship also referred to the decision of the Madras High Court in  Park
View Enterprises vs. State of Tamil Nadu[6] wherein  it  has  been  observed
that the function of the Sub-Registrar for the purposes of  registration  is
purely administrative and not quasi-judicial. He  cannot  decide  whether  a
document which is executed by a person has had title as is  recited  in  the
given instrument. His Lordship found it difficult to agree with the  general
principle stated  in  the  case  of  Thota  Ganga  Laxmi  (supra)  that  the
Registering Authority cannot register a unilateral deed of  cancellation  or
extinguishment, in absence of any specific Rule in that  behalf.  Therefore,
His Lordship opined that the  general  observation  in  that  case  required
reconsideration by a larger Bench.  Having  said  this,  His  Lordship  also
noted that the validity of the action taken by the Society in  execution  of
the extinguishment deed dated  9th  August  2001,  cancelling  the  deed  in
favour of the appellant’s mother dated  22nd  March  1962  was  the  subject
matter of a dispute filed by  the  appellant  wherein  all  relevant  issues
could be  answered  appropriately.  For,  that  Authority  is  competent  to
consider the validity of action of the Society to  unilaterally  cancel  the
allotment of the  plot  made  in  favour  of  the  appellant’s  mother.  His
Lordship  also  adverted  to  the  other  proceedings  between  the  parties
including the order passed by this  Court  in  SLP  (Civil)  No.  13255/2012
dated July 12, 2013, taking note of the Inspection Reports submitted by  the
Sub-Registrar  dated  13th  March  2007  mentioning  that  two  duplex  were
constructed and two more were near completion standing on the  subject  plot
on the date of inspection. His Lordship  also  adverted  to  the  factum  of
compromise deed entered by the appellant with  the  respondents  and  having
received consideration in that behalf from the subsequent purchaser and  yet
the appellant was pursuing remedy before the Sub-Registrar for  cancellation
of the Extinguishment Deed.


8.    His Lordship Justice V.Gopala Gowda, however,  formulated  a  question
in para 12 of the judgment as to whether the appellant was entitled to  seek
relief of cancellation of the registered documents dated  9th  August  2001,
21st April 2004 and 11th July 2006, registered in respect of  the  immovable
property in question. His Lordship, inter-alia, following the exposition  in
Thota Ganga Laxmi (supra) found that the Registrar could not have  permitted
registration of Extinguishment Deed  dated  9th  August  2001,  unilaterally
cancelling the allotment  of  the  subject  plot  made  to  the  appellant’s
mother. His Lordship held that the Extinguishment Deed  was  a  nullity,  in
law. His Lordship then considered the  dictum  in  Kalaivan’s  case  of  the
Madras High Court and opined that it aptly  applied  to  the  facts  of  the
present case and held that  as  the  Extinguishment  Deed  was  unilaterally
registered it ought to be rescinded. His Lordship proceeded to  examine  the
issue in the light of Section 62  of  the  Indian  Contract  Act,  1872.  It
provides that if the parties  to  a  contract  agree  to  substitute  a  new
contract for it, or to rescind or alter, the original contract need  not  be
performed.  Thus,  for  any  novation,  rescission  and  alteration  of  the
contract, it can be made only bilaterally and with amicable consent of  both
the parties. His Lordship then adverted to the scope of Clause 43(1) of  the
Bye-laws of the Society as amended in the year  1991  and  opined  that  the
said Clause can  have  no  retrospective  effect  for  cancellation  of  the
allotment of the plot in the name of appellant’s mother vide  Extinguishment
Deed dated 9th August 2001. The latter is only a  subterfuge.  Reference  is
then made to Section 31 of the  Specific  Relief  Act,  1963  to  hold  that
unilateral cancellation of the deed  would  be  in  violation  of  the  said
provision read with Article 59 of the Limitation Act, 1963,  which  requires
cancellation of any instrument within 3 years.  In  the  present  case,  the
deed in favour of the appellant’s mother was executed  on  22nd  March  1962
and registered on 30th March 1962  concerning  the  subject  plot;  and  for
which reason extinguishment of the said deed after lapse  of  39  years  was
impermissible in law. On this finding,  it  has  been  held  that  the  Sub-
Registrar had no authority under the Act of 1908 nor by  virtue  of  Section
31 of the Specific Relief Act, 1963 read with Article 59 of  the  Limitation
Act,  1963  to  unilaterally  cancel  the  said  deed;   and   consequently,
registration of the Extinguishment Deed  by  the  Sub-Registrar  amounts  to
playing fraud on the power vested in the Authority under  law.  Exercise  of
power of registering a document by the Sub-Registrar, in the  present  case,
was ultra vires the relevant  provisions  and  the  Constitution  of  India.
Reference is then made to the decision of the  Constitution  Bench  of  this
Court in Pratap Singh vs. State of Punjab[7] to hold  that  the  respondent-
Society had no authority to re-allot the subject plot to respondent No.5  by
cancelling the registered deed which has  become  absolute  and  been  acted
upon by the parties. As a consequence of this conclusion, His Lordship  held
that the deed executed in favour of  respondent  No.5  or  for  that  matter
respondent Nos.6 and 7 was also void ab initio; and also because  respondent
No.5 could not be allotted the subject  plot  as  her  husband  was  already
allotted another plot by the same Society. His  Lordship  then  went  on  to
observe 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 and could not be deprived of that property without authority  of  law.
His Lordship was of the view that merely  because  the  Extinguishment  Deed
could be challenged  by  approaching  the  Civil  Court  cannot  denude  the
appellant  of  the  relief,  as  sought  in  the  Writ  Petition,  qua   the
Extinguishment Deed dated 9th August 2001 which was void ab initio; and  for
the same reason order could be passed against respondent No.5 to 7 - as  the
deeds in their favour rested on  the  Extinguishment  Deed.  For  that,  His
Lordship  adverted  to  the  dictum  in  the   case   of   Arunachalam   vs.
P.S.R.Sadhanantham &  Anr.[8]  and  Ganga  Kumar  Shrivastav  vs.  State  of
Bihar[9]. Further, having noticed  that  the  septuagenarian  appellant  had
been litigating for last 14 years because of the  untenable  action  of  the
Society  and   also   of   the   Sub-Registrar,   affecting   his   valuable
Constitutional right under Article 300A of the Constitution  of  India,  His
Lordship was of the opinion that the relief  claimed  by  him  in  the  Writ
Petition deserved to be granted. As regards the  observation  made  by  this
Court dismissing the Special Leave Petition No.13255/2012 vide  order  dated
17th July 2013, His Lordship held that the same will be  of  no  avail  much
less to denude the appellant of the reliefs due to him.  His  Lordship  then
held that the compromise executed by the appellant on  6th  July  2004  also
cannot denude the appellant of the  relief  -  because  it  is  an  admitted
position that the respondent No.5 through Advocate had sent a  legal  notice
dated 12th July 2007 to rescind the  said  agreement  and  called  upon  the
appellant to refund  the  amount  of  Rs.6.50  Lakh  received  by  him  with
interest. His Lordship also adverted to the decisions of this Court  in  CAG
vs. K.S.Jagannathan[10]; Andi Mukta  Sadguru  Shree  Muktajee  Vandas  Swami
Suvarna Jayanti Mahotsav Smarak Trust vs. V.R. Rudani[11]  and  Hari  Vishnu
Kamath vs. Ahmad Ishaque[12] to hold that the High Court failed to  exercise
its discretionary power which has resulted in grave miscarriage  of  justice
and entailing in denial of the valuable right guaranteed under Article  300A
of the Constitution of India to the  appellant.  Accordingly,  His  Lordship
held that the impugned judgment of the Division Bench of the High  Court  as
well as the impugned instruments i.e. Extinguishment Deed dated  9th  August
2001 and the subsequent deeds dated 21st April,  2004  and  11th  July  2006
respectively, are quashed and set  aside.  Further  direction  is  given  to
respondent Nos. 6 and 7  to  vacate  the  subject  property  and  hand  over
possession thereof to the appellant forthwith. His Lordship was of the  view
that the appellant was entitled to further relief of compensation amount  of
Rs.10,00,000/- (Rupees Ten Lakhs) to  be  paid  to  the  appellant  for  his
suffering and the injustice caused to him by the respondents  for  the  last
14 years.


9.    The appellant appeared in person. He adopted the  view  taken  by  His
Lordship Justice V. Gopala Gowda as his argument. He placed reliance on  the
decisions noted hereinabove and adverted to in the  two  separate  judgments
given  by  Their  Lordships.  In  substance,  his  argument  was  that   the
respondent-Society could not have unilaterally executed  the  Extinguishment
Deed dated 9th August 2001 in relation to the subject plot. That  action  of
the respondent-Society was in violation of the governing laws  and  void  ab
initio. Further, the Sub-Registrar had  no  authority  to  register  such  a
document and in any case unilaterally. Hence, the  act  of  registration  of
Extinguishment Deed was also void ab initio. As a consequence,  the  Society
had no authority, in law, to  execute  the  subsequent  deed  in  favour  of
respondent No.5 or to put her in possession of  the  subject  plot  and  the
respondent No.5 in turn could not  have  executed  the  deed  in  favour  of
respondent Nos. 6 and 7.  In other words, the  deeds  executed  between  the
respondent No. 4 - Society and respondent No. 5 and also respondent  Nos.  6
and 7 were void ab initio. That declaration must follow and the  High  Court
was duty bound to allow the Writ Petition filed by him,  as  the  action  of
the respondent No.4-Society was replete with fraud on the Statute  and  also
on the Constitutional right guaranteed to the appellant.   In  all  fairness
to the appellant, it must be mentioned that he has  additionally  relied  on
Suo Motu Proceedings against R.Karuppan,  Advocate[13],  R.S.Maddanappa  (D)
by LRs. vs. Chandramma & Anr.[14] , Rattan Chand Hira Chand vs. Askar  Nawaj
Jung (D) by Lrs. & Ors.[15],  Central  Inland  Water  Transport  Corporation
Ltd. & Anr. vs. Brojo Nath Ganguly & Anr.[16], Indian  Council  for  Enviro-
Legal Action vs. Union of India & Ors.[17], Trishala Jain & Anr.  vs.  State
of Uttaranchal & Anr.[18], Hamza Haji vs. State of  Kerala  &  Anr.[19]  and
S.P.Chengalvaraya Naidu (D) By LRs. vs. Jagannath (D) by  Lrs.  &  Ors.[20],
during the arguments. Besides the oral arguments, the  appellant  has  filed
written submissions on 11th July 2016 and additional written submissions  on
12th August 2016  which  make  reference  to  several  reported  cases.  The
decisions  referred  to  in  the   written   submissions   are   essentially
multiplying the cases on the contention already answered in  favour  of  the
appellant by His Lordship Justice V.Gopala Gowda.


10.   The respondents, on the other hand, contend  that  the  Writ  Petition
has been justly rejected by the High Court on the ground that the  appellant
was pursuing remedy for the same reliefs in substantive proceedings  by  way
of a dispute filed under Section 64 of the Act of 1960 before the  competent
Forum. Besides the said proceedings, it was open to the  appellant  to  take
recourse to other appropriate remedy before the Civil Court, to  the  extent
necessary. The High Court in exercise of powers under  Article  226  of  the
Constitution of India not only exercises an equitable jurisdiction but  also
an extraordinary jurisdiction. The High Court in any case  is  not  expected
to enter upon the  plea  of  declaring  agreements  and  documents  executed
between private parties as illegal or for that matter void ab initio,  which
remedy is available before the cooperative Forum or the Civil Court. It  was
contended that if this contention is accepted, it may not  be  necessary  to
answer the other issue noted in the judgment of Justice Dipak Misra  as  the
same can be considered in  an  appropriate  proceedings,  if  and  when  the
occasion arises. Alternatively, it was contended that  the  dictum  of  this
Court in Thota Ganga Laxmi’s case (supra) must be understood  as  applicable
to the express procedure prescribed for registration  of  an  Extinguishment
Deed or cancellation deed in  the  State  of  Andhra  Pradesh  in  terms  of
statutory Rules. Inasmuch as, in absence of any express provision about  the
procedure for registration of such  document,  that  requirement  cannot  be
considered  as  mandatory.  For,  it  is  not  possible  to  hold  that   no
Extinguishment or cancellation deed can ever be executed  by  the  party  to
the earlier concluded contract, considering the express  provision  in  that
behalf in Section 17(1)(b) of the Act  of  1908  read  with  other  enabling
provisions in the same Act  or  other  substantive  law.  According  to  the
respondents, the questions posed in the judgment of Justice V. Gopala  Gowda
would be relevant and  can  be  conveniently  answered  in  the  substantive
proceedings already resorted to by the appellant, by way of a dispute  under
Section 64 of the Act of 1960. The answer to the said questions may  require
adjudication of  disputed  facts  and  also  application  of  settled  legal
position. It is not a pure question  of  law.  Being  disputed  question  of
facts, the High Court was right in refusing to interfere  and  exercise  its
writ jurisdiction.


11.   The counsel for the State  in  particular  submitted  that  the  legal
position is well-settled.   That,  the  Sub-Registrar  is  not  expected  to
decide the title or rights of the parties to the agreement nor  is  expected
to examine  the  document  to  ascertain  whether  the  same  is  legal  and
permissible in law or undertake  an  analytical  analysis  thereof.  If  the
document registered  by  the  Sub-Registrar  is  illegal  or  there  is  any
irregularity,  that  must  be  challenged   by   invoking   an   appropriate
proceedings before a Court  of  competent  jurisdiction.  If  any  cause  of
action accrues to a member of the Society, in relation to  the  business  of
the Society, can be pursued before the cooperative Forum. The appellant  has
already invoked such remedy.


12.   The respondent  Nos.  6  and  7  additionally  submit  that  they  are
purchasers of the subject plot for consideration. They have acted  to  their
detriment in good faith by going ahead with the  construction  on  the  plot
with the permission of the Society and after obtaining  approvals  from  the
Municipal Authorities. They have spent their fortune in  doing  so.  Besides
supporting the stand taken by the other respondents,  they  submit  that  in
the fact situation of the present case no relief in equity is  warranted  in
favour of the appellant. Thus, the Writ Petition filed by the appellant  has
been justly dismissed with liberty to pursue appropriate remedy.


13.   Having considered the rival submissions,  including  keeping  in  mind
the view taken by the two learned Judges of this Court  on  the  matters  in
issue, in our opinion, the questions to  be  answered  by  us  in  the  fact
situation of the present case, can be formulated as under:


“(a)  Whether in the fact situation of the present case, the High Court  was
justified in dismissing the Writ Petition?


(b)   Whether the High Court in exercise of writ jurisdiction under  Article
226 of the Constitution of India is duty bound  to  declare  the  registered
Deeds (between the private parties) as void ab  initio  and  to  cancel  the
same, especially when the aggrieved party (appellant) has  already  resorted
to an alternative efficacious remedy under Section 64 of  the  Act  of  1960
before the competent Forum whilst questioning the action of the  Society  in
cancelling the allotment of the subject  plot  in  favour  of  the  original
allottee and  unilateral  execution  of  an  Extinguishment  Deed  for  that
purpose?


(c)   Even if the High Court is endowed  with  a  wide  power  including  to
examine  the  validity  of  the  registered  Extinguishment  Deed  and   the
subsequent registered deeds, should it foreclose the  issues  which  involve
disputed questions of fact and germane for  adjudication  by  the  competent
Forum under the Act of 1960?


(d)   Whether the Sub-Registrar (Registration) has authority to  cancel  the
registration of any document including an Extinguishment Deed  after  it  is
registered? Similarly, whether  the  Inspector  General  (Registration)  can
cancel the registration of Extinguishment Deed in exercise of  powers  under
Section 69 of the Act of 1908?


 (e)  Whether the Sub-Registrar (Registration) had no authority to  register
the Extinguishment Deed dated 9th August  2001,  unilaterally  presented  by
the Respondent Society for registration?


(f)   Whether the dictum in the case of Thota Ganga Laxmi  (supra)  is  with
reference to the express statutory  Rule  framed  by  the  State  of  Andhra
Pradesh or is a general proposition of law applicable even to the  State  of
Madhya Pradesh, in absence of an express provision in that regard?”


Regarding Issue Nos. (a) to (c):


14.   The answer to the first three questions will have to be given  in  the
backdrop of the factual  matrix  of  the  present  case.  Indisputably,  the
appellant entered into a compromise  deed  and  accepted  the  consideration
amount of Rs.6.50 Lakh. Despite that, he  chose  to  file  a  dispute  under
Section 64 of the Act of  1960  before  the  Deputy  Registrar,  Cooperative
Societies challenging the action of the Society  in  unilaterally  executing
and causing registration  of  the  subject  Extinguishment  Deed  dated  9th
August 2001 and also the allotment of  the  subject  plot  to  third  party.
Pending that dispute, he  filed  an  application  before  the  Sub-Registrar
(Registration) for the same relief of cancellation of  registration  of  the
Extinguishment Deed and the subsequent deeds in favour of third parties.  In
addition, the appellant resorted to criminal  complaint  with  reference  to
the same Extinguishment Deed and the subsequent deeds  in  favour  of  third
parties. In this backdrop, the High Court declined  to  entertain  the  Writ
Petition filed by the appellant, which  was  essentially  to  challenge  the
same Extinguishment Deed and subsequent deeds.  It  is  a  well  established
position that the remedy of Writ under Article 226 of  the  Constitution  of
India  is  extra-ordinary   and   discretionary.   In   exercise   of   writ
jurisdiction, the High Court cannot be  oblivious  to  the  conduct  of  the
party invoking that remedy. The fact   that  the  party  may   have  several
remedies for the same  cause of action, he  must  elect  his    remedy   and
cannot be permitted to  indulge in multiplicity  of actions. The    exercise
of discretion to issue a writ is a matter of granting equitable  relief.  It
is a remedy in equity. In the present  case,  the  High  Court  declined  to
interfere at  the  instance  of  the  appellant  having  noticed  the  above
clinching facts. No fault can be found with the approach of the  High  Court
in refusing to exercise its writ jurisdiction because of the conduct of  the
appellant in pursuing multiple proceedings for  the  same  relief  and  also
because the appellant had an alternative and  efficacious  statutory  remedy
to which he has already resorted to. This view of the High Court  has  found
favour with Justice Dipak Misra. We respectfully agree with that view.


15.   The other view of Justice V. Gopala Gowda, however,  is  that  it  was
the duty of the High Court to answer the matters in  issue  because  of  the
unilateral registration of the Extinguishment Deed by  the  Society  without
authority and a nullity. Ordinarily, if the party had not  resorted  to  any
other remedy provided by law and had straightway approached the  High  Court
to question the action of the statutory Authority of registering a  document
improperly and in particular in disregard of the prescribed procedure,  that
would stand on a different  footing.  In  the  present  case,  however,  the
appellant not only entered into a compromise deed with the Society  and  the
subsequent purchaser but also resorted to statutory remedy.  Having  entered
into a compromise deed, it is doubtful whether the appellant  can  be  heard
to  complain  about  the   irregularity   in   the   registration   of   the
Extinguishment Deed, if any. It  is  noticed  that  the  appellant  has  not
disputed the execution of the compromise deed, nor has he paid any  heed  to
the notice given by the other party to refund the amount accepted by him  in
furtherance of the compromise deed. No Court can be party to  a  speculative
litigation much less the  High  Court  in  exercise  of  writ  jurisdiction.
Having said this it must necessarily follow that the Writ Petition filed  by
the appellant deserved to be dismissed, as  was  rightly  dismissed  by  the
High Court.


16.   As the Writ Petition is liable to be dismissed  with  liberty  to  the
appellant  to  pursue  other  statutory  remedy  already  invoked  by   him,
examining any other contention at his instance would be awarding premium  to
a litigant who does not  deserve  such  indulgence.  The  fact  whether  the
compromise deed entered into by the appellant was voluntary and at  his  own
volition or under duress, is essentially a question of fact. That cannot  be
adjudicated in writ jurisdiction.  Depending  on  the  answer  thereto,  the
other issues may become relevant and  would  arise  for  consideration.  The
only relief that can be granted and which has already been clarified by  the
High Court in the impugned judgment,  is  to  keep  all  questions  open  to
enable the appellant to pursue the statutory remedy already invoked by  him.
It is open to the  appellant  to  contend  in  those  proceedings  that  the
Extinguishment Deed  could  not  have  been  unilaterally  executed  by  the
Society. That plea can be examined by the statutory Forum provided for  that
purpose. The decision of the Society to cancel the allotment of  a  plot  to
its member or to rescind his membership and to allot  the  plot  to  another
member, is undoubtedly the business of the Society. Any cause of  action  in
that behalf, indeed, can be  pursued  before  the  Competent  Forum  by  the
aggrieved member or his legal representative. That will require  examination
of the governing cooperative laws and the  Bye-laws  of  the  Society  -  to
ascertain whether it is open to the Society to cancel  the  allotment  of  a
plot to its members including to cancel the membership of  such  person.  If
that action of the Society is held to be just and permissible  in  law,  the
appellant may not be entitled to any other relief much less the  declaration
as sought. Further, remedy  of  writ  cannot  be  used  for  declaration  of
private rights of the parties or enforcement  of  their  contractual  rights
and obligations. In our considered opinion, it would be unnecessary  if  not
inappropriate to examine any  other  contention  at  the  instance  of  this
appellant as we agree with the view taken by the  High  Court  in  summarily
dismissing the Writ  Petition  with  liberty  to  the  appellant  to  pursue
statutory remedy.  At  best,  further  observation  or  clarification  would
suffice to the effect that the competent Forum before whom the  dispute  has
been filed by the appellant shall consider all contentions available to  the
parties, uninfluenced by the factum of registered  Extinguishment  Deed.  In
that, if the competent Forum was to hold that it was open to the Society  to
cancel the allotment and membership of the concerned member  and  thereafter
to allot the same plot to  another  person  enrolled  as  a  member  of  the
society, no other issue would arise for consideration. On  the  other  hand,
if the competent Forum was to answer the relevant  fact  in  favour  of  the
appellant, only then the argument of the effect of  unilateral  registration
of the Extinguishment Deed followed by compromise deed voluntarily  executed
by the appellant may become available to the Society and to  the  subsequent
purchasers/allottees of the subject plot. At their  instance,  those  issues
can be examined  on  the  basis  of  settled  legal  position.  Neither  the
observation or the opinion recorded by one of the dissenting Judge  of  this
Court need any further dissection nor would it  be  appropriate  to  enlarge
the scope of the proceedings before this Court on those aspects. This  would
subserve the twin requirements. Firstly, to avoid an exposition  on  matters
and questions  which  do  not  arise  for  our  consideration  in  the  fact
situation of the present case at this stage; and secondly, also  provide  an
opportunity to the parties to pursue all contentions and other  remedies  as
may be permissible in law.


17.   The exposition of the Constitution  Bench  of  this  Court  in  Pratap
Singh (supra) adverted to in the dissenting opinion would  be  attracted  in
cases where the State Authority  acts  in  bad  faith  or  corrupt  motives.
Merely because some irregularity  has  been  committed  in  registration  of
Extinguishment Deed unilaterally presented by the Society  for  registration
or in respect of the subsequent deeds registered at the  instance  of  third
party without notice to the appellant, that, by itself, will not  result  in
registration of  those  documents  due  to  corrupt  motives  of  the  State
Authority. Moreso, in the present case, the appellant having entered into  a
compromise deed with the Society and third party (subsequent  allottees)  in
respect of the subject plot, it is  doubtful  whether  it  is  open  to  the
appellant to question the act of unilateral execution  and  registration  of
the stated Extinguishment Deed being irregular much less void  and  nullity.
Indisputably, the  respondents-Society  is  a  Cooperative  Housing  Society
Limited and is governed by its Bye-Laws. According to the  counsel  for  the
Society, the member is obliged to erect a house on the plot allotted to  him
within specified time, failing which must suffer the  consequence  including
of cancellation of allotment of plot and removal of his membership.  At  the
time of allotment,  the  member  executes  an  agreement  whereunder  he/she
undertakes to abide by the conditions specified for erecting a house on  the
plot allotted to him/her in  the  manner  prescribed  therein.  Whether  the
Society  is  justified  in  proceeding  against  the  defaulting  member  by
cancelling the allotment of plot as well as membership, is an issue  falling
within the purview of the business of the Society. The member  is  bound  by
the stipulation contained in  the  agreement  executed  by  him/her  and  in
particular the Bye-laws of the  Society.  Any  action  by  the  Society  for
breach thereof is just or otherwise can be questioned before  the  statutory
Forum under the Act of 1960.  Those  are  matters  which  can  and  must  be
answered in  the  proceedings  resorted  to  by  the  appellant  before  the
statutory Forum.


18.   The aforementioned reported decision has noted the subtle  distinction
between ultra vires act of the Statutory Authority and a case  of  a  simple
infraction of the procedural Rule. The question,  whether  the  Society  was
competent to unilaterally cancel the  allotment  of  a  plot  given  to  its
member and to cancel the membership of such member due to default  committed
by the member, is within the purview of the business  of  the  Society.  Any
cause of action  in  that  regard  must  be  adjudicated  by  the  procedure
prescribed in that behalf. It is not open to presume that  the  Society  had
no authority in law to take a decision in that  behalf.  The  right  of  the
appellant qua the plot of land would  obviously  be  subject  to  the  final
outcome of such action. The appellant being the legal representative of  the
original  allottee,  cannot  claim  any  right  higher  than  that  of   his
predecessor qua the Housing Society, which is the final authority to  decide
on the issue of continuation of membership of its member. The right  of  the
member to remain in occupation of the plot allotted by the Society would  be
entirely dependent on that decision.


19.   Reference made to the other decisions of this  Court  with  regard  to
the scope of Article 136 of  the  Constitution  of  India  in  the  case  of
Arunachalam vs. P.S.R. Sadhanantham and Anr. and  Ganga  K.  Shrivastav  vs.
State of Bihar (supra) will be of no avail in  the  fact  situation  of  the
present case. Similarly, The other decisions adverted to in  the  dissenting
opinion under consideration in the case of  CAG  vs.  K.S.  Jagannathan  and
Andi Mukta Sadguru Shree Muktajee  Vandas  Swami  Suvarna  Jayanti  Mahotsav
Smarak Trust vs. V.R. Rudani (supra), Hari Vishnu Mamath (supra) will be  of
no avail in the fact situation of the present case. Suffice  it  to  observe
that the High Court had, in our opinion,  justly,  summarily  dismissed  the
writ petition with liberty to  the  appellant  to  pursue  statutory  remedy
under the provisions of the Act of 1960 or by way  of  a  civil  suit.  Thus
understood, it may not be necessary or appropriate to dwelve upon the  other
issues regarding the  merits  of  the  controversy  which  may  have  to  be
adjudicated by the competent Forum.


Regarding issue Nos. (d) to (f)


20.   It is common ground that the deed regarding allotment  of  plot  to  a
member of the Society required registration. The allotment  of  the  subject
plot in favour of the appellant’s mother was accordingly, registered in  the
office of the Sub-Registrar (Registration). The subject  plot  was  allotted
to the appellant’s mother consequent to her admission as  a  member  of  the
Society.  As the allotment of the plot by the Society creates and  transfers
rights in an immovable property, the deed of allotment was  required  to  be
registered.  But if the member failed to  comply  with  the  stipulation  of
allotment, it would be open to the Society  to  cancel  such  allotment  and
including the membership of that member.   In  that  event,  it  may  become
necessary for the  Society  to  execute  an  Extinguishment  Deed  qua  such
allotment deed operating in  favour  of  the  concerned  member.  For,  mere
cancellation of membership may not be enough. The Society  could  extinguish
the right, title or interest in the immoveable  property  belonging  to  the
Housing Society, by executing an Extinguishment Deed for that purpose.


21.    The role of the Sub-Registrar (Registration) stands discharged,  once
the document is registered (see  Raja  Mohammad  Amir  Ahmad  Khan  (supra).
Section 17 of the Act of 1908 deals with documents which require  compulsory
registration. Extinguishment Deed  is  one  such  document  referred  to  in
Section 17(1)(b).   Section  18  of  the  same  Act  deals  with  documents,
registration whereof  is   optional.  Section  20  of  the  Act  deals  with
documents  containing  interlineations,  blanks,  erasures  or  alterations.
Section 21 provides for description  of  property  and  maps  or  plans  and
Section 22 deals with the description of houses and  land  by  reference  to
Government maps and surveys. There is no express provision  in  the  Act  of
1908 which empowers the Registrar to  recall  such  registration.  The  fact
whether the document was  properly  presented  for  registration  cannot  be
reopened by the Registrar after its registration. The power  to  cancel  the
registration is a substantive matter. In absence of  any  express  provision
in  that  behalf,  it  is  not  open  to  assume  that   the   Sub-Registrar
(Registration)  would  be  competent  to  cancel  the  registration  of  the
documents in question. Similarly, the power  of  the  Inspector  General  is
limited to do superintendence of registration  offices  and  make  rules  in
that behalf.  Even  the  Inspector  General  has  no  power  to  cancel  the
registration of any document which has already been registered.


22.   The procedure for registration of documents is spelt out, inter  alia,
in part VI of the Act of 1908. Section 32 of the said Act reads thus:


                                   PART VI


                  OF PRESENTING DOCUMENTS FOR REGISTRATION


“32. Persons to present documents for registration.-
Except in the cases mentioned in 24[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-


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


by the representative or assignee of such a person, or


(c)  by  the  agent  of  such  a  person,  representative  or  assign,  duly
authorised  by  power-of-attorney  executed  and  authenticated  in   manner
hereinafter mentioned.”


23.   If the document is required to be compulsorily registered,  but  while
doing so some irregularity creeps in, that, by itself, cannot  result  in  a
fraudulent action of the State Authority. Non-presence of  the  other  party
to the Extinguishment Deed presented by the Society before  the  Registering
Officer by no standard can be said to be a fraudulent  action  per  se.  The
fact whether that was done deceitly to cause loss  and  harm  to  the  other
party to the Deed, is a question of fact which must be  pleaded  and  proved
by the party making such allegation. That fact cannot be  presumed.  Suffice
it to observe that since the provisions in  the  Act  of  1908  enables  the
Registering Officer to register the documents presented for registration  by
one party and execution thereof to be admitted or denied by the other  party
thereafter, it is unfathomable as to how the registration  of  the  document
by following procedure specified in the Act  of  1908  can  be  said  to  be
fraudulent. As aforementioned, some irregularity in the procedure  committed
during the registration process would not lead  to  a  fraudulent  execution
and registration of the document,  but  a  case  of  mere  irregularity.  In
either case, the party aggrieved by such registration of  document  is  free
to challenge its validity before the Civil Court.


24.   Admittedly, the documents in question do not fall within Sections  31,
88 and 89. Further, Section 32 does not require presence of both parties  to
the  document  when  it  is  presented  for  registration.  In  that  sense,
presentation of Extinguishment Deed by the authorized person of the  Society
for registration cannot be faulted with reference to Section 34 of  the  Act
of  1908.  That  provision  stipulates  the  enquiry  to  be  done  by   the
Registering Officer before registration of the  document.   The  same  reads
thus:


“34. Enquiry before registration by registering officer.-
(1) Subject to the provisions contained in this Part  and  in  sections  41,
43, 45, 69, 75, 77, 88 and 89, no document shall be  registered  under  this
Act, unless the person executing such document,  or  their  representatives,
assigns or agents authorised as aforesaid,  appear  before  the  registering
officer within the time allowed for presentation under sections 23,  24,  25
and 26:


PROVIDED that, if owing to urgent  necessity  or  unavoidable  accident  all
such persons do not so appear, the Registrar, in cases where  the  delay  in
appearing does not exceed four months, may direct that on payment of a  fine
not exceeding ten times the  amount  of  the  proper  registration  fee,  in
addition to the fine, if any, payable under section 25, the document may  be
registered.


(2) Appearances under sub-section (l) may be simultaneous  or  at  different
times.


(3) The registering officer shall thereupon-


(a) enquire whether or not such document was executed by the person by  whom
it purports to have been executed;


(b) satisfy himself as to the identity of the persons appearing  before  him
and alleging that they have executed the document; and


(c) in the case of any person appearing as  a  representative,  assignee  or
agent, satisfy himself of the right of such person so to appear.


(4) Any application for a direction under the  proviso  to  sub-section  (1)
may be lodged with a Sub-Registrar, who shall forthwith forward  it  to  the
Registrar to whom he is subordinate.


(5) Nothing in this section applies to copies of decrees or orders.”


Even this provision does  not  require  presence  of  both  parties  to  the
document when presented for registration  before  the  Registering  Officer.
Section 35 of the Act of 1908 provides for procedure of admission or  denial
of execution respectively.  The same reads thus:


“35. Procedure on admission and denial of execution respectively
(1)   (a) If all  the  persons  executing  the  document  appear  personally
before the registering officer and are personally known to him, or if he  be
otherwise satisfied that they are the persons they represent  themselves  to
be, and if they all admit the execution of the document, or


(b) If in the case of any person appearing by a representative, assignee  or
agent, such representative, assignee or agent admits the execution, or


(c) If the person executing the document is dead, and his representative  or
assignee appears before the registering officer and admits the execution,


the registering officer shall register the document as directed in  sections
58 to 61, inclusive.


(2) The registering officer may,  in  order  to  satisfy  himself  that  the
persons appearing before him are the persons they  represent  themselves  to
be, or for any other purpose contemplated  by  this  Act,  examine  any  one
present in his office.


(3)(a) If any person by whom the document purports  to  be  executed  denies
its execution, or


(b) if any such person appears to the registering officer to be a minor,  an
idiot or a lunatic, or


(c) if any person by whom the document purports to be executed is dead,  and
his representative or assignee denies its execution,


the registering officer shall refuse to register  the  document  as  to  the
person so denying, appearing or dead:


PROVIDED that, where such officer  is  a  Registrar,  he  shall  follow  the
procedure prescribed in Part XII:


28[PROVIDED FURTHER that the State Government may, by  notification  in  the
Official Gazette, declare that any Sub-Registrar named in  the  notification
shall, in respect of documents the execution of which is denied,  be  deemed
to be a Registrar for the purposes of this sub-section and of Part XII. ]”


Section 36 of the Act of 1908 provides for procedure when appearance of  the
executant or witness is insisted upon. The same reads thus:


PART VII


           OF ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES


“36. Procedure where appearance of executant or witness is  desired.-If  any
person presenting any  document  for  registration  or  claiming  under  any
document, which is capable of being so presented, desires the appearance  of
any person whose presence or testimony is necessary for the registration  of
such document, the registering officer may, in  his  discretion,  call  upon
such officer or court as the State Government  directs  in  this  behalf  to
issue a summons requiring him to appear at the  registration-office,  either
in person or by duly authorised agent, as in the summons may  be  mentioned,
and at a time named therein.”


25.   The Andhra Pradesh High Court,  in  the  case  of  Yanala  Malleshwari
(supra) was called upon to consider 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. The fact remains that if  the  stipulation  contained  in
Sections 17 and 18 of  the  Act  of  1908  are  fulfilled,  the  Registering
Officer is bound to register  the  document.  The  Registering  Officer  can
refuse to register a document only in situations mentioned in Sections  such
as 19 to 22, 32 and 35. At the same time, once the document  is  registered,
it is not open to the Registering Officer to cancel that  registration  even
if his attention is  invited  to  some  irregularity  committed  during  the
registration  of  the  document.  The  aggrieved  party  can  challenge  the
registration and validity of  the  document  before  the  Civil  Court.  The
majority view of the Full Bench was that if a person  is  aggrieved  by  the
Extinguishment Deed or its registration, his remedy is to  seek  appropriate
relief in the Civil Court and a Writ Petition is not the proper remedy.


26.   Section 35 of the Act does not confer a quasi-judicial  power  on  the
Registering Authority. The Registering Officer is expected to reassure  that
the document to be registered is accompanied by supporting documents. He  is
not expected to evaluate the title or irregularity in the document as  such.
The examination to be done by him is incidental, to ascertain that there  is
no violation of provisions of the Act of 1908. In  the  case  of  Park  View
Enterprises  (supra)  it  has  been  observed  that  the  function  of   the
Registering Officer is purely  administrative  and  not  quasi-judicial.  He
cannot decide as  to  whether  a  document  presented  for  registration  is
executed by person having title, as mentioned in the instrument.   We  agree
with that exposition.


27.   In absence of any express provision in the Act of 1908  mandating  the
presence of the other party to  the  Extinguishment  Deed  at  the  time  of
presentation  for  registration,  by  no  stretch  of  imagination,  such  a
requirement can be considered as mandatory. The  decision  in  the  case  of
Thota Ganga  Laxmi  (supra)  is  with  reference  to  an  express  provision
contained in the Andhra Pradesh Rules in that behalf.  That Rule was  framed
by the State of Andhra Pradesh after the decision of Full Bench of the  High
Court.  Therefore,  the  dictum  in  this  decision  cannot  have  universal
application to all the States (other than State of Andhra  Pradesh).  It  is
apposite to reproduce paragraphs 4 and 5 of the  said  judgment  which  read
thus:


“4. 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  the  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.


5. In this connection, we may  also  refer  to  Rule  26(i)(k)  relating  to
Andhra Pradesh under Section 69 of the Registration Act, 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 properties not register able by any provision of law.


A reading of the above rule also supports  the  observations  we  have  made
above. It is only when a sale deed is cancelled by a  competent  Court  that
the cancellation deed can be registered and that too  after  notice  to  the
concerned parties. In this case, neither  is  there  any  declaration  by  a
competent Court nor was there 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.”


28.   No provision in the State of Madhya Pradesh  enactment  or  the  Rules
framed under Section 69 of the Act of 1908 has been brought  to  our  notice
which is similar to the provision in Rule 26(k)(i)  of  the  Andhra  Pradesh
Registration Rules framed in exercise of power under Section 69 of  the  Act
of 1908. That being a procedural matter must be expressly  provided  in  the
Act or the Rules applicable to the concerned State. In absence  of  such  an
express provision, the  registration  of  Extinguishment  Deed  in  question
cannot be labelled as fraudulent or nullity in law. As aforesaid,  there  is
nothing in Section 34 of the Act of 1908 which obligates appearance  of  the
other  party  at  the  time  of  presentation  of  Extinguishment  Deed  for
registration, so as to declare that such  registration  of  document  to  be
null and void.  The error of  the  Registering  Officer,  if  any,  must  be
regarded as error of procedure.  Section 87 of the Act  of  1908  postulates
that nothing done in good faith by the Registering Officer pursuant  to  the
Act, shall be  deemed  invalid  merely  by  reason  of  any  defect  in  the
procedure.  In  the  present  case,  the  subject  Extinguishment  Deed  was
presented by the person duly authorized by the Society  and  was  registered
by the Registering Officer.  Once the document  is  registered,  it  is  not
open to any Authority, under the Act of 1908  to  cancel  the  registration.
The remedy of appeal provided under  the  Act  of  1908,  in  Part  XII,  in
particular Section 72,  is  limited  to  the  inaction  or  refusal  by  the
Registering Officer to register a document.   The  power  conferred  on  the
Registrar  by  virtue  of  Section  68  cannot  be  invoked  to  cancel  the
registration of documents already registered.


29.   In the dissenting opinion, reference has been made to the decision  of
the Division Bench of the Madras High Court in the  case  of  E.R.  Kalaivan
(supra). It was a case where the Registering  Officer  refused  to  register
the deed of cancellation  presented  before  him  on  the  ground  that  the
cancellation deed was sought to be registered without there being a  consent
from the purchaser. The aggrieved person approached  the  Inspector  General
of Registration who in turn issued a circular dated 5.10.2007  addressed  to
all the Registering Officers in the State, that  the  deed  of  cancellation
should bear the signatures  of  both  the  vendor  and  the  purchaser.  The
validity of this circular was challenged by way of Writ Petition before  the
High Court. In the present case, our attention has neither been  invited  to
any express provision in the Act of 1908,  Rules  framed  by  the  State  of
Madhya Pradesh nor any circular issued by the  Competent  Authority  of  the
State of Madhya Pradesh to the effect that the  Extinguishment  Deed  should
bear the signatures of both the vendor and the purchaser and  both  must  be
present before the Registering Officer when the document  is  presented  for
registration. Absent such an express provision, insistence  of  presence  of
both parties to the documents by the Registering Officer, may  be  a  matter
of prudence. It cannot undermine the procedure prescribed  for  registration
postulated in the Act of 1908.


30.   The moot question in this case is : whether the action of the  Society
to  cancel  the  allotment  of  the  plot  followed  by  execution   of   an
Extinguishment Deed was a just action?  That  will  have  to  be  considered
keeping in mind the provisions of the Act of 1960 and the  Bye-laws  of  the
Society which are binding on the members of the Society.  The  interplay  of
the provisions of the Contract Act and the Specific Relief Act  and  of  the
Co-operative Laws and the Bye Laws of the  Society  permitting  cancellation
of allotment of plot or the membership of the concerned member will have  to
be considered in  appropriate  proceedings.  Whether  the  decision  of  the
Society to cancel the allotment of plot made in  favour  of  its  member  is
barred by the law of Limitation Act, is again a matter to be tested  in  the
proceedings before the Cooperative Forum where a dispute has been  filed  by
the appellant, if the appellant pursues that contention.


31.   In our considered view, the decision in the case of Thota Ganga  Laxmi
(supra) was dealing with an express provision, as applicable  to  the  State
of Andhra Pradesh and in particular with regard to the  registration  of  an
Extinguishment Deed. In absence of  such  an  express  provision,  in  other
State legislations,  the  Registering  Officer  would  be  governed  by  the
provisions in the Act of 1908.  Going  by  the  said  provisions,  there  is
nothing to indicate that the Registering Officer is required to undertake  a
quasi judicial enquiry  regarding  the  veracity  of  the  factual  position
stated in the document presented for registration or its  legality,  if  the
tenor of the document suggests  that  it  requires  to  be  registered.  The
validity of such registered document can, indeed, be put in issue  before  a
Court of competent jurisdiction.


32.   In the present case, the document in question no doubt  is  termed  as
an Extinguishment Deed. However, in  effect,  it  is  manifestation  of  the
decision of the Society to cancel the allotment of the  subject  plot  given
to its member due to  non  fulfillment  of  the  obligation  by  the  member
concerned. The subject document is linked to the decision of the Society  to
cancel the membership of the allottee of the plot given to  him/her  by  the
Housing Society. In other words, it is the decision of  the  Society,  which
the Society is entitled to exercise within the frame work of  the  governing
cooperative laws and the Bye-laws which are binding on the  members  of  the
Society. The case of Thota Ganga Laxmi (supra), besides  the  fact  that  it
was dealing with an express  provision  contained  in  the  Statutory  Rule,
namely Rule 26 (k)(i) of the Andhra Pradesh  Registration  Rules  1960,  was
also not a case of a deed for cancellation  of  allotment  of  plot  by  the
Housing Society.  But,  of  a  cancellation  of  the  registered  sale  deed
executed  between  private  parties,  which  was  sought  to  be   cancelled
unilaterally. Even for the latter reason  the  exposition  in  the  case  of
Thota Ganga Laxmi (supra) will have no application to the fact situation  of
the present case.


33.   Taking any view of the matter, therefore, we  are  of  the  considered
opinion that, the High Court has justly dismissed the  writ  petition  filed
by the appellant with liberty to the appellant to  pursue  statutory  remedy
resorted to by him under the Act of  1960  or  by  resorting  to  any  other
remedy as may be advised  and  permissible  in  law.  All  questions  to  be
considered in those proceedings will have to be decided on its own merits.


34.   Accordingly, we dismiss this appeal in the above terms with  no  order
as to costs.

                                                               ………………………..J.
                                                              (Ranjan Gogoi)



                                                                …………………………J.
                                                          (Prafulla C. Pant)


                                                                …………………………J.
                                                            (A.M.Khanwilkar)

New Delhi,
Dated: 26th October, 2016
-----------------------
[1]
      [2]  (2010)15 SCC 207

[3]
      [4] AIR 2007 Andhra Pradesh 57 [FB]
[5]
      [6] AIR 2010 Madras 18
[7]
      [8] AIR 2000 Kar.46.
[9]
      [10] AIR 1961 SC 787
[11]
      [12] AIR 1990 Madras 251
[13]
      [14] AIR 1964 SC 72
[15]
      [16] (1979) 2 SCC 297
[17]
      [18]  (2005) 6 SCC 211
[19]
      [20]  (1986) 2 SCC 679
[21]
      [22] (1989) 2 SCC 691
[23]
      [24] AIR 1955 SC 233
[25]
      [26] (2001) 5 SCC 289
[27]
      [28] AIR 1965 SC 1812
[29]
      [30] (1991) 3 SCC 67
[31]
      [32] AIR 1986 SC 1571
[33]
      [34] (2011) 8 SCC 161
[35]
      [36] (2011) 6 SCC 47
[37]
      [38] (2006) 7 SCC 416
[39]
      [40] AIR 1994 SC 853


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