whether the suit of the plaintiff is barred by principles of resjudicata. =after the framing of the issues the defendant filed the application under Order VII Rule 11 C.P.C. stating that the suit is not maintainable as barred by resjudicata=Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up= Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of resjudicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed. 18. Resultantly, the appeal is allowed and the order passed by the High Court is set aside and that of the appellate Judge is restored. The trial court is directed to proceed with the suit and dispose of the same within a period of six months hence. There shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2089 OF 2015
                  [Arising out of SLP(C) NO. 6919 OF 2008]



Vaish Aggarwal Panchayat                ... Appellant

                                   Versus

Inder Kumar and Others                  ... Respondents





                               J U D G M E N T


Dipak Misra, J.



      The facts relevant to be stated for the adjudication  of  the  present
appeal are that the contesting respondent Nos. 1 and 2  –  Inder  Kumar  and
Yogendra Kumar, had filed a Civil Suit  bearing  No.  806  of  1993  against
Krishan Chand Gupta, respondent No. 5, and Ved Prakash, original  respondent
No. 3, for a decree of specific performance of agreement to sell in  respect
of land measuring 20 kanals  with  the  consequential  relief  of  permanent
injunction.   The  suit  was  decreed  by  the  learned  Civil  Judge  (SD),
Kurukshetra by judgment  and  decree  dated  19.9.1998  and  no  appeal  was
preferred against the same.  Subsequently,  the  Respondent  Nos.  1  and  2
sought execution of the decree and  during  its  pendency,  the  Petitioner,
Vaish Aggarwal Panchayat (society), filed objections  claiming  that  it  is
the owner of the suit land by way of gift deeds dated 5.3.1997 and  6.3.1997
executed by Ved Prakash and  Banarsi  Dass.  The  objections  filed  by  the
Society were rejected vide order dated 4.11.2000.  Thereafter,  the  Society
filed an application  for  setting  aside  the  judgment  and  decree  dated
19.9.1998 and for stay of the execution,  which  was  dismissed  vide  order
dated 19.4.2001 and the appeal filed by the society  against  the  same  was
also dismissed vide judgment dated 1.10.2004.

3.    In the meantime, a suit for declaration bearing  no.  333/03  of  2001
was filed by the Society  for  declaring  the  judgment  and  decree,  dated
19.9.1998 passed in Civil Suit No. 806 of 1993  by  the  Civil  Judge  (SD),
Kurukshetra, and the subsequent sale deed dated 30.1.2001 and  mutation  No.
2450 as illegal, null and void with the consequential  relief  of  permanent
injunction. The present respondent Nos. 1 and 2, who are defendants  in  the
said suit, appeared before  the  trial  court,  entered  contest  and  after
issues were framed moved  an  application  under  Order  7  Rule  11,  Civil
Procedure Code (CPC), for rejection of the plaint on  the  ground  that  the
suit was barred by law. The trial Court, vide order dated 7.12.2005  allowed
the application moved by the defendants therein.
4.    Aggrieved by the above said order, the  Society  preferred  an  appeal
and the learned Additional District Judge allowed the appeal  and  the  suit
CS no. 333/03 of 2001 was ordered to be restored and tried.
5.    Being dissatisfied with the said order in appeal,  respondent  Nos.  1
and 2 approached the High Court of Punjab and Haryana in Civil Revision  No.
3695 of 2006 and the High Court allowed the revision petition and set  aside
the order dated 15.6.2006 passed by the  appellate  court   and  accordingly
restored the order of the trial court.
6.    Before the High Court the Society contended that it was  not  a  party
to the Civil Suit No. 806 of 1993  and  hence,  it  was  not  bound  by  the
judgment and decree dated 19.9.1998  and,  therefore,  it  has  a  right  to
challenge the same through a suit; that mere filing  of  objections  to  the
execution petition,  and  an  application  for  setting  aside  the  earlier
judgment and decree will not bar the suit, which is  based  on  a  different
cause of action; and that as the  civil  suit  was  fixed  for  evidence  of
parties after framing of issues by the Court and a specific issue  regarding
maintainability, which is a  mixed  question  of  fact  and  law,  had  been
framed, the same could not have been summarily decided at  that  stage.  The
Society also contended that the judgment in the earlier  suit  was  vitiated
due to fraud and collusion.
7.    The High Court while rejecting the arguments of the  Society  came  to
observe that the learned Additional District Judge took  an  erroneous  view
that since the issues had been framed and the parties had been put to  trial
the question regarding maintainability of the suit on the principle  of  res
judicata could not have been decided. Thereafter, the  High  Court  referred
to the factual scenario in chronology.  The said facts need  to  be  stated.
As per the High Court, admittedly, the judgment and decree dated  19.09.1998
in Civil Suit No. 806 of 1993 filed by Yogesh Kumar and Inder Kumar  against
Krishan Chand and Ved Pal seeking for specific performance of  agreement  to
sell dated 02.11.1992 was decreed and no appeal against the said decree  was
filed; that during the pendency of the execution petition seeking  execution
of the judgment and decree  dated  19.09.1998,  the  respondent-Society  had
filed objections through Vishav Pal Goel where they had claimed  to  be  the
owners of  the  suit  land  by  way  of  gift  deeds  dated  05.03.1997  and
06.03.1997 executed by Ved Pal and Banarsi Dass which  were  dismissed  vide
order dated 04.11.2000 and there was nothing on  record  to  show  that  the
said order was dislodged in appeal; that  the  respondent-Society  filed  an
application for setting aside the judgment and decree dated  19.09.1998  and
for stay of the  execution,  which  was  also  dismissed  vide  order  dated
18.04.2001 and appeal  filed  by  the  plaintiff  was  also  dismissed  vide
judgment dated 01.10.2004; that all the pleas which had been raised  by  the
plaintiff-respondent No. 1 before the High Court had already  been  agitated
before the executing court and the appellate court, which were rejected  and
the order of the appellate court dated 01.10.2004 had  become  final  hence,
binding upon the parties; that the plaintiff-Society could not permitted  to
re-open the matter again by way of the present suit as they had availed  the
remedy of agitating their grievance before the  executing  court;  and  that
the plaintiff in the present suit had raised a  similar  controversy,  which
was also raised before the executing court and also in its  application  for
setting aside the judgment and decree, that was finally  decided  on  merits
and, therefore, suit was barred by the principle of resjudicata.
8.    On the aforesaid basis, the High Court finally held:
“To my mind, Additional District Judge has committed  an  error  by  setting
aside the order dated 7.12.2005 passed by  additional  Civil  Judge  (Senior
Division), Kurukshetra by virtue of which a finding was  recorded  that  the
suit is clearly barred by principles of res judicata  and  by  principle  of
lis pendens laid down in Section 52 of  the  Transfer  of  Property  Act.  I
would also like to observe that it is  settled  principle  of  law  that  in
consonance  with  the  provisions  of  section  11  of  the  Code  of  Civil
Procedure, principle of res judicata equally applies  to  the  interlocutory
stage of the suit as  well.  Plaintiff-respondent  cannot  be  permitted  to
raise similar controversy repeatedly on the  same  facts  and  circumstances
and in fact, the present suit is an abuse of the process of  the  court  and
the plaint has rightly been rejected by the learned Additional  Civil  Judge
(Senior Division), Kurukshetra. The rule of conclusiveness also  comes  into
play in the instant case. Once the matter, which was the subject  matter  of
lis to determine by the competent authority, no party,  thereafter,  can  be
permitted to re-open in the subsequent litigation. Such a rule  was  brought
into statute book with a view to bring the litigation to an end so that  the
other side may not be put to harassment.”

9.    We have heard Mr.  Mahabir  Singh,  learned  senior  counsel  for  the
appellant  and  Mr.  K.V.  Vishwanathan,  learned  senior  counsel  for  the
respondents.
10.   We have referred to the decision of the High Court in  extenso  as  it
has used the words  “admittedly”  and  scrutinized  in  detail  the  factual
scenario.  It is submitted by Mr.  Mahabir  Singh,  learned  senior  counsel
appearing for the appellant that the suit was filed seeking  declaration  of
the judgment and decree dated 19.9.1998 in civil suit  no.  806/92  as  null
and void being resultant of fraud and collusion.  That apart, the  appellant
was not a party to the earlier suit.  It is urged  by  him  that  a  written
statement was filed on 23.7.2003 and on the basis  of  the  plaint  and  the
written statement, the learned trial Judge has framed number of  issues  and
the issue number 1 relates to maintainability of the suit and  issue  number
9 pertains to whether the suit of the plaintiff is barred by  principles  of
resjudicata.  As is evident, after the framing of the issues  the  defendant
filed the application under Order VII Rule 11 C.P.C. stating that  the  suit
is not maintainable as barred by resjudicata.  The learned trial  Judge,  as
is evident from the order passed by him, has taken note of the  stand  taken
in the written statement which has been regarded as the  incorrect  approach
by the learned appellate Judge.  The High Court, as  it  appears,  has  been
guided by the finding recorded by the learned trial Judge  totally  ignoring
the factum that such a  conclusion  has  been  arrived  at  by  taking  into
consideration the averments made in the plaint and the assertions put  forth
in the written statement.  The  crux  of  the  matter  is  whether,  in  the
obtaining factual matrix, the High Court should have applied  the  principle
of resjudicata.  The cause of action for filing the suit is different.   The
grounds urged in the suit, as we find, are also quite  different.   Even  if
the plaint is read keeping in mind the cleverness and deftness in  drafting,
yet it is not prima facie discernible from the  plaint  that  it  lacks  any
cause of action or is barred by any law.  On a perusal of the  plaint  alone
it cannot be said that the suit is barred by the principle  of  resjudicata.

11.   In this context, we  may  profitably  refer  to  the  decision  in  V.
Rajeshwari v. T.C. Saravanabava[1].  In the said  case,  a  two-Judge  Bench
while dealing with the concept of resjudicata has held:-
“11. The  rule  of  res  judicata  does  not  strike  at  the  root  of  the
jurisdiction of the court trying the  subsequent  suit.  It  is  a  rule  of
estoppel by judgment based on the public  policy  that  there  should  be  a
finality to litigation and no one should be vexed twice for the same cause.

12. The plea of res judicata is founded on proof of certain facts  and  then
by applying the law to the facts so found. It is, therefore, necessary  that
the foundation for the plea must be laid in the pleadings and then an  issue
must be framed and tried. A plea not properly raised in the pleadings or  in
issues at the stage of the trial, would not be permitted to  be  raised  for
the first time at the stage of  appeal  [see  (Raja)  Jagadish  Chandra  Deo
Dhabal Deb  v.  Gour  Hari  Mahato[2],  Medapati  Surayya  v.  Tondapu  Bala
Gangadhara  Ramakrishna  Reddi[3]  and  Katragadda   China   Anjaneyulu   v.
Kattaragadda China Ramayya[4]].”

      After so stating, the Court further observed that:-
“Not only the plea has to be taken, it has to be substantiated by  producing
the copies of the pleadings, issues  and  judgment  in  the  previous  case.
Maybe, in a given case only copy of judgment in previous suit  is  filed  in
proof of plea of res judicata and the judgment  contains  exhaustive  or  in
requisite details the statement of pleadings and the  issues  which  may  be
taken as enough proof. But as pointed out in  Syed  Mohd.  Salie  Labbai  v.
Mohd. Hanifa[5] the basic method to decide the question of res  judicata  is
first to determine  the  case  of  the  parties  as  put  forward  in  their
respective pleadings of their previous suit and then to find out as to  what
had been decided by the judgment which operates as res judicata.”

12.   We are conscious that the observations reproduced above were  made  in
a different context but we  have  reproduced  the  same  to  understand  the
impact of the  plea  of  resjudicata  regard  being  had  to  the  principle
enshrined under Order VII Rule 11(d) of the C.P.C.
13.   In this regard the pronouncement in Kamala and others v. K.T.  Eshwara
SA and others[6] would be seemly.  In the said case while dealing  with  the
principle engrafted under Order VII Rule 11(d) C.P.C., the  Court  has  held
thus:-
“21. Order 7 Rule 11(d) of the Code has  limited  application.  It  must  be
shown that the suit is barred under any  law.  Such  a  conclusion  must  be
drawn from the averments made in the plaint. Different clauses  in  Order  7
Rule 11, in our opinion, should not be mixed up. Whereas in  a  given  case,
an application for rejection of the plaint may be filed  on  more  than  one
ground specified in various sub-clauses thereof, a  clear  finding  to  that
effect must be arrived at. What would be relevant for  invoking  clause  (d)
of Order 7 Rule 11 of the Code are the averments made  in  the  plaint.  For
that purpose, there cannot  be  any  addition  or  subtraction.  Absence  of
jurisdiction on the part of a court can be invoked at different  stages  and
under different provisions of the Code. Order 7 Rule 11 of the Code is  one,
Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the  Code,  no  amount
of evidence can be looked into. The issues on merit of the matter which  may
arise between the parties would not be within the  realm  of  the  court  at
that stage. All issues shall not be the subject-matter  of  an  order  under
the said provision.”

      After so stating,  while  proceeding  to  deal  with  the  concept  of
resjudicata, the Court opined:-
“23. The principles of res judicata, when attracted, would bar another  suit
in view of Section 12 of the Code. The question involving a  mixed  question
of law and fact which may require not only examination  of  the  plaint  but
also other evidence and the order passed in the earlier suit  may  be  taken
up either as a preliminary issue or at the  final  hearing,  but,  the  said
question cannot be determined at that stage.

24. It is one thing to say that the averments made in the  plaint  on  their
face discloses no cause of action, but it  is  another  thing  to  say  that
although the same discloses a cause of action, the same is barred by a law.

25. The decisions rendered by this Court as also by various High Courts  are
not uniform in this behalf. But, then  the  broad  principle  which  can  be
culled out therefrom is that the court at that stage would not consider  any
evidence or enter into a disputed question of fact or  law.  In  the  event,
the jurisdiction of the court is found to be  barred  by  any  law,  meaning
thereby, the  subject-matter  thereof,  the  application  for  rejection  of
plaint should be entertained.”

14.   In this  regard  a  reference  to  a  three-Judge  Bench  decision  in
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust[7]  and  others  would
be frutiful.   Be it noted the said case was  referred  to  a  larger  Bench
vide Balasaria Construction (P) Ltd. v. Hanuman Seva  Trust[8].   The  order
of reference reads as follows:-
“4. This case was argued at length on 30-8-2005. Counsel appearing  for  the
appellant had relied upon a judgment of this Court in N.V. Srinivasa  Murthy
v. Mariyamma[9] for the proposition that a plaint could be rejected  if  the
suit is ex facie barred by limitation. As  against  this,  counsel  for  the
respondents relied upon a later judgment of this Court in Popat and  Kotecha
Property  v.  State  Bank  of  India  Staff  Assn.[10]  in  respect  of  the
proposition that Order 7 Rule 11(d) was not applicable in  a  case  where  a
question has to be decided on the basis of fact that the suit was barred  by
limitation. The point as to whether the words “barred by law”  occurring  in
Order 7 Rule 11(d) CPC would include the suit being “barred  by  limitation”
was not specifically dealt with in either  of  these  two  judgments,  cited
above. But this point has been specifically  dealt  with  by  the  different
High Courts in Mohan Lal Sukhadia University  v.  Priya  Soloman[11],  Khaja
Quthubullah v.  Govt.  of  A.P.[12],  Vedapalli  Suryanarayana  v.  Poosarla
Venkata Sanker Suryanarayana[13], Arjan Singh v. Union of India[14]  wherein
it has been held that  the  plaint  under  Order  7  Rule  11(d)  cannot  be
rejected on the ground that it is barred by limitation. According  to  these
judgments the suit has to be barred by a provision of  law  to  come  within
the meaning of Order 7 Rule 11 CPC.  A  contrary  view  has  been  taken  in
Jugolinija Rajia Jugoslavija v. Fab Leathers  Ltd.[15],  National  Insurance
Co. Ltd. v. Navrom Constantza[16], J. Patel & Co. v. National Federation  of
Industrial Coop. Ltd.[17] and State Bank of India Staff  Assn.  v.  Popat  &
Kotecha Property. The last judgment was the subject-matter of  challenge  in
Popat and Kotecha Property v. State Bank of India  Staff  Assn.  This  Court
set aside the judgment and held in para 25 as under:

“25. When the averments in the plaint are considered in  the  background  of
the principles set out in Sopan Sukhdeo case[18] the  inevitable  conclusion
is that the Division Bench was not right in holding that  Order  7  Rule  11
CPC was applicable to the facts of the case. Diverse claims  were  made  and
the Division Bench was wrong in proceeding with  the  assumption  that  only
the non-execution of lease deed was the basic issue. Even if it is  accepted
that the other claims were relatable to it they have independent  existence.
Whether the collection of amounts by the respondent was for a period  beyond
51 years needs evidence to be adduced. It is not a case where the suit  from
statement in the plaint can be said to be barred by law.  The  statement  in
the plaint without addition or subtraction must show that it  is  barred  by
any law to attract application of Order 7 Rule 11. This is  not  so  in  the
present case.”

5. Noticing the conflict between the various High Courts  and  the  apparent
conflict of opinion expressed by this Court  in  N.V.  Srinivasa  Murthy  v.
Mariyamma and Popat and Kotecha Property v. State Bank of India Staff  Assn.
the Bench referred† the following question of law  for  consideration  to  a
larger Bench:

“Whether the words ‘barred by law’ under  Order  7  Rule  11(d)  would  also
include the ground that it is barred by the law of limitation.””

15.   The three-Judge Bench opined that there was  no  conflict  of  opinion
and thereafter the matter came back to the Division Bench for  adjudication.
 The Division Bench reproduced what  has  been  stated  by  the  three-Judge
Bench.  It is as under:-
“Before the three-Judge Bench,  counsel  for  both  the  parties  stated  as
follows:

“…It is not the case of either side  that  as  an  absolute  proposition  an
application under Order 7 and Rule 11(d) can never be based on  the  law  of
limitation. Both sides state that the impugned  judgment  is  based  on  the
facts  of  this  particular  case  and  the  question  whether  or  not   an
application under Order 7 Rule 11(d) could be based  on  law  of  limitation
was not raised and has not been dealt with. Both sides  further  state  that
the decision in this case will depend upon the facts of this case.”

16.   After so stating, the Division Bench opined that in the facts  of  the
said case, the suit could not be dismissed as barred by  limitation  without
proper pleadings, framing of issue on limitation and  taking  evidence,  for
question of limitation is a mixed question of fact and law and  on  ex-facie
reading of the plaint it could not be held  that  the  suit  was  barred  by
time.
17.   Coming to the case at hand we find that the allegations in the  plaint
are absolutely different.  There is an asseveration of fraud and  collusion.
 There is an assertion that in the earlier suit a decree came to  be  passed
because  of  fraud  and  collusion.   In  such  a  fact  situation,  in  our
considered opinion, the High Court has fallen into error by  expressing  the
view that the plea of resjudicata was obvious from the plaint.  In  fact,  a
finding has been recorded by the High Court accepting the plea taken in  the
written statement.  In our view,  in  the  obtaining  factual  matrix  there
should have been a trial with regard to all the issues framed.
18.   Resultantly, the appeal is allowed and the order passed  by  the  High
Court is set aside and that of the appellate Judge is restored.   The  trial
court is directed to proceed with the suit and dispose of the same within  a
period of six months hence.  There shall be no order as to costs.

                                         .................................J.
[Dipak Misra]



                                         .................................J.
                                         [Prafulla C. Pant]
New Delhi
August 25, 2015

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 2091  OF 2015
                  [Arising out of SLP(C) NO. 28209 OF 2009]


Krishan Chand Gupta                     ... Appellant

                                   Versus

Yogesh Kumar and Anr.                   ... Respondents





                               J U D G M E N T


Dipak Misra, J.



      In this appeal, by special leave, the appellant calls in question  the
legal propriety of the order dated 3.11.2006 passed  in  C.R.  No.  2530  of
2006 by the learned Single Judge of the Punjab and  Haryana  High  Court  at
Chandigarh whereby he  has  declined  to  interfere  with  the  order  dated
20.01.2006 passed by the learned Additional District Judge,  Kurukshetra  in
Appeal No. 54 of 2005 whereby the learned Appellate Judge has  affirmed  the
order dated 7.12.2005 passed by the learned Additional Civil  Judge  (Senior
Division), Kurukshetra, whereby he has declined to  entertain  the  petition
preferred under Order IX Rule 13 of the Code of Civil Procedure for  setting
aside the judgment in civil suit no. 806/93.
2.    On a perusal of the order passed by the High Court, we find  that  the
trial court as well as the  appellate  court  have  analysed  the  facts  in
detail and declined to exercise the civil revisional jurisdiction.   In  our
considered opinion, there is no merit in  the  appeal  and  accordingly  the
same stands dismissed.  There shall be no order as to costs.


                                         .................................J.
[Dipak Misra]



                                         .................................J.
                                         [Prafulla C. Pant]
NEW DELHI
AUGUST  25, 2015

-----------------------
[1]




        (2004) 1 SCC 551
[2]     AIR 1936 PC 258
[3]     AIR 1948 PC 3
[4]     AIR 1965 AP 177
[5]     (1976) 4 SCC 780
[6]     (2008) 12 SCC 661
[7]     (2006) 5 SCC 658
[8]     (2006) 5 SCC 662
[9]     (2005) 5 SCC 548
[10]   (2005) 7 SCC 510
[11]    AIR 1999 Raj. 102
[12]    AIR 1995 AP 43
[13]    (1980) 1 An LT 488
[14]    AIR 1987 Del 165
[15]    AIR 1985 Cal 193
[16]    AIR 1988 Cal 155
[17]    AIR 1996 Cal 253
[18]    (2004) 3 SCC 137

-----------------------
16

18

No Compensation when there is no malafides - There is nothing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is nothing to remotely suggest that there was any malice. The High Court, as is noticed, has not applied its mind to the concept of grant of compensation to the accused persons in a case of present nature. There is no material whatsoever to show that the prosecution has deliberately roped in the accused persons. There is no malafide or malice like the fact situation which are projected in the case of Hardeep Singh (supra). Thus, the view expressed by the learned trial Judge is absolutely indefensible and the affirmance thereof by the High Court is wholly unsustainable. 14. In view of the foregoing analysis, the appeal is allowed and the order of the trial Judge granting compensation and that of the High Court giving stamp of approval to the same are set aside.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1085 OF 2015
                        (@ SLP(Crl) No. 2623 of 2015)


State of Rajasthan                           ...   Appellant

                                   Versus

Jainudeen Shekh and Anr.                ... Respondents



                               J U D G M E N T


Dipak Misra, J.


      The pivotal issue that emanates for consideration in this  appeal,  by
special leave, is  whether  the  learned  Special  Judge  was  justified  in
granting  compensation  of  an  amount  of  Rs.1,50,000/-  to  each  of  the
respondents who had been arraigned as accused for  the  offences  punishable
under Sections 8/21(B) and 8/29  of  the  Narcotic  Drugs  and  Psychotropic
Substances Act, 1985 (for brevity, “the NDPS Act”) on  the  foundation  that
there  was  delay  in  obtaining  the  report  from  the  Forensic   Science
Laboratory and further the  test  showed  that  the  seized  items  did  not
contain any contraband article and, therefore,  they  had  suffered  illegal
custody, and whether the High  Court  has  correctly  appreciated  the  fact
situation to affirm the  view  expressed  by  the  learned  trial  Judge  by
opining that the grant of compensation is not erroneous.
2.    The facts which are necessary to be stated  for  adjudication  of  the
limited issue are that on  02.11.2011,  PW-5  Nemichand,  SHO,  PS  Bhimganj
along with PW4, Umrao, Constable and PW6, Om Prakash, Head  Constable  while
carrying on patrolling duty, noticed the two accused  persons  together  and
seeing the police vehicle, accused  Jainuddin  speedily  moved  towards  the
kachcha passage near Mangal Pandey circle and on  a  query  being  made,  he
could not  give  any  satisfactory  reply.   The  accused  was  searched  in
presence of other persons and during the search a  polythene  bag  allegedly
containing intoxicant material was found in the  back  pocket  pant  of  the
accused-respondent no.1 but he had no licence for  it.   The  polythene  bag
weighed 31 gram 170 milligrams.  The police prepared two samples of  alleged
smack weighing 5 grams each and the remaining was kept in the polythene  bag
and sealed.  Thereafter the accused-respondent no. 1  was  arrested  at  the
spot and seizure memo was prepared.  At that time accused Shabbir  was  also
taken  into  custody.   Thereafter,  an  FIR  was   registered   and   after
investigation, charge sheet was filed under Section 8/21(B) of the NDPS  Act
against the accused-respondent no.1 and under Section 8/29 of the  NDPS  Act
against the accused Shabbir.
3.    The accused persons denied the charges and stated in  their  statement
under Section 313 CrPC that they had been falsely implicated.
4.    The prosecution in  order  to  establish  the  charges,  examined  six
witnesses.  Be it noted, the sample that was sent  for  examination  to  the
Forensic Science Laboratory on  8.11.2011,  chemical  analysis  thereof  was
done on 9.9.2013 and the report was submitted to the court on 28.9.2013  and
it was exhibited as Exhibit P-11.   The  said  document  revealed  that  the
sample contained  “caffeine”  and  “paracetamol”  and  it  did  not  contain
Diacetylmorphine (heroine) or alkaloid of “Afeem” (Opium).   As  the  report
indicated that the said  items  were  not  covered  under  the  category  of
intoxicant under NDPS Act, the trial court came to the conclusion  that  the
charges were not established in any manner.
5.    Learned trial Judge, while  recording  the  said  conclusion  observed
thus:
“In the present case certainly it is the matter of concern that the  officer
executing  the  seizure  has  no  experience  with  respect  to   intoxicant
material.  Although PW5, Nemi Chand, had found the  material  as  intoxicant
in his testimony merely by checking.  Certainly it shows  ignorance  of  the
officer  about  identification  of  intoxicant  who  executed  seizure.   No
attempt was made by the officer making seizure that he  should  have  either
tasted the material, which was seized, or same should have been provided  to
other persons, who were present at the time of seizure,  to  ensure  whether
such material is intoxicant or not.  The officer making  seizure  identified
same as smack merely after smelling the material.

In this perspective it shall be in the interest of justice to  mention  that
in case there being suspicion over the material  being  intoxicant  or  not,
then it is the responsibility of the State Government that immediately  such
material should be subjected to chemical analysis, but in the  present  case
the aforesaid report of Forensic Science Laboratory was submitted  into  the
court on 28.09.2013 and the chemical analysis was done by the laboratory  on
09.09.2013.  So it  is  clear  that  aforesaid  material  was  subjected  to
chemical analysis about 2 years after the occurrence on 02.11.2011  that  is
after the period of two years, so certainly it cannot be held  as  just  and
proper procedure.”

6.    After so holding, the learned trial  Judge  opined  that  despite  the
Supreme Court giving the guidelines in Criminal Appeal No. 1640 of  2010  to
the State Governments and Central Government that every  State  should  have
forensic science laboratory at the  level  of  the  State  as  well  as  the
Division, no appropriate action had been  taken  by  the  State  Government.
The learned trial Judge also opined that the State Government had  not  been
able  to  discharge  the  responsibility  and  there  should  have  been  an
arrangement to obtain  the  report  from  the  Forensic  Science  Laboratory
within a reasonable time.  Being of this view, he  recorded  a  judgment  of
acquittal in favour of the accused.   Thereafter  the  learned  trial  Judge
referred to Section 250 of the Code of Criminal Procedure, 1973 (for  short,
‘the Code’) and opined that a Court of Session  can  award  compensation  to
the accused in a case of  malicious  prosecution  and  accordingly  directed
payment of Rs.1,50,000/- each to both the accused persons.
7.    We have heard Mr.  S.S.  Shamshery,  learned  AAG  for  the  State  of
Rajasthan. Despite notice, there has been no appearance  on  behalf  of  the
respondents.
8.    Section 250 of the Code confers powers  on  the  Magistrate  to  grant
compensation on certain conditions being satisfied.  A  procedure  has  been
engrafted in the said provision.  There  are  certain  cases  in  which  the
learned Sessions Judge can grant  compensation.   In  this  context  we  may
refer with profit to the decision in Daulat  Ram  v.  State  of  Haryana[1].
The appellant therein was  convicted  by  the  learned  Additional  Sessions
Judge under Section 25 of the Arms Act, 1959 read with Section 6(1)  of  the
Terrorist  &  Disruptive  Activities  (Prevention)  Act,  1985  (for  short,
‘TADA’).  The defence taken by the accused was  that  he  had  been  falsely
implicated at the instance of one Hans Raj Lambardar  of  the  village.   He
had examined four witnesses in his defence.  He was acquitted under  Section
6 of the TADA but convicted under Section 25 of the Arms  Act.    The  Court
analyzing the evidence on  record  and  taking  note  of  the  plea  of  the
defence, dislodged the judgment of  conviction  and  while  doing  so,  this
Court opined that:-
“....It is unfortunate that the police  officers,  namely,  Head  Constable,
Randhir PW 2 and the then Head Constable Jai Dayal, PW  3  foisted  a  false
case on the appellant for reasons best  known  to  them,  which  is  a  very
serious matter. We are informed that the appellant was in custody for a  few
days in connection with this case. We,  therefore,  direct  the  respondent-
State to pay a sum of Rs. 5000 as compensation to the appellant  within  two
months. The respondent-State may however recover the said  amount  from  the
police officials, Randhir PW 2 and Jai Dayal, PW 3 (Rs. 2500 each), who  are
responsible for false implication of the appellant.”

9.    In Mohd. Zahid  v.  Govt.  of  NCT  of  Delhi[2],  the  appellant  had
preferred an appeal under Section 19 of the TADA.  The designated court  had
found him guilty and convicted him for the offence under Section 5  of  TADA
and sentenced him to suffer rigorous imprisonment for five years and to  pay
a fine of Rs.1,000/-  and,  in  default  of  payment  of  fine,  to  undergo
rigorous imprisonment for two months more.  The  Court  allowed  the  appeal
and recorded an order of acquittal.  In course of analysis,  the  Court  has
opined that  certain  documents  had  been  interpolated,  the  evidence  of
certain witnesses was absolutely false and that the appellant  therein  made
a victim of prolonged illegal incarceration due to machination of PWs 5  and
6 and other police personnel and accordingly directed payment of Rs.50,000/-
 as compensation.
10.   In  this  context  reference  to  certain  other  decisions  would  be
appropriate.  In State, represented by Inspector of  Police  and  others  v.
N.M.T. Joy Immaculate[3], a three-Judge Bench was dealing with the  judgment
and order passed by the learned Single Judge of the High Court of Madras  in
a Criminal Revision which was allowed and  revision  was  disposed  of  with
certain directions.  The High Court had granted Rs.1  lakh  compensation  on
the basis of an affidavit.  G.P. Mathur, J., speaking for the learned  Chief
 Justice and himself, after quashing the order of the High Court has  opined
that:-
“The High Court has also awarded Rs. 1 lakh as compensation to  the  accused
on the ground that she was illegally detained in the police station and  the
police personnel committed acts of molestation, obscene violation,  etc.  It
is noteworthy that after investigation, the  police  has  submitted  charge-
sheet against accused Joy Immaculate. Her application for bail was  rejected
by the learned Sessions Judge and thereafter by the High Court on  18-1-2002
prior to the decision of the revision. There is absolutely no  justification
for awarding compensation to a  person  who  is  facing  prosecution  for  a
serious offence like murder  even  before  the  trial  has  commenced.  This
direction, therefore, deserves to be set aside.”

      Dr. A.R. Lakshmann, J. in his concurring opinion has laid down:-
“Above all, the learned Judge has committed a  grave  error  in  awarding  a
compensation of Rs 1 lakh on the ground that the police personnel  committed
acts of obscene violation, teasing the respondent herein. The learned  Judge
has relied upon only on the basis of the affidavit filed  in  the  case  for
coming to the conclusion and also on the basis of the  assumption  that  the
respondent was not  involved  in  the  incident  which  will  foreclose  the
further enquiry ordered by the learned Judge in  the  matter.  There  is  no
justification  for  awarding  compensation  to  a  person  who   is   facing
prosecution for a serious offence like murder  even  before  the  trial  has
started.”

11.   In this context, we may usefully refer to a two-Judge  Bench  decision
in Hardeep Singh v. State of Madhya  Pradesh[4].   In  the  said  case,  the
appellant was engaged in running  a  coaching  centre  where  students  were
given tuition to prepare them for entrance tests for different  professional
courses.  The appellant was arrested and a case under Section 420 read  with
Section 34 IPC and other sections was instituted.  He  was  brought  to  the
police station in handcuffs and his photographs  in  handcuffs  appeared  in
the local newspapers.  The trial went on for several years  and  eventually,
he was acquitted after 12 years.  Thereafter he  filed  a  complaint  before
the Magistrate which was dismissed for lack of  sanction.   The  High  Court
being moved had held that complaint was not maintainable and  dismissed  the
same in limini.  Thereafter, the victim moved the Government  for  grant  of
sanction under Section 197 CrPC for  prosecuting  the  Collector  and  other
government servants which was refused.  The said order of  refusal  came  to
be assailed in W.P. No.4777 of 2007.  The writ  petition  was  dismissed  by
the High  Court.   On  an  intra-court  appeal  preferred,  the  High  Court
dismissed the same.
12.   Be it stated, after  the  acquittal,  the  appellant  had  filed  writ
petition no. 4368 of 2004 contending, inter alia, that he was taken  to  the
police station and was kept there in custody in the night handcuffed by  the
police  without  there  being  any  valid  reason  and  his  photographs  in
handcuffs in daily newspapers were published as a consequence of  which  his
elder sister who loved him like a son, died  due  to  shock.   It  was  also
contended that the prosecution  knew  from  the  beginning  that  the  cases
registered against him were  false  and  it  purposefully  caused  delay  in
conclusion of the trial causing great harm to  his  dignity  and  reputation
and violating  his  fundamental  right  to  speedy  trial  guaranteed  under
Article 21 of the Constitution.  A learned Single Judge of  the  High  Court
had admitted  the  writ  petition  on  the  limited  question  of  grant  of
compensation to the appellant for the delay in conclusion  of  the  criminal
case against him.  Another Single Judge who finally heard the matter  opined
that there  was  no  case  for  compensation.  In  intra-court  appeal,  the
Division Bench reversed the same and  granted  compensation  of  Rs.70,000/-
which was enhanced by this Court to Rs.2 lakhs.  The analysis  made  by  the
Division Bench which has been approved by this Court  is  to  the  following
effect:-
‘The Division Bench further held that there was no warrant for  putting  the
appellant under handcuffs. His handcuffing was without justification and  it
had not only adversely affected his dignity as a human being  but  had  also
led to unfortunate and tragic consequences.”

      And while enhancing the compensation, the Court held that:-
“..... we find that in the light of the findings arrived at by the  Division
Bench, the compensation of Rs 70,000 was too small and did  not  do  justice
to the sufferings and humiliation undergone by the appellant.”

13.   Regard being had to the aforesaid  enunciation  of  law,  the  factual
matrix of the case at hand is  required  to  be  appreciated.   On  a  close
scrutiny of the judgment of the learned trial Judge, it is evident  that  he
has  been  guided  basically  by  three  factors,  namely,  that  the  State
Government has not established Forensic  Science  Laboratories  despite  the
orders passed by this Court; that  there  has  been  delay  in  getting  the
seized articles tested;  and  that  the  seizing  officer  had  not  himself
verified by using his experience and expertise that the  contraband  article
was opium.  As far as the first aspect  is  concerned,  it  is  a  different
matter altogether.   As far as the delay is concerned that  is  the  fulcrum
of the reasoning for acquittal.  It is apt to note  that  the  police  while
patrolling had noticed the accused persons and their behaviour at that  time
was suspicious.  There is nothing on record to suggest that  there  was  any
lapse on the part of the seizing officer.  Nothing has been brought  by  way
of evidence to show  that  the  prosecution  had  falsely  implicated  them.
There is nothing to remotely suggest that there was any malice.    The  High
Court, as is noticed, has not applied its mind to the concept  of  grant  of
compensation to the accused persons in a case of present nature.   There  is
no material whatsoever to show that the prosecution has  deliberately  roped
in the accused persons.  There is  no  malafide  or  malice  like  the  fact
situation which are projected in the case of Hardeep Singh  (supra).   Thus,
the view expressed by the learned trial  Judge  is  absolutely  indefensible
and the affirmance thereof by the High Court is wholly unsustainable.
14.   In view of the foregoing analysis,  the  appeal  is  allowed  and  the
order of the trial Judge granting compensation and that of  the  High  Court
giving stamp of approval to the same are set aside.


                                           ...............................J.
[Dipak Misra]



                                           ...............................J.
                                             [Prafulla C. Pant]
New Delhi
August 25, 2015.

-----------------------
[1]

        (1996) 11 SCC 711
[2]     (1998)  5 SCC 419
[3]     (2004) 5 SCC 729
[4]     (2012) 1 SCC 748

-----------------------
13

Writ petition for cancellation sale deed unilaterally - 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.

                                                                  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 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,  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, 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  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.

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 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:-

“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  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 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 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  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 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  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.”



      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  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  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 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 4th  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 [pic]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.”


      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 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  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;

(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
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 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  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
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:-



“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 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
                                                                  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, 21, 22 and 32 of the Indian Registration Act, 1908.

   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).

 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.

  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  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.

 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 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.

 I respectfully dissent with the said  view  taken  by  my  learned  brother
Judge by giving the following reasons.


 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  as  her  legal  heirs  to  succeed  her  intestate  property
comprising of the said plot of land.

  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  Indian  Registration
Act, 1908 read with Section 31 of the Specific Relief Act, 1963.

 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.

The appellant filed an application before the Sub-Registrar  (Registration),
seeking  the  cancellation  of  the  extinguishment  deed  dated  09.08.2001
executed 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 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.



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.  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 questioned in this  Civil
Appeal urging various legal grounds.



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?”



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  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.



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.



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  [pic]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.

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 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.”


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
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 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 the impugned circular issued by the Inspector General of Registration.”



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 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.



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 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 contained in his books  the
fact of its cancellation.”





 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  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,  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  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.””

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 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.



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  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.

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 laid down the following principles as regards the power  of  this
Court under Article 136:

“10.

.....

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.

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.



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.

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.


  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.”


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.



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  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.



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 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.”



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 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 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 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 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 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 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[pic]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 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)


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 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  [pic]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 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.”

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]:


“….(1)  Certiorari        will  be   issued   for   correcting   errors   of
jurisdiction, as when    an  inferior  Court  or  Tribunal     acts  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.”


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
sale deed in respect of the property in question executed in favour  of  his
deceased mother.


 The appeal is allowed in the above terms.

                                     ……………………………………………………………J.
                      [V.GOPALA GOWDA]


New Delhi,
August 25, 2015
                                                                  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.

-----------------------
[1]     AIR 2007 AP 57
[2]     AIR 2010 Madras 18
[3]     2009 CIJ 243 Madras
[4]     AIR 2000 Karnataka 46
[5]     (2010) 15 SCC 207
[6]     AIR 1990 Mad 251
[7]     SLP(C) No. 13255 of 2012
[8]    AIR 2007 AP 57
[9]    AIR 2010 Madras 18
[10]   AIR 2000 Karnataka 46
[11]   (2010) 15 SCC 207
[12]   AIR 2010 Madras 18
[13]   AIR 1961 SC 787
[14]    AIR 1964 SC 72
[15]   (1979) 2 SCC 297
[16]   (2005) 6 SCC 211
[17]   (1986) 2 SCC 679
[18]   (1989) 2 SCC 691
[19]   AIR 1955 SC 233

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