IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29 .01.2007
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
WRIT PETITION No.27573 of 2004
1.M.L.Mathews
2.Ms.Geetha Mathews
3.M.I.Jacob
son of late M.I.Malloth
All rep by Power of Attorney
P.Dhanapal,
No.29, III Street,
Nehruji Nagar,
Arakkonam Town,
Vellore District ...Petitioners
Vs.
1.The Inspector General of Registration
No.100, Santhom Salai,
Mylapore, Chennai - 28.
2.The Joint Sub Registrar No-2,
Arakonam
3.The Revenue Divisional Officer,
Ranipettai,
Vellore. ... Respondents
* * *
The Writ Petition filed under Article 226 of the
Constitution of India praying to issue a Writ of
Certiorarified Mandamus as stated therein.
* * *
For petitioner : Mr.ARL.Sundaresan,
Senior Advocate
For respondents : Mr.C.Thirumaran
Government Advocate
For R1 to R3
Mr.V.Raghavachari -
For R4
O R D E R
The Writ Petition has been filed praying for the
issuance of a Writ of Certiorarified Mandamus to call for
the records relating to the order, dated 05.08.2004,
Na.Ka.A4.4068/2002 of the third respondent and the
memorandum No.433/2004, dated 08.09.2004, of the second
respondent and quash the same and consequently direct the
second respondent to register the sale deeds in respect of
the plots in S.No.161/1, Keelkuppam Village, Arakonam Taluk.
2.Heard the learned counsel for the petitioners as well
as for the respondents.
3.It is submitted on behalf of the petitioners that the
lands of an extent of 7.09 acres situated at S.No.161/1 in
Keelkuppam Village, Arakkonam Taluk, was assigned in favour
of one Rosikhan, son of Sivaramulu, in the year 1923, under
DKT 492/23, dated 28.12.1923. The said lands were assigned
to him as he was a landless poor person under Dharkast rules
with certain terms and conditions including that he should
not sell or mortgage the said lands for a period of 10 years
from the date of assignment. Following the assignment, the
lands were being cultivated by Rosikhan, who was in
possession and enjoyment of the same. In the year 1951, he
had sold the lands to one Thaikhan under a registered Sale
Deed, dated 15.02.1951, under Document No.517.
Subsequently, Thaikhan had sold the lands to Benjamin son of
Maran and M.I.Jacob son of Mallath, by a registered Sale
Deed, dated 07.06.1956, under Document No.2170. The said
Benjamin had released his rights over the lands in favour of
Mathew under a release deed, dated 06.05.1988, and from the
date of the release deed, the said Mathew has been in
possession and enjoyment of the lands along with his brother
Jacob. It has been further submitted that a joint patta
had been granted in favour of Mathew and Jacob under patta
No.350. The names were also entered in all the revenue
records, including the Chitta and Adangal. Subsequently, a
family arrangement had taken place by which Jacob had
settled half of his share in the property to his brother’s
daughter Geetha Mathews, by a settlement deed , dated
29.03.1989. Thus, the first petitioner became entitled to
half share and the second and third petitioners were
entitled to one fourth share each in the property in
S.No.161/3, to an extent of 7.09 acres.
4. The petitioners, who are the owners of the above
mentioned lands, had executed a power of attorney in favour
of one P.Dhanapal, son of poongavanam, who has filed the
affidavit in support of the present writ petition on behalf
of the petitioners. The said P.Dhanapal, with an intention
to develop the lands, had formed a lay out and submitted the
plan for approval to the Block Development Officer,
Arakonam, on 02.05.2002. The Block Development Officer,
Arakonam, by a letter, dated 07.05.2002, had directed
P.Dhanapal to approach the President of the concerned
Panchayat and he was also directed to execute a gift deed in
favour of the Panchayat for the areas earmarked as road ,
park and public places etc., Accordingly, P.Dhanapal had
executed the gift deed in favour of the Panchayat, on
09.05.2002. Thereafter, the layout was approved and a ‘No
Objection Certificate’ was also granted, for the sale of the
plots by the President of the Panchayat, on 03.07.2002.
Thereafter, six plots were sold to several persons, from
13.03.2002 to 13.12.2002. While so, the third respondent
had issued a notice, dated 20.10.2003, alleging that the
lands S.No.161/1 were assigned to a Schedule Caste person by
name Rosikhan and the sale in favour of persons belonging to
the other communities was against the conditions under which
the original assignment had been made. Hence, the second
petitioner was called upon to show cause as to why her sale
deed should not be canceled. The second petitioner was
given 15 days time to show cause stating that if she failed
to do so, a final order would be passed. On receipt of the
said notice, a detailed reply was sent narrating all the
facts and pointing out that the sale was made only after a
period of 27 years and therefore, there was no violation of
the conditions of the assignment, as alleged in the notice.
It was also stated that the lay out was approved and
transactions were also made in respect of the said lands and
there was no dispute in that regard. Further, on a perusal
of the records, it was clear that there was no conditional
assignment of the lands in S.No.161/1 said to have been made
in favour of Rosikhan. Even though there were no further
communications from the third respondent, the second
respondent had issued instructions to the Sub-Registrar,
Arakonam, not to register the sale deeds in respect of the
said lands. Therefore, the Sub-Registrar, Arakonam, had
refused to register the Sale Deed and he had insisted that
those who were purchasing house plots in S.No.161/1 should
produce Adi-Dravidar Community Certificates with the
intention of avoiding persons belonging to other communities
from purchasing the house sites. Accordingly, the
Tahsildar, Arakonam, had issued a letter, dated 04.03.2003,
to the second respondent marking a copy to the third
respondent, directing them not to register any sale deed to
any person not belonging to Adi-dravidar community and had
called for further clarifications in that regard.
5.A writ petition filed before this Court, in
W.P.No.27702 of 2003, was dismissed by an order, dated
07.10.2003, wherein it was stated that an interdepartmental
communication cannot be challenged. Thereafter, a detailed
representation was sent to the first respondent requesting
him to issue necessary instructions to the third respondent
not to insist on the production of community certificates by
the intending purchasers. It was also requested that the
third respondent should be directed to register the sale
deeds relating to the said lands. Thereafter, 15 sale deeds
were registered by the second respondent . While so, on
20.03.2004, the third respondent had issued a notice
referring to the earlier notice, dated 20.10.2003, and
without referring to the reply issued to the said notice,
stating that the enjoyment of the lands in S.No.161/1
assigned in favour of Rosikhan is in violation of the
conditions of assignment. By the said notice, an enquiry was
proposed to be held. By a letter, dated 05.08.2004, the
third respondent had stated that the lands were assigned in
favour of the Rosikhan belonging to Adi-dravidar Community
with certain conditions. As per the said conditions, it
should not be sold to persons belonging to other
communities. Further, as per Government Orders,
agricultural lands should not be converted into lay outs.
Due to the violations of the conditions, steps were being
taken to cancel the assignment. Further, due to the
impugned order, dated 05.08.2004, passed by the third
respondent in Na.Ka.A4 4068 of 2002 and the Memorandum
No.433 /2004, dated 08.09.2004, issued by the second
respondent, the petitioners were not able to register any
sale deeds through their power of attorney P.Dhanapal.
6.The learned counsel appearing on behalf of the
petitioners has placed reliance on an order of this court in
R.Ramanathan and others Vs. The State of Tamil Nadu and
another reported in 1997 MLJ 406, wherein it was held that
the petitioners therein had purchased the lands in the year
1973, and the pattas were also issued with regard to the
said lands and the lands were developed by investing
substantial money. Therefore, the proceedings by the
Government initiated in the year 1987, for resumption of the
lands, were held to be barred by estoppel.
7.The learned counsel appearing for the petitioners had
relied on the decision of the Supreme Court in State of
Rajasthan and others Vs. Basant Nahata, reported in AIR
2005 Supreme Court 3401, where in it has been held as
follows :-
“Public policy is not capable of being given a
precise definition. What is ‘opposed to public
policy’ would be a matter depending upon the
nature of the transaction. The pleadings of the
parties and the materials brought on record would
be relevant so as to enable the Court to judge the
concept as to what is for public good or in the
public interest or what would be injurious or
harmful to the public good or the public interest
at the relevant point of time as contra-
distinguished from the policy of a particular
Govt. A law dealing with the rights of a citizen
is required to be clear and unambiguous. Doctrine
of public policy is contained in a branch of
common law, it is governed by precedents. The
principles have been crystallized under different
heads and though it may be possible for the Courts
to expound and apply them to different situations
but it is trite that the said doctrine should not
be taken recourse to in ‘clear and incontestable
cases of harm to the public though the heads are
not closed and though theoretically it may be
permissible to evolve a new head under exceptional
circumstances of a changing world.’
A contract being ‘opposed to public policy’ is a
defence under S.23 of the Indian Contract Act and
the Courts while deciding the validity of a
contract has to consider: a) Pleadings in terms of
O.6 Rule 1 of the Code of Civil Procedure. b)
Statute governing the case c) Provisions of Parts
III and IV of the Constitution of India. d) Expert
evidence, if any e) The materials brought on
record of the case f) Other relevant factors, if
any. It becomes amply clear that it is not
possible to define public policy with precision at
any point of time. It is not for the executive to
fill these grey areas as the said power rests with
judiciary. Whenever interpretation of the concept
‘public policy’ is required to be considered it is
for the judiciary to do so and in doing so even
the power of the judiciary is very limited. Even
for the said purpose, the part dealing with public
policy in S.23 of the Contract Act is required to
be construed in conjunction with other parts
thereof.
However,after discussing all the relevant aspects of the
case the Supreme Court had finally stated.
“so far as amendments made by other States are
concerned, we are of the opinion that any order
passed by a Sub-registrar or Registrar refusing to
register a document pursuant to any notification
issued under Section 22-A of the Act would not be
re-opened.”
It has been pointed out by the learned counsel appearing on
behalf of the petitioners that Section 34 and 35 of The
Registration Act,1908 and Rule 55 of The Registration Rules
are relevant for the present case. They read as follows:-
Section 34.Enquiry before registration by
registering officer – (1) Subject to the
provisions contained in this Part and in
Sections 41,43,45,69,75,77,88 and 89, no
document shall be registered under this Act,
unless the persons executing such document,
[and in the case of document for sale of
property, the persons claiming under that
document] or their representatives, assigns or
agents authorised as aforesaid, appear before
the registering officer within the time,
allowed for presentation under Sections
23,24,25 and 26:
Provided that, if owing to urgent
necessity or unavoidable accident all such
persons do not so appear, the Registrar, in
cases where the delay in appearing does not
exceed four months, may direct that no payment
of a fine not exceeding ten times the amount
of the proper registration fee, in addition to
the fine, if any, payable under Section 25,
the document may be registered.
(2) Appearances under sub-section (1) may be simultaneous
or at different times.
(3) The registering officer shall thereupon-
(a) enquire whether or not such document was
executed by the persons by whom it purports
to have been executed;
(b) satisfy himself as to the identity of
the persons appearing before him and
alleging that they have executed the
document [or they are claiming under the
document]; and
(c) in the case of any person appearing as a
representative, assign or agent, satisfy
himself of the right of such person so to
appear.
(4) Any application for a direction under
the proviso to sub-section (1) may be lodged
with a Sub-Registrar, who shall forthwith
forward it to the Registrar to whom he is
subordinate.
(5) Nothing in this section applies to
copies of decrees or orders.
Section 35.Procedure on admission and denial
of execution respectively .- (1) (a) If all
the persons executing the document appear
personally before the registering officer and
are personally known to him, or if he be
otherwise satisfied that they are the person
they represent themselves to be, and if they
all admit the excution of the document, or
(b) if in the case of any person appearing by, a
representative, assign or agent, such
representative, assign or agent admits the
execution, or
(c) if the person executing the document is dead,
and his representative or assign appears before the
registering officers and admits the execution, the
registering officer shall register the document as
directed in sections 58 to 61, inclusive.
(2) The registering officer may, in order to satisfy
himself that the persons appearing before him are the
persons they represent themselves to be, or for any other
purpose contemplated by this Act, examine any one present in
his office.
(3) (a) If any person by whom the document purports to be
executed denies its execution, or
(b) If any such person appears to the registering
officer to be a minor, an idiot or a lunatic, or
(c) If any person by whom the document purports
to be executed is dead, and his representative or
assign denies its execution,
the registering officer shall refuse to
register the document as to the persons so
denying, appearing or dead; Provided that, where
such officer is a Registrar, he shall follow the
procedure prescribed in Part XII.
[ Provided further that the State Government may
by notification in the Official Gazette, declare
that any Sub-Registrar named in the notification
shall, in respect of documents the execution of
which is denied, be deemed to be a Registrar for
the purpose of this sub-section and of Part XII.]
Rule 55. It forms no part of a registering
officer’s duty to enquire into the validity of a
document brought to him for registration or to
attend to any written or verbal protest against
the registration of a document based on the
ground that the executing party had no right to
execute the document; but he is bound to consider
objections raised on any of the grounds stated
below :-
“(a) that the parties appearing or about to
appear before him are not the persons they
profess to be;
(b) that the document is forged;
(c) that the person appearing as a
representative, assign or agent, has no right to
appear in that capacity;
(d) that the executing party is not really dead,
as alleged by the party applying for
registration; or
(e) that the executing party is a minor or an idiot or
a lunatic.”
“Section 22-A.Documents registration of which is
opposed to public policy – (1) The State
Government may, by notification in the Tamil Nadu
Government Gazette, declare that the registration
of any document or class of documents is opposed
to public policy.
(2) Notwithstanding anything contained in this
Act, the registering officer shall refuse to
register any document to which a notification
issued under sub-section (1) is applicable.]
8.It is seen that the impugned orders have been passed
without adverting to the powers vested in the Registering
Authorities under the Registration Act, 1908. The learned
government advocate appearing on behalf of the respondents
is not in a position to show that the powers have been
exercised by the Registering Authorities only in
accordance with the Registration Act, 1908, and the
Registration rules framed thereunder, Futher it has also not
been shown as to how or for what reasons the Registering
Authority has refused to register the documents submitted
on behalf of the petitioners. It is for the respondents to
show that such registration would be contrary to public
policy and would be in violation of the provisions of law
applicable to the case. In the absence of such violation,
the respondents cannot refuse to register the documents
submitted on behalf of the petitioners. Therefore, the writ
petition is
allowed, setting aside the impugned order, dated 05.08.2004,
passed by the third respondent in Na.Ka.A4 4068/2002 and the
memorandum No. 433/2004, dated 08.09.2004, issued by the
second respondent. Consequently, the second respondent is
directed to register the sale deeds submitted on behalf of
the petitioners in respect of S.No.161/1, Keelkuppam
Village, Arakonam Taluk,Vellore District. No costs.
To
1. The Inspector General of Registration
No.100, Santhom Salai,
Mylapore, Chennai – 28.
2. The Joint Sub Registrar No-2,
Arakonam
3. The Revenue Divisional Officer,
Ranipettai,
Vellore.