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Jothisenthilkannan vs The Collector on 15 June, 2010

Madras High Court Madras High Court K.Jothisenthilkannan vs The Collector on 15 June, 2010 DATED :: 15-06-2010 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P. No.10073 OF 2010 K.Jothisenthilkannan ... Petitioner -vs1.The Collector, Puducherry Revenue Department, Revenue Complex, Saram, Puducherry. 2.The Sub-Registrar, Office of Sub-Registrar, Bahour, Puducherry. ... Respondents Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. For petitioner : Mr.J.Kumaran For respondents : Mr.D.Sreenivasan, Govt.Pleader (Pondicherry). ORDER This Writ Petition has been filed for issuance of a writ of mandamus, directing the second respondent to return the petitioner's original settlement deed, dated 30.03.2010, which is retained by the second respondent, as pending document in Ref.No.P/93/2010. 2. The case of the petitioner is that his father, namely, Karunagaran was absolute owner of the land situate at Kirumambakkam revenue village, bearing R.S.No.56/1A/1 with a total extent of 2 hectares and 70 ares and the same was in his valid possession and enjoyment for the past 39 years till the same was transferred in favour of her mother and himself; of the total extent of 2 hectares and 70 ares, his father preferred to make settlement in favour of his mother and himself through two different registered settlement deeds by dividing the total extent in two parts; accordingly, northern side extent of 1 hectare was allotted to his mother, namely, Tmt.Vasanthi, and transferred in her name through a registered settlement deed, dated 10.03.2010, registered
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K.Jothisenthilkannan vs The Collector on 15 June, 2010

as document No.714 of 2010 on the file of second respondent and the remaining southern portion extent of 1 hectare and 70 ares was allotted to him and transferred in his favour through a registered settlement deed, dated 30.03.2010, which was registered by the second respondent as pending document in Ref.No.P/93/2010 and the same has not yet been returned, in spite of receiving necessary registration fee. 3. It is also the case of the petitioner that the second respondent has not preferred to retain the settlement deed, dated 10.03.2010, pertaining to his mother registered as document No.714 of 2010 and the same was returned within four days from the date of registration but the second respondent, without any proper cause, retained the settlement deed, dated 30.03.2010, registered as pending document in Ref.No.P/93/2010, which is illegal. 4. On the other hand, respondents have filed a counter, stating that the settlement deed executed and presented by one Karunagaran was received for registration in favour of the petitioner and the same was kept pending; while scrutinizing the document, the second respondent found that the property settled had been notified for acquisition by the Department of Revenue and Disaster Management under Section 4 (1) of the Land Acquisition Act in G.O.Ms.No.9, dated 23.04.2010; in the said notification, the owners of the land had been notified as one Nandarajan and his wife Anusuya; an area of 2 ares and 79 centiares out of the total extent of 2 hectares and 70 ares has already been acquired for ECR Road and compensation paid to the said Nandarajan and Anusuya by an order of the civil court and when any land is notified for acquisition and copy of the notification is served on the registering officer, no document concerning the property notified for acquisition should be admitted for registration. 5. It is also stated in the counter that there was a protest petition from one Pandurangan given to second respondent on 11.08.2009 stating that the land in question had been registered in the name of Nandarajan and Anusuya, who were French citizens and any document transacting the said property should not be admitted for registration; there was also a complaint by Nadarajan and Anusuya that their land was being illegally grabbed by Karunagaran, who was the executant of the document pending No.93/2010 and the Special Cell constituted to enquire into land grabbing complaints, after a thorough enquiry, informed that the accused concerned had been arrested and Nadarajan and Anusuya were informed that the land in question stood registered in their names as per the revenue records and the property was under their enjoyment and possession. 6. It is the further case of the respondents that the earlier document, namely, settlement deed dated 10.03.2010 was registered as No.714/2010 without looking into all the circumstances explained above and the officer concerned had been placed under suspension and the second respondent has to decide on these aspects before admitting the document for registration. 7. Learned counsel for the petitioner would contend that the document in question has been executed on 30.03.2010 and the disputed land was notified for acquisition under Section 4 (1) of the Land Acquisition Act on 23.04.2010 and therefore unless the document is registered and executed, the right of the petitioner over the property will be defeated. The learned counsel would further contend that Sections 34 and 35 of the Registration Act envisage the powers of the Registering Authority to execute the document on identity of persons and hence no rules or executive instructions will stand in the way of registering the document to enquire into the title of person executing the document. The Learned counsel has placed reliance on two decisions of this Court in (i) Pandurangan v. The Sub-Registrar, Reddiarpalayam, 2007 (1) CTC 641, and (ii) Tata Coffee Limited v. The State of Tamil Nadu, 2008 (3) CTC 614. 8. Per contra, the learned Government Pleader would contend that though the acquisition was later to the presentation of the document for registration, the respondents cannot be deprived of the acquisition of the land for a public purpose and that the petitioner has no vested right to claim the property in question. 9. I have heard the learned counsel for the parties.
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K.Jothisenthilkannan vs The Collector on 15 June, 2010

10. On going through the records, what comes to be known is that father of the petitioner preferred to make settlement in favour of his wife, namely mother of the petitioner, and son, namely, the petitioner, through two different registered settlement deeds by dividing the total extent of 2 hectares and 70 ares in two parts, of which, northern side extent of 1 hectare was allotted to the mother of the petitioner, namely, Tmt.Vasanthi, and transferred in her name through a registered settlement deed, dated 10.03.2010, registered as document No.714 of 2010 on the file of second respondent and the remaining southern portion extent of 1 hectare and 70 ares was allotted to the petitioner and transferred in his favour through a registered settlement deed, dated 30.03.2010, which was registered by the second respondent as pending document in Ref.No.P/93/2010 and the same has not yet been returned, in spite of receiving necessary registration fee. It also transpires that the second respondent had not preferred to retain the settlement deed, dated 10.03.2010, pertaining to the mother of the petitioner registered as document No.714 of 2010 and the same was returned within four days from the date of registration, but, the second respondent retained the settlement deed, dated 30.03.2010, pertaining to the petitioner, registered as pending document in Ref.No.P/93/2010, which, in my considered opinion, cannot be sustained. 11. It is also relevant that Section 34 of the Registration Act provides that enquiry before registration by the Registering Officer is subject to the provisions contained in that part and no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the Registering Officer. Moreover, Section 35 (1) of the Act provides that if all the persons executing the document appear personally before the Registering Officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, the Registering Officer shall register the document as directed in Sections 58 to 61 and return the same, as provided for in Section 61 (2). 12. In the decision relied upon by the learned counsel for the petitioner in Pandurangan's case, the issue under challenge was a direction by the District Collector to the District Registrar of Pondicherry to instruct the Sub-Registrar to withhold the registration of any sale transaction in respect of a particular land in a revenue village and the said direction was set aside, as it was well settled that statutory rules cannot override express provisions of the statute and executive instructions cannot override either of the two. Hence, the said decision is not applicable to this case. 13. However, in the other decision cited by the learned counsel for the petitioner in Tata Coffee Limited, it was held that the retention of document after registration on ground of pendency of civil proceedings in respect of the property was not proper and that the Registrar had no concern about validity or otherwise of the document, which was realm of civil court. Holding so, the authority was directed to release the document forthwith, without any endorsement. 14. In view of the decision of this Court in Tata Coffee Limited, the second respondent herein is directed to return the petitioner's original settlement deed, dated 30.03.2010, which is retained by the second respondent as pending document in Ref.No.P/93/2010 forthwith. However, this order shall not stand in the way of the respondents initiating the acquisition proceedings over the property in question, in which event the petitioner shall have a right of defence. Also, as it is the case of the respondents that there is a land grabbing with regard to the property in question, the respondents are at liberty to proceed against the persons concerned, if they are so advised, in accordance with law. 15. With the above direction and observation, this Writ Petition is allowed. No costs. Index : Yes 15-06-2010 Internet : Yes dixit
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K.Jothisenthilkannan vs The Collector on 15 June, 2010

To 1.The Collector, Puducherry Revenue Department, Revenue Complex, Saram, Puducherry. 2.The Sub-Registrar, Office of Sub-Registrar, Bahour, Puducherry. V.DHANAPALAN,J. dixit W.P.No.10073 OF 2010 15-06-2010

Indian Kanoon - http://indiankanoon.org/doc/1879819/