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Judgment
K.K. Sasidharan, J.—The failure on the part of the Statutory Authority to follow the Rules of Procedure in the matter of disposal of Appeal
made the Petitioner to challenge the order dated 22.11.2010 on the file of the District Registrar, Namakkal. The Third Respondent in the present
Writ Petition appointed the Fourth Respondent as his Power Agent on the strength of a Power of Attorney dated 27.9.2010. The Fourth
Respondent was authorised to sell certain properties situated in S. No. 487/5 Agraharam Manapalli Village, Mohanur, Namakkal District. The
Power of Attorney was registered as Doc. No. 377/2010 on the file of Sub-Registrar, Mohanur on 27.9.2010. The Fourth Respondent on the
basis of the said Power of Attorney entered into an agreement with the Petitioner to sell the property on 27.9.2010 itself. The Sale Agreement was
registered as Document No. 2288/2010 before the Second Respondent. Pursuant to the said agreement, the entire sale consideration of Rs.
4,50,000/- was paid to the Petitioner. The Fourth Respondent thereafter executed a Sale Deed on 22.10.2010. The Petitioner was given the
original Power of Attorney dated 27.9.2010, and executed the document so as to enable him to produce the same before the concerned Sub-
Registrar for registration. The Sale Deed executed on 22.10.2010 was submitted before the Second Respondent for registration on 25.10.2010.
However, the Second Respondent refused to register the document under the pretext that the Power of Attorney granted by the Third Respondent
was cancelled on 27.9.2010. The order passed by the Sub-Registrar was challenged by the Petitioner before the District Registrar under Sections
72 & 73 of the Registration Act. The District Registrar, without following the mandatory provisions of Rule 173 of the Tamil Nadu Registration
Rules, dismissed the Appeal. This made the Petitioner to challenge the said order primarily on the ground that the mandatory provisions were not
followed by the District Registrar before rejecting the statutory Appeal.
The Third Respondent filed a Counter Affidavit wherein, it was contended that the remedy of the Petitioner is only to file a Suit and not a Writ
Petition. According to the Third Respondent, the Power of Attorney has already been cancelled and as such, the Sub-Registrar was fully correct in
denying the registration of document. Accordingly, the Third Respondent Defended the proceedings of the Sub-Registrar as well as the District
Registrar.
The learned Counsel for the Petitioner by placing reliance on Rule 171 of the Registration Rules, submitted that the District Registrar was
expected to fix the date of hearing of the Appeal and thereafter to issue notice to the parties. However, the District Registrar failed to follow the
Rules and abruptly rejected the Appeal by way of a non-speaking order. According to the learned Counsel, in case, the District Registrar has
issued notice to the Respondent Nos. 3 & 4 and afforded an opportunity to all the parties, the Petitioner would have explained to him that even
before the cancellation of Power of Attorney, the document was executed by the Fourth Respondent.
The learned Counsel for the Third Respondent on the basis of the averments found in the Counter Affidavit contended that the Petitioner has
already filed a Civil Suit for injunction and as such, the present Writ Petition is not maintainable.
The only Issue that arises for consideration is as to whether the District Registrar has followed the mandatory provisions of the Registration Act
and Rules before rejecting the statutory Appeal preferred by the Petitioner u/s 72 of the Act.
Section 72 of the Registration Act gives a right to the aggrieved to file an Appeal against an order passed by the Sub-Registrar refusing to
register a document on any ground other than the denial of execution.
In the subject case, refusal was not on the ground of denial of execution. The Fourth Respondent duly executed the document and as such, there
is no question of denial of execution. The refusal was on the ground that by the time the document was presented for registration, the Third
Respondent has cancelled the Power of Attorney granted to the 4th respondent. Therefore, the Appeal filed u/s 72 of the Registration Act before
the First Respondent was clearly maintainable.
The Petitioner alleges violation of the mandatory procedure.
Rule 171 reads as follows:
171 (i) An Applicant in this Rule shall mean an Appellant u/s 72 or party at whose instance an enquiry u/s 74 is commenced and shall include
subject to provisions of Rule 167, also an agent or a Vakil.
(ii) On the presentation of an Appeal u/s 72 or an Appeal u/s 72 or an Application u/s 73 and in the case of original enquiry u/s 74, a date shall be
fixed for the hearing of the Appeal or application or for the enquiry.
(iii) Such date shall be notified to the Applicant and also published on the notice board of the Registrar''s office.
(iv) Within one week of the date of such publication, the Applicant shall pay the process fee necessary for the issue of notice to the opposite party
(hereinafter called the respondent) and for summonses for securing the attendance of witnesses:
Provided that the Registrar may extend the time for such payment from time to time on sufficient cause being shown.
(v) If one the date of hearing-
(a) neither party appears, or
(b) the Applicant does not appear and the Respondent appears and contests the registration of the document, or
(c) the Respondent does not appear and it is found that notice has not been served upon him in consequence of the failure of the Applicant to pay
the requisite fee for such service, the Registrar shall make an order refusing to direct registration of the document:
Provided that it shall be open to the Registrar to adjourn the enquiry from time to time for sufficient cause.
(vi) An order refusing to direct registration under this Rule shall be recorded in Book 2.
There is a statutory requirement on the part of the District Registrar to fix a particular date for hearing the Appeal. The Registrar has to notify
the date of hearing. The notice of hearing should also be displayed in the notice Board of the Registrar''s Office. The Appellant has got a right to
represent the case before the District Registrar. At his request, notice will be issued to the Respondent for appearance. The Registrar was
expected to fix a definite date for taking up the Appeal for hearing. The provision was intended for the benefit of both the parties. The Appellant as
well as the Respondent should be given a reasonable opportunity to submit their case. In case, the District Registrar is empowered to reject the
Appeal even without issuing notice to the Respondent, the statute should have contain a provision to that effect. However, the fact remains that
there is no such right available to the District Registrar to reject an Appeal without issuing notice to the Respondent. When the statute says that a
particular thing has to be done in a particular manner, that should be done in that particular manner only. Whether the Petitioner has got a case on
merits or not, essentially, is a matter to be decided by the District Registrar. However, the right given to the Petitioner to present his case before
the District Registrar cannot be taken away lightly. The impugned order passed by the District Registrar does not contain any reference as to
whether opportunity has been given to the Petitioner or Third Respondent to submit their case. A careful reading of the order in the light of the
statutory provisions will give a clear indication that the District Registrar failed to follow the mandatory provisions of law. Therefore, I see
considerable force in the contentions raised on the side of the Petitioner.
The learned Counsel for the Third Respondent has taken up an issue with regard to the maintainability of the Writ Petition on the ground that
the remedy is only to file a Civil Suit.
The question of filing a Civil Suit would arise only in case the District Registrar has passed an order by following the provisions of the Act and
Rules. When the District Registrar himself flouted the mandatory provisions guiding the consideration of statutory Appeal, necessarily, it should be
held that the order is bad in law. There is no point in directing the Petitioner to file a Suit in such circumstances. Therefore, I am of the view that the
matter requires fresh consideration by the First Respondent.
Accordingly, the impugned order is set aside and the matter is remanded to the First Respondent for consideration. The First Respondent is
directed to issue notice to the Petitioner and the Third Respondent and pass orders in accordance with law within a period of three months from
the date of receipt of a copy of this order. It is made clear that I have not considered the merits of the matter and it is for the First Respondent to
decide the issue purely on merits and in accordance with law. This Writ Petition is allowed as indicated above. No costs. Consequently, M.P. No.
1 of 2010 is closed.