(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 23.12.2008 made in Review Application (W) No.109 of 2008 in W.P.No.37686 of 2007. filed under Article 226 of the Constitution of India to issue q Writ of Certiorari to call for the records of the third respondent in registering the cancellation deeds in WA.10874, 10873, 10875/07. dated 7.9.2007 and quash the registration to the cancellation deeds (prayer amended as per Order of Court dated 8.9.2008 in M.P. No. 1/08 in W.P. No. 37686/07)

1. This Writ Appeal questions the order passed in the Review Application. The Appeal arises on the following facts:

A total extent of 11 acres of dry land comprised in S.F.No.212 of Semmipalayam Village, Coimbatore was purchased by the appellant from A. Palanichamy, the first respondent under three sale deeds registered on 1.11.2002 at the office of the Sub-Registrar, Palladam. The entire sale consideration was paid. Insofar as one of the documents, namely, Document No.4250 of 2002, as against the total sale consideration of Rs.2,40,000/-, apart from the payment of Rs.50,000/- in cash which was accepted, the remaining sale consideration was paid by way of cheque, but the cheque was dishonoured even after the registration. Pursuant to the above sale deeds, pattas was also given in the name of the appellant on 30.11.2002.

2. It appears that after a period of five years, i.e., on 7.9.2007, deeds of cancellation of the earlier sale deeds were presented by the first respondent and the same came to be registered by the Sub-Registrar. In view of the said cancellation of the earlier sale deeds, an Application was made by the first respondent for transfer of Patta on 20.9.2007. Only when a notice was received by the appellant, she came to know that the sale deeds executed and registered in her favour as early as on 1.11.2002 were unilaterally cancelled on 7.9.2007. When the objections to the notice were pending, she filed Writ Petition No.36608 of 2007 questioning the proceedings pending before the Tahsildar. Nevertheless, patta granted in favour of the appellant was cancelled on 1.12.2007 and therefore, another Writ Petition No.37686 of 2007 was filed on 17.12.2007 questioning the cancellation of Patta. Therefore, an Application for amendment of the prayer in the Writ Petition No.376876 of 2007 was filed seeking for setting aside the unilateral registration of the sale deeds and the amendment prayed for was ordered. The Writ Petition was heard and ultimately allowed by order dated 10.9.2008, having considered the submissions of both sides, on the ground that before the cancellation deeds were registered, the appellant, namely, the purchaser was not given any notice. It was also directed that the Sub-Registrar shall consider the objections and pass orders on merits. After the passing of the above order, the first respondent filed the Review Application seeking to review the order passed in the Writ Petition on the ground that the pendency of the Suit in O.S. No.385 of 2008 relating to the title and injunction filed by the first respondent against the appellant was not considered. Having considered the said submission, the Review Application was allowed by the learned Judge and the earlier order was rescinded. This order is questioned in this Appeal.

3. We have heard Mrs. Chitra Sampath, learned counsel for the appellant, Mr. Sirnath Sridevan, learned counsel for the first respondent and Mr. J. Raja Kalifullah, learned Government Pleader for the respondents 2 to 4.

4. Going by the facts narrated above, the only question that falls for out consideration is as to whether the deeds of conveyance registered in accordance with the provisions of Section 17 of the Registration Act could be unilaterally cancelled without either the knowledge, consent or the signature of the purchaser

5. This question came up for consideration before a Division Bench of this Court in E.R. Kalaivan v. The Inspector General of Registration and Another, 2009 (4) CTC 618 (Writ Appeal No.507 of 2009), to which one of us was a party. By judgment dated 9.7.2009, the Division Bench has held that such a registration is impermissible in Law. However, in support of the plea that such registration of deed of cancellation could be made, the judgment of the Supreme Court in State of Rajasthan v. Basant Nahata, 2005 (4) CTC 606 [LQ/SC/2005/898] , and the Division Bench judgment of this Court in Captain Dr. R. Bellie v. Sub-Registrar, 2007 (3) CTC 513 [LQ/MadHC/2007/1366] : 2007 (3) MLJ 1025 [LQ/MadHC/2007/1366] , as well the Full Bench judgment of the Andhra Pradesh High Court in Yanala Malleshwari and Others v. Ananthula Sayamma and Others, 2007 (1) CTC 97, were ralied upon.

6. In State of Rajasthan v. Basant Nahata, 2005 (4) CTC 606 [LQ/SC/2005/898] , the Supreme Court, of course, on a challenge to the amended provision of Section 22- A by the State of Rajasthan, had struck down the said provision on the ground that the word "Public Policy" was not defined and the essential function of the legislature to decide what is public policy cannot be delegated to the executive through subordinate legislation. In fact, a similar amended provision of Section 22- A by the State of Tamil Nadu was considered by a Division Bench in Captain Dr. R. Bellie v. Sub-Registrar, 2007 (3) CTC 513 [LQ/MadHC/2007/1366] : 2007 (3) MLJ 1025 [LQ/MadHC/2007/1366] , and on the same reason, the said Section was also struck down.

7. From the above judgments, all that w could read and understand is that in the absence of any guidelines defining what is "Public Policy" or documents which are "as opposed to Public Policy", the Courts had to declare Section 22- A as null and void. In our opinion, a reading of those judgments does not indicate that by the judgments it is also directed that a registration of a cancellation deed is permissible even in the absence of both the parties before the Registrar. The question as to whether such documents can be entertained should be considered in the light of the other provisions of the as well.

8. We may little bit elaborate on this. The Government of Tamil Nadu inserted Section 22- A to the Registration Act empowering the State Government by notification in the Tamil Nadu Government Gazette to declare the registration of any document or class of documents as opposed to Public Policy. In exercise of the said power, the Government issued G.O.Ms. No.150, Commercial Taxes Department, dated 22.9.2000, which needs the full extraction and is as follows:

"In exercise of the powers conferred by sub-section (1) of Section 22-A of the Registration Act, 1908 (Central Act 16 of 1908), the Governor of Tamil Nadu hereby declares the following documents as opposed to Public Policy, namely,

(1) Any instrument relating to :

(i) conveyance of properties belonging to the Government or the local bodies such as the Chennai Metropolitan Development Authority or Corporations, or Municipalities, or Town Panchayats or Panchayat Unions or Village Panchayats; or

(ii) Conveyance of properties belonging to any religious institution including temples, mutts or specific endowments managed by Hereditary Trustees/Non Hereditary Trustees appointed to any religious institutions under a Scheme settled or deemed to have been settled under the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) and mutts and temples including specific endowments attached to such of those temples managed by mutts; or

(iii) conveyance of properties assigned to or held by

(a) the Tamil Nadu State Bhoodan Yagna Board established under Section 3 of the Tamil Nadu Bhoodan Yagna Act, 1958 (Tamil Nadu Act 15 of 1958); or

(b) the Tamil Nadu Wakf Board.

Unless a sealed No Objection Certificate is issued by the competent authority as provided under the relevant Act or the rules framed thereunder for this purpose and in the absence of any such provisions in any relevant Act or the rules framed thereunder authority authorized by the Government to the effect that such registration is not in contravention of the provisions of the respective Act is produced before the Registering Officer.

(2) Conveyance of lands converted as house sites without the approved layouts unless a No Objection Certificate issued by the authority concerned of such local bodies namely, Corporation or Municipalities or Town Panchayats, Panchayat Unions, or Village Panchayats, or Chennai Metropolitan Development Authority is produced before the Registering Officer.

(3) Cancellation of sale deed without the express consent of the parties to the documents."

9. Section 17 of thedeals with documents where registration is compulsory and Section 18 deals with the documents where registration is optional. A reading of Section 17(b) shows that a deed of cancellation of sale falls within the purview of that Section, since such document declares no right and title of immovable property. As the said document is compulsorily registrable, some restrictions must be applied for cancellation of such document as well.

10. In this context, we may also refer to Section 32-A 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 thealso 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 34-A 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 Others, 2004 (2) CTC 374 (SC): 2004 (1) SCC 12 [LQ/SC/2003/1011] .

11. Much reliance was placed to the Full Bench judgment of Andhra Pradesh High Court in Yanala Malleshwari and Others v. Ananthula Sayamma and Others, 2007 (1) CTC 97 (F.B.)(A.P.), wherein it was held that the cancellation of agreement of sale unilaterally by one party to the agreement is valid. Pursuant to the judgment, the Government of Andhra Pradesh introduced Rule 26(k) to the Andhra Pradesh Registration Rules by means of amendment dated 29.11.2006, which reads as follows:

"(i) The Registering Officer shall ensure at the time of presentation for registration of cancellation deeds of previously registered deed of conveyance on sale before him that such cancellation deeds are executed by all executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing mutual 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 conveyance on sale before him if the cancellation deed is executed by a Civil Judges 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 registrable by any provision of law.

(ii) Save in the manner provided for above, no cancellation deed of a previously registered deed of conveyance on sale before him shall be accepted for presentation of registration."

12. The said Rule 26(k) was challenged before the Andhra Pradesh High Court in Kalitha Narasimha v. The State Government of A.P., Rep. by its Principal Secretary, W.P.No.3741/2007 by contending that the same is ultra vires of the provisions of the Registration Act, 1908 and is contrary to the judgment of the Full Bench in Yanala Malleshwari and Others case. The Division Bench of the Andhra Pradesh High Court, by order dated 13.3.2007, while upholding the said Rule, has held as follows:

"In our opinion, the impugned Rule does not in any manner violate the ratio of the majority judgment of the Full Bench. Rather, as mentioned above, it is a statutory embodiment of one of the rules of natural justice and is intended to certain unnecessary litigation emanating from the ex parte registration of cancellation deeds."

13. As indicated in the above judgment, the Principles of Natural Justice are also to be adhered to by the Registering Officer while dealing with a deed of cancellation of sale. If a unilateral cancellation deed is allowed to be registered, without the knowledge and consent of the other party to the earlier contract, as held by the Division Bench of the Andhra Pradesh High Court, such registration would cause violence to the Principles of Natural Justice and lead to unnecessary litigation emanating therefrom.

14. By the said Rule 26(k)(ii), it was directed that no cancellation deed of a previously registered deed of conveyance on sale before hind shall be accepted for presentation for registration.

15. That Rule was questioned before the Andhra Pradesh High Court in the case of Kalitha Narasimha v. The State Government of A.P., in W.P. No.3744 of 2007 and on the ground that the amendment was contrary to the judgment of the Full Bench in the case of Yanala Malleshwari and Others v. Ananthula Sayamma and Others, 2007 (1) CTC 97 (F.B.)(A.P.). By order dated 13.3.2007, the Division Bench of Andhra Pradesh High Court had upheld the said Rule and as on today, the Rule that prevails in Andhra Pradesh is that the cancellation deed of previously registered deed of conveyance on sale cannot be accepted for presentation by the Registrar unilaterally.

16. 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, 2009 (1) CTC 709 [LQ/MadHC/2009/511] : 2009 CIJ 243 Madras. 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.

17. Further, the Division Bench of this Court in Writ Appeal No.194 of 2009, by judgment dated 1.4.2009, had in fact set aside such a document of cancellation which was registered. The said judgment of the Division Bench was subsequently followed by another Division Bench in Writ Appeal No.789 of 2009 dated 23.6.2009. We are entirely in agreement with those Division Bench judgments.

18. Coming to the facts of this case, as already stated, the Writ Petition questioning the unilateral registration of the cancellation deeds was allowed on the ground that the registration has been done by the Registrar without notice to the purchaser. While setting aside the registration, the learned Single Judge gave liberty to the Registrar to proceed further with the registration after due notice to the writ petitioner, namely, the purchaser. However, the Review Application was allowed on the ground that the pendency of the Suit relating to the title and possession was not brought to the notice of the Court. The learned Judge had also relied upon the Full Bench judgment of the Andhra Pradesh High Court in Yanala Malleshwari and Others v. Ananthula Sayamma and Others, 2007 (1) CTC 97 (F.B.)(A.P.). In view of our finding that the said Full Bench judgment cannot be pressed into service for the reasons stated in this order and the pendency of the Suit does not preclude the Court from considering the authority of the Registrar to register the deeds of cancellation of the earlier deeds of conveyance on sale unilaterally, the order dated 10.9.2008 passed in the Writ Petition No.37686 of 2007 should alone be sustained. We also find that there was no error of law or any reason whatsoever for review of the said order and as a necessary corollary, the order in the Review Application should be set aside. We also make it clear that the pending Suit between the parties shall be dealt with on its own merits.

19. For the foregoing reasons, the Writ Appeal is allowed, the order dated 23.12.2008 passed in Review Application (W) No.109 of 2008 is set aside and consequently, the order dated 10.9.2008 passed in Writ Petition No.37686 of 2007 stands confirmed. There shall be no order as to costs.