Nilima Baishya And Ors vs The State Of Assam And Ors
- Court
- Gauhati High Court
Page No.# 1/37
GAHC010117352025
2026:GAU-AS:12237
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3111/2025
NILIMA BAISHYA AND ORS
W/O-LATE MANIK CHANDRA BAISHYA,
R/O- H.NO-73,
VIDYA MANDIR PATH,
BHETAPARA,
GUWAHATI-28,
KAMRUP METRO,
ASSAM
2: RAKESH BAISHYA
S/O-LATE MANIK CHANDRA BAISHYA
R/O- H.NO-73
VIDYA MANDIR PATH
BHETAPARA
GUWAHATI-28
KAMRUP METRO
ASSA
VERSUS
THE STATE OF ASSAM AND ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM,
REVENUE AND D.M DEPARTMENT
DISPUR, GUWAHATI-06.
2:THE DISTRICT COMMISSIONER
KAMRUP (M)
ASSAM
HENGRABARI
GUWAHATI-36
3:THE CO-DISTRICT COMMISSIONER
DISPUR
BASISTHA CHARIALI
Page No.# 2/37
P.S- BASISTHA
GUWAHATI-28
ASSAM
4:THE CIRCLE OFFICER
DISPUR REVENUE CIRCLE
DIST- KAMRUP (M)
ASSAM
GUWAHATI-78102
Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV, MR DEBA SARMAH,MS N
SHYAM,RAKESH CHETRY
Advocate for the Respondent : Mr. R. Borpujari, for R. No.1
Mr. B. Goswami, for R. Nos.2, 3 and 4.
Date on which judgment was reserved : 02.06.2026
Date of pronouncement of judgment : 26.08.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
-BEFORE-
THE HON’BLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT & ORDER (CAV)
Heard Mr. D. Sharma, learned counsel appearing for the Petitioners.
Also heard Mr. R. Borpujari, learned Standing Counsel, Revenue
Department representing Respondent No. 1 and Mr. B. Goswami,
learned Senior Counsel, Addl. Advocate General, Assam, assisted by
Mr. P. Kakati, learned counsel for State Respondent Nos. 2, 3 & 4.
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2. By filing the instant writ petition, the Petitioner has sought to
invoke the jurisdiction under Article 226 of the Constitution of India
assailing the order No. DCK (M)/CB/3/2024 dated 27.08.2024 passed
by the District Commissioner, Kamrup (M), whereby the Deputy
Commissioner, Kamrup (M) declared the registered Sale Deed
No.26169 dated 16.09.2022 as invalid and cancelled the mutation
granted in the name of the Petitioner No. 2. The Petitioners have also
assailed the order under Memo No.DCK (M)/CB/3/2024/653-A dated
17.12.2024 passed by the District Commissioner, Kamrup (M),
whereby, he dismissed the review petition filed by the Petitioners and
held that the Sale Deed did not mention any No Objection Certificate
(NOC) obtained from the Guwahati Metropolitan Development Agency
(for short, ‘GMDA’) but the NOC was regarding construction of a RCC
Building which did not suffice for the purpose of registration.
3. The facts leading to the filing of the instant writ petition are
summarized here under:
3.1. The Petitioner No. 1 owns and possesses a plot of land
measuring 3 Kathas covered by Dag No.2920 of K.P. Patta
No.1362 of village-Barsajai, Mouza-Beltola, Revenue Circle-
Dispur in the district of Kamrup (M), Assam. The Petitioner No.
1 allowed the Petitioner No. 2 to construct an RCC Building
therein with due permission of the GMDA and accordingly,
obtained NOC in the name of the Petitioner No. 2, i.e. Mr.
Rakesh Baishya. The Petitioner No. 1 got the ownership of the
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said plot of land by way of purchase, vide two sale deeds, i.e.
Sale Deed No. 8089 and Sale Deed No. 4919, executed on
07.09.1998. The Petitioner No. 1 is in possession of the
aforesaid land till date.
3.2. The Petitioner No. 2 being the son of the Petitioner No. 1,
both stays together and the Petitioner No. 2 has been taking
the responsibility of the Petitioner No. 1. Being satisfied with the
care of her youngest son, i.e. the Petitioner No. 2, the Petitioner
No. 1 applied for sale permission to sell a piece of land owned
and possessed by the Petitioner No. 1 as a reward for her
youngest son, i.e. the Petitioner No. 2. Considering the
application of the Petitioner No. 1 for sale permission, the Lat
Mandal of Dispur Revenue Circle visited and carried out the
verification process for sale permission determining the
Government sale value. Subsequently, the then District
Commissioner, Kamrup (M) and the Additional District
Commissioner, Kamrup (M) stopped the process of the NOC
considering the new amendment brought by the Government of
Assam in the Registration (Assam Amendment) Act, 2021, more
particularly, in Section 21A of the Registration (Assam
Amendment) Act, 2021, whereby, building permission alone is
sufficient to transfer a land with building, if building permission
was obtained from GMDA for construction of the building. The
Petitioners visited the office of the GMDA for seeking sale
permission from GMDA without having the NOC from the Office
of the District Commissioner. The officials of the GMDA verbally
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intimated that to apply for sale permission from GMDA, the NOC
from the office of the District Commissioner, Kamrup (M) is a
mandatory requirement as per the rules. Accordingly, the
Petitioners approached the Sr. Sub-Registrar, Guwahati who
consented for registration of the Sale Deed relying on the
Building Permission granted by GMDA in terms of Registration
(Assam Amendment) Act, 2021. For such registration, the
revenue to be paid by the Petitioners for a valid sale deed, was
fixed by the Sr. Sub-Registrar and the same was paid.
Accordingly, after due payment of the revenue, the Sale Deed
No. 21429 dated 16.09.2022 was registered for sale of land
from the Petitioner No. 1 to the Petitioner No. 2. After execution
of the Sale Deed, the Petitioner No. 2 applied for mutation of
the aforesaid land in his name, vide application dated
10.10.2022 which was allowed by the Circle Officer, Dispur,
Revenue Circle, vide order dated 10.11.2022. Accordingly, the
name of the Petitioner No. 2 has been recorded in the land
records and since then, the Petitioner No. 2 has been occupying
the land with due payment of land revenue to the Government
of Assam.
3.3. After passing of almost two years, the Petitioner No. 2
came to know that one person, namely, Ms. Suhasini Baishya,
i.e. the grand child of the Petitioner No. 1 filed an online
objection in the online land record portal against the said plot of
land. The Petitioner No. 2, accordingly, submitted an application
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for disposal and removal of the online objection submitted by
the aforesaid Ms. Suhasini Baishya. Thereafter, the Addl. District
Commissioner, Kamrup (M), vide letter No.KRM(M)/
Dis/73/2024/10 dated 03.07.2024 issued notices to both the
Petitioner No. 2 and the aforesaid person, Ms. Suhasini Baishya
and fixed the matter on 19.08.2024 for hearing. Accordingly,
the Addl. District Commissioner, Kamrup (M) after hearing the
submissions of the Petitioner No. 2, being satisfied that the land
has been sold by the Petitioner No. 1 as per due procedure of
law and the complainant who filed online application, i.e. Ms.
Suhasini Baishya has no right, title and interest over the said
plot of land, assured the Petitioners to dispose of and remove
the objection from the aforesaid land portal. The Petitioners
were surprised that the Addl. District Commissioner, Kamrup (M)
without any intimation, notice/summon or hearing to the
Petitioners, passed an order being Memo No. DCK
(M)/CB/3/2024 dated 27.08.2024, whereby, it declared the
Registered Sale Deed No. 21429 dated 16.09.2022 legally
unsustainable and thereby, declared invalid for registration and
transfer of ownership. The Petitioners came to know about the
aforesaid order dated 16.09.2022 only in the first week of
November, 2024 when the Petitioner No. 2 tried to apply for a
certified copy of Jamabandi of the aforesaid land. The
Petitioners through their counsel approached the District
Commissioner, Kamrup (M) who suggested them to file a review
petition to revoke his previous order and advised to apply for a
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re-mutation in the name of the Petitioner No. 2. As per his
advice, the Petitioners through their counsel, filed an application
for review of the order Memo No. DCK(M)/CB/3/2024 dated
27.08.2024 passed by the District Commissioner, Kamrup (M),
without having a copy of the order under Memo No.
DCK(M)/CB/3/2024 dated 27.08.2024. On receipt of the
application for review, the District Commissioner, Kamrup (M),
directed the Petitioners to be present at Circle Office on
17.11.2024. The Petitioners along with their counsel appeared
before the Committee, headed by the District Commissioner, Co-
District Commissioner, Circle Officer, Assistant Commissioner
etc. on 17.11.2024, wherein, the District Commissioner verbally
assured that the order passed earlier dated 27.08.2024 would
be revoked by him after enquiry. Subsequently, the District
Commissioner, Kamrup (M), vide order dated 17.12.2024,
dismissed the review petition filed by the Petitioners mainly on
the ground that while registering the Sale Deed, No Objection
Certificate from the Deputy Commissioner was not obtained by
the Petitioners. The Petitioners inspite of applying for the
certified copy of the order, vide Memo No. DCK (M)/CB/3/2024
dated 27.08.2024, passed by the District Commissioner, Kamrup
(M), vide their application dated 24.10.2024, the same has not
been received by the Petitioners till date and the same was
received only on 13.02.2025 from the Office of the Deputy
Commissioner, Kamrup (M).
3.4 Being aggrieved by the aforesaid two orders dated
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27.08.2024 and 17.12.2024 respectively passed by the Deputy
Commissioner, Kamrup (M), the Petitioners, have filed the
instant writ petition jointly praying for setting aside of the
aforesaid impugned orders dated 27.08.2024 and 17.12.2024
passed by the Deputy Commissioner, Kamrup (M), i.e. the
Respondent No. 2.
4. Mr. D. Sharma, learned counsel for the Petitioners submits that
the action of the Deputy Commissioner, Kamrup (M) in cancelling the
registration of the Sale Deed of the Petitioners is totally illegal, being
contrary to the settled position of law laid down by the Hon’ble
Supreme Court. He submits that the Sale Deed of the Petitioners has
been registered before the Senior Sub-Registrar, Guwahati, Kamrup
(M), in terms of the Registration (Assam Amendment) Act, 2021 and
once the registration has been duly completed by payment of the
requisite fees fixed by the Senior Sub-Registrar, Guwahati, Kamrup
(M), the same could not have been cancelled by the Deputy
Commissioner, Kamrup (M), without having any valid reason of
cancellation. He submits that during the hearing before the
Committee, all necessary facts and documents have been properly
placed before the Committee and in spite of having right, title and
possession of the aforesaid land belonging to the Petitioner No. 1,
who sold the land to the Petitioner No. 2, the Sale Deed has been
cancelled illegally.
5. The learned Counsel for the Petitioners submits that the reason
for cancellation provided in the order dated 17.12.2024 of the Deputy
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Commissioner is totally untenable. He submits that the reason given
by the Deputy Commissioner that while registering the Sale Deed, the
Petitioners did not obtain No Objection Certificate (In short, ‘NOC’)
issued from GMDA as per Section 32 of the GMDA Act, 1985 for
absolute sale of plot of land. Therefore, the Deputy Commissioner
opined that the Sale Deed may be treated as violative of Section 32
of the GMDA Act, 1985 due to absence of the required NOC. He
submits that before the amendment of the Registration (Assam
Amendment) Act, 2021, Section 21A of Registration (Assam
Amendment) Act, 2021 provides that no registration of Non-
testamentary Instruments without NOC. However, the Government of
Assam amended the aforesaid provisions of Section 21A as the
Registration (Assam Amendment) Act, 2021 by inserting between the
words "Immovable Property” and "shall" be the following: "except for
house, flat, residential apartment, commercial building or any
construction or structure erected on a plot of land". Therefore, he
submits that all permissions required under Section 21 (A) of the
Registration (Assam Amendment) Act, 2021 became no longer
required in terms of amendment provisions of Section 21 (A) as the
Registration (Assam Amendment) Act, 2021.
6. The learned Counsel for the Petitioners submits that while
passing the order dated 27.08.2024, the Deputy Commissioner,
Kamrup (M) ignored the amendment brought by the Government of
Assam in Section 21 (A) by the Registration (Assam Amendment) Act,
2021. He submits that in spite of amended provision of Section 21 (A)
of the Registration (Assam Amendment) Act, 2021, the District
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Commissioner arbitrary and illegally without application of mind. He
submits that for whatever reason, once the Sale Deed is registered
before the competent authority, i.e. the Senior Sub-Registrar,
Guwahati, the Deputy Commissioner, Kamrup (M) could not have
cancelled the registered Sale Deed as he does not possess any power
to cancel the same after the registration. He submits that after
registration of the Sale Deed, the Deputy Commissioner has become
functus officio and he does not have any power to cancel or set aside
the duly registered Sale Deed. He submits that a duly registered Sale
Deed can only be cancelled after following due process and procedure
by a Civil Court. He submits that such power is only vested with the
Civil Court and the Civil Court on an application by the aggrieved
party for cancellation of sale deed, may cancel a registered Sale Deed
after following the due process of laws. He submits that in many of
the cases, the Hon’ble Apex Court as well as various High Courts,
including the Hon’ble Gauhati High Court have observed and laid
down the principle that power for cancellation of registered Sale Deed
is vested only with the Civil Court and once a Sale Deed has been
registered by a competent registering authority, the same authority
does not retain any power under the Registration Act, 1908 to cancel
the Sale Deed. He submits that no such power of cancellation has
been provided in the Registration Act, 1908.
7. In support of his submission, the learned counsel appearing for
the Petitioners has referred to the following cases:-
(i) Satya Pal Anand-vs-State of M.P. & Ors ; reported in
2016 (10) SCC 767 ;
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(ii) Rattan Sing & Others-vs-Nirmal Gill & Others;
reported in 2021 0 AIR (SC) 899;
(iii) Asset of Reconstruction Company (India) Limited-
vs-S.P. Velayutham and Ors; reported in (2022) 8 SCC
210;
(iv) Dipak Kumar Choudhury-vs-State of Assam &
Others; reported in 2014 (2) GLT 821;
(v) Industrial Infrastructure Development Corporation
(Gwalior) Madhya Pradesh Limited-vs-Commissioner of
Income Tax, Gwalior, Madhya Pradesh; reported in
(2018) 4 SCC 494;
(vi) Government of Uttar Pradesh and Others-vs-Raja
Mohammad Amir Ahmad Khan ; reported in 1961 0
Supreme (SC) 59; and
(vii) Veena Singh (Dead) through Legal Representative-
vs-District Registrar/Additional Collector (F/R) and
Another; reported in (2022) 7 SCC 1.
8. Per contra, Mr. B. Goswami, learned Addl. Advocate General,
Assam appearing for the State Respondent Nos. 2, 3 & 4 submits that
there was no error or mistake committed by the District
Commissioner, Kamrup (M) in cancelling the Sale Deed of the
Petitioners. He submits that after due enquiry and after hearing the
parties, the Sale Deed was cancelled by the Deputy Commissioner,
Kamrup (M) as while registering the Sale Deed, the statutory
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mandates under the Registration (Assam Amendment) Act, 2021 was
not complied with. He submits that there was a specific complaint
received from the granddaughter of the Petitioner No. 1 with certain
allegations of fraud being committed by the Petitioner No. 2 and
thereby induced the Petitioner No. 1 to sell the aforesaid plot of land
to the Petitioner No. 2. He submits that after an enquiry conducted by
the Deputy Commissioner, Kamrup (M) on receipt of the aforesaid
complaint, the Deputy Commissioner, Kamrup (M) has rightly
cancelled the Sale Deed of the Petitioners.
9. Mr. R. Borpujari, the learned Standing Counsel, GMDA,
representing the Respondent No. 1 submits that there is no infirmity
in the orders dated 27.08.2024 and 27.12.2024 respectively passed by
the Deputy Commissioner, Kamrup (M) in cancelling the registered
Sale Deed of the Petitioners. He submits that after due enquiry and in
terms of the power vested in the District Commissioner, Kamrup (M)
after having found that the Sale Deed was registered without
mandatory NOC from the Deputy Commissioner, Kamrup (M), the
same was cancelled him. He submits that though there is no specific
provision available in the Registration Act, 1908, the cancellation can
be done under the provisions of Section 21 of the General Clauses
Act, 1897 which is pari materia to Section 23 of the Assam General
Clauses Act, 1915. He submits that in terms of the provisions of
Section 23 of the Assam General Clauses Act, 1915, the Deputy
Commissioner has the authority to cancel a registered Sale Deed, if
the same is found to be obtained by not following the procedure laid
down in the Registration (Assam Amendment) Act, 2021. He further
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submits that as per Section 32 of the GMDA Act, 1972 which is still
holding the field whenever a deed relating to transfer of any
immovable property (land) within the Guwahati Metropolitan area,
such deed can be registered only after obtaining NOC from the
GMDA. He submits that in the instant case, no such NOC was either
issued by the GMDA or by the Deputy Commissioner, Kamrup (M) in
the instant case.
10. By referring to the case of Purbattar Yduog Handicraft Co-
operative Societies Ltd . -vs-State of Assam and Others [WP
(C) 2321/2014], decided by the Hon’ble Gauhati High Court, he
submits that the Deputy Commissioner is having jurisdiction to pass
the aforesaid impugned orders due to the fact that such powers are
vested on him in terms of Section 23 of Assam General Clauses Act,
1915 which is pari materia to Section 21 of the General Clauses Act,
1897 which provides that where, by any act “a power to make or
issue notifications, orders, schemes, rules, forms or by laws is
conferred than that power includes a power exercisable in the like
manner and subject to the like sanction and conditions (if any) to add
to, vary or rescind any notification, orders, schemes, rules, forms or
bye-laws so made".
11. In support of his arguments, he has referred to another case of
the of the Hon’ble Gauhati High Court decided by a Full Bench in the
case of Atowar Rahman-vs-State of Assam and Six Others [IA
(Civil) 1550/2018] , wherein, in a similar situation, the Full Bench
of the Hon'ble Gauhati High Court held that an order of cancellation
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of Certificate of Registration (In short, ‘CoR’) that had been granted
under Section 3 of the Societies Registration Act, 1860 is an order
within the meaning of "orders" under Section 21 of General Clauses
Act, 1897 and that of Section 23 of the Assam General Clauses Act,
1915, therefore, an order of cancellation of CoR by the Registrar of
Societies is neither a legislative nor a quasi-judicial order but purely
an administrative order and therefore, a society registered by the
Registrar of Firms and Societies under the Societies Registration Act,
1860 can be cancelled by a Registrar after affording opportunity of
hearing to the party who may be affected. He submits that in view of
the observation of the Hon’ble Gauhati High Court (Full Bench), in the
instant case also, the same principle will apply and the same will
provide sufficient power and jurisdiction to the Deputy Commissioner,
Kamrup (M), to cancel the registered Sale Deed. He submits that due
to the aforesaid powers under Section 23 of the Assam General
Clauses Act, 1915, the registering authority, in the instant case, the
then Deputy Commissioner cannot be said to have become functus
officio and he still retains the power of cancellation of the registered
Sale Deed. Accordingly, he prays that the instant writ petition being
without any merit may be dismissed.
12. As per the Registration Act, 1908, non-testamentary instruments
purported to create, declare, sign, limit or extinguish, whether in
present form or future any right, title or interest, whether vested or
contingent of value of Rs.100 and upwards to or in immovable
property. Section 17 of the Registration Act, 1908 requires
mandatory registration for such non-testamentary instrument. Sale
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Deed for immovable property requires registration and the same can
be done as per the provisions of Section 32 of the Act, 1908. Section
32 being relevant is extracted hereinbelow:-
“
32. Persons to present documents for registration.
(Except 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 assign of such a person; or
(c) by the agent of such a person, representative or
assign, duly authorized by power-of-attorney executed
and authenticated in manner hereinafter mentioned”.
13. Section 34 of the Registration Act, 1908 provides for an
enquiry before registering a document by the Registering Officer.
Section 35 provides for procedure for admission or denial of
execution respectively and Section 36 provides for procedure where
appearance of executants or witness is desired.
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14. The aforesaid provisions provide for the procedure of
registration of a document before the competent Registrar. It is a
settled position that the provisions of Registration Act, 1908 do not
confer the Registrar with the power to cancel a document which has
already been registered. Even, in cases of fraud or forgery, the
Registration Act, 1908 does not confer such a power on the Registrar
to cancel a registered document, though, under the scheme of
Registration Act, 1908, the Registrar has a power to refuse the
registration of a deed under different provisions of the Registration
Act, 1908 but that does not extend to cancellation of the registration.
Therefore, the scope of enquiry or scrutiny by the Registering
Authority is typically confined to pre-registration stage and not after
the document is executed and registered.
15. The only power that has been provided under Section 83 of
the Registration Act, 1908 to the Registrar, in cases of furnishing false
statements, delivering false copies, false personation by the executant
is to initiate criminal prosecution against the person concerned. The
basic question that has to be considered in the instant writ petition is
that once the Sale Deed has been duly registered by the Senior Sub-
Registrar, Guwahati, Kamrup (M) whether the same could have been
cancelled by the Deputy Commissioner, Kamrup (M), Guwahati for the
reason that while registering the Sale Deed, the Petitioners did not
submit the required NOC from the GMDA. Though, there have been
detailed submissions made by the counsel appearing for the
Petitioners as well as the learned counsel appearing for Respondent
No. 1 regarding procedural aspects of procuring the NOC from the
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GMDA and that the provisions which mandated that such certificate
from the GMDA is necessary, under the Registration (Assam
Amendment) Act, 2021, those aspects may not be required to be
considered in the instant writ petition and this is due to the fact that
the issues involved herein is of the power and jurisdiction of the
registering authority to cancel the registration, once it has been
registered.
16. The Hon’ble Apex Court in the case of Satya Pal Anand-vs-
State of Madhya Pradesh and Ors; reported in (2016) 10 SCC
767 has held as follows:-
“ 40. The Andhra Pradesh High Court, in Yanala
Malleshwar (supra) was called upon to consider 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. The fact remains that if
the stipulation contained in Sections 17 and 18 of the
1908 Act are fulfilled, the Registering Officer is bound to
register the document. The Registering Officer can refuse
to register a document only in situations mentioned in
sections such as Sections 19 to 22, 32 and 35. At the
same time, once the document is registered, it is not
open to the Registering Officer to cancel that registration
even if his attention is invited to some irregularity
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committed during the registration of the document. The
aggrieved party can challenge the registration and validity
of the document before the civil court. The majority view
of the Full Bench was that if a person is aggrieved by the
extinguishment deed or its registration, his remedy is to
seek appropriate relief in the civil court and a writ petition
is not the proper remedy.
41. Section 35 of the Act does not confer a quasi-judicial
power on the Registering Authority. The Registering
Officer is expected to reassure that the document to be
registered is accompanied by supporting documents. He
is not expected to evaluate the title or irregularity in the
document as such. The examination to be done by him is
incidental, to ascertain that there is no violation of
provisions of the 1908 Act. In Park View Enterprises, it
has been observed that the function of the Registering
Officer is purely administrative and not quasi-judicial. He
cannot decide as to whether a document presented for
registration is executed by person having title, as
mentioned in the instrument. We agree with that
exposition.
42. In absence of any express provision in the 1908 Act
mandating the presence of the other party to the
extinguishment deed at the time of presentation for
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registration, by no stretch of imagination, such a
requirement can be considered as mandatory. The
decision in Thota Ganga Laxmi is with reference to an
express provision contained in the Andhra Pradesh Rules
in that behalf. That Rule was framed by the State of
Andhra Pradesh after the decision of Full Bench of the
High Court. Therefore, the dictum in this decision cannot
have universal application to all the States (other than the
State of Andhra Pradesh). It is apposite to reproduce
paras 4 and 5 of the said judgment which read thus:
(Thota Ganga Laxmi case, SCC pp. 208-09).
“ 4. 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 subsequently get
the 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
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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 as
follows:
“
26 (k) (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
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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.”
17. After discussing the issues, the Hon’ble Apex Court in the
aforesaid case of Satya Pal Anand (Supra) , at Paragraph-46 has
observed as follows:
“ 46. In our considered view, the decision in Thota Ganga
Laxmi was dealing with an express provision, as
applicable to the State of Andhra Pradesh and in
particular with regard to the registration of an
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extinguishment deed. In absence of such an express
provision, in other State legislations, the Registering
Officer would be governed by the provisions in the 1908
Act. Going by the said provisions, there is nothing to
indicate that the Registering Officer is required to
undertake a quasi-judicial enquiry regarding the veracity
of the factual position stated in the document presented
for registration or its legality, if the tenor of the document
suggests that it requires to be registered. The validity of
such registered document can, indeed, be put in issue
before a court of competent jurisdiction”.
18. In terms of Section 48 of the Registration Act, 1908, a title
passes in a property on the registration of the deed of conveyance.
Therefore, since the right & title of a property is transferred by way of
a deed of conveyance or a sale deed, the cancellation of registration
of such deed of conveyance or a sale deed, therefore, will have major
legal consequences affecting the right and title which had already
been passed on its registration. Now, whether such a registration was
valid or invalid due to certain reasons is an issue which is definitely
triable only in a Civil Court or criminal proceeding before a competent
jurisdiction. The complex questions of transfer of right and title can
only be examined in a Civil Court if the title of execution of such deed
of conveyance or sale deed is disputed. The same cannot be decided
by a Registrar and the same can be decided only after proper trial by
a Civil Court.
Page No.# 23/37
19. Similarly, in the case of Asset of Reconstruction Company
(India) Limited (supra), the Hon’ble Apex Court while discussing
the above requirement of registration, steps of registration and
cancellation of registration, the followings have been observed:-
“ 53. Actually, the registration of a document comprises of
three essential steps among others. They are:
(i) execution of the document, by the executant signing
or affixing his left hand thumb impressions;
(ii) presenting the document for registration and
admitting to the registering authority the execution of
such document; and
(iii) the act of registration of the document.
54. In cases where a suit for title is filed, with or without
the relief of declaration that the registered document is
null and void, what gets challenged, is a combination of
all the aforesaid three steps in the process of execution
and registration. The first of the aforesaid three steps
may be challenged in a suit for declaration that the
registered document is null and void, either on the d
ground that the executant did not have a valid title to
pass on or on the ground that what was found in the
document was not the signature of the executant or on
the ground that the signature of the executant was
obtained by fraud, coercion, etc. The second step of
Page No.# 24/37
presentation of the document and admitting the execution
of the same, may also be challenged on the very same
grounds hereinabove stated. Such objections to the first
and second of the aforesaid three steps are substantial
and they strike at the very root of creation of the
document. A challenge to the very execution of a
document, is a challenge to its very DNA and any defect
or illegality on the execution, is congenital in nature.
Therefore, such a challenge, by its very nature, has to be
made only before the civil court and certainly not before
the writ court.
55. The third step, namely, the act of registration, is
something that the registering authority is called upon to
do statutorily. While the executant of the document and
the person claiming under the document (claimant) are
the only actors involved in the first two steps, the
registering officer is the actor in the third step. Apart from
the third step which is wholly in the domain of the
registering authority, he may also have a role to play in
the second step when a document is presented for
registration and the execution thereof is admitted. The
role that is assigned to the Registrar in the second step is
that of verification of the identity of the person presenting
the document for registration.
56. Thus, the first two steps in the process of registration
Page No.# 25/37
are substantial in nature, with the parties to the
document playing the role of the lead actors and the
registering authority playing a guest role in the second
step. The third step is procedural in nature where the
registering authority is the lead actor.
57. In suits for declaration of title and/or suits for
declaration that a registered document is null and void, all
the aforesaid three steps which comprise the entire
process of execution and registration come under
challenge. a If a party questions the very execution of a
document or the right and title of a person to execute a
document and present it for registration, his remedy will
only be to go to the civil court. But where a party
questions only the failure of the registering authority to
perform his statutory duties in the course of the third
step, it cannot be said that the jurisdiction of the High
Court under Article 226 stands completely ousted. This is
for the reason that the writ jurisdiction of b the High
Court is to ensure that statutory authorities perform their
duties within the bounds of law”.
20. In the case of Veena Singh(Dead) (Supra) , the Hon’ble Apex
Court while discussing the power of a Registrar viz-a-viz in a matter of
execution of document is denied, held as follows:-
“ 20.3 A document, once it is registered, can be cancelled
Page No.# 26/37
or set aside only by a civil court of competent jurisdiction.
Upon the registration of the sale deed on 16-4-2012, the
registration authorities are rendered infructuous and
would have no power to cancel registration even on the
ground of fraud or other irregularities.
.............
88. Having held that the writ petition before the High
Court was not maintainable for the above reasons, this
Court also observed that the role of the Sub-Registrar
stood discharged once the document had been registered,
since there is no express provision in the Registration Act
which empowers him to recall the registration. This Court
held: (Satya Pal Anand case, SCC p. 792, para 34)
34. The role of the Sub-Registrar (Registration)
stands discharged, once the document is registered
42
(see Mohd. Amir Ahmad Khan ). There is no
express provision in the 1908 Act which empowers
the Registrar to recall such registration. The fact
whether the document was properly presented for
registration cannot be reopened by the Registrar
after its registration. The power to cancel the
registration is a substantive matter. In absence of
any express provision in that behalf, it is not open
Page No.# 27/37
to assume that the Sub-Registrar (Registration)
would be competent to cancel the registration of
the documents in question. Similarly, the power of
the Inspector General is limited to do
superintendence of Registration Offices and make
rules in that behalf. Even the Inspector General has
no power to cancel the registration of any document
which has already been registered.
89. This Court in Satya Pal Anand case observed that
Section 35 of the Registration Act does not confer a
quasi-judicial power on the registering officer, who is not
expected to evaluate title or irregularity in the document.
As such, the validity of the registered deed of
extinguishment could be placed in issue only before a
court of competent jurisdiction. On the above facts, this
Court upheld the dismissal of the writ petition by the High
Court, with an opportunity being granted to the appellant
to pursue a remedy in accordance with law. Therefore,
the decision in Satya Pal Anand has held that once a deed
of extinguishment had been registered by the registering
officer, the registering officer had no power to recall it nor
was it amenable to the supervisory control of the
Inspector General of Registration under Section 69 of the
Registration Act."
21. From the above observations of the Hon’ble Apex Court in the
Page No.# 28/37
cases mentioned above, it is crystal clear that a registration of a sale
deed once completed by its due execution, the same cannot be
cancelled under the Registration Act, 1908 by the Sub-Registrar or
the Registrar as the case may be. There is no provision contained in
the Registration Act, 1908 which provides for any such power of
cancellation expressly or impliedly. Section 17 of the Registration
Act, 1908 mandates that a sale deed by which immovable property is
transferred has to be registered before the competent Sub-Registrar
or Registrar. So, the duty casted upon the Sub-Registrar or the
Registrar is only to the extent of registration of a sale deed after
following the procedures laid down in Sections 32, 34, 35 & 36 of the
Act of 1908. Post registration of the deed, the Registrar has not been
given any power to reopen the deed for any kind of enquiry, whether
on the basis of any complaint or on the basis of any information
received about the validity of the deed.
22. Another aspect which is required to be considered is the position
of the Sub-Registrar or the Registrar after registration of the deed.
The Hon’ble Apex Court in a string of cases, have held that once the
registration is concluded, the Sub-Registrar or the Registrar becomes
functus officio, meaning, thereby, no further action is expected from
the Sub-Registrar or the Registrar in respect of the execution of the
deed. In this connection, the case of the Government of Uttar
Pradesh and Others-vs-Raja Mohammad Amir Ahmad Khan ;
reported in 1961 0 Supreme (SC) 59 being relevant, observations
of the Hon’ble Apex Court at paragraph No. 7 are extracted
hereinbelow:-
Page No.# 29/37
“ 7. Our attention was drawn to the observations of Rankin
C. J. in Re Cook and Kelvey, ILR 59 Cal 1171: (AIR 1932
Cal 736) but those observations are obiter as the High
Court held that the reference under Section 57 of the
Stamp Act was incompetent. The doctrine of functus
officio was applied in several cases: Collector,
Ahmednagar v. Rambhau Tukaram, AIR 1930 Bom 392. In
that case a certificate of sale had been signed but the
certificate was not duly stamped which was pointed out
when it was sent to the Sub-Registrar for registration. The
Sub-Registrar informed the Judge about it and the Judge
got back the certificate from the purchaser and thinking
that he had power to impound the document and to
impose a penalty asked for the opinion of the High Court
and it was held that after he had signed it he was functus
officio and could not act any further and could not
impound it. The same principle was laid down in Paiku
Kashinath v. Gaya Motiram, ILR (1948) Nag 950 & in
Panakala Rao v. Kumaraswami AIR 1937 Mad 763 and in
our opinion as soon as the Collector determined the duty
he became functus officio and he could not impound the
instrument under Section 33 and consequential
proceedings could not, therefore, be taken."
23. From the above position of law settled by the Hon’ble Apex
Court, it is clear that once the sale deed is registered by the Sub-
Page No.# 30/37
Registrar or the Registrar, the Sub-Registrar or the Registrar becomes
functus officio and he/she does not have any power, thereafter, to
cancel or rescind the registration of the deed. Though the law is
settled as such, an argument has been made on behalf of the
Respondent No. 1 that the Registrar or the Sub-Registrar may have
the power under the General Clauses Act, 1897 reading with Assam
General Clauses Act, 1915.
24. The learned counsel appearing for Respondent No. 1 has
submitted that in terms of Section 21 of the General Clauses Act,
1897 which is pari materia to Section 23 of Assam General Clauses
Act, 1915, the Registrar has the power to revoke or cancel the
registration of a sale deed though the aforesaid power is not
specifically provided under the Registration Act, 1908.
25. To appreciate and consider the argument raised by the learned
counsel for Respondent No. 1 that since power of registration is
vested upon the Sub-Registrar or the Registrar, the power of
cancellation, in view of Section 21 of the General Clauses Act, 1897
which is pari materia to Section 23 of the Assam General Clauses Act,
1915, is also there with Sub-Registrar or the Registrar, it may be
relevant to extract the relevant provisions, which read as under:
The General Clauses Act, 1897
“ 21. Power to issue, to include, power to add to, amend,
vary or rescind notifications, order, rules or by-law, where,
by any Central Act or regulations, a power to (issue
Page No.# 31/37
notifications) orders, rules or by-laws is conferred than
the power includes a power exercisable in the like
manner and subject to the like sanction and condition (if
any), to add to, amend, vary or rescind any notification
orders, rules or by-laws (so issued)”.
The Assam General Clauses Act, 1915
“
23. Power to make to include, power to add to, vary or
rescind order, rules or by-laws, where, by any act, a
power to make or issue notifications, order, schemes,
rules or by-law is conferred than that power includes
power exercisable in the like manner and subject to the
like sanction (if any), to add to, amend, vary or rescind
any notification, orders, schemes, rules, forms or by-laws
so made”.
26. The scope of exercise of power under Section 21 has been
discussed in details in the case of Shree Sidhbali Steels Ltd and
Others-vs-State of Uttar Pradesh and Others ; reported in
(2011) 3 SCC 193 , wherein, the Hon’ble Apex Court held as
follows:-
“ 38. Section 21 is based on the principle that power to
create includes the power to destroy and also the power
to alter what is created. Section 21, amongst other
things, specifically deals with power to add to, amend,
Page No.# 32/37
vary or rescind the notifications. The power to rescind a
notification is inherent in the power to issue the
notification without any limitations or conditions. Section
21 embodies a rule of construction. The nature and
extent of its application must be governed by the relevant
statute which confers the power to issue the notification,
etc. However, there is no manner of doubt that the
exercise of power to make subordinate legislation includes
the power to rescind the same. This is made clear by
Section 21. On that analogy an administrative decision is
revocable while a judicial decision is not revocable except
in special circumstances. The Exercise of power of a
subordinate legislation will be prospective and cannot be
retrospective unless the statute authorizes such an
exercise expressly or by necessary implication”.
27. Similarly, in the case of Industrial Infrastructure
Development Corporation (Guwalior) Madhya Pradesh
Limited-vs-Commissioner of Income Tax, Gwalior, Madhya
Pradesh ; reported in (2018) 4 SCC 494, the Hon’ble Apex Court
held as follows:-
“ 21. The general power, under Section 21 of the General
Clauses Act, to rescind a notification or order has to be
understood in the light of the subject-matter, context and
the effect of the relevant provisions of the statute under
which the notification or order is issued and the power is
Page No.# 33/37
not available after an enforceable right has accrued under
the notification or order. Moreover, Section 21 has no
application to vary or amend or review a quasi-judicial
order. A quasi-judicial order can be generally varied or
reviewed when obtained by fraud or when such power is
conferred by the Act or Rules under which it is made.
(Sec Interpretation of Statutes, Ninth Edn., by G.P. Singh,
p. 893.)”.
28. From the above, it is seen that Section 21 of the General
Clauses Act, 1897 cannot be invoked to annul a quasi judicial order
that too where an infrangible right has accrued in favour of the
respective parties. In the instant case, as discussed above, the title in
the property is transferred from the date of the registration of the
Sale Deed. Such indefeasible legal rights flowing from a registered
instrument cannot be taken away without any statutory basis only by
taking recourse to Section 21 .
29. The learned Standing Counsel for the Respondent No. 1 has
heavily relied on the case of Atowar Rahman (Supra) to support
his argument that if the statute specifically does not provide any
power of cancellation of registration of a deed and since the Sub-
Registrar or the Registrar is vested with the power of registration, the
power of cancellation also has to be vested on the Sub-Registrar or
the Registrar in terms of Section 21 of the General Clauses Act,
1897 which is pari materia to the Assam General Clauses Act, 1915.
30. On a careful perusal of the case of Atowar Rahman (supra) ,
Page No.# 34/37
it is seen that the case relates to Societies Registration Act, 1860
under which a certificate of registration is issued by the Registrar of
Firms and Societies, Assam. In the aforesaid case, the Full Bench of
Hon’ble Gauhati High Court has held as follows:-
“ 15. The certificate of registration under section 3 of the
Act is issued in the form of an order whereby the
Registrar certifies under his hand a society to be a
registered society and authorises the validity of such
registration to a time-bound period, with provision for
extension. The form and contents of the certificate brings
it within the meaning of "orders" under section 21 of the
General Clauses Act. Therefore, in the absence of
provision for cancellation of certificate under the Societies
Registration Act and such certificate being in the nature of
an order issued by the statutory authority i.e. the
Registrar of Societies, the application of section 21 of the
General Clauses Act is clearly available to the Registrar to
add to, vary or rescind the certificate”.
Accordingly, the Hon’ble Full Bench summed up at Para-17 , as
follows:-
“ (i) an order of cancellation of certificate of registration
(CoR) that had been granted under section 3 of the
Societies Registration Act, 1860, is an order within the
meaning of "orders" under section 21 of the General
Page No.# 35/37
Clauses Act, 1897 and that of section 23 of the Assam
General Clauses Act, 1915.
(ii) an order of cancellation of certificate of registration
(CoR) by the Registrar of Societies is neither a legislative
nor a quasi-judicial order but purely an administrative
order.
(iii) an order of the Registrar of Societies cancelling a
certificate of registration on a complaint and after giving
opportunity of hearing to the contending parties, is an act
of expediency and not a quasi-judicial act dictated by
rules.
(iv) the provision of section 21 of the General Clauses Act
and/or section 23 of the Assam General Clauses Act, in
the absence of an express power of cancellation of
certificate of registration (CoR) under the Societies
Registration Act, is available empowering the Registrar to
order cancellation, as above”.
31. In view of the aforesaid observations, it is seen that the Hon’ble
Full Bench has held that the act of issuance of certificate of
registration under Section 3 which is issued in the form of an order
is an “order” under Section 21 of the General Clauses Act, 1897.
However, in the instant case, the issues relates to registration of a
sale deed by Sub-Registrar or the Registrar under the Registration
Page No.# 36/37
Act, 1908.
32. As discussed above, from the provisions of Section 32, 34, 35
and 36 of the Registration Act, 1908, the Sub-Registrar or the
Registrar, as applicable, is not required to pass any order rather it is
required only to register the sale deed. Therefore, there is actually no
order is passed by a Sub-Registrar or Registrar while registering the
sale deed under the Registration Act, 1908. Therefore, it is the
considered view of this Court that the ratio laid down by the Hon’ble
Full Bench in the aforesaid case is typical to the facts and
circumstances and procedure followed under the concerned law, i.e.
Societies Registration Act, which is not applicable to the instant case.
33. From the above discussions, it is seen that the Hon’ble Apex
Court in the abovementioned cases, have already clearly settled the
law that a sale deed once registered by competent authority, i.e. the
Sub-Registrar or the Registrar, the same cannot be cancelled by the
Sub-Registrar or the Registrar. A cancellation of a registered sale deed
can only be done by way of filing a suit for cancellation before the
Civil Court. Therefore, in the case in hand, wherein, a registration has
been duly concluded and rights of immovable properties have already
been accrued to the Petitioner No. 2, the cancellation by the Deputy
Commissioner, Kamrup (M), vide its order dated 27.08.2024 and
17.12.2024 (Review Order) cannot be sustained under the settled
position of law. Accordingly, the impugned orders, dated 27.08.2024
and 17.12.2024 (Review Order) passed by the Deputy Commissioner,
Kamrup (M), Respondent No. 2 are set aside and quashed.
Page No.# 37/37
34. The interim order dated 10.06.2025 shall merge with the instant
judgment and order.
35. In terms of the aforesaid, the instant writ petition is disposed of,
as allowed.
36. No order as to cost(s).
JUDGE
Comparing Assistant