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2012 DIGILAW 96 (CAL)

Anup Jain v. The Registrar Of Assurances, Kolkata

2012-01-27

JAYANTA KUMAR BISWAS

body2012
Judgment : The Court:-The petitioners in this WP under art.226 dated December 8, 2011 are questioning a decision of the Registrar of Assurances, Kolkata, dated September 15, 2011 (at p.77). The petitioners presented a document dated December 24, 2004 before the Additional Registrar of Assurances-II, Kolkata for registration under the Registration Act, 1908. It was claimed that the document was executed on December 24, 2004 by one Raj Kumar Bafna as the vendor of an immovable property and the petitioners as the purchasers thereof. Stating that since Bafna promising to appear before the registering officer did not turn up, though they were waiting for him in the office of the registering officer, the petitioners filed an application dated March 28, 2005 before the registering officer under s.36 of the Registration Act, 1908. They requested the officer to take steps for issuing summons requiring Bafna’s appearance at his office. Then alleging that no action was taken by the registering officer the petitioners moved a WP No.1871 of 2005 before this Court under art.226. By an order dated September 28, 2005 the registering officer was directed to decide the petitioners’ s.36 application. The decision has, however, been given by the Registrar of Assurances, Kolkata. The Registrar of Assurances has held as follows : ”Therefore, it is found that due observance of the statutory provisions in these regard have been made by the office of the Additional Registrar of Assurance-II, Kolkata. If in spite of that the parties did not appear before him for admission of their executant, the A.R.A.-II, Kolkata had no other options to procure the appearance of the absentee executants. So, this office is now defunct authority in respect of the document. Even if Shri Bafna is willing to get his execution admitted the registration procedure is exhausted as was provided in Section 72 & 75 of the Registration Act, 1908 and therefore, his remedy is now lying with a Civil Court under Section 77 of Registration Act, 1908.” The question is whether the above-noted situation made the Registrar of Assurances and the Additional Registrar of Assurances-II functus officio. Referring to and relying on ss.34 and 36 of the Registration Act, 1908 and r.52 of the West Bengal Registration Rules, 1962, Mr. Referring to and relying on ss.34 and 36 of the Registration Act, 1908 and r.52 of the West Bengal Registration Rules, 1962, Mr. Basu appearing for the petitioners has submitted that he is unable to see why the Registrar of Assurances thought that on the facts he and the registering officer were functus officio. Appearing for the State Mr. Dutta has submitted that the provisions of ss.34 and 36 of the Registration Act, 1908 and r.52 of the West Bengal Registration Rules, 1962 clearly show that on expiration of eight months from the date of execution of a document a registering officer or the Registrar, as the case may be, cannot pass any order concerning registration of the document. Mr. Bose appearing for Bafna, while adopting Mr. Basu’s submissions, has submitted that Bafna clearly admits execution of the document in question as the vendor of the property, and that Bafna is also ready and willing to explain the delay for his nonappearance before the Registrar and the registering officer. In view of the provisions of s.23 of the Registration Act, 1908 the petitioners were required to present the document in question to the registering officer for registration within four months from December 24, 2004 when it was executed. Before expiration of this four-month period the petitioners presented the document for registration and filed the s.36 application dated March 28, 2005. This created the registering officer’s statutory obligation under the proviso to sub-r.(1) of r.52 to report the matter to the Registrar for orders at the end of the four-month period. Before expiration of this four-month period the petitioners presented the document for registration and filed the s.36 application dated March 28, 2005. This created the registering officer’s statutory obligation under the proviso to sub-r.(1) of r.52 to report the matter to the Registrar for orders at the end of the four-month period. Sub-rule(1) of r.52 of rules is as follows: “(1) When a document has been presented to a Sub-Registrar for registration within the period prescribed by section 23, namely, four months from the date of its execution, and the executant fails to appear to admit execution within the period, the Sub-Registrar shall, immediately after the expiration of the said period, record a formal order of refusal to register, leaving it to the parties to appeal to the Registrar under section 72 within thirty days if they think proper: Provided that the Sub-Registrar shall not record such an order if the person presenting the document or claiming under it has, before the expiration of the said period, initiated proceedings under section 36 to procure the appearance of the executant, or under section 38 for his examination; but in that case the Sub-Registrar shall report the matter to the Registrar for orders at the end of the said period.” The registering officer did not take steps in the discharge of his statutory obligation. This Court passed the order dated September 28, 2005 asking him to act. It is because of the orders of Court that the Registrar ultimately gave the impugned decision dated September 15, 2011 disposing of the s.36 application. When in compliance with the order of this Court dated September 28, 2005 the registering officer was to report the filing of the s.36 application to the Registrar for order, the step, evidently, was not taken. It is when the matter was reported that the Registrar was to pass an order under r.52(3)(a) directing the registering officer to keep the document pending till disposal of the s.36 proceedings, but not for a period exceeding eight months form the date of execution of the document. Clause(a) of sub-r.(3) of rule 52 of the rules is as follows: “(a)the Registrar shall, on receipt of the Sub-Registrar’s report, direct the document to be kept pending till the disposal of the proceedings initiated under section 36 or section 38 but not for a period exceeding eight months from the date of execution. Clause(a) of sub-r.(3) of rule 52 of the rules is as follows: “(a)the Registrar shall, on receipt of the Sub-Registrar’s report, direct the document to be kept pending till the disposal of the proceedings initiated under section 36 or section 38 but not for a period exceeding eight months from the date of execution. If the executant refuses or neglects to appear on the legal service of the summons or when the Registering Officer or the Commissioner visits the executant’s residence, the Sub-Registrar shall refuse to register the document;” On the basis of the order of the Registrar, the registering officer was to take steps for issuing a summons requiring Bafna’s appearance at the registration office; and if Bafna appeared in response to the summons, then, in view of the provisions of r.52(3)(b), he was to call upon Bafna to submit an application to the Registrar for a direction under s.34(1) and to forward it, when received, to the Registrar with his remarks, if any, and to await orders. Clause(b) of sub-r.(3) of r.52 of the rules is as follows: “(b) if the executant appears on the service of the summons under section 36 or is examined under section 38 and admits execution, his admission shall be recorded and he shall be called upon to submit an application to the Registrar for a direction under the proviso to sub-section (1) of section 34, explaining the cause of the delay in his appearance. When such an application is received, the Sub-Registrar shall forward it to the Registrar with any remarks he may wish to make and await orders;” The question is whether a registering officer not disposing of a s.36 application within eight months from the date of execution of a document presented for registration, loses power to deal with the application after expiration of eight months from the date of execution of the document. Section 36 of the Act is as follows: “36. Procedure where appearance of executant or witness is desired. Section 36 of the Act is as follows: “36. Procedure where appearance of executant or witness is desired. – If any person presenting any document for registration or claiming under any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in his discretion, call upon such officer or Court as the State Government directs in this behalf to issue a summons requiring him to appear at the registration office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named therein.” The provisions of s.34 provide that persons executing the document must appear before the registering officer within four months, and that they may appear within an extended four-month period if the delay for this extended period is properly explained. It means that a registering officer can register a document within eight months from the date of execution thereof, if the delay in appearance within the initial four months is satisfactorily explained. Sub-section(1) of s.34 of the Act is as follows: “(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, or their representatives, assigns or agents authorized 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 on 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.” The provisions of s.36 entitle a party to a document to request the registering officer to issue summons requiring another party to the document to appear before him. The provisions of ss.34 and 36 of the Act and r.52 of the rules, in my opinion, do not suggest that for any delay on the part of the authority in discharging any statutory duty, the authority will lose power to proceed further with the matter of registration of the document or disposal of a s.36 proceeding initiated by a party to the document. The provisions deny the benefit of registration of a document to a party who is not sufficiently diligent and has decided to proceed according to his convenience. The provisions of s.34 do not say that even when the parties to a document take steps with in the periods mentioned therein, a registering officer, not deciding the matter within the periods, will lose the power to decide the matter after expiration of the periods. Section 36 only empowers the authority to take steps for the purpose of deciding the question of registration of a document under s.34. The provisions of r.52 make the thing clearer. A person initiating proceedings under s.36 and not at fault in any manner cannot be penalised for inaction on the part of the authority. A person summonsed is entitled to appear before the authority even on the day the period of eight months from the date of execution of the document expires. Such an event does not entitle the authority to withdraw his hands from the case. Even if the summonsed person does not appear, the registering officer cannot pass an order before expiry of eight months from the date of execution of the document. In both the cases he has to give his decision only after expiration of the period of eight months from the date of execution of the document. Hence it cannot be accepted that once the period of eight months expires the authority loses power to deal with the matter and give decision. If that is so, in that case the authority cannot even dispose of the proceedings under s.71 for directing a party to go to the Civil Court under s.77, - an unworkable interpretation. Hence it cannot be accepted that once the period of eight months expires the authority loses power to deal with the matter and give decision. If that is so, in that case the authority cannot even dispose of the proceedings under s.71 for directing a party to go to the Civil Court under s.77, - an unworkable interpretation. Once Bafna appearing in response to the summons admitted execution of the document in question in the capacity of vendor of the property, cl.(b) of sub-r.(3) of r.52 created an oboligation to call upon Bafna to submit an application to the Registrar for a direction under the proviso to sub-s.(1) of s.34 explaining the cause of delay in his appearance and to proceed further with the matter according to the provisions of r.52. I am, therefore, of the view that the Registrar of Assurances thinking himself defunct and referring the petitioners to the Civil Court under s.77 of the Registration Act, 1908 has committed an error of jurisdiction. For these reasons, I set aside the impugned order, allow the WP to this extent and order as follows. The registering officer shall proceed with the s.36 proceedings from the stage of cl.(b) of sub-r.(3) of r.52. The Registrar shall give final decision in the proceedings and serve it on all concerned within eight weeks from the date this order is served. No costs. Certified xerox.