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2019 DIGILAW 1785 (ALL)

Amrawati v. Registrar/Apar Collector Pratapgarh

2019-07-25

SUDHIR AGARWAL

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JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri P.V. Chaudhary, Advocate, for petitioner, learned Standing Counsel for respondents-1 and 4 and Sri R.S. Tripathi, Advocate, for respondent-2. 2. The writ petition is directed against the order dated 25.05.2006 passed by Additional Collector, Pratapgarh in purported exercise of power under Section 72/73 of Registration Act, 1908 (hereinafter referred to as "Act, 1908") directing Sub-Registrar, Kunda, District Pratapgarh to register sale-deed dated 29.07.1988 said to have been executed by Sri Onkar Nath in favour of respondent-2. 3. It is contended that in case of refusal of registration by Sub-Registrar, appeal lies under Section 72 of Act, 1908 and limitation provided therein is only 30 days. In the present case, admittedly appeal was filed beyond the period of 30 days and for condonation of delay, an application under Section 5 of Indian Limitation Act, 1963 (hereinafter referred to as "Act, 1963") was also filed. Registrar condoned delay and thereafter passed order directing Sub-Registrar to register the document. Contention is that Registrar, while exercising appellate power under Section 72 of Act, 1908, is not a Court and, therefore, provisions of Act, 1963 are not applicable and, therefore, impugned order is patently without jurisdiction. 4. Learned counsel appearing for respondent-2, while not disputing the exposition of law that Registrar in exercise of power under Section 72 is not a Court and, therefore, Act, 1963 is not applicable, submitted that in the facts and circumstances of the case, this Court under Article 226 should not interfere with the impugned order since substantial justice has been done. It is submitted that document was actually executed by one Onkar Nath, father of respondent-3, in favour of respondent-2 but Sub-Registrar committed illegality by deferring the registration and kept the documents with him. Thereafter he met an accident and when resumed duty, returned the document and thereafter appeal was filed. Therefore, in the peculiar facts and circumstances, Registrar condoned delay and decided appeal. Pursuant thereto document has already been registered, therefore, it is not a fit case wherein this Court should interfere. 5. The two questions up for consideration are "whether Registrar could have entertained appeal preferred after expiry of period of limitation" and "whether condonation of delay under Section 5 of Act, 1963 was permissible." 6. Pursuant thereto document has already been registered, therefore, it is not a fit case wherein this Court should interfere. 5. The two questions up for consideration are "whether Registrar could have entertained appeal preferred after expiry of period of limitation" and "whether condonation of delay under Section 5 of Act, 1963 was permissible." 6. There are catena of decisions where it has been held in respect of proceedings before Tribunals/quasi judicial bodies (where Act, 1963 is not applicable since it is applicable to the Courts) that if the Statute concerned has not made Act, 1963 applicable, provisions thereof cannot be applied to such proceedings. 7. In Mohd. Ashfaq Vs. State Transport Appellate Tribunal UP and others, 1976 4 SCC 330 Court considered a similar provision which required filing of renewal application within fifteen days which could be extended but not beyond 15 days. Court held that Section 5 of the Act, 1963 is not applicable since the matter was covered by Section 58 (2) and (3) of Motor Vehicles Act 1939. It further held, if the application for renewal is beyond time by more than fifteen days, the authority shall not be entitled to entertain it or in other words, it shall have no power to condone delay. There being express provision for making application for renewal condonable only if it is not more than 15 days, the provision expressly excludes not only power of condonation of delay under section 5 but being special enactment, the said period, even otherwise, cannot be extended. Court held that the provision may look harsh, but in the scheme of the Statute, legislature has provided the same and it should not be disturbed by the Court. 8. In Sushila Devi Vs. Ramanandan Prasad and others, 1976 AIR(SC) 177, Court said that provisions of Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or Executive Authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Code of Civil Procedure. 9. In Nityananda M. Joshi Vs. Life Insurance Corporation of India, 1970 AIR(SC) 209 Court held that in view of Section 4 and 5 of Act, 1963 it would be clear that under the scheme it only deals with applications to courts. 9. In Nityananda M. Joshi Vs. Life Insurance Corporation of India, 1970 AIR(SC) 209 Court held that in view of Section 4 and 5 of Act, 1963 it would be clear that under the scheme it only deals with applications to courts. The "Labour Court" is not a "Court" within the meaning of the Act, 1963 and, therefore, an application under Section 33C(2) of Industrial Disputes Act, 1947 cannot be held barred under Article 137 of Act, 1963 on the plea that claim was for a period beyond three years. 10. In L.S. Synthetics Ltd. Vs. Fairgrowth Financial Services Ltd. and another, 2005 AIR(SC) 1209, it was held that provisions of Act, 1963 have no application so far as directions required to be issued by Courts under Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. It held: "Limitation Act, 1963 is applicable only in relation to certain applications and not all applications despite the fact that the words "other proceedings" were added in the long title of the Act in 1963. The provisions of the said Act are not applicable to the proceedings before bodies other than courts, such as quasi-judicial tribunal or even an executive authority. The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a Tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act, 1963 per se may not be applied to the proceedings before it. Even in relation to certain civil proceedings, the Limitation Act may not have any application." (emphasis added) 11. In Damodaran Pillai Vs. South Indian Bank Ltd., 2005 7 SCC 300 , Court while considering whether the provisions of Section 5 of Act, 1963 would be applicable to the proceedings under Order 21 of Code of Civil Procedure, observed: "It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power." 12. A Division Bench of this Court (in which I was also a member) in M/S Vimal Organics Ltd. Vs. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power." 12. A Division Bench of this Court (in which I was also a member) in M/S Vimal Organics Ltd. Vs. State of U.P. and others, 2008 2 AWC 1164 , considering a similar issue in respect to appeals under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as "Act, 1977") read with Rule 9 of the Water (Prevention and Control of Pollution) Cess Rules, 1978 (hereinafter referred to as "Rules, 1978"), in para 18 and 19 of judgment, said: "18. The period of limitation, as contended by learned counsel for the petitioner, cannot be said to be a part of procedure only, as an universal proposition. Rather it would depend upon relevant provisions of the statute and the consequences flowing thereof, i.e., as a result of expiry of the period of limitation. In many cases, it may result in accrual of substantive rights to the other side and in those cases, provisions pertaining to limitation cannot be said to be directory but have to be held mandatory. For example, under Section 6 of Land Acquisition Act, 1894, a declaration has to be made within one year from the date of notification under Section 4. The period of one year limitation gets extended by the period for which some interim order of any nature has been passed by a Court of Law. If such a declaration is not made under Section 6 within the aforesaid period, the proceedings will lapse. This view was taken by the Apex Court in State of Haryana v. Sukhdev, 1994 AIR(SC) 1255 and General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob, 2003 AIR(SC) 1308. 19. A Division Bench of this Court in Mahavir Sahkari Avas Samiti Ltd. Vs. State of U.P. and others, 2007 2 AWC 1162, considering the aforesaid provisions in para 54, sub para (iii) held that "the Court does not have the power to extend the period of limitation provided under the Statute." Similarly, in various taxing statutes where the period of limitation expires, thereafter the authorities cannot proceed to pass orders against the assessee treating it to be procedural only. In those cases expiry of period of limitation provided in the statute result in vested right to the assessee like not to be assessed or face any assessment proceedings etc. before the authority concerned under the relevant Act. The illustrations may be multiplied but we do not wish to do so and feel satisfied by observing that it is not always correct to say that whenever the limitation is prescribed, it is in the nature of procedural law and, therefore, has to be read leniently and must be treated to be directory instead of mandatory. In respect to special enactments which contain substantive provisions as well as procedure to give effect to carrying out the purpose of such Act, if period of limitation is provided the same has been held to be mandatory and once such period has expired, the Court is not competent to extend limitation and thereby nullify the otherwise provision(s) under the statute." 13. Similarly, in a reference made to a Division Bench as to whether provisions of Act, 1963 would be attracted in contempt proceedings under the Contempts of Courts Act, 1971, this Court in Islamuddin Vs. Sri Umesh Chandrara Tiwari and another, 2009 4 AWC 3680 held that it would not be applicable. 14. I also find that the issue in the context of Section 72 and 78 of Act, 1908 itself came up for consideration before a learned Single Judge in State of U.P. Vs. District Registrar, Meerut and others, 1971 AIR(All) 390. Court held that District Registrar is a creation of Act, 1908 and to exercise only those powers that have been given to him under Act, 1908. He does not exercise powers of a Court, though he sits in appeal against the order of Sub-Registrar under Section 72 of Act, 1908 but the powers therein are limited. Under Section 72 of Act, 1908 he can only direct a document to be registered by Sub-Registrar, who has refused registration on the ground, other than denial of execution. Court categorically said: "Although he exercises powers as an appellate authority under the Act, he does not sit as a court." 15. The applicability of Section 5 of Act, 1963 in the context of Section 73 of Act, 1908 was considered by a learned Single Judge in Raghuvir Narain Rastogi Vs. Court categorically said: "Although he exercises powers as an appellate authority under the Act, he does not sit as a court." 15. The applicability of Section 5 of Act, 1963 in the context of Section 73 of Act, 1908 was considered by a learned Single Judge in Raghuvir Narain Rastogi Vs. State of U.P. and others, 2005 2 AWC 1814 (All) wherein Court held that Registrar, Additional Registrar or the Sub-Registrar cannot be treated as a Court and Section 5 of Act, 1963 shall not be applicable to proceedings under Act, 1908. 16. In Chhedu Vs. Abdul Hasan,1975 AllLJ 462 also this Court held that Registrar while hearing an appeal under Act, 1908 does not act as a Court though as an appellate authority his functions are quasi-judicial but it is like an Executive Officer vested with quasi judicial functions for the limited purpose of Act, 1908. 17. In Lachhman Das Arora Vs Ganesh Lal, 1999 AIR(SC) 3101, considering the provisions of Section 81 and 86 of Representation of People Act, Court held that law of limitation may affect a party harshly but it has to be applied with full vigour. Court cannot extend the period of limitation on equitable grounds more particularly in the matter of filing of election petition where Act, 1963 does not apply. 18. In Prakash H. Jain Vs. Marie Fernandes (Ms.), 2003 AIR(SC) 4591, Court considered the provisions of Maharashtra Rent Control Act, 1997 (hereinafter referred to as "Act, 1997") and maintainability of an application after prescribed period. Competent authority had condoned the delay and allowed application to be entertained. A learned Single Judge of Bombay High Court set aside the order of Competent Authority on the ground that there was no provision in the Act or any other law empowering Competent Authority to condone delay in filing such application. This judgment was considered by Supreme Court and it was held that a Court does not have got any inherent power to condone delay in filing proceedings before it unless the law warrants and permits. It also held that an authority, if deemed to be a Court only for limited and specific purpose, cannot make it a Court for all or any other purpose to attract the provision of Act, 1963. It also held that an authority, if deemed to be a Court only for limited and specific purpose, cannot make it a Court for all or any other purpose to attract the provision of Act, 1963. It said that there is no such thing as may inherent power of Court to condone delay in filing proceedings before a Court/ Authority concerned, unless the law warrants and permits it since it has a tendency to alter the rights accrued to one or the other party under the statute concerned. 19. Considering overwhelming authorities on the subject holding that Register while exercising power under Section 72 and 73 of Act, 1908 is not a Court and, therefore, Act, 1963 will not be applicable, learned counsel for respondent-2 could not dispute this fact that as a proposition of law, Act, 1963 was not applicable and Registrar could not have condoned delay. 20. In these circumstances, it is held that Registrar erred in law in entertaining appeal after expiry of period of limitation prescribed in Section 72 by condoning delay since it has no power to condone delay with reference to Section 5 of Act, 1963 and, therefore, appeal was illegally entertained. It was liable to be rejected as barred by limitation. 21. Now coming to second aspect whether this Court should interfere in this particular matter or not, once it is clear that Registrar was not competent to entertain appeal after expiry of period of limitation by condoning delay under Section 5 of Act, 1963, the impugned order becomes patently without jurisdiction and cannot be sustained. As already noticed, the law of limitation though harsh, still it has to be made effective as it is and various considerations brought by learned counsel for respondents, in my view, are not justified to allow to sustain a patently without jurisdiction order. 22. In the result, the writ petition is allowed. Impugned order dated 25.05.2006 is hereby set aside.