Calcutta High Court (Appellete Side)
Smt. Jayanti Bose vs The State Of West Bengal & Ors on 23 February, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA 15358 of 2014
Smt. Jayanti Bose
Versus
The State of West Bengal & Ors.
Mr. Achyut Basu
Ms. Punam Basu
Ms. Sonam Basu
.....For the Petitioner
None
.....For the State
Heard on : 16.02.2022
Judgment on : 23.02.2022
Krishna Rao, J.: Inspite of notice upon the respondents none appears on
behalf of the respondents. The petitioner has challenged the order dt.
07.06.2010 passed by the Estate Manager, Kalyani, Urban Development
Department, Government of West Bengal.
The plot No. B-11/64, Kalyani, District- Nadia was originally allotted to
one Smt. Kalyani Pakrashi. Smt. Kalyani Pakrashi had executed a General
Power of Attorney in favour of Arup Kumar Bose, husband of the writ petitioner
on 01.09.1994. On the basis of the General Power of Attorney, the husband of
the petitioner had executed Indenture of Transfer of plot No. B-11/64 in favour
of his wife (writ petitioner) on 31.08.2000. The petitioner made an application
along with General Power of Attorney for transfer of the said plot. The
authorities failed to transfer the same and accordingly, the petitioner has filed
writ petition before this Court being WP No. 16568 (w) of 1999. The said writ
petition was disposed of by the Coordinate Bench, directing the registering
authority to register the concern deed of transfer in accordance with law within
8 weeks from the date of receipt of the communication of the order. In terms of
the order passed by the Coordinate Bench the petitioner has placed the deed
before the registering authority accordingly the same was registered in the
name of the petitioner on 31.08.2000.
On 01.11.2002 and 23.11.2002 the petitioner has submitted an
application before the respondents no. 2 and 3 for transfer/mutation of the
said plot in her favour in accordance with the Transfer Deed. Inspite of the
receipt of the application, the respondents have not taken any steps and again
the petitioner has filed a writ petition before this Court being WP No. 2188 (w)
of 2009. The writ petition was disposed of by the Coordinate Bench on
16.02.2010, directing the Estate Manager, respondent no. 2 to consider and
disposed of the grievance of the petitioner.
In terms of the order passed by the Coordinate Bench of this Court dt.
16.02.2010, the respondent no. 2, the Estate Manager, Kalyani had passed an
order rejecting the request of the petitioner on 07.06.2010 which is impugned
in the instant writ application.
The respondent no. 2 had rejected the request of the petitioner on the
ground that whether the transfer deed which was executed by Sri Arup Kumar
Bose being the Power of Attorney holder of the principal i.e. Smt. Kalyani
Pakrashi is valid or not and in absence of any proof that Principal/donor was
alive on the date of execution of transfer dt. 31.08.2000, the mutation cannot
be allowed.
The General Power of Attorney executed by Smt. Kalyani Pakrashi in
favour of Arup Kumar Bose is a registered document and the said document
was executed on 01.09.1994. Clause 13 of the General Power of Attorney reads
as follows:-
"To sign and execute the Deed of Lease/Transfer Deed and
conveyance or Agreement for Transfer and present all or any of those
before the concerned Sub-Registrar for registration and admit and get
those registered at the expense of the purchaser/transferee for the above
stated plot of land with or without construction."
On the basis of the Power of Attorney, Shri Arup Kumar Bose executed
an Indenture of Transfer of the plot in favour of the petitioner and the said
Deed of Transfer duly registered by the competent authority.
Section 32 of the Registration Act, 1908 deals with person who was
eligible to present documents for registration before the proper registration
office. Section 32 specifies three categories of persons who can present
documents for registration. The use of word "or" between the Clause of Section
32 demonstrates that the legislature intended the said clauses to be read
disjunctive and not conjunctively. It is settled law that the use of word "or" is
used to signify the disjunctive nature of a provision.
Clause (a) of Section 32 specifies that a document can be presented for
registration by:
(i) by the person executing the document;
(ii) any person claiming under the document presented for registration;
and
(iii) In the case, the said document is a copy of a decree or order, any
person claiming under the decree or order:-
Clause (b) and (c) deal with cases where the document is presented not by
any person mentioned i.e. (i), (ii) and (iii) above but by their agent,
representative or assign. This is also because the case of the words "Such
person" in Clause (b) and (c) can be understand to mean only persons referred
to i.e. (i), (ii) and (iii) above.
The words "executed and authenticated in the manner herein after
mentioned" in Section 32 (c) would mean that the procedure specified in
Section 33. This is clear from the opening words of Section 33 which reads "for
the purpose of Section 32, the following power of attorney shall alone be
recognized." Section 32 refers to documents presented for registration by
holder of "Power of Attorney" in Clause (c) and it, therefore, follows that the
procedure specified under Section 33 would be attracted where a document is
presented by heading "Power of Attorney" of person mentioned in Clause (a) of
Section 32.
It is important to bear in mind that one of categories of person who are
eligible to present document before registration office in terms of Section 32 of
the Act is the "Person executing' the document. The expression "Person
executing" used in Section 32 of the Act, can only refer the person who actually
signs or marks the documents is taken of execution, whether for himself on
behalf of some other person. Thus, "Person executing" as used in Section 32
(a) of the Act signifies the person actually executing the document and includes
a principal who executes by means of an agent. Where a person holds a Power
of Attorney which authorises him to execute a document for someone case, and
he executes a document under the terms of Power of Attorney, he is, so far as
the registration office is concern, the actual executants of the document as is
entitle under Section 32 (a) to present it for registration and get it registered.
In the instant case, it is quite clear that Arup Kumar Bose was given the
full attorney by Smt. Kalyani Pakrashi under the Power of Attorney to transfer
the plot and to execute the necessary document. It is an accepted position that
the said document had been executed by Arup Kumar Bose in the name and
on behalf of Smt. Kalyani Pakrashi thereof. Therefore, for the purposes of
registration office under Section 32 (a) of the Act Arup Kumar Bose is clearly
the "Person executing" the document. Therefore, it follows that the Deed of
Transfer which is executed and authenticated by Arup Kumar Bose could be
presented for registration by him. This Court is of the considered view that
Arup Kumar Bose acted in the aforesaid manner mandated Under Section 32
(a) of the Act.
The Power of Attorney and the Deed of Transfer have been duly registered
before the competent authority by following the procedure as mentioned above
and thus the Estate Manager, cannot sit over the registered document and
compel the petitioner for production of proof of the principal/donor i.e. the
original allottee Smt. Kalyani Pakrashi was alive on the date of execution of
transfer deed dt. 31.08.2000 for mutation of plot No. B-11/64 in favour of the
petitioner.
The Estate Manager, Kalyani, Urban Development Department, W.B has
exceeded his jurisdiction by questioning the registered deed of transfer. The
impugned order dt. 07.06.2010 is thus set aside.
The Estate Manager, Kalyani, Urban Development Department, West
Bengal is directed to mutate the Plot No. B-11/64 in favour of petitioner in
terms of Transfer Deed within a period of four weeks from the date of
communication of the order.
WPA No. 15358 of 2011 is thus allowed.
Parties shall be entitled to act on the basis of a server copy of the
Judgment and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
