Calcutta High Court
Uma Mitra vs The Directorate Of Registration ... on 19 June, 2023
OD-3
ORDER SHEET
WPO/637/2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
UMA MITRA
-VS-
THE DIRECTORATE OF REGISTRATION AND STAMP REVENUE AND ORS.
BEFORE :
THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA
Date : June 19, 2023.
Appearance:
Mr. Arnab Saha, Adv.
Mr. Abhimanyu Banerjee, Adv.
...for the petitioner
Mr. Ayan Banerjee, Adv.
...for the State/respondent
Mr. Samrat Choudhury, Adv.
Mr. Soumya Kanti Nag, Adv.
Mr. Debnandan Bhattacharya, Adv.
...for the private respondent
The Court : Affidavit-of-service filed in Court is taken on record.
The petitioner challenges the registration of a document, which is
purportedly a sale deed, on several grounds. It is first argued that the
petitioner was made to understand by the private respondent that the same
was merely a Power of Attorney, thereby perpetrating an act of
misrepresentation on the petitioner. That apart, it is argued that no
consideration passed between the parties for such purported sale.
Learned counsel for the petitioner submits that in the absence of passage
of consideration, the sale itself is vitiated and the Registrar could not register
the said document.
It is contended that the amount shown as consideration in the deed itself
is of such a magnitude that under the Finance Act, the same could not be paid
by way of a cash transaction. As such, in the absence of any document or other
records to indicate the passage of consideration, the Registrar could not have
registered the sale deed in question.
Learned counsel also places reliance on Section 35(3)(a) of the
Registration Act, 1908 as well as Rules 124 and 128 of the West Bengal
Registration Rules, 1962. It is submitted that the said Rules and Section have
been contravened by the Registrar when carrying out the registration
impugned before this Court.
It is further argued that the memo of consideration attached to the
purported sale deed has a specific column regarding the mode of payment.
However, there is no mention therein as to how and by what instalments, if
any, the payment was made. As such, non-passage of consideration also
vitiates the registration process itself.
Learned counsel places reliance on a judgment reported at (2022) 8 SCC
210 [Asset Reconstruction Company (India) Limited -vs- S.P. Velayutham and
Ors.] in support of the proposition that it is not an absolute bar for the Writ
Court to interfere with the process of registration and/or a statutory act to be
performed by the statutory authority. The Supreme Court held in the said case
that 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 procedural step as mentioned therein, it cannot be said that the
jurisdiction of the High Court in article 226 stands completely ousted.
It is argued that in the present case, the registration itself was vitiated
and should be set aside. Even before inviting a detailed argument by the
respondents, it is seen that the argument of the petitioner does not merit
entertaining the writ petition.
The contention that the provisions of the Registration Act were violated
does not hold water.
Section 35(3)(a) stipulates that if any person by whom the document
purports to be executed denies its execution, the registering officer shall refuse
to register the document as to the person so denying, appearing or dead.
However, obviously, the said provision implies that the person by whom
the document purports to be executed has to assert such denial in a positive
manner before the registering officer. A post facto denial of the execution of the
document may at best afford a cause of action for a civil suit or a criminal
action on the ground of fraud for the person who makes such accusations;
however, the same does not vitiate the registration per se.
Insofar as the provisions of the 1962 West Bengal Rules are concerned,
the same also do not come to the aid of the petitioner's arguments.
Rule 124 deals with presentation of documents and is mostly on the
legibility and other technical formalities of the documents.
However, none of the said paraphernalia as stipulated therein include
any provision as to the Registrar ascertaining as to whether any consideration
amount actually passed between the parties to the deed-in-question.
Insofar as rule 128 is concerned, the registering officer shall, after
satisfying himself as to the compliance of the provisions of the Act, Rules made
thereunder and the standing order applicable thereon, verify the original
document that the registration has been made in accordance with the
procedures laid down in rules 122 to 127 and that the document has been duly
stamped and proper registration fees have been paid.
However, the contraventions alleged by the petitioner, as to non-passage
of consideration and the document being executed by misrepresentation and
fraud, do not fall within the purview of Rules 122 to 128 of the 1962 Rules at
all. The scope of enquiry of the Registrar is limited to the compliance of the
actual formalities under the Registration Act and concerned Rules. Since the
petitioner's allegations seek to traverse the jurisdiction of the Registrar and go
far beyond, the same cannot vitiate the registration even on a prima facie
footing.
As such, there is no scope of interference in the present writ petition.
It is noteworthy to mention that learned counsel for the petitioner, at the
conclusion of his arguments, had sought some more time to ascertain whether
there was any standing order within the contemplation of rule 128 of the West
Bengal Rules, to vindicate the case of the petitioner. However, such
adjournment is not being given to the petitioner, since the arguments were
substantially concluded and the Court had already expressed its mind before
such adjournment was sought. Secondly, nothing in any standing order issued
by the relevant authority can contravene or go beyond the scope of the Act and
the Rules framed therein. Hence, such adjournment, even if granted, would be
on a redundant count.
Accordingly, WPO/637/2023 is dismissed on contest without any order
as to costs.
Nothing in this order, however, shall prejudice the rights and contentions
of any of the parties in any proceeding, be it criminal or civil, if taken out by
the parties pertaining to the purported execution of the deed in question.
(SABYASACHI BHATTACHARYYA, J.)
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