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2019 Supreme(All) 909
IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
SUDHIR AGARWAL, J.
Amrawati - Appellant
Versus
Registrar/Apar Collector Pratapgarh and others - Respondents
Miscellaneous Single No. 3223 of 2006
Decided On : 25-07-2019
Anand Swaroop Chaudhary, Adv., P.V. Chaudhary, Adv., Prabhakar Vardhan Chaudha, Adv., R.S. Tripathi, Adv.
Headnote:
Registration Act, 1908 – Section 72, 73 – Indian Limitation Act, 1963 – Section 5 – Petition is directed against order passed by Additional Collector, in purported exercise of power directing Sub-Registrar, to register sale-deed said to have executed in favour of respondent-2, Appeal was filed beyond period of 30 days and for condonation of delay, application 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 is not a Court and, provisions of Act, are not applicable and, impugned order is patently without jurisdiction –Held, 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, appeal was illegally entertained. It was liable to be rejected as barred by limitation, Registrar was not competent to entertain appeal after expiry of period of limitation by condoning delay 1963, impugned order becomes patently without jurisdiction and cannot be sustained, 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 – Petition is allowed. (Para 20, 21, 22)
Facts of the case:
Petition is directed against order passed by Additional Collector, in purported exercise of power directing Sub-Registrar, to register sale-deed said to have executed in favour of respondent-2, Appeal was filed beyond period of 30 days and for condonation of delay, application 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 is not a Court and, provisions of Act, are not applicable and, impugned order is patently without jurisdiction.
Findings of the court:
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, appeal was illegally entertained. It was liable to be rejected as barred by limitation, Registrar was not competent to entertain appeal after expiry of period of limitation by condoning delay 1963, impugned order becomes patently without jurisdiction and cannot be sustained, 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.
Result: Petition is allowed.
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. 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 th
