Patna High Court - Orders
Pradhuman Pd. vs The State Of Bihar & Ors on 4 April, 2014
Author: Ravi Ranjan
Bench: Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18159 of 2012
======================================================
Devendra Tiwari S/O Sri Bhikhari Tiwari Resident Of Village Parauli, P.S.
Bashantpur, District Siwan,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary, Registration Department,
Government Of Bihar, Patna,
2. The Commissioner Cum Secretary Cum I.G. Registration, Government
Of Bihar, Patna,
3. The District Registrar Cum Collector, Gopalganj,
4. The Sub Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18611 of 2012
======================================================
Shailendra Prasad S/O Sri Tripurari Prasad R/O Village- Gopalamath, P.S.-
Manjha, District- Gopalganj,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary Registration Department,
Government Of Bihar, Patna,
2. The Commissioner-Cum-Secretary-Cum-I.G., Registration Government
Of Bihar, Patna,
3. The District Registrar-Cum-Collector, Gopalganj,
4. The Sub-Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18653 of 2012
======================================================
Attiullah S/O Late Ahmad Ali Resident Of Village Bagaha Nizamat, P.S.
Thawe, District Gopalganj.
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary, Registration Department,
Government Of Bihar, Patna,
2. The Commissioner Cum Secretary Cum I.G. Registration, Government
Of Bihar, Patna,.
3. The District Registrar Cum Collector, Gopalganj,
4. The Sub Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.19022 of 2012
======================================================
Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 2
Hari Shankar Prasad S/O Ram Chandra Prasad R/O Vill-Hariharpur, P.S.-
Yadopur, Distt-Gopalganj,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary, Registration Department
Government Of Bihar, Patna,
2. The Commissioner -Cum-Secretary-Cum-I.G.Registration Government
Of Bihar, Patna,
3. The District Registrar-Cum-Collector , Gopalganj,
4. The Sub-Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.19928 of 2012
======================================================
Rajeshwar Prasad S/O Late Anirudha Prasad R/O Vill-Jalalpur, P.S.-
Sidhwaliya, Distt-Gopalganj,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary, Registration Department ,
Government Of Bihar, Patna,
2. The Commissioner-Cum-Secretary-Cum-I.G.Registration , Government
Of Bihar, Patna,
3. The District Registrar-Cum-Collector, Gopalganj,
4. The Sub-Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18561 of 2012
======================================================
Yogendra Choubey S/O Late Khublal Chaubey R/O Village- Khutmania
Choubey, P.O.- Uchaka Gaon, P.S.- Kuchaikot, District- Gopalganj,
.... .... Petitioners
Versus
1. The State Of Bihar,
2. The Commissioner Cum Secretary Cum Inspector General Registration,
Bihar, Patna,
3. The Collector, Gopalganj, District- Gopalganj,
4. The District Sub-Registrar, Registration Gopalganj, District-Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18225 of 2012
======================================================
Pradhuman Prasad S/O Sri Tribhuwan Lal R/O Village- Faizullahpur, P.S.-
Baikhunthpur, District- Gopalganj,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary Registration Department,
Government Of Bihar, Patna,
Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 3
2. The Commissioner-Cum-Secretary-Cum-I.G., Registration Government
Of Bihar, Patna,
3. The District Registrar-Cum-Collector, Gopalganj,
4. The Sub-Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18161 of 2012
======================================================
Mithilesh Kumar Sriwastwa S/O Jagarnath Prasad Resident Of Village
Kamalpur, P.S. Barauli, District Gopalganj.,
.... .... Petitioner
Versus
1. The State Of Bihar Through The Secretary, Registration Department,
Government Of Bihar, Patna,
2. The Commissioner Cum Secretary Cum I.G. Registration, Government
Of Bihar, Patna,
3. The District Registrar Cum Collector, Gopalganj,
4. The Sub Registrar, Gopalganj, Registry Office, Gopalganj,
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18318 of 2012
======================================================
Wageshwari Sharan Son Of Late Shyam Nandan Prasad Resident Of
Village Rampur Tengrahi, P.S. Jadopur, Dist Gopalganj,
.... .... Petitioner
Versus
1. The State Of Bihar,
2. The Commissioner Cum Secretary Cum Inspector General Registration,
Bihar, Patna,
3. The Collector, Gopalganj District Gopalganj,
4. The District Sub-Registrar, Registration, Gopalganj, District Gopalganj,
.... .... Respondents
======================================================
Appearance :
For the Petitioners : M/s Uday Pratap Singh, Amarendra Kumar,
Dr. Chandra Shekhar Azad and
Prabhakar Jha, Advocates.
For the State: : Mr. Kundan Bahadur Singh, SC 22,
Mr. Kumar Vikram, AC to GA-11,
Mr. Anuj Kumar, AC to SC 7,
Mr. Binay Kumar Pandey, AC to GA 3
======================================================
CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL ORDER
5 04-04-2014Heard learned counsel for the petitioners and the State. Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 4
The orders impugned in all the writ petitions, though have been passed in different cases, however, the issues involved being identical, the orders are verbatim same. All the orders are dated 23.01.2012. Since the issues involved in these writ petitions are identical, all of them have been heard together and are being disposed of by a common order.
The writ petitioners have challenged the order dated 23.01.2012 passed in different Miscellaneous Cases by the District Registrar-cum-Collector, Gopalganj, by which the licences granted to the petitioners under the provisions contained in Bihar Deed Writers Licensing Rules, 1996 (hereinafter to be referred to as "the Licensing Rules") have been cancelled.
Factual matrix of the cases emanating out of the writ petitions which would be necessary for consideration of the cases stands enumerated as under:-
All the writ petitioners had obtained deed writers‟ licence under the provisions of the Licensing Rules. All of them were served notices to show as to why their licences should not be cancelled for violation of the provisions contained in section 27 of the Indian Stamp Act, 1899 (hereinafter to be referred to as "the Act"). The petitioners submitted their respective replies to the show-causes, however, their licences were cancelled. Order of Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 5 cancellation which has been appended as Annexure 3 in C.W.J.C. No. 18159 of 2012 was assailed by filing C.W.J.C. Nos.6239 of 2007 and 6185 of 2007. A Single Bench of this Court disposed of the aforesaid writ petitions remitting the matter for fresh consideration to the Collector, Gopalganj after setting aside the impugned orders chiefly on the ground that the order impugned was passed without assigning any reason and without consideration of the replies to the show-cause notices of the licensees. The learned Single Judge had opined that such an order passed in a mechanical manner cannot be allowed to sustain for the reason that it would be detrimental to the Fundamental Rights of a citizen specially in view of the provisions contained in Article 19(1)(g) of the Constitution of India. The aforesaid order has been appended as Annexure 4 in C.W.J.C. No. 18159 of 2012. Thereafter, notices were again issued and the petitioners again filed their respective replies which have been appended along with the writ petitions, for example, in C.W.J.C. No. 18159 of 2012 it has been appended as Annexure 6. The impugned orders came to be passed by the Collector, Gopalganj on 23.01.2012 in all the Miscellaneous Cases. It appears from perusal of the impugned orders that they are identical and verbatim same except that they have been shown to be passed in different Miscellaneous Cases Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 6 with respect to different licences.
Learned counsel for the petitioners has submitted that the deed writer‟s licence is issued under the provisions of the Licensing Rules, in particular under Rule 7 thereof. Rule 9 of the Licensing Rules provides the conditions which are imposed upon the licensee for issuance of such licence. Provisions of cancellation and suspension of licence have been dealt with in Rule 13 of the Licensing Rules. It is submitted that Rule 13(2) of the Licensing Rules clearly lays down that no order for cancellation or suspension of licence under sub-rule (1) shall be passed unless the document writer has been asked to show cause against the proposed action and the cause shown by him has been duly considered by the licensing authority. It would be apparent from perusal of the order impugned that the grounds raised by the petitioners in their respective replies to the show-cause notices have not been considered at all. The licensing authority has failed to record any reason to show as to how he had found that such grounds are not tenable. It is next contended that the licensing authority appears to have swayed away by the letter no. 5052 dated 22.09.2006 issued by the Secretary and Commissioner-cum- Inspector General of Registration, Bihar, Patna, directing the competent authority to take action against the deed writers who Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 7 are engaged in writing deeds in a manner detrimental to the State by putting it to loss of revenue specially in violation of the provisions of section 27 of the Act and had recommended for action against the erring person under section 64 of the Act. It is submitted that the deed writers are not concerned with the detail of transaction as they always act upon the instruction of the parties executing the concerned deed. It is further contended that deed is presented for registration in the office of the Sub-Registrar who, after thorough scrutiny registers it. It has been contended that in none of the cases any objection was ever raised by the office of the Sub Registrar. It has also been urged that no case of collusion by the deed writers by writing a deed in a particular manner for tax evasion by the executor could be made out by the authority concerned.
Counter affidavits have been filed in all the cases except in C.W.J.C. No. 18653 of 2012 taking identical stand that the deed writers have involved themselves in a manner that has put the State to loss of revenue and, thus, the action against them was in order. It has been stated in paragraph 16 of the counter affidavit filed in C.W.J.C. No. 18159 of 2012 that in the aforesaid case the petitioner should have prepared a deed of conveyance such as sale or gift because an individual‟s purchased property cannot be Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 8 transferred by way of partition to himself. The concerned deed has been appended as Annexure B to the counter affidavit. Though in none of the other cases the copies of the concerned deed has been appended by the State, however, identical stand has been taken that the petitioners have written the deed in a manner that has put the State to loss of revenue.
On consideration of rival contentions the following issues emerge out for consideration:-
(I) Whether the impugned orders are fit to be sustained holding them to have been passed after granting reasonable opportunity to the concerned and after proper consideration of the grounds raised in the respective replies to the show cause notices ?
(II) Whether it can be held that the petitioners have violated he terms and conditions laid down in Rule 9 of the Licensing Rules for which such action was required to be taken ?
(III) Whether there has been any violation of the provisions contained in section 27 of the Act as has been alleged in the show-cause notices ?
(IV) Whether the sale deed that has been appended as Annexure B to the counter affidavit filed in C.W.J.C. No. 18159 of 2012 discloses that due to wrong recitals State has been put to loss of revenue ?
(V) Whether any finding or reason has been Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 9 recorded in the orders impugned as to how and in what manner the deeds have been held to have been written incorrectly or in a manner detrimental to the interest of the State by depriving it to legitimate revenue?
Since all the aforesaid issues are intertwinned, they are being considered together.
The genesis of the proceeding is obviously a letter dated 22.09.2006 which is written to all the concerned by the Inspector General of Registration directing the competent authority to take action against the deed writers for violation of the provisions of section 27 of the Act and also for taking action in terms of the provisions under section 64 of the Act.
For better appreciation, the aforesaid section 27 of the Act is being quoted as under:
"27. Facts affecting duty to be set forth in instrument.- The consideration „[if any, the market value of the property] and all other facts and circumstances affecting the chargeability of an instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein."
From perusal of the aforesaid provision of law, it appears that the consideration amount, if any, on the market value of the property, should be disclosed and all other facts and circumstances Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 10 such as the amount of the duty with which the instrument is chargeable, shall be fully and truly set forth in the concerned deed.
Section 64 of the Act is being reproduced as under:-
"64. Penalty for omission to comply with provisions of Section 27.- Any person who, with intent to defraud the Government
(a) executes any instrument in which all the facts and circumstances required by Section 27 to be set forth in such instrument are not fully and truly set forth; or
(b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; or
(c) does any other act calculated to deprive the Government of any duty or penalty under this Act; shall be punishable with fine which may extend to five thousand rupees."
It appears from the aforesaid provisions that if any person does something with an intent to defraud the Government then there is provision of penalty of imposition of fine which may extend to rupees five thousand. Under sub-clause (b) of section 64 of the Act it also includes the persons employed or concerned in or about the preparation of any instrument if he neglects or omits to fully and truly to set forth therein all such facts and circumstances required to be stated in a particular manner.
Thus, it appears that, in case of violation of the provisions of section 27, punitive action to be taken stands enumerated in Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 11 section 64 of the Act. However, from the order impugned it does not appear that any action taken under section 64 of the Act by the authority concerned. Though there is a provision of imposition of fine extending to rupees five thousand, however, there is no provision of cancellation of licence under section 64 of the Act. The provision of cancellation of licence granted under the Licensing Rules stands described in Rule 13 of the Licensing Rules. For better appreciation the relevant ;provisions are quoted below:-
"13. Cancellation and suspension of licence.- (1) The licensing authority may at any time suspend or cancel the licence of a document writer or apprentice on any of the following grounds:-
(a) Violation of any of the rules or the conditions of the licences.
(b) Failure to attend the registration office for a period exceeding six months without a reasonable cause or without the leave or permission of the licensing authority or the registering officer within whose jurisdiction he has been practicing.
(2) No order under sub-rule (i) shall be passed, unless the document writer or the apprentice, as the case may be, has been asked to show cause against the proposed suspension or cancellation of the licence and the cause shown by him has been duly considered by the licensing authority."
Sub-rule (1) of Rule 13 of the Licensing Rules clearly lays down that licence can be cancelled either for violation of any of Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 12 the Rules or the conditions of the licence or for failure to attend the registration office for a period exceeding six months without any reasonable cause or without the leave or permission of the licensing authority or the registering officer within whose jurisdiction he has been practising.
The conditions of licence stand enumerated under Rule 9 of the Licensing Rules and for better appreciation they are reproduced as under:
"9. Conditions of licence.- (1) The following shall be the conditions of the document writers licence :-
(a) that the licencee shall abide by the rules relating to the licensing of document writers;
(b) that he shall maintain the registers, receipt books and other records prescribed by these rules to be maintained or required to be maintained by the licensing authority from time to time or by the Inspector-General of Registration;
(c) that he shall not demand or receive any sum from parties in the name of any person connected with the registration office;
(d) that he shall render true and correct account of the money that he receives from his employer;
(e) that he shall write or cause to be written documents legibly and in accordance with the instructions that may be issued from time to time by the licensing authority or the Inspector-General of Registration;
(f) that he shall instruct the parties or the duly authorised agents or persons having powers of attorney to pay the fees in person direct to the Registering Officers Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 13 and not through any other agency;
(g) that he shall writ or cause to be written document carefully, properly and in clean and unambiguous terms;
(h) that he shall obey any direction that may from time to time be issued by the licensing authority or the Inspector-General of Registration regarding the preparation and the transcription of documents or copies for Registration;
(i) that he shall sign his name on every document written by him or caused to be written by the apprentice attached to him and shall enter therein his name, licence number and serial number of document given in the register to be maintained by him under these rules and the fees charged by him.
xx xx xx "
It does not appear from the impugned orders that the same have been passed after consideration of the aforesaid Rule 9 of the Licensing Rules and after holding that the petitioners have violated any of the terms and conditions laid down therein. That apart, in my considered opinion, the impugned orders suffer from another infirmity as the grounds set forth in respective replies to the show-cause notices furnished by the petitioners do not appear to have been considered in a proper manner as no finding has been recorded showing as to why and how the grounds are not tenable and the replies furnished by the petitioners are fit to be rejected.
In my considered opinion, the aforesaid omission is against the mandate of sub-rule (2) of Rule 13 of the Licensing Rules Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 14 which clearly lays down that, before taking a final decision regarding of cancellation of the licence of a document writer, a show-cause notice for the proposed action would be mandatory and the order must show that the cause shown by him has been duly considered by the competent authority. It appears from perusal of the impugned orders that only one sentence has been devoted with respect to the replies of the petitioners by recording that the petitioners have not been able to show that they are not guilty for infringement of the provisions contained in section 27 of the Act. In my considered opinion, this is erroneous as the authority, which is alleging some illegality or wrong having been committed by a person, would have to establish that the charges stand proved. The authority concerned has acted in opposite manner by requiring the petitioners to prove that they are not guilty. Further, the licensing authority has opined that the petitioners, in collusion with the executant and in fraudulent manner, have written the instrument in such a manner that loss ha to be caused to the State revenue. For example, in C.W.J.C. No. 18159 of 2012, loss has been shown to be of Rs. 16,853/-. However, the impugned orders do not indicate anywhere as to what was the illegality actually committed by the deed writers and how the petitioners defrauded the Government and put the State Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 15 to loss of revenue. Nothing is there except a sentence that the petitioners have not been able to show that they are not guilty. There is no indication as to in what manner the document concerned should have been written. In fact, though the authority concerned had noticed that a Single Bench of this Court in its earlier order had clearly indicated that order must contain reasons and the details as to what wrong was actually done by the deed writers, it does not appear that it has followed such directions and similar error appears to have been committed again.
In the counter affidavit filed in C.W.J.C. No. 18159 of 2012 a deed has been appended and in paragraph 16 thereof it is stated that the instant deed of partition should have been prepared as a deed of conveyance such as sale or gift, because an individual‟s purchased property cannot be transferred by way of partition to himself.
After perusal of the deed it appears that the executors have clearly stated that the concerned properties are their self acquired properties and they are separately in possession of their respective self acquired properties but only for the reason to save the family from future litigation they have executed the deed showing that the concerned persons are in possession of their respective self acquired properties and that should be considered for all times to Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 16 come as their self acquired properties. Thus, in sum and substance, it is merely a declaration that such properties are self acquired properties. There is no conveyance of the property in favour of any person to show that the deed has been drafted in a manner to cause loss to revenue.
Mr. Kundan Bahadur Singh, learned Standing Counsel No. 22, has not been able to demonstrate before this Court as to what was the difficulty or error or deliberate mistake or action on behalf of the petitioner in writing the deed concerned as, unless there is actual transfer of property, there would no question of executing a deed of conveyance such as deed for sale or gift.
The respondents did not have any courage to append instruments concerned along with the counter affidavits, except in one case mentioned above, to demonstrate that some mistake has been committed by the petitioners. At this juncture, it would also be pertinent to refer to a decision of Division Bench of this Court dated 09.10.2013 rendered in L.P.A. No. 552 of 2013(Ajit Kumar Srivastava v. The State of Bihar and others), a copy of which was produced at the time of hearing by the petitioners. The Division Bench of this Court has held as under:-
" xx xx xx The petitioner is stated to be a professional Deed writer duly licensed under the Bihar Deed Writers Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 17 Licensing Rules 1996 framed under Section 69 (1)(bb) of the Registration Act. Rule 9(e) deals with regard to the conditions of his licence that he shall write or cause to be written documents legibly and in accordance with the instructions that may be issued from time to time by the licensing authority or the Inspector-General of Registration. Under Sub-clause (f) he shall instruct the parties or the duly authorized agents or persons having powers of attorney to pay the fees in person direct to the Registering officers and not through any other agency; Sub-clause (g) provides that he shall write or cause to be written documents carefully, properly and in clean and unambiguous terms. Rule 13 provides for Cancellation and suspension of licence inter alia for violation of any of the Rules or the conditions of the licence, failure to attend the registration office for a period exceeding six months without a reasonable cause or without leave. Such orders cannot be passed without an opportunity to show cause. Appeal lies before the Inspector-General of Registration under Rule-14. The Rules do not provide for personal liability of the deed writer with regard to errors/omissions in the document sought to be prepared and presented for registration. The significance of Rule 9
(f) "that he shall instruct the parties to pay the fees"
satisfies us that his primary duty only is to make the parties aware of their statutory responsibilities. The Rules do not provide for a Deed writer to cross-examine and make inquiries from the parties to the transaction, and prepare the deed only after he is satisfied with regard to the legality/validity and correctness of the information furnished to him. That, however would not take within its ambit a document apparently illegal on the face of it as a defence that he was not answerable. Such a document for example would include an Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 18 agreement to commit a deliberate fraud and the like. There is no allegation for violation of any condition of licence."
It appears from above that the Division Bench of this Court after examining Rules 9, 13 and 14 of the Licensing Rules has held that the Rules do not provide for a deed writer to cross- examine and make inquiries from the parties to the transaction and prepare the deed only after he is satisfied with regard to the legality/validity and correctness of the information furnished to him. The Division Bench has further opined that if the parties to the transaction did not make full disclosure to him with regard to the property in question leading to any loss of revenue the liability rests with the parties to the transaction and not with the deed writer.
After going through the records of the writ petitions and from perusal of the impugned orders as well as the deed concerned brought on record in one of the writ petitions and also on consideration of rival contentions of the parties, I am of the considered view that the order of the District Magistrate heavily rests upon the direction issued by the Inspector General of Registration in one of its letters, however, the orders impugned fail to disclose as to in what manner the petitioners were in collusion with the executants for putting the State to loss of Patna High Court CWJC No.18159 of 2012 (5) dt.04-04-2014 19 revenue and in what actual manner the instrument should have been scribed. Merely opinion has been assigned but no finding or reason has been disclosed on the basis of which the licensing authority could have passed the orders. Thus, the licensing authority does not appear to have complied the order of the Single Bench of this Court passed in C.W.J.C. Nos. 6239 of 2007 and 6185 of 2007 in its letter and spirit as it was required to examine as to what was the actual error or wrong done by the deed writers in all the individual cases. Hence the issues are decided in favour of the petitioners.
In my considered opinion, the orders impugned are not sustainable in law and, accordingly, the same are quashed and set aside.
As a result, these writ applications stand allowed.
(Dr. Ravi Ranjan, J) AFR SC/-