Lavkush Sharma v. The State of Bihar

Judgment

1. 2. 3. 4. 6 1/5/2009 Heard counsel for the petitioners and counsel for the ----------- State. Reference may be made to the order of this Court dated 13.4.2009. Pursuant thereto a counter affidavit on behalf of respondent nos. 1 to 4 duly sworn by the District Sub.Registrar has

been filed. In addition to it Smt. Safeena, the present Collector of 2 Bhojpur district has appeared in person and has filed her show cause explaining the circumstances in which counter affidavit in this case could not be filed for the last 7-1/2 years. Considering the facts mentioned in such show cause reply of the Collector of the district, the same is accepted with a clear understanding that in future in the cases arising out of at least Bhojpur Collectorate and its attached offices. There would be now no further delay in filing of any counter affidavit and that such counter affidavit would definitely be filed within a period of three months from the date of filing/receipt of information and/or a copy of the writ application in the office of Collector, Bhojpur. The Collector, Bhojpur has also assured this Court that there will be no such impediment in future. Recording such assurance of the Collector, Bhojpur well this Court would drop this matter and further appearance of the Collector, Bhojpur in person before this Court is also exempted. Coming to the merits of this case, this Court would find that the only prayer made in this writ application by 12 petitioners, namely, 1.Lavkush Sharma, 2.Ram Dinesh Prasad @ Dinesh Rai, 3. Ayodhya Prasad Verma, 4. Sadan Kumar Tiwary,

5.Satya Narayan Prasad Sinha, 6.Ram Jiwan Upadhyay,

7.Krishnadeo Prasad, 8.Bhagwan Charan Prasad, 9.Vijay Kumar Sinha @ Sudhir Kumar Sinha, 10.Shambhu Nath Pandey,

11.Baijant Kumar Sinha and 12.Jagdish Roy, is confined to 3 quashing the departmental instruction contained in letter No. 1355 dated 31.10.2001 issued by the office of the Inspector General Registration and its follow up action by the office of the Collector/District Registrar in the letter dated 22.10.2001 by which the deed writer having experience of ten years as on the date of enforcement of Bihar Registration Act, 1991 have only been found eligible for grant of license without appearing in the examination. In the counter affidavit which has been filed today a stand has been taken that except petitioner no.8 all others i.e, petitioner nos. 1 to 7 and 9 to 12 with others had appeared in the examination conducted for grant of license and since all of them have passed such examination they have already been given such license. Obviously, grievance of all the petitioners except petitioner no. 8 stands redressed because they are now carrying their profession as deed writers holding license. It is now case of petitioner no.8 as against which challenge to the aforementioned two orders have to be tested. Case of petitioner no.8 alongwith other petitioners in this respect is that on the cut off date when amendment was brought in Registration Act (Bihar Amendment Act, 1991) they had not acquired ten years experience but in the 1996 when an action was taken by the District Administration of Bhojpur after framing of the rules by the State Government in 1991 by that time all the petitioners including petitioner no.8 had acquired ten years experience. This aspect of the matter can be better appreciated 4 from the pleadings on records. In paragraph 17 to the writ application the sum and substance of the case of petitioner no.8 is that had the period of ten years been reckoned from the date of announcement of examination by the Collector of the district, even petitioner no.8 could have qualified for grant of automatic license without appearing in the examination. This Court however would find it difficult to accept such submission because if the cut off date with regard to exemption clause was provided in the 1991 amendment Act itself, the same cannot be expanded or limited or changed by the executive instructions and therefore merely because in terms of the said amendment in 1991, steps were taken for holding examination in the year 1996 by the District Administration of Bhojpur that would not change the statutory criteria of exemption as introduced by the State. This aspect of the matter becomes further clear from the provisions made in section 68 A and 68 B of the Registration (Bihar Amendment Act, 1991) which reads as follows:- “68.A.Prohibition unlicensed person-(1)No person who is not licensed as provided under section 68.B, shall engage himself in the profession of document-writer and document drawn-up and signed by a person who does not hold a license shall not be accepted for registration by the Registering Officers: Provided that no adovate, pleader or Mukhtar shall be required to have a license under section 68-B. (2)Nothing this section shall prohibit an executant of document to draw up a document to be presented for registration or to do any other act for himself for which a licensed document-writer could have been otherwise engaged. 5 (3)Nothing in this section shall apply to document executed out of India or out of the State of Bihar or to a will or to document scribed by document-writer holding license for one sub. District or one district and presented in another sub-district or for registration another district, as the case may be, or to documents executed by or on behalf of the Government or local authorities or other corporate bodies.” “68-B.Grant of license to document- writers-(1)The Registrar of District or any other officer authorized by him in this behalf may grant a license, to be valid in one sub- district or one district in the prescribed form to document-writer or apprentice to document- writer on an application made in this behalf, on such term and conditions as may be prescribed by the Inspector General of Registration in this behalf after conducting a written test as may be prescribed. (2)A license may be granted to any person who has been in the profession of the document-writer for at least ten years prior to the date of the Registration (Bihar Amendment Ordinance, 1991 came into force, without requiring him to appear in the written test referred to in sub.section (1), if the Registrar of a District or any other officer authorized by him in this behalf is satisfied that he is otherwise fit to take the profession of a document-writer. (3)A granted license sub.section (1) and (2) shall, remain valid till the 31st day of December of the year in which the same was issued and shall be subject to renewal before the expiry of its period of validity on such terms and conditions as may be prescribed. (4)(a)The license granted under sections (1) and (2) may at any time, be suspended or cancelled on the breach of conditions prescribed or for such other reasons to be recorded in writing by the Registrar of district or the officer authorized by him, after the document-writer has been given sufficient opportunity to show cause against the proposed suspension or cancellation of the license and after the same has been duly considered. (b)An appeal shall lie before the Inspector General of Registration against any 6 order passed under this section. Explanation-For the purposes of section 68-A and 68-B:- (i)”Document-writer” means and includes one who is engaged in the profession of preparing documents, namely, doing the work of conveyancing, investigation of including titles, preparation of drafts deeds and engrossing and transcribing the deed, including copies, if any, for registration or marking searches and inspection under the Act, and (ii)”Apprentice” means one who assists a document-writer in the preparation of documents and transcribes them (including copies, if any) to be present for registration.” From a bare reading of the aforementioned statutory amendment brought in 1991, it would be clear that there was a specific legislative mandate to improve quality of the deed-writers and for that alone the concept for license which was introduced. At the same time the legislature was also aware that large numbers of deed writers were doing such work for a long period of time and therefore it chose to introduce concept of ten years experience and also put it with the date of enforcement. No other date, therefore, could have been fixed other than the date on which such amended provisions were sought to be enforced. The prospective date as provided in section 68B of the Act therefore cannot be said to be arbitrary and at least on that score the petitioner no.8 cannot succeed in getting exemption from appearing in the examination. The last submission of learned counsel for the petitioner, that since rules were framed later on much after amendment was brought by 68 B in the Registration Act and steps were taken for holding examination only in the year 1996, the 7 qualifying date for exemption should be extended up to the date of the examination, is only to be noted for its being rejected. The rules or executive instructions issued in terms of section 68 B of the Act can not supplant the main provision of section 68 B of the Act. It is mandate of the legislature under section 68 B (2) that a license may be granted to any person who has been in the profession of the document-writer for at least ten years prior to the date of the Registration (Bihar Amendment) Ordinance, 1991 came into force without requiring him to appear in the written test. Therefore no other cut off date could have been prescribed in the rules. Consequently, prayer of petitioner no.8 for his being allowed to continue as deed-writer without license or quashing of the two impugned orders must be rejected Counsel for the petitioner then points out that the petitioner no. 8 has been still carrying out the job of deed writer in view of the interim order dated 14.12.2001 and as such now when the petitioner no. 8 has secured experience of more than 25 years (claiming to be working as deed writer from 1984), he should be allowed to sit in the next examination. This Court would not pass any firm direction in this regard keeping in view that eligibility of the petitioner no. 8 has to be judged by the District Registrar. All that can be observed is that if the petitioner no. 8 qualifies in all respect for appearing in the examination for grant of license of the deed writer he may be permitted to appear in such examination to be held in future 8 whenever the same is conducted in Bhojpur district. The further grievance of the petitioner no. 8 that no such examination has been held for the last six years, after the last examination had been conducted in the year 2003 is equally misconceived. All that this Court can say is that it is open for the petitioner no. 8 to represent before the Collector of Bhojpur district who will examine the reasons for not holding the examination and if there be no any impediment in holding of fresh examination for granting license to the deed writers in Bhojpur district, the same may also be held within a period of six months from the date of the decision by the Collector of the district. It is also made clear that from today onwards the petitioner no.8, till he passes examination and is granted license, shall not be allowed to work as deed writer and to that extent interim order dated 14.12.2001 as against him stands vacated. With the aforementioned observations and directions this application as with regard to petitioner no. 8 is dismissed on merit and for the rest of the petitioners the same has become infructuous as they have been already granted licence after passing the examination of deed writers. Abhay Kumar (Mihir Kumar Jha, J.)