111-NLR-NLR-V-39-WIJEYSURIYA-v.-DALPADATU.pdf
1937
ABRAHAMS C.J.—Wijeysuriya v. Dalpadatu.393
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Present: Abrahams C.J.
WIJEYSURIYA v. DALPADATU.
420—P. C. Panadure, 41,828.
Notaries Ordinance—Failure to transmit duplicates of deed—Duty of theRegistrar-General—Failure of notary to give an explanation—OrdinanceNo. 1 of 1907, s. 29, Rules 24 and 33—Amending Ordinance No. 10 of1934, s. 6 <d).
The proviso to section 29 of the Notaries Ordinance does not imposean absolute duty on the Registrar-General to give a notary who hasfailed to transmit to the Registrar of Lands duplicates of documents interms of rule 24, a further period of time within which he may complywith the requirements of the rule.
Under rule 33 a Notary is bound to give an explanation in writing ofany irregularity, error, or omission which the Registrar-General discoversor thinks he has discovered, and which appears to him to be a breach of
the law.
Failure to give an explanation is an offence under section 29 of theNotaries Ordinance.
A PPEAL from a conviction by the Police Magistrate of Panadure.
H. A. Koattegoda (with him Dodwell Gunawardena), for appellant.
M.F. S. Pulle, C.C., for respondent.
Cur. adv. vult.
September 29, 1937. Abrahams C.J.—
The appellant, a Notary Public, was convicted in the Police Court ofPanadure of the offence of having failed to transmit or deliver to theRegistrar of Lands, Kalutara, the duplicates of deeds drawn and attestedby him during the month of December, 1936, on or before January 15,1937, as required by rule 24 of section 29 of Ordinance No. 1 of 1907.He was fined for that offence Rs. 30. He was also convicted at the sametime of the offence of having failed to give an explanation as regards hisfailure to transmit these duplicates as required by rule 33 of the sameOrdinance, and he was fined Rs. 20. The appellant does not disputethe facts of the case. He admits that he failed to transmit the duplicatesby the date mentioned. He also admits that when he was called uponfor an explanation of his failure he gave no explanation. He pleads,however, that in law he did not commit either offence.
Rule 24 above mentioned reads as follows : —
“ He shall deliver or transmit to the Registrar of Lands of thedistrict in which he resides the following documents, so that they shallreach the Registrar on or before the fifteenth day of every month, viz.,the duplicate of every deed or instrument (except wills and codicils)executed or acknowledged before or attested by him during the preced-ing month, together with a list in duplicate, signed by him, of all suchdeeds or instruments, which list shall be substantially in the form F inSchedule n. hereto, and he shall at the same time forward a similarlist so signed by him to the Registrar-General. Provided, however,that in the case of wills and codicils only the number and date of thedocument shall be inserted in such list
394ABRAHAMS C.J.—Wijeysuriya v. Dalpadatu.
Buie 33 above mentioned reads as follows : —
“ He shall, in regard to any irregularity, error, or omission discoveredor alleged to have been discovered in the discharge of his duties asnotary, and which appears to the Registrar-General to be a violationof the law, give an explanation in writing when required by theRegistrar-General or by the Registrar of Lands under the order of theRegistrar-General, but such explanation shall in no case be called forafter the expiry of twenty-four months from the date of the commission .of such irregularity or error, or of such omission’'.
The penalty provision under which the appellant was convicted occursat a later point in section 29 and also reads as follows : —
“ And if any notary shall act in violation of or shall disregard orneglect to observe any of the rules and regulations contained in thissection that are binding upon him, he shall be guilty of an offence, andshall be liable on conviction thereof to a fine not exceeding two hundredrupees, in addition to any civil liability he may incur therebyAs regards the first conviction it is argued for the appellant that he hadcommitted no offence because -section 29 of the above-mentionedOrdinance was amended by section 6 (d) of the Notaries AmendmentOrdinance, No. 10 of 1934, and in these circumstances protected himfrom prosecution. This amendment was inserted in section 29 of theprincipal Ordinance .immediately after that penal provision to which Ihave referred, which reads as follows : —
“ Provided that where any notary shall act in violation of or shalldisregard or neglect to observe the provision of rule No. 42 theRegistrar-General may by a written notice served on him personally orsent by registered post call upon such notary to comply with therequirements of the said rule within such further time as he may specifyfor such purpose, and any notary who fails to comply with the. terms ofsuch notice shall be guilty of an offence and shall be liable on summary-conviction to a fine not exceeding five hundred rupees ”.
Learned Counsel for the appellant contends that the effect of that Ordi-nance is to place an ^ligation upon the Registrar-General to notify everynotary who has failed to carry out the directions in rule 24 of his failureto make such compliance and to give the notary a period of time withinwhich he must make such compliance. He contends that since that wasnot done, and admittedly it was not done, no prosecution would lie.
The question then clearly is, has the Registrar-General a discretion tosend such a notice or is he under an absolute duty to do so ? It saysthat the “ Registrar-General may, &c., ”, and it has been decided in anumber of cases, which it is not necessary to mention, that “ may ” nevermeant “ must ” or “ shall ”. Those cases furnish an overwhelmingbalance of judicial opinion on the point. As Cotton L.J. said in .In re Baker,44 Ch. D. 262, at page 270, “ the word ‘ may ’ never can mean ‘ must ’
. . .. but it gives a power, and then it may be a question in what
cases,'*■ where a Judge has a power given him by the word “may”, itbecomes his duty to exercise it ”. Assuming for a moment that theRegistrar-General has an absolute discretion and does not exercise it inthe case of a particular notary who has failed to make compliance with
ABRAHAMS C.J.—Wijeysuriya v. Dalpadatu.
395
rule 24, what is the result ? The result is that that notary is liable to apenalty for failing to do what the law says he must do. What individualnotary can say that the Registrar-General was under an obligation toserve notice of an extension of time upon him? What was the intentionof the legislature when the principal Ordinance was amended by theamending Ordinance ? I think that it is obvious that the Legislature hadin mind the hardship that can be caused to certain notaries who areunable to make compliance with the regulation in rule 24. I do not thinkthat it can be seriously urged that the Legislature thought that it will bea hardship on every notary that he will be compelled to transmit therelevant documents by the 15th of the month. If the Legislature thoughtthat, the simplest method of relieving notaries from the presumed hardshipwould have been to alter the date, but the Legislature did not do that butit gave the power instead to the Registrar-General to grant an indulgence.Since the Legislature could not have considered that rule 24 was toostringent for all notaries, can it then be said that it intended to give everynotary irrespective of his reasons for failing to make compliance withrule 24 the benefit of the indulgence prescribed by the amending Ordi-nance? Learned Counsel for the appellant argues that that was theintention. I find myself quite unable to accept that. It seems out of thequestion -that because some people are deserving of indulgence thereforeeverybody is to get it, the wilfully neglectful, the grossly negligent, andthe grossly careless, the slightly careless, as well as the person with acomplete excuse. The plain commonsense view of the matter is that theRegistrar-General was invested with a discretion, and if he could betrusted to fix the period of time to which the indulgence should extend, itwould be absurd to say that he could not be trusted to discriminatebetween a person who deserves that indulgence and a person who doesnot. J think on that point alone the appeal against this particularconviction fails.
As regards the second conviction, it is argued by learned Counsel forthe appellant that if the first conviction is good the second convictioncannot stand because the appellant will then have been punished twicefor the same offence. As I understand his argument he means this, thatif it is an offence in the appellant to fail to send in these documents bythe 15th of the month as required by rule 24, it cannot be an offencein him to fail to give an explanation as to why he committed that offencebecause it is obvious that there is no explanation to give. I cannot agreewith that argument. Rule 33 imposes a duty upon every notary to givean expplanation in writing of any irregularity, error or omission which theRegistrar-General discovers, or thinks he has discovered, and whichappears to him to be a breach of the law. I do not see any words oflimitation in that rule which would relieve the appellant of the obligationto comply with it. The rule does not call upon him to give an explanationwhich satisfies the Registrar-General that no irregularity in fact has beencommitted. I do not see how he could escape the-consequence of refusingto give an explanation by saying that he could not give a satisfactory one.This appeal too fails, and like the appeal against the first conviction must
stand dismissed.*- ,
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Appeal dismissed.