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2002 DIGILAW 1369 (RAJ)

Shanti Lal v. Collector

2002-08-05

K.S.RATHORE

body2002
Honble RATHORE, J.–This present petition is directed against the order dated 30.12.89 passed by Collector, Dholpur under Section 47-A of the Indian Stamp Act, 1899 by which the Collector, Dholpur assessed the value of the property as 1.5 lacs and the petitioner is directed to pay the balance stamp duty of Rs.19,785/-, Registration Fee of Rs.536 and penalty of Rs.10/- totaling amount of Rs.20,331/-. (2). Two shops belongs to Shri Lallu Gopal Singh. These shops were mortgaged in favour of the petitioner by a registered mortgage deed. The mortgage was usufructuary in nature. Possession of both the shops was given to the petitioner by the Mortgagor. (3). Thereafter, these shop were agreed to be sold to the petitioner for a consideration of Rs.8,000/- on 10.5.1959 and also agreed to execute the sale deed. Shri Lallu Gopal Singh has taken Rs.235/- as an earnest money from the petitioner. Since pursuant to the agreement the registration was not made in favour of the petitioner, the petitioner filed a suit for specific performance which was decreed vide judgment dated 28.7.1965 by Civil Judge, Dholpur and it was directed that Shri Gopal Singh should execute the sale deed of the shops in favour of the petitioner. (4). The order dated 28.7.65 of Civil Judge, Dholpur has been challenged by Shri Gopal Singh in appeal and same was dismissed by the Addl. District and Sessions Judge, Dholpur vide his judgment and decree dated 11.8.70. (5). The shops were registered in the name of the petitioner. After taking consideration of Rs.8,000/- adjusting the amount of Rs.2,000/- as mortgage money and Rs.700/- and its interest due to bond of Rs.235/- as earnest money and thus the petitioner made full and final payment of balance amount of Rs.4,365/- at the time of registration. (6). The matter was referred by the Sub-Registrar, Dholpur to the Collector, Dholpur on the ground that the properties were shown to be sold in the year 1965 for Rs.8,000/- whereas the registration has been effected on5.12.88. In the reference it was also mentioned that the value of the properties as on the date of the registration, which was transferred in the year 1965, is about Rs.3,09,672/-. (7). The Collector, Dholpur decided the matter vide its order dated 30.12.89 which i under challenge in this writ petition. (8). In the reference it was also mentioned that the value of the properties as on the date of the registration, which was transferred in the year 1965, is about Rs.3,09,672/-. (7). The Collector, Dholpur decided the matter vide its order dated 30.12.89 which i under challenge in this writ petition. (8). Learned counsel for the petitioner submits that Learned Collector, Dholpur while passing the order dated 30.12.89 has not cared to examine the provisions of Section 47-A of the Indian Stamps Act 1899. He also referred the provisions of Section 47-A sub-rule 1. Learned counsel for the petitioner further submits that while deciding the reference made by the Sub-Registrar Dholpur the Collector, Dholpur has not cared to examine the judgment passed in the original suit filed by the petitioner wherein the Civil Judge, Dholpur, has arrived at this conclusion that the value of the shop was of Rs.8,000/- and judgment dated 28.7.65 has been upheld by the Addl. District and Sessions Judge, Dholpur vide its judgment dated 11.8.70. Pursuant to these judgments the shops were registered in the name of the petitioner. (9). Without considering these facts, the Collector, Dholpur has passed the order dated 30.12.89 contrary to the provisions of Section 47-A sub-Rule 1 and also contrary to the judgment passed by the Civil Court. (10). Learned counsel appearing on behalf of the State submits that this petition is not maintainable because the petitioner has not availed the alternative efficacious remedy which was available to him and directly approached to this Court. This petition deserves to be dismissed only on this count alone. Petitioner should have been moved before the Board of Revenue prior to filing this writ petition and admittedly the petitioner has not availed this remedy. (11). Learned counsel for the petitioner Mr.G.K. Garg in support of his argument placed reliance on the judgment reported in Satyam Properties & 13 Ors. vs. State of Rajasthan & Ors. (1) and judgment State of Rajasthan vs. Maharaja Shri Karni Singh Ji & Ors. (2) wherein this Court has held that the Collector had no jurisdiction to launch an inquiry into the value of the land. He could, however, proceed to hold an inquiry as to whether consideration has been truly set forth in the instrument or not, but proceeding to hold an inquiry regarding the valuation of the land, was uncalled for and was without authority and jurisdiction. (12). He could, however, proceed to hold an inquiry as to whether consideration has been truly set forth in the instrument or not, but proceeding to hold an inquiry regarding the valuation of the land, was uncalled for and was without authority and jurisdiction. (12). Learned counsel for the petitioner further placed reliance on the judgment of the Division Bench of Madras High Court in S.P. Padmavathi vs. State of Tamil Nadu & Ors. (3) wherein Division Bench of Madras High Court has held that mere lapse of time between the date of agreement and the execution of the document will not be the determining factor that the document is undervalued and such circumstance by itself is not sufficient to invoke the power under Section 47-A of the act, unless there is lack of bona fides and fraudulent attempt on the part of the parties to the document to undervalue the subject of transfer with a view to evade payment of proper stamp duty. (13). Similar view has been taken by the Calcutta High Court in the case of Anglo American Direct Tea Trading Co. Ltd. & Anr. vs. State of Madras & Ors. (4). (14). Having heard the rival submissions of the learned counsel for the parties and after careful perusal of the material available on record as well as relevant Section 47-A sub-Rule 1 and also carefully examined the judgments referred before me. (15). Upon careful reading of the judgment, which is under challenge in this writ petition, dated 30.12.89 passed by the Collector, Dholpur, reveals that Collector, Dholpur is of the view that since registration was made in the year 1965 and at the time of decision of prevailing rate of two shops in question is about Rs.1.5 lacs whereas the stamp duties were paid considering the value of the shops of Rs.8,000/- each, but has not cared to examine the value Rs.8,000/- which has been settled by the Civil Court in the suit for specific performance and same has been upheld by the addl. District and Sessions Judge, Dholpur. (16). The ratio decided by this Honble Court in the case of Satyam Properties & 13 Ors. vs. STate of Rajasthan & Ors. (supra) and also held by the Madras High Court as well as Calcutta High Court, I fully convince that the judgments referred hereinabove are squarely covered with the present controversy. (17). District and Sessions Judge, Dholpur. (16). The ratio decided by this Honble Court in the case of Satyam Properties & 13 Ors. vs. STate of Rajasthan & Ors. (supra) and also held by the Madras High Court as well as Calcutta High Court, I fully convince that the judgments referred hereinabove are squarely covered with the present controversy. (17). The order dated 30.12.89 certainly requires interference by this Court. The order passed by the Collector, Dholpur is in violation of Section 47-A Sub-Rule 1 and in violation of principle laid down by the various High Court as discussed hereinabove. (18). So far as the preliminary objection raised by the learned counsel for the State, that since the petitioner has got alternative efficacious remedy and without availing alternative efficacious remedy this petition is not maintainable and should be rejected only on this count alone is concerned since the present matter is already admitted on 23.11.90 by this stage. In view of the facts, I do not deem it proper to consider the preliminary objections raised by the counsel appearing on behalf of State. (19). In the facts and circumstances of the case, order passed by the Collector, Dholpur, dated 30.12.89 is herewith set aside and the writ petition stands allowed with no order as to costs.