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2003 DIGILAW 1091 (RAJ)

Govt. of Raj. v. Suresh Chandra Goyal

2003-07-31

A.MUKHOPADHYAY

body2003
MUKHOPADHAYA, MEMBER–These two revision petitions under the Indian Stamp Act, 1899, (hereinafter referred to as the Act), arise out of a common order of Collector (Stamps), Alwar dated 3.1.2001. The two registration deeds relate to different parts of the one common property, with the buyer and seller both being the same in both cases. As per the parties before me, the factual and legal issues involved in both cases are the same and therefore, with the consent of both parties both petitions are being disposed of by this single order. A copy of the order may be placed in each case file. (2). Briefly, the dispute that has arisen in this case relates to whether the 15 feet of open area available on the property road front should be treated as a commercial area or as a residential area. Learned counsel for the State argued that a perusal of the Sub-Registrars site inspection report on record shows that there is a commercial show-room on the road front of the property situated north and next to disputed one. Accordingly, the Sub- Registrar did not err in assessing the first 15 feet of open area on the road front of the disputed property as being commercial. The learned Collector (Stamps), who also inspected the site, should have kept the Sub-Registrars above mentioned assessment in view when passing the impugned order but did not do so thus resulting in loss of rightful revenue to the State. While he has mentioned in the impugned order that the property is part of a residential colony and has stated that the assessment of the first 15 feet on the road front as commercial area is speculation on the part of the State, the very fact that the property next door is being put to such use should have made it abundantly clear to the lower court that the State was not indulging in speculation or conjecture in any manner. He further argued that even where property in an otherwise undisputed residential area changes hands, there may be substantive indications available at the time of such transfer to suggest that the property along with subsequent construction on it will be put to commercial use. He further argued that even where property in an otherwise undisputed residential area changes hands, there may be substantive indications available at the time of such transfer to suggest that the property along with subsequent construction on it will be put to commercial use. In all such cases where such a prima - facie possibility exists, an assessment of the true nature of the property from the angle of its market value has to be made from the facts and circumstances pertaining to the transfer itself, (i.e. price paid, the location, the availability of open space for future construction etc.), as well as the immediate environment of the property. Here, while the property may be situated in a designated residential area, it is no secret that this designation is many years old and that the property next door is actually being used for commercial purposes. As such therefore, reliance should have been placed on the actual and current land use pattern in the immediate vicinity of the property rather than some outdated designated pattern. Counsel further argued that there is a no death of example........... areas which were initially ......... many years ago as residential areas were later converted to commercial use with or without formal conversion under law. Here the relevant point is not whether the property or areas stands converted for commercial use in terms of the law and rules applicable for such conversion, but whether the markets perception of the property is one which envisages commercial use of the same. In the present case, the very existence of a commercial show-room next door, is the best conclusive evidence of the markets current views on this matter and therefore, the learned Collector (Stamps), had significantly erred in disagreeing with the Sub-Registrars assessment that the first 15 feet of open road front space of the property concerned was in fact commercial in nature and not residential as claimed by the parties involved in the transaction. In this regard, according to counsel for the State, the correct yardstick for the determination of a commercial or industrial area with higher market value than a corresponding residential area at the same location should be a comprehensive one which includes not only the area designated as commercial or industrial by local authorities but also area which appears to be capable of being put to such use immediately, as evidenced by the local environment. The Sub-Registrar had been both fair as well as conservative in assessing only the open road front area as being commercial land and not the entire property whereas the learned Collector (Stamps), in his impugned order, had placed reliance on outdated land classifications made by the local urban authorities for different purpose many years ago. (3). Counsel further argued that the Sub-Registrars site report spoke of three being other shops present in the areas as well whereas the Collector (Stamps), report is silent on this. Thus it appears that the lower court an error to have overlooked the existence of these shops. (4). Opposing the revision petition counsel, for the non- petitioners argued that the petition is very clearly out of limitation in that previous rulings of the Board have established that the period of limitation applicable to such cases in 90 days. In the present case, the revision was filed after the passage of one year after the impugned order. Citing the Rajasthan High Courts ruling in 1997 RRD page 350 (1), he argued that the court should not distinguish between the government and private parties in condoning such delay. He further argued that in a number of significant rulings, the courts had held that the provisions of the Limitation Law should be rigorously enforced and that reasons such as delay inherent in government procedure, or the contention that the concerned functionaries were preoccupied with other important government work are not sufficient for condoning such delay. In support of his contention, counsel referred to the following rulings:- (1) 2000 RRD Page 102 (2), (2) 2002 RRD Page 26 (3). (5). As regards the merits of the case, counsel argued that where a superior authoritys, [here the Collector (Stamps)], site inspection report is available on record, the report given by his subordinate authority, the Sub-Registrar, should not be relied upon in preference to the former. He cited the Rajasthan High Court ruling referred to in RRD 2001 page 133 (4), in support of his contention. Arguing further that the Sub-Registrars references to Collector (Stamps) in these cases were made entirely mechanically based on instructions and guidelines issued by the department, he contended that such instructions or guidelines could not validity restrict the judicial discretion of Collector (Stamps), in hearing and deciding the reference. Arguing further that the Sub-Registrars references to Collector (Stamps) in these cases were made entirely mechanically based on instructions and guidelines issued by the department, he contended that such instructions or guidelines could not validity restrict the judicial discretion of Collector (Stamps), in hearing and deciding the reference. Citing the rulings given in RRD 1990 Page 333 (supra), RRD 1993 Page 167 (5), and RRD 1997 Page 153 (6), to the effect that the market value of property being transferred should be assessed with reference to the date of the transfer and not actual or estimated future increase in such value, counsel argued that the impugned order clearly conforms with this principle. As such therefore, such possibilities as the conversion of the land to commercial use should not be taken into account in determining market value and the Collector (Stamps), rightly did not do so. (6). Counsel concluded his arguments by stating that in the present case, there was no dispute in the matter at the time of registration in question and the registered documents were duly returned to the party. On the reference in question being made to Collector (Stamps), the party has again complied with the impugned order. The Collectors (Stamps), site report and judgment based on the same clearly find that the property in question is residential and is being put to residential use. As such therefore, speculation regarding its possible commercial use in future as established by the ruling quoted earlier is not a relevant criterion for determining market value. The revision before Board is also out of limitation and therefore, the same should be rejected. (7). In his rejoinder, counsel for the State specifically drew attention to the fact that Indian Stamp Act does not provide for any specific limitation period where revisions under section 56 are concerned. Accordingly, he contended that Article 137 of the Limitation Act which applies to proceedings for which no period of limitation is provided elsewhere should be applicable to this case and under this article, the period of limitation is three years. Thus the present case falls well within the period. Despite this, in view of this period traditionally being taken to be 90 days, the State has presented an application under section 5 of the Act. Given these circumstances and the legal position as above, the present petition should be treated as being within limitation. Thus the present case falls well within the period. Despite this, in view of this period traditionally being taken to be 90 days, the State has presented an application under section 5 of the Act. Given these circumstances and the legal position as above, the present petition should be treated as being within limitation. Counsel also cited following rulings in support of his contention that where public interest and public dealing are involved and delay on account of official procedure are considered bona-fide, proceedings initiated by the State in the public interest should not be rejected on technical grounds of limitation:- (1) WLC 2003 (Vol-1), SC Page 105 (7), (2) 2002 RRD Page 37 (8), (3) RRD 2002 (Vol-1) Page 648 (9), and (4) 2000 AIR (SC) Page 2306 (10). (8). Referring to the ruling in 2001 RRD Page 133 (supra), quoted by opposite counsel, State counsel pleaded that a reading of the citation clearly shows that in the land allotment related case considered therein, the superior authoritys site report was found to be more reliable in view of the fact that the subordinate authority had not made necessary and sufficient enquiry in the case. In the present case, the facts are entirely different and other shops which have been reported in the area by the Sub-Registrar have not been mentioned in the Collectors (Stamps) report. This is indicative prima facie of the fact that the enquiry made by the Collector (Stamps) was not as detailed or comprehensive as the one made by the Sub-Registrar because, had he, on inspection of the site, found no such ``other shops in the vicinity, he would surely have mentioned this specifically as he has chosen to disagree with Sub-Registrars assessment based on that officials site report and his own. Reacting to the point raised by the opposite counsel that the judicial discretion of the Collector (Stamps) cannot be restricted by the instructions and guidelines of the department, State counsel averred that while this is not disputed, it would also be correct to state that the Collector (Stamps), should keep such instructions and guidelines in view when exercising his judicial discretion and where he disagrees with part or whole of the same, should record reasons for such disagreement while passing a reasoned order. In the present case, departmental instructions are not a point at issue in any case and opposite counsels contention that the Sub- Registrars case is based on mechanical compliance of such instructions and guidelines is purely speculative. (9). I have carefully gone through the arguments presented by the counsel for State (the petitioner), and non-petitioners on the question of limitation raised by the later. The position that emerges from a reading of the citations presented by both the counsel is that the question of condoning delay on the basis of reasons pleaded in an application under section 5 of the Limitation Act and arguments thereon, is very largely a matter of the courts subjective satisfaction on whether the reasons given for delay are adequate or not. In this case, a reading of section 56 of the Stamps Act establishes that while the chapter under which this section lies is titled Reference and Revision, the provision itself relates to control by the Chief Controlling Revenue Authority, (C.C.R.A.), and in specific terms states that the powers exercisable by Collector (Stamps), under some of the provisions of the Act shall, in all cases, be subject to the control by the C.C.R.A. While the section itself or the Act does not prescribe any specific limitation period for filing such a revision under this provision, there have been a number of rulings of the Board of Revenue which have established that normally a 90 day period should be treated as the limitation period for filing a revision. However, in my view the very fact that the Act as legislated does not specifically provide for such a limitation period gives strength to State counsels arguments that where such a limitation provision does not exist, the period limitation should be governed by Article 137 of the Limitation Act and thus be taken to be 3 years. This argument is, I feel, strengthened by the fact that each of judgments cited by both the counsel in favour of their differing positions on the issue can only be read as judgments ``in personam applicable to the facts and circumstances of the specific case under consideration and not judgments ``in rem, (i.e. applicable in general to all case). This argument is, I feel, strengthened by the fact that each of judgments cited by both the counsel in favour of their differing positions on the issue can only be read as judgments ``in personam applicable to the facts and circumstances of the specific case under consideration and not judgments ``in rem, (i.e. applicable in general to all case). This conclusion also flows from the aforementioned consideration that what constitutes sufficient reasons for delay is a matter which lies almost entirely within the subjective discretion of the court considering the delay in question. Given this position, it is my view that in cases of revision under the Act, the period between 90 days of the date of decision and 3 years of the same should be considered very liberally for the purpose of determining whether the case is barred by limitation or not, as in my view, prescribing the standard 90 day period for such a revision is also tantamount to superposition of the provisions of general law on this special Act. Where the legislative authority did not provide for such superposition, its justification becomes an enduring question. In these circumstances, while as mentioned earlier, the judgments cited appear to be ``in personam rather than ``in realm. I would place greater reliance on the considerations detailed in the legal provisions and rulings cited by the State counsel. Since this is a case being prosecuted by the State, the matter is clearly one linked to public interest in the shape of realization of claimed revenue and there is no suggestion by any party that the period taken for filing the revision was with malafide reasons. I am therefore inclined to place greater reliance on the specific provisions of Article 137 of the Act rather than the ``in personam judgments cited by non-petitioners counsel, and allow this revision as being within limitation. Accordingly, the revision is held to be within limitation. (10). Coming to the question of the merits of the case, a plain reading of the impugned order shows that the property in question is situated within a designated residential area. The question which arises is whether a property so situated can ever be considered to be commercial in whole or in part, (as in the present case). (10). Coming to the question of the merits of the case, a plain reading of the impugned order shows that the property in question is situated within a designated residential area. The question which arises is whether a property so situated can ever be considered to be commercial in whole or in part, (as in the present case). After careful consideration of the arguments and citations presented by both the counsel, I am of the view that while it is not permissible in law to compute the market value of a given property on the basis of its possible future use, equally it would not be correct to mechanically consider that its use would be limited in a certain manner, based entirely on a classification made much earlier by public authority for other purposes. Thus, while the property in question is very clearly not converted for commercial use, nor is it part and parcel of an established commercial area, the fact that the property next door has been put, whether legally or illegally, to such use, is of substantives relevance in determining the market value of the property under dispute. Thus while speculation as to whether property will be converted for commercial use or not as per legal provisions presently in force are not relevant to determining its present market value, the reported fact that there is a commercial show-room on the adjoining plot of land placed place in similar circumstance is clearly relevant in determining the same. (11). As regards the citation reported in 2001 RRD Page 133 (supra) quoted by counsel for the non-petitioner, I find myself, after a perusal of the said reference, to be in agreement with State counsels observation that the ruling does not hold good in this particular case. The citation in question clearly mentions that the allotting authority made a detailed enquiry and came to certain conclusions whereas the subordinate Tehsildars report was made without any such detailed enquiry. In these circumstances, the court held that the superior authoritys report, based on detailed enquiry should be relied on, rather than the subordinate Tehsildars report made without such enquiry. The citation in question clearly mentions that the allotting authority made a detailed enquiry and came to certain conclusions whereas the subordinate Tehsildars report was made without any such detailed enquiry. In these circumstances, the court held that the superior authoritys report, based on detailed enquiry should be relied on, rather than the subordinate Tehsildars report made without such enquiry. This is not the case here as the cited reports of both the Sub-Registrar and the Collector (Stamps), are of a comparable level of detail and, if anything, the fact that the existence of other shops in the area reported by the Sub-Registrar is not confirmed or rejected in specific terms by the Collector (Stamps), tends to suggest that the Sub-Registrar went into greater detail when preparing his report. It would therefore seem appropriate in the interest of justice to have this discrepancy resolved before a final view is taken on the nature of that part of the property in question which is under dispute, strictly from the point of determining its market value. (12). In view of the considerations detailed above, I find some force in the petition presented by the State Government which is therefore accepted to the extent that the case is remanded to Collector (Stamps), with the direction that he revisit the site in the presence of both the Sub-Registrar and the non-petitioners so as to reconcile the differences between the earlier site report of the Sub-Registrar and that of the court of Collector (Stamps), Collector (Stamps), should also determine the nature of the disputed portion of the property, bearing in mind not just its classification by the urban authority, but also its immediate environment and the courts assessment of the markets perception of the propertys likely use. Since the size of the transactions involved may be relevant parameter in elucidating the market perception, Collector (Stamps), to the extent feasible, may also like to go into the reason as to why the property was transferred through two separate registered transactions instead of one. Pronounced in open court. of justice to have this discrepancy resolved before a final view is taken on the nature of that part of the property in question which is under dispute, strictly from the point of determining its market value. (12). Pronounced in open court. of justice to have this discrepancy resolved before a final view is taken on the nature of that part of the property in question which is under dispute, strictly from the point of determining its market value. (12). In view of the considerations detailed above, I find some force in the petition presented by the State Government which is therefore accepted to the extent that the case is remanded to Collector (Stamps), with the direction that he revisit the site in the presence of both the Sub-Registrar and the non-petitioners so as to reconcile the differences between the earlier site report of the Sub-Registrar and that of the court of Collector (Stamps), Collector (Stamps), should also determine the nature of the disputed portion of the property, bearing in mind not just its classification by the urban authority, but also its immediate environment and the courts assessment of the markets perception of the propertys likely use. Since the size of the transactions involved may be relevant parameter in elucidating the market perception, Collector (Stamps), to the extent feasible, may also like to go into the reason as to why the property was transferred through two separate registered transactions instead of one. Pronounced in open court.