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2003 DIGILAW 638 (JHR)

DIWAKAR TIWARY v. STATE OF JHARKHAND

2003-06-03

M.Y.EQBAL

body2003
Judgment : M. Y. EQBAL, J. ( 1 ) THE petitioner has prayed for quashing the order dated 16-2-2001 passed by respondent No. 2, Deputy Commissioner-cum-District registrar. Palamau in Impounding case No. 7/95-96 directing the executant of the deed to deposit a sum of Rs. 99. 099/- being the deficit amount of stamp duty and fee. ( 2 ) THE facts of the case lies in a narrow compass. ( 3 ) RESPONDENT No. 5 Mostt. pan Kuer wife of Ram Lakhan Tiwary now deceased executed a deed of gift in favour of five sons of her brother-in-law and one grandson in respect of her 1/4th share in the joint family property. The deed of gift was presented before the Sub-Registrar Palamau and was duly registered on 21-5-1995. It is worth to mention here that the value of 1/4th share of her property gifted was shown as Rs. 45,000/- and requisite stamp and registration fee were paid by respondent No. 5. The petitioners case is that all of a sudden the donees of the gift received a notice dated 15-5-2000 from the office of respondent No. 3, Additional Collector stamp, Daltonganj in impounding case No. 7/ 95-96. It is contended by the petitioner that on inquiry it was found that in terms of order dated 29-6-1995 a notice was issued by respondent no. 3 to the petitioner and the donor, now deceased stating that the respondent no. 1 the Sub-Registrar by letter dated 21-6-1995 referred the matter for recovery of the deficit fee under Section 27 of the Indian Stamp act. Petitioners case is that although a show cause was filed by the petitioner but without considering the show cause the Deputy Commissioner directed for recovery of shortage of fee in terms of order dated 16-2-2001. ( 4 ) IN the counter affidavit filed by the respondents it is stated inter alia that the donor concealed the fact regarding the nature of the land in the gift deed as more than 9 acres appertaining to different plots was gifted by undervaluing the property. Respondents further case is that the District Sub-Registrar, Palamau by letter dated 21-6-1995 reported the matter to the appropriate authority and a proceeding for valuation of the gifted property was initiated and order was passed for recovery of the shortage of fee. ( 5 ) I have heard Mr. Respondents further case is that the District Sub-Registrar, Palamau by letter dated 21-6-1995 reported the matter to the appropriate authority and a proceeding for valuation of the gifted property was initiated and order was passed for recovery of the shortage of fee. ( 5 ) I have heard Mr. P. P. N. Roy learned counsel appearing for the petitioner and the learned Additional Advocate General. ( 6 ) FROM perusal of the affidavits filed by the parties, the admitted facts emerge are that the gift deed was presented by respondent No. 5 and the same was registered by the District sub-Registrar on 21-7-1992. It was only on 21-6-1995 the District Sub-Registrar by letter dated 21-6-1995 reported the matter to respondent no. 3, the Additional Collector stamp for impounding of the document. The petitioner has annexed Xerox copy of the entire order sheet of Impounding case No. 7/ 95-96 as Annexure-3 to the writ petition. The first order passed by Additional Collector Stamp on 29-6-1995 reveals that the proceeding was initiated on the basis of letter dated 21-6-1995received from the Sub-Registrar Palamau at daltonganj. The Additional Collector Stamp issued notices to the petitioner as to why the deficit amount be not recovered from them. The order dated 20-5-1996 shows that the matter was heard by Additional Collector and the case was adjourned to 27-5-1996 for passing appropriate order, but the record was never placed before the Additional Collector and it was only on 28-7-1998 the Additional Collector stamp passed order stating that this proceeding was initiated under Section 64 of the stamp Act. On 15-5-2000 another order was passed by the Additional Collector for issuing notice as to why deficit fee of Rs. 1,01,748/-be not recovered. The petitioner and the respondent no. 5 filed their show cause. However another order in the proceeding was suddenly passed on 8-9-2000 by the Deputy Commissioner stating that a sum of Rs. 99,099/-was not paid by way of fee in the gift deed and therefore, notices be issued for payment of shortage fee and penalty. It appears that for about few dates orders were passed by the deputy Commissioner but suddenly from 29-12-2000 the Additional Collector Stamp passed a routine order and on 16-2-2001 the impugned order was passed directing the petitioner to pay a sum of Rs. 99,099/- as shortage in fee. It appears that for about few dates orders were passed by the deputy Commissioner but suddenly from 29-12-2000 the Additional Collector Stamp passed a routine order and on 16-2-2001 the impugned order was passed directing the petitioner to pay a sum of Rs. 99,099/- as shortage in fee. Learned Additional Advocate General appearing for the State, on question, submitted that the only proceeding initiated against the petitioner and respondent No. 5 was impounding case No. 7/95-96 and Annexure-3 is the Xerox copy of the order sheet. ( 7 ) FROM bare perusal of the order sheet and the relevant orders referred hereinabove, it is abundantly clear that neither the Deputy commissioner being the Registrar nor the Sub-Registrar or the Additional Collector Stamp have correctly appreciated the provisions of the Stamp Act and the procedure to be followed when it is found that a document of conveyance is registred by undervaluing the property. ( 8 ) SECTION 47-A of the Stamp Act as amended by Bihar Amendment Act 1988, empowers the registering authority to refer the matter to the Collector for determination of market value of the property if the registration authority has reason to believe that that the instrument of conveyance does not set forth the market value of the property. On receipt of a reference the Collector is required to give one months notice to the parties and after hearing them hold an inquiry and determine the market value of the property which is the subject matter of the instrument. From bare perusal of the order sheet (Annexure-3) it does not appear that any proceeding under Section 47-A was either initiated or the market value of the gifted property was determined by the collector. It is rather shocking and surprising that the document was registered on 21-7-1992 and by letter dated 21-6-1995 the Sub-registrar who is the registering authority referred the matter to the Additional Collector stamp for recovery of the shortage of fee without following the procedure of law. There is total non-application of mind by the respondents in initiating the proceeding and passing the impugned order. At no stretch of imagination these orders can be sustained in law. ( 9 ) FOR the aforesaid reasons this application is allowed and the entire proceeding and the impugned orders are quashed. There is total non-application of mind by the respondents in initiating the proceeding and passing the impugned order. At no stretch of imagination these orders can be sustained in law. ( 9 ) FOR the aforesaid reasons this application is allowed and the entire proceeding and the impugned orders are quashed. However, this order, will not debar the respondents from proceeding against the petitioner afresh strictly in accordance with law. Petition allowed. --- *** --- .