Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 80 (HP)

HARCHARAN SINGH GILL v. STATE OF H. P.

2003-04-17

A.K.GOEL, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J.—Respondent No. 3 Sub-Registrar-cum-Tehsildar, Kasauli issued a notice on 17.1.2003 to the petitioner wherein, it was mentioned that as per observations of the audit for the year 2001, a sum of Rs. 1,26,270 was due for recovery from the petitioner on the ground that the audit had detected deficiency in the payment of stamp duty/registration fee with respect to Deed No. 7 dated 6.1.2001. Respondent No. 3 in the said notice had called upon the petitioner to pay the aforesaid amount before 27.1.2003. The petitioner, however, instead of paying the aforesaid amount submitted a detailed representation to respondent No. 3 wherein after spelling out various facts and contentions, the petitioner prayed that the aforesaid notice be withdrawn and the proceeding dropped. However, vide impugned order dated 5.3.2003, respondent No, 3 rejected the aforesaid representation of the petitioner and directed the petitioner to deposit the amount in question within 15 days from the date of passing of the order. Undoubtedly, the aforesaid order dated 5.3.2003 was passed cryptically without assigning any reason. It was totally a non-speaking order. 2. We are, however, not concerned with this aspect of the matter in this case for the reasons which we indicate hereinafter. 3. Section 47-A of the Stamp Act, 1899, as inserted by the Indian Stamp (Himachal Pradesh Amendment) Act, 1988 (H.P. Act No. 7 of 1989), is a provision which relates to the subject matter of under-valued instruments and the procedure to deal with the same, the underlying purpose being to ensure that the instruments do not mention the market value of the property sought to be registered in such a manner as to undervalue the same with an intention to avoid the payment of the requisite stamp duty or the registration charges. While sub-section (1) of Section 47-A of the Act deals with the situation as at the time of the registration (with which we are not concerned in this case), sub-section (3) stipulates that the Collector may either suo motu or on receipt of a reference from the Inspector General of Registration or the Registrar of a District in whose jurisdiction the property in question is situated, shall within three years from the date of the registration of any instrument call for and examine the instrument for the purpose of satisfying himself as to the correctness of its market value etc. etc. etc. and if after such examination he has reasons to believe that the market value or the consideration has not been truly set-forth in the instrument, he may determine market value or consideration and the duty. Accordingly, in accordance with the procedure provided for in sub-section (2), the deficient amount of duty, if any, shall be payable by the person who in law is liable to pay the duty. In so far as procedure adopted for determining the market value and the duty as also the deficient amount of duty, if any, is concerned, sub-section (2) of Section 47-A of the Act provides that the Collector after giving the parties a reasonable opportunity of being heard and after holding inquiry in such a manner, as may be prescribed by the rules, determine the market value or consideration and the duty as also the deficient amount of duty, if any, which the person concerned is liable to pay. For ready reference we reproduce hereinbelow sub-sections (2) and (3) of Section 47-A of the Act:— "(2) On receipt of reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner, as may be prescribed by rules, made under this Act determine the market value or consideration and the duty, as aforesaid, and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty. (3) The Collector may, suo motu or on receipt of reference from the Inspector General of Registration or the Registrar of a District, in whose jurisdiction the property, or any portion thereof, which is the subject-matter of the instrument, is situated, appointed under the Registration Act, 1908, shall within three years from the date of registration of any instrument, not already referred to him under sub-section (1) call for and examine the instrument for the purpose of satisfying himself as to the correctness of its market value or consideration, as the case may be, and the duty payable thereon and if, after such examination, he has reason to believe that the market value or consideration has not been truly set forth in the instrument, he may determine the market value or consideration and the duty, as aforesaid, in accordance with the procedure provided for in sub-section (2), and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty : Provided that nothing in this sub-section shall apply to any instrument registered before the date of the commencement of the Indian Stamp (Himachal Pradesh Amendment) Act, 1988." 4. What clearly emerges from the plain reading of the aforesaid provision of law is that with respect to an instrument which has already been registered, Collector alone is the authority, who has the jurisdiction to enquire into any aspect relating to the short payment of duty on the ground of under valuation of the market value or the consideration. The Collector has jurisdiction to do so suo motu or on receipt of an appropriate reference from either the Inspector General of Registration or the Registrar of a District appointed under the Registration Act, 1908. What actually has happened in the present case is that Sub-Registrar, Kasuali respondent No. 3 in this petition took upon himself the burden of issuing the impugned notice dated 17.1.2003 wherein, by making a reference to some audit report he demanded of the petitioner remittance of an amount of Rs. 1,26,270 and despite a detailed representation sent by the petitioner by the impugned order dated 5.3.2003 rejecting the said representation directed the petitioner to deposit the amount in question. 1,26,270 and despite a detailed representation sent by the petitioner by the impugned order dated 5.3.2003 rejecting the said representation directed the petitioner to deposit the amount in question. Sub-Registrar had no jurisdiction whatsoever in either issuing the notice or in passing any order directing the petitioner to pay the amount in question because neither under Section 47-A of the Stamp Act nor under any other provision of the law, he had the power to do so. Actually, as is clearly discernible from Section 47-A of the Stamp Act, Sub-Registrar does not figure anywhere and he has no role to play with respect to any issue or matter relating to the under valuation of the price of the property or its consideration or the duty payable thereon or the deficiency in the duty. The procedure prescribed under Section 47-A being complete does not stipulate any role for sub-Registrar. He cannot even make a reference to the Collector. What he does with the District Registrar internally (with which we are not concerned) but the reference to the Collector can be made either by the Inspector General of Registration or by the District Registrar. 5. Based on the aforesaid reasons therefor we have no hesitation whatsoever in coming to the conclusion that respondent No. 3 had no jurisdiction in issuing the impugned notice or in passing the impugned order dated 5.3.2003. The jurisdiction, if any, vested in the Collector and that too either in exercise of the suo motu power or acting on receipt of a reference from either the Inspector General of Registration or the District Registrar appointed under the Registration Act. 6. The impugned order dated 5.3.2003 as also the impugned notice dated 17.1.2003 are both set-aside and quashed. 7. Mr. Chandel learned Advocate General appearing for the respondents submits that the functionaries mentioned in Section 47-A of the Act be permitted to proceed in the matter in accordance with the stipulation contained therein and to act in accordance with law. 8. Responding to Mr. Chandels submission, we want to observe that we have no hesitation whatsoever in our mind that the setting aside and quashing of the aforesaid impugned order and the impugned notice cannot and does not prevent the functionaries mentioned in Section 47-A of the Act to proceed afresh in the matter in accordance with law and the procedure prescribed therefor. 9. This petition is accordingly allowed. 9. This petition is accordingly allowed. No order as to costs. CMPs. No. 558, 559 and 560 of 2003 : Infructuous in view of the disposal of the main matter. Petition allowed.