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2005 DIGILAW 3151 (RAJ)

Shankar Lal v. State of Rajasthan

2005-11-29

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-The Sub-Registrar Sri Dungargarh (Churu) served a notice under Section 47-D of the Indian Stamps Act, 1899 upon the petitioner with regard to reference proposed to be made by him to charge stamp duty on an alleged undervalued instrument dated 011.1991. The notice aforesaid was issued on 012.1992. Being aggrieved by the same present petition for writ is preferred by the petitioner. This Court while admitting the writ petition for hearing by the order dated 02.02.1993 also pleased to grant an interim order restraining the respondent Sub-Registrar to proceed under the notice Annexure-2 dated 012.1992. 2. The facts is brief giving rise to the present writ petition are that the petitioners purchased immovable property from Respondents No. 4 and 5 through a sale-deed dated 011.1991 and the same was presented before the Sub-Registrar Sri Dungargarh on 011.1991 itself . The document was registered by the Sub-Registrar and returned the same to the petitioners. After registration of the document, the notice impugned was issued for making reference to the Collector, Churu under Section 47-A of the Indian Stamp Act, 1899 (Rajasthan Amendment) (hereinafter to be referred to as the Act of 1899). 3. The contention of the petitioners is that the proceedings under Section 47-A of the Act of 1899 can be initiated before or after registering a document and while doing so if the Registering Authority is of the opinion that the immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument is undervalued is required to send the original documents to the Collector for determination of market value and to assess and charge the duty. According to Counsel for the petitioner, once the document after registration is returned then there could be no question for making a reference to the Collector. 4. It is also contended by Counsel for the petitioner that the document was registered in the month of November 1991 and the Sub-Registrar decided to proceed with under Section 47-A of the Act of 1899 in the month of December, 1992 i.e., after a lapse of more than a year. The power under Section 47-A could not be exercised at such a belated stage. 5. The power under Section 47-A could not be exercised at such a belated stage. 5. A reply to the writ petition has been filed on behalf of the respondents stating therein that the Sub-Registrar rightly decided to proceed against the petitioner as the documents sought to be registered with regard to the immovable property valuation of which was undervalued. 6. Heard Counsel for the parties. 7. Precisely the controversy involved it the writ petition is as to whether powers under Section 47-A of the Act of 1899 (Rajasthan Amendment) can be exercised by the registering authority after registering and returning the original document. Section 47-A of the Act of 1899 (Rajasthan Amendment) reads as under:- “Section 47-A. instruments under-valued, how to be valued.-(1) Notwithstanding anything contained in the Registration Act, 1908 (Central Act XVI of 1908) and the rules made thereunder as in force in Rajasthan where in the case of any instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument, the Registering Officer has, while registering the instruments, reason to believe that the market-value of the property has not been truly set forth in the instrument, he may, [either before or after registering] the instrument, send it in original to the Collector for determination of the market-value and to assess and charge the duty in conformity with such determination together with a penalty not exceeding ten times the deficient stamp duty chargeable and surcharge, if any, payable on such instrument.” 8. From reading of the provisions of Section 47-A of the Act of 1899 it is clear that an instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument, the Registering Officer has, while registering the instrument, reason to believe that the market-value of the property has not been truly set forth in the instrument, he may, after or before registering the instrument, send it in original to the Collector for determination of the market-value and to assess and charge the duty. From reading of the provision it is clear that while making a reference to the Collector the Registering Authority before or after registering the instrument is required to send the document in original to the Collector for determination of market value and for making assessment of the duty required to be charged. Once a document is registered and returned to the party concerned, then the document in its original cannot be sent to the Collector for exercising powers to determine and assess the stamp duty. In the present case, the original document was returned to the petitioner after its registration, therefore, the original document was with petitioner and Registering Authority was not at all in position to send the same to the collector as prescribed under Section 47-A (1) of the Act of 1989. The sending of original document to the Collector is a mandatory condition and in absence of if no reference is competent. In view of it, the Sub-registrar was not at all competent to initiate the proceedings under Section 47-A of the Act of 1899 under the notice dated 012.1992. The notice impugned, therefore, is incompetent. 9. I also find merit in the contention of Counsel for the petitioner that the instrument was registered on 011.1991 and was returned to the petitioner on the same day. The initiation of proceedings under the notice impugned dated 012.1992 is having essence of arbitrary exercise of powers being initiated at belated stage. Even if it is assumed for a moment that the Registering Authority was having power to initiate proceedings under Section 47-A of the Act of 1899 even after returning the original document then too the power is required to be exercised within a reasonable time. The power to make reference cannot be kept in hand for an indefinite period. In the present case proceedings under Section 47-A of the Act of 1899 against the petitioner in pursuant to impugned notice dated 012.1992 were initiated after a lapse of one year, without assigning any reason. For this reason also, the notice dated 012.1992 issued by the Sub-Registrar Sri Dungargarh is illegal and the same deserves to be quashed. 10. In the present case proceedings under Section 47-A of the Act of 1899 against the petitioner in pursuant to impugned notice dated 012.1992 were initiated after a lapse of one year, without assigning any reason. For this reason also, the notice dated 012.1992 issued by the Sub-Registrar Sri Dungargarh is illegal and the same deserves to be quashed. 10. Alongwith reply to the writ petition, the respondents have placed on record a copy of the order dated 23.06.1993 whereby the Collector, Churu accepted the reference made under the notice impugned and declared the petitioner liable for payment of difference of stamp duty with penalty in a tune of Rs. 25,418/-. The order dated 23.06.1993 is required to be ignored being nonest in eye of law, as the same was passed in spite of the fact that this Court by the order dated 02.02.1993 stayed further proceedings in pursuance to the notice dated 012.1992. Besides the above once the notice dated 012.1992 itself is declared illegal, its all consequential orders are also of no consequence. 11. Accordingly, the writ petition is allowed. The notice dated 012.1992 and all proceedings consequent thereto are quashed. No order as to cost.