Tata Coffee Limited, Bangalore & Another v. The State of Tamil Nadu by the Secretary to Government, Commercial Taxes & Registration & Others
2008-04-21
P.JYOTHIMANI
body2008
DigiLaw.ai
Judgment :- In all these cases, the issue involved relate to the conduct of the Registering Authority in not releasing the documents after registration on the ground of suspected under-valuation of properties which are the subject matter of the respective documents. 2. W.P.No.25721 of 2007:- The 4th respondent, Tata Tea Limited, Calcutta, represented by its Senior Vice President and Company Secretary and Vice President of the Company, is a company incorporated under the Companies Act has executed a deed of transfer for a consideration of Rs.40,08,00,000/-on 312. 2005 in favour of the petitioner, Tata Coffee Ltd. which is an existing company incorporated under the Indian Companies Act, 1913. The said document was presented for registration before the second respondent, the Sub Registrar, Anarnallais, Coimbatore District on 1. 2006. The second respondent has given the document number as P.No.2/ 2006 on the basis that the vendor has to produce the original patta book which was not available. The necessary stamp duty under the Indian Stamp Act to the extent of Rs.3,20,64,000/-was paid apart from the payment of registration fees of Rs.4,08,000/-. The sale was in respect of 9873.86 acres of lands situated in Pannimade Estate in the Registration District of Tiruppur. 2(a). The petitioner has written a letter to the second respondent on 5. 2007 for the release of the document. However, the second respondent has not chosen to release the same. The petitioner understands that the document number has been renumbered as 2026/2007 in May, 2007. Even as on date, the document has not been returned and therefore, the writ petition has been filed for direction against the second and third respondents, viz., the Sub Registrar and District Revenue Officer (Stamps) to hand over or release the deed dated 312. 2005 bearing registration No.2026/07. 3. In W.P.Nos.33556 to 33582 of 2007, the petitioners who belong to the same family have purchased different parts of vacant lands in Puzhal village, Ambathur taluk, Tiruvellore District for valuable consideration under deeds of transfer, which were registered in the Office of the Sub Registrar, Red Hills, the second respondent in the said writ petitions as document Nos.3920/99; 1948/99, 6462/99, 4942/99, 1944/99, 4933/99, 3547/98, 3512/99, 2259/99, 4878/00, 1949/99, 7042/99, 6930/99, 6937/99, 6931/99, 3376/99, 3389/99, 6460/99, 1945/99, 987/99, 4761/99, 2759/99, 2318/99, 1950/99, 6461/99, 251/98 and 1946/99. 3(a).
3(a). According to the petitioners, they have paid the stamp duty as per the market value and the registration charges have also been paid. It is the case of the petitioners that the second respondent, Sub Registrar has referred the documents for valuation under section 47-A of the Indian Stamp Act, 1899 (in short, "the Act") for determination of the market value in spite of the fact that the documents were registered in the year 1999 itself. The petitioners have not been informed by the second respondent or the first respondent about the enquiry and no notice in Form-I has been received by any of the petitioners. The petitioners have approached the second respondent on several occasions, however, there was no proper reply from the respondents, except stating that the petitioners may have to pay the differential stamp duty. 3(b). According to the petitioners, they have paid the stamp duty for the market value as on the date of execution and presentation of documents for registration. In the absence of any reply from the respondents, the petitioners have made representations by registered letters dated 25. 2005 and thereafter by legal notice dated 17. 2007 apart from the subsequent representation dated 9. 2007. But, the respondents have not chosen either to reply or to release the documents. The petitioners would rely upon the provisions of section 47-A of the Stamp Act which contemplates under various subsections about the procedure to be followed to find out and ascertain the actual value after giving opportunity to the parties. 3(c). It is also the case of the petitioners that since the respondents have not conducted any enquiry about the valuation of the properties in these eight years, the respondents loose their jurisdiction and the proceedings under section 47-A of the Act would automatically get lapsed and a duty is cast on the respondents to return the documents. It is the further case of the petitioners that under the Registration Act the respondents have no jurisdiction to retain the documents once they are registered. In those circumstances, the petitioners have filed the above writ petitions for direction against the respondents to return or re-lease the petitioners sale deeds with the above said registration numbers without insisting on payment of additional stamp duty. 4. Mr. AL.
In those circumstances, the petitioners have filed the above writ petitions for direction against the respondents to return or re-lease the petitioners sale deeds with the above said registration numbers without insisting on payment of additional stamp duty. 4. Mr. AL. Somayaji, learned senior counsel appearing for the petitioner in W.P.No.25721 of 2007 would contend that once the documents are registered as per section 47-A(1) of the Indian Stamp Act, 1899, the registering authority has no right or justification to retain the documents. Even in cases where the registering authority has reason to believe that the market value of the properties which are the subject matter of the documents concerned has not been truly set out in the documents, the registering authority can only refer the same to the Collector for determination of the market value and also to decide about the proper stamp duty payable. When such a reference is made to the Collector for ascertaining the stamp duty, it is not open to the registering authority to retain the documents. 4(a). His further submission is that after the Collector ascertains the actual market value on conducting a proper enquiry, the difference in the amount of stamp duty is payable within the time prescribed and in default, there will be a charge created over the properties concerned in respect of the unpaid stamp duty as per section 47-A of the Stamp Act and therefore, it is not as if the registering authority has no way to recover the amount and it cannot be said that there is no protection in respect of recovery of revenue. 4(b). His further submission is that even otherwise, section 33A of the Indian Stamp Act independently empowers the authority to recover any deficit stamp duty if the same is found due after registration of the instrument under the Registration Act, after conducting enquiry, however, within three years from the date of registration of such instrument. 4(c). He would also contend that even as against the order of the Collector fixing the actual market value, an appeal lies to the Chief Controlling Revenue Authority under Section 47-A (5) of the Indian Stamp Act. As against the order of the appellate authority, viz., the Chief Controlling Revenue Authority, a further appeal is provided to the High Court under Section 47-A(10) of the Indian Stamp Act.
As against the order of the appellate authority, viz., the Chief Controlling Revenue Authority, a further appeal is provided to the High Court under Section 47-A(10) of the Indian Stamp Act. Mere pendency of proceedings be-fore the Chief Controlling Revenue Authority by way of appeal or before the High Court by way of further appeal does not enable the authorities to retain the document. 4(d). He would also submit that even under section 61(2) of the Registration Act, 1908, after registration of document, the document shall be returned to the person who presented it for registration. He would further submit that as per Rule 7(4) of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968, after determination of the market value by the Collector and passing of final order by him, once the difference in the amounts has been paid, the Collector may give a certificate in Form III by endorsement on the instrument. 4(e). He would also rely upon the judgment of this Court in batch of writ petitions reported in 1999 (2) L.W.231 (M. Ponnusamy and 42 others vs. The District collector, Erode & Others) wherein this Court has held that the function of the registering authority is quasi-judicial and reasons must be recorded immediately after completion of registration and reference made under section 47-A(1) of the Act. It was also held in the said batch of cases that after registration and reference to the Collector, the registering authority shall forthwith release the document with an endorsement that a reference under section 47-A of the Stamp Act read with Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules is pending. The said judgment was confirmed by a Division Bench of this report in The District Collector, Erode District, Erode and others vs. M. Ponnusamy ( 2001 (2) MLJ 458 ). Even subsequently, in the judgment reported in B. Rajappa and another vs. The Special Deputy Collector (Stamps), Chennai-1 (2002 (3) CTC 544), this Court has issued certain directions, for which the learned Additional Advocate General Mr. P.S. Raman would fairly submit that the said directions are acceptable. 4(f).
Even subsequently, in the judgment reported in B. Rajappa and another vs. The Special Deputy Collector (Stamps), Chennai-1 (2002 (3) CTC 544), this Court has issued certain directions, for which the learned Additional Advocate General Mr. P.S. Raman would fairly submit that the said directions are acceptable. 4(f). It is the further contention of the learned senior counsel that even though in the latest judgment of the Full Bench of this Court in G. Karmegam and others vs. The Joint Sub-Registrar, Madurai ( 2007 (5) CTC 737 = 2008-1-L.W.47), it is held that it is not for the Court to prescribe time-limit for reference of the document to the Collector and it is for the authority to decide in the absence of period of limitation prescribed under the Act as well as the relevant Rules, the Full Bench itself has held that in the absence of any time limit prescribed in law, the authority must do the same within a reason-able time and taking into consideration of all the facts gathered by the Court from the circumstances, the Court can always decide whether the act of the authority is reasonable or not. 5. Mr.R.Gandhi, learned senior counsel appearing for the petitioners in W.P.Nos.33556 to 33582 of 2007 would submit that as far as the batch of cases, which he represents, are concerned, the documents were presented in 1999 and in fact, they were registered in 1999 and the Sub-Registrar has not made any reference under section 47-A(1) of the Indian Stamp Act and the petitioners have not received any notice or information about such enquiry by the Collector which is mandatory under section 47-A(2) of the Act and in spite of repeated representations, there is no reply and therefore, according to the learned senior counsel, it is, by the lethargic attitude of the authorities for more than eight years, much prejudice has been caused to the petitioners since their valuable right over the properties purchased by them has been actually interfered with by the conduct of the authorities under the Indian Stamp Act and the Indian Registration Act in not releasing the documents. 5(a).
5(a). He would submit that in the absence of any enquiry conducted by the authorities under the Act, it is not open to the authorities to conduct any enquiry afresh after the lapse of eight years or any order passed by the authorities behind the back of the petitioners cannot be deemed to be a valid order and the same is against the provisions of the Act and the Rules framed thereunder and therefore, the question of directing the petitioners to approach the appellate authority does not arise. He would submit that there is no reason for the respondents to retain the documents for more than eight years and his contention is that by the conduct of the respondents, any right which has accrued as per Section 47-A of the Act for the purpose of making fresh valuation on the part of the authorities gets lapsed. He would rely upon the provisions of section 47-A which make it mandatory on the part of the Collector to conduct enquiry after giving necessary opportunity to the petitioners by issuing Form No.I and inasmuch as the petitioners have not received any Form and no enquiry was conducted, it is a classic case of total illegality on the part of the respondents. 5(b). He would rely upon the judgment in Ramaswamy, Nallamanickenpatti vs. The Inspector General of Registration, Santhome and others ( 2003 (4) L.W. 319 ), in which while exercising the powers under Article 226 of the Constitution of India, this Court has explained the powers of the registering authority and directed the authority to return the document immediately, holding that the act of retaining the document is highhanded conduct on the part of the respondents, who have no right to retain the document when the same has been registered in accordance with the Rules. He would also submit that the petitioners have in fact given correct valuation of the properties and only after satisfying about the valuation, the registration was effected by the Sub Registrar. 6.
He would also submit that the petitioners have in fact given correct valuation of the properties and only after satisfying about the valuation, the registration was effected by the Sub Registrar. 6. Mr.P.S.Raman, learned Additional Advocate General appearing for the respondents would submit by way of reply that if the registering authority has reason to believe that there has been a gross undervaluation of market value of the properties by the parties while presenting the documents for registration, merely because section 47-A(1) of the Act provides for referring the matter for proper valuation to the Collector after registration, it does not mean that the registering authority has no power to retain the documents till a decision is taken by the Collector. 6(a) His submission is that when such enquiry regarding the market value is pending with the Collector on reference by the Sub-Registrar, in the mean-time, if the document is released, it will cause serious prejudice not only to the revenue, but also even to the subsequent bona fide purchaser for valuable consideration resulting in multiplicity of proceedings and therefore, according to him, not only the revenue of the Government is safeguarded in the sense that any unscrupulous purchaser making gross undervaluation of property, thereby causing loss of revenue to the Government should not be protected, but at the same time, the innocent subsequent purchasers must also be protected which is also the duty of the Government. 6(b) He would also refer to various provisions of the Tamil Nadu (Prevention of Undervaluation of Instruments) Rules, 1968 and submit that as far as Rule 7(4) is concerned, it is only after finalization of the enquiry by the Collector in fixing correct market value, the Collector can make any endorsement in Form III of the document and till such time, if the document is allowed to be handled freely by the buyer, the implementation of the Rule will become practically impossible, even though he would fairly admit that any such endorsement made in the document as contemplated in Form No.III under Rule 7(4) is beneficial to the buyers since it gives freedom to the owner to sell the property without there being any charge. 6(c).
6(c). His ultimate submission is that even if the documents have to be re-turned as per section 47-A(1) of the Indian Stamp Act, such return must be subject to the proceedings under Section 47-A and there must be a restriction on the power of the purchaser against further alienation till 47-A proceedings are completed in order to safeguard the interest of the subsequent purchasers and the pendency of such 47-A proceedings must be incorporated in the encumbrance so as to make the subsequent purchasers aware of the same. 6(d). While referring to the writ petitions in W.P.Nos.33556 to 33582 of 2007, on verification of records, the learned Additional Advocate General would fairly submit that there is no record to prove that any notice has been served on the petitioners as per Rule 15 of the Tamil Nadu (Prevention of Undervaluation of Instruments) Rules, 1968 either by sending notice by registered post with acknowledgement due or by in any other method prescribed in the Rules, and the respondents have only followed the normal method of sending the tapal, while admitting that in the absence of any period of limitation for completing the enquiry under section 47-A(2) of the Act, it does not mean that the authorities can prolong it for years together. 6(e) The learned Additional Advocate General would submit that in the said batch of writ petitions stated above, final orders have been passed after enquiry was conducted by the Collector under section 47-A(2) of the Act on various dates viz., 30.8.2003, 02.08.2003, 02.08.2003, 02.08.2003, 02.08.2003, 02.08.2003, 08.04.2003, 21.04.2003, 30.08.2003, 22.03.2003, 02.08.2003, 26.08.2003, 26.08.2003, 11.08.2003, 26.08.2003, 02.08.2003, 30.08.2003, 02.08.2003, 02.08.2003, 30.08.2003, 02.08.2003, 27.08.2003, 02.08.2003, 02.08.2003, 02.08.2003, 22.04.2003 and 02.08.2003 respectively and his contention is that no one of the said petitioners have filed any appeal to the Chief Controlling Revenue Authority as per Section 47-A(5) of the Act. At the same time he would also fairly submit that as per re-cords there. is no evidence to prove that the copies of the final order have been despatched to the petitioners in the mode mentioned in Rule 15. His submission is that the respective orders will be sent to the petitioners within the time stipulated and thereafter, the petitioners may be directed to file appeal as per Section 47-A(5) of the Act. 7.
is no evidence to prove that the copies of the final order have been despatched to the petitioners in the mode mentioned in Rule 15. His submission is that the respective orders will be sent to the petitioners within the time stipulated and thereafter, the petitioners may be directed to file appeal as per Section 47-A(5) of the Act. 7. The learned counsel for the other petitioners have also adopted the said arguments of both the senior counsel and placed before this Court various case-laws in respect of the powers of the authorities and procedures to be followed by the authorities under Section 47-A of the Indian Stamp Act,1899. 8. I have considered the various contentions of the learned senior counsel and other counsel appearing for petitioners and the learned Additional Advocate General and given my anxious thoughts to the issues involved in the batch of cases. 9. Before adverting to the genesis of the contentions raised by both sides, since the entire issue revolves around the powers of the registering authority and the revenue authority for the purpose of registration and ascertainment of market value of the property, it is necessary to reproduce Section 47-A of the Indian Stamp Act,1899. " 47-A. Instruments of conveyance etc., under-valued how to be dealt with.- (1) If the registering officer appointed under the Indian Registration Act,1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, re-lease of benami right or settlement, has reason to believe that the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, has not been truly set forth in the instrument he may, after registering such instrument, refer the same to the Collector for determination of the market value of such property and the property duty payable thereon. (2) On receipt of a 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 of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty. (3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement not already referred to him under sub-section (1), call for and ex-amine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of conveyance, ex-change, gift, release of benami right or settlement and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, 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 commencement of the Indian Stamp (Madras Amendment) Act,1967. (4) Every person liable to pay the difference in the amount of duty under sub-section (2) or sub-section (3) shall, pay such duty within such period as may be pre-scribed. In default of such payment, such amount of duty outstanding on the date of default shall be a charge on the property affected in such instrument. On any amount remaining unpaid after the date specified for its payment, the person liable to pay the duty shall pay, in addition to the amount due, interest at two percent per month on such amount for the entire period of default. (5) Any person aggrieved by an order of the Collector under sub-section (2) or subsection (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be pre-scribed by rules made under this Act.
(5) Any person aggrieved by an order of the Collector under sub-section (2) or subsection (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be pre-scribed by rules made under this Act. (6) The Chief Controlling Revenue Authority may, suo motu, call for and examine an order passed under sub-section (2) or sub-section (3) and if such order is prejudicial to the interests of revenue, he may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order and may pass such order thereon as he thinks fit. (7) The Chief Controlling Revenue Authority shall not initiate proceedings against any order passed under sub-section (2) or sub-section (3) if.- (a) the time for appeal against the order has not expired; or (b) more than five years have expired after the passing of such order. (8) No order under sub-section (6) adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. (9) In computing the period referred to in clause (b) of sub-section (7) the time during which the proceedings before the Chief Controlling Revenue Authority remained stayed under the order of a Court shall be excluded. (10) Any person aggrieved by an order of the Authority prescribed under sub-section (5) or the Chief Controlling Revenue Authority under sub-section (6) may, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court.- Explanation.- For the purpose of this Act, market value of any property shall be estimated to be the price which, in the opinion of the Collector or the Chief Controlling Revenue Authority or the High Court, as the case may be, such property would have fetched or would fetch, if sold in the open market on the date of execution of the instrument of conveyance, exchange, gift, release of benami right or settlement." 10.
By virtue of the powers conferred on the State Government under Section 75 of the Indian Stamp Act,1899, enabling it to make rules generally to carry out the purposes of the Act, the Government of Tamil Nadu through the Governor of Madras has made the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules,1968, (in short, "the Rules") prescribing various procedures to be followed in respect of ascertaining the real market value as per Section 47-A of the Indian Stamp Act and the said Rule has come into effect from 22.04.1968. 11. A careful analysis of the said Rules result in culmination of the following principles to be followed in various stages: I.(1) In case of instrument relating to number of items of properties; as per Rule 3(1), the party executing the document or his legal representative, assigns or authorised agent shall furnish separate statement signed by the party giving in-formation about various items of proper-ties involved in the transaction along with his own assessment of market value of each of the items. (1a) The fact that the particulars furnished in the prescribed forms by the executant for the purpose of ascertaining the value to come to the conclusion about the correct stamp duty cannot be the only basis for the registering authority to decide about the valuation before registration. Even though it is true that the registering authority cannot be expected to make a roving enquiry about the valuation at the time of presentation of the document, Rule 3 contemplates an obligation on the part of the registering authority to satisfy himself prima facie that the valuation given by the executants in the document is correct. (1b) Section 2(12) of the Indian Stamp Act, which defines the term "executed" and "execution" is as follows: "2(12). Executed and execution.- "Executed" and "execution", used with reference to instruments, means "signed" and signature" and Section 17 states, " Section 17. Instruments executed in India.- All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution." (1c) The Honble Supreme Court in a recent judgment rendered in State of Rajasthan and others vs. Candace Jain Jewellers [2008 (1) CTC 60= 2008-1-L.W.705] consisting of A.K.Mathur and Markandey Katju,JJ.
Instruments executed in India.- All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution." (1c) The Honble Supreme Court in a recent judgment rendered in State of Rajasthan and others vs. Candace Jain Jewellers [2008 (1) CTC 60= 2008-1-L.W.705] consisting of A.K.Mathur and Markandey Katju,JJ. after referring to various judgments relating to the nature of documents in the light of the charging section, viz., Section 3 of the Stamp Act has held as follows: "12. In this background, if we construe Section 17 read with Section 2(12) then there is no manner of doubt that at the time of registration, the Registering Authority is under an obligation to ascertain the correct market value at that time, and should not go by the value mentioned in the instrument. 13. Learned counsel for the respondent submitted that if we construe Section 3 read with Section 27 of the Act then the Registering Authority is under an obligation to only see the value mentioned in the instrument. In our opinion Section 3 which is the charging Section cannot be read in isolation but has to be read along with Section 17 of the Act. From a composite reading of Sections 3,17 and 27, it be-comes abundantly clear that the valuation given in an instrument is not conclusive. If any doubt arises in the mind of the Registering Authority that the instrument is under-valued then as per Section 47-A of the Rajasthan (Amendment) Act the instrument can be sent to the Collector for determination of the correct market value. Under Section 47-A read with Sections 3,17 and 27, it becomes clear that the Registering Authority has to ascertain the correct valuation given in the instrument regarding market value of the property at the time of the sale." 1(d) The Honble First Bench of this Court in District Registrar, Dindigul and another vs. V. Ranganathan and another [ 2008 (1) CTC 1 ] has held that if there is a dispute with reference to charging provision, the registering authority shall be en-titled to retain the document and there cannot be any direction to release the document. That was a case where prima facie objections were raised with regard to the very nature of the document.
That was a case where prima facie objections were raised with regard to the very nature of the document. Even though the document was styled as a partition deed, it was not actually a partition document between two blood brothers, but was between two first cousins. If an instrument of partition is not among family members such an instrument would be covered only by Article 45(b) under which the stamp duty payable would be same as duty payable for a Bottomry Bond falling within Article 16. (2) If the instrument relates to only one item of property, which is a building or if it relates to more than one item of property, in which one or more items are buildings, the particulars as contemplated in Rule 3(1-A) have to be furnished by the executants, which contain various particulars including, (a) the type of building, whether tiled or reinforced concrete roofed or Madras Terraced or otherwise; (b) the number of storeys in the building; (c) the plinth area of each floor or storey in the building; (d) the nature of structure of the building specifying whether the walls are built in brick and cement, brick and lime mortar or otherwise; (e) the year of construction of the building; (f) the kind of materials used in the construction of the building; (g) a brief description of nature of the sanitary, electrical and other fittings in the building and their quality; (h) the size and depth of the well if any in the property; and (i) any other special feature affecting the value of the buildings. (3) The registering officer before registration has to satisfy himself that the statement signed by the parties as per sub-rule (1) and (1-A) of Rule 3 has been attached with the instrument. (4) In the event of non-production of statement as required under Rules 3(1) and 3(1-A) and in the absence of setting forth truly, the consideration and the market value and all other facts and circumstances affecting chargeability of instrument with duty as enshrined under Section 27 of the Indian Stamp Act, the Registrar shall refuse registration of document.
(4) In the event of non-production of statement as required under Rules 3(1) and 3(1-A) and in the absence of setting forth truly, the consideration and the market value and all other facts and circumstances affecting chargeability of instrument with duty as enshrined under Section 27 of the Indian Stamp Act, the Registrar shall refuse registration of document. (5) In order to find out as to whether the market value has been correctly furnished in the instrument, the registering authority has right to make enquiries by obtaining information from the parties concerned on the subject or call for and examine any records kept with the public officer or authority. In addition to that, the registering authority can also look into the Guidelines Register containing the value of the properties supplied to them for the purpose of verifying the market value. The said register is only to enable the registering authority to ascertain prima facie whether the market value has been truly set forth in the instrument. In fact, explanation to Rule 3(4) makes it clear that the entries in the Guidelines Register cannot be a substitute for market price, which means that the authority contemplated to conduct enquiry under Section 47-A for finding out the market price is not fettered with such Guidelines Register, since the enquiry contemplated of the Collector, is independent. (6) The above steps which are contemplated under Rule 3 relate to the actions to be taken by the registering authority before registration of document. Therefore, a reading of Section 47-A of the Indian Stamp Act with Rule 3 of the Rules enables the registering authority to be prima facie satisfied about the market value of the property sought to be transferred under the document based on the particulars furnished by the executant in the prescribed manner and in the preliminary enquiry or investigation made by the registering authority. On such preliminary enquiry, if the registering authority is prima facie satisfied, the registration process can be completed.
On such preliminary enquiry, if the registering authority is prima facie satisfied, the registration process can be completed. II (1) On the other hand, in spite of the preliminary investigation to have the prima facie satisfaction about the market value furnished by the executant, if the registering authority still has reason to believe that the market value has not been truly set forth in the instrument, he has right to refer the instrument to the Collector under Section 47-A (1) of the Act for determination of market value for the purpose of ascertaining the proper duty under the document. This power can be exercised by the registering authority only after registering the document. (2) Even though the registering authority has reason to believe that the market value of the property has not been properly set forth in the instrument, after registering the document, while referring the same to the Collector for determination of the market value, it is incumbent on the part of the registering authority to give his reasons to arrive at such conclusion. In G.Karmegam and others vs. The Joint Sub Registrar IV, Gowri Plaza Road, Madurai and others [ 2007 (5) CTC 737 ], a Full Bench of Madurai Bench of this Court comprising F.M.Ibrahim Kalifulla, N.Paul Vasanthakumar and S.Palanivelu,JJ. while holding that the registering authority cannot be expected to make a roving enquiry to ascertain the correct market value of the property by examining the parties, which is the right of the Collector after reference, has asserted that the registering authority is expected to give reasons for his conclusion of undervaluation, however, short they may be. The relevant portion is, "7. Registration of document is a sine quo non for referring the matter to the Collector, if the Registering Officer believes that the property is undervalued. No jurisdiction has been conferred on the Registering Officer to refuse registration, even if the document is undervalued. Besides, there is no authority for him to call upon the person concerned to pay additional stamp duty. Collector is the prescribed authority to determine the market value, after affording a reasonable opportunity of hearing the parties. The Registering authority cannot make a roving enquiry to ascertain the correct market value of the property by examining the parties. However, it is expected that he has to give reasons for his conclusion for undervaluation, however short they may be.
Collector is the prescribed authority to determine the market value, after affording a reasonable opportunity of hearing the parties. The Registering authority cannot make a roving enquiry to ascertain the correct market value of the property by examining the parties. However, it is expected that he has to give reasons for his conclusion for undervaluation, however short they may be. He can neither delay nor refuse registration of the instrument, merely because the document does not reflect the real market value of the property. In order to reach a conclusion, there is no bar for the Registering Officer to gather in-formation from other sources, including official or public record. Valuation guide-lines, prepared by the revenue officials periodically, are intended with an avowed object of assisting the Registering Officer to find out prima facie, whether the market value set out in the instrument has been set forth correctly." III. (1) Once the registering authority refers the issue to the Collector, under Section 47-A(2) of the Act it is for the Col-lector to determine the market value after holding an enquiry by giving reasonable opportunity of being heard to the parties, and then arrive at a conclusion about the duty payable by the person who is liable to pay such duty. (2)The procedure for the above said purpose has been elicited in detail in Rule 4,5,6,7 and 8 of the Rules, which read as follows: "4.Procedure on receipt of reference under Section 47-A-(1).-On receipt of a reference under sub-section (1) of section 47-A, from a registering officer, the Collector shall issue a notice in Form I, (a) to every person by whom, and (b) to every person in whose favour the instrument has been executed, informing him of the receipt of the reference and asking him to submit to him his representations, if any, in writing to show that the market value of the property has been truly set forth in the instrument, and also to produce all evidence that he has in support of his representation, within 21 days from he date of service of the notice. (2) The Collector may, if he thinks fit, record a statement from any person to whom a notice under sub-rule (1) has been issued.
(2) The Collector may, if he thinks fit, record a statement from any person to whom a notice under sub-rule (1) has been issued. (3) The Collector may for the purpose of his enquiry- (a) call for any information or record from any public office, officer or authority under the Government or any local authority,; (b) examine and record statements from any member of the public, officer or authority under the Government or the local authority; and (c) inspect the property after due notice to the parties concerned. (4) After considering the representations, if any, received from the per-son to whom notice under sub-rule (1) has been issued, and after examining the records and evidence before him, the Collector shall pass an order in writing provisionally determining the market value of the properties and, the duty payable. The basis on which the provisional market value was arrived at shall be clearly indicated in the order. 5. Principles for determination of market value.-The Collector shall, as far as possible, have also regard to the following points in arriving, at the provisional market value: (a) In the case of lands- (i) classification of the land as dry, manavari, wet and the like; (ii) classification under various tarams in the settlement register and ac-counts; (iii) the rate of revenue assessment for each classification; (iv) other factors which influence the valuation of the land in question; (v) points, if any, mentioned by the parties to the instrument or any other person which requires special consideration; (vi) value of adjacent lands or lands in the vicinity; (vii) average yield from the land, nearness to road and market, distance from village site, level of land, transport facilities, facilities available for irrigation such as tank, wells and pumpsets; (viii) the nature of crops raised on the land; (ix) the use of land, domestic, commercial, industrial or agricultural purposes and also the appreciation in value when an agricultural land is being converted to a residential, commercial or an industrial land.
(b) In the case of house sites- (i) the general value of house sites in the locality; (ii) nearness to roads, railway station, bus route; (iii) nearness to market, shops and the like; (iv) amenities available in the place like public offices, hospitals and educational institutions; (v) development activities, industrial improvements in the vicinity; (vi) land tax valuation of sites with reference to taxation records of the local authorities concerned; (vii) any other features having a special bearing on he valuation of the site; and (viii) any special feature of the case represented by the parties. (c) In the case of buildings- (i) type and structure; (ii) locality in which constructed; (iii) plinth area; (iv) year of construction; (v) kind of materials used; (vi) rate of depreciation; (vii) fluctuation in rates; (viii) any other features that have a bearing on the value; (ix) property tax with reference to taxation records of local authority concerned; (x) the purpose for which the building is being used and the income if any, by way of rent per annum secured on the building; and (xi) any special feature of the case represented by the parties. (d) Properties other than lands, house sites and buildings- (i) the nature and condition of the property; (ii) purpose for which the property is being put to use; and (iii) any other special features having a bearing on the valuation of the property. 6. Procedure after arriving at provisional market value.-The Collector shall communicate a copy of his order provisionally determining the market value of the properties and the duty payable to all the persons who are liable to pay the duty along with the notice in Form II and call upon the parties to lodge their objections, if any, to such determination of the market value within the time specified in the notice. The Collector shall also hear the parties on the date specified in the notice or on such other days as may be fixed by him. 7.
The Collector shall also hear the parties on the date specified in the notice or on such other days as may be fixed by him. 7. Final order determining the market value.-(1) The Collector shall, after considering the representations received in writing and those urged at the time of hearing or in the absence of any representation from the parties concerned or their failure to appear in person at the time of hearing in any case after a careful consideration of all the relevant factors and evidence available with him, pass an order within three months from the date of first notice determining the market value of the properties and the duty pay-able on the instrument, and communicate the order so passed to the parties and take steps to collect the difference in the amount of stamp duty, if any. (2) A copy of the order shall be communicated to the registering officer concerned for his record. (3) the difference in the amount of duty determined by the Collector shall be paid within two months from the date of final order passed under sub-section (2) of sub-section (3) of section 47-A. (4) The Collector shall, after collecting the difference in amount of stamp duty and interest, if any, under section 47-A, give a certificate in Form III by endorsement on the instrument. 8. Appearance through advocate or authorised agent.-In an enquiry under the foregoing rules any party to an instrument may appear either in person or through an advocate or an authorised agent. " (3) The Collector, after receiving the reference, has to issue notice to both, viz., the person who has executed the document and the person in whose favour the document is executed and such notice shall be in Form I. As per the said notice, he must inform about the reference asking the parties to submit the representation in writing that the market value has been properly set forth in the instrument and also directing to produce all evidence in support of such representation giving 21 days time from the date of service of such notice. (4) During the enquiry, the Collector, may as far as possible, record the statement from the person to whom notice was issued for conducting enquiry.
(4) During the enquiry, the Collector, may as far as possible, record the statement from the person to whom notice was issued for conducting enquiry. He has the powers of calling for information or record from any public office, officer or authority under the Government or any local authority; inspect the property after due notice to party and thereafter, the Collector has to pass a provisional order as per Rule 4, determining, the market value and duty payable with reason for arriving at such provisional conclusion. While passing such provisional order, as per Rule 5, he can also take into account the various factors, including the classification of land as dry or manavari or wet, classifications as per the settlement registers and accounts, rate of revenue assessment for each classification and other factors which may influence the value of land in question, any points mentioned by the parties to the instrument, which re-quires special consideration, value of adjacent lands and lands in the vicinity, average yield from the land; nearness to road, market, etc., nature of crops raised, use of land, whether domestic, commercial or agricultural purpose or whether the usage has been changed from agricultural to residential or commercial or industrial purpose. (5) In respect of value of house sites, he may take into consideration the general value in the locality, nearness to road, railway station, bus route, market, shops, amenities like public offices, hospitals, educational institutions, development activities or industrial improvements in the vicinity, land tax valuation of sites with reference to taxation records and any other features having special bearing on the site and any other special feature as represented by the parties. (6) Again, in respect of buildings, the Collector may, as far as possible take into account the type of structure, locality in which it was constructed; plinth area; year of construction; kind of materials used; rate of depreciation; fluctuation in rates; any other features that may have bearing on the value; property tax with reference to taxation records for the purpose for which the building is used and the income secured therefor, and any other special features represented by the parties.
(7) In respect of properties other than lands, house sites and buildings, the Collector, may take into account the nature and condition of the property, purpose for which the building is put to use or any other special features that may have bearing on the valuation. (8) After the Collector arrived at the provisional market value, he shall communicate copy of the order to all the per-sons who are liable to pay the duty along with notice in Form II, asking for objections or representations within the time specified by him in the notice. On the date mentioned in the notice, the Collector shall hear the parties on their objections. (9) After the enquiry stated above is completed, the Collector has to consider the representations in writing and in the absence of parties appearing even after notice, after carefully considering all factors and evidence available with him, and pass final order and such order shall be passed within three months from the date of the first notice for determining the market value of the properties. The final order shall determine the market value of the properties and the duty payable on the instrument, and the same shall be communicated to the parties and he shall take steps to collect the difference of stamp duty, if any. In addition to that, a copy of that final order shall be communicated to the registering authority. (10) Such amount which has been finally arrived at by the Collector in the final order shall be paid within two months from the date of final order passed under Section 47-A (2) or 47-A(3) of the Act. (11) After the Collector collecting the difference in amount with interest if any, he shall certify on the document with an endorsement as per Form III. It is also made clear in the Rules that in the enquiry conducted by the Collector, the par-ties can either appear by themselves or through Advocates or through their authorized agents.
(11) After the Collector collecting the difference in amount with interest if any, he shall certify on the document with an endorsement as per Form III. It is also made clear in the Rules that in the enquiry conducted by the Collector, the par-ties can either appear by themselves or through Advocates or through their authorized agents. (12) Therefore, the procedure for the District Collector to arrive at a final decision in respect of determination of market value and also to determine the difference in duty payable consists of four stages, viz., (a) issuance of Form I notice; calling upon the executants as well as the person in whose favour the document is executed to make representation regarding the market value along with documents and evidence, giving 21 days time; (b) After the first enquiry is con-ducted and provisionally market value is ascertained, provisional order has to be passed by the Collector and the same has to be communicated to the person, who is liable to pay duty along with Form No.II. In the said Form No.II, which has to be given as per Rule 6, the Collector directs the person liable to pay duty to lodge his objections or representations against the provisional order regarding market value and it is open to the Collector to give sufficient time as he desires, since no time limit is prescribed under the Rule. (c) After issuing Form No.II, on the date mentioned in the notice or on any other subsequent date and considering any other objection on the said date of enquiry, which is actually the second enquiry, and even in the absence of any party appearing, considering all relevant factors and evidence available with him, the Collector has to pass such final order as stipulated in Rule 7, within three months from the date of the first notice, viz., the notice given in Form No.I and such final order shall be communicated to the parties to the document. (d) Thereafter, it is for the Collector to take steps to collect the amount in the manner known to law, viz., under Revenue Recovery Act and the party shall be liable to pay such difference amount within two months from the date of final order passed.
(d) Thereafter, it is for the Collector to take steps to collect the amount in the manner known to law, viz., under Revenue Recovery Act and the party shall be liable to pay such difference amount within two months from the date of final order passed. (13) This procedure of conducting enquiry by the Collector as per the above said Rules are made applicable not only in respect of the enquiry conducted by the Collector on reference from the registering authority under Section 47-A(1), which is after registering the document, but also in respect of the powers of the Collector to conduct suo motu enquiry under Section 47A(3) of the Act. IV. (1) It is relevant to point out that in respect of suo motu power of the Col-lector for ascertaining the market value of the property, the said power is available to the Collector independently after the completion of the registration process by the registering authority without any reference under Section 47-A(1) of the Act. However, such suo motu power of the Collector is restricted to 5 years from the date of registration of the instrument. (2) As it is stated above, the procedure for such suo motu power is also as contemplated in Rules 4 to 7 of the Rules.
However, such suo motu power of the Collector is restricted to 5 years from the date of registration of the instrument. (2) As it is stated above, the procedure for such suo motu power is also as contemplated in Rules 4 to 7 of the Rules. However, it is also relevant to note that in respect of the powers of the Collector to conduct enquiry tinder Section 47-A(2) and also in respect of the time within which the registering authority should refer the matter for determination of market value to the Collector, nothing has been stipulated under the Act, either under Section 47-A(1) or 47-A(2), even though under the Rules as stated above, viz., Rules 4, 5, 6 and 7, the Collector is bound to give 21 days notice while asking for representation in Form I; the Collector, after assessment of the provisional market value while sending Form II, can fix the date of his choice, calling for objection in respect of provisional market value and ultimately, the Collector has to pass final order determining the market value within three months from the date of first notice, viz., notice in Form I. (3) The Full Bench of this Court in 2007 (5) CTC 737 (cited supra), in the absence of any period within which the registering authority can make reference to the Collector, considered as to whether the Courts can impose a period within which the registering authority should make a reference to the Collector under Section 47A(1) of the Act, and relying upon the earliest judgment on the subject rendered by Patanjali Shastry,C.J. in Astnini Kumar Ghose vs. Arabinda Bose [ AIR 1952 SC 369 ] and also the subsequent judgement of the Division Bench of this Court in Southern Railways vs. S.Palaniappan [ 2005 (2) CTC 721 = 2005-2-L.W.325] has held that it is the settled principle of law that the Court cannot read anything into a statutory provision, which is plain and unambiguous and the primary rule of construction is that the intention of the legislature must be found in the words used in the legislation itself and it cannot be as to what may be sup-posed, but it must be what has been said.
Ultimately, the Full Bench has held as follows: " 28 The dictums laid down by the Supreme Court and the Principles by this Court as stated above, would indisputably indicate that the Court is not competent to add or supplement anything to a statute and, while interpreting the same, the intention of the legislature at the time of passing it, has to be collected , to render justice to the parties. If statutory silence is persisting to a particular circumstance or point, the Court cannot supplement its view by embarking upon the duty of sup-plying some more suggestions to it. In other words, when the statute contains plain language in unambiguous terms, the Court ought not to interpret it in such a way to infer that it has annexed some-thing. In the teeth of the law propounded by the Apex Court, the answer to the question would be, the Court cannot prescribe any time limit for the Registering Officer to refer the document to the Collector." (4) However, the Full Bench has also held that in the absence of prescription of any time by the statute or rules made thereunder, reasonable time can be in-ferred, by relying upon various judgments rendered by the Supreme Court, viz., (i) Ram Oland and Others vs. Union of India and other [ 1994 (1) SCC 44 ]; (ii) T.Vijayalakshmi and others vs. Town Planning Member and another [ 2006 (8) SCC 502 ]; (iii) Mohan ad Kavi Molunnnad Amin vs. Fatntabai Ibrahim [ 1997 (6) SCC 71 ]; (iv) Ibrahimpatnann Taluk Vyavasaja Coolie Sangham vs. K.Suresh Reddy and others [ 2003 (7) SCC 667 ]; and (v) Government of India vs. Citedal Fine Pharmaceuticals [ AIR 1989 SC 1771 ], The Full Bench also held that the ratio laid down by the Supreme Court to the effect that any power conferred on any statutory authority shall be exercised to advance the cause of justice and not to upset the settled rights of parties. Further, applying the ratio decidendi, the Full Bench has held that while giving reason-able opportunity to the registering officer to refer the matter to the Collector, one must consider the rights of parties. It also held that reasonable time has to be construed based on the conscience of the registering officer himself.
Further, applying the ratio decidendi, the Full Bench has held that while giving reason-able opportunity to the registering officer to refer the matter to the Collector, one must consider the rights of parties. It also held that reasonable time has to be construed based on the conscience of the registering officer himself. Elaborating that conscience is to be construed to be the inclination of the registering officer to per-form the legal obligations imposed on him by a statute, which could be gathered by the Courts from the circumstances under which he acted subsequent to registration of the document as mentioned in sub-section (1). The relevant portion of the judgement is as follows: " 33. The ratio laid down by the Supreme Court would go to the effect that any power conferred upon any statutory authority shall be exercised to advance the cause of justice and not to upset the settled rights of the parties concerned. 34. Applying the above ratio decidendi to the facts of the present case, since the provision viz., sub-Section(1) of Section 47-A is quiet as regards the time limit, reference shall be made by the Registering Officer, within a reasonable time, which should not be viewed as a one, that has deprived the rights of the parties, thereby causing injustice to them. In other terms, it can very well be stated that the conscience of the Registering Officer itself shall indicate that the time consumed by him would be an unreasonable one. The expression "con-science" may be construed to be an inclination of the Registering Officer to perform the legal obligations imposed on him by a statute, which could be gathered by the Courts from the circumstances under which he acts subsequent to registration of the document, as mentioned in sub-section(1). If the said intention or inclination to execute the legal obligations on his part would tend to prejudice the valuable rights of the parties concerned to the document, it could unhesitatingly be termed to be unreasonable. The parties to a document shall not entertain suspicion over the attitude of the Registering Officer, in the process of his referring the document to the Collector.
The parties to a document shall not entertain suspicion over the attitude of the Registering Officer, in the process of his referring the document to the Collector. Such a view in the minds of the parties would lead to a conclusion that there is unreasonableness on the part of the Registering Officer." Therefore, the view of the Full Bench of this Court is that the reasonableness of time has to be construed in the point of view of conscience of the referring officer performing the statutory functions, which has to be gathered based on the circumstances or the act subsequent to the registration of the document and if such conduct prejudices the valuable right of the parties concerned, it can be held as unreasonable by the Court. (5) As per the reading of Section 47-A(4) of the Act, after the final order is passed by the Collector under Section 47-A(2) and 47-A(3), the difference in amount is liable to be paid and person shall pay the amount with interest at the rate of 2% per month on such amount for the entire period of default. V. Any person aggrieved by the final order of the Collector made under Section 47-A(2) and 47-A(3) has right of appeal to the appellate authority under Section 47-A(5) of the Act, appellate authority being the Chief Controlling Revenue Authority as stipulated under Rule 9 of the Rules. In addition to the right of the aggrieved person to file appeal to the appellate authority, Section 47-A(6) also gives suo motu right to the appellate authority to call for the records of the Collector and make enquiry in or-der to revise, modify or set aside such orders of the Collector. However, the said suo motu power of the Chief Controlling Revenue Authority can not be exercised before the period of limitation given for appeal against the order of the Collector and such suo motu power of revision can-not be made after the expiry of five years after passing of the order by the Collector as it is stated under Section 47-A(7) of the Act. It is also made clear that under Section 47-A(8), such order of the Chief Con-trolling Revenue Authority, which may be passed suo motu, cannot be passed unless the person who is affected has had a reasonable opportunity of being heard.
It is also made clear that under Section 47-A(8), such order of the Chief Con-trolling Revenue Authority, which may be passed suo motu, cannot be passed unless the person who is affected has had a reasonable opportunity of being heard. The period of five years as stipulated under Section 47-A(7b) for exercise of suo motu powers by the Chief Controlling Revenue Authority is construed by excluding the period of stay of the Chief Controlling Revenue Authoritys pro-ceedings by order of court. Rule 9 speaks about the procedure for filing such appeal and Rule 10 speaks about the disposal of appeal by the appellate authority while Rule 11 and Rule 11A contemplates the powers of the appellate authority while passing orders and Rule 12 relates to the final order to be passed by the appellate authority. The procedures contemplated in the said Rules are as follows: (a) The appeal to the Chief Control-ling Revenue Authority against the order of Collector passed either under section 47-A(2) or 47-A(3) shall be preferred within two months from the date of his order determining the market value as per Rule 7(1). Rule 9(2),(3), (4) enumerates the procedural aspects about the filing of appeal. (b) The appellate authority, if admits the appeal, shall fix a date for hearing of the appeal, by giving notice to the appellant and sending a copy of the same to the Collector together with a copy of grounds of appeal. (c) While hearing the appeal, the appellate authority can also receive evidence adduced by the parties including the Collector. Therefore, there is actually a hearing by the appellate authority. While hearing, the appellate authority has a right to call for information or re-cords from public office, to record statements from any member of the public, and to inspect the property after due notice as it is available to the original authority, viz., the Collector. (d) It is after considering the evidence adduced on both sides, the appellate authority shall decide whether the market value of the property determined by the Collector either under section 47-A(2) or 47-A(3) is correct. In the event of the appellate authority coming to the conclusion that the valuation of the Collector is not correct, the appellate authority himself can determine the market value and in such case, the appellate authority shall record reasons to be communicated to the Collector and the registering authority.
In the event of the appellate authority coming to the conclusion that the valuation of the Collector is not correct, the appellate authority himself can determine the market value and in such case, the appellate authority shall record reasons to be communicated to the Collector and the registering authority. (e) In addition to the appellate power on appeal by the party, the Chief Controlling Revenue Authority has suo motu power of conducting enquiry if the order passed by the Collector under Section 47-A(2) or 47-A(3) is prejudicial to the interest of the revenue. VI. (1) As against the order of the appellate authority passed either under section 47-A (5) or 47-A(6), a further appeal is provided to the High Court under section 47-A(10). The time limit prescribed for filing such appeal to the High Court is two months from the date of final order passed by the appellate authority as it is seen in Rule 9(5)(a) of the Rules. The powers of the High Court in dealing with such appeal are provided under Rule 9. (2) Rule 15 of the Rules prescribes the manner of service of notice and the or-der to parties, which is as follows: " 15. Manner of service of notice and orders to the parties:- Any notice under rule 4 or order under rule 4 or 7 shall be served in the following manner, namely- (a) in the case of any company, society or association of individuals, whether incorporated or not, be served- (i) on the secretary or any director or other principal officer of the Company, society or association of individuals, as the case may be ; or (ii) by leaving it or sending it by registered post acknowledgement due addressed to the company, society or association of individuals as the case may be at the registered office, or if there is no registered office, then at the place where the company, society or association of individuals as the case may be, carries on business. (b) in the case of any firm, be served- (i) upon any one or more of the partners;or (ii) at the principal place at which the partnership business is carried on, upon any person having control or management of the partnership business at the time of service.
(b) in the case of any firm, be served- (i) upon any one or more of the partners;or (ii) at the principal place at which the partnership business is carried on, upon any person having control or management of the partnership business at the time of service. (c) in the case of a family, be served upon the person in management of such family or of the property of such family, in the manner specified in clause(d) (d) in the case of an individual person, be served.- (i) by delivering or tendering the notice or order to the person concerned or his counsel or authorised agent; or (ii) by delivering or tendering the notice or order to some adult member of the family; or (iii) by sending the notice or order to the person concerned by registered post acknowledgement due; or (iv) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned." Therefore, while conducting enquiry by the Collector, he has to send notice to the parties in Form-I and after passing the provisional order, the same has to be communicated by him to all persons who are liable to pay duty and then, after passir.3 the final order determining the mar-et value, the same has to be communicated by him to the parties. Rule 15 makes it clear that in case of service of such notice or orders on individual per-sons as stated in Rule 15(d), the service has to be effected (i) either by delivering or tendering the notice or order to the person concerned or his counsel or authorized agent; (ii) or by delivering or tendering notice to some adult member of the family; (iii) or by sending notice or order to the person concerned by registered post with acknowledgement due; (iv) or, if none of the above modes of service is practicable, by affixing the order or notice in the last known place of business of the person concerned.
While the enquiry to be conducted by the Collector under section 47-A(2) or 47-A(3) makes it clear that the same has to be done after giving a reasonable opportunity of being heard and after holding enquiry, the pre-condition is that the notice informing about the enquiry shall be served by any of the four modes stated above. In the absence of proof of service through any of the four modes, naturally it has to be construed that there was no notice served and no reasonable opportunity was given to the parties and ultimately, it has to be deemed that there was no enquiry in the eye of law. This is because of the reason that the Collector is under legal obligation to give reasonable opportunity of being heard to all the par-ties and that is why, the word, shall is used in Section 47-A(2). (3) It is also relevant to point out that in addition to the powers under section 47-A, section 33-A of the Act empowers the District Collector to recover the deficit stamp duty, if it is found that proper stamp duty payable under the Act in respect of such instrument has not been paid or insufficiently paid, after obtaining certificate from the Registrar of District under the Registration Act, 1908 by way of arrears of land revenue, The Registrar of District before issuing certificate has to conduct enquiry by giving opportunity to the person concerned of being heard. However, this power of issuing Mate is restricted only to a period of three years from the date of registration of the instrument. It is against such order of Registrar issuing certificate, the person concerned has a right to approach the Chief Controlling Revenue Authority. While section 47-A deals with the instruments in which the market value of the property has been undervalued, section 33-A relates to the deficit stamp duty pay-able in respect of a particular instrument. 12. The powers and duties of the registering authority when the documents are presented are dealt in the Registration Act, 1908. While the said Act exhaustively explains the establishment of registration, and narrates the registrable documents, it also states about the time for presentation of the documents, place of registration and persons who are eligible to present the documents and powers of the Registrar to enforce appearance of the executants, witnesses, etc.
While the said Act exhaustively explains the establishment of registration, and narrates the registrable documents, it also states about the time for presentation of the documents, place of registration and persons who are eligible to present the documents and powers of the Registrar to enforce appearance of the executants, witnesses, etc. The duties of registering officer when a document is presented for registration are explained in section 52 of the Registration Act, 1908. Section 55 of the Registration Act mandates the registering officer to prepare index in the form of Index No.I, II, III and IV, while under section 34 of the Registration Act the registering officer has to make certain enquiry with the persons or representatives or assignees who are appearing before him. Section 35 enumerates the procedure in case of admission or denial of execution by the parties and in that regard, when the executant denies execution or the executant appears to be a minor, idiot or lunatic or when the executant of document is dead and his representative or assignee denies such execution, it shall be the duty of the registering authority to refuse registration. After the registering authority is satisfied as per the abovesaid provisions, he has to make necessary endorsement on the document under sections 56 and 58 of the Registration Act. After complying with all the abovesaid procedures, the registering officer shall endorse on the document a certificate together with the number of pages and such certificate shall be signed and sealed by the registering officer and the same is admissible for proving the document as having been duly registered in the manner known to law. Section 60 runs as follows: " Section 60. Certificate of registration.- (1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered" together with the number and page of the book in which the [true copy of the document has been filed.] (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned. 13.
13. Section 61 of the Registration Act makes it clear that after completion of the registration, the registering officer shall return the document to the person concerned or such other person who has been nominated. The said section is as follows: " 61. Endorsement and certificate to be copied and document returned.- (1) The endorsements and certificate referred to and mentioned in sections 59 and 60 shall there-upon be copied into the Register-book, and the copy of the map or plan (if any) mentioned in section 21 shall be filed in Book No.1. [Provided that in the office of the Registering Officer notified by the State Government under sub-section (1) of section 70-B, he copying of the items referred to above may be done using electronic devices like scanner.] (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52." 14. The Inspector General of Registration who has got supervising power over the registering officers is also empowered to make Rules under section 69 of the Act in respect of various matters including the circumstances under which there can be refusal to register a document as per sections 71 and 76 of the Registration Act, 1908 and such Rules shall be submitted to the State Government for approval after which the same has to be published in official gazette. In fact, Rule 162 of the Rules framed as per sections 71 and 76 of the Registration Act contemplates 19 circumstances under which the registering officer can refuse to register documents by recording the same in book No.2 and the said Rule 162 is as follows: "162. When registration is refused the reasons for refusal shall be at once recorded in Book 2. They will usually come under one or more of the heads mentioned below- i. Section 19.- That the document is writ-ten in a language which the registering officer does not understand and which is not commonly used in the district, and that it is unaccompanied y a true translation and a true copy. ii. Section 20.- That it contain unattested interlineations, blanks, erasures, or alterations which in the opinion of the registering officer require to be attested. iii.
ii. Section 20.- That it contain unattested interlineations, blanks, erasures, or alterations which in the opinion of the registering officer require to be attested. iii. Section 21.- (1) to (3) and Section 22.- That the description of the property is insufficient to identify it or does not contain the information required by rule 18. iv. Section 21(4).- That the document is unaccompanied by a copy or copies of any map or plan which it contains. v. Rule 32.- That the date of execution is not stated in the document or that the correct date is not ascertainable. vi. Sections 23, 24, 25, 26, 72, 75 and 77.- That it is presented after the prescribed time. vii. Sections 32, 33, 40 and 43.-That it is presented by a person who has no right to present it. viii. Section 34.- That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time. ix. Sections 34 and 43.- That the registering officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document. x. Sections 34 and 40.- That the registering officer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear. xi. Note:- When a registering officer is satisfied that an executant is purposely keeping out of the day with a view to evade registration of a document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused the non-appearance being treated as tantamount to denial of execution. xii. Section 35.- That the person purporting to have executed the document is a minor, an idiot or a lunatic. Note:- When the executant of a document who is examined under a commission under section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic registration may be refused and it is not necessary that the registering officer should personally examine the executant to satisfy as to the existence of the disqualification. xiii. Section 35.- That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed.
xiii. Section 35.- That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed. Note:- When some of the representatives of a deceased executant admit and others deny execution, the registration of the document shall be refused in toto, the per-sons interested being left to apply to the Registrar for an enquiry into the fact of execution. xiv. Section 35 and 41.- That the alleged death of a person by whom the document purports to have been executed has not been proved. xv. Section 41.- That the registering officer is not satisfied to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor. xvi. Sections 25, 34 and 80.- That prescribed fee or fine has not been paid. [XVII. Section 230(A) of the Income Tax Act, 1961 (Act 43 of 1961).- That the pre-scribed certificates from the Income Tax Officer has not been produced. xviii. Section 10 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act,1961 (Act 58 of 1961).- That the declaration has not been filed by the transfer. xix. Section 27 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Act 24 of 1978).- That the statement has not been filed by the transferror and transferee.] Note:- Items XVII, XVIII and XIX added by G.O.Ms.No.1392 CT & RE dated 212. 87 w.e.f. 1. 1988." 15. Therefore, a combined reading of the relevant portions of the Indian Stamp Act and the Registration Act and the Rules framed thereunder apart from the Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) Rules 1968 makes it abundantly clear that after registration of a document, the registering authority has no power to retain the document. This position has been affirmed in Ramasamy Nallamanickenpatti vs. The Inspector General of Registration, Madras and others [ 2003 (4) L.W. 319 ], wherein A.K.Rajan,J. has held that after registration on payment of stamp duty, there is no power to the registering authority to retain the document and thereafter, the validity or otherwise of the document can be only decided by the Civil Court. The operative portion are as follows: " 8. When the document has been registered on payment of stamp duty, there is no power for the registering authority to retain the document.
The operative portion are as follows: " 8. When the document has been registered on payment of stamp duty, there is no power for the registering authority to retain the document. If the property does not belong to the vendor who executed the sale deed and it belongs to someone else, the real owner may file a suit, before the appropriate court, to set aside the document. Further by any deed of conveyance executed by a person who had no right over the property that is conveyed, no right is conveyed. In such cases, the purchaser takes the risk of losing his money. But on that ground the registering authority or the Collector cannot refuse to return the document registered. The action of the respondent in refusing to release the document on the ground that the sale deed was executed by the person who was not the real owner is not legally sustainable. It is not for the registering authority to verify as to whether the vendor in the sale deed has a right to convey the property mentioned therein. Therefore the action of the respondents is not legal. It is nothing but highhandedness on the part of the respondents. The respondents have no right whatsoever to retain the document when once it has been registered in accordance with the Rules." 16. Then, the next question arises as to what would happen if the documents are released to the parties first and thereafter the proceedings of the Collector either under section 47-A(2) or 47-A(3) are initiated and decided finally? Even though it is the submission of the learned senior counsel Mr.AL.Somayaji that there are abundant safeguards available under section 47-A(4) wherein a duty is cast on the person to pay outstanding amount as per the final order passed by the Collector and in default, a charge over the property mentioned in such instrument has been created and the charge is applicable not only for payment of deficit duty but also for payment of interest at the rate of 2% per month for the entire period of default, it remains a question as to what is there on the face of the document which was released to show that a charge has been created over the property which is the subject matter of the instrument-in order, to safeguard the subsequent purchaser.
In M. Ponnusamy and 42 others v. District Collector, Erode District and others (1999(2) LW 232), this Court has held that the functioning of the registering authority while referring the document to the Collector for valuation by giving reasons is quasi-judicial in nature. It was also held that no reference can be made by the registering authority before recording reasons. Considering the entire, aspects as stated above including that there is no provision regarding any endorsement to be made at the time of release of the document when proceedings under section 47-A(1) have been initiated by the registering authority, E.Padmanabhan,J. in that case has ultimately held as follows: " 71. The retention of the original document after completion of registration of the instrument is not provided for either in the Indian Stamp Act or in the Registration Act or in the Rules framed there under with respect to those instruments, where a reference under Section 47-A of the Indian Stamp Act read with Tamil Nadu Stamp (Prevention of Under-valuation of Instruments) rules had been made or is being made. 72. As the statutory provision is silent so also the Rules framed thereunder, it would be just and proper, if the Registering Authority at the time of release of original documents makes an endorsement to the effect that a reference under Section 47-A of the Indian Stamp Act has been made, with respect to the Instrument is concerned to the Collector and making appropriate entry in the registers, if any kept by him." 17. On appeal against the said order of the learned Judge, a Division Bench consisting P. Shanmugam and A. Subbulakshmy, JJ. in The District Collector, Erode and others vs. M.P onnusaniy ( 2001(2) MLJ 458 ) while concurring with the finding of the learned Judge and dismissing the appeal, has held as follows: " 30. Sec.61 of the Registration Act,1908 mandates the Registering Authority to return the documents to the person who presented the same for registration after completion of registration. The moment registration is made, the document shall thereupon be deemed complete and it shall then be returned to the person who presented the same for registration. Therefore, once a document is registered, there is no scope for retention of the document unless Sec.47-A(1) comes into operation.
The moment registration is made, the document shall thereupon be deemed complete and it shall then be returned to the person who presented the same for registration. Therefore, once a document is registered, there is no scope for retention of the document unless Sec.47-A(1) comes into operation. The Registering Authority, after having reason to believe that the instrument was not properly valued, has registered it and hence he has no further reason to retain the document except to refer it. Therefore, the direction of the learned single Judge that reference should be made immediately after registration or so sooner the registration is complete, at any rate, within three weeks from the date of completion of registration of the document and refer the instrument to the Collector under Sub-sec.(1) of Sec.47-A of the said Act besides sending communication to the person who is liable to pay the stamp duty on the instrument in question cannot be objected to. In our view, this is a salutary direction to see that Sec.47-A(1) does not operate as an engine of oppression on the plea of under valuation. 31. …………. 32………. For all the above reasons, we have no hesitation whatsoever in approving the view of the learned Judge that the document should be returned sooner its registration is complete, at any rate within three weeks from the date of completion of registration of the document or it must be referred within a period of three weeks to the Collector under sub-sec.(1) of Sec.47-A of the Act." 18. In view of the subsequent Full Bench decision rendered in G. Karmegam vs. The Joint Sub Registrar IV, Gown Plaza, Bye Pass Road, Madurai ( 2007(5) CTC 737 ), that portion of the judgment of the Division Bench in para Nos.30 and 32 stating that the registering authority shall refer to the Collector within three weeks from the date of completion of registration, stands inoperative since the Full Bench has held that in the absence of any period given under section 47-A(1) of the Indian Stamp Act, it is not for the Court to substitute any period which would amount to making legislation, and it is outside the purview of the Courts jurisdiction.
Therefore, after the above-said Full Bench judgment as per paragraph-34 stated supra, it is only the reasonable period, by applying the principle of conscience by the authority, that has to be arrived at, based on the facts and circumstances of individual cases for the Court to interfere. Nevertheless, it remains an established law that after registration it is the duty of the registering authority to release the document. 19. In a subsequent judgment rendered in B. Rajappa & another vs. The Special Deputy Collector (Stamps), Office of the Collectorate, Rajaji Salai, Madras-1 and 2 others reported in 2002(3) CTC 544, E.Padmanabhan,J. has issued certain directions to be followed while returning documents after registration and thereafter when proceedings under section 47-A are terminated, which are as follows: " 15. While appreciating the anxiety expressed on behalf of the State by the learned Advocate General, this Court directs that:- (i) It is open to the Registering Authority to affix a seal, while releasing the original deed or conveyance or any other document indicating that a reference is pending under Section 47-A with respect to under-valuation and assessment of Stamp Duty payable, as and when the proceedings reach finality, the same shall be intimated to the person who is liable to pay stamp duty demanding payment of deficit stamp duty payable on the instrument. (ii) The Registrar to make corresponding entries under Sections 54, 55 of the Registration Act,1908 in the Register of indexes as to pendency of proceedings under Section 47-A. (iii) On completion of adjudication as to the under-valuation by the competent authority as well as appear or revision, if any thereof, and depending upon the ultimate decision, the said authorities to recover deficit stamp duty according to law. (iv) Till such proceeding reaches finality and deficit is paid, there will be a charge for the deficit stamp duty, which is the subject matter of transfer or conveyance. (v) On payment of deficit stamp duty, if any payable, the Registrar may once again, on production of the original deed of transfer, make appropriate entry and recording the additional stamp duty paid and release of charge and also make consequential entries in the registers/indexes maintained under Sections 54, 55 etc. of The Registration Act." 20.
(v) On payment of deficit stamp duty, if any payable, the Registrar may once again, on production of the original deed of transfer, make appropriate entry and recording the additional stamp duty paid and release of charge and also make consequential entries in the registers/indexes maintained under Sections 54, 55 etc. of The Registration Act." 20. Even though it is the contention of the learned Additional Advocate General Mr.P.S.Raman that the seal which has to be affixed on the document for being released should also contain a clause that till the proceedings under section 47-A are terminated, there will be a charge over the property indicating that no transfer should be made in the meantime, the same was opposed to by the learned senior counsel appearing for the petitioners Mr.AL.Somayaji and Mr.R.Gandhi on the ground that such restriction would put an embargo on the right of the owner to transfer the property. Considering that section 47-A(4) creates a statutory charge over such property in respect of deficit stamp duty which may be ascertained by the authority while concluding the proceedings under section 47-A of the Indian Stamp Act, affixing of seal stating that such proceedings under section 47-A in respect of under-valuation are pending will be a sufficient safeguard to the revenue, since in addition to the affixture of seal, there is already in existence a statutory charge over the property and the same will be a protection to the intending purchasers who are put to notice about the pendency of such proceedings. It is an additional safeguard in the sense that the Registrar also makes corresponding entries in his records maintained under sections 54 and 55 of the Registration Act which would normally get reflected in the encumbrance certificate and there-fore, there are sufficient safeguards to the subsequent purchasers. 21. In the Division Bench judgment of Sathyadev and Padmini Jesudurai,JJ. in Park View Enterprises rep. By SCM Jamuludeen and others vs. Government of Tamil Nadu [AIR 1990 Madras 251 = 1989-2-L.W. 593] which was upheld by the Supreme Court in Government of Tamil Nadu vs. Park View Enterprises rep. By SCM Jamuludeen and others ( 2001 (1) SCC 742 ), while referring to Section 47-A and Section 35 of the Indian Stamp Act and deciding about the legislative intent, it was held that the registering authority cannot refuse registration by reason of under-valuation and such refusal is not permissible.
By SCM Jamuludeen and others ( 2001 (1) SCC 742 ), while referring to Section 47-A and Section 35 of the Indian Stamp Act and deciding about the legislative intent, it was held that the registering authority cannot refuse registration by reason of under-valuation and such refusal is not permissible. The Division Bench held as follows: "8. The intent of the legislature in the matter of placement of sections also needs to be gone into since a later section will carry its effectiveness in the event of contra intention expressed in an earlier provision of the statute. The law is well settled on this score and we need not dilate thereon any further but the factum of the refusal to register by reason of undervaluation in terms of Section 47A cannot stand scrutiny of acceptance having regard to the language used therein. The legislative intent as ex-pressed in Section 35 stands clear to the fact that refusal to register is not permissible in terms therewith. Section 35 is a provision to cater for the instruments not being properly stamped and as such being inadmissible in evidence. It is not that the legislature was not aware of the stamp duty but a special power has been empowered to impose appropriate fees and stamp duty in terms of provision of Section 38 read with Sections 39 and 40 of the Act. The powers of the Collector as specified therein, stand in an unambiguous situation as the final authority in the matter of assessment of the duty leviable thereon, and that is precisely the reason as to why the State Legislature engrafted Section 47-A and specifically records in the statute that steps are to be taken only after registration of such an instrument. It can thus conclusively be said that there is existing a categorical expression of legislative intent in regard to the registration of the document — the registration is effected subject to the condition as provided in the statute itself with proper safeguard being taken note of by the legislature and contra expression of opinion would run counter to the legislative intent which is otherwise not permissible in law." 22.
The Supreme Court in 2001(1) SCC 742 (cited supra), was dealing with a circular issued by the State Government inserting Article 5(i), enabling levy of certain percentage on the cost of the proposed construction in respect of the properties situated in Chennai, Coimbatore, Madurai, Salem, Trichy municipal towns, etc., thereby making it obligatory on the part of the registering authority to receive such duty, which was assailed as opposed to section 47-A. The High Court has set aside the said circular and while the Supreme Court confirmed the said view, a similar argument was raised on behalf of the State that large scale activities in the matter of avoidance of stamp duty are in the State and it is to curtail the same and in the interest of revenue, such circulars were issued. The Supreme Court held that certainly the Government revenue should be protected, provided the same is in consonance with the principles of law and the relevant portion of the judgment is as under: " 12. The learned Senior Advocate, how-ever, impressed upon the Court the large-scale activities in the matter of avoidance of stamp duty now being practised in the State and the circular has been introduced only to avoid such avoidance of stamp duty. While it is true that the government revenue should be protected and there cannot be any exception, provided however, the same is otherwise in consonance with the principles of law and not de hors the same. The statute itself expressly provides that it is only after registration that the Registrar or an officer authorized in that behalf can take certain steps and in the wake of such a statutory provision question of taking steps before the registration does not and cannot arise and it is this conclusion which has prompted the High Court to decry the validity of the circular. We also think it fit o lend our concurrence therewith. The judgment decrying the validity of the circular cannot possibly be faulted in any way whatsoever." Therefore, there is no difficulty to come to the conclusion that after registration, it is the duty of the registering authority to release the document, however, with the above-said conditions already imposed by this Court which are the safeguards not only to the revenue of the Government, but also to the innocent subsequent purchasers. 23.
23. In respect of W.P.Nos.33556 to 33582 of 2007, it is the categoric stand by the petitioners in the affidavits that after the documents were presented and registered in the year 1998 or 1999 or in some cases in 2000, the registering authority has not released the documents and there has been no reply either from the registering authority or from the Collector. It is their specific stand that even Form-I notice has not been served, but, it is now in-formed by the respondents that in all theses cases, final orders under section 47-A(2) have already been passed h Au-gust, 2003. As I have enumerates above, the learned Additional Advocate General on the basis of records has also confirmed that there is no evidence to show that notice in Form No.1 has been served on the petitioners in the manner as detailed in Rule 15(d) of the Rules, either by direct delivery or tendering the same to the members of the family or by registered post with acknowledgement due or by affixture. The learned Additional Advocate General has fairly submitted that in these cases the records show that notice was sent by ordinary post and the said notice was not sent in the manner as provided in the abovesaid Rule. 23(a). In the light of the abovesaid admitted factual position, the learned Additional Advocate General would con-tend that even assuming that no notice was sent in Form No.I to the petitioners and final orders passed under Section 47-A(2) of the Act in 2003 have not been communicated in the manner shown in the said Rule, now within the time frame fixed by this Court, such final orders would be communicated to the petitioners and the petitioners may be directed to file appeal under section 47-A(5) of the Act to the Appellate Authority within a stipulated time and in the meantime, the documents can be directed to be released with an endorsement as stated above. The abovesaid contention of the learned Additional Advocate General cannot be made applicable on the factual situation in the cases stated supra.
The abovesaid contention of the learned Additional Advocate General cannot be made applicable on the factual situation in the cases stated supra. 23(b) The further contention of the learned Additional Advocate General chat while making an order to enable the petitioners to file appeal, 2% interest as contemplated under Section 47A(4) payable by the petitioners can be waived is also not sustainable, and the same cannot be accepted in the absence of any enquiry conducted by the District Collector in the manner known to law. 23(c). The question is not as to whether the petitioners in the said writ petitions can be directed to file appeal to the appellate authority under section 47-A(5) of the Act, but the question is as to whether any final order can be said to have been passed under section 47-A(2) of the Act on the factual situation of these cases. As it has been narrated earlier, the final order which can be passed by the Collector under section 47-A(4) of the Act can be deemed to be a final order only if the order is passed by the District Collector after complying with the provisions of section 47-A(2) of the Act which are mandatory in nature. At the first instance, the Collector, immediately after receiving reference from the registering authority, must serve notice in Form-I in the manner enumerated in Rule 15 and give opportunity of being heard to the parties by holding an enquiry. Therefore, the law mandates an enquiry to be conducted by the Collector after giving a reasonable opportunity of being heard to the parties which can be possible only after notice is given to the parties in the manner prescribed in the Rule. In the absence of such notice having been given in Form No.1, which is the starting point of enquiry under under section 47-A (2) by the Collector, the question of giving reasonable opportunity and conducting enquiry which are all follow-up actions to Form No.I notice, does not arise. Therefore, when, on facts, it is clear in these cases that there is no proof showing that notice in Form-I was issued to all the petitioners, it cannot be held as if the petitioners were given reasonable opportunity or the Col-lector has conducted enquiry in the manner known to law, especially under section 47-A(2) of the Act. 23(d).
Therefore, when, on facts, it is clear in these cases that there is no proof showing that notice in Form-I was issued to all the petitioners, it cannot be held as if the petitioners were given reasonable opportunity or the Col-lector has conducted enquiry in the manner known to law, especially under section 47-A(2) of the Act. 23(d). It is also surprising to note that in these cases it is not known as to when the registering authority has referred the question relating to undervaluation to the Collector and what are the reasons for the registering authority to refer to the Collector, which are pre-condition for making reference as established by the judicial precedent stated above. In such a situation, it has to be concluded that there was no enquiry conducted in the eye of law and in the manner known to the provisions of the Indian Stamp Act and therefore, in my considered view, the final orders said to have been passed by the Collector under section 47-A(2) of the Act in all these writ petitioners have to be simply ignored since they are non-est in the eye of law. The necessary consequence is that there is no question of directing these petitioners to receive such orders at this stage, especially after a period of nearly eight years and then to file appeal to the appellate authority under section 47-A(5) of the Act. 23(e). Even though there is no time limit given to the registering authority to refer the documents to the Collector, certainly, for the authority performing statutory functions under section 47-A(2), viz., the Collector, there are period of limitation prescribed at various stages, viz., while giving notice in Form No.I, he has to give 21 days time to the owner and thereafter after arriving at the provisional conclusion, the order has to be communicated to the executant asking him to file objections to the provisional conclusion by fixing a date for enquiry and thereafter, the final order has to be passed. It is made clear under Rule 7 that all the said proceedings commencing from Form No.I notice till the passing of final order shall be completed within a period of three months. 23(f).
It is made clear under Rule 7 that all the said proceedings commencing from Form No.I notice till the passing of final order shall be completed within a period of three months. 23(f). It is true that like the referring authority/registering authority for whom there is no period of limitation prescribed either in the Act or under the Rules for referring documents to the Collector, there is no period of limitation prescribed for the appellate authority for disposing of appeal, even though a period of limitation, as I have stated earlier, can be inferred for the Collector to complete the enquiry under Rule 7. It is also seen under section 47-A(3) that the Col-lector has suo motu power to conduct enquiry regarding valuation of the property which is the subject of the document and such power is restricted for a period of five years from the date of registration of such document. Therefore, the power of the Collector to conduct suo motu enquiry would get lapsed after five years. 23(g). Another point that can be raised is as to whether the referring authority, if not already referred the documents to the Collector, can be directed to refer the documents to the Collector now, especially in the absence of any time limit prescribed for the referring authority. But, such contention is also not tenable since the power that can be conferred on the Collector at this point of time after eight years would be more than the suo motu power of the Collector for which the limitation is five years. Therefore, looking at any angle, there is no question of fresh enquiry which can be directed to be done by the District Collector or there is no question of directing the petitioners to file any appeal within the time that may be given by this Court. 23(h). The necessary conclusion is that the entire proceedings in respect of determination of the market value in the documents which are subject matter of the above writ petitions should be deemed to be lapsed by the conduct of the respondents, which is not only callous but also opposed to all canons of justice which can never be approved.
23(h). The necessary conclusion is that the entire proceedings in respect of determination of the market value in the documents which are subject matter of the above writ petitions should be deemed to be lapsed by the conduct of the respondents, which is not only callous but also opposed to all canons of justice which can never be approved. In such a situation, the contention of the learned Additional Advocate General that in these cases if really the petitioners have undervalued the properties for the purpose of registration, it will be a great loss to the State has no meaning in the sense that it is not due to the fault on the part of the petitioners, but on the part of the officials of the respondents for which the petitioners cannot be made to suffer any further. 23(i). In respect of the suggestion for fresh reference by the registering authority to the Collector in the absence of any time limit prescribed, even as per the Full Bench judgment reported in 2007 (5) CTC 737 (cited supra) (para-34) by applying the concept of conscience and reasonableness, I have no hesitation to come to the conclusion that on the factual situation, the entire conduct of the respondents in these writ petitions are most unreasonable and shocking the conscience of any normal human sense. Certainly, the legal obligations imposed on the respondents have not been performed in a reasonable manner and this Court in such a situation cannot, with blind eyes, give another opportunity to the authorities to perform their functions for the second time which is not only unknown but would make mockery of the statutory provisions as enumerated above. Therefore, I am of the considered view that final orders stated to have been passed in these writ petitions by the District Collector as per section 47-A(2) of the Act are only non-est in the eye of law as there is no evidence to show that any enquiry was conducted by the District Collector. Further, there is no reason assigned by the registering authority to refer the matter to the District Collector. 23(j).
Further, there is no reason assigned by the registering authority to refer the matter to the District Collector. 23(j). In such circumstances, on the facts of the case, in these writ petitions where there has been no communication either from the registering authority or from the Collector for more than eight years after registration, it can never be said that there has been an enquiry conducted and final orders passed in the manner provided in law. In view of the same, the entire proceedings stated to have been initiated by the respondents under section 47-A of the Act in respect of these writ petitions stand lapsed and the writ petitions stand allowed with direction to the registering authority to return the documents forthwith. 24. Before parting with, it is appropriate to mention that in such a callous situation which has been created by the respondents in respect of the above said writ petitions, it is for the Government to take appropriate action against such patent error committed by the officers concerned which can at least be a guidance for the officials in future to follow scrupulously the principles in future. Steps must also be taken to see that a comprehensive legislation is made to put an end to such sort of lapse in the interest of revenue of the Government, about which the courts are certainly concerned. 25. In view of the above said discussion, the following principles are culminated: (1)In the event of the registering authority failing to refer any document on the basis that the properties have been undervalued within a reasonable time as per the observation of the Full Bench in paragraph 34 of 2007 (5) CTC 737 (cited supra), or not in any event of non-completion of the entire proceedings culminating to the passing of final order by the Collector within a period of five years from the date of presentation of document for registration, the same should be deemed to be lapsed and the registering authority or the Collector thereafter has no jurisdiction to either initiate any proceedings afresh or to proceed further and the documents are to be returned forth-with without any endorsement.
In WP.No.37347 of 2007, the document was presented for registration on 12.04.2002 and the same was registered as document No.1625/2002 and according to the petitioner, no Form I notice has been received and the petitioner has not received any information regarding provisional order and inasmuch as no enquiry has been conducted for more than five years, the proceedings under Section 47-A get lapsed. Accordingly, WP.No.33556 to 33582 and 37347 of 2007, which falls under this category stand allowed. (2)In cases where Form I notice are served to the petitioners as seen in W.P.Nos.34548 to 34550 of 2007, 35159 of 2007, 33957 of 2007, 37384 of 2007, 35384 of 2007, the authorities are entitled to proceed further by conducting enquiry as per the Act and Rules to pass provisional order and thereafter pass final order as per Rules 6 and 7. However, in the meantime, the registering authority shall re-lease the documents to the petitioners concerned with the endorsement in the form of affixing seal indicating that the reference under Section 47-A with respect to undervaluation and assessment of stamp duty payable is pending. (3) In respect of cases where 47-A proceedings are pending as it is stated in W.P.Nos.25721 of 2007, 35722 of 2007, 37385 to 37387 of 2007, 27901 of 2007, 33848 and 33849 of 2007 and 36359 of 2007, the concerned registering authorities are directed to release the documents to the petitioners with an endorsement in the form of affixing seal indicating that reference under Section 47-A with respect to undervaluation and assessment of stamp duty payable is pending. (4)Relating to other cases, wherein final orders are stated to have been passed by the Collector under Section 47-A(2) of the Act, as it is stated in W.P.Nos.26871 of 2007 and 26658 of 2007, the petitioners are entitled to file further appeal to the appellate authority as per Section 47-A(5) of the Act from the date of service of such orders as per Rule 15 within the time pre-scribed under the Rules and in the meantime the registering authority shall release the documents with an endorsement in the form of affixing seal indicating that reference under Section 47-A with respect to undervaluation and assessment of stamp duty payable is pending.
(5)In addition to the above said affixture of seal relating to cases mentioned in Clauses 2, 3 and 4, the concerned registering authority shall make corresponding entries in the Register maintained under the Registration Act,1908, especially with reference to Sections 54 and 55, as to the pendency of Section 47-A proceedings, to be disclosed in the encumbrance certificates relating to the said properties. (6)On completion of the entire adjudication in respect of undervaluation by the competent authorities including the appeal and revision if any, based on the ultimate decision, the authorities are entitled to recover the deficit stamp duty in accordance with the provisions of the Stamp Act. (7)Till such finality is reached and deficit stamp duty is paid in full as enshrined under Section 47-A(4) of the Act, there will be a charge on the properties which are the subject matter of such documents in respect of the amount of deficit stamp duty. (8)On payment of the deficit stamp duty by the party, the registering authority, on production of the original deed of transfer shall make appropriate entry regarding the factum of payment of full stamp duty and discharging property from the charge as per Section 47-A(4) of the Act and also make consequential entries in the encumbrance and indexes maintained under Sections 54 and 55 of the Indian Registration Act,1908. The writ petitions stand allowed with the above directions. No costs. Consequently, connected miscellaneous petitions are closed. W.P.Nos.25721, 26658, 26871, 27901, 33556 to 33568, 33569 to 33582, 33848, 33849, 33957, 34548 to 34550, 35159, 35384, 35722, 36359, 37347 and 37384 to 37387, of 2007 and connected miscellaneous petitions. P. Jyothimani, J. Today, these matters came up "For Judgment". After pronouncement of the Judgment, Mr.N.Anand Venkatesh,the learned counsel appearing for the petitioner in W.P.Nos. 33848 and 33849 of 2007 brought to the notice of this Court that in respect of the said Writ Petitions no proceedings are pending under Section 47-A of the Stamp Act. Hence, in Paragraph No.25 (3) at Page No.77 of the "Common Order" in the above Writ Petitions dated 21.04.2008, the W.P.Nos. 33848 and 33849 of 2007 are ordered to be deleted. 2.Admittedly, in respect of the W.P.Nos. 33848 and 33849 of 2007, no proceedings are pending under Section 47-A of the Stamp Act and the respondent is retaining the document, inspite of registering the same in November 2007, for no reason.
33848 and 33849 of 2007 are ordered to be deleted. 2.Admittedly, in respect of the W.P.Nos. 33848 and 33849 of 2007, no proceedings are pending under Section 47-A of the Stamp Act and the respondent is retaining the document, inspite of registering the same in November 2007, for no reason. However, the learned counsel for the petitioner submits that the Registrar is retaining the document on the ground that some Civil proceedings are pending in respect of the property. 3. Excepting registering the document, the Registrar has no concern about the validity or otherwise of the document, which is the realm of the Civil Court. 4. In view of the above, the W.P.Nos. 33848 and 33849 of 2007 stands allowed with the direction to the respondent to re-lease the document forthwith, without any endorsement. 5. In all other respects, the earlier order dated 21.04.2008 holds good.