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2008 DIGILAW 1653 (PNJ)

Radhey Sham v. State Of Haryana

2008-09-24

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This revision petition is directed against the order passed by the learned Additional District Judge, Bhiwani dated 16.5.1987 and that of the learned Collector, Bhiwani dated 17.11.1986. 2. Learned Collector determined the value of the property which was got registered by way of registered deed as Rs. 2,70,000/- and ordered recovery of Rs. 32,000/- as stamp duty under section 9 of the Haryana Stamp (Prevention of Under Valuation of Instrument) Rules, 1978 (for short the Rules). Appeal filed by the petitioners also failed. 3. Bhola Shankar on his own behalf and as special power of attorney of Shivshankar Dutt sold some shops situated at Circular Road, Meham Gate, Bhiwani for a sum of Rs. 48,000/- to Radhey Sham son of Durga Parshad resident of Bhiwani and Billu alias Brij Lal son of Inder, the petitioners herein. 4. Document was got registered on 9.5.1985. It is the case of the respondent that during audit done in the office of Sub-Registrar, Bhiwani on 17.9.1985, Chief Inspector Auditor found that the property in question was registered for less value and audit objection was raised giving directions to assess the value of registered document under section 47-A of the Indian Stamp (Haryana Amendment) Act (for short the Act). It is on receipt of auditors report that Sub-Registrar, Bhiwani made a reference on 23.1.1986 under Section 47-A of the Act to the Collector for decision. 5. On receipt of reference it seems that Collector got secret inquiry from the tenant and formed an opinion that the value of the shop was shown less on registered document and the same was assessed to be Rs. 2,70,000/- and thereby held that the petitioners were liable to pay a sum of Rs. 32,000/- as stamp duty. 6. Petitioners filed an appeal, where an objection was raised that the refereffcsn made was not sustainable in law as it was not in consonance with the provisions of Section 47-A of the Act. 7. The contention raised was that though the sale deed was registered on 9.5.1985 the Sub Registrar did not have any material to form that any opinion about the valuation and therefore, there was no occasion to make the said reference after lapse of so many months. 8. 7. The contention raised was that though the sale deed was registered on 9.5.1985 the Sub Registrar did not have any material to form that any opinion about the valuation and therefore, there was no occasion to make the said reference after lapse of so many months. 8. Learned lower appellate court accepted the plea of the State that the fact regarding under valuation came to the notice during the audit and thereafter reference has been made. 9. The findings recorded by the learned lower appellate court and the Collector cannot be sustained in view of the law laid down by this court in the cases of Abhinav Kumar v. State of Haryana & Ors., 2001(1) RCR(Civil) 91: (2001-1) PLR 598 and Paramjit Kaur w/o Harnek Singh & Anr. v. State of Punjab & Ors., 2002(2) RCR(Civil) 94: (2002-1) PM 651 laying down that reference under section 47-A of the Act can be made immediately after the registration of document not thereafter. 10. This court in the case of Abhinav Kumar v. State of Haryana & Ors. (supra) was pleased to set aside the order passed when the reference was made after eight days. Similarly in the case of Paramjit Kaur w/o Harnek Singh & Anr. v. State of Punjab & Ors. (supra) it was held that reference could be made immediately after the registration of document or in course of registration of document and not after a long time. In the said case though the document was registered on 20.1.1995 reference was made on 10.6.1996. 11. In the present case also document was got registered on 9.5.1985 whereas reference was made on 23.1.1986. The plea of the petitioners that appropriate opportunity was not afforded to the parties by the Collector was also rejected. Learned lower appellate authority held that in the present case evidence collected by the Collector by way of secret inquiry was on record and petitioners in spite of having been given an opportunity failed to lead any evidence. 12. The conclusion was drawn that the order passed was in consonance with principles of natural justice as the petitioners were afforded an opportunity to prove that the value of the document registered Was genuine and not undervalued. 13. 12. The conclusion was drawn that the order passed was in consonance with principles of natural justice as the petitioners were afforded an opportunity to prove that the value of the document registered Was genuine and not undervalued. 13. The finding recorded by the learned Collector as well as the lower appellate court cannot be sustained as under section 47-A of the Act the Collector exercises quasi judicial power and therefore, is bound to follow the principles of natural justice which envisage that evidence to be used against the petitioner was to be recorded in his presence giving him an opportunity to cross-examine the said witness. 14. There was no material collected by the Collector in the present case while proceeding under Section 47-A of the Act to form the basis for the finding. The evidence relied upon by the Collector was not admissible as it was collected at the back of petitioner and not proved before the Collector, during the proceedings under the Act. The impugned order deserves to be set aside. For the reasons recorded above, this revision is allowed. Impugned orders are ordered to be set aside.