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2014 DIGILAW 757 (PNJ)

Vishal Rekhan v. State of Haryana

2014-04-28

RITU BAHRI

body2014
JUDGMENT Ms. Ritu Bahri, J.: - This petition under Article 226/227 of the Constitution of India is for issuance of writ in the nature of certiorari for quashing the impugned order dated 11.01.2010 (P-9) passed by respondent No. 3 and ordered the petitioners to deposit the stamp duty and the impugned order dated 24.05.2011 (P-12) passed by respondent No. 2 whereby the appeal filed against the above said order, has been dismissed. 2. The petitioners were owners in equal shares, resident of Johripura Mohalla, Jagadhri through Sh. Vidya Prakash son of Sh. Raghunanandan Lal resident of Churiala Mohalla, Distt. Ambala through General Power of Attorney in his favour vide sale deed dated 20.05.2002 got this sale deed registered in favour of Vishal Rekhan 1/3rd Share, Rajesh Kumar 1/3rd share and Shri Mahabir Singh 1/3rd share for Rupees 11 lacs. In this sale deed, 03 bighas 3 biswa of the land was sold. The stamp auditor in his report had pointed out that in this sale deed there are three purchasers and the land sold is situated near E.S.I Hospital on the Jagadhari-Yamunanagar road, where collector rate is between Rs.4000/- to Rs.5000/- per sq yard. Patwari in his report had described the land as agricultural land. Thus, it was ordered that the rate be determined from the Collector. The Sub-Registrar, Jagadhari had forwarded the copy of the sale deed along with audit note to the Collector, Jagadhari for evaluation of price of land under the provisions of Section 47-A of the Indian Stamp Act, 1989 (for short ‘the Act’). 3. After issuing notice to the purchasers, the Collector visited the spot accompanied by the Sub-Registrar and found that the purchase land is in Revenue Estate of Village Tejli. There is abadi around the land in dispute and there is garden (bagh) on the land purchase. Abadi around the land in dispute and coming in the M.C fixation of the rate of the land purchase at the rate of Rs.7000/- per sq yard was found to be appropriate. The Collector held that the sale deed had been registered on a lesser price. The Collector determined the value of the land under Section 47-A of the Act at rate of 700/- per sq yard and the value comes to Rs.23,10,000/- and the petitioners were directed to deposit the deficient stamp duty. 4. The Collector held that the sale deed had been registered on a lesser price. The Collector determined the value of the land under Section 47-A of the Act at rate of 700/- per sq yard and the value comes to Rs.23,10,000/- and the petitioners were directed to deposit the deficient stamp duty. 4. Aggrieved against the above said order, the petitioners preferred an appeal before the Commissioner Ambala Divn, Ambala Cant. The Commissioner appointed the District Revenue Officer as Local Commissioner to report about the position of the land. In its report dated 03.11.2010, it has been stated that after inspection of the land, it has been found that in the North of the disputed land Gurjar Nagar is inherited and the construction of buildings in the Gurjar Nagar dates back to about 30 years old have been verified. In the East of the impugned land there is Basant Nagar in which the constructions of buildings have been verified to be about 20 years old. In the south of the impugned land there is E.S.I Hospital building, the construction of which is about 40 years old. In the West is Jagadhari-Yamuna Nagar Highway. The report of the Local Commissioner was accepted along with finding recorded by the Collector and the appeal of the petitioners/appellants was dismissed on 24.05.2011 (P-12). 5. Learned counsel has argued that the sale deed was executed on 11.09.2002 by treating the land to be agricultural as per report given by the Patwari. However, the Collector visited the spot accompanied by the Sub-Registrar and found that the purchase land is in Revenue Estate of Village Tejli. There is abadi around the land in dispute and there is garden (bagh) on the land purchase. The petitioners cannot get the trees on the land in question as it was given before changing the nature of the land. The petitioners have to seek prior permission from the Forest Department. Even if the land is surrounded by the colonies which had constructed building for the last 20-22 years on 3 sides of the disputed land, the Collector could not come to a conclusion that the land is not an agricultural land. The determination of the price treating it to be residential area is not sustainable and is liable to be set aside. 6. The determination of the price treating it to be residential area is not sustainable and is liable to be set aside. 6. Another point argued by learned counsel is that under Section 47-A of the Act at the time of registration of the sale deed, the Sub Registrar referred the matter for determination of the value to the Collector who after giving notice to the parties and after holding enquiry determined the value at rate of 700/- per sq yard and assessed the stamp duty to Rs.1,87,550/-. 7. Learned counsel for the petitioners submits that after a lapse of more than 1½ years, the petitioners received a notice under Section 47-A of the Act from the Collector, Jagadhari, which is against the provisions of the Act. 8. Reference has been made to a decision of Co-ordinate Bench of this Court in a case of Iqbal Singh and others vs. State of Haryana and others, [2011(5) Law Herald (P&H) 493 : 2011(3) Land L.R. 374 (P&H)] : passed in CWP No. 5461 of 2008, decided on 30.09.2010 (P-13). 9. On notice, a reply has been filed in the present case by the respondents and the stand taken by the respondents is that the stamp duty has been correctly revised as the District Revenue Officer who was appointed as Local Commissioner in its report dated 03.11.2010 has been stated that after inspection of the land, it has been found that in the North of the disputed land Gurjar Nagar is inherited and the construction of buildings in the Gurjar Nagar dates back to about 30 years old have been verified. In the East of the impugned land there is Basant Nagar in which the constructions of buildings have been verified to be about 20 years old. In the south of the impugned land there is E.S.I Hospital building, the construction of which is about 40 years old. In the West is Jagadhari-Yamuna Nagar Highway. Therefore, the Collector rightly determined the value of the land under Section 47-A of the Act at rate of 700/- per sq yard and the value comes to Rs.23,10,000/- and the petitioners were directed to deposit the deficient stamp duty. 10. Heard learned counsel for the parties. 11. The undisputed facts in the present case are that the sale deed was executed on 11.09.2002. 10. Heard learned counsel for the parties. 11. The undisputed facts in the present case are that the sale deed was executed on 11.09.2002. The total cost of the land was Rs.11 lacs and the stamp duty was fixed initially treating the land to be agricultural land. Thereafter, the Collector issued notice to the parties on 11.06.2004 (P-4) under Section 47-A of the Act for the determining the value of the land. 12. The first question for consideration before this Court is that whether under Section 47-A(3) of the Act, a notice given by the Collector was within the limitation or not? 13. Sub Section (3) of Section 47-A of the Act further empowers the Collector to initiate proceedings either on the receipt of the reference from the Inspector General of Registration or Registrar of a District appointed under the Registration Act, 1908 in whose jurisdiction, the property is situated or on the receipt of the report of the audit by the Comptroller & Auditor General of India or by any other authority authorized by the State Govt. or suo moto, within a period of three years from the date of registration of the instruments. 14. In the present case, notice has been given by the Collector on reference made by the Sub Registrar. It is not a case where the reference has been made on receipt of the report of the audit by the Comptroller & Auditor General of India. It is the Sub-Registrar who after getting the audit objection has referred the matter to the Collector. 15. Sub Section (1) of Section 47-A of the Act clearly provides for reference to the Collector as soon as the Registering Officer registers the document and is of the opinion that the value fixed for determining the stamp duty is less than the market value. The Collector on receipt of the reference is required to determine the market value, after affording reasonable opportunity of being heard in terms of Sub Section (2) of Section 47-A of the Act. 16. In the present case, the sale deed was registered on 11.09.2002. The Sub-Registrar under Section 47-A(1) of the Act could not refer the matter to the Collector on the report of the Audit after a gap of 1½ years. 16. In the present case, the sale deed was registered on 11.09.2002. The Sub-Registrar under Section 47-A(1) of the Act could not refer the matter to the Collector on the report of the Audit after a gap of 1½ years. As per the Act, the Sub Registrar cannot refer the matter to the Collector for re-assessment of the market value of land as well as for the stamp duty. 17. The issued regarding question of limitation has been considered by this Court in a case of Abhinav Kumar vs. State of Haryana and others, 2001(1) PLR 598 wherein following observations have been made:- “ 7. Thus, the reading of the above provision would show that the Legislature has used the following words with some significance and importance. “ While registering any instrument” Meaning thereby the reference can only be made immediately after the registration of the document or in the course of the registration of the document but in the present case reference has been made after 8 days which is not in accordance with law. These provisions were also interpreted by the High Court in Civil Revision No.4412 of 1998 Diya Ram Vs. State of Haryana and others, where it was held as follows:- “ It will thus appear that the consistent view of his Court is that there is no provision in the Indian Stamp Act wherein deficient stamp duty can be recovered by the registering authority either from the vendor or from the vendee subsequent to and after the registration of the sale deed. No law contrary to it has been cited by the learned counsel for the respondents.” 18. Following the ratio of law laid down by this Court in the judgment mentioned above, impugned order dated 11.02.2010 (P-9) passed by respondent No. 3 and order dated 24.05.2011 (P-12) passed by respondent No. 2 are set aside. The writ petition is allowed. No order as to costs. ---------0.B.S.0------------ —————————