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2017 DIGILAW 351 (ORI)

Swadhin Ku. Sahoo v. State of Odisha

2017-03-30

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - The petitions involved herein have not only a common set of facts but also a common prayer except change of person and change in the stamp case number, which remain as under: “It is therefore prayed in all the writ petitions that let this Hon’ble Court may graciously be pleased to admit this writ petition, call for the records from the Opp. Parties and after hearing allow the same by issuing writ/writs in the nature of certiorari/mandamus quashing Annexures – 2,3,4,6,7,9 and 11, the entire proceeding initiated in pursuance of Stamp Case Nos.9 of 2015, 10 of 2015, 11 of 2015, 12 of 2015 and 8 of 2015 respectively in the file of the Stamp Collector cum Sub-Collector, Dhenkanal/O.P.No.2 and commanding the Opp. Parties to return the petitioner’s registered sale deed ( under Annexure-1) forthwith in the interest of justice. And pass any other writ/writs, order/orders and direction/directions as fit and proper to secure the ends of justice.” W.P. (C) No.2684 of 2017 – Stamp Case No.09 of 2015 W.P.(C) No.2686 of 2017 – Stamp Case No.10 of 2015 W.P. (C) No.2688 of 2017 – Stamp Case No.11 of 2015 W.P. (C) No.2690 of 2017 – Stamp Case No.12 of 2015 W.P. (C) No.2693 of 2017 – Stamp Case No.08 of 2015. 2. Common fact as revealed from the aforesaid cases is that the petitioners involved therein duly presented an instrument for registration in accordance with law and the instrument presented for registration by each of the petitioner has been withheld under the premises of initiation of under valuation cases under Section 47-A of the Indian Stamp Act and as amended by Indian Stamp (Odisha Amendment) Act, 2008 (Odisha Act 8 of 2009). All the petitioners challenge the impugned action on the premises that withholding such instrument is without jurisdiction. They also challenge the very initiation of the Stamp Proceeding for being contrary to the provisions contained in Section 47-A of the Act and made a claim that the instruments once submitted for registration, the registration is compulsory subject to however initiation of any proceeding in the garb of under valuation and initiation of any such proceeding being an independent proceeding has nothing to do with the registration. The facts further reveals that the cases involved sale deeds executed by the petitioners on 30.3.2015 in favour of the prospective buyers were duly presented for registration before the competent authority. The petitioners further pleaded that the instruments have been executed following the prevailing benchmark valuation made effect from 1.4.2013 supplied by opposite party No.3 therein, hence all the petitioners claimed that there is no infirmity in the instrument presented before the Registering Authority requiring initiation of any proceeding under the Stamps Act. 3. Assailing the impugned actions, Sri R.K. Mohanty, learned Senior Counsel appearing for the petitioners involving all the cases being assisted by Sri Rajeet Ray submitted that the very initiation of the proceedings under the Stamp Act is an example of serious abuse of process of law also involving arbitrary action of the Stamp Collector. It is also claimed that the proceedings also suffer for being contrary to the provision of law and without any authority. Annexure-6 involved therein cannot be termed as an intimation as contemplated under Section 47-A of the Stamp Act. It is also contended that determination of under valuation is beyond the purview of the Sub-Registrar. It is thus claimed that the basis of under valuation is without any foundation and renders contrary to the earlier assessment made under Annexure-7 as the benchmark valuation arrived at statutorily at that point of time. As per law, benchmark valuation has to be reassessed/revised biennially. The previous benchmark valuation being made on 1.4.2013, it is to remain effective till 30.3.2015 and the instruments, appearing at Annexure-1, having been presented on 30.3.2015 was well within the statutory period of limitation and while the benchmark valuation made under Annexure-5/A was very much in force, any variation thereof can only be by way of amendment prescribed under Sub-Rule 2 of Rule 40 of the Stamp Rules, which is vested only with the Collector. Sri Mohanty, thus contended that assessment made by the Registering Authority is without jurisdiction. Under the premises, Sri Mohanty, learned Senior Counsel appearing for the petitioners contended that the impugned action on valuation is not only illegal but also runs contrary to the provisions contained in Stamp Act and rules therein. Referring to two of the decisions of this Court in the cases of Guru Prasad Mohanty and Anr. Under the premises, Sri Mohanty, learned Senior Counsel appearing for the petitioners contended that the impugned action on valuation is not only illegal but also runs contrary to the provisions contained in Stamp Act and rules therein. Referring to two of the decisions of this Court in the cases of Guru Prasad Mohanty and Anr. and Kailash Sahu v. State of Orissa and Ors, 2009 (II) OLR 65 and M/s. Harshpriya Construction (P) Ltd. v. The Inspector General of Registration, Orissa, Cuttack & Others, 2010 (I) OLR 760 , Sri Mohanty learned Senior Counsel submitted that the claims of the petitioners involving each of the writ petition have clear support of the above decisions of this Court and the writ petitions having support of statutory provision of law ought to be allowed. 3. Sri Saugat Dash, learned Additional Standing Counsel while strongly refuting the objections at the instance of the petitioners involving in each of the cases referring to several provisions from the Registration Act, 1908 and Rules therein submitted that there is no infirmity in none of the orders involved herein and all the impugned actions taken by the Registering Authority are in consonance with the provisions contained in the act and rules thereudner.It is further submitted by Sri Dash, learned Additional Standing Counsel that for the petitioners facing proceeding under the Stamp Act dispute involving the registration of the document is still under adjudication following the direction of the District Judge, Dhenkanal in F.A.O. No.6 of 2015 directing for reopening of stamp cases involved therein, this is a case subjudice and thus claimed that the writ petition is a premature one and should be dismissed on this ground asking the petitioner to wait till the final outcome in the case involved. 4. From the pleadings involved in the writ petitions and the submissions made by the respective Counsels as referred to hereinabove, this Court gathers petitioner while assailing the initiation of the stamp proceeding involved in each of the writ petitions has also sought for a direction against the Registering Authority for registering the instrument and returning the same to the petitioners involved therein, subject to however the outcome in the Stamp cases. 5. Part-III of the Registration Act deals with compulsory registration of certain documents under the Registration Act and the instrument submitted herein needs compulsory registration. 5. Part-III of the Registration Act deals with compulsory registration of certain documents under the Registration Act and the instrument submitted herein needs compulsory registration. Part-IV of the Act deals with time of presentation of documents whereas Part-V deals with place of registration of documents relating to land. While Part-VI deals with persons to present documents for registration, Section 34 under Part-VI requires inquiry in certain contingencies before registration and Section 35 of the Act in Part-VI prescribes procedure on admission and denial of execution respectively. Section 71 of Part XII of the Registration Act gives power to the Registering Authority to assign reason for refusal for registration of a document and person aggrieved by such order are entitled to appeal to the Registrar. 6. From the narration of facts involved in the present cases, it appear, on presentation of an instrument, the District Sub-Registrar, Dhenkanal upon receipt of the instrument for registration simultaneously functioning as Stamp Collector initiated appropriate proceeding and called upon the respective petitioners involving their instruments for their submission. After coming to a conclusion that there has been no proper valuation in the instrument and after calculating the deficit stamp duty thereby as registration fees directed each of the persons involved in the instruments seeking for registration to deposit the deficit stamp duty in exercise of power under Section 47-A of the Indian Stamp Act, 1899. Petitioners submitted their response to the aforesaid notice. While objecting the claim of the Stamp Collector, petitioners requested for recalling the notice and registering the instruments thereby. In the meantime, notice has also been issued in the stamp cases to the respective petitioners to appear on a particular date in the proceedings involved therein and answer to the claim vide Annexure-10 to which all the objectors filed their response. The cases were again posted to another date and in the meantime another set of objections were also filed. In the meantime the stamp cases so initiated against each of the petitioners have been concluded against each of the petitioners resulting therein the petitioners preferred first appeal before the District Judge. The cases were again posted to another date and in the meantime another set of objections were also filed. In the meantime the stamp cases so initiated against each of the petitioners have been concluded against each of the petitioners resulting therein the petitioners preferred first appeal before the District Judge. Appeals being heard, finally decided by order dated 6.9.2016, remitting the matters back to the Sub-Collector-cum-Stamp Collector, Dhenkanal for holding an inquiry in terms of Rule 23 of the Stamp Rules, 1952 read with guidelines contained in Orissa Stamp (Amendment) Rules, 2001 and the remand proceedings are still pending and at this point of time, the petitioners brought the writ petitions before this Court for consideration. At this stage, this Court finds the matter involved two points. (i) Whether the initiation of the stamp cases are appropriate or not ? (ii) Whether the denial of registration of instruments on the premises of initiation of stamp cases involving recovery of deficit stamps for registration of the instruments is proper or not ? 7. Admittedly, the proceedings under Section 47-A of the Stamp Act are already initiated against the petitioners on the premises of under valuation of instrument being presented. The petitioners claim that they have the instrument prepared and valued looking to the benchmark valuation available in the locality. State has not filed any counter refuting the same. Thus, this Court finds there is no denial to the aspect that there already existing a benchmark valuation involving the lands in the particular locality and the Registering Authority cannot implant any other valuation in existence of a benchmark valuation available in the locality.47-A (1) and (2) of the Indian Stamp Act, 1899 reads as follows : “47-A. Instruments under-valued how to be dealt with – (1) Where the registering officer under the Registration Act, 1908, while registering any instrument of conveyance, exchange, gift, partition or settlement has reasons to believe that the market value of the property which is the subject matter of such instrument has not been rightly set forth in the instrument or is less than the minimum value determined in accordance with the rules made under this Act, he shall, before registering such instrument, refer the matter to the Collector, with an intimation in writing to the person concerned, for determination of the market value of such property and the proper duty payable thereon. (2) On receipt of a reference under Sub-section (1), the Collector shall, after giving the parties and opportunity of making their representations and after holding an inquiry 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 such instrument, and the duty as aforesaid and the deficient amount, ilf any, shall be payable by the person liable to pay the duty.” Thus even assuming that the Registering Authority has an opinion that the instrument of conveyance does not bear a right valuation and is less than the minimum valuation in accordance with the rules made under the said Act, he shall, before registering such instrument, refer the matter to the Collector with an intimation in writing to the person concerned for determination of the market value of such property and proper duty payable thereon and following the aforesaid provision, the statute again requires the Collector upon such reference giving parties the liberty of making their representation and after holding an inquiry, as prescribed under the rules, made in the particular Act, determines the market value of the property involving instrument. Thus, it becomes a duty of a person liable to pay the deficit amount. Section 47-A again prescribes provision for appeal to the District Judge by the aggrieved persons. 8. Rule 23 of the Orissa Stamp Rules, 1952 since relevant is quoted as herein below : “23. Thus, it becomes a duty of a person liable to pay the deficit amount. Section 47-A again prescribes provision for appeal to the District Judge by the aggrieved persons. 8. Rule 23 of the Orissa Stamp Rules, 1952 since relevant is quoted as herein below : “23. Reference to Collector of instruments for determination of Market Value – If the Registering Officer while registering any instrument of conveyance, exchange, gift, partition or settlement has reasons to believe that the market value of the property has not been correctly set forth in the instrument, as per the market value guidelines under Clause (j) of Rule 2, he may, after registering the instrument, refer the same to the Collector for determination of the market value and duty payable thereon, while referring the document to the Collector, the fact and circumstances that prompted the Registering Officer to come to the belief that property, has been undervalued shall be fully and clearly stated.” Reading of the above rule, it becomes clear that in the case of undervalue instrument, in the event the Registering authority has reason to believe that market value of the property involved has not been done correctly set forth in the instrument, he may, after registering the instrument, refer the same to the Collector for determination of market value and duty payable thereon, after fully and carefully stating for arriving at his such opinion and it is only in such event and after receipt of a reference under Section 23, the Collector is required to start a miscellaneous case and close such proceeding giving opportunity of evidence and objections to the person likely to be affected. From the fact narrations involved in the case, this Court finds the proceeding initiated against the petitioner is initiated under the premises of tendering an undervalued instrument and consequential initiation of a proceeding under Section 47-A of the Indian Stamp Act. 9. From the fact narrations involved in the case, this Court finds the proceeding initiated against the petitioner is initiated under the premises of tendering an undervalued instrument and consequential initiation of a proceeding under Section 47-A of the Indian Stamp Act. 9. The definition of Collector at Section 2 (9) of the Indian Stamp Act, 1899 reads as follows : 2(9) “Collector” – Collector :- (a) means, within the limits of the towns of Calcutta, Madras and Bombay, the Collector of Calcutta, Madras and Bombay, respectively and without those limits, the Collector of a district, and (b) includes a Deputy Commissioner and any officer whom the State Government may, by notification in the Official Gazette, appoint in this behalf.” From the submission of learned Additional Government Advocate, this Court finds the Sub-Collector has been empowered to deal with the reference of the Registering Authority and the Sub-Collector taking up the proceedings has the jurisdiction for the provision contained in Rule 23 of the Orissa Stamp Rules, 1952 read with Section 2 (9) of the Indian Stamps Act, 1899. 10. Under the circumstances and for the discussions made hereinabove, this Court observes that initiation of the Stamp Act proceeding by the Sub-Collector cannot be held to be bad, as a consequence the proceedings before the District Judge are also held valid, hence the order remaining the matter to the Sub-Collector to rehear the Stamp Act proceedings does not warrant any interference. But as it is a clear case of involvement of an undervalued instrument, following the provision in Rule 23 of the Stamp Rules, this Court observes the Registering Authority is bound to register the instrument and then refer the matter to the Collector or Sub-Collector, whoever is authorised for adjudication of the dispute under Section 47-A of the Act. As a consequence, this Court directs the Sub-Registrar to register the instruments and hand over the same to the petitioners but subject to however with a condition that the petitioners involved in each of the writ petition will submit an affidavit with an undertaking that they will be abided by the ultimate outcome in the Stamp Act Cases involved each of them and payment, if any required, ultimately shall also be cleared by them within a period of two weeks from the date of final outcome of such proceedings. In the result, the writ petitions are partly allowed. No cost. In the result, the writ petitions are partly allowed. No cost. Petitions partly allowed.