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2019 DIGILAW 213 (MP)

Parth Developers v. State of M. P.

2019-03-08

PRAKASH SHRIVASTAVA

body2019
ORDER 1. Heard finally with consent. 2. By this petition the petitioner has challenged the order of the Collector of Stamps dated 22.9.2019 demanding the balance stamp duty and registration charges, as affirmed by the order in revision, dated 15.3.2018 passed by the Board of Revenue. 3. The brief facts are that the petitioner had entered into the agreement dated 27.6.2012 with the respondents No. 3 to 5 in respect of development of colony on their land and the said agreement was registered by Sub-Registrar, Barwani without any objection on 27.6.2012. Thereafter on the basis of some audit objection, the Sub-Registrar had referred the matter to the Collector of Stamps, who had registered the same on 7.4.2016 under section 47A of the Indian Stamp Act. The notice was issued to the petitioner and thereafter the impugned order demanding the additional stamp duty and registration charges has been passed. 4. Learned counsel appearing for the petitioner submits that the Collector (Stamps) had no power to examine the correctness of the stamp duty and registration charges levied once the document is registered, if the same is not produced in course of any proceedings before any authority. He has submitted that the order passed by the Collector of Stamps is without jurisdiction. 5. Counsel for the State has supported the impugned order. 6. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that undisputedly the document in question was registered by the Sub-Registrar on 27.6.2012 and thereafter on the basis of some audit objection, the proceedings have been taken up by the Collector of Stamps and the impugned order has been passed. 7. It is the settled position in law that once a document is registered, the registering officer has no power under the Stamp Act or Registration Act to examine whether an instrument already registered was or was not duly stamped, or to impound it. The Full Bench in the matter of Jainabai v. State of M. P. reported in 1981 JLJ 40 has held as under: “3. Having heard learned counsel for the parties we are of the opinion that this reference must be accepted. The Full Bench in the matter of Jainabai v. State of M. P. reported in 1981 JLJ 40 has held as under: “3. Having heard learned counsel for the parties we are of the opinion that this reference must be accepted. Section 33 (1) of the Act provides as follows: ‘33 (1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an office of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.’ The Sub-Registrar, before whom the document was produced for registration, was a person in charge of a public office and had therefore the power to impound the document if in his opinion it was not duly stamped and to send the same in original to the Collector of Stamps under section 38 (2) of the Act before registering the same because section 35 of the Act provides that no document shall be registered by any public officers unless the same is duly stamped. The Act does not empower the Sub-Registrar to impound the document after the same is registered by him even if it is not duly stamped. After registering an instrument, the Sub-Registrar becomes functus officio and has no power to impound the same. In similar circumstances a Full Bench of this Court in Komalchand Jain and another v. State of M. P. (1965 JLJ 656) held that the registering officer has to perform the duty of seeing whether an instrument presented for registration is or is not duly stamped before admitting it to registration and not afterwards. If he finds that the document is not duly stam2ped, then he must impound it under section 33 of the Act. Neither in the Registration Act nor in the Stamp Act is there any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function, in the performance of which the document was produced before him, is over and thereafter becomes functus officio having no power under section 33 to impound the instrument. As soon as the registering officer registers a document presented to him for registration, the function, in the performance of which the document was produced before him, is over and thereafter becomes functus officio having no power under section 33 to impound the instrument. We are in respectful agreement with the law laid down in the aforesaid Full Bench decision. 4. It was contended on behalf of the State that under section 47-A of the Act as amended by the Indian Stamp Act (Madhya Pradesh Second Amendment) Act, 1975, the Sub- Registrar has the power to impound the document even after registration if in his opinion the document was not duly stamped and the Collector has also the power to deal with such document suo motu within five years from the date of the registration of any instrument. However, section 47-A of the Act applies only when the question involved is about the correctness of the market value of the property dealt with by the instrument. But in the present case, the question of market value of the property is not involved. Therefore, the provisions of section 47-A of the Act are not attracted to the present case. In the circumstances, the Sub-Registrar, after registering the instrument in question, had become functus officio and he had no power to impound the document and refer the matter to the Sub-Divisional Officer and Collector of Stamps, Ujjain and the latter had no power to pass the impugned order holding that the document was insufficiently stamped and directing the petitioner to make good the deficiency and also to impose a fine of Rs. 2000/- on the petitioner.” 8. In the present case also, the question of market value of the property is not involved, hence the issue is squarely covered by the aforesaid judgment. In the similar circumstances this Court has allowed W. P. No. 4412/2011 vide order dated 16.1.2012 by holding as under: “It is undisputed that the Sub Registrar had registered the document in question on 17.9.2003 without any objection. In the similar circumstances this Court has allowed W. P. No. 4412/2011 vide order dated 16.1.2012 by holding as under: “It is undisputed that the Sub Registrar had registered the document in question on 17.9.2003 without any objection. The Full Bench of this Court in the matter of Jainabai v. State of MP reported in 1980 MPLJ 795 has held that the Sub-Registrar has no power to impound a document after the same is registered even if it is not duly stamped and after registration the Sub-Registrar becomes functus officio and he has no power to impound the document or send a document after registration to the Collector of Stamps and the latter has no jurisdiction to hold that the document was not duly stamped and to call upon the executant to make good the deficiency and impose the fine. The notesheet dated 3.7.2004 filed as Annexure P-4 indicates that the proceedings were initiated on the basis of the reference received by the Collector under section 33 of the Act. Though the respondents in their reply have taken the stand that the action has been taken under section 48B of the Act on the basis of the true copy of the document in question, but they have not been able to substantiate it.” 9. Hence from the aforesaid it is clear that after registering the document, the Sub-Registrar has become functus officio and he had no power to refer the matter to the Collector of Stamps and the Collector of Stamps had no jurisdiction to hold that the document was not duly stamped. 10. Hence the writ petition is allowed and the impugned orders dated 22.9.2016 passed by the Collector of Stamps and 15.3.2018 passed by the Board of Revenue are set aside. No costs.