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2021 DIGILAW 529 (RAJ)

Narendra Sharma v. State of Rajasthan

2021-03-02

DINESH MEHTA

body2021
JUDGMENT : Dinesh Mehta, J. 1. By way of these writ petitions, petitioners have challenged various orders passed by the Collector (Stamps), Udaipur, on the Gift deed executed in favour of petitioners (Petitioner No. 1 in SBCWP No. 14058/2019). 2. For the sake of clarity, facts from Mr. Narendra Sharma vs. State of Rajasthan (SBCWP No. 14058/2019) are taken into consideration. 3. Petitioner No. 2-Bhagwati Lal executed a gift deed in favour of petitioner No. 1-Narendra Sharma on 09.03.2016, whereby a land situated in village Bedwas, Tehsil Badgaon, District Udaipur was conveyed to the petitioner No. 1-Narendra Sharma. 4. At the time of registration, the Sub Registrar found that lesser stamp duty has been paid by the petitioner hence, he demanded payment of additional duty, which was readily paid by the petitioner and gift deed was registered on 09.03.2016 itself. 5. According to the petitioners, since the land covered by the Gift deed dated 09.03.2016 was not in accordance with the actual possession, i.e. instead of 0.1600 hectare, land admeasuring 0.2600 was indicated in the deed, a supplementary/rectification gift deed dated 23.09.2019 came to be executed, by which measurement of the land was corrected. 6. According to the petitioner No. 1, without receiving any notice of the proceedings, he abruptly came to receive an order dated 22.01.2018 passed by the Collector (Stamps) under Section 51 of the Rajasthan Stamp Act 1998 (hereinafter referred to as "Act of 1998"). 7. Upon learning about the order aforesaid, petitioner No. 1 moved a review application dated 22.05.2019 and requested the Collector (Stamps) to review his order and pass a fresh order in light of the facts brought on record by him. It was also stated that the impugned order was passed without giving him an opportunity of hearing, and requisite facts thus could not be brought to his notice. 8. The Collector (Stamps)-respondent No. 3 heard petitioner No. 1 and passed an order dated 19.07.2019; maintained the demand of stamp duty, registration charges and surcharge, (as has been levied in order dated 22.01.2018) but raised additional amount as interest, on the subject gift deed dated 06.03.2016. Petitioner's contention regarding rectified gift deed did not find favour with the respondent No. 3, as the same was executed after passing of the order dated 22.01.2018. 9. Petitioner's contention regarding rectified gift deed did not find favour with the respondent No. 3, as the same was executed after passing of the order dated 22.01.2018. 9. The present writ petition has been preferred by the petitioners inter alia raising various grounds, however, considering the jurisdictional issue, viz. - before making a reference to the Collector (Stamps), the Sub-Registrar neither intimated the parties concerned nor did he call for the original gift deed, on which the stamp duty was sought to be recovered, matter was entertained and interim order was passed. 10. Mr. Tatia, learned counsel for the petitioners submitted that as per sub-section (2) of Section 51 of the Act of 1998, the registering authority is required to call for the original instrument from the party by giving him a notice in writing to pay the deficit stamp duty and on failure of the party to pay the amount, he may make a reference to the Collector (Stamps). 11. Inviting Court's attention towards para No. 4 of the writ petition, Mr. Tatia, argued that petitioner No. 1 has specifically pleaded that before making reference, the Sub-Registrar has not issued any notice stipulated under Section 51 or 54 of the Act of 1998 and thus, entire proceedings are void and vitiated. 12. In support of his arguments, learned counsel relied upon a Division Bench Judgment dated 11.04.2016 rendered in case of Kuri Chand vs. DIG (Stamps) Udaipur & Anr. Civil Special Appeal (W) No. 105/2010 in Civil Writ Petition No. 1327/2008 and argued that the present case is squarely covered by Division Bench judgment aforesaid and the impugned orders deserve to be quashed and set aside. 13. Learned counsel also made submissions on the merit of the order and raised grounds concerning determination or quantum of stamp duty. 14. Ms. Akshiti Shighvi, learned counsel appearing for the respondents, at the very outset, submitted that the petitioner No. 1 has an efficacious remedy available under the Act itself; and that he has brought a false case of non-observance of principles of natural justice, by stating that the respondents had not issued any notice to him. 15. She alternatively submitted that the petitioner No. 1 in any case had filed a review petition before the Collector (Stamps) and after noticing and dealing with all his contentions, a reasoned order dated 19.07.2019 has been passed. 15. She alternatively submitted that the petitioner No. 1 in any case had filed a review petition before the Collector (Stamps) and after noticing and dealing with all his contentions, a reasoned order dated 19.07.2019 has been passed. She thus argued that petitioner's grievance that he was not served with a notice or heard by the Sub Registrar, or Collector (Stamps) stands duly addressed. No prejudice, as such has been caused to him, was her stand. 16. Though, the fact that Sub Registrar had not issued any notice, has not been specifically denied in the reply, learned counsel nevertheless argued that neither any notice is required to be given nor is the document in original needs to be summoned. 17. In support of the contention aforesaid, Ms. Singhvi submitted that the Sub Registrar has made a reference under Section 51(4) of the Act of 1998, which does not require any notice to be given to the concerned person. 18. She further submitted that Section 51 contains two parallel provisions - one in the form of sub-section (2) and another in the form of sub-section (4). According to her, in light of the facts of the present case, it should be held that the Sub Registrar has made a reference in exercise of powers under Sec. 51(4) and thus, petitioner's argument of non-issuance of notice cannot be accepted. 19. She added that the duty as determined and demand as raised, is perfectly valid and legally sustainable, hence, no interference is warranted in the instant case. 20. Heard. 21. As far as the fact that, prior to making reference no notice was served upon petitioner No. 1, is concerned, it practically remains undisputed as the respondents have not given any specific reply in response to the petitioner's assertion made in para 4 of the writ petition, that Sub-Registrar has not issued any notice, prior to making a reference to the Collector (Stamps). 22. The moot question involved in the present case is, "whether the Sub-Registrar can make a reference without issuing a notice and obtaining the original document." 23. For examining this issue, it will be apt to reproduce Section 51 of the Act of 1998. "51. 22. The moot question involved in the present case is, "whether the Sub-Registrar can make a reference without issuing a notice and obtaining the original document." 23. For examining this issue, it will be apt to reproduce Section 51 of the Act of 1998. "51. Instruments undervalued, how to be valued.- (1) Notwithstanding anything contained in the Registration Act, 1908 (Act No. 16 of 1908) and the rules made thereunder as in force in Rajasthan where, in the case instrument relating to an immovable property chargeable with an advalorem duty on the market value of the property as set forth in the instrument, the registering officer has, while registering the instrument, reasons to believe that the market value of the property has not been truly set forth in the instrument, he may either before or after registering the instrument, send it in original to the Collector for taking action under sub-section (3). (2) When through mistake or otherwise any instrument which is undervalued and not duly stamped is registered under the Registration Act, 1908, the registering officer may call for the original instrument from the party and, after giving the party liable to pay stamp duty an opportunity of being heard and recording the reasons in writing and furnishing a copy thereof to the party, impound it and on failure to produce such original instrument by the party, a true copy of such instrument taken out from the registration record shall, for the purposes of this section, be deemed to be original of such instrument and send it to the Collector for taking action under sub-section (3). [(3) On receipt of the instrument under subsection (1) or (2), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in the prescribed manner, determine the market value and stamp duty including the penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period-during which the instrument remained unstamped or insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but not exceeding two times of the deficient stamp duty, and surcharge, if any, payable thereon and if the amount of stamp duty including penalty and surcharge, if any, so determined exceeds the amount of stamp duty including penalty and surcharge, if already paid, the deficient amount shall be payable by the person liable to pay the stamp duty including penalty and surcharge, if any.] (4) Where it appears to a person having by law or consent of parties authority to receive evidence or a person incharge of a public office, during the course of inspection or otherwise, except an officer of a police, that an instrument is undervalued such person shall forthwith make a reference to the Collector in that matter. [(5) The Collector may, suo motu or on a reference made under Sub-section (4) call for and examine any instrument not referred to him under sub-section (1) or (2), from any person referred to in subsection (4) or the executant or any other person for the purpose of satisfying himself as to correctness of the market value of the property, and if after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine in accordance with the procedure provided in subsection (3) of the market value and the amount of stamp duty, if any, payable thereon together with a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained unstamped or insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but not exceeding two times of the deficient stamp duty, which shall be payable by the person liable to pay the stamp duty and penalty.] (6) Where for any reason the original document called for by the collector under sub-section (5) is not produced or cannot be produced, the Collector may, after recording the reasons for its not production, call for a certified copy of the entries of the document from, the registering officer concerned and exercise the powers conferred on him under sub-section (5). (7) For the purpose of inquiries under this section, the Collector shall have power to summon and enforce the attendance of witnesses, including the parties to the instrument or any of them, and to compel the production of documents by the same means, and so far as may be in the same manner, as is provided in the case of civil court under Code of Civil Procedure, 1908 (Act 5 of 1908). 24. A perusal of the provisions of Section 51 of the Act of 1998, particularly sub-section (2) thereof reveals that in case an instrument, which was undervalued or not duly stamped, has been registered under the Registration Act, 1908, the registering officer may call for the original document from the party and, after providing an opportunity of hearing, can make a reference. 25. 25. As against this, sub-section (4) provides that where a person having by law or consent of parties, authority to receive evidence or a person in-charge of a public office, during the course of inspection or otherwise, is of the opinion that an instrument is undervalued, such person can make a reference to the Collector. 26. In considered opinion of this Court, the Sub-Registrar is an authority encaste with the duty to determine appropriate stamp duties, while registering a document. Sub-Registrar, who is an authority under the Registration Act, is also an authority under the Stamp Act and, therefore, he is an officer duly empowered under the provisions of the Act of 1998. He should normally resort to specific provision given under the Act, which clothes him with the power to send the document in original or its copy to the Collector for determination of proper stamp duty. 27. But then, sub-section (4) equally empowers the registering authorities, being public officers to make a reference. It is noteworthy that sub-section (2) of Section 51 does not use the expression - 'reference', whereas sub-section (4) does. Hence, a registering authority, without impounding the documents and having original with him can make a reference in exercise of power under sub-section (4) of Section 51. Therefore, the sheetanchor of the argument advanced by the petitioner that, in absence of original document neither reference can be made, nor the Collector (Stamps) can determine the duty, does not hold much water. 28. A close and conjoint reading of sub-sec. (2) and (4) of Sec. 51 of the Act of 1998 brings it to fore that expression -'reference' has been used only under sub-sec. (4) and not in sub-sec. (2) of the Act and, therefore, the Sub-Registrar or registering authority can resort to power available to him under sub-sec. (4) and make a reference to the Collector (Stamps) for determination of appropriate stamp duty, even if the original instrument is not with him. 29. But then, in that case, if the Sub-Registrar chooses to make a reference to the Collector while invoking powers available under sub-section (4), he cannot give a go-by to the provisions contained in Section 54 of the Act of 1998, which enjoins upon him a duty to intimate the party about the reference being made. 30. Section 54 of the Act of 1998 reads thus: "54. 30. Section 54 of the Act of 1998 reads thus: "54. Intimation of reference and payment of duty before reference-(1) Notwithstanding anything herein before contained, the registering officer shall, before making reference to the Collector under this Act, intimate to the parties concerned about the reference proposed to be made by him. (2) In case the person liable to pay the duty offers to pay the amount of duty chargeable on such instrument, the registering officer shall, on payment of such duty, certify it on the instrument by endorsement and shall not make the references." 31. Sub-section 1 of Section above referred, clearly requires registering authority to intimate the parties concerned about the reference proposed to be made. This has admittedly not been done in the present case and, hence, there is a clear violation of statutory requirement. 32. Adverting to the judgment in the case of Kuri Chand (supra), it is noteworthy that the case before the Division Bench seems to be a case under sub-section (2) of Section 51. That apart, provisions of sub-section (4) of Section 51 of the Act were not placed for consideration of the Court. Hence, though holding that it is not mandatory to summon the document in original, as the powers are traceable under sub-section (4) of Section 51, this Court finds that the orders impugned are otherwise illegal for breach of mandate of law and for non-observance of principles of natural justice. 33. Aforesaid view is fortified by the Division Bench Judgment in case of Kuri Chand (supra) more particularly the following observation made therein:- "Be that as it may, even the Collector (Stamp) also does not appear to have extended a reasonable opportunity of hearing to the appellant as per the mandate of provisions of sub-section (3) of Section 51. Though, the order impugned makes a reference of the notice being issued to the appellant, but, there is nothing on record suggesting that the same was duly served upon the appellant. In any case, before determining the market value of the property and the deficient duty included the penalty payable, the Collector (Stamp) was required to make an enquiry in the prescribed manner to determine the market value. In any case, before determining the market value of the property and the deficient duty included the penalty payable, the Collector (Stamp) was required to make an enquiry in the prescribed manner to determine the market value. A perusal of the order impugned reveals that no such enquiry worth the name was made by the Collector (Stamp) and while recording the absence of the appellant, accepting the market value of the property as proposed by the Sub Registrar and determined the deficient duty, registration charges and penalty, by merely recording its ipse dixit, which as a matter of fact, is in excess of the deficient duty and registration charges, as determined by the Sub Registrar, while making the reference. In the considered opinion of this Court, the order impugned in the writ petition passed by the Collector (Stamp) without recording any reasons, justifying the levy of deficient stamp duty, registration charges and penalty, is a cryptic and non-speaking order, which is not sustainable in the eyes of law." 34. These writ petitions, therefore, succeed. The reference made and orders passed by the Collector (Stamps) dated 22.01.2018 (Annex. 5) and 19.07.2019 (Annex. 7) in all the cases are hereby quashed. The matters are remanded back to the Collector (Stamps) for determination of appropriate stamp duty. 35. The petitioners shall appear before the Collector (Stamps) on 22.03.2021 and file their objection(s) to the reference made and/or contentions they wish to raise. 36. The Collector (Stamps) shall provide appropriate opportunity of hearing to the petitioners/their counsel and pass fresh order(s), in accordance with law. 37. All the interlocutory applications stand disposed of accordingly.