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2024 DIGILAW 346 (HP)

Rakesh Kumar v. State of H. P.

2024-08-07

JYOTSNA REWAL DUA

body2024
JUDGMENT : Jyotsna Rewal Dua, J. All these writ petitions involve common questions of law and facts, hence, are taken up together for adjudication. However, for the sa ke of convenience, facts from CWP No.1320 of 2024 are being referred to hereinafter. Sale deed was executed in favour of the petitioner on 09.12.2017. Respondent No.3-the Sub Registrar-cum-Naib Tehsildar, Up-Tehsil Kotla, District Kangra issued a notice to the petitioner on 03.01.2024. The contents of the notice were that as per the observations of Audit Para No.1, a sum of Rs.4,29,900/- was due for recovery from the petitioner; The amount was to be recovered from the petitioner on the stated ground that audit had detected deficiency in payment of stamp duty and registration fee concerning sale deed No.376/2017, dated 19.12.2017. The petitioner was directed to pay the amount in question by the date given in the notice. The aforesaid notice dated 03.01.2024 has been assailed in this petition. Similar notices issued to the petitioners in the companion writ petitions have been assailed therein. 2. Learned counsel for the petitioners contends that the impugned notices have been issued by respondent No.3, i.e. concerned Sub Registrar-cum-Naib Tehsildar. The said authority was not competent to issue notices to the petitioners in view of Section 47-A of the Indian Stamp (Himachal Pradesh Amendment) Act, 1988 (in short ‘the Act’). The second contention raised was that the principles of natural justice were violated while issuing the impugned notices, ordering recovery of the amount from the petitioners. Learned Deputy Advocate General defended the impugned notices and canvassed the stand taken by the respondents in their reply. 3. Heard learned counsel on both sides and considered the case files. 4. Section 47-A of the Act provides the procedure for dealing with the undervalued instruments and reads as under:- “47-A. Instruments under-valued, how to be dealt with.-(1) If the Registering Officer, appointed under the Registration Act, 1908 (16 of 1908) while registering any instrument relating to the transfer of any property, has reason to believe that the market value of the property or the such instrument, refer the same to the Collector for determination of the market value or consideration, as the case may be, and the proper duty payable thereon. (2) On receipt of reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after hol ding an enquiry in such manner, as may be prescribed by rules, made under this Act, determine the market value or consideration and the duty, as aforesaid, and the deficient amount of duty, if any, shall be payable by the person liable to pay the dut y. (3) The Collector may, suo moto or on receipt of reference from the Inspector General of Registration or the Registrar of a District, in whose jurisdiction the property, or any portion thereof, which is the subject- matter of the instrument, is situated, appointed under the Registration Act, 1908 (16 of 1908) shall, within three years from the date of registration of any instrument, not already referred to him under sub- section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of its market value or consideration, as the case may be, and the duty payable thereon and if, after such examination, he has reason to believe that the market value or consideration has not been truely set forth in the instrument, he may determine the market value or consideration and the duty, as aforesaid, in accordance with procedure provided for in sub-section(2), and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty: Provided that nothing in this sub-section shall apply to any instrument registered before the date of the commencement of the Indian Stamp (Himachal Pradesh Amendment) Act, 1988. (4) Where for any reason the original document called for by the Collector under sub-section (3) is not produced or cannot be produced, the Collector may, after recording the reasons for its non-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 (3). (5) Any person, aggrieved by an order of the Collector, under sub-section (2) or sub-section (3), may, within thirty days from the date of the order, prefer an appeal prescribed by rules made under this Act. (5) Any person, aggrieved by an order of the Collector, under sub-section (2) or sub-section (3), may, within thirty days from the date of the order, prefer an appeal prescribed by rules made under this Act. (6) For the purpose of this section "market value" of any property shall be estimated to be the price which, in the opinion of the Collector or the appellate authority, as the case may be, such property would have fetched, if sold in the open market on the date of execution of the instrument relating to the transfer of such property." The above section came up for interpretation before a D i v i s i on Ben c h of th i s Court i n H a r c h a r a n S i n g h G i l l V e r s u s S t a t e o f H . P . a n d o t h e r s, 2003 (2) Shim. L.C. 65 . It w a s h e l d t h a t this is a provision which relates to subject matter of undervalued instruments and the procedure to deal with the same, the underlying purpose being to ensure that the instruments do not mention the market value of the property sought to be registered in such a manner as to undervalue the same with an intention to avoid the payment of the requisite stamp duty or the registration charges. Sub-Section (3) thereof stipulates that the Collector may either suo motu or on receipt of a reference from the Inspector General of Registration or the Registrar of a District in whose jurisdiction the property in question is situated, shall within three years from the date of the registration of any instrument call for and examine the instrument for the purpose of satisfying himself as to the correctness of its market value etc. and if after such examination, he has reasons to believe that the market value or the consideration has not been truly set-forth in the instrument, he may determine ma rket value or consideration and the duty. In terms of Sub-Section (2) of the Act, the deficient amount of duty, if any, shall be payable by the person, who in law, is liable to pay the duty. In terms of Sub-Section (2) of the Act, the deficient amount of duty, if any, shall be payable by the person, who in law, is liable to pay the duty. Sub-Section (2) also provides that the Collector after giving the parties a reasonable opportunity of being heard and after holding inquiry in such a manner as may be prescribed by the rules, determine the market value or consideration and the duty as also the deficient amount of duty, if any, which the person concerned is liable to pay. It was further held that in respect to an instrument, which had already been registered, Collector alone is the authority, who has the jurisdiction to enquire into any aspect relating to the short payment of duty on the ground of undervaluation of the market value or the consideration. In the aforesaid case, it was the Sub-Registrar, who had taken upon himself the burden of issuing the impugned notice by making the reference to the audit report and had demanded deficit duty from the petitioner (therein). The Court held that the Sub-Registrar had no jurisdiction in issuing the impugned notice. That the jurisdiction vested in the Collector and that too either in exercise of suo motu power or acting on receipt of a reference from either the Inspector General of Registration or the Registrar of the District appointed under the Registration Act. Accordingly, the order impugned in that case was set aside. Relevant observations from the judgment read as under:- “4. What clearly emerges from the plain reading of the aforesaid provision of law is that with respect to an instrument which has already been registered, Collector alone is the authority, who has the jurisdiction to enquire into any aspect relating to the short payment of duty on the ground of under valuation of the market value or the consideration. The Collector has jurisdiction to do so suo motu or on receipt of an appropriate reference from either the Inspector General of Registration or the Registrar of a District appointed under the Registration Act, 1908. The Collector has jurisdiction to do so suo motu or on receipt of an appropriate reference from either the Inspector General of Registration or the Registrar of a District appointed under the Registration Act, 1908. What actually has happened in the present case is that Sub-Registrar, Kasauli respondent No.3 in this petition took upon himself the burden of issuing the impugned notice dated 17.1.2003 wherein, by making a reference to some audit report he demanded of the petitioner remittance of an amount of Rs.1,26,270 and despite a detailed representation sent by the petitioner by the impugned order dated 5.3.2003 rejecting the said representation directed the petitioner to deposit the amount in question. Sub-Registrar had no jurisdiction whatsoever in either issuing the notice or in passing any order directing the petitioner to pay the amount in question because neither under Section 47-A of the Stamp Act nor under any other provision of the law, he had the power to do so. Actually, as is clearly discernible from Section 47-A of the Stamp Act, Sub-Registrar does not figure anywhere and he has no role to play with respect to any issue or thereon or the deficiency in the duty. The procedure prescribed under Section 47-A being complete does not stipulate any role for sub-Registrar. He cannot even make a reference to the Collector. What he does with the District Registrar internally (with which we are not concerned) but the reference to the Collector can be made either by the Inspector General of Registration or by the District Registrar. 5. Based on the aforesaid reasons therefor we have no hesitation whatsoever in coming to the conclusion that respondent No.3 had no jurisdiction in issuing the impugned notice or in passing the impugned order dated 5.3.2003. The jurisdiction, if any, vested in the Collector and that too either in exercise of the suo motu power or acting on receipt of a reference from either the Inspector General of Registration or the District Registrar appointed under the Registration Act. 6. The impugned order dated 5.3.2003 as also the impugned notice dated 17.1.2003 are both set-aside and quashed. 7. Mr. Chandel learned Advocate General appearing for the respondents submits that the functionaries mentioned in Section 47-A of the Act be permitted to proceed in the matter in accordance with the stipulation contained therein and to act in accordance with law. 8. Responding to Mr. 7. Mr. Chandel learned Advocate General appearing for the respondents submits that the functionaries mentioned in Section 47-A of the Act be permitted to proceed in the matter in accordance with the stipulation contained therein and to act in accordance with law. 8. Responding to Mr. Chandel's submission, we want to observe that we have no hesitation whatsoever in our mind that the setting aside and quashing of the aforesaid impugned order and the impugned notice cannot and does not prevent the functionaries mentioned in Section 47-A of the Act to proceed afresh in the matter in accordance with law and the procedure prescribed therefor.” The facts of the instant writ petitions are almost similar. All the impugned notices in these petitions have been issued by respondent No.3, i.e. the Sub Registrar- cum-Naib Tehsildar. Respondent No.3 had no jurisdiction or authority under Section 47-A of the Act for issuing such notices. The jurisdiction, if any, vested with the Collector, that too, in terms of the provisions of Section 47-A of the For the foregoing reasons, these writ petitions succeed. Impugned recovery notices (Annex ure P-1 in all these petitions) issued by respondent No.3-the Sub Registrar-cum-Naib Tehsildar, are quashed and set aside. It is, however, clarified that the competent authority(s) in terms of Section 47-A of the Act can proceed afresh in the matter in accordance with law and the procedure prescribed therein, if so advised and permissible. The writ petitions stand disposed of in the above terms, so also the pending miscellaneous application(s), if any.