Calcutta High Court (Appellete Side)
Pulock Kumar Ghosh vs The State Of West Bengal & Ors on 7 September, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
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In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No. 13624 (W) of 2011
Pulock Kumar Ghosh
v.
The State of West Bengal & Ors.
Mr Kamal Kumar Santra and Mr Animesh Das, advocates, for the petitioner. Mr Rabindra Narayan Dutta,
advocate, for the State.
Heard on: September 07, 2011
Judgment on: September 07, 2011
The Court: - The petitioner in this art.226 petition dated August 18, 2011 is
questioning a notice dated July 11, 2011 issued by the Deputy Inspector General of
Registration, Range-III, Hooghly asking him to pay the determined stamp duty.
The petitioner presented a document dated March 15, 2011 for registration under
the Registration Act, 1908. Finding everything in order, the registering officer, accepting
the stamp duty payable for the transaction, registered the document on March 15, 2011.
The officer did not have any reason to believe that the market value of the property
had not been truly set forth in the instrument presented for registration, and hence he did
not proceed to determine the market value in terms of s.47A of the Indian Stamp Act, 1899
(ss.47A, 47B and 47C were inserted in the principal Act after s.47 thereof by State
Amendment.)
However, from a speaking order dated July 11, 2011 of the Deputy Inspector
General of Registration, Range-III, Hooghly (produced now over the course of hearing of
the case), it appears that being suspicious about the market value of the property set forth
in the instrument the registering officer referred the case to the Deputy Inspector General
of Registration for disposal under sub-s.(8) of s.47A on May 2, 2011.
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After making an inquiry the Deputy Inspector General of Registration passed the
speaking order dated July 11, 2011 directing payment of the deficit stamp duty by the
petitioner. He passed the order under sub-s.(8) of s.47A. The order was not communicated
to the petitioner. On the contrary, on the basis of the order the impugned notice was
issued.
In para.11 of the petition it has been stated that everything concerning the
impugned notice had been done by the respondents behind the petitioner's back.
Correctness of this case is not disputed by counsel for the respondents who has received specific instructions in terms of the order dated September 5, 2011 passed in the case.
It is evident from the provisions of s.47A that after registering the document the registering officer could not refer the matter to the authority mentioned in sub-s.(3) of s.47A for a decision under sub-s.(8) of the section.
Under sub-s.(3) the officer could make a reference only if having reasons to believe that the market value of the property had not been truly set forth in the instrument, he had determined the market value, issued notice asking the petitioner to pay the determined stamp duty, and the petitioner failed to make payment in terms of the notice.
In this case, the registering officer did not find any reason to determine the market value. On the contrary, accepting the value set forth in instrument he registered the document, and long thereafter he unauthorisedly referred the matter to the authority for determination in terms of sub-s.(8) of the section.
Clause (a) of sub-s.(8) of s.47A is quoted below:
"(a) The authority referred to in sub-section (3) may, on receipt of any information or otherwise, suo motu within five years from the date of registration of any instrument, where such instrument was registered on the basis of the market value which was set forth in the instrument or which was set forth in the instrument or which was ascertained by the registering officer referred to in sub-section (1), call for and examine any such instrument and any other document relating thereto for the purpose of satisfying himself as to the correctness of the market value of 3 the property which is the subject-matter of such instrument and which was set forth in the instrument or which was ascertained under sub-section (2) and the stamp duty payable thereon."
It is evident from the provisions of cl.(a) of sub-s.(8) of s.47A that the authority referred to in sub-s.(3) of the section on receipt of any information or otherwise could examine the correctness of the market value of the property set forth in the instrument and form an opinion that the market value had not been truly set forth.
Clause (b) of sub-s.(8) of s.47A provides that if an opinion is formed under cl.(a) of sub-s.(8) of the section that the market value of the property had not been truly set forth in the instrument, then the authority exercising power under sub-s.(8) may determine the market value of the property only after giving the parties concerned reasonable opportunity of being heard.
In this case, the admitted position is that the Deputy Inspector General of Registration exercising power under sub-s.(8) of s.47A, apart from acting on the basis of an unauthorized reference made by the registering officer, determined the market value of the property completely behind the petitioner's back.
After determination the authority issued the impugned notice calling upon the petitioner to pay the determined stamp duty. The speaking order dated July 11, 2011 never communicated to the petitioner and the impugned notice issued on the strength thereof both are absolutely illegal.
For these reasons, I set aside the impugned notice, allow the petition to this extent and order as follows. The speaking order dated July 11, 2011 and the reference made on May 2, 2011 by the officer shall be deemed to be quashed. However, nothing herein shall prevent the competent authority from proceeding afresh. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.) ss(c); ab(f).