Madras High Court
R.Sonai vs The District Collector on 22 November, 2005
Author: P.K.Misra
Bench: P.K.Misra
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/11/2005 CORAM THE HONOURABLE MR. JUSTICE P.K.MISRA AND THE HONOURABLE MR. JUSTICE AR.RAMALINGAM W.A.(MD)No.372 Of 2005 and WAMP.No.523 of 2005 R.Sonai ... Appellant Versus. 1.The District Collector, Tirunelveli District, Tirunelveli. 2.The Sub Registrar, Murappanadu, Tirunelveli District. ...Respondent The Appeal filed under Clause 15 of Letters Patent, call for the records relating to the order dated 11.8.2005 made in W.P.7526 of 2005 and set aside the same in so far as imposition of condition for release of documents and allow the writ petition as prayed for. !For Appellant .. Mr.M.Ajmal Khan ^For Respondents .. Mr.K.Mahendran Special Government Pleader :JUDGMENT
(Judgment of the Court was delivered by P.K.MISRA,J) Heard Mr.M.AjmalKhan, learned counsel appearing for the appellant and Mr.K.Mahendran, Special Government Pleader appearing for the respondents.
2. The present appeal is directed against a portion of the order dated 11.8.2005, made in W.P.NO.7526 of 2005. The said writ petition was filed by the present appellant seeking for a writ of mandamus directing the Sub- Registrar, Murappandadu, Tirunelveli District, to release the sale deeds dated 01.7.2005, which was registered as documents No.1629 to 1632 of 2005, in the office of the said Sub-Registrar.
3. The learned Single Judge by relying upon the decision of this Court reported in 1998 (III) CTC 366 (M.Krishnan and 44 others Vs. District Collector, Erode District, Erode and two others) , directed the respondent to release the documents subject to certain conditions. The condition No.(ii), as per the order of the learned Single Judge, is to the following effect:
"(ii) The petitioner is also directed not to encumber or alienate the property covered under the sale deed dated 01.07.2005, till the completion of the proceedings or till he pays the deficit stamp duty or the amount, if any demand by the respondent."
4. The present appellant is aggrieved by the aforesaid condition. It is submitted by the learned counsel on behalf of the appellant that if there is any under valuation in payment of stamp duty, the registering authority is empowered to refer the matter to the Collector and such question can be decided by the appropriate authority and the deficit stamp duty can be recovered in the manner indicated under Section 47-A of the Indian Stamp Act and there is no power to withhold registration nor the document after the same is registered. Therefore, the learned single Judge had rightly directed for release of the documents. However, there was no justification for the learned single Judge to impose the condition which has been extracted earlier. It has been further submitted by him that since a person has right to acquire and dispose of the property as envisaged under Article 300-A of the Constitution, imposition of any condition prohibiting alienation of the property would restrict such constitutional right. On the other hand, no prejudice would likely to be caused even if the property is alienated as the right of the State to realise the proper stamp duty is statutorily recognised and a charge is created over such property and, therefore, even if such property is alienated, the State will have right to realise the stamp duty even by proceeding against the concerned property notwithstanding that such property has been alienated to any other person.
6. Learned counsel appearing for the respondents on the other hand has submitted that even though there is no specific provision contained in the Indian Stamp Act or the Indian Registration Act, such a condition can be imposed as a matter of equity by the High Court while directing release of the documents in order to ensure payment of proper stamp duty, if it is found that there was under valuation in the transaction.
7. Section 47-A of the Indian Stamp Act, 1899 is as follows :-
"47-A. Instruments of conveyance etc., under-valued how to be dealt with.-
(1) If the registering officer appointed under the Indian Registration Act, 1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, release of benami right or settlement has reason to believe that the market value of the property of which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, has not been truly set forth in the instrument he may, after registering such instrument, refer the same to the Collector 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 a reasonable opportunity of being heard and after holding an enquiry 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 conveyance, exchange, gift, release of benami right or settlement, and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
(3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement, 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 the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the persons liable to pay the duty:
Provided that nothing in this sub-section shall apply to any instrument registered before the date of commencement of the Indian Stamp (Tamil Nadu Amendment) Act, 1967.
(4) Every person liable to pay the difference in the amount of duty under sub-section (2) or sub-section (3) shall, pay such duty within such period as may be prescribed. In default of such payment, such amount of duty outstanding on the date of default shall be a charge on the property affected in such instrument. On any amount remaining unpaid after the date specified for its payment, the person liable to pay the duty shall pay, in addition to the amount due, interest at two per cent per month on such amount for the entire period of default.
(5) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act.
(6) The Chief Controlling Revenue Authority may, suo motu, call for and examine an order passed under sub-section (2) or sub-section (3) and if such order is prejudicial to the interests or revenue, he may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order and may pass such order thereon as he thinks fit.
(7) The Chief Controlling Revenue Authority shall not initiate proceedings against any order passed under sub-section (2) or sub-section (3) if, -
(a) the time for appeal against that order has not expired; or
(b) more than five years have expired after the passing of such order.
(8) No order under subsection (6) adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard.
(9) In computing the period referred to in clause (b) of sub-section (7), the time during which the proceedings before the Chief Controlling Revenue Authority remained stayed under the order of a Court shall be excluded.
(10) Any person aggrieved by an order of the authority prescribed under sub-section (5) or the Chief Controlling Revenue Authority under sub-section (6) ma, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court.
Explanation.- For the purpose of this Act, market value of any property shall be estimated to be the price which, in the opinion of the Collector of the Chief Controlling Revenue Authority or the High Court, as the case may be, such property would have fetched or would fetch, if sold in the open market on the date of execution of the instrument of conveyance, exchange, gift, release of benami right of settlement.
8. A perusal of the aforesaid provision makes it clear that the officer concerned cannot withhold registration merely because he suspects any under valuation. His jurisdiction is to refer the matter under Section 47-A(1) for ascertaining the proper stamp duty payable. If there is any under valuation, the authority to whom such reference is made can decide upon the proper valuation subject to appeal and any deficit stamp duty payable can be realised. The right to get such deficit amount becomes a charge upon the property. It is thus clear that a self-contained Code is statutorily prescribed. If the authority registering the document neither has jurisdiction to withhold registration nor to withhold any document, it is axiomatic to hold that such authority cannot impose any other condition such as not to alienate the property.
9. The scope and and ambit of Section 47-A have been repeatedly analysed and reiterated in several decisions of this Court, including the decisions reported in 2001(2) CTC 449 (THE DISTRICT COLLECTOR, ERODE DISTRICT, ERODE & 2 OTHERS) AND 2002(3) CTC 544 {B. RAJAPPA AND ANOTHER v. THE SPECIAL DEPUTY COLLECTOR (STAMPS)}. It is surprising that in spite of such clear and categorical decisions, the authorities are flouting the provisions and such decisions by refusing to register the documents or withholding such registered document instead of following the statutory provisions. We do not find in these two decisions any indication that the purchaser of a property under the sale deed would be restrained from alienating such property till the matter relating to under valuation is decided by the competent authority. As already indicated, the amount payable, as determined in a reference or in any appropriate proceeding, becomes a charge over the property effected in such instrument and the Government has right to recover such amount by enforcing such charge. In such view of the matter, in our opinion, the learned single Judge was not justified in imposing condition No.(ii), which has already been extracted.
10. The writ appeal is according allowed and condition No.(ii) imposed by the learned single Judge shall be inoperative. There would be no order as to costs.
To
1.The District Collector, Tirunelveli District, Tirunelveli.
2.The Sub Registrar, Murappanadu, Tirunelveli District.