Andhra HC (Pre-Telangana)
Smt. Peddi Koteswari W/O. ... vs 1.The District Registrar, Karimnagar ... on 21 November, 2014
Author: S.V.Bhatt
Bench: S.V.Bhatt
HONBLE SRI JUSTICE S.V.BHATT
WRIT PETITION No.3295 OF 2005
21-11-2014
Smt. Peddi Koteswari w/o. Vidyasagar,aged about 40 years, occupation
housewife2-2-90, Prakasamgunj, Karimnagar. ....PETITIONER
1.The District Registrar, Karimnagar and three others ....RESPONDENTS
COUNSEL FOR PETITIONER: Mr.V.Ramachender Rao
COUNSEL FOR RESPONDENTS 1 & 2: G.P. for Revenue
COUNSEL FOR RESPONDENT No.3: Mr.Safdar Mirza
COUNSEL FOR RESPONDENT No.4: Mr.P.Radha Krishna
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HONBLE SRI JUSTICE S.V.BHATT
WRIT PETITION No.3295 OF 2005
ORDER:
The petitioner prays for writ of Mandamus declaring the return of document No.P.459/1997 by 2nd respondent for the property bearing House No. 6-4-170 (new), 6-4-125 (old) at Sivajinagar, Karimnagar to 3rd respondent, as illegal, arbitrary, contrary to the provisions of the Indian Stamp Act, 1899 ( for short the Stamp Act) and unconstitutional.
The case of petitioner is that the 3rd respondent is the owner of property bearing No.6-4-125 measuring 671 square yards at Shivajinagar, Karimnagar. On 06.06.1997, the petitioner purchased the said property for a total consideration of Rs.1,50,000/-. The petitioner was put in possession of the house property on the execution of document on even day. On 06.06.1997, the deed was presented for registration before the 2nd respondent and the same was kept pending registration as document No.P.459/1997. The 2nd respondent was not satisfied with the sale consideration shown in the subject document and the payment of stamp duty. The 2nd respondent under Section 47- A of the Stamp Act referred the matter for adjudication to the 1st respondent. Through proceeding No.M.V-2/1507/1997 dated 15.05.2002, 1st respondent determined the value of the property covered by document No.P.459/1997 dated 06.06.1997 as Rs.7,02,500/- and the stamp duty payable was determined at Rs.66,300/-.
It is further averred that on 26.10.2004, the petitioner approached the 1st respondent to pay the deficit stamp duty and get the document released. Through Memo No. M.V.-2/1507/97 dated 27.10.2004, the 1st respondent called upon the petitioner to approach the 2nd respondent for redressal of petitioners request. The petitioner approached the 2nd respondent and the petitioner was informed by the 2nd respondent that document No.P.459/97 was returned without registration to 3rd respondent herein. On coming to know the return of document to 3rd respondent an application for grant of registered copy was made. The 2nd respondent through letter No.180/2004 dated 26.12.2004 returned pending document No.P.459/97 returned unregistered, to the 3rd respondent on 14.10.2004. It is further stated that the deficit stamp duty was collected from the 3rd respondent.
The complaint of the petitioner is that the 2nd respondent acted contrary to the mandate of the Stamp Act and the Registration Act, 1908 (for short the Registration Act) by returning a duly executed document to the presentor and the same is liable to be set aside and appropriate directions are issued to respondents 2 and 3 to return the document. It is further stated that at the time of execution of sale deed on 06.06.1997, the 2nd respondent has taken the details of petitioner and his signature for receiving the duly executed document. The return of document to 3rd respondent is without jurisdiction or authority. Hence, the petitioner prays for declaration as well as a consequential direction to 1st and 2nd respondents to take custody of subject document and return it to petitioner.
The 2nd respondent filed counter affidavit for 1st and 2nd respondents. The 2nd respondent admits the material averments in the writ affidavit. The reply of 2nd respondent is that 3rd respondent is the executant of the document. On 15.05.2002, the order under Section 47-A of the Stamp Act was passed by the 1st respondent. In spite of receipt of the order or notice from the respondents, neither the petitioner nor the 3rd respondent approached the 2nd respondent for payment of deficit stamp duty and registration charges. It is stated that on 14.10.2004, the 3rd respondent approached the 2nd respondent and agreed to pay the deficit stamp duty and registration charges in terms of order dated 15.05.2002. To avoid loss of revenue to Government, as the 3rd respondent being an executant requested the 2nd respondent to return the document. The 2nd respondent states that pending document No.P/459/97 was returned to the 3rd respondent. The return of document is entered under Rule 35 (c) of the Registration Rules. The 2nd respondent complains against the petitioner in not paying the deficit stamp duty as determined by the 1st respondent on 15.05.2002. It is stated that the petitioner is not diligent and states that the 2nd respondent was unaware that the petitioner had intention to obey the orders of the 1st respondent. It is reiterated that the action in returning the document to 3rd respondent is bona fide to prevent loss of revenue to Government. The 2nd respondent advises the petitioner to move the competent civil Court for appropriate relief against the 3rd respondent.
This Court directed production of record in case No.M.V- 2/1507/1997 dated 15.05.2002 and letter No.180/2004 dated 26.12.2004. From the record, it is evident that the departmental action was initiated against the then Sub Registrar for unauthorised and illegal return of pending document No.P/459/97. Be that as it may, under these circumstances, now the point that arises for consideration is whether the return of document by 2nd respondent is in accordance with the provisions of the Stamp Act and the Registration Act?
Section 47-A deals with determination of value of immovable property and the correct stamp duty payable thereon. The procedure for determination is stipulated by A. P. Stamp (Prevention of Under Valuation of Instruments) Rules, 1975 (for short the Rules). Section 47-A of the Stamp Act and the Rules deal with the mode and manner of enquiry into the valuation of subject property and the stamp duty payable on the document. The 1st respondent under Rule 7 of the Rules is required to pass an order and communicate the order to parties under Rule 7(4) of the Rules. Rule 7(4) reads as follows:
If the parties to the document fail to prefer an appeal within two months under Rule 9 from the date of receipt of Collectors order under Rule 7 or fail to pay the deficit stamp duty or such deficit stamp duty is not recovered by coercive process under Section 48 of the Act, the Registering officer shall destroy the document after a period of 5 years from the date of the Collectors orders under sub- section (2) of Section 47.
Section 48 of the Stamp Act reads as follows:
Recovery of duties and penalties:- ((1) All duties, penalties and other sums required to be paid under this Chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land revenue.
(2) All duties, penalties and other sums required tobe paid under this Chapter, shall be a charge on the properties of the person liable to pay the duties, penalties and other sums:
Provided that such a charge shall be deemed to be applicable to all cases which are pending recovery and to the proceedings initiated under sub-section (1).
(3) Notwithstanding anything contained in the Registration Act, 1908, a note of such charge and its extinguishment shall be made in the indices prescribed therein and shall be deemed to be a notice under the said Act.
From the above statutory scheme, it is evident that once a document pending registration is referred by the sub Registrar for determination of market value and the actual stamp duty payable thereon, the mandate of law is that after determination of value or stamp duty payable the respondent takes steps for recovery of duty and penalties under Section 48 of the Stamp Act. Rule 7 (4) of the Rules provides destroying the document where the department is not in a position to recover the deficit stamp duty and that when the parties are not coming forward to pay the same. The destruction of document is permitted firstly with the happening of two contingencies set out in sub Rule (4) and secondly after lapse of five years.
The learned Government Pleader having regard to the material available on record fairly contended that the 2nd respondent with a view to protecting loss of revenue has handed over the document to 3rd respondent, however, no provision either under the Stamp Act or the Registration Act permits return of duly executed document when the issue is referred to 1st respondent under Section 47-A of the Stamp Act.
Sri Vamshidhar Reddy, learned counsel for the 3rd respondent, submits that the jurisdiction of this Court under Article 226 of the Constitution of India is not available in the facts and circumstance of the case. The petitioner has the remedy of a suit where the disputes between the petitioner and the 3rd respondent can be effectively adjudicated in a full-fledged trial. The alternative submission of the learned counsel is that the 2nd respondent has followed Standing Order 230 which deals with return of documents unregistered.
S.O.230 reads as follows:
(a) Documents that are kept pending for the appearance of the executants, their representatives, assigns or agents can alone be returned unregistered at the request of the presentant provided there is no request by any person entitled to present the document for registration to proceed with the registration of the document.
Accordingly, when the presentant of such a document applies for the return of the document unregistered, the registering officer shall send notices by registered post acknowledgement due to all the other parties who are entitled to present it for registration fixing a reasonable date, calling upon them to state whether they desire that the registration of the document should be proceeded with or not. Should any one of them express his desire that the registration of the document should be proceeded with, the registering officer shall not comply with the request of the presentant; but shall proceed with the registration of the document as laid in the relevant sections of the Registration Act, 1908. If no reply is received from the parties, to whom notices were issued, or if all of them desire to withdraw the document from registration, the registering officer shall return the document unregistered to the presentant.
(b) The notice to all other parties referred to in clause (a) shall be sent at State expense.
(c)However, a document which is deficitly stamped or alleged to have been forged shall not be returned at the request of the party. When the document is insufficiently stamped, the deficit duty will have to be recovered and adjudication process completed. After adjudication, the document can be returned unregistered at the request of the party. In the case of forged document, action under Indian Penal Code and Registration Act is due.
The learned counsel further submits that by returning the document, the 2nd respondent has committed no illegality and there is no ground for interference.
Part-VI of the Registration Act deals with presenting documents for registration and Part XI B deals with the procedure on admitting a document for registration. Section 34 of the Registration Act reads as follows:
Enquiry before registration by registering officer: (1) Subject to the provisions contained in this Part and in Sections 41,43,45,69, 75,77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under Sections 23,24,25 and 26.
Provided that, if owing to urgent necessity or unavoidable accident, all such persons do not so appear the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered.
(2) Appearances under sub-section(1) may be simultaneous or at different times.
(3) The registering officer shall thereupon-
(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed
(b)satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.
Like wise, Section 35 deals with procedure on admission and denial of execution respectively. In the case on hand, had it been a case where the 2nd respondent has taken up enquiry under Section 34 of the Registration Act and the execution of document is denied by the 3rd respondent, different considerations would have arisen for decision. Admittedly the document was kept pending registration for decision under Section 47-A of the Stamp Act. Once the issue is limited to the extent of deficit stamp duty payable by the parties, the 2nd respondent has to act according to Section 47-A of the Stamp Act read with Rule 7 (4) of the Rules. At any rate to prevent loss of revenue, the 2nd respondent has no authority either under the Registration Act or the Stamp Act to return a duly executed document to one of the parties without putting the other on notice of such decision. The counter affidavit of 2nd respondent is silent about the date of issue of notice either to the petitioner or 3rd respondent for payment of deficit stamp duty. If the 2nd respondent acts on oral request of 3rd respondent and in his over enthusiasm returns the document to 3rd respondent, this Court is compelled to hold that the action of 2nd respondent is illegal, unauthorised and unjust.
Learned counsel appearing for 3rd respondent by placing reliance upon S.O.No.230(c) contends that the 2nd respondent in view of the expression used in Clause (c ) is entitled to return unregistered document to the party. In the opinion of this Court, the reliance upon clause (c) of Standing Order 230 is untenable. Standing Order 230 deals with return of documents unregistered. The first contingency is return of unregistered documents where the executants, their representatives etc. failed to appear and there is no request from any person entitled to present the document to proceed with the registration of the document. Further, while exercising discretion under S.O. 230 the 2nd respondent is required to send notices by registered post with acknowledgement due to all other parties who are entitled to present it for registration fixing reasonable date and afford opportunity to state their case. In the event of one of the parties pressing for registration, the Sub Registrar shall not comply with the request of return of the document and on the other hand shall proceed to complete the process of registration. If no objection is received, the 2nd respondent is authorised to return the document. At any rate, Clause (a) of S. O. 230 has no application to the case on hand. On the other hand, reference to fairness in action can be understood when clause (a) of S.O. 230 mandates issuance of notice to all the parties. Even in the case of insufficiently stamped document, clause (c) clearly says deficit duty will have to be recovered and adjudication process completed. The return of unregistered document can be at the request of the parties. By reference to clause (c), it cannot be contended that the 2nd respondent is given so much discretion and authority to undo duly performed act of execution, presentation etc at the instance or request of one party without notice to the affected persons and return original document to one of the parties to the detriment of other. Such conduct of 2nd respondent is unsustainable in the facts and circumstances of this case. At the time of registration of deed on 06.06.1997, the return of duly registered document was authorised in favour petitioner. Therefore, at any rate, the return could not be to 3rd respondent by the 2nd respondent. In the opinion of this Court, the return of document to 3rd respondent is illegal and without jurisdiction. The 3rd respondent also acted contrary to the term of contract and condition agreed at the time of execution and registration of sale deed dated 06.06.1997, namely to return the document to petitioner.
For the above reasons, the writ petition is allowed by declaring that without registration return of pending document No.P.459/1997 to 3rd respondent by 2nd respondent is illegal and without jurisdiction and the 2nd respondent is directed to issue notice to 3rd respondent calling upon him to return the document forthwith within a period of two weeks from the date of receipt of copy of this order and the 3rd respondent returns document No.P.459/1997 within two weeks therefrom to 2nd respondent. The 2nd respondent on receipt of document No.P.459/1997 proceeds in the matter in accordance with law by issuing notice to both parties. No order as to costs.
Miscellaneous petitions, if any, pending in the writ petition shall stand closed.
___________ S.V. BHATT,J DATE:21-11-2014