Rajasthan High Court - Jodhpur
Kailash Sharma vs State Of Rajasthan on 2 March, 2021
Author: Dinesh Mehta
Bench: Pushpendra Singh Bhati, Dinesh Mehta
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 14058/2019
1. Narendra Sharma S/o Bhagwati Lal Sharma, Aged About
53 Years, Udaipur.
2. Bhagwati Lal Sharma S/o Banshi Lal, Aged About 79
Years, Both Are Resident Of Village Rahkampur Tehsil
Badgaon District Udaipur.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Finance Department, Govt. Of Raj. Jaipur.
2. The Dig - Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj)
3. The Sub Registrar I, Udaipur.
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 15741/2019
Naresh Sharma S/o Shri Bhagwati Lal Sharma, Aged About 50
Years, Resident Of Village Rahkampur, Tehsil Badgaon, District
Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Finance Department, Govt. Of Rajasthan, Jaipur.
2. The Dig Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj.).
3. The Sub Registrar-I, Udaipur.
----Respondents
(3) S.B. Civil Writ Petition No. 15808/2019
Harish Sharma S/o Shri Bhagwati Lal Sharma, Aged About 47
Years, Resident Of Village Rahkampur Tehsil Badgaon District
Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principle Secretary,
Finance Department, Govt. Of Raj. Jaipur.
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2. The Dig - Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj)
3. The Sub-Registrar I, Udaipur.
----Respondents
(4) S.B. Civil Writ Petition No. 15898/2019
Lokesh Sharma S/o Bhagwati Lal Sharma, Aged About 41 Years,
Village Rahkampur Tehsil Badgaon District Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Finance Department, Govt. Of Raj. Jaipur.
2. The Dig - Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj)
3. The Sub-Registrar I, Udaipur.
----Respondents
(5) S.B. Civil Writ Petition No. 16088/2019
Mukesh Sharma S/o Shri Bhagwati Lal Sharma, Aged About 45
Years, Resident Of Village Rahkampur Tehsil Badgaon District
Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Finance Department, Govt. Of Raj. Jaipur.
2. The Dig- Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj.).
3. The Sub -Registrar I, Udaipur.
----Respondents
(6) S.B. Civil Writ Petition No. 16628/2019
Kailash Sharma S/o Shri Bhagwati Lal Sharma, Aged About 55
Years, Resident Of Village Rahkampur Tehsil Badgaon District
Udaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principle Secretary,
Finance Department, Govt. Of Raj. Jaipur,
2. The Dig - Stamp And Collector (Stamps), Registration And
Stamps Department, Udaipur (Raj)
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3. The Sub-Registrar I, Udaipur.
----Respondents
For Petitioner(s) : Mr. Prashant Tatia
For Respondent(s) : Ms. Akshiti Singhvi
JUSTICE DINESH MEHTA
Judgment
02/03/2021
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.
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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. 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
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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. She thus argued that
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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 Section 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).
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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 under valued, 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
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instrument and send it to the Collector for taking
action under sub-section (3).
[(3) On receipt of the instrument under sub-
section (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 sub-section (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
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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 sub-section (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
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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. 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 sheet-
anchor 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.
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28. A close and conjoint reading of sub-section (2) and (4) of
Section 51 of the Act of 1998 brings it to fore that expression -
'reference' has been used only under sub-section (4) and not in
sub-section (2) of the Act and, therefore, the Sub-Registrar or
registering authority can resort to power available to him under
sub-section (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. 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
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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. 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,
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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.
(DINESH MEHTA), J.
83-88-Amar/-
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