Gauhati High Court
Anurag Agarwal vs The State Of Assam And 5 Ors on 1 September, 2015
WP(C) 5540/2013
BEFORE
HON'BLE MR. JUSTICE MANOJIT BHUYAN
01.09.2015
1. Heard Dr. A.K. Saraf, learned senior counsel representing the
petitioner assisted by Mr. A. Goyal, Advocate. Also heard Mr. P.S. Deka,
learned counsel representing all the respondents.
2. The Zonal value of land in Guwahati city was fixed by Memo No. RRG.3/2003/13-A dated Dispur the 5th December, 2003 and in so far as the area called Noonmati is concerned, the same was fixed at Rs. 2 lakh per katha. Pursuant to revised guidelines for fixing Zonal valuation, the Notification dated 20.08.2011 came to be issued under the hand of the Deputy Commissioner, Kamrup (Metropolitan) District, Guwahati by bringing in the revised Zonal rates w.e.f. the date of the Notification. In so far as Noonmati area is concerned the Zonal value was fixed at Rs. 75 lakh per bigha (which is 15 lakh per katha). However, such valuation was confined to the stretch between Anuradha to Noonmati within 200 meters.
3. A plot of land was intended to be purchased by the petitioner at Noonmati area which was not encompassed within the area as specified in the Notification of 20.08.2011. To effect the purchase, an application was made on 12.09.2011 before the Deputy Commissioner, Kamrup (Metropolitan) requesting permission in respect of the said plot of land together with the RCC building standing thereon. In the said application it was indicated that the value of the land is Rs. 2 lakh per katha. Sale permission was granted by letter dated 04.11.2011 under the hand of the Additional Deputy Commissioner, Kamrup (Metropolitan) District, Guwahati, expressing that there was no objection for transfer of the plot of land. However the value of the transaction was fixed at Rs. 15 lakh per bigha (which is 3 lakh per katha). The Guwahati Metropolitan Development Authority, Guwahati also issued a No Objection Certificate by means of its letter dated 07.12.2011. Permission having been granted a Deed of Agreement for Sale was executed on 18.12.2011 before the Office of the Senior Sub Registrar, Kamrup (Metro) by and between the petitioner and the seller/owner of the land in question Sri Mayur Talukdar at an agreed sale value of Rs. 46 lakhs. The initial hurdle came in the way when a note prepared by the Stamp Reporter was placed before the Deputy Commissioner, Kamrup (Metro) in respect of reducing the registration value to Rs. 46 lakh although the value of the land stood at Rs. 72,75,000/-. The Deputy Commissioner made a note that the deed was undervalued and not as per the value fixed in the No Objection Certificate and as such the same cannot be registered by the Stamp Reporter. Pursuant to the note of the Deputy Commissioner dated 21.12.2011 and upon payment of the necessary Stamp Duty and Registration Fees on the total value of the land at Rs. 72,75,000/-, the Deed of Sale was executed on 22.12.2011.
4. The second chapter of the case commenced with the Notification dated 20.06.2013 issued under the hand of the Deputy Commissioner, Kamrup (Metropolitian) District, Guwahati, whereby the Zonal valuation of land from Anuradha to Noonmati within 200 meters radius as notified in the earlier Notification dated 20.08.2011 was modified to the extent that the said Zonal valuation of land at Rs. 75 lakh per bigha would be applicable to the entire Noonmati Revenue Village under Guwahati Revenue Circle. Dispute arose in respect of the assessment of the RCC building standing on the land and as to the power and jurisdiction of the Deputy Commissioner under Section 27A(3) of the Indian Stamp Act, 1899 (Assam Amendment). Eventually an Order was passed by the Deputy Commissioner on 30.08.2013 which led to initiation of the present proceedings.
5. By the said notice of the Deputy Commissioner dated 30.08.2013, the petitioner was informed that upon enquiry new material facts had come to light to the extent that the Stamp Duty and Registration Fees paid in respect of the Sale Deed dated 22.12.2011 was not correct and the said instrument was grossly undervalued as it did not reflect the market value or the Zonal value as notified in the Notification dated 20.08.2011. Accordingly, in exercise of the powers under section 27A(3) of the Indian Stamp Act, 1899 (Assam Amendment) the Deputy Commissioner/ District Collector directed the petitioner to deposit the requisite short levy of Stamp Duty and Registration Fees having regard to the approved Zonal valuation of the said plot of land at Rs. 75 lakhs per bigha which came into effect from 20.08.2011. The amount payable by way of short levy of Stamp Duty was computed at Rs. 23,34,300.00 and in respect of Registration Fees it was Rs. 24,73,500.00.
6. On the basic facts above, Dr. Saraf contends that the notice dated 30.08.2013 is wholly illegal and suffers from due application of mind. In respect of Section 27A(3) of the India Stamp Act, 1899 (Assam Amendment), the argument advanced is that the power of the Collector to examine the instrument within two years from the date of the registration of the instrument excludes such instrument or conveyance which had already been referred to him under sub-Section (1) of Section 27A(3). According to Dr. Saraf the invoking of the said provision is not available to the Deputy Commissioner/ District Collector, in as much as, the matter with regard to registration of the Sale Deed was earlier referred to him by the Stamp Reporter on 21.12.2011 and upon such reference the Deputy Commissioner / District Collector had increased the land value from Rs. 46 lakhs to Rs. 72.75 lakhs.
7. In so far as the short levy of Stamp Duty and Registration Fees is concerned it is contended that the very basis of making such claim/demand is faulty, in as much as, the applicability or enforceability of the Notification dated 20.08.2011 cannot legally be extended to the case of the petitioner. Once again Dr. Saraf makes a reference to the Notification dated 20.08.2011 to reinforce his argument that the Zonal valuation of land at Rs. 75 lakh per bigha is only confined to the area from Anuradha to Noonmati within a radius of 200 meters and the land of the petitioner being located outside the said limits, as such, the applicability of the said Notification dated 20.08.2011 is wholly irrelevant to the case of the petitioner. To this end Dr. Saraf also contends that the subsequent Notification dated 20.06.2013 by which the Zonal valuation of land as fixed by Notification dated 20.08.2011 have been made applicable for the entire Noonmati Revenue Village, being prospective in nature, cannot be enforced with retrospective effect to make it applicable to the case of the petitioner.
8. Mr. P.S. Deka, learned counsel representing the State relies upon the submissions and averments made in the affidavit-in-opposition filed on behalf of the Respondent No. 3 i.e. the District Commissioner/Collector, Kamrup (Metropolitan) District, Guwahati. Particular reference is made to paragraph 15 of the affidavit-in-opposition to say that as per resolution adopted by the Zonal Valuation Committee in its meeting held on 20.08.2011, the Zonal valuation was fixed at Rs. 75 lakh per bigha within 200 meters of all roads of Noonmati Sahar. According to Mr. Deka the notice under challenge does not suffer from any infirmity and the petitioner is required to make good the short levy of stamp duty and registration fees, failing which the petitioner has to suffer necessary action as per the provision of law.
9. From the maze of facts the point for determination is whether the Notification of 20.08.2011 and the Zonal valuation fixed thereby can be made applicable in respect of the land of the petitioner and whether the subsequent Notification of 20.06.2013 bringing in the applicability of the Notification dated 20.08.2011 to the entire Noonmati Revenue Village can have retrospective operation to bring the petitioner within the fold of the said Notification. It is not in dispute that the petitioner's land is not located within the area confined between Anuradha and Noonmati within 200 meter radius. The application for sale permission of the land as well as in respect of the building was duly considered and permission was granted by the authority concerned by fixing the value of consideration for transaction of the said property at Rs. 15 lakh per bigha. It is also not in dispute that whereas by earlier Notification dated 05.11.2003 the Zonal value of the land at Noonmati area was fixed at Rs. 2 lakh per katha, but considering the RCC building standing thereon the value of consideration was fixed at Rs. 15 lakh per bigha (which is 3 lakh per katha). Necessary permission having been granted and the value of the land having been increased upon referral made to the Deputy Commissioner/District Collector, the Sale Deed was eventually executed on 22.12.2011 and the entire matter with regard to the transaction of sale came to an end on 22.12.2011. Although at the relevant time the notification of 20.08.2011 was in force in respect of the Zonal valuation of the land at Noonmati area, however the same was only confined between Anuradha to Noonmati within 200 meters. Having considered all these aspects, sale permission was granted to the petitioner by fixing the value of consideration at Rs. 15 lakh per bigha.
10. The notice of the Deputy Commissioner dated 13.08.2013 with regard to short levy of Stamp Duty and Registration Fees on the basis of the Notification dated 20.08.2011 do not appear to be on a correct appreciation of facts and law. It is no more res integra that the validity of a notification is generally prospective in effect and cannot be given retrospective effect unless expressly provided.
11. The issue with regard to fixing the market value at Rs. 15 lakh per bigha of the petitioner's land was also the subject matter in WP(C) 2953/2013, arising out of preliminary enquiry ordered to be conducted against the petitioner and which was initiated by the Additional Director of Vigilance and Anti Corruption. At paragraph 28 of the judgment in WP(C) 2953/2013, this Court held that the fixation of the market value by the Additional Deputy Commissioner at Rs. 15 lakh per bigha was not in conflict with the Notification dated 20.08.2011 as because the property was beyond the stipulated 200 meters.
12. In so far as the applicability of Section 27A(3) of the India Stamp Act, 1899 (Assam Amendment) is concerned, the argument advanced by Dr. Saraf finds force. By the said provision under Section 27A(3), the Collector is empowered, either on his own motion or otherwise, within 2 years from the date of registration of the instrument or conveyance etc, to call for an examination of the instrument for the purpose of satisfying himself as to the correctness of the market value of the property as set forth in such instrument. A rider to the said Section is in respect of those instruments or conveyance which had already been referred to him under sub-section (1) of Section 27A(3). As noticed earlier, the Stamp Reporter had put up a note to the District Collector-cum- Deputy Commissioner with regard to fixing the registration value either at Rs. 46 lakh or Rs. 72.75 lakh, to which the Deputy Commissioner/District Collector had answered by indicating that the instrument was undervalued and could not be permitted to be registered as the value so fixed was not in terms of the No Objection Certificate granted to petitioner. In terms of the note of the Deputy Commissioner/ District Collector, the value of the property was accordingly increased and necessary Stamp Duty and Registration Fees were paid for effective execution of the Sale Deed on 22.12.2011. The instrument having once being referred to the District Collector/Deputy Commissioner, as such, the authority concerned was without power and jurisdiction to invoke the provision under section 27A(3) in the attending facts and circumstances of the case.
13. The Stamp Duty and Registration Fees not being dependent or subject to the Notification dated 20.08.2011 and/or the subsequent Notification dated 20.06.2013 not being enforceable in respect of the case of the petitioner, the Stamp Duty and Registration Fees paid on the Deed of Sale executed on 22.12.2011 cannot be held to have been short paid.
14. From the discussion above this Court is of the opinion that the Notice dated 30.08.2013 issued under the hand of the District Collector, Kamrup (Metropolitan) District, Guwhati, cannot stand the scrutiny of law and is liable to be interfered with, which is accordingly done.
15. Accordingly, the writ petition stands allowed, however, without any order as to costs.
sds JUDGE