Madras High Court
R. Sukumaran vs State Of Tamil Nadu on 5 April, 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 05/04/2002
CORAM
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
W.P. NO. 23097 OF 2001 and W.P. NOS. 7908, 9909 TO 9913
& 10626 OF 2002 and W.P.M.P. NOS. 33998 of 2001 & 10823,
13427 TO 13431 & 14334 OF 2002
W.P. NO. 23097 OF 2001
R. Sukumaran .. Petitioner
- Vs -
1. State of Tamil Nadu
rep. By its Secretary to Govt.
Revenue Department
Fort. St. George, Madras 9.
2. The Inspector General of Registration
Santhome High Road
Chennai 4.
3. The Sub Registrar
Kodambakkam
Chennai 24. .. Respondents
W.P. NO. 7908 OF 2002
Padma Sarangapani Educational
Society, rep. by Secretary
Jayakrishnan, Chennai 49. .. Petitioner
- Vs -
1. Inspector General of Registration
120, Santhome High Road
Chennai 28.
2. The Sub Registrar, Konnur
Chennai 49.
3. The Special Deputy Collector
(Stamp Duty), Collector's Office
Singaravelar Buildings
Chennai 1. .. Respondents
AND
1. K.C.M. Lawrence .. Petitioner in WP 9909/02
2. V.T. Subramanian .. Petitioner in WP 9910/02
3. S.R. Uma .. Petitioner in WP 9911/02
4. Malathi .. Petitioner in WP 9912/02
5. Smt. Komal Pillai .. Petitioner in WP 9913/02
6. P. Jayapal .. Petitioner in WP 10626/02
- Vs -
1. The Tamil Nadu Housing Board
rep. by its Manager
Marketing Services
Aringnar Anna Nagar Division
2nd Avenue, Anna Nagar
Chennai 40.
2. The Sub-Registrar
Sub-Registrar's Office .. Respondents in
Anna Nagar WP Nos. 9909 to 9913/02
Chennai 40. & WP No. 10626/02
Petition filed under Article 226 of The Constitution of India
praying this Court to issue a Writ of Mandamus as stated therein.
! For Petitioners : Mr.K.Jeyakumar in WP 23097/01
Mr.R.Balakrishnan in
WP No.7908/2002
Mr.V.K.Rajagopalan in
WP 9909 to 9913/02 & 10626/02
For Respondents : Mr. N.R.Chandran, AG
:COMMON ORDER
1. In W.P. No.23097 of 2001, the petitioner prays for the issue of a Writ of Certiorarified Mandamus to call for the records pertaining to the proceedings of the 3rd respondent in his proceedings No. 231/200 1 dated 2.8.2001 and quash the same and consequently direct the 3rd respondent herein to return the sale deed to the petitioner herein, which is pending in P. No.1319 of 1996 on the file of the 3rd respondent.
2. In W.P. No.7908 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the respondents to return the sale deed dated 8.6.2001 executed by the Tamil Nadu Housing Board in favour of the petitioner herein and registered on 25.7.2001 under Document No.2446 /2001 at the office of the 2nd respondent.
3. In W.P. No. 9909 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/146/20 01/S.R.O., Anna Nagar, Chennai-40, dated 4.7.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
4. In W.P. No. 9910 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/138/20 01/S.R.O., Anna Nagar, Chennai-40, dated 21.6.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
5. In W.P. No. 9911 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/147/20 01/S.R.O., Anna Nagar, Chennai-40, dated 21.6.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
6. In W.P. No. 9912 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/137/20 01/S.R.O., Anna Nagar, Chennai-40, dated 19.6.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
7. In W.P. No. 9913 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/136/20 01/S.R.O., Anna Nagar, Chennai-40, dated 19.6.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
8. In W.P. No. 10626 of 2002, the petitioner prays for the issue of a Writ of Mandamus directing the 2nd respondent to release the document pending on the file of the 2nd respondent vide Document No. P/127/2 001/S.R.O., Anna Nagar, Chennai-40, dated 8.6.2001 without demanding stamp duty for the building cost as per G.O. Ms. No.231 Housing and Urban Development Department dated 27.3.2001.
9. In all these writ petitions, this Court directed the learned Government Advocate to take notice. This Court also requested the learned Advocate General to make his submissions after getting instructions as innumerable petitions identical in nature are being filed on a day to day basis. Further, despite a binding pronouncement by two Division Benches of this Court, the Registrars in the State in disregard to the pronouncements have been withholding the documents executed and presented by the Housing Board in favour of the allottees either plot or flat, as the case may be and they insist for payment of stamp duty on the basis of value as assessed by them as on the date of execution of the sale deed.
10. The learned Advocate General took instructions from the State Government as well as the Inspector General of Registration and made his submissions in all the writ petitions.
11. All the writ petitions could be disposed of together by a common order since the relief prayed for are identical and the contentions advanced are also identical.
12. Heard Mr.K.Jeyakumar, learned counsel appearing for the petitioner in W.P. No.23097 of 2001, Mr.R.Balakrishnan, learned counsel appearing for the petitioner in W.P. No.7908/2002, Mr.V.K.Rajagopalan, learned counsel appearing for the petitioner in W.P. Nos.9909 to 9913 of 2002 and 10626 of 2002 and Mr.N.R.Chandran, learned Advocate General appearing for all the respondents.
13. The petitioner in each of the writ petition is an allottee of a plot or flat by the Tamil Nadu Housing Board under various housing schemes. In terms of the allotment letter, the lease-cum-sale agreement were executed several years back and the petitioner/allottee has been paying monthly instalments to the Housing Board over a decade. On payment of the entire sale consideration as fixed by the Tamil Nadu State Housing Board in instalments, the Housing Board executed the sale deed conveying the plot/flat to the allottee as per the earlier allotment letter as well as lease-cum-sale agreement and presented the same for registration before the concerned Sub-Registrar having jurisdiction. The concerned Sub-Registrars have taken the stand that even for such deed of conveyance executed by the Housing Board, stamp duty is payable not on the sale consideration recited or actually paid by the allottee to the Housing Board, but according to the prevailing market value on the date of the instrument or guideline value as fixed by the Registering Authority or as may be fixed by the Special Deputy Collector (Stamp Duty). This means a huge gap and difference in the stamp duty payable by the transferee from the Housing Board on the instrument executed by the Housing Board and presented for registration..
14. The point raised herein is covered by the pronouncement of the earlier Division Bench in S.P.PADMAVATHI VS. STATE OF TAMIL NADU, ETC., reported in 1997 (2) LW 579 as well as two other reported pronouncements.
15. The points raised in these writ petitions are covered by a Division Bench judgment of this Court in THE STATE OF TAMIL NADU & OTHERS VS. T. THULASI LAKSHMI & ANOTHER in W.A. Nos. 1467 and 1468 of 1998, to which I was a party.
16. The Division Bench in W.A. Nos. 1467 and 1468 of 1998, while following a reported decision in S.P.PADMAVATHI VS. STATE OF TAMIL NADU, ETC., reported in 1997 (2) LW 579, held thus :-
"i) The matter is covered by a Division Bench judgment of this Court in S.P.PADMAVATHI VS. STATE OF TAMIL NADU, ETC., reported in 1997 (2) LW
579. Nothing has been pointed out to take a different view from that. We are unable to add to the said decision.
ii) It was secondly contended that the market value of the property has been taken into consideration on the date of agreement of sale. It is well settled that registration relates back to the date of sale. The Housing Board has constructed the house and handed over the same under hire purchase agreement. When the conditions of hire purchase agreement are complied with, the properties have to be transferred to the hirer, we find no ground to assess the market value for the purpose of registration on the date of the actual transfer of the property, as it is well settled that at the time of agreement itself the parties have agreed to the price or sale consideration. There is no legislation or settled legal position which has been pointed out by the counsel for the State that they can charge stamp duty on market value as on the date of the registration of the document when there is no material on record to show that there was a concealment or suppression of the parties have agreed to a different or higher consideration that then is recited in the market value. Otherwise too, it is a transfer from a Government institution to an individual based on hire purchase agreement. We see no ground to interfere with the order of the Hon'ble single Judge. Accordingly, the writ appeals are dismissed. No costs. Consequently, CMPs., are dismissed."
17. The above two Division Bench judgments have reached finality and they have not been challenged either by the State Government or by the Registrar or by the Inspector General of Registration. The legal position as laid down by the Division Benches as far as this State is concerned is well settled and it is binding on everyone. Thereafter, it is rather extraordinary for the Registering Authorities or for the concerned Special Deputy Collector (Stamp Duty) to assess the market value and insist for payment of stamp duty on the basis of market value that prevails on the date of presentation of the documents.
18. It is nobody's case that the transferee has paid consideration more than what has been recited in the deed of conveyance executed by the Housing Board. It is beyond one's comprehension that the Housing Board, a statutory body, would receive excess amount than what has been actually paid and recited as sale consideration in the deed of conveyance executed by it in favour of the allottee. It may be that in the lease-cum-sale agreement, while depositing a substantial portion, the remaining portion was agreed to be paid in instalments so that the allottee could acquire a house from the Housing Board by making payments in easy instalments, with low rate of interest. Therefore, without contradiction it could be taken that what has been agreed to between the Housing Board and the allottee is the actual consideration agreed and paid as sale consideration for the conveyance and not a pie more.
19. In M. PONNUSAMY & 42 OTHERS VS. THE DISTRICT COLLECTOR & OTHERS reported in 1999 (2) LW 231, while examining the scope of Section 47A, this Court held thus :-
"39) The language of Section 47-A of the Indian Stamp Act is very clear.
The condition precedent for making a reference is, there must be reason for the Registering Authority to believe that the market value of the property has not been truly set forth in the document presented for registration. Hence, it follows that the reasons must be recorded, however short it may be. It is the duty of the Registering Authority to record reasons for his belief that true market value has not been set out in the document, complete registration and thereafter refer the matter to the Collector for determination of the market value of the property and the proper duty payable thereon.
40) In terms of Sub-Section (2) of Section 47-A of the Indian Stamp Act, on receipt of a reference under Sub-Section (1) of Section 47-A of the said act, the Collector shall determine the market value and the stamp duty payable on the instruments. Before making a reference, it is incumbent on the part of the Registering Authority to record reasons, complete the registration and thereafter, he has to make a reference to the Collector under Sub-Section (1) of Section 47-A of the said Act.
41) It is essential to point out that before registration, the Registering Authority has to record that he has reasons to believe that the value of the property has not been duly set forth in the instrument. Only after recording such reasons, the Registering Authority has to complete registration of the instrument in question and thereafter alone, he could refer the same to the Collector under Sub-Section (1) of Section 47-A of the Indian Stamp Act. Such is not the case of the respondents herein.
42) To this extent, the functions of the Registering Authority is quasi judicial in nature and he has to come to a conclusion that the market value of the property dealt under the document had not been truly set forth and after completion of registration, he could make a reference. Atleast some reasons should be recorded and immediately after completion of registration or sooner thereafter, a reference has to be made under Sub-Section (1) of Section 47-A of the said Act. * * *
51) What is required under Sub-Section (1) of Section 47-A of the Indian Stamp Act is that the Registering Authority had come to a conclusion before registration that the market value of the property, dealt under the instrument of conveyance or release, has been under-valued and he should have entertained reasonable belief in this respect and also, he should have recorded such a rea son. Immediately after recording such reason, he has to complete the registration and thereafter refer the instruments to the Collector in terms of Sub-Section (1) of Section 47-A of the Indian Stamp Act. Only in respect of the instruments which have not been referred to for adjudication to the Collector under Sub-Section (1) of Section 47-A of the said Act, the Collector could exercise or invoke suo motu powers conferred on him under Sub-Section (3) of Section 47-A and had a reference been made under Section 47-A (1) of the said Act it, would have been answered either way by the Collector, then it is obvious that the Collector cannot exercise suo motu powers in terms of Sub-Section (3) of Section 47-A of the said Act."
20. The said decision by this Court has been confirmed by the Division Bench in THE DISTRICT COLLECTOR, ERODE DISTRICT & OTHERS VS. M. PONNUSAMY reported in 2001 (2) MLJ 458, The Division Bench held thus :-
"xiii) If the document presented sets forth the market value and all other facts necessary truly, the document has to be registered. To find out whether the market value has been correctly furnished in the instrument or not, Sub-rules (3) and (4) enable the registering authority, to enquire whether the market value has been correctly furnished in the instrument or not. If the registering authority, on the basis of the enquiry, has reason to believe that the market value of the property has not been truly set forth in the instrument, he may refer the matter to the Collector for determination of the market value of such property. But, even here, before referring the matter, he shall do so only after registering the said instrument.
xiv) Thus, it could be seen that if the document is registered without any doubt as to the under valuation of the document, or any reasonable belief as to the true value set forth in the instrument, and once it is registered, there is no further scope for holding the enquiry after registration regarding the value of the property for the purpose of reference. Therefore, necessarily before registering the document, the Registering Officer is entitled either to accept the valuation or refuse to accept the valuation. If he accepts the valuation, he has to register the document; if he does not accept the valuation also, he shall register the document and then refer the same to the Collector. Therefore, once the document is registered, it pre-supposes that the Registering Officer is satisfied about the valuation or it could be that he was not satisfied about the valuation, but followed it by a reference after registration.
Therefore, the argument of the learned Special Government Pleader is that even after registration, he can go on with the enquiry on the valuation of the property, as has been done in this case. But how long ? In the reply to the legal notice, the third appellant, after one year and eleven months, has stated that he is awaiting the report of the valuation for the purpose of reference. Thus, there is a clear violation of Sec. 47-A of the Act."
21. While reiterating the said legal powition, it has to be pointed out here and now, no discretion at all is available to the Registering Authority to entertain any doubt about the payment of consideration for the deed of conveyance or transfer when is being executed by the statutory body like Housing Board and the Registrar has to register the same without raising any query as to the consideration recited or paid. Absolutely there could be no reason at all for the Registrar either to doubt the consideration actually paid and recited in the sale deed or deed of conveyance as may be executed by the Housing Board in favour of the allottee. Merely because there has been an increase in the market value due to the passage of time, it cannot be assumed that the Housing Board has received consideration more than what has been recited in the document. The over anxious Registrar, who is also conscious to collect more revenue cannot have any inkling or reason, doubt or to believe that there is under-valuation or evasion of stamp duty. Therefore, it has to be held that absolutely the Registrar cannot have any ground or reason or rhyme or basis or reason whatsoever to doubt about the consideration paid by the transferee to the Housing Board, the transferor. The same is the legal position even in respect of commercial plot/flat as well and there could be no difference in that behalf nor there could be any discrimination.
22. In the circumstances, while following the two earlier Division Bench judgment in THE STATE OF TAMIL NADU & OTHERS VS. T. THULASI LAKSHMI & ANOTHER in W.A. Nos. 1467 and 1468 of 1998 and S.P.PADMAVATHI VS. STATE OF TAMIL NADU, ETC., reported in 1997 (2) LW 579, as well as the judgment of the Division Bench in THE DISTRICT COLLECTOR, ERODE DISTRICT & OTHERS VS. M. PONNUSAMY reported in 2001 (2) MLJ 458, all these writ petitions are allowed. This Court further directs that within ten days from the date of receipt of a copy of this order or production of a copy of this order, the respective Registrars shall see that the documents are released without insisting for further payment of stamp duty even if such instruments have already been referred to the Special Deputy Collector (Stamp Duty) for the purpose of valuation/verification.
23. The Inspector General of Registration is directed to issue a circular in this respect within ten days from the date of communication of this order to all the Registrars in the State. Besides making it clear that any delay or deviation in this respect by the Registering Authorities will be viewed very seriously and all the Registering Officers are expected to follow the law laid down by the High Court. Such a direction has to be issued since inspite of repeated pronouncements of this Court, the Registrars have acted with scant respect, such a conduct is highly reprehensible.
24. This is a fit case where costs should be awarded against the concerned Registrars, besides contempt proceedings. However, in the light of the fair stand taken by the learned Advocate General, this Court is not awarding costs and not initiating contempt action. These writ petitions are allowed, but without costs. Consequently, connected W.M.P.s are closed.
05\04\2002 Index Yes/No Internet Yes/No GLN To
1. The Secretary to Govt.
Govt. of Tamil Nadu Revenue Department Fort. St. George, Madras 9.
2. Inspector General of Registration 120, Santhome High Road Chennai 28.
3. The Sub Registrar, Konnur Chennai 49.
4. The Special Deputy Collector (Stamp Duty), Collector's Office Singaravelar Buildings Chennai 1.
5. The Manager The Tamil Nadu Housing Board Marketing Services Aringnar Anna Nagar Division 2nd Avenue, Anna Nagar Chennai 40.
6. The Sub-Registrar Sub-Registrar's Office Anna Nagar Chennai 40.
7. The Inspector General of Registration Santhome High Road Chennai 4.
8. The Sub Registrar Kodambakkam Chennai 24.
E. PADMANABHAN, J.
ORDER IN W.P. NO.23097 OF 2001 W.P. NOS.7908, 9909 TO 9913 & 10626 OF 2002 05\04\2002