Rajasthan High Court - Jaipur
Mahesh Dangayach vs State Finance Departmentors on 19 July, 2018
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. CIVIL WRIT PETITION NO. 6794/2014
Mahesh Dangayach son of Sh. Rameshwarlal Dangayach, aged
about 54 years by caste Mahajan resident of B-81, Anandpuri,
Moti Doongri Road, Jaipur.
----Petitioner
Versus
1. State of Rajasthan through Principal Secretary (Finance),
Government of Rajasthan, Government Secretariat, Jaipur.
2. Secretary Finance (Revenue), Government of Rajasthan,
Government Secretariat, Jaipur.
3. Deputy Secretary Finance (Revenue), Government of
Rajasthan, Government Secretariat, Jaipur.
4. Inspector General, Registration and Stamps, Department of
Stamps and Registration, Ajmer, Rajasthan.
5. Sub-Registrar, Sanganer-II, Stamps and Registration
Department, Tehsil Office, Sanganer, Tehsil Snaganer, District
Jaipur.
6. Collector (Stamps), Jaipur, Circle-II, Stamps and
Registration Department, Jaipur.
-----Respondents
For Petitioner(s) : Mr. Achintya Kaushik
For Respondent(s) : Mr. NM Lodha, Advocate General with
Mr.Kunal Jaiman
HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Judgment 19/07/2018 By this writ petition, a challenge is made to the Notification dated 8th May, 2012 issued by the State Government under Rule 58 of the Rajasthan Stamp Rules, 2004 (for short "the Rules of 2004"). A further challenge is made to the order passed by the (2 of 8) [CW-6794/2014] Collector (Stamps) and subsequent order passed by the Rajasthan Tax Board on a revision petition preferred by the petitioner.
It is a case where the petitioner produced an instrument for its registration. It was after disclosing the value of the land to be Rs.67,11,000/- and, accordingly, stamps were affixed. The Collector (Stamps) served a notice on the petitioner showing insufficiency of stamps. After hearing the petitioner, the Collector (Stamps) took DLC rate of the residential land of the area concerned to determine the value of the land and directed to pay additional stamp-fee. The petitioner challenged the order of the Collector but it was not interfered upto the Rajasthan Tax Board. A challenge to the orders passed by the Rajasthan Tax Board and the Collector (Stamps) has been made.
The only argument of the learned counsel for petitioner is that value of the land should have been determined on the basis of use of the land at the time of presentation of the instrument. It could not have been after considering the use of the land in future. The land in question was agricultural, hence, stamp duty affixed by the petitioner was after taking DLC rate of agriculture land of the area concerned. The Collector (Stamps) and the Tax Board have grossly erred in relying on Notification dated 8 th May, 2012 for determination of the value of the land. It is based on the land use given in the Master Plan or actual use, whichever is higher. The determination of stamp duty should have been after taking market value of the land. Accordingly, challenge to the Notification dated 8th May, 2012 has also been made though it remained operational only for two months or so because subsequently, it was withdrawn and superseded by another Notification dated 12th July, 2012.
(3 of 8) [CW-6794/2014] It is further stated that if matter is remanded to the Collector (Stamps) for determination of the value of land, that too, in consonance with Section 51 of the Rajasthan Stamp Act, 1998 (for short "the Act of 1988"), petitioner is not required to press the challenge to the Notification dated 8th May, 2012 but then it should be with the observation that determination of the market value of the land should not be based on the Notification dated 8 th May, 2012. A prayer is, accordingly, to dispose of the writ petition.
Learned Advocate General, Mr. NM Lodha assisted by Mr.Kunal Jaiman, has contested the writ petition. It is submitted that challenge to the Notification dated 8 th May, 2012 has been made after exhausting the remedies on a notice by the Collector (Stamps) showing insufficiency of the stamps on the instrument presented for its registration. After petitioner remained unsuccessful, he has now taken up the matter for challenge to the Notification dated 8th May, 2012. The aforesaid is not permissible.
Coming to the merit of the case, it is stated that value of the land is to be assessed after taking into consideration various factors. It is to find out the market rate. It cannot depend solely on the use of land. The development of the neighbouring area is also a relevant factor. Taking into consideration the aforesaid, the Notification dated 8th May, 2012 was issued and it may otherwise not required to be disturbed because determination of the value of the land is on market rate, may be by taking DLC rate of the residential land in the area concerned. In any case, if without quashing the Notification dated 8th May, 2012, the matter is remanded to the Collector (Stamps) then it should be with the clarity that determination of market rate is to be without influencing only by use of the land. The prayer is either to dismiss (4 of 8) [CW-6794/2014] the writ petition or to dispose of with remand of the case but with the observation referred to above.
We have considered rival submissions made by learned counsel for the parties and perused the record.
An instrument was presented by the petitioner for its registration. The Collector (Stamps) gave notice finding it to be undervalue. After hearing the petitioner, an order was passed and value of the land was determined by taking DLC rate of residential land of the area concerned. It was knowing it well that land in dispute is agricultural and is being used for that purpose.
In the light of the aforesaid, the Notification dated 8 th May, 2012 has also been challenged. It is, however, stated by the learned counsel for petitioner that if matter is remanded back to the Collector (Stamps) to determine value of the land as per Section 51 of the Act of 1998, the petitioner need not to press for challenge to the Notification dated 8th May, 2012.
We find that as per Section 51 of the Act of 1998, the determination of the value of the land should be on market rate. The District Level Committee has provided rates of the land in different areas, however, if we go strictly by Section 51 of the Act of 1998 then it should be on the market rate. Accordingly, we are inclined to remand the case to the Collector (Stamps) for the reason that value of the land has not been determined on the market rate but is on DLC rate of residential land of the area concerned. In view of the above, we are not required to strike down Notification dated 8 th May, 2012 which, otherwise, remained operational nearly for two months only as new Notification was issued on 12th July, 2012 itself. For the purpose of remand, we (5 of 8) [CW-6794/2014] need to refer Section 51 of the Act of 1998 thus it is quoted hereunder:
"51. Instrument undervalued, how to be valued.-
(1) Notwithstanding anything contained in the Registration Act, 1908 (Act No. 16 of 1908) and the rules made there under as in force in Rajasthan where, in the case of any instrument relating to an immovable property chargeable with an ad valorem 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 net 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 the original of such 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, (6 of 8) [CW-6794/2014] determing the market value and duty including the penalty not exceeding ten times of deficient stamp duty chargeable and surcharge, if any, payable thereon if the amount of duty including penalty and surcharge if any, so determined exceeds the amount of duty including penalty and surcharge, if already paid, the deficient amount shall be payable by the person liable to pay the 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, sou moto or on a reference mad 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 has reason to believe that the market value of such property has not been true set forth in the instrument, he may determine in accordance with the procedure provided in sub-section (3) the market value and the amount of stamp duty together with a penalty not exceeding ten times the deficient stamp duty chargeable on it, 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 Collectors may, (7 of 8) [CW-6794/2014] 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 power 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).
The perusal of the provision quoted above shows that instrument should disclose true value of land and it should be on market rate. In this case, the Collector (Stamps) failed to take market value of the land thus we cause interference in the impugned orders and they are set aside with remand of the case to the Collector (Stamps) with a direction to undertake the exercise in consonance to Section 51 of the Act of 1998. He is directed to determine market value of the property in question, that too, in the year 2012. It would obviously be after taking into consideration various factors contributing for determination of the market value of the property and, therefore, it would not be influenced by the Notification dated 8 th May, 2012. It would not further be influenced by the actual use of the land but would be after taking into consideration various factors for finding out market rate of the land in question at the time of presentation of the instrument for its registration.
(8 of 8) [CW-6794/2014] The required assessment would be made within a period of three months from the date of receipt of copy of this order and whatever market rate of the land is assessed, the stamp duty would be chargeable on it. It would be paid by the petitioner within a period of 15 days from the date of order of the Collector (Stamps).
The writ petition is allowed with the aforesaid. (BANWARI LAL SHARMA),J (M.N. BHANDARI),J FRBOHRA Powered by TCPDF (www.tcpdf.org)