Madras High Court
M.Kandasamy vs The Joint Sub-Registrar No
Author: C.Saravanan
Bench: C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on :25.01.2019
Pronounced on: 15.02.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P(MD)No.18877 of 2013
1.M.Kandasamy
2.N.Manimaran ... Petitioners
Vs.
1.The Joint Sub-Registrar No.1,
Office of the Joint Registrar No.1,
(Original Documents Section),
Tiruchirappalli.
2.The Inspector General of Resgistration,
Santhome High Road,
Santhome, Chennai – 28 ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, calling for the
records in connection with the impugned order of 1 st respondent vide
check slip dated 12.11.2013 and quash the same and direct the 1 st
respondent to register the sale agreement entered into between the
petitioners on 12.11.2013 in accordance with the provisions of
Registration Act.
For Petitioners : Mr.Niranjan S. Kumar for
Mr.V.Balaji
For Respondents : Mr.M.Murugan
Government Advocate.
http://www.judis.nic.in
2
ORDER
This Writ Petition is filed to call for the records in connection with impugned order of the first respondent vide check slip dated 12.11.2013 and quash the same and direct the first respondent to register the sale agreement entered into between the petitioners on 12.11.2013 in accordance with the provisions of Registration Act.
2.By the impugned order, the first respondent has refused to register the sale agreement dated 11.11.2013 executed by the first petitioner in favour of the second petitioner.
3.In the impugned order, the first respondent has raised the following objections:-
i. parent document was not furnished at the time of registration;
ii. deficit stamp duty not paid;
iii. land grabbing proceedings were pending vide Crl.O.P(MD)No.17648 of 2013 in Crime No.14 of 2013 against the petitioner ;and iv. the suits were pending against the first petitioner vide O.S.Nos.140 to 142 of 2012 before the I Additional District Court, Trichy.
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4.The learned counsel appearing for the petitioners submits that parent documents are available and has also filed an additional typed set of document containing 15 documents showing registered sale deed executed between the first petitioner and his vendors, wherein total extent of 14.22 acres of land came to be purchased.
5.Therefore, the learned counsel for the petitioners submits that as far as the first objection is concerned, these documents were available and were produced and will be produced again. Therefore, this objection cannot be sustained.
6.Asfar as the third objection regarding alleged land grabbing proceedings are concerned, the learned counsel for the petitioner submitted that the criminal proceedings initiated vide Crime No.14 of 2013 were quashed by an order dated 23.04.2018 in Crl.O.P.(MD) No. 17648 of 2013. Therefore, this objection cannot be sustained.
7.As far as the fourth objection is concerned, it was submitted that post facto interse dispute has been solved in lokadalatand has filed award dated 23.11.2013 substantiate the same. Therefore, this objection cannot be sustained.
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8.The learned counsel for the petitioner also submits that the defacto complainant in Crime No.14 of 2013 has not initiated any civil proceedings to take the case towards its logical end
9.Asfar as the second objection is concerned, the learned counsel for the petitioners drew the attention to the decision of the full bench of this court in G.Karmegam vs The Joint Sub-Registrar 2007 (5) CTC 737, wherein in paragraph 6, the Hon'ble full Bench has held as under after re-present Section 47-A of the Stamp Act, 1899.
“6. A careful reading of the above provision would show that if the Registering Officer has reason to believe that the market value of the property, which is the subject of conveyance, has not been truly set forth, he may, after registering such instrument, refer the same to the Collector for the said Section is to neutralise the effect of undervaluation of the property with a view to avoid evading stamp duty.”
10.The learned counsel for the petitioners submits that even if there is deficiency in the stamp duty, the respondents are duty bound to register the agreement and thereafter, refer the case to the District Collector against which separate an appeal can be filed before the Inspector of General of Registration.
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11.The learned counsel therefore, submits that the respondents have no justification in not registering the sale agreement dated 11.11.2013 vide impugned order dated 12.11.2013.
12.The Learned Government Counsel submitted that the said decision is not applicable to the facts of the case which in any event has been distinguished in Special Deputy Collector (Stamps), Palayamkottai, Thirunelveli District and others vs. M.Alferd and others (2017(6) CTC 44. In Paragraph 28, the Court has held as follows:-
As discussed above, there is no question of return of the instrument by the registering authority, if a reference is made along with the instrument. In the absence of any provisions enabling the return of the instruments the same cannot be given back. The provision for creating charge cannot be construed for an automatic release of the document. Even if we apply the principle of purposive and reasonable interpretation, the instrument cannot be released until and unless the duty determined is set aside or found to be wrong. In the light of discussions made above, we are of the view that the contentions raised by the learned counsel for the Writ Petitioners cannot be accepted.”
13.The above decision in Special Deputy Collector (Stamps), Palayamkottai, Thirunelveli District and others vs M.Alferd and others has been followed by yet another Division Bench of this Court by order http://www.judis.nic.in dated 18.12.2017 made in W.A.No.1488 of 2017 and the 6 recent decision of this Principal Bench in W.A.No.610 of 2018 dated 26.06.2018.
14.The Court has differed from the view expressed by the Full Bench of this Court in G.Karmegam vs The Joint Sub-Registrar 2007 (5) CTC 737. The Full Bench had directed the return of documents within a period of three weeks from the date or registration.
15.The learned counsel appearing for the petitioner would submit that as far as criminal proceedings have been quashed by order dated 23.04.2013 in Crl.M.P.No.17648 of 2013. He has also stated that the defacto complainant in Crime No.14 of 2013 have also not filed any other proceedings against the petitioners.
16.The learned counsel for the petitioner also drew my attention to the decision of this Court in M.Krishnanand 44 others Vs Dist Collector, Erode1998 3 CTC 366, wherein the court has elaborately discussed as under:
51.What is required under sub-section (1) of Section 47-A of the Indian Stamp Act is that the Registering Authority had to come to a conclusion before registration that the market value of the property, http://www.judis.nic.in dealt under the instrument of conveyance or release, 7 has been under-valued and he should have entrained reasonable belief in this respect and also, he should have recorded such a reason. 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 by the Collector under sub-section (1) of Section 47-A of the said Act, the Collector could exercise or invoke suomotupowers conferred on him under sub-section (3) of Section 47-A and had a reference been made under Section 47-A (3) of the said Act it would have been answered either way by the Collector then it is obvious that the Collector cannot exercise suomotupowers in terms of sub- section (3) of Section 47-A of the said Act.
52.The suomotupowers under sub-section (3) section 47 of the said Act could be exercised only in respect of those instruments, with respect to which no reference have been made by the Registering Authority in terms of sub-section (1) of Section 47-a of the said Act and such suomotupowers have to be exercised within two years from the date of registration of the documents.
17.The learned counsel for the respondent submits that the Inspector General of Registration has issued circular under Section 61(1) of the Registration Act on 25.04.2012, bearing reference letter No.1839, dated 01.01.2012, wherein the guidelines have been issued to the registering authority while registering document of conveyance. The guideline does not registration in case of deficit in stamp duty.
18.The learned Government Advocate on the other hand submitted that the petitioner was not entitled to get the document released http://www.judis.nic.in as it would further put strain on the respondents to recover 8 the stamp duty. It was further, submitted that the first petitioner himself was in arrears of stamp duty to the extent of Rs.88 lakhs in respect of previous transactions pursuant to which, he obtained title over the subject land to the extent of 14.22 acres in respect of which he has signed the sale agreement dated 11.11.2013 with the 2nd petitioner.
19.Section 47A of the Stamp Act, does not deal with sale agreement. The decision of the Hon’ble Supreme Court in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656, has observed as under:-
Scope of an agreement of sale
16.Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in NarandasKarsondas vs .S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37) “32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad vs Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
http://www.judis.nic.in 33. In India, the word ‘transfer’ is defined with 9 reference to the word ‘convey’. … The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
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37. … that only on execution of conveyance, ownership passes from one party to another….”
20.The Court further held that it is clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
21.Consequently, the decisions cited by the learned counsel for the petitioner in the context of Section 47 A of the Stamp Act are strictly not relevant to the case.
22.Under Art. 5(2) to Schedule I to the Indian Stamp Act, 1899, stamp duty on agreement of sale of immovable property is one Rupees for every one hundred rupees or part thereof on the intended sale consideration. However, as per Article 5 (i) to Schedule I to the Indian Stamp Act, 1899 as applicable to the such transactions in the State of Tamil nadu, stamp duty appears to be only Rs.20/-. However, the registration charges payable appears to be 1% on the money advanced on the total consideration if possession is given. http://www.judis.nic.in 10
23.However, this aspect is not forthcoming in the impugned order. It merely states that the petitioner has not paid appropriate stamp duty and the registration charges. The basis on which the undervaluation has been arrived is not clear.
24.The respondents shall therefore register the documents even though Section 47 A of the Stamp Act is not strictly applicable in the context of sale agreement. Nevertheless, the scheme therein can be applied for registration of other documents as well as. However, the respondents shall exercise lien over the lease documents until there is a proper adjudication of deficit stamp duty and the registration charges only on and payment of the amounts not only for the transactions covered by the impugned order, but also, the previous transaction viz sale deeds in respect of which there is alleged due of stamp duty and registration charges.
25.The respondents shall therefore issue appropriate notices to the petitioners to not only recover stamp duty and registration charges from them in respect of the transaction covered by the sale agreement dated 11.11.2013 which is the subject of the present writ petition between the petitioners but also in respect of the past transaction http://www.judis.nic.in 11 between the vendor and the 1st Petitioner in respect of which there is an alleged outstanding of Rs.88 Lakh, if no such notice to recover the stamp duty and registration charges has been issued issued.
26.Such notice shall be issued within a period of 30 days from the date of receipt of order. The respondents shall thereafter allow the petitioners to file their objections and hear the petitioners before passing appropriate orders. Entire exercise shall be completed within a period of 90 days thereafter.
27.After registration and adjudication, the respondent shall register the document and take steps to recover the stamp duty of registration charges in accordance with law. The respondents shall confine to have 1st charge over the property and the documents until the amounts are paid.
28.The above writ petition stands disposed with the above observations. No costs.
.02.2019 Index:Yes/No Internet :Yes/No jen http://www.judis.nic.in 12 C.SARAVANAN.J, jen To
1.The Joint Sub-Registrar No.1, Office of the Joint Registrar No.1, (Original Documents Section), Tiruchirappalli.
2.The Inspector General of Resgistration, Santhome High Road, Santhome, Chennai – 28 Pre-Delivery Order made in W.P(MD)No.18877 of 2013 .02.2019 http://www.judis.nic.in