Madras High Court
Govindan vs District Registrar on 26 June, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/06/2006 CORAM: THE HONOURABLE MR. JUSTICE M.E.N.PATRUDU Writ Petition (MD) No.1609 of 2006 1.Govindan 2.T.Murugesan 3.K.Ramasamy .. Petitioners vs. 1.District Registrar, Swamy Sannathi Street, Tenkasi. 2.Joint Sub-Registrar No.2, Taluk Office Complex, Tenkasi - 627 811. .. Respondents Writ Petition under Article 226 of the Constitution praying to issue a Writ of Certiorarified Mandamus to call for the records of the 2nd respondent's order dated 27.12.2005 relating to document No.1888/05 dated 8.8.2005 registered in the office of the 2nd respondent and quash the same and direct the first respondent to deal with same according to law. !For petitioners ... Mr. T.S.R.Venkatramana ^For respondents ... Mr. Rajarajan, Government Advcoate :ORDER
The petitioners are questioning the legality and correctness of the order of the second respondent dated 27.12.2005.
2. The second respondent is the Joint Sub-Registrar No.2 of the Taluk Office, Tenkasi.
3. The first respondent is the District Registrar, Tenkasi.
4. The case of the petitioners is that they are friends and they purchased punja lands with standing coconut trees through five documents.
5. The details are given below:
No Date & No. Documents Sold by Survey No. and Extent Value Rs.1
21.11.96 570/97 Gurusamy and others 125/1E Acre O.Cent50 125/1G 0.51 61,000.00 2 31.03.96 1037/99 Sankariah and others 125/1B Acre 0.Cent 27 125/1B Acre 0.cent 15 125/1E Acre 0.Cent 10 125/1 well right with 3HP motor and room including Coconut tree thereat 38,000.00 3 21.05.99 Krishnammal 125/1C Acre 0.Cent 20 with 1/8 well right, Motor and pump room 13,200.00
4. 05.02.01 223/01 Ramasamy and others 125/1B Acre 0.Cent 34 125/1A Acre 0.Cent 51 125/1E Acre 0.Cent 20 125/1D Acre 0.Cent 25 with well right half share in motor and pump room 75,000.00
5. 19.06.02 1936/02 V.Kumar and others 125/1F Acre 0.Cent 52 125/1D Acre 0.Cent 06 Well, Motor and pump room 70,000.00
6. It is stated that they decided to have partition among themselves to avoid future litigation.
7. Partition deed for registration was presented before the second respondent on 8.8.2005 and the same was registered as Document No.1888 of 2005 by the second respondent.
8. It is further stated that the value of the properties is arrived at Rs.5,54,850/- and they have completed the registration formalities but the second respondent has withheld the same document having registered and thereafter issued notice directing the petitioners to pay a sum of Rs.81,665/- as deficit stamp duty treating the properties as house sites and the second respondent also threatened that he would take action against the petitioner under Rule Para 744 of the Registration Manual and Section 27 and 64 of Registration Act if the deficit stamp duty is not paid and the same is questioned by the petitioners in this Writ Petition.
9. The second respondent filed detailed counter denying all the material allegations. It is stated that on inspection of the fields, it is noticed that some of the lands are just adjacent to the residential colonies and they are not agricultural lands, as such they are classified as house sites and valued accordingly. All other lands are classified as agricultural lands.
10. The specific plea of the second respondent is that the lands in Survey No.125/1A, 125/1B and 125/1E alone are classified as house sites and the remaining fields were confirmed as agricultural land and accordingly, they are valued.
11. It is stated that the material facts are suppressed by petitioners and hence the petitioners are punishable under Section 64 of the Stamp Act.
12. It is further stated that partition deed was presented for registration on 17.8.2005. The stamp duty payable for partition deed is regulated under Article 45 of Schedule I of the Stamp Act 1899 and accordingly the partition deed of the properties of the three petitioners are valued as Rs.1,75,200/- each for the first and second petitioners and RS.1,77,600/- for the third petitioner and Rs.26,850/- for all. Thereby, the total value comes to Rs.5,54,850/-.
13. It is stated that as per Article 45 of the Stamp Act, Rupee 1 is to be collected for every Rs.100/- for a part thereof as the market value of the property which is under partition subject to the maximum of Rs.10,000/- per share if the instrument of the partition is among family members. In any other case, the stamp duty is as per bottomry bond No.16 for the amount of the value for the separated share or shares of the property.
14. The contention of the respondents is that the petitioners have prepared the document on stamp paper of Rs.5,515/- as if the partition deed is effected among family members and it is misleading hence punishable as per Article 45 A as the petitioners belonging to different families and different communities and they are only friends. Therefore, the deed should have been stamped as per Article 45A of Schedule I of the Stamp Act and accordingly, the stamp papers are to be valued at Rs.15,100/-.
15. According to the respondents, the total value of the property is Rs.5,54,850/- value of the biggest share is Rs.1,77,600/- and value of the separated shares Rs.3,77,250/- hence the stamp duty is Rs.15,100/- @ 4%. The respondent contended that the partition deed insufficiently stamped. Even as on the date of execution the fact of existence of coconut trees has been suppressed and not valued and hence the petitioners are liable for action.
16. It is stated that action has to be initiated against the petitioners under standing order of 744 of the Tamilnadu Registration Manual in short Manual for undervaluing the properties as section 47-A (1) of the Stamp Act will not apply to the case of partition deed.
17. It is also contended that when the document was presented by the petitioners, it was decided to take up field inspection in respect of Survey Nos.125/1A, 125/1B and 125/1E of the Village since the total extent of field was found in between 10 and 20 cents only and the said inspection is taken up as per the order of the Inspector General of Registration and, on examination in the field it was found that the survey numbers 125/1A, 125/1B, and 125/1E are very nearer to the village and adjacent to Survey Nos.124, 126, 127 etc., which are residential colonies namely, Sakth Nagar, Kalidhasan Nagar and Jamalia Nagar and hence the above lands are valued at Rs.75/- per square foot as per the guideline Register.
18. Thus, the specific plea taken by the second respondent is that the lands in Survey Nos.125/1A, 125/1B and 125/1E are not agricultural lands and they are house sites and the remaining fields are agricultural lands.
19. The second respondent has furnished working sheet of the value as per the document and as per the field inspection and it is reproduced here under. Sche-dule Survey No. Extent As per Document As permissible field inspection Remarks 1 125/1A, 1B 0.51 81600 1666170 22215.6 S.Ft 125/1B 0.58.1/2 93600 1911195 25482.6 S.Ft Total 175200 3577365
2. 125/1B 0.17.1/2 28000 571725 7623Sft.
125/1C 0.20 32000 32000 Agrl.Field 125/1F 0.52 83200 83200 Agrl.Field 125/1E 0.20 32000 653400 8712S.Ft Total 175200 1340325 3 125/1E 0.10 16000 326700 4356S.FT 125/1F 0.50 80000 80000 Agrl.Field 125/1G 0.51 81600 81600 Agrl.Field Total 177600 488300
4. 125/1D 0.06 26850 26850 Agrl.Field (Well and pumpset) Total 26850 26850 Abstract of value (as per field inspection) 1st Schedule 3577305 2nd Schedule 13404325 3rd Schedule 488300 4th Schedule 26850
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5432840 Value of separated shares (Except the value of Major Share of Rs.3577365/-) 1855475
20. According to the second respondent, the amount of stamp duty and registration fees is as follows:
Amount of Stamp Duty and Registration Fees (for the value arrived at by the 2nd respondent Stamp Duty Required at 4% as per Article 45(b) Rs.74220 Borne by the document Rs. 5550 Deficit Stamp Duty Rs.68670 Registration Fees To be collected Rs.18555 Fees Collected on 17.8.2005 Rs. 5560 Deficit Registration Fee Rs.12995 Total amount to be recovered (68670 + 12995) Rs.81,665/-.
Accordingly, the total value to be charged is Rs.18,665/-. It is stated that the value of the coconut trees are not included.
21. It is further stated that the matter has been placed before the first respondent/District Registrar as there is a loss of revenue to the Government and as per his orders, notice has been issued to the first petitioner requesting him to remit the total amount of Rs.81,665/- and get back the document registered on 17.8.2005 as 18.8.2005. It is also stated that necessary action would be taken under Sections 27 and 64 of the Stamp Act if the amount is not remitted.
22. Heard both sides.
23. The points for determination are:
(i) Whether the petitioners are liable to pay the deficit stamp duty as well as the deficit registration fees?
(ii) Whether the petitioners are liable for prosecution?
Point: 1
24. Section 17 of the Indian Registration Act deals with documents of which registration are compulsory and Section 18 of the Act deals with document of registration as optional.
25. In the instant case, the petitioners opted for registration of the partition deed. As petitioners wanted their partition deed to be registered, they have to follow the provisions of the Stamp Act as well as the Registration Act.
26. According to the first petitioner, who has filed this petition, he has filed the petition for himself and on behalf of his friends who are challenging the order of the second respondent. The said fact is mentioned in the first paragraph of the Writ Petition. Therefore, the petitioners are not from the same family. Therefore, this is not a partition among the family members.
27. Since the partition sought for by the petitioners is not among the family members, the stamp duty is to be paid strictly in accordance with the provision of the act as per the value of the separated share or shares of the property.
28. The petitioners have valued the total properties at Rs.2,57,200/- for all the five scheduled items whereas the registering authority has valued for the stamp at Rs.5,54,850/-.
29. According to the petitioners, the lands are punja lands for the purpose of agriculture.
30. While the second respondent after spot inspection came to a definite conclusion, determined the lands in Survey Nos.125/1A, 125/1B and 125/1E are not agricultural lands and they are adjacent to the residential colonies. Therefore, they have been classified as house sites and valued accordingly. The 2nd respondent did not classify all the lands as house sites. He has accepted the case of petitioners in all the lands except in 125/1A, 125/1B and 125/1E.
31. I have minutely verified the working sheet of the second respondent and he has valued the lands in 125/1C, 125/1F, 125/1G, 125/1D as valued in the documents holding that they are agricultural lands. There is no dispute about those lands.
32. While so, the main dispute is with regard to the lands in Survey Nos.125/1A, 125/1B and 125/1E.
33. The fact whether the lands in Survey Nos.125/1A, 125/1B and 125/1E are agricultural lands or residential house sites, the petitioners cannot claim any relief by way of Writ as far as this dispute is concerned. The main dispute is with regard to these lands only. This aspect require evidence and verification of documents and hence it cannot be decided in Writ.
34. However, on behalf of the petitioners, it is contended that without giving any opportunity to them and without application of mind, a non-speaking order is passed by the second respondent.
35. I perused the impugned order, at Page 16. It is only an half page order. All the details furnished in the counter affidavit are not disclosed in this order and how the second respondent has valued the properties is also not disclosed.
36. Therefore, it is not a speaking order.
37. On behalf of the petitioners, it is contended that no opportunity is given.
38. Since the petitioners are the affected parities, reasonable opportunity must be given to them before issuing the impugned order.
39. For the foregoing reasons, I am of the opinion that the impugned order is liable to be set aside and the first respondent is directed to give reasonable opportunity to the petitioners to putforth their claim and after hearing the petitioner and after verifying the documents, and if necessary after the first respondent conducting the spot inspection, he has to pass a reasoned order. Depending upon the order of 1st respondent, the petitioners are directed to pay stamp duty if any to be paid otherwise the 1st respondent will release the document.
40. Point No.2:
The Tamilnadu Registration Manual Part II deals with standing order 744. It is with regard to penal action for under valuation of the documents other than conveyance, exchange and gift.
41. For better understanding, the standing order 744 is reproduced.
TAMIL NADU REGISTRATION MANUAL PART II Para:723 Section 47-A(1) of the Stamp Act provides for a reference from the registering officer to the Collector only in respect of deeds of conveyance, exchange and gift.
Action in regard to under valuation of documents other than conveyances, Exchange and gift.
Para 744. (i) When it appears to a Sub-Registrar that the value of transaction embodied in a document presented to him for registration under than those specified in Order 723 is not set forth truly, he shall refer to the guidelines supplied by the Revenue Department and also to the entries of the previously registered documents in the Register of Holdings on the Municipal Town Property Register or the Index II as the case may be. In cases where the Register of Holdings or the Municipal Town Property Register is not maintained, particulars of previously registered documents shall be ascertained from the parties and the entries of those documents in the register books shall be referred to.
(ii) IF, on a scrutiny of the records mentioned above he has reason to believe that till the facts and circumstances relating to the changeability of the instrument with stamp duty are not fully and truly set forth in the instrument, he shall record statements from all the parties connected with the document, viz., the executants, claimants, attesting witnesses, identifying witnesses, the scribe and the village officers, if any present, with a view to elicit information as to the real value of the property or the amount of consideration, etc., on which the stamp duty payable on the document depends.
(iii) If there is a substantial difference between the value of the consideration, or the market value as the case may be, expressed in the document presented for registration and that expressed in the previously registered documents, the reasons for the disparity shall be ascertained from the parties during their examination and any evidence adduced by them to show that the value of consideration entered in a document is a true one, shall be taken into consideration.
(iv) If, after a document has been registered, (i) a Sub-Registrar receives from a party petition alleging that he offence of under valuation has been committed in respect of that document, or (ii) a petition containing similar allegations is forwarded to a Sub-Registrar by the District Registrar under instruction (vi), he shall proceed as laid down in instructions (i) to
(iii) and (v), with the only difference that in these cases he has to issue notices to the several parties mentioned in inst4ruction (ii) for their appearance. A notice shall also be issued to the petitioner calling upon him to appear on a specified date and substantiate his allegations with the necessary oral and documentary evidence.
(v) If, from the examination of the parties and all facts and evidence available, the Sub-Registrar is satisfied that a case of under valuation with intent to defraud the Government is made out, he shall register the document and submit to the District Registrar a detailed report setting out all the facts and circumstances of the case and hsi views on the question whether prosecution of the parties should be sanctioned with the reasons thereof. The original document, copies of the statement recorded from the parties, copies of the previously registered document and other papers shall accompany the report. If he find that no case of under valuation is made out, he shall record the petition, if any, in case it is addressed to him and inform the petitioner of the fact; in case the petition is one received from the District Registrar, he shall submit the petition to the District Registrar with his report. In District Registrar's Offices
(vi) A District Registrar shall, on the receipt of a petition alleging that the offence of under valuation has been committed in respect of a specified document, forward it to the Sub-Registrar concerned for enquiry and remarks.
(vii) If the District Registrar is of opinion that there is no substance in the petition, the petition shall be recorded. A final order to the effect that the petition has been recorded shall be communicated to the petitioner, if the petitioner has taken any steps to prove the allegations in his petition."
42. In the instant case, the second respondent has proposed penal action against the petitioners under standing order 744 of the manual.
43. The second respondent is mainly relying on 744(ii), (iii), (v) and
(vii).
44. Plain reading of standing order 744 clarifies that only after referring the guideline supplied by the Revenue Department and after referring to the entries of the previously registered documents in the register of holdings and after ascertaining the particulars of those documents in the register of parties and then if he has reason to believe that the stamp duty is not full and truly stated in the instrument, then he shall record the statements from all the parties concerned with the document such as executors, claimants, attesting witnesses, identifying witnesses, scribe and Village Officers etc.,.
45. This is with a view to elicit information as to the real value of the property. The stamp duty payable on the documents depends after substantively it is noticed, the reasons for the difference, shall have to be ascertained from the parties during their examination and they may be given opportunity to adduce any evidence to support that the value of consideration entered in the document is true and after taking such evidence into consideration any action under standing order 744 is permissible.
46. Further, para IV of the Standing order 744 clarifies that if after document has been registered, if the Sub-Registrar receive a petition from any party that the offence of under valuation has been committed in respect of the document or if the District Registrar Officer receive any such petition, he shall proceed with enquiry as mentioned above. In all these cases, instructions to issue notices to several parties as mentioned in II of the standing order 744 for their appearance and asking the petitioner to appear on a specified date and substantiate the case with necessary oral and documentary evidence. The Sub- Registrar has to examine all the parties and record their evidence and when he comes to the conclusion that a case of under valuation with intent to defraud is made out, then he shall submit to the District Registrar a detailed report setting out all the facts and circumstances. It is for the District Registrar to take final decision whether prosecution of the parties should be sanctioned and reasons should be recorded. The procedure to be adopted in the District Registrars Office has been clarified in para III, VI and VII.
47. In the instant case, the second respondent has issued impugned notice threatening action under 744 without following any of the instructions of the standing order 744 of the Manual. Therefore, the impugned notice is liable to be set aside on this ground also.
48. Since the second respondent has already issued impugned notice intending to initiate penal action, the Court is directing the first respondent, who is the District Registrar of Tenkasi to decide the dispute in this case.
49. With the above observations, the Writ Petition is allowed. The impugned notice is set aside. No costs.
asvm To
1.District Registrar, Swamy Sannathi Street, Tenkasi.
2.Joint Sub-Registrar No.2, Taluk Office Complex, Tenkasi - 627 811.