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2: This Court has entertained the writ petition on 10.3.1999 and while issuing the notices to the respondents has directed that in case the petitioner deposits the stamp duty of Rs.2,81,875/-, no coercive steps shall be taken for the recovery of amount of penalty.

3: In response to the notice issued by this Court of this writ petition, a return has been filed by the respondents. It is contended by the respondents that the petition is not maintainable and is liable to be dismissed. It is submitted that no appeal would lie against the order of the Collector (Stamp) before Additional Commissioner, Jabalpur and in fact, appropriate appeal was never filed by the petitioner. It is contended that on a deficit stamp, the document was presented for registration. The said document was not registered only because the appropriate stamp duty was not paid. In fact, a stamp duty of Rs.3,21,875/- was required to be paid on the basis of the face value of the property so mentioned in the sale deed. Thus, there was a deficit payment of stamp duty amounting to Rs.2,81,875/-. The matter was referred to the higher authorities, in exercise of power under Section 33 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act for brevity). In terms of the provisions of Section 38(2) of the Act, the Collector (Stamp) was required to examine the same. The case was, thus, registered, opportunity of hearing was given to the original petitioner, but even after representation before the competent authority, it was expressed by the original petitioner that he was unable to deposit the deficit stamp duty. Time as requested was granted for the said purposes, but instead of depositing the said amount, a reply of show cause was filed which was rejected and the order impugned was passed on 17.9.1998 demanding payment of deficit stamp duty with penalty. The Collector was right in holding that since there was deficit payment of stamp duty, the petitioner was liable to pay a penalty as per the provisions of Section 40 of the Act, which could be ten times of the deficit stamp duty. This order was challenged in appeal, but the same was rightly dismissed by the Additional Commissioner as the appeal was required to be filed before the Board of Revenue. This being so, there was no case made out to interfere in the order impugned. It is contended that since the deficit stamp duty was to be recovered under Section 38(2) of the Act, the Collector has rightly proceeded under the provisions of Section 40 of the Act for recovery of deficit stamp duty with the penalty. Thus, it is contended that the petition being wholly misconceived, the same is liable to be dismissed.

9: If this stamp duty was not being paid, the matter was required to be referred for recovery under Section 38(2) of the Act, but not for the purposes of assessment of market value of the property. This particular aspect was taken note of by the Collector (Stamp), but in fact, the Collector (Stamp) was swayed with one aspect that the matter was still to be considered in the light of provisions of Section 33, 35 and 40 of the Act. It was considered by the Collector (Stamp) as if he was empowered to impose a penalty for non-payment of deficit stamp duty to the tune of ten times of the deficit stamp duty under the said provisions. For the purposes of proper appreciation, the provisions of Sections 33, 35, 38 and 40 of the Act are reproduced hereunder :-

(2) Every certificate under clause (a) of sub- section (1) shall for the purposes of this Act, be conclusive evidence of the matters stated therein.

(3) Where an instrument has been sent to the Collector under section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer. "

10 : Section 33 of the Act deals with examination and impounding of instruments, Section 35 of the Act deals with instruments not duly stamped inadmissible in evidence and Section 40 of the Act prescribes Collectors power to stamp instruments impounded. Section 38 of the Act simply refer the instruments impounded how are to be dealt with. Section 40 of the Act would be attracted only when impounding of an instrument is done by the Collector. But, recovery of deficit stamp duty is not to be done under this provision. In fact, the provisions of Section 48 of the Act would be attracted in case of recovery of deficit stamp duty. The inaction or speedy action required, which was not taken, was the real cause for not making payment of deficit stamp duty as it was categorically said by the original petitioner that he was wiling to deposit the amount of the duty which was assessed by the Sub Registrar and for the said purposes even he has submitted an application for issuance of a challan. It is nowhere stated as to how and why the challan was not accepted. Notices issued to the petitioner as have been discussed herein above were not correct. Impounding of document was not necessary in view of the law laid down by the Division Bench of this Court in case of Umesh Kumar son of Prakash Chand Sharma V. Rajaram son of Ramchandra Jat and another [2010(2) MPLJ 104]. It is now clear that for the purposes of registration even the original petitioner was ready to pay the assessed stamp duty. Thus, imposition of maximum penalty on the petitioner for non- payment of the said amount was not proper. It is to be kept in mind that there was delay in taking cognizance of the fact that the instrument was improperly stamped and that recovery of deficit stamp duty was to be done. Though the matter was referred in the year 1995, but the notice was issued in the year 1998 by the Collector (Stamp). The petition itself was filed in the year 1999 and under the order of the Court, the deficit stamp duty has already been paid by the original petitioner. In view of the law laid down by the full bench of High Court of Gujrat in the case of M/s Shailesh Taxtile Industries V. The Chief Controlling Revenue Authority (AIR 1994 Gujrat