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Judgment
V. Dhanapalan
A proceeding initiated by the District Registrar / the 1st Respondent herein in Proceedings Ku.Na. No: 63/B1/99 dated 28.02.2005 and a consequential order passed by the 3rd Respondent on 05.04.2008 are called in question, seeking to quash the same and for a consequential direction to the respondents 1 and 2 to release document No: 619/98 dated 25.05.1998.
According to the Petitioner, by registered sale deeds dated 25.01.1993 and 07.05.1993, the Petitioner and one V.K. Mani purchased the lands in question jointly and, thereafter, by a registered partition deed dated 25.05.1998, they have partitioned the said property, which they claim to be agricultural lands. While so, the 2nd Respondent in its letter dated 10.04.2000 directed the Petitioner to pay a sum of Rs. 1,02,000/- towards deficit stamp duty for Document No: 619 of 1998 for which partition has been effected between the Petitioner and the said V.K. Mani. It is the Petitioner''s case that the said V.K. Mani has assured him that he would approach the Respondents 1 and 2 and get the document cleared as the agricultural lands have been treated as commercial lands and in any case, there cannot be a stamp duty of a sum of Rs. 1,02,000/- for the partition which is impermissible in law. The 2nd Respondent has sent another letter on 21.03.2003 directing the Petitioner and V.K. Mani to produce the document for spot inspection. Even though the Petitioner was ready with the document, the 2nd Respondent didn''t come for inspection. But to the shock and surprise, the 1st Respondent issued a certificate u/s 33 A (1) of the Indian Stamp Act, hereinafter referred to as the Act, and directed the recovery of the above said amount u/s 48 of the Act without following the procedure contemplated u/s 33 A (1) of the Act. According to him, no certificate u/s 33 A (1) o the Act shall be granted without due enquiry and an opportunity of hearing and though the letters dated 23.01.2000 and 20.02.2000 have been served on the Petitioner, they are not notices u/s 33 A (1) of the Act and the enquiry under the said Section cannot be invoked after three years from the date of registration of the instrument. Even after the order dated 20.08.2005, the said V.K. Mani has informed the Petitioner that he will pursue the matter but, he has not chosen to do so. But the 3rd Respondent has issued notice under the Revenue Recovery Act on 05.04.2008, thereby informing the Petitioner that in the absence of the payment of the amount being deficit stamp duty, the revenue recovery proceedings would be initiated and, therefore, the said proceeding challenged by the Petitioner on the ground that the proceedings contemplated by the Respondents without following the procedure is liable to be set aside as the said proceedings are without issuance of notice and without an opportunity and beyond the period of limitation as prescribed under the Act.
The 1st Respondent has filed counter and stated that the averment of the Petitioner that the properties partitioned between the petitioner and V.K. Mani are agricultural lands are denied as the property comprised in Survey No: 106/1 have been converted as house sites according to Document No: 1695 of 1984 and 704 of 1992 and, therefore, the property value for partition has been fixed as Rs. 20,56,000/- and the stamp duty leviable on the said value is Rs. 82,240/-, according to Article 45 of the Act. Further the registration fee payable is Rs. 20,566/- after deducting the stamp duty of Rs. 1,250/- and the registration fee of Rs. 310/- deficit stamp duty and the registration fee totally works out to Rs. 1,01,240/- and this Respondent has fixed the sum of Rs. 1,02,000/- as compounding fee in lieu of prosecuting the Petitioner and the Respondents 1 and 2 are ready to inspect the property but the Petitioner failed to turn up to identify the property for inspection.
It is the stand of the Respondent that certificate has been issued to collect the deficit stamp duty and registration fee u/s 45 of the Act as arrears of land by "inadvertence" and that the said certificate has been issued stating that it is issued u/s 33 A (1) of the Act as the proceedings has not been contemplated u/s 33 A (1) of the Act and hence compliance of the provisions of the said Section are not warranted. Further, the value of the property are not fully and truly set forth in the document. This Respondent is empowered to compound the offence and according to Section 70(3) of the Act, the amount of compensation shall be recoverable in the manner provided u/s 48 of the Act and accordingly, the amount of compensation fixed at Rs. 1,02,000/- has been certified to be the collected in the manner provided u/s 48 of the Act and therefore, they prayed for dismissal of the writ petition.
Mr. V. Bharathidasan, Learned Counsel appearing for the Petitioner in his submission has strenuously contended that the partition deed between the Petitioner and V.K. Mani was presented before the Respondent by V.K. Mani and, therefore, what are all notices alleged to have been issued were served and issued in the name of V.K. Mani and not to the Petitioner except the impugned proceedings dated 28.02.2005 which according to him is vitiated by Section 33 A (1) wherein a time limit has been provided that no such enquiry shall be commenced after the expiry of three years from the date of registration of the instrument. Therefore, the action taken by the Respondents for a document which was presented on 25.05.1998 cannot be proceeded with by the competent authority after the expiry of three years. He would further contend that the competent authority to initiate the proceeding is the District Registrar of the concerned Registration District and no other authority is empowered to initiate proceedings and, therefore, any notice which was issued by the Sub Registrar on 10.04.2000 cannot be taken as a notice issued u/s 33 A (1) of the Act. Mr. v. Bharathidasan Learned Counsel for the Petitioner would rely on the decision of this Court reported in R.M. Ebrahim Vs. The District Registrar, Office of the District Registrar, wherein the Court held that,
Any way, it is clear that without a certificate as contemplated u/s 33 - A no recovery action can be taken by the Respondent for recovering any alleged deficit stamp duty. Now the Government Advocate also states that the Respondent would take necessary proceedings u/s 33-A and that recovery would be taken only after the certificate contemplated u/s 33-A. Therefore, it is clear that the present order is without jurisdiction. Accordingly, it is quashed and the writ petition is allowed with costs.
Counsel would also rely upon yet another decision of this Court reported in 2003 (3) L.W. 160 (O.N.S. Hyder Ali v. The Sub Registrar, District Registrar Cadre, O/o. Sub Registrar of Assurances II, Davidson Street, Sowcarpet, Madras - 1). The relevant portion of the decision reads thus,
5.... That apart, the grievance of the Petitioner is that there was n such enquiry at all initiated and only the impugned order directing the Petitioner to pay the stamp duty and registration fee has been made. The said impugned order has been made beyond a period of three years. The Respondent has no authority to initiate either the inquiry or make a demand in respect of the payment of stamp duty as well as registration fee beyond a period of three years of the registration. In that view of the matter, I find that the impugned order cannot be sustained in the eye of law. Moreover, there is no inquiry whatsoever conducted before such impugned order was passed. In the absence of inquiry, the order is also opposed to Section 33 - A of the Indian Stamp Act, 1899 and Section 0 of the Registration Act, 1908.
In view of the above finding, the impugned order is set aside and the writ petition is allowed.
Per contra, Mr. L.P. Shanmuga Sundaram, learned Additional Government Pleader, on instruction, submits that the impugned notice is issued inadvertently u/s 33 A (1) of the Act instead of Section 48 of the Act and therefore, Petitioner cannot take advantage of three years period of limitation by taking shelter under the provisions of Section 33 A (1) of the Act. What are all the proceedings initiated on 10.04.2000 and 21.03.2000 were notices issued on the Petitioner and, therefore the period of limitation as contemplated under the Act has been scrupulously followed as the Petitioner was put on notice and also an opportunity of hearing was extended. He would further contend that the notice issued on 10.04.2000 is in compliance with Section 33 A (1) of the Act and, therefore, the action contemplated u/s 48 of the Act cannot be faulted with. It is his further contention that as against the order passed by the 1st Respondent there is an effect appellate remedy u/s 33 A (iii) of the Act is available to the Petitioner.
I have heard the Learned Counsel on either side and perused the records and relevant provisions of the Act.
A circumspection of facts would reveal that the Petitioner along with one V.K. Mani has purchased the property by a registered Sale Deed dated 25.01.1993 and 07.05.1993. Thereafter, they have partitioned the property and entered into a deed of partition on 25.05.1998. The Petitioner claims that the lands are agricultural lands and the said document was presented before the Respondent on 25.05.1998. Thereafter, the second Respondent sent a letter on 10.04.2000 to the Petitioner directing him to pay a sum of Rs. 1,02,000/- towards deficit stamp duty for the Document No: 619 of 1998 by which partition has been effected between the Petitioner and the said V.K. Mani. Petitioner''s claim is that even at the time of presentation of the document, the said V.K. Mani undertook to get the document cleared off from the authorities. However, the 2nd Respondent on 21.03.2000 has sent another letter to the Petitioner and also to V.K. Mani to produce the document for spot inspection. Though the Petitioners claim that they were present, the Respondent disputed that the Petitioner and the said V.K. Mani were not ready for the spot inspection. While so, the 1st Respondent, on 28.02.2005, has issued the certificate u/s 33 A (1) of the Act directing the Petitioner to pay a sum of Rs. 1,02,000/- as deficit stamp duty otherwise, they will proceed to recovery the amount under the Revenue Recovery proceedings u/s 34 of the Act.
A perusal of the records and the impugned proceeding would reveal that the proceedings contemplated by the 1st Respondent is u/s 33 A (1) of the Act and accordingly they proceeded to initiate action to recover the deficit stamp duty of Rs. 1,02,000/- from the Petitioner and now the Respondents have taken a stand that the certificate has been issued to recover the deficit stamp duty and the registration fee u/s 45 of the Act as arrears of land revenue but by inadvertance the certificate has been issued stating that it is issued u/s 33 A of the Act and that the proceeding has not been contemplated u/s 33 A and therefore, compliance of the provisions of that Section are not warranted.
To examine the above position whether the Respondents are competent to issue proceedings u/s 33 A (1) of the Act, it is relevant to refer to the said provision, which is as follows:
Section 33-A Recovery of deficit stamp duty - (1) Notwithstanding anything contained in Section 33 or in any other provision of this Act, if, after the registration of any instrument under the Registration Act, 1908 (Central Act XVI of 1908), it is found that the proper stamp duty payable under this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a certificate from the Registrar of the district under the Registration Act, 1908 (Central Act XVI of 1908) be recovered from the person liable to pay the duty, as an arrear of land revenue.
Provided that no such certificate shall be granted unless due inquiry is made and such person is given an opportunity of being heard:
Provided further that no such inquiry shall be commenced after the expiry of three years from the date of registration of the instrument.
The Petitioner''s partition deed was presented on 25.05.1998. Thereafter, the competent authority to proceed with if there is any deficit stamp duty is the Registrar of the District concerned and a certificate to that effect has to be issued for the said amount. It is provided in the said Section that no such certificate shall be granted unless due inquiry is made and such person is given opportunity of being heard. Further, it is clear from the above provision that the competent authority can initiate action within a period of three years from the date of registration of the document. From a perusal of the records, it is clear that though the document was presented on 25.05.1998, the notice issued by the Respondent in the name of Mr. V.K. Mani is on 24.01.2000 and 20.02.2002. The commun