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Judgment
D.S.R. Varma, J. 1. The common issue that arises for consideration in these two writ petitions is, whether the impugned proceedings in Lr. Nos.2002/0B/99 and 2001/0B/99 dated 23-6-1999 of the first respondent requesting the petitioners to pay a sum of Rs.1,61,460/- and Rs.1,37,905/- respectively towards deficit stamp duty and deficit registration fees, failing which the documents will be referred to the Collector u/s 48 of the Indian Stamp Act, 1899 (for short ''the Act'') for taking action under the Revenue Recovery Act is valid or not.
In both the writ petitions the parties and cause of action is common except variation in the amounts and the extents of land. Since counters have been filed in both the writ petitions, with the consent of learned Counsel for the parties, they are being disposed of by this common order.
The facts leading to filing of the writ petitions in brief are that: The petitioners purchased an extent of 184 and 159 sq. yards of land respectively including a house thereon bearing Municipal No.3-3-71 situate at Kutbiguda, Hyderabad. After purchasing the lands for a valuable consideration the documents were presented before the first respondent for registration along with Annexure-1A statement, in which the market value of the buildings were estimated at Rs.3 lakhs each being the value of the total sale consideration of the sale deed. After such presentation of the documents the first respondent conducted spot inspection of the properties and valued the market value at Rs.6,90,500/- and 6,04,000/- respectively and the same was recorded in Annexure-1B statement. However, the petitioners accepted the same in order to get it registered quickly and to obviate any complications in future. The required amounts were paid in the month of October, 1996 itself and the same was accepted and acknowledged by the first respondent. Since there was a delay in registration and returning of the documents, they approached the office of the first respondent and they were assured that the documents would be returned shortly. While so, the petitioners received the impugned proceedings in Lr. Nos.2002/0B/99 and 2001/0B/99 dated 23-6-1999 respectively, wherein it was stated by the first respondent that the documents presented for registration were lying for want of deficit stamp duty after indicating quantified amounts as deficit stamp duty. It was further stated therein that the matter would be referred to the Collector u/s 48 of the Act for taking action under Revenue Recovery Act, which, according to the petitioners, are illegal and invalid. Hence, the present writ petitions.
In this back ground, the contention of the learned Counsel for the petitioners is that a reference can be made to the Collector u/s 47A(1) of the Act, only when the value arrived at by the registering officer has not been adopted by the parties. Since in the instant case the value arrived at by the first respondent has been adopted and paid, the question of any reference to the Collector u/s 47A(1) of the Act does not arise inasmuch as the value arrived at by the first respondent being adopted by the petitioners, has become final. It is the further contention of the learned Counsel for the petitioners that the impugned proceedings speak of a reference to the Collector u/s 48 of the Act. Section 48 comes into operation only after the amount as determined u/s 47A of the Act. The stage of referring the matter to the Collector u/s 48 of the Act has not arisen at all and, therefore, according to him, the impugned proceeds are without jurisdiction, contrary to the provisions of Section 47A of the Act and also lack of application of mind.
The counter-affidavit filed by the respondent reveals that upon presentation of the documents the stamp duty and registration fees were calculated only on the tentative market value. In the instant case the tentative market values were collected on 10-10-1996 and at the same time the petitioners were informed about the fact of keeping the documents pending for spot valuation. Accordingly, the spot verification was conducted on 18-10-1996 in the presence of the parties in order to verify the particulars of the property declared by the parties were correct or not. Basing on such spot verification the land value was found to be much higher than what it was originally valued. The facts with regard to the market value etc., are not much relevant for the purpose of deciding the issue involved in these writ petitions. It was further stated that the petitioners were informed about the payment of difference amounts on the date of spot inspection itself. There is no response from the petitioners even after a lapse of 2 years. Again the petitioners were informed through office letters in Lr. Nos.2002/0B/99 and 2001/0B/99 dated 23-6-1999 that the matters would be referred to the Collector u/s 48 of the Act. Inspite of the same, the petitioners did not choose to pay the difference amounts. Hence, the documents are still pending.
In this back ground it is necessary to refer the relevant provisions of Section 47A of the Act.
"47-A Instruments of conveyance, etc., under-valued how to be dealt with:
(1) Where the Registration Officer appointed under the Registration Act, 1908, while registering any instrument of conveyance, exchange, gift, partition, settlement or release has reason to believe that the market value of the property which is the subject-matter of such instrument has not been truly set forth in the instrument. The may keep pending such instrument and refer the matter to the Collector for determination of market value of such property and proper duty payable thereon).
(2) On receipt of a reference under sub-section (1), the Collector shall, after giving the parties opportunity of making their representation and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject-matter of such instrument and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
(3) The Collector may suo motu within two years from the date of registration of such instrument, not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject-matter of such instrument and the duty payable thereon and if, after such examination, he has reason to believe that market value of such property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty."
Sub-section (1) of Section 47A of the Act says that if the Registering Officer has the reason to believe the market value of the property which is the subject-matter of such instrument has not been truly set forth in the instrument, such instrument may be kept pending and refer the matter to the Collector for determination of market value of such property and the proper duty payable thereon. Sub-section (2) of Section 47A of the Act says that on receipt of a reference under sub-section (1), the Collector shall conduct an enquiry in the manner prescribed and determine the market value of the property, which is the subject matter of the instrument, and upon such enquiry conducted by the Collector the difference if any found shall be payable by the person liable. Therefore, it is clear that a duty is cast upon the registering authority to refer the matter to the Collector if he is not satisfied with the valuation of the property by keeping the instrument pending and upon such reference alone the Collector is competent to conduct an enquiry with regard to the value of the property, and determine the market value of the property which is the subject matter of the instrument. Sub-section (3) of Section 47A of the Act authorises the Collector to initiate suo motu enquiry under the conditions mentioned therein but within two years only.
It is also necessary to refer Section 48 of the Act.
"Recovery of duties and penalties :--All duties, penalties and other sums required to be paid under this chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land-revenue."
It makes clear that reference under sub-section (1) of Section 47A is pre-requisite to exercise the jurisdiction u/s 48 of the Act by the Collector and it is totally under different circumstances.
Now, it is necessary to refer the impugned proceedings. As ready noted above, the contents of the impugned proceedings in both the writ petitions are quite similar except the amounts mentioned therein. For the sake of convenience the same is extracted below:
Government of Andhra Pradesh Registration and Stamps Department Lr. No.2001/0B/99 dated 23-6-1999 Sub: R.O. Hyderabad - Pending document No.1787/96 in respect of H.No.3-3-71 situated at Kutbiguda, Hyderabad-Reg.
Ref: This Office Lr. No.47/OB/99 dated 30-1-1999.
Attention of the party in the address entry is drawn to the subject and reference cited. He is informed that the above said document is lying pending in this office for want of payment of deficit stamp duty and deficit Registration Fee. He is requested to pay an amount of Rs.1,37,905/- (towards DSD, DTPT and DRF) within (5) days of its receipt, failing which the document will be referred to the Collector u/s 48 of the Indian Stamp Act for taking action under Revenue Recovery Act."
On a careful reading of the above proceedings it seems that they have been issued u/s 47A of the Act, but there is no indication with regard to the provision under which these proceedings were resorted to be initiated. What all intended through the said proceedings appears to be that a reference would be made to the Collector u/s 48 of the Act for taking action under Revenue Recovery Act.
The learned Counsel for the petitioners submits that Section 48 of the Act comes into operation only when the amount is determined u/s 47A and, therefore, the stage of referring the matter to the Collector u/s 48 of the Act has not arisen at all. To consider this submission, it is necessary to refer the facts that lead to issuance of the impugned proceedings in brief. The petitioners presented the documents on 10-10-1996. The first respondent at a particular rate valued the documents and the same had been adopted and paid by the petitioners, but the same was kept pending without registration. The first respondent comes forward with an explanation that, originally, valuation was made only on tentative basis and the instruments were kept pending for spot inspection, and it was already informed to the petitioners. The material papers filed by the petitioner in WP No.14634 of 1999 reveals that there is an endorsement by the registering authority that "kept pending for spot inspection". The further explanation is, deficit fees in valuation was already informed to the petitioners on the date of spot inspection i.e., on 18-10-1996 and subsequently the same was reminded to the petitioners in January, 1999, but the petitioners did not come forward to make good the deficiency. Except the statement made in this regard in the counter-affidavit, nothing else was made as part of the record to show that the petitioners were informed or reminded from time to time with regard to the deficiency in the stamp duty and in case of failure the matter would be referred to the Collector u/s 48 of the Act.
In view of the above said set of facts, as already discussed, the instrument is kept pending for want of payment of the amount finally assessed. If that be the case the first respondent ought to have exercised his jurisdiction under sub-section (1) of Section 47-A of the Act without any delay as envisaged under sub-rule (4) of Rule 3 of the Andhra Pradesh Stamp (Prevention of Under-valuation of Instruments) Rules, 1975. There is no satisfactory explanation offered in the counter-affidavit of the respondents as to why the documents were kept pending for more than 2 years from the date of presentation of the documents after spot inspection. Admittedly, the spot inspection was conducted on 18-10-1996 but the first reminder was given in January, 1999. Therefore, the instruments presented by the petitioners were kept pending for more than 2 years. Obviously the registering authority has kept these instruments pending, only because the valuation initially made by him though adopted by the petitioners was found to be inadequate after spot inspection.
In my view, when the registering authority has found that there is deficiency or inadequacy in the original valuation there is no need to wait for so long, just by issuing reminders to the petitioners. In fact, as per the pr9visions of Section 47A of the Act, referred to above, when the registering authority believed that original valuation is not satisfactory or found to be not truly set forth in the instrument, he ought to have referred the matter to the Collector exercising his jurisdiction under sub-section (1) of Section 47A of the Act without any delay. Therefore, the question of referring the matter u/s 48 of the Act is a distinct power conferred upon the Collector in different circumstances and such power can be exercised only after complete fulfilment of the procedure prescribed u/s 47A of the Act. Moreover, Section 48 of the Act does not speak about any reference by the registering authority. In other words, a reference can be made by the registering authority only under sub-section (1) of Section 47A of the Act. Therefore, the language incorporated in the impugned proceedings, wherein it was indicated that the documents would be referred to the Collector u/s 48 of the Act for taking action under Revenue Recovery Act, is totally misconceived inasmuch as the jurisdiction vested with the first respondent under sub-section (1) of Section 47A of the Act and the jurisdiction vested with the Collector u/s 48 of the Act are incompatible. Hence, I agree with the contention of the learned Counsel for the petitioners.
In view of the above discussion, I am of the considered view that the impugned proceedings in Lr. Nos.2001/0B/99 and 2002/OB/99 dated 23-6-1999 are misconceived, without jurisdiction and illegal. Hence they are liable to be set aside and according set aside.
However, in view of the statutory position, already discussed, the first respondent is directed to refer the matter to the Collector with regard to the instruments presented by the petitioners for determination of the market value of the property within 15 days from the date of receipt of a copy of this order and upon such reference made by the first respondent, the Collector shall determine the market value of the property and the proper duty payable thereon after conducting independent enquiry in accordance with taw uninfluenced by any of the reasons offered by the first respondent with regard to the valuation prevailing as on the date of presentation of the documents. It is need less to mention that the Collector shall give sufficient opportunity to the petitioners to make their representations. The Collector may take into account the representations or any material placed before him by the petitioners with regard to the valuation of the property. The Collector shall complete the entire exercise expeditiously in any event not more than 3 months from the date of receipt of a reference from the first respondent. It is clarified that the Collector shall not insist for the compliance of the proviso to Section 47A of the Act i.e., regarding the deposit of half of the amount since it is brought to the notice of this Court that this proviso has been introduced much long after the presentation of the document and since it is already observed in the above discussion that there is inordinate delay on the part of the registering authority exercising jurisdiction u/s 47A (1) of the Act.
With the above directions, the writ petitions are allowed. No costs.