Surender Singh vs State of Haryana

Ritu Bahri, J.—The petitioner is seeking quashing of the order dated 20.07.2010 (Annexure P-2), passed by the Commissioner, Hisar Division, Hisar-respondent No. 2, whereby he has set aside the order dated 09.12.2009 passed by the District Revenue Officer-cum-Collector, Fatehabad-respondent No. 3.

Vide agreement to sell dated 07.03.2007, one Hem Raj son of Ditta Ram agreed to sell land measuring 149 Kanals 10 Marlas, situated at village Kunal, at the rate of Rs. 11 lac per acre in favour of Surender Singh (petitioner) son of Mota Singh, resident of village Bhuna. A sum of Rs. 45 lac was received as earnest money and date for registration of the sale deed was fixed as 22.06.2007. On the basis of the above agreement to sell, Surender Singh-petitioner got registered sale deed No. 874-875 dated 14.06.2007 in favour of his wife Surinder Kaur for a sale consideration of Rs. 76,37,500/-. Birkha Singh-respondent No. 4 made a complaint against Surender Singh-petitioner alleging that the actual deal was made for Rs. 2,05,56,250/- and Surinder Singh has paid deficient stamp duty.

A notice was issued to Surender Kaur. Thereafter, she filed her written statement, stating that she had purchased land measuring 148 Kanals 1 Marla, situated at village Kunal, vide sale deed No. 874-875 dated 16.04.2007 from Hem Raj for a sale consideration of Rs. 75,35,000/- and the stamp duty was paid as per rules. There was no agreement between her and Hem Raj and the deal was straight way finalized with Hem Raj for a sum of Rs. 75,35,000/-. It was further stated that a false complaint has been got filed by one Randhir Singh and his family members, who has a water dispute with her.

The Collector gave a notice of this complaint, wherein complainant Birkha Singh and Randhir Singh gave their affidavits as Ex. PW-1/A and Ex. PW-2/A. Surender Kaur gave her affidavit as Ex. D-1, whereas Narayan Singh, Nambardar and Hem Raj, vendor, gave their affidavits as Ex. D-2 and Ex. D-3 respectively.

The Collector, after hearing learned counsel for the parties and going through the record, came to a conclusion that the complaint had been filed after two years from the date of registration of the sale deed. The complainant is father of Randhir Singh and if, there was any attempt to evade the stamp duty, he should have filed a complaint immediately. The complaint has placed on record photocopy of the agreement dated 07.03.2007 regarding land measuring 149 Kanals 10 Marlas, executed between Hem Raj son of Ditta Ram and Surender Singh son of Mota Singh. In the absence of original document, the photocopy could not be a conclusive proof that agreement to sell dated 07.03.2007 was executed between Hem Raj and Surender Singh. It was also concluded that a dispute with regard to water channel was pending between the parties. Ultimately, vide order dated 09.12.2009 passed by the District Revenue Officer-cum-Collector, the said complaint was filed.

Birkha Singh-respondent No. 4 went in appeal against the said order before the Commissioner, Hisar Division, Hisar. The Commissioner, Hisar, reversed the findings recorded with regard to the photostat copy of the agreement to sell dated 07.03.2007. Before the Commissioner, the Notary Public appeared, as a witness and tendered copy of the original register as Ex. P-3, from which, the agreement, arrived at between Surender Singh and Hem Raj, vendor, was fully proved. Moreover, as per the agreement, the sale deed was to be registered in favour of the person off choice of Surender Singh. He got the sale deed registered in favour of his wife Surender Kaur. Taking the above facts into consideration, vide order dated 20.07.2010 passed by the Commissioner, Hisar, the appeal was accepted and the matter was remanded back with a direction that both the parties would be given opportunity of hearing and the stamp duty was to be re-prescribed at the rate of Rs. 11 lac per acre. This order is under challenge in this petition.

Upon notice, written statement on behalf of respondent Nos. 1 to 3 has been filed, stating that pursuant to the order passed by the Commissioner on 20.07.2010 (Annexure P-2), Collector-respondent No. 3 in exercise of his suo moto power, had issued notice (Annexure R-2) to vendee Surender Kaur. The Commissioner, while hearing the appeal against the order passed by the Collector, has recorded a finding of fact that the agreement to sell dated 07.03.2007 had been duly proved, as Notary Public had appeared as a witness along with his register (Ex. P-3). Thus, the fact that on an earlier occasion, Hem Raj had entered into an agreement to sell with Surender Singh, was fully proved. As per the agreement to sell dated 07.03.2007, the rate agreed between the parties was Rs. 11 lac per acre and the total land being 145 Kanals 10 Marlas, the cost came to be Rs. 2,05,56,250/-. Thus, there was theft of stamp duty causing loss to the Government.

Heard, counsel for the parties.

The short point for consideration before this Court is, "whether, after registration of the sale deed dated 16.04.2007, a complaint could be entertained by the Collector by using sue moto powers u/s 47A(3) of the Indian Stamp Act."

On this question, reference can be made to the judgment passed by a Coordinate Bench of this Court in Harbans Singh and Another Vs. State of Punjab and Others, . In this case, after registration of the sale deed on 05.12.1983, notice had been issued by the Assistant Collector in the year 1987 for depositing deficient stamp duty. While examining the provisions of Sub Section 3 of Section 47-A of the Stamp Act, it was held that the Assistant Collector had no powers to issue notice after the document had been registered and no objection had been raised by the Sub Registrar. Section 47-A (3) of the Indian Stamp Act is reproduced as under:-

The Collector may, suo moto, or on the receipt of a reference from the Inspector General of Registration or Registrar of a District appointed under the Registration Act, 1908 (Central Act No. 16 of 1908), in whose jurisdiction the property or any portion thereof which is the subject matter of the instrument is situated or on the receipt of a report of audit by the Comptroller and Auditor General of India or by any other authority authorized by the State Government in this behalf or otherwise, within a period of three years from the date of the registration of an instrument, call for and examine any instrument for the purposes of satisfying himself as to the correctness of the value of the property or of the consideration disclosed and of all other facts and circumstances affecting the chargeability of the instrument or as to the true character and description thereof and the amount of the duty with which it was chargeable and if after such examination, he has reason to believe that proper duty has not been paid, he may after giving the person concerned reasonable opportunity of being heard and after holding an enquiry in the manner provided under sub-section (2), determine the value of the property or the consideration or the character or description of instrument and the duty with which it was chargeable and the deficient amount of duty, if any, would be payable by the person liable to pay duty.

As per the above Section, it is the Collector who can issue sue moto notice or on the receipt of report of audit by the Comptroller and Auditor General of India or by any other authority authorized by the State Government or otherwise, within a period of three years from the date of registration. Since the notice had been issued by the Assistant Collector and no procedure as contemplated under the Act was followed, the notice was quashed.

Similarly, in Parshotam Dass and others Vs. State of Punjab and others, CWP No. 17247 of 2009 (decided on 21.02.2012), a Coordinate Bench of this Court was examining a case, where after registration of the sale deed, the Collector had issued a notice on the basis of audit objection for reassessing the stamp duty. It was held that u/s 47-A (3) of the Indian Stamp Act, the Collector could exercise jurisdiction on an audit objection or suo moto. The notice could be issued within three years and the writ petition was dismissed.

In this case, the petitioner is seeking quashing of the proceedings, initiated by the Collector, on the ground that no notice was given to his wife Surender Kaur, in whose favour the sale deed had been executed. This is factually incorrect, as Surender Kaur was summoned by the Collector and she submitted her written statement through counsel, as is evident from the order dated 09.12.2009 (Annexure P-1). Moreover, while deciding the appeal (Annexure P-2), a finding has been recorded by the Commissioner, Hisar that as per earlier agreement to sell dated 07.03.2007, the sale deed was to be registered in favour of the person of the choice of Surender Singh (petitioner). Since the sale deed was registered in favour of Surender Kaur, she appeared before the Collector and submitted her written statement. So, there is no procedural irregularity in issuing notice u/s 47-A (3) of the Indian Stamp Act by the Collector by using his sue moto powers.

The argument of learned counsel for the petitioner that suo moto power could not be exercised by the Collector on the basis of a complaint made by one Birkha Singh-respondent No. 4, who was a witness to the sale deed, is liable to be rejected. As per Section 47-A(3) of the Indian Stamp Act, there is no bar to the Collector to issue suo moto notice within three years on a complaint made with regard to deficiency in the stamp duty. Moreover, pursuant to the order dated 20.07.2010 (Annexure P-2), notice has been issued to the vendee-Surender Kaur (Annexure R-2). Therefore, the notice had been issued by the Collector within three years by using his suo moto powers on a complaint made by Birkha Singh-respondent No. 4.

In the light of the above discussion, this Court is of the view that the impugned order dated 20.07.2010 (Annexure P-2) does not require any interference.

Dismissed.