Pankaj Kumar Vatsa v. The State Of Bihar

Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 3 name. It is stated that the mother of the petitioner also died on

17.11.1999 and the petitioner approached the authorities who ultimately received the application of the petitioner for mutation of his name on 8.7.2005 and by order dated 3.6.2009 of the Municipal Commissioner, Gaya Municipal Corporation, transfer of ownership of the plot in question in the name of the petitioner was communicated as having been accepted by the Resolution No.19/2006 dated 15.12.2006 of the Standing Committee. By another letter dated 9.12.2009 of the Municipal Commissioner, Gaya Municipal Corporation, the petitioner was informed that the orders have been obtained for the Registration of the allotted land and it was directed to submit stamp papers for sale amount of Rs.15,600/- so that the registration could be done. The petitioner deposited the requisite stamp paper and thereupon the document was presented for registration on 4.2.2010 which was registered on 16.3.2010. After registration, the District Sub- Registrar, Gaya referred the matter to the Inspector of Registration Office for recovery of Rs.81,500/- as deficit stamp under Section 47-A of the Indian Stamp Act. By order dated 6.5.2011, the Inspector of Registration Office held that since the matter related to allotment dated 23.11.1971 which was prior to the enforcement of Section 47-A of the Indian Stamp Act, i.e., 21.3.1990, and thus Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 4 the said provision was not applicable in the case of the document presented by the petitioner. Aggrieved by the same, the District Sub-Registrar filed an application before the Commissioner, Magadh Division, Gaya. By the impugned order dated 3.5.2012, the Commissioner held that the case of the petitioner was not covered by the proviso to Section 47-A of the Act and, therefore, the instant rate would be applicable in the matter. The petitioner being aggrieved by the same has come to this Court. Learned counsel for the petitioner submits that the allotment of the land having been made in the year 1971 on the basis of an open bid by a governmental organization, the registration of the document can only be made on the said amount and no higher amount can be fixed for the said purpose. It is further submitted by learned counsel for the petitioner that the petitioner cannot be permitted to suffer in the matter on account of delay of the governmental authorities in registering the deed and thus the petitioner cannot be directed to pay the stamp duty at the current stamp rate. In support of the aforesaid stand, learned counsel relies upon a decision of the Apex Court in the case of Residents Welfare Association, Noida vs. State of Uttar Pradesh and others.: Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 5 (2009) 14 SCC 716, in paragraph No.19 of which it has been held as follows:- “19. From a bare perusal of sub-section (1) of Section 47-A of the Act, it is clear that if the market value of any property, which is the subject- matter of an instrument on which stamp duty is chargeable, as set forth in the instrument, is less than even the minimum value determined in accordance with the Rules made under this Act, the registering officer shall request the person to pay the deficit stamp duty and present the instrument again for registration. At the same time, it should be kept in mind that it is not enough for the authorities for the purpose of invoking Section 47-A consideration amount stated in the instrument of sale is less than the prevailing market value but they must satisfied attempt of undervaluation.” Paragraph No.52 of the said decision is also quoted below for proper appreciation of the same:- “52. Since the stamp duty is to be charged on the consideration mentioned in the document under Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 6 Article 63 of Schedule 1-B of the Act in case of an assignment of lease, the consideration mentioned on the document was adequate in respect of the time when the agreement of the transfer by way of lease was registered. It would be a different question that when the said deed is to be executed, the value of the said property has increased with the passage of time. The execution of the deed had not been delayed due to any fault on the part of the appellant and therefore he cannot be held liable for intentionally suppressing the value of the property. Moreover, as we have noticed, the appellant did not make any undue delay in executing the deed after the Noida authorities issued the transfer memorandums.” Another decision relied upon by learned counsel for the petitioner is in the case of V.N. Devadoss vs. Chief Revenue Control Officer-cum-Inspector and others: 2009 (7) SCC 438, Paragraph Nos. 13 and 18 of which it has been held as follows:- “13. Sub-sections (1) and (3) of Section 47-A clearly reveal the intention of the legislature that there must be a reason to believe that the market value of the property which is the subject-matter of Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 7 the conveyance has not been truly set out in the instrument. It is not a routine procedure to be followed in respect of each and every document of conveyance presented for registration without any evidence to show lack of bona fides of the parties to the document by attempting fraudulently undervalue the subject of conveyance with a view to evade payment of proper stamp duty and thereby cause loss to the revenue. Therefore, the basis for exercise of power under Section 47-A of the Act is willful undervaluation of the subject of transfer with fraudulent intention to evade payment of proper stamp duty.” “18. On the facts of the case it cannot be said that Section 47-A has any application because there is no scope for entertaining a doubt that there was any undervaluation. That being so, the High Court’s order is clearly unsustainable and is set aside. The registration shall be done at the price disclosed in the document of conveyance. There is no scope for exercising power under Section 47-A of the Act as there is no basis for even entertaining a belief that the Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 8 market value of the property which is the subject- matter of conveyance has not been true set forth with a view to fraudulently evade payment of proper stamp duty.” Learned counsel also relies upon a decision of a Division bench of this Court in the case of Brij Nandan Singh vs. The State of Bihar and others: 2006 (3) PLJR 538, in paragraph Nos. 10 and 11 of which it has been held as follows:- “10. There is yet another aspect of the matter. The material before us do not give any indication that the registering authority is of the view that the market value of the property as disclosed in the agreement for sale, had not been rightly set forth with a view to evade appropriate stamp duty, in which case the position may have been different. The materials before us clearly suggest that they are of the view that the stamp duty has to be paid on the valuation of the property on the date the deed of conveyance was presented for registration, i.e., on 2.11.2004. This is one further ground which renders the impugned notice bad in law.” “11. For the reasons stated above, we agree Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 9 with the statement of law summarized in paragraph 19 of the judgment in Shanti Devi Prasad (supra) and is reproduced herein below for ready reference:- “19. As stated above, power under Section 47A of the Act can be exercised when the Registering Officer has reasons to believe that the market value of the property, which the subject matter of conveyance, has not been rightly set forth with a view to fraudulently evade payment of the proper stamp duty. Mere lapse of time between the date of agreement and the execution of document will not be the determining factor that the document is under valued and such circumstances by itself is not sufficient to invoke the power under Section 47A of the Act unless there is lack of bona fide and fraudulent attempt on the part of the parties to the document to undervalue the subject of transfer with a view to evade payment of proper stamp duty.” Learned counsel lastly relies upon a decision of a learned single Judge of this Court in the case of Baidya Nath Prasad Singh vs. State of Bihar and others: 2007 (3) PLJR 393, paragraph No.6 of which is quoted below:- Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 10 “6. Having considered the matter, I am of opinion that the rights of parties crystallized in the year 1980-81 and the delay, if any, was because of official procedure. Petitioner had nothing to do with it. The matter was subjudiced before one Court or the other ending with the judgment of the Hon’ble Supreme Court in the year 2004 in favour of the petitioner. The right to get the document registered was vested in the petitioner in the year, 1980-81 and he exercised that option but it was delayed for other considerations. Once an order favourable to him was passed it automatically relates back to the date when the right was crystallized which, as indicated above, was prior to the amendment of the Stamp Act. That being so for the purposes of valuation, the statutory provisions as indicated above, was prior to the amendment of the Stamp Act. That being so for the purposes of valuation, the statutory provisions as standing on the day when the right had crystallized would be taken into account and not the provisions or the value thereafter. Moreover, it cannot be lost sight Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 11 of that the decree of the competent court is to convey the land on the same terms and conditions as in the original deed. The effect in law is that the original sale deed as between the vendor and the vendee would stand substituted by sale deed as between the vendor and the pre-emptor and apart from substitution of names, there would be no material change. Thus, for the purposes of valuation of the stamp duty, the value as on the date of transaction as ordered by the Court would be taken into account. In taking this view, I am fortified by a judgment of this Court in the case of Baiju Singh vs. State of Bihar & others, 2004 (2) PLJR 743 wherein under similar circumstances, this Court held that the right having accrued prior to 1988 amendment the valuation would be as per the law and the facts emanating on the day right has accrued. That was a case of specific performance of a contract.” Learned counsel for the State, on the other hand, refers to various paragraphs of the counter affidavit stating that the order of the Commissioner is in accordance with law and is not fit to be Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 12 interfered with. It is submitted by him that the property itself is situated on a residential branch road of Gewal Bigha, Bathan, Devi Sthan, for which the circle rate has been fixed by the Collector in terms of the provisions of the Stamp Act and Rules at Rs. 1,60,000/- per decimal and by no stretch of imagination the value can be fixed at Rs.15,600/- for 6.45 decimals of land. It is further submitted that under the provisions of the Stamp Act, the Registry is entitled to realize the requisite stamp according to the present market value when the sale deed is presented for its registration. It is further submitted that Annexure-5, letter dated

22.3.1972 does not appear to be authentic and is a doubtful document as no receiving has been shown by any person and was not even produced before the Court below and for the first time the petitioner has produced the same before this Court. I have considered the rival submissions of learned counsels for the parties. So far as the materials on the record are concerned, no reliance can be placed on Annexure-5, the letter dated 22.3.1972 which ought to have been produced before the Commissioner as the Appellate Authority which is the last court of fact to consider any such document. Moreover, as pointed out above, apart from Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 13 the said document no document showing receiving of any official of the then Gaya Regional Development Authority has been produced. The date given at the bottom of the said letter is clearly in different ink, and therefore, for the said reason also, the said document is not fit to be relied upon. So far as the letter dated 15.6.1999 written by the mother of the petitioner is concerned, the same was primarily for transfer of the property in her name and the reference to registration was secondary. The petitioner himself admittedly has filed his application on 8.7.2005, although he claims to have been approaching the authority earlier also. Thus, no cogent evidence is on the record that efforts were made by the petitioner or his predecessors-in-interest to get the sale deed executed by insisting on the same before the authorities or in case of their refusal or inaction approaching the proper forum/courts for a direction in that regard. It is evident that the stamp for the registration had to be supplied by the petitioner/his predecessor-in-interest and the same has been supplied only after the letter dated 9.12.2009 sent by the Gaya Municipal Corporation. So far as the applicable provisions are concerned, Section 47-A (5) of the Act clearly states that for the purpose of the Act, market value of any property shall be estimated to be the price Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 14 which, in the opinion of the Collector or the appellate authority, as the case may be, would have fetched or would fetch, if sold, in the open market on the date of execution of the instrument of conveyance, exchange, gift, partition or settlement. Evidently, the date of execution admittedly mentioned in the sale deed as per the sale deed is dated 4.2.2010. Thus, in terms of the said provision, the market value of the property on the said date is to be taken into consideration. So far as the reliance placed by the petitioner on the decisions in the aforesaid cases is concerned, none of those cases applies to the case of the petitioner. The case of Residents Welfare Association Noida (supra) was essentially a case of assignment by the Residents Welfare Association as a lease hold to its members. What has been laid down therein is that the authorities have to see not only that the consideration amount stated in the instrument of sale is less than the prevailing market value but they must be satisfied that there is an attempt at undervaluation. It was further held in the said decision that the execution of the deed had not been delayed due to any fault on the part of the appellant and therefore he cannot be held liable for intentionally suppressing the value of the property. Such is not the position in the present matter. Here there is nothing on the record to show that the Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 15 petitioner had taken any effective steps for registration of the property which could not be done only due to the laches on the part of the other parties. Thus, the valuation to be shown in the sale deed ought to have been the valuation of the property on the date when it was presented which is apparently not shown rather the valuation of the year 1971 has been shown on the sale deed. Thus, there is definitely under-valuation of the property as per the requirement of Section 47A of the Act. The decision in the case of V.N. Devadoss (supra) also lays down similar proposition as there was a clear finding in that case that there was no under valuation of the market value of the property with a view to fraudulently evade payment of proper stamp duty. The Division Bench decision of this Court in the case of Brij Nandan Singh (supra) also is of no avail to the petitioner as that was a case where the execution was delayed on account of the petitioner having approached the Court for getting an order of specific performance of agreement which was ultimately allowed and accordingly, the Court held that there was no attempt to undervalue the market valuation of the property. Similarly, the decision in the case of Baidya Nath Prasad Singh does not apply to the present matter as the same related to Patna High Court CWJC No.13788 of 2012 (4) dt.27-08-2013 16 pre-emption under the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 and this Court clearly held that any order of the Court permitting the pre-emption relates back to the date of the original sale deed. Thus, in the light of the aforesaid discussions, I do not find any reason to interfere with the order dated 16.5.2011 passed by the Divisional Commissioner, Magadh Division, Gaya. The writ application is devoid of merit and it is, accordingly, dismissed. V.P.Sinha/- (Ramesh Kumar Datta, J)