WA/1202/2006 of Kotta Narayana Murthy, Vs The Sub-Registrar, Jaggampeta, on 26 December 2006

Conclusion

: ORDER :

Per C.V.Nagarjuna Reddy, J

This appeal is directed against order dated 26-10-2006 passed bythe learned Single Judge, whereby he summarily dismissed the writpetition filed by the appellant for quashing order dated 28-09-2004 passed by District Registrar-cum-Collector, Kakinada underArticle 49-A (b) of the Indian Stamp Act, 1899 (for short, ‘the Act’).

The case of the appellant as reflected from the averments containedin the affidavit filed in support of the writ petition is that he along with hiselder son’s wife, her three daughters and his second son constituted aHindu Joint Family. After the death of the appellant’s father, who is said tohave died intestate, the appellant and others submitted a partition deedbefore Sub-Registrar, Jaggampeta, East Godavari District on 07-02-2004for registration. The latter determined the stamp duty at Rs.57,030/- whichwas duly paid. After about three months, the 2[nd] respondent issued noticedated 15-05-2004 to the appellant indicating therein that the partition deedpresented by the appellant and five others was chargeable with stampduty of Rs.6,95,100/- under Article 49-A (b) of Schedule I – A of the Act. Simultaneously, the 2[nd] respondent impounded the document and calledupon the appellant and others to represent their cause against theproposed recovery of the deficit stamp duty and penalty under Section 40of the Act. In the reply filed by him, the appellant submitted that thepartition deed presented for registration was executed among the familymembers, namely, father, son and the wife of the deceased and hischildren and that such a document is chargeable under Article 40 ofSchedule-I (A) with the same duty as Bottomry Bond No.14 for the amountor the market value of the separated share or shares of the property. It was further mentioned that as per Article 14 of the same Act, the stampduty payable is 3% only. After considering the reply of the appellant, the2[nd] respondent passed order dated 28-09-2004, whereby he called uponthe appellant to pay the deficit stamp duty of Rs.6,38,070/- with a penaltyof Rs.5/- within 30 days from the date of receipt of the order.

The appellant challenged the aforementioned order of the 2[nd]respondent in Writ Petition No.21701 of 2006, which was dismissed bythe learned Single Judge on the ground of laches and availability of thealternative remedy of appeal. The learned Single Judge gave liberty tothe appellant to avail the remedy of appeal and also file an application forcondonation of delay.

Since one of the grounds for dismissing the writ petition was delayin its filing, when the writ appeal was first taken up for admission andhearing on 15.11.2006, we called upon the appellant to file an additionalaffidavit and produce medical evidence in support of his plea of illness, asthe affidavit filed by him in the writ petition contained a very vagueassertion relating to his illness which allegedly was the reason for thedelay of two years in filing the writ petition. Accordingly the appellant fileda detailed affidavit wherein it is mentioned that he was affected withparalysis stroke in the month of May 2004 and that he is taking treatmentfrom Dr.M.Narsimha Murthy, B.Sc., M.B.B.S., at Jaggampet. Theappellant also filed a medical certificate dated 20.11.2006 and variousmedical prescriptions, from a perusal of which we are satisfied that theappellant had been suffering from paralysis and on account of the samehe was unable to file the writ petition earlier.

We have heard Sri A.K.Kishore Reddy, learned counsel for theappellant and the learned Government Pleader for Revenue on the issueof alternative remedy.

Arguments

Learned counsel for the appellant contended that the orderimpugned in the writ petition was passed by the second respondent under Section 40 of the Act and, therefore, the remedy of appeal provided underSection 47-A (4) and (5) of the Act is not available to him.

Learned Government Pleader supported the order under challengeand argued that the remedy of appeal is available to the appellant.

We have thoughtfully considered the respective submissions. Forproper appreciation of the rival contentions, it will be appropriate to noticethe relevant provisions of the Act. Section 33 of the Act lays down that ifany instrument is produced before a person having authority to receiveevidence or a person in charge of a public office, except an officer ofpolice, and if he finds that such an instrument which is chargeable withduty is not duly stamped, he can impound the same. Under Section 38 ofthe Act, the person impounding an instrument shall send to the Collectoran authenticated copy of such instrument together with a certificate inwriting, stating the amount of duty and penalty levied in respect there ofand shall send such amount to the Collector or to such person as he mayappoint in this behalf. Under Section 40 of the Act when the Collectorimpounds any instrument under Section 33 or receives any instrumentsent to him under Section 38(2) of the Act and if he is of the opinion thatsuch instrument is duly stamped or is not chargeable with duty, he shallcertify by an endorsement thereon that it is duly stamped or that it is not sochargeable as the case may be. However if he is of the opinion that suchinstrument is chargeable with duty and is not duly stamped, he shallrequire the payment of the proper duty or the amount required to make upthe same together with a penalty of Rs.5/-, or, if he thinks fit, an amountnot exceeding ten times the amount of the proper duty or of the deficientportion there of where such amount exceeds or falls short of Rs.5/-. Section 47-A of the Act lays down that where the Registering Officer hasreason to believe that the market value of the property which is the subjectmatter of the instrument presented for registration has not been truly setforth in the instrument or that the value arrived at by him as per guidelinesprepared or caused to be prepared by the government from time to time

had not been adopted by the parties, he may keep pending suchinstrument and refer the matter to the Collector for determination of themarket value of the property and the proper duty payable thereof. Provisoto section 47-A(1) envisages that such a reference shall not be made bythe Registering Officer unless an amount equal to 50% of the deficit dutyarrived at by him is deposited by the party concerned. Section 47-A(2)provides that on receipt of reference by the Registering Officer under Sub-Section (1) the Collector, shall, after giving the parties an opportunity ofmaking the representation and after holding the enquiry determine themarket value of the property which is subject matter of such instrumentand the duty. Under Sub-Section (3) the Collector may suo motu withintwo years from the date of registration of an instrument not alreadyreferred to him under Sub-Section (1) call for and examine the instrumentfor the purpose of satisfying himself as to the correctness of the marketvalue of the property which is subject of such instrument and the dutypayable thereon and if he has reason to believe that the market value ofsuch property has not been truly set forth in the instrument he maydetermine the market value of such property and the duty in accordancewith the procedure under Sub-Section (2). The difference if any, in theamount of duty shall be payable by the person liable to pay the duty. Sub-Section (4) provides that if any person is aggrieved by an order of theCollector under Sub-Section (2) or Sub-Section (3), he may appeal to theappellate authority specified in Sub-Section (5). Sub-Section (5)prescribes the fora for filing the appeals.

From the provisions mentioned above, it is clear that an instrumentcan be referred to the Collector under two different set of circumstances. One set of circumstances is traceable to the provisions of Section 33,Section 38 and Section 40 of the Act where an instrument is found notduly stamped. In this category, the Registering Authority himselfimpounds the documents and forwards the same to the Collector for an order to be passed under Section 40 of the Act. In the other set ofcircumstances reference is made to the Collector under Section 47-A (2)or the Collector himself may suo motu take action under Section 47-A(3)of the Act. It is only in respect of an order passed under the latter categoryof cases, i.e., the cases falling under section 47-A that an appeal isprovided. It is apt to extract Section 47-A(4) of the Act in this context.

“ (4) Any person aggrieved by an order of the Collectorunder sub-section (2) or sub-section (3) may appeal to theappellate authority specified in sub-section (5). All such appealsshall be preferred within such time and shall be heard anddisposed of in such manner, as may be prescribed by rulesmade therein.”

It is thus clear that an order passed under Section 47-A(2) or (3) ofthe Act is amenable to the remedy of appeal under sub-section (4), but nosuch remedy is provided against an order passed under any otherprovision of the Act including Section 40 of the Act.

Conclusion

From a perusal of the contents of the show cause notice dated15.5.2004 and the order dated 28.9.2004 impugned in the writ petition, itis evident that the second respondent was of the view that the documentpresented for registration is not duly stamped, i.e., there is a deficit in thepayment of stamp duty. It is therefore not a case of improper calculation ofthe market value falling under Section 47-A of the Act. In order to befurther satisfied in this regard, we have summoned the original record andthe learned Government Pleader placed the record before us. We havenoticed from the record that the first respondent after consulting thesecond respondent, impounded the document in question under section33 of the Act and has forwarded the same to the second respondent forfinal adjudication. Accordingly, the second respondent issued showcause notice dated 15.5.2004 under Section 40 of the Act. After receivingthe explanation from the appellant, he passed the final orders which arequestioned in the writ petition.

From the facts narrated above and the material on record we aresatisfied that the order dated 28.9.2004 of the second respondent waspassed under Section 40 of the Act and not under Section 47-A of theAct. Hence, the remedy of appeal provided under Section 47-A (4) and(5) of the Act is not available to the appellant in order to challenge the saidorder in appeal. In the absence of any alternative remedy, the petitioner isentitled to question the correctness or otherwise of the order of the secondrespondent by way of writ petition.

For the reasons mentioned above, the appeal is allowed. The orderof the learned Single Judge is set aside. The writ petition is admitted forhearing.

As a sequel to disposal of the writ appeal, W.A.M.P.No.2495 of2006 is disposed of as infructuous.

C.V.NAGARJUNA REDDY, J

26[th] December, 2006

mdaa

G.S.SINGHVI, CJ