1. In W.P No. 22998 of 2001, the petitioner prays for the issue of a writ of certiorarified mandamus calling for the records relating to the proceedings in Tha.Ka No. 97 of 2000 dated 10.4.2000 and the consequential notice made in Rc.S.R.97 of 2001-A1 dated 24.9.2001 issued by the first respondent purported to be under Section 47 A (1) of the Indian Stamp Act and quash the same and direct the respondents to release the sale deed dated 10.2.2000 registered as document No. 262 of 2000 with the office of the 2nd respondent.
2. In W.P No. 8637 of 2002, the petitioner has prayed for the issue of a writ of mandamus directing the respondent to return the sale deed registered on 26.12.2001 as Document No. 2701 of 2001.
3. The points raised in both the writ petitions are identical. This Court ordered notice of motion in both the writ petitions on different dates and the respondents have been served. As identical writ petitions are being filed, this Court directed notice to the learned Advocate General. On notice from this Court, the learned Advocate General appeared. The learned Advocate General has also the necessary instructions in these cases as well, besides in other connected cases to appeal and make his submissions.
4. Heard Mr. G. Ethirajulu, learned counsel appearing for the petitioner in W.P No. 22998 of 2001 and Mr. R. Murugan, learned counsel appearing for the petitioner in W.P No. 8637 of 2002 and Mr. N.R Chandran, learned Advocate General appearing for the respondents in both the writ petitions.
5. The petitioner in W.P No. 22998 of 2001 entered into an agreement on 10.1.95 with C.T Kumudavalli, owner of the premises bearing Door No. 28, Govindu Street, T. Nagar, Chennai, for a consideration of Rs. 2,30,000. The said agreement was renewed on 27.3.95 As difference arose between the petitioner and the owner of the premises, the petitioner instituted C.S No. 979 of 1995 on the original side of this Court, which has since been transferred to the City Civil Court and renumbered as O.S No. 351 of 1996. Pending the suit, the owner Kumudavalli, entered into a compromise with the petitioner and agreed to execute the sale deed in terms of the sale agreement. The petitioner paid the balance of sale consideration. The owner executed the sale deed and presented it for registration with the 2nd respondent, the Registrar on 10.2.2000 The document has been registered as Document No. 262 of 2000.
6. According to the petitioner, after registration of the document, the petitioner was served with a notice in Form No. 1 by the first respondent, dated 10.4.2000 intimating that the 2nd respondent has referred the document under Section 47-A of the Indian Stamp Act for determination of the market value of the property. The petitioner was called upon to state his objections. The petitioner submitted his objections on 29.4.2000 and requested to drop the proceedings. The petitioner also furnished a copy of the decree passed by the City Civil Court in O.S No. 351 of 1996. The petitioner was once again called upon by the first respondent to appear for enquiry on 15.10.2000 and the petitioner requested the first respondent to release the original sale deed immediately. The original sale deed has not been released.
7. According to the petitioner, the 2nd respondent has no jurisdiction or authority to make a reference under Section 47-A(1) of The Indian Stamp Act and at any rate there is no jurisdiction or justification after completion of the registration to retain the sale deed without releasing the same. After registration, according to the petitioner, the 2nd respondent has no jurisdiction to refer the matter to the first respondent. The learned counsel for the petitioner heavily relied upon the judgment of this Court in support of his contention that when once the instrument has been registered, thereafter it is not open to the 2nd respondent to make a reference and retain the original instrument. In other words, when registration has been completed, it is not open to the Registrar to make a reference in terms of Section 47-A(1) of The Indian Stamp Act as amended.
8. Identical contentions are advanced in W.P No. 8637 of 2002. Excepting there is some difference in the factual aspect of the matter, the contentions advanced are identical.
9. According to the learned counsel appearing for the respective petitioners, the point raised in these writ petitions is covered by the judgment of this Court in M. Ponnusamy & 42 Others v. District Collector, Erode & Others, 1999 (2) LW 231, which judgment of this Court has been confirmed by the Division Bench in The District Collector, Erode District v. M. Ponnusamy, 2001 (2) CTC 449: 2001 (2) MLJ 458, as well as an earlier Division Bench in S.P Padmavathi v. State of Tamil Nadu, 1997 (2) CTC 617: AIR 1997 Mad 296.
10. The learned Advocate General, while fairly admitting that the above pronouncements squarely applies to the facts of the present case, expressed his anxiety that when the original sale deeds are to be released as prayed for by the petitioner, then the State's interest to recover deficit stamp duty will suffer and by such a direction let not the revenue due to the State by way of Stamp Duty be allowed to be defeated or jeopardised. Hence, the learned Advocate General persuaded this Court to issue appropriate directions so that neither the interest of the individual transferees nor the State suffers.
11. In M. Ponnusamy & 42 Others v. The District Collector, Erode & Others, 1999 (2) LW 231, after analysing the statutory provisions of The Indian Stamp Act as well as The Registration Act, and in particular to Section 47-A introduced by the State Legislature, this Court held thus :-
“51) What is required under Sub-Section (1) of Section 47-A of the Indian Stamp Act is that the Registering Authority had come to a conclusion before registration that the market value of the property, dealt under the instrument of conveyance or release, has been under-valued and he should have entertained reasonable belief in this respect and also, he should have recorded such a reason. Immediately after recording such reason, he has to complete the registration and thereafter refer the instruments to the Collector in terms of Sub-Section (1) of Section 47-A of the Indian Stamp Act. Only in respect of the instruments which have not been referred to for adjudication to the Collector under Sub-Section (1) of Section 47-A of the said Act, the Collector could exercise or invoke suo motu powers conferred on him under Sub-Section (3) of Section 47-A and had a reference been made under Section 47-A (1) of the said Act it, would have been answered either way by the Collector, then it is obvious that the Collector cannot exercise suo motu powers in terms of Sub-Section (3) of Section 47-A of the said Act.
52) The suo motu powers under sub section (3) of Section 47 of the said Act could be exercised only in respect of those instruments, with respect to which no reference has been made by the Registering Authority in terms of Sub section (1) of Section 47-A of the said Act and such suo motu powers have to be exercised within two years from the date of registration of the documents.
53) Section 47-A(1) of The Indian Stamp Act is a special provision, which enables the Collector to exercise suo motu powers within two years from the date of registration of instruments of conveyance, etc., and with respect to which no reference has been made under Sub section (1) of Section 47-A of the said Act or omitted to be made. Such suo motu auction has to be taken within two years by the Collector, otherwise, his action will be without jurisdiction.
54) It is to be pointed out that the Collector has no powers nor he could exercise suo motu powers beyond two years from the date of registration of instruments of conveyance or release under sub section (3) of Section 47-A of the said Act. That being the statutory provision,1 it cannot be contended that without any time limit, the Registering Authority could make a reference to the Collector in terms of Sub-Section (1) of Section 47-A.
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63) This statutory Rule enables the Registering Officer to hold an enquiry to find out whether the market value has been correctly furnished in the instrument by holding such enquiry. Such enquiry, as prescribed in the Rule, has to be completed before registering the document, as is evident from conjoint reading of Section 47-A of the said Act read with Rule 3 of the said Rules. Therefore, it is evident that when a document had been registered, the Registering Officer i deemed to have conducted an enquiry and satisfied himself with respect to the market value furnished in the instrument and only after such satisfaction, the instrument had been registered.
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71) The retention of the original document after completion of registration of the instrument is not provided for either in the Indian Stamp Act or in the Registration Act or in the Rules framed thereunder with respect to those instruments, where a reference under Section 47-A of the Indian Stamp Act read with Tamil Nadu Stamp (Prevention of Under-Valuation of Instruments) Rules had been made or is being made.
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73) The Registering Authority did not entertain any doubt, nor he had any reason to believe that the market value of the property had not been set out truly. Having completed registration, as an after thought, it is not open to the Registering Authority to refer the matter to the Collector in terms of Section 47-A of the Indian Stamp Act and at any rate after two years.
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82) In the light of the said Division Bench pronouncement, the Registering Authority has no jurisdiction to go into the market value as disclosed in the instrument and if he had reasons to believe that true market value had not been disclosed in the instrument, he has to record reasons and make a reference to the collector after completing the registration.
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91) As the instruments have been registered without any reservation by the Registering Authority and as the Registering Authority had not entertained any reasonable belief with respect to the valuation of the property dealt under the instruments in question, as prescribed by Sub section (1) of Section 47-A before completing the registration, there cannot be a subsequent reference, much less after two years from the date of completion of registration. This court hastens to add that a reference should be made immediately after registration or so sooner the registration is completed and at any rate within three weeks from the date of completion of registration of document to refer the instrument to the Collector under sub section (1) of Sec. 47-A of the said Act, besides sending a communication to the person, who is liable to pay the stamp duty on the instrument in question.
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94) In the circumstances, this court holds that the reference made by the Registering Officer to the Collector under Section 47-A is arbitrary, as found under the statutory provisions and without jurisdiction. Hence it is accordingly quashed.
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96) Whenever a document is registered and referred to the Collector under Section 47-A of the Indian Stamp Act read with Tamil Nadu Stamp (Prevention of Under-Valuation of Instruments) Rules in the absence of statutory Rules, the Registering Authority shall forthwith release the original documents with an endorsement that a reference under Section 47-A is pending in respect of the said instruments.
97) At the time of release of original documents, the Registering Authority shall intimate the parties to the instruments that a reference is being made under Section 47-A of the Indian Stamp Act read with Tamil Nadu Stamp (Prevention of Under-Valuation of Instruments) Rules.”
12. The said view of this Court has been affirmed by the Division Bench in The District Collector, Erode District v. M. Ponnusamy, 2001 (2) CTC 449: 2001 (2) MLJ 458, wherein it has been held thus :-
“27) On the question of limitation, the learned Judge has taken the view that Sub-sec. (1) of Sec. 47-A as well as Sub-sec. (3) of Sec. 47-A of the Stamp Act applied to different contingencies which cannot be read conjointly nor it could be held that the Registering Authority could make a reference under Sub-sec. (1) of Section 47-A of the Act without any time-limit nor the contention that the reference under Sub-sec.(1) of Section 47-A of the said Act is not controlled by limitation of two years prescribed under Sub-sec. (3) of Section 47-A of the said Act is acceptable. The learned Judge held that the Registering Authority has not entertained any reasonable belief with respect to valuation of the property as prescribed by Sub-sec. (1) of Sec. 47-A and held that before completing the registration, there cannot be a subsequent reference, much less after two years from the date of completion of the registration. While assailing this view of the learned Judge, it is submitted that the Section does not contemplate any time limit and, therefore, a reference can be made at any time. We are unable to countenance such a stand. In the absence of any time limit provided for under Sec. 47-A(1) and in the light of the analysis of the process involved in reference to Sub-sec. (1) of Sec. 47-A of the Act, there is no scope for holding that reference can be made at any point of time.
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32) As rightly pointed out and which we are in full agreement, the parties to an instrument, for various reasons, will always be anxious to get the document registered at the earliest point of time and get the document released. The parties may be in direct need, for completion of the registration process as early as possible for so many reasons like financial, health, family and other innumerable circumstances. They would always like to expedite the process of registration in order to avoid complications or litigations or things like that. It is rarely in few cases that the execution is done in a leisurely manner without any urgency whatsoever. Taking advantage of this plight of the parties and the varying factors in reference to the market value and the expression being so uncertain or vague or indefinite, it is not uncommon that the registration is delayed or even if it is registered, documents are retained. There are no guidelines set out to enforce uniformity or to avoid arbitrariness in the exercise of power. Citizens are left with no time or energy to take up their cause in higher forums and courts. This is taken advantage of. This case illustrates the point how a document which has been registered without any whisper whatsoever on the market value, has been retained for more than two years without being returned or referred to the Collector. In our view this case highlights as to how arbitrariness is writ large and how it can work as an engine of oppression against the parties. For all the above reasons, we have no hesitation whatsoever in approving the view of the learned Judge that the document should be returned sooner its registration is complete, at any rate within three weeks from the date of completion of registration of the document or it must be referred within a period of three weeks to the Collector under Sub-sec.(1) of Sec. 47-A of the Act.”
13. In the light of the said provisions, the learned Advocate General had to necessarily admit that the respondents have no authority or jurisdiction to retain the documents once it has been registered. Even assuming that there is scope for reference in respect of alleged under-valuation, the registering authority has no authority to retain the documents and this is also clear from the provisions of Sections 52, 59 and 60 of The Indian Registration Act.
14. In the circumstances, while following the above pronouncements, these two writ petitions are allowed. Accordingly, there will be a direction to the Registering Authority, namely, the 2nd respondent in W.P No. 22998 of 2001 and the sole respondent in W.P No. 8637 of 2002, to return the original sale deed as registered with necessary endorsements within ten days from the date of communication of this order or a production of a copy of the same by the respective petitioner.
15. While appreciating the anxiety expressed on behalf of the State by the learned Advocate General, this Court directs that :-
“i) It is open to the Registering Authority to affix a seal, while releasing the original deed or conveyance or any other document indicating that a reference is pending under Section 47-A with respect to under-valuation and assessment of Stamp Duty payable, as and when the proceedings reach finality, the same shall be intimated to the person who is liable to pay stamp duty demanding payment of deficit Stamp Duty payable on the instrument.
ii) The Registrar to make corresponding entries under Sections 54,55 of The Registration Act, 1908, in the Register of indexes as to pendency of proceedings under Section 47-A.
iii) On completion of adjudication as to the under-valuation by the competent authority as well as appeal or revision, if any, thereof, and depending upon the ultimate decision, the said authorities to recover deficit stamp duty according to law.
iv) Till such proceeding reaches finality and deficit is paid, there will be a charge for the deficit stamp duty, which is the subject matter of transfer or conveyance.
v) On payment of deficit stamp duty, if any payable, the Registrar may once again, on production of the original deed of transfer, make appropriate entry and recording the additional stamp duty paid and release of charge and also make consequential entries in the registers/indexes maintained under Sections 54, 55, etc., of The Registration Act.”
16. Before parting with the case, with heavy heart, this Court has to point out that neither the State Government nor the Chief Controlling Authority had intimated about the law laid down by the Division Bench of this Court and the Registrars have been flouting the dicta laid down by this Court with impunity. Such violations are per se contemptuous. This Court pointed out this to the learned Advocate General, who in turn relied upon certain circulars issued, but they are not towards compliance with pronouncements and in conformity with the judgment of the Division Bench. However, this Court takes a lenient view in this respect, in view of the fair stand taken and explanation offered by the learned Advocate General.
17. This Court directs that the Inspector General of Registration shall issue a circular setting out the directions issued by this Court to all the Registrars in the State and procedure to be followed by drawing their attention to the law laid down by the above pronouncements and that any infraction by any of the Registrars will be viewed seriously.
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