@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashHeard the Learned Counsel for the Petitioner and the Learned Additional Government Pleader for the Respondents.
2. According to the Petitioner, he entered into an agreement of sale with one V.Chandran for purchasing the house with vacant site situated in T.S.No. 1445 Part, Block-II, Ward No. 14, Vinayagar Kovil Street, Palayamkottai, Tirunelveli, for consideration of Rs. 2,00,000/- and paid an advance of Rs. 1,75,000/- and also later paid Rs. 20,000/-. However, the said Chandran had not come forward to execute the sale deed. As such, he filed a Suit for specific performance against the said Chandran in O.S.No. 253 of 2012, on the file of the Learned Principal Sub Judge, Tirunelveli and the same was decreed on 05.02.2013. He also filed an Execution Petition and the trial Court was pleased to execute the sale deed on 11.04.2014 and the same was registered on 05.08.2014, under Document No. 3452/2014, before the Office of the 2nd Respondent.
3. It is the plea of the Petitioner that he had paid the stamp duty to an extent of Rs. 14,000/-, as per market value. In fact, the 2nd Respondent / Joint Sub Registrar No. 1, Palayamkottai, Tirunelveli after registration, referred the document in question to the 1st Respondent / Special Deputy Collector (Stamps), Kokkirakulam, Tirunelveli under Section 47(A)(1) of the Indian Stamp Act, 1899 for fixing the market value alleging that the value mentioned in the sale deed is below than that of the guideline value and retained the original sale deed, without any authority of Law. In this regard, he requested the 2nd Respondent to return his original sale deed. However he informed that the same would be returned only after completion of the Section 47(A)(1) of Indian Stamp Act proceedings. The 1st Respondent issued Notice under Section 47(A) of the Indian Stamp Act for an enquiry to be held on 29.09.2014. He attended the Office of the Respondent, but the enquiry was not conducted on account of other duty.
4. The grievance of the Petitioner is that there is no room for under valuation of market value, since he had shown the entire sale consideration in the sale agreement and the same was accepted by the competent civil Court and a decree for specific performance also passed and the sale deed itself executed by the competent civil Court. However, the 2nd Respondent, without even considering the nature of registration of sale deed as per the decree of the Court referred to it under Section 47(A) of the Indian Stamp Act, 1899. In this connection, the Learned Counsel for the Petitioner projects an argument that there is no reference by the 2nd Respondent about the evasion and under valuation of market value.
5. The Learned Counsel for the Petitioner seeks in aid of the decision of this Court in M.Krishnan v. the District Collector reported in (1988 (3) CTC 366), wherein it is held that whenever the document is registered, the Registering Authority should forthwith release the original document with an endorsement that reference under Section 47(A)(1) is pending in respect of the Document. The said Judgment was also confirmed by the Division Bench of this Court and there is no appeal against that Judgment.
6. The Learned Counsel for the Petitioner contends that the Inspector General of Registration had issued a Circular to all the Sub Registrars concerned to release the original documents in which, the proceedings under Section 47(A) of the Indian Stamp Act, 1899, is pending. Also that, the Petitioner had sent a representation, dated 25.08.2014, through Registered Post to the Respondents to return the original document. Inspite of the fact that the Respondents had received the said representation, they had not released the documents in question. As such, the Petitioner has filed the present Writ Petition.
7. At this stage, this Court aptly points out the decision of this Court in the
"If a authority registering such document has a reason to believe that market value of the property has not been truly set forth, he may after registering such document refer the same to the Collector ? Such registering authority is not vested with the power to demand payment of additional duty nor he has got any power to postpone the registration of the document ? His only authority / power is to make an endorsement on such registered document regarding valuation, refer the matter to the Collector for determination of proper stamp duty payable thereon and return the document to the person entitled to receive such document.
In the present case the registering authority has not followed the aforesaid procedure, which has been judicially recognized in a long series of decisions, and unnecessarily kept the document with himself without return the same to the writ petitioner.
Direction issued to the Registering Authority to return the document to the first respondent and if the authority has any reason to believe that the market value has not been properly reflected, it would be open for him to take action in accordance with law as contemplated under Section 47-A."
8. Also this Court aptly points out the decision of this Court in
"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 undervaluation, 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 undervaluation 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 undervaluation 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."
9. Furthermore, in the Order dated 02.06.2014 in W.P.No. 11013 of 2014 between J.Jayakrishnan v. The State of Tamil Nadu, whereby and where under, in paragraph 4, it is observed and laid down as follows:-
"4. It is settled proposition of law that once a document is registered, the registering authority has no power to withhold the same. This was the view taken by this Court in
(i) The Registering Authority/fourth respondent is directed to release the sale deed dated 15.02.2013 to the petitioner forthwith. While releasing the sale deed dated 15.02.2013 to the petitioner, the respondent shall make necessary endorsement on the original document to the effect that the proceedings under Section 47-A of the Indian Stamp Act are pending.
(ii) The Registering Authority/fourth respondent shall make necessary entries in the register maintained regarding the pendency of 47-A proceedings in respect of the document, which is the subject matter of registration, so as to reflect the same in the encumbrance certificate for the benefit of the purchasers.
(iii) Pending final decision, in respect of the valuation under Section 47-A(i), as per Section 47-A(4), there shall be a charge over the properties in favour of the Government in respect of the unpaid value of the stamp duty.
(iv) After the entire proceedings under Section 47-A are completed, the registering authority shall make necessary endorsement removing the earlier endorsement clearly stating that the entire amount of stamp duty under the document has been paid in full and return the same.
(v) After making such endorsement, the Registering Authority/fourth respondent shall also make necessary entry as to the completion of 47-A proceedings in the register maintained by them so as to reflect the same in the encumbrance certificate.
(vi) It is open to the fourth respondent to finalise the proceedings initiated under Section 47-A of the Indian Stamp Act as expeditiously as possible in accordance with law."
10. Furthermore, in
''If the registering authority still has reason to believe that the market value has not been truly set forth in the instrument, he has right to refer the instrument to the Collector under Section 47-A(1) of the Act, for determination of market value for the purpose of ascertaining the proper duty under the document ? It is incumbent on the part of the registering authority to give his reasons to arrive at such conclusion.
This procedure of conducting enquiry by the Collector as per the above said Rules is made applicable in respect of the powers of the Collector to conduct suo motu enquiry under Section 47A(3) of the Act.''
11. Added further, in
12. The Learned Counsel for the petitioner refers to the Division Bench Judgment of this Court, dated 15.04.2014 in W.A.No. 1966 to 1968 of 2013 between the Inspector General of Registration, Chennai-28 and 2 Others v. Sunpark Construction Private Ltd, whereby and whereunder in paragraphs 4 to 7 it is observed and held as follows:-
"4.This Court in similar matters passed orders directing release of the documents pending Section 47A enquiry with certain conditions. One such order has also been produced before this Court. The Learned Special Government Pleader appearing for the Respondent s has no objection for a similar order being passed in these three writ petitions also.
5. Accordingly, following the earlier orders, these three writ petitions are also disposed of with the same conditions:
(i) the Respondent s are directed to return the documents registered as Document Nos. 1386, 1385 and 1387 of 2013 respectively to the petitioner with an endorsement on the instrument to the effect that the proceedings under Section 47-A of the Act are pending, and the second Respondent shall return the documents to the petitioner within a period of three weeks from the date of receipt of a copy of this order;
(ii) the Respondent s shall make necessary entries in the Registers maintained by them to show that the property governed under the said documents are subject to the proceedings under Section 47-A of the Act, so as to be exposed in the encumbrance certificate for the notice of the purchasers;
(iii) after the proceedings under Section 47-A of the Act are completed, including the appeals which are contemplated under the Rules, within the prescribed time under law, if the petitioner pays the deficit stamp duty and presents the original documents before the second Respondent / registering authority, the Respondent s shall make an endorsement making it clear that the proceedings under Section 47-A of the Act are completed and in that event, the Respondent s shall also make necessary entries in the Registers, so as to expose the same in the encumbrance certificate; and
(iv) till the completion of the entire proceedings, as per Section 47-A(5) of the Act, there shall be a charge against the property, subject matter of the documents, relating to the deficit stamp duty payable by the petitioner.
(v) If the document is not retained for an enquiry under Section 47A enquiry, it shall not be returned/released.
4. At the stage of hearing of the Writ Appeals, it is represented on behalf of the Appellants that this Court by an order dated 23.10.2013, has passed the following interim order:
Heard the submissions of the Learned Special Government Pleader and the Learned counsel appearing for the Respondent .
The documents, which are the subject matter of these writ appeals are ordered to be returned to the respective Respondent s subject to the condition that charge is to be created and the return of the documents is also subject to the result of these writ appeals.
5. On going through the impugned common order of the Learned single Judge in W.P.Nos. 11177 to 11179 of 2013 dated 22.4.2013, we are of the categorical view that the said common order came to be passed because of the reason that the Learned Special Government Pleader appearing for the Respondent s therein had no objection for similar order (based on one such order produced in Court) being passed in three Writ Petitions.
6. In view of the fact that the Respondent has received the documents in question and also there being no infirmity or illegality in the common order dated 22.4.2013, passed by the Learned single Judge in W.P.Nos. 11177 to 11179 of 2013, this Court comes to an inevitable and resultant conclusion that nothing survives for adjudication in the present Writ Appeals and as such no further orders are necessary to be passed."
13. On a careful consideration of respective contentions and in view of the fact that the Petitioner had sent a representation dated 25.08.2014 addressed to the 2nd Respondent and also this Court, taking note of an entire attendant facts and circumstances of the present case, in a cumulative fashion, at this Stage, opines that once a document is registered, the Registering Authority has no power to withhold the same. As such, this Court, to prevent an aberration of justice and in furtherance of substantial cause of justice, directs the 2nd Respondent / the Joint Sub-Registrar No. 1 , Palayamkottai, Tirunelveli, to release the Sale Deed, dated 05.08.2014, to the Petitioner forthwith.
(i) At the time of releasing the Sale Deed, dated 05.08.2014, to the Petitioner, the 2nd Respondent is directed to make necessary endorsement on the original documents in question to the effect that the proceedings under Section 47(A) of the Indian Stamp Act, 1899 are contemplated or pending, as the case may be.
(ii) It is open to the Registering Authority/second Respondent to make necessary entries in the Register maintained in regard to the pendency of Section 47-A proceedings in respect of Sale Deed in question, which is subject-matter of Registration, with a view to reflect the same in the Encumbrance Certificate, for the benefit of the Purchasers.
(iii) Pending final decision, in respect of any valuation under Section 47(A)(i), as per Section 45(A) of the Indian Stamp Act, 1899, there shall be a charge over of the properties in favour of the Government in respect of the unpaid value of the Stamp Duty, if any.
(iv) Also that, after completion of whole proceedings under Section 47(A) of the Indian Stamp Act, the Registering Authority / the 2nd Respondent is to make necessary endorsement annulling / superseding the earlier endorsement by clearly mentioning that the full / entire sum of Stamp Duty under the Document was paid in full and return the same.
(v) Moreover, after making such endorsement, the 2nd Respondent / Registering Authority shall also make entries in regard to the completion of Section 47(A) proceedings in the Register maintained by them with a view to reflect the same in the Encumbrance Certificate.
(vi) In any event, the second Respondent is at liberty to finalise / complete the proceedings initiated under Section 47(A) of the Indian Stamp Act, as quickly as possible, of course, in the manner known to law and in accordance with law.
14. With the aforesaid directions, the Writ Petition stands disposed of. No costs.
