Haji Yunus vs State Of U.P. And Others
2012 Latest Caselaw 2372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - C No. - 28337 of 2012
 

 
Petitioner :- Haji Yunus
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Santosh Kumar Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Ran Vijai Singh,J.

Heard Sri Santosh Kumar Singh, learned counsel for the petitioner and learned Standing Counsel.

It appears, in a proceeding under section 34 of U.P. Land Revenue Act, 1901(hereinafter referred to as, 'the Act') for recording the name in revenue record, on the basis of registered sale deed in favour of the applicant, an application was filed by the present petitioner to decide the question of stamp duty and then proceed  with to decide the application under section 34 of the Act. The objection, which was raised, was to the effect that  proper stamp duty was not paid, therefore, the said document / deed could not be treated to be a valid deed on account of which name can be recorded in revenue record.  The application of the petitioner has been rejected by the Tehsildar (Judicial), Sadar District Muzaffarnagar, against which, the petitioner filed revision; that too was dismissed.

On being confronted that what is the relationship in between the non-payment of proper stamp duty in a registered document/deed (instrument of conveyance) with non-disposal of an application under section 34 of U.P. Land Revenue Act, the learned counsel for the petitioner submitted that in view of the provisions contained under section 33 of the  Indian Stamp Act, 1899 (hereinafter referred to as, 'the Act of 1899'), the authority concerned, which was acting upon on the basis of a registered sale deed, ought to have proceeded for impounding the deed, which is unduly stamped.  Further in view of section 35 of the Act of 1899, the sale deed could not be considered as evidence and no mutation order could be passed on the basis of a sale deed, which is unduly stamped.

For appreciation, the provisions contained under section 33 and section 35 of the Act of 1899 are required to be looked into, which are reproduced hereunder:

"33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence and every person incharge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with stamp of the value and description required by the law in force in India, when such instrument was executed, or first executed.

Provided that -

(a) nothing herein contained shall be deemed to require any Magistrate, or Judge of a Criminal Court to examine or impound if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Sections 125 to 128 and Sections 145 to 148 of the Code of Criminal Procedure, 1973.

(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.

(3) For the purposes of this section the State Government may, in cases of doubt, determine what offices shall be deemed to be public offices and who shall be deemed to be the persons in charge of public offices.

(4) Where deficiency in stamp duty paid is noticed from the copy of any instrument, the Collector may suo moto, or on a reference from any Court, or from the Commissioner of Stamps or an Additional Commissioner of Stamps, or a Deputy Commissioner of Stamp or an Assistant Commissioner of Stamps,  or any officer authorised by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector shall be deemed to have been produced or come before him in the performance of his functions.

(5) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty under Section 40 on the copy of the instrument:

Provided further that with the prior permission of the State Government an action under sub-section (4) or sub-section (5) may be taken after a period of four years but before a period of eight years from the date of execution of the instrument.  

35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that -

(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898(5 of 1898);

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act."

From the bare reading of the aforesaid sections, it transpires that instrument not duly stamped is inadmissible in evidence, but the question would arise as to who would determine, as to whether a particular instrument is duly stamped or not? It is the authorities empowered under the Act of 1899 or any private individual can raise this question in an ancillary proceeding. The Indian Stamp Act is a self-contained Act and it has specific provisions for determining as to whether a particular instrument is duly stamped or not. Section 31 the Act of 1899 provides that, with regard to the determination of stamp duty, it is the Collector, who can determine the same. For appreciation, section 31 of the Act of 1899 is reproduced hereunder:

"Adjudication as to proper stamp.- (1) When any instrument whether executed or not, and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any), with which it is chargeable, and pays the fee of such amout as may be fixed by the State Government by notification in the official gazette, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable.

(2) For this purpose, the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence, as he may deem necessary to prove that all the facts and circumstances affecting the changeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly:

Provided that -

(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceedings, except in an inquiry as to the duty with which the instrument, to which it relates, is chargeable; and

(b) any person by whom any such evidence is furnished shall on payment of the full duty with which the instrument to which it relates is chargeable, be relieved from any penalty which he may have incurred under this Act by reasons of the omission to state truly in such instrument any of the facts or circumstances aforesaid."

Not only that, under various circumstances (including section 33), the authorities dealing with the stamp matters or otherwise, can refer the matter under section 47-A of the Act of 1899 for determining as to whether the particular instrument is duly stamped or not.  This power is vested with registering authority, court or Commissioner/Additional Commissioner, Deputy Commissioner of Stamp, Assistant Commissioner  or any other officer authorized under the Act to refer the matter for proper adjudication as to whether on a particular instrument proper stamp has been paid or not.  The State Government in its suo motu action can also do so within a period of four years from the date of execution of deed.  Thereafter, following the procedure contained under section 47-A of the Act of 1899, the competent authority shall determine as to whether the report with regard to the non-payment of proper stamp duty is correct or incorrect. For appreciation section 47-A of the Act of 1899 is also reproduced hereinunder:

"47-A. Under-valuation of instrument.-

(1)(a) If the market value of any property which is the subject of any instrument, on which duty is chargeable on the market value of the property as set forth in such instrument, is less than even the minimum determined value in accordance with the rules made under this Act, the registering officer appointed under the Registration Act, 1908, notwithstanding anything contained in the said Act, immediately after presentation of such instrument and before accepting it for registration and taking any action under Section 52 of the said Act, require the person liable to pay stamp duty under Section 29, to pay the deficit stamp duty as computed on the basis of the minimum value determined in accordance with the said rules and return the instrument for presenting again in accordance with Section 23 of the Registration Act, 1908.

(b) When the deficit stamp duty required to be paid under clause (a) is paid in respect of any instrument and the instrument is presented again for registration, the Registering Officer shall certify by endorsement thereon, that the deficit stamp duty has been paid in respect thereof and the name and the residence of the person paying them and register the same.

(c) Notwithstanding contained in any other provisions of this Act, the deficit stamp duty may be paid under clause (a) in the form of impressed stamps containing such declaration as may be prescribed.

(d) If any person does not make the payment of deficit stamp duty after receiving the order referred to in clause (a) and presents the instrument again for registration, the registering officer shall, before registering the instrument refer the same to the Collector, for determination of the market value of the property and the proper duty payable thereon.

(2) On receipt of a reference under sub- section (1), the Collector shall after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument and the proper duty payable thereon.

(3) The Collector may, suo motu, or on a reference from any Court or from the Commissioner of Stamps or an Additional Commissioner of Stamps or from a Deputy Commissioner of Stamps or from an Assistant Commissioner of Stamps or any officer authorized by the State Government in that behalf, within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property, not already referred to him under sub- section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value, of the property which is the subject of such instrument and the duty payable thereon, and if, after such examination, he has reason to believe that market value of such property has not been truly set forth in such instrument, he may determine the market value of such property and the duty payable thereon:

Provided that, with the prior permission of the State Government, an action under this sub-section may be taken after a period of four years but before a period of eight years from the date of registration of the instrument on which duty is chargeable on the market value of the property.

Explanation: The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section (3).

(4) If on inquiry under sub-section (2) and examination under sub-section

(3) The Collector finds the market value of the property-

(i) truly set forth and the instrument duly stamped, he shall certify by endorsement that it is duly stamped and return it to the person who made the reference;

(ii) not truly set forth and the instrument not duly stamped, he shall require the payment of proper duty or the amount required to make up the deficiency in the same together with a penalty of an amount not exceeding four times the amount of the proper duty or the deficient portion thereof.

(4-A) The Collector shall also require alongwith the deficit stamp duty or penalty required to be paid under clause (ii) of sub-section (4), the payment of a simple interest at the rate of one and half percent per mensem on the amount of deficit stamp duty calculated from the date of the execution of the instrument till the date of actual payment:

Provided that the amount of interest under the sub-section shall be recalculated if the amount of deficit stamp duty is varied on appeal or revision or by any order of a competent Court or Authority.

(4-B) The amount of interest payable under sub-section (4-A) shall be added to the amount due and be also deemed for all purposes to be part of the amount required to be paid.

(4-C) Where realisation of the deficit stamp duty remained stayed by any order of any Court or Authority and such order of stay is subsequently vacated, the interest referred to in sub-section (4-A) shall be payable also for any period during which such order of stay remained in operation.

(4-D) Any amount paid or deposited by or recovered from, or refundable to, a person under the provision of this Act, shall first be adjusted towards the deficit stamp duty or penalty outstanding against him and the excess, if any, shall then be adjusted towards the interest, if any, due from him.

(5) The instrument produced before the Collector under sub-section (2) or under sub-section (3) shall be deemed to have come before him in the performance of his functions.

(6) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty on the copy of the instrument in accordance with the procedure laid down in sub-sections (2) and (4)."

From going through the record of the writ petition, it do not transpire that any of the proceedings as contained either in section 31 of the Act of 1899 or in section 47-A of the Act of 1899 have been resorted to. Therefore, it cannot be said that the instrument is not duly stamped.  I am of the opinion that without there being proper adjudication with regard to the payment of insufficient stamp duty, it cannot be said that on a particular registered sale deed insufficient stamp duty is paid; that too on the bald allegation of a private person, therefore, all the legal consequences of a registered document would follow and the argument of the learned counsel for the petitioner that the mutation proceeding should be stayed because of non-payment of proper stamp duty, is without any valid foundation.

In view of the foregoing discussions, I am of the view that the impugned judgments do not call for any interference under Article 226 of the Constitution of India and deserve to be dismissed. The Court competent dealing with the application filed under section 34 of the U.P. Land Revenue Act, 1901 shall proceed in accordance with law, ignoring the objections raised by the petitioner.

However, it is observed that if the Court dealing with the application under section 34 of the Act comes to the conclusion that the deed is unduly stamped, it can refer the matter to the Collector, but in no case it prolong the decision on the application for mutation.  

The writ petition lacks merit and it is hereby dismissed.

Order Date :- 31.5.2012

Amit Mishra

Hon'ble Ran Vijai Singh,J.

The writ petition is dismissed.

For order see order of date passed on the separate sheet.

Order Date :- 31.5.2012

Amit Mishra

Order Date :- 31.5.2012

Amit Mishra