IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.10.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.17776 OF 2009 .. P.Uthamaraj .. Petitioner vs. 1.The District Registrar Chennai South Chennai 15. 2.The Sub Registrar Alandur Registration Office Chennai 16. 3.The District Revenue Officer (Stamps) 5th Floor, Office of the District Collector Singaravelar Maaligai Chennai 1. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.S.Packiaraj For respondents : Mr.T.Seenivasan, Addl.Gvot.Pleader .. ORDER
The writ petition is filed challenging the order of the District Registrar, Chennai, the first respondent herein, dated 28.3.2007, by which the first respondent confirmed the communication of the second respondent dated 7.11.2005, in which the second respondent informed the petitioner that the rectification deed presented for registration suffers stamp duty as per section 47-B of the Indian Stamp Act,1899 and consequently directed payment of stamp duty to the extent of Rs.1,71,270/-.
2. It is the case of the petitioner that he purchased the property, viz., the land situate at Nandambakkam village, Tambaram taluk bearing plot No.141 comprised in survey No.163 under the Tamil Nadu Defence Services Co-operative House Construction Society Limited Scheme along with residential house thereon bearing House No.141 (New No.5), Defence Officers Colony, Chennai-32 from his vendor Brigadier N.R.R.Sharma under a registered sale deed executed on 5.5.2003. In the said document, the boundaries are given as follows: ‘on the north by site plot No.150, on the east by site plot No.142, on the south by 30 feet Cross Road and on the west by site plot No.140’. Regarding measurement it is stated as follows: ‘measuring east to west on the northern and southern side 100 feet and north to south on the eastern and western side 63 feet and containing by admeasuring 6300 sq.ft and building thereon (with all the fixtures fittings and electrical connections and other amenities appurtenant thereon)”.
3. The vendor of the petitioner viz., N.R.R.Sharma in his turn purchased the said property from the Tamil Nadu Area Defence Services Co-operative House Construction Society Limited registered under the Tamil Nadu Co-operative Societies Act, 1983 under a registered sale deed executed by the Secretary on 12.10.1970 and registered as document No.1271/1970 in the Office of the Sub Registrar, Alandur. It is stated that in the said sale deed of the year 1970 executed in favour of the vendor of the petitioner also the measurement was stated as follows: ‘measuring east to west on the northern and southern sides 100 feet and north to south on the eastern and western sides 63 feet’. After it was realised that the measurement should be ‘east to west 63 feet and north to south 100 feet’ which was wrongly given in the original document dated 12.10.1970, the vendor of the petitioner obtained a deed of rectification from the Tamil Nadu Area Defence Services Co-operative House Construction Society Limited represented by its Secretary under a rectification deed dated 6.1.2005 registered as document No.19 of 2005 in the Office of the Sub Registrar, Alandur by which the above said rectification was made only regarding measurement stating ‘east to west 63 feet and north to south 100 feet’, instead of the wrong measurement given in the original sale deed viz., ‘east to west 100 feet and north to south 63 feet’.
4. After obtaining the said rectification deed from the Tamil Nadu Area Defence Services Co-operative House Construction Society Limited, the vendor of the petitioner N.R.R.Sharma executed a rectification deed in favour of the petitioner on the same day, viz., on 6.1.2005, rectifying the sale deed obtained by the petitioner on 5.5.2003, in respect of the above change in the measurement stating ‘east to west on the northern and southern sides 63 feet and north to south on the eastern and western sides 100 feet and containing by admeasuring 6300 sq.ft.’ instead of ‘east to west on the northern and southern sides 100 feet and north to south on the eastern and western sides 63 feet and containing by admeasuring 6300 sq.ft.’. Therefore, it is the case of the petitioner that as far as the extent of the property is concerned, there is no change viz., it remains as 6300 sq.ft. and the measurement on the east to west and north to south was inter-changed by mistake and that mistake was sought to be rectified.
5. It was when the said document was presented, the second respondent, as stated above, considered the same under section 47-B of the Indian Stamp Act,1899 (in short, “the Act”) and imposed duty by treating it as per Schedule I. Section 47-B of the Indian Stamp Act,1899 is as follows:
” 47-B. Stamp duty chargeable for instrument of rectification.-
Where an instrument purports to rectify any error in the description of property as set out in any previous instrument falling within the purview of section 47-A, then, the amount of duty chargeable on such instrument of rectification shall be the amount chargeable on it under Schedule I less the amount of duty, if any, already paid in respect of such previous instrument.”
6. It is seen that the second respondent, registering authority, in his communication dated 7.1.2005 addressed to the first respondent, the District Registrar, asked for a clarification as to whether in the absence of increase in the extent of land, the document in question may be assessed under section 47-B of the Act. Thereafter, by the impugned letter dated 7.11.2005, the second respondent informed the petitioner that a deficit stamp duty of Rs.1,71,270/- should be paid. It appears that the registering authority referred the matter to the third respondent, the District Revenue Officer (Stamps) under section 47-A of the Act for ascertaining the guideline value of the property.
7. It is relevant to point out at this stage that originally when the sale deed by which the petitioner purchased dated 5.5.2003 was registered as document No.1133/2003 in the Office of the Sub Registrar, Alandur, the value of the property was assessed as Rs.43 lakhs and stamp duty was paid on the same amount and at the time of registration of the said document in the year 2003, the second respondent, the registering authority has not raised objection about valuation. It is only in the year 2005, when the rectification deed was sought to be registered, the respondents have taken a stand that the valuation of the property has to be made as on the date of presentation of rectification deed and based on that, the guideline value of the property has been arrived at Rs.63 lakhs as on the date of presentation of the rectification deed. Therefore, after taking into account the stamp duty already paid viz., Rs.5,71,630/-, the petitioner was directed to pay a sum of Rs.1,71,270/-. It is also seen that the third respondent issued notice in Form-I by initiating enquiry under section 47-A of the Act.
8. As it is seen in the impugned order of the first respondent dated 28.3.2007, the impugned order has been passed based on the proceedings of the third respondent dated 6.3.2007, which must be a consequence of the issuance of Form I by the third respondent to the petitioner. It is the case of the petitioner that by rectification no change in the valuation was effected and therefore, the document ought not to have been referred under section 47-A of the Act since there was no dispute regarding the valuation when originally the document was registered on 5.5.2003. When the second respondent has taken such a stand as per communication dated 7.11.2005 and consequently Form-I notice was issued by the third respondent on 23.2.2006 under section 47-A of the Act, the petitioner filed W.P.No.41191 of 2006, challenging both the orders and also for direction against the registering authority to register the rectification deed stated to have been presented on 6.1.2005.
9. Considering the fact that under section 47-A(1) of the Act, the third respondent issued Form-I notice on 23.2.2006, for which the petitioner himself has given a reply on 15.3.2006, the above writ petition came to be disposed of by order dated 31.10.2006 and the District Revenue Officer (Stamps), the third respondent herein, who was the second respondent in W.P.No.41191 of 2006 was also directed to consider the objections stated to have been made by the petitioner including the fact that the petitioner’s representation dated 12.12.2005 was not yet disposed of by the District Registrar. This Court has also ordered that if a favourable order is passed in that representation by the District Registrar, the second respondent therein (third respondent herein) shall consider the same and pass appropriate orders. The operative portion is as follows:
” 2. In such circumstances, the second respondent shall consider the objections, including the fact that the petitioner’s representation dated 12.12.2005 is not yet disposed of by the District Registrar. If a favourable order is passed in that representation by the District Registrar, the second respondent shall consider the same and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. No costs.”
10. Pursuant to the said order, the first respondent viz, the District Registrar (Administration), Chennai, by relying upon section 47-B of the Act, found that rectification of any document should be assessed based on the value of the property as on the date of rectification deed and after deducting the stamp duty already paid under the original sale deed, the balance amount has to be recovered. It is relevant to point out that section 47-B was inserted by the Tamil Nadu Act 38/87, by which any rectification of error regarding description of property from the previous instrument is chargeable under Schedule I.
11. It is no doubt true that section 47-A of the Act which is as follows:
” 47-A. Instruments of conveyance etc., under-valued how to be dealt with.-
(1)If the registering officer appointed under the Indian Registration Act, 1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, release of benami right or settlement, has reason to believe that the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, has not been truly set forth in the instrument he may, after registering such instrument, refer the same to the Collector for determination of the market value of such 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 matter of conveyance, exchange, gift, release of benami right or settlement and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
(3)The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift, release of benami right or settlement 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 matter of conveyance, exchange, gift, release of benami right or settlement and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
Provided that nothing in this sub-section shall apply to any instrument registered before the date of commencement of the Indian Stamp (Madras Amendment) Act,1967.
(4)Every person liable to pay the difference in the amount of duty under sub-section (2) or sub-section (3) shall, pay such duty within such period as may be prescribed. In default of such payment, such amount of duty outstanding on the date of default shall be change on the property affected in such instrument. On any amount remaining unpaid after the date specified for its payment, the person liable to pay the duty shall pay, in addition to the amount due, interest at two percent per month on such amount for the entire period of default.
(5)Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act.
(6)The Chief Controlling Revenue Authority may, suo motu, call for and examine an order passed under sub-section (2) or sub-section (3) and if such order is prejudicial to the interests of revenue, he may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order and may pass such order thereon as he thinks fit.
(7)The Chief Controlling Revenue Authority shall not initiate proceedings against any order passed under sub-section (2) or sub-section (3) if.-
(a) the time for appeal against that order has not expired; or
(b) more than five years have expired after the passing of such order.
(8)No order under sub-section (6) adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard.
(9)In computing the period referred to in clause (b) of sub-section (7) the time during which the proceedings before the Chief Controlling Revenue Authority remained stayed under the order of a Court shall be excluded.
(10)Any person aggrieved by an order of the Authority prescribed under sub-section (5) or the Chief Controlling Revenue Authority under sub-section (6) may, within such time and in such manner, as may be prescribed by rules made under this Act, appeal to the High Court.
Explanation.- For the purpose of this Act, market value of any property shall be estimated to be the price which, in the opinion of the Collector or the Chief Controlling Revenue Authority or the High Court, as the case may be, such property would have fetched or would fetch, if sold in the open market on the date of execution of the instrument of conveyance, exchange, gift, release of benami right or settlement.”
relates to the assessment of market value of the property which is subject matter of conveyance, exchange, gift, release of benami right or settlement and by taking note of section 47-B of the Act, as per Schedule I, such rectification can be construed as a conveyance. But, a reading of section 47-B it is clear that chargeability under Schedule I would be applicable only in cases where in the rectification deeds by making change in description of property from the previous instrument, the valuation is sought to be altered. It may arise in cases where by rectification the extent of the property is sought to be increased or altered by which the value of the property or superstructure may get increased. In those cases, certainly by applying section 47-B of the Act, the difference in stamp duty can be recovered by making calculation as per Schedule I. In cases where by rectification, there is no alteration in the basic nature of the document, especially in the extent and valuation of the property or where the rectification is only in respect of technical aspect such as typographical error or where the rectification is in respect of extent of property while the actual measurement remains unchanged, there is no question of application of Schedule I or application of section 47-A of the Act.
12. Inasmuch as under the rectification deed which is sought to be registered in this case, the valuation which has been given in the year 2003 when the original document was registered is not going to be altered and when it is not the case of the respondents that while registering the sale deed originally on 5.5.2003 the valuation was not correctly given, the reference made under section 47-A of the Act, on the facts of the case, cannot be said to be maintainable.
13. Under section 47-A of the Act as elicited above, even if it is taken that rectification deed which is sought to be registered in this case could be treated as a conveyance under section 2(10) of the Indian Stamp Act,1899 which reads as follows:
” 2(10). Conveyance.- “Conveyance” includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I.”
there is no fresh transfer effected under the rectification deed attracting stamp duty, since the transfer has already been effected in the year 2003 when the document was originally registered.
14. Admittedly, when the vendor of the petitioner has obtained rectification deed from the original owner, the Tamil Nadu Defence Services Co-operative House Construction Society Limited, registered as document No.19/05, no stamp duty was directed to be paid by the vendor of the petitioner, probably for the reason which appears to have been in the minds of the respondents that the previous vendor happens to be a co-operative society which is exempted from payment of stamp duty. As it is clear that under section 47A(1) of the Act at the time when the conveyance was registered by which transfer was effected, admittedly the registering authority did not raise any objection or suspicion regarding the valuation, the present rectification deed which only corrects the technical error cannot be taken as a fresh transfer of property so as to enable the registering authority to consider the market price as on the date of rectification deed.
15. At the risk of repetition, it is made clear that if by way of rectification deed, the extent is going to be increased, certainly for the difference in extent, the registering authority is entitled to charge the stamp duty under Schedule I. But, it is not open to the registering authority to reopen the original sale that took place in the year 2003 for the purpose of fresh assessment of value as on the date of rectification of typographical error and by imposing stamp duty on the rectification deed and to seek to recover the difference of stamp duty from the petitioner. Inasmuch as the registering authority at the time of presentation of document for registration in the year 2003 did not raise any objection under section 47-A of the Act, it is not open to the respondents to raise the dispute regarding valuation now.
16. In such view of the matter, I am of the considered view that the impugned order of the first respondent dated 28.3.2007 cannot be construed to be in consonance with the provisions of the Indian Stamp Act, on the facts and circumstances of the present case wherein by rectification there is no alteration regarding extent of the property resulting in any dispute regarding valuation. Therefore, the impugned order of the first respondent is set aside holding that on the facts and circumstances of the case, no proceedings under section 47-A(1) of the Act is warranted and the respondents are directed to return the document registered as document No.142/06 dated 19.1.2006 to the petitioner within a period of four weeks from the date of receipt of copy of this order.
The writ petition stands allowed on the above terms. No costs.
kh
To
1.The District Registrar
Chennai South
Chennai 15.
2.The Sub Registrar
Alandur Registration Office
Chennai 16.
3.The District Revenue Officer (Stamps)
5th Floor, Office of
the District Collector
Singaravelar Maaligai
Chennai 1