ORDER
1. The petitioner aggrieved by the orders passed by the first and second respondents has filed this writ petition seeking for issuance of a writ of ccrtiorari to quash the impugned orders vide Annexure-E, dated 21-7-1995 and the order dated 20-5-1995 respectively. Further, the petitioner has sought for a direction to the respondents to return the sale deed dated 3-1-1994 after its registration under the provisions of the Indian Registration Act, 1908, by holding that the stamp duty paid on the instrument is sufficient as the same is in conformity with the provisions of the Karnataka Stamp Act, 1957 and Karnataka Registration Rules, 1965, urging various facts and legal contentions.
2. The various facts and legal contentions urged in this writ petition by the petitioner need not be adverted to in this order for the reason that reference of conveyance deed made by the third respondent to the second respondent in exercise of Section 33 of the Karnataka Stamp Act, 1957 without authority of law and competency, on the basis of the refer-ence made by him, the second respondent has passed the impugned order at Annexure-C directing the petitioner to pay the stamp duty payable under Article 20(1) to the Schedule of the Karnataka Stamp Act, 1957 of additional Court fee stamp duty of Rs. 43, 177/- and under Section 39(1)(b) a penalty of Rs. 5/- on the said amount. The petitioner was aggrieved by the order; has filed an -appeal under the provisions of the Act, 1957 read with relevant rules before the first respondent and the same is dismissed by him holding that the appeal is not maintainable in law against the order passed by the second respondent.
3. The impugned order passed by the first respondent is sought to be justified by the Government Pleader appearing on behalf of respondents by filing a detailed counter-statement. I have perused the same at paragraph 2 of the counter-statement. It is noticed that third respondent was empowered to refuse to register the document as it is not sufficiently stamped by the petitioner as per the relevant Article to the Schedule of the provisions of the Act 1957 holding that, it is not the first registration of the plot. Therefore, it is urged on behalf of the third respondent that the third respondent has made reference to the second respondent for examining the sufficiency of the stamp duty paid on the document, he has answered the reference against the petitioner, directing him to pay sufficient stamp duty on the instrument under the provisions of the Act presented before the third respondent for its registration as he has not sufficiently paid the stamp duty. This order was challenged before the first respondent under the provisions of Section 45-A(5) of the Karnataka Stamp Act, 1957, the first respondent passed an order holding that the appeal is not maintainable, this order is also impugned in this order.
4. The second respondent has sought to justify the order passed by him on the reference of the document by the third respondent under Section 33 of the Act 1957, on the ground that the document presented for registration before the third respondent is insufficiently stamped. I have perused Section 33 of the Act 1957 it has no application to the facts of this case. Unless the document is registered under the provisions of the Indian Registration Act, 1908, the Registering Authority, the third respondent herein, has no authority to make reference of the document to the second respondent who is notified by the Government in exercise of its power under Section 45A of the Act, for the purpose of exercise of his power under this provision of the Act. Since the document was not registered, he had no jurisdiction to determine the sufficiency or otherwise of the stamp duty payable on the document to be registered before the third respondent under the provisions of the Act 1957 and the relevant rules. For the reasons stated supra, the third respondent should not have refused to register the document when it was presented for registration, by the petitioner, as no grounds were available for ihe third respondent. As contemplated under the provisions of Section 35 of the Registration Act of 1908 when the Sub-Registrar has refused to register the document presented before him, he has to follow the procedure as provided under Section 71 of the Act 1908 the order of reference of the unregistered document made by the third respondent to the second respondent amounts to refusal to register the document for which the third respondent was statutorily obligated to assign his reasons for his refusal to register the document. Upon such order the petitioner has got a statutory remedy under Section 72 of the Act, 1908. Apart from the aforesaid reason the third respondent has no power and authority to make reference to the District Registrar on the ground of insufficiency of the stamp duty paid on the document presented by the petitioner. Therefore, the action of third respondent in not registering the document and referring the document to the second respondent for examining as to whether the stamp duty paid on the document is sufficient or not is bad in law. Therefore, the order passed by the second respondent on the reference of the document by the third respondent is not in conformity with either the provisions of the Karnataka Stamp Act or Indian Registration Act. Therefore, the impugned order passed by him is wholly unsustainable in law.
5. Further, the plain reading of sub-sections (2) and (3) of Section 45A of the Act, 1957, it makes very clear that the Sub-Registrar has got power to make reference of the conveyance deed after registration of the document under Section 45A of the Act, 1957. Therefore, the Deputy Commissioner of the area who has been notified for the purpose of the provisions of the Karnataka Stamp Act, 1957 has to examine the document with regard to the value of the property which is the subject-matter of ‘Conveyance’ Deed, after registration of the document by the Registering Authority under the provisions of the Indian Registration Act, then only the second respondent can exercise his power under Section 45-A(2) and (3) of the Act of 1957. Therefore, the order of reference made by the third respondent and consequent upon which the order passed by the second respondent is without jurisdiction for the reason that the third respondent had no authority to refer the document to the second respondent on the alleged ground of insufficiency of the stamp duty paid on the document presented for its registration. Further, the third respondent was required to register the document after conducting an enquiry following the procedure laid down under Section 34 of the Indian Registration Act, 1908. In this case, the learned Government Pleader appearing on behalf of the respondents is not in a position to submit to this Court as to whether the third respondent was empowered to make reference of the document to the second respondent in exercise of his power under Section 33 of the Karnataka Stamp Act, 1957 when the document was presented for its registration before him. In this view of the matter, the reference made by the third respondent to the second respondent with regard to the document to be registered seeking clarification regarding the valuation of the property is bad in law. The second respondent passed an order without examining his power under the provisions of the Act, therefore, the reference order made by him to the second respondent is a nullity in the eye of law, therefore, the same is liable to be quashed.
6. For the reasons stated supra, Section 45A of the Act of 1957 is not attracted to the facts of the case, before the document is registered by the Registering Authority under the provisions of the Act, 1908. In this view of the matter, the appeal filed by the petitioner is not maintainable before the first respondent.
The writ petition is allowed. Rule made absolute. The impugned order vide Annexure-C, dated 8-5-1995 is hereby quashed and the matter is remitted back to the third respondent-Sub-Registrar to examine the same as provided under Section 34 of the Indian Registration Act, 1908 and the rules framed thereunder and after following the procedure laid down under the provisions of the Act and Rules, if he is satisfied that petitioner has complied with the various aspects as provided under Section 34 of the Act, 1908 for registration of the document presented before the third respondent, the document can be registered and if he finds that the document is insufficiently stamped, after registration of document he can refer the document to the second respondent to conduct an enquiry as provided under Section 45A of the Karnataka Stamp Act, 1957 and rules thereunder for the purpose of finding out correct market value of the property which is the subject-matter of the document presented for its registration and to further examine as to whether stamp duty paid on the document is sufficient or not.
Further, the second and third respondents are directed to conclude the proceedings within three months from the date of receipt of this order.