BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/02/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.8671 of 2005 Usha Kanagasabapathy ... Petitioner Vs. The Joint Sub Registrar No.I, Sub Registrars Office, Kanyakumari at Nagercoil, Nagercoil - 629 001. ... Respondent Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the order in No.2992/05 dated 30.03.2005 on the file of the respondent herein and to quash the same and direct the respondent to return the original sale deed dated 13.03.2003 and registered as document No.800 of 2003 on the file of the respondent herein without insisting any other stamp duty or other charges under Samadhan Scheme within a time frame as may be fixed by this Court. !For Petitioner ... Mr.S.Subbiah ^For Respondent ... Mr.D.Sasikumar, Govt. Advocate * * * * * :ORDER
The petitioner has filed the present writ petition seeking the relief of
Writ of Certiorarified Mandamus to call for the records relating to the order in
No.2992/05 dated 30.03.2005 on the file of the respondent herein and to quash
the same and direct the respondent to return the original sale deed dated
13.03.2003 and registered as document No.800 of 2003 on the file of the
respondent herein without insisting any other stamp duty or other charges under
Samadhan Scheme within a time frame as may be fixed by this Court.
2. The petitioner purchased the lands in S.No.P6/22 in Nagercoil Village
measuring to an extent of 871.2 sq.ft as per the sale deed dated 13.03.2003 and
the said deed has been registered as document No.800/03 on 13.03.2003. The
respondent has retained the original sale deed dated 13.03.2003 in order to make
a reference as per Section 47-A of the Indian Stamp Act, 1899.
3. The sale consideration mentioned in the sale deed is Rs.2,76,000/-
(Rupees Two Lakhs and Seventy Six Thousand only). According to the respondent,
the guideline value of the said land is Rs.4,08,579/- (Rupees Four Lakh Eight
Thousand Five Hundred and Seventy Nine only)including the value of the building
and the passage. The respondent is of the view that the sale deed dated
13.03.2003 carried a stamp duty of Rs.33,120/- (Rupees Thirty Three Thousand One
Hundred and Twenty only), but on the guideline value, it ought to have carried a
stamp duty of Rs.49,031/- (Rupees Forty Nine Thousand and Thirty One only).
There has been a deficit in the stamp duty payable at Rs.15,911/- (Rupees
Fifteen Thousand Nine Hundred and Eleven only) with corresponding registration
charges of Rs.1,330/- (Rupees One Thousand Three Hundred and Thirty only)
aggregating a sum of Rs.17,291/- (Rupees Seventeen Thousand Two Hundred and
Ninety One only).
4. A reference has been made by the respondent to the Special Deputy
Collector, Stamps, Tirunelvi, in his Serial No.166 dated 26.03.2003 and the
Special Deputy Collector, Stamps, Tirunelveli, by his Form No.1 dated 17.04.2003
called upon the petitioner to state her objections and the matter is still
pending with him. The Government in the meanwhile announced the Samadhan Scheme
whereby if the purchaser opted to pay the 60% of the stamp duty demanded, by the
registering authority, then the document can be released. The announcement of
the scheme has been widely published and it has been carried out in all News
Papers.
5. The petitioner by her letter dated 23.03.2005, has sent a sum of
Rs.10,350/- (Rupees Ten Thousand Three Hundred and Fifty only) being the 60%
amount on Rs.17,291/- (Rupees Seventeen Thousand Two Hundred and Ninety One
only) by taking a banker’s cheque No.168/2000132 dated 23.03.2005 in the name of
the respondent.
6. The petitioner has disputed the demand for a sum of Rs.17,291/- (Rupees
Seventeen Thousand Two Hundred and Ninety One only) made by the respondent as
per his memo in S.No.166 dated 26.03.2003 and this has been disputed by the
petitioner and it is the subject matter of reference as per Section 47-A of the
Indian Stamp Act, 1899. The respondent by his notice dated 23.03.2005
despatched on 23.03.2005 called upon the petitioner to pay a sum of Rs.14,852/-
(Rupees Fourteen Thousand Eight Hundred and Fifty Two only) made up of the sum
of Rs.33,120/- (Rupees Thirty Three Thousand One Hundred and Twenty only) on the
value of Rs.4,66,371/-(Rupees Four Lakhs Sixty Six Thousand Three Hundred and
Seventy One only) as determined by him together with corresponding stamp duty.
7. For the letter dated 23.03.2005 sent by the petitioner enclosing the
banker’s cheque, the respondent through his letter No.2992/05 dated 30.03.2005
has informed the petitioner that the document has been returned by the Special
Deputy Collector (Stamps), Tirunelveli to the respondent and at the time of
proceedings as per Section 47-A of the Indian Stamp Act, 1899, the building was
not assessed and now, the building has been assessed and on that basis, it is
claimed by the respondent that the total value of the property has been worked
out at Rs.4,66,371/- (Rupees Four Lakhs Sixty Six Thousand Three Hundred and
Seventy One only) and that she has been requested to send a further sum of
Rs.4,502/- (Rupees Four Thousand Five Hundred and Two only).
8. The petitioner after receipt of the letter dated 21.04.2005, sent a
reply through her advocate on 26.04.2005 inter alia stating that when the
reference has been made as per Section 47-A of the Indian Stamp Act, the value
of the building has been assessed at Rs.53,900/- (Rupees Fifty Three Thousand
and Nine Hundred only) and by taking into account the value of the building, the
value of the property has been assessed at Rs.4,08,579/- (Rupees Four Lakhs
Eight Thousand Five Hundred and Seventy Nine only) and hence, there is no need
to pay any further amount by way of deficit stamp duty.
9. The respondent after receipt of notice dated 26.04.2005, returned the
cheque dated 23.03.2005 through his letter dated 02.05.2005 on the ground that
she has not paid the sum of Rs.4,502/- (Rupees Four Thousand Five Hundred and
Two only) as demanded.
10. The petitioner after receipt of the letter dated 02.05.2005 sent by
the respondent, has returned back the cheque for a sum of Rs.10,315/- (Rupees
Ten Thousand Three Hundred and Fifteen only) and made a request to the
respondent to return the original document through lawyer’s notice dated
04.05.2005, but the respondent has refused to release the document which is not
a legal one.
11. The learned Counsel for the petitioner contends that it is not known
as to how the respondent can value the property differently at Rs.4,66,371/-
(Rupees Four Lakhs Sixty Six Thousand Three Hundred and Seventy One only) from
Rs.4,08,579/- (Rupees Four Lakh Eight Thousand Five Hundred and Seventy Nine
only) as originally determined as per Serial No.166/2003 dated 26.03.2003.
12. The learned Counsel for the petitioner submits that the respondent in
the memo dated 26.03.2003 has clearly specified the value of the property
conveyed at Rs.4,08,579/- (Rupees Four Lakh Eight Thousand Five Hundred and
Seventy Nine only) under the document No.800/03 dated 13.03.2003, after taking
into account the value of the building at Rs.53,900/-.
13. The learned Counsel for the petitioner advances the argument that
there is no provision either under the Indian Stamp Act, 1899, or the Rules
frames thereunder to enable the Registering Authority to revise the value of the
property even after sending the document for reference as per Section 47-A of
the Indian Stamp Act. Also, it is the contention of the learned Counsel for the
petitioner that the respondent having made a demand through his memo dated
26.03.2003 calling upon the petitioner to pay a stamp duty of Rs.15,911/-
(Rupees Fifteen Thousand Nine Hundred and Eleven only) together with Rs.1,330/-
(Rupees One Thousand Three Hundred and Thirty only) corresponding registration
charges, has no jurisdiction to demand any further sum on any ground.
14. Lastly, it is the contention of the learned Counsel for the petitioner
that the respondent cannot retain the original document with him, whether he
refers it under Section 47-A(1) of the Indian Stamp Act or not and in view of
the payment of Rs.10,350/- (Rupees Ten Thousand Three Hundred and Fifty only) as
per Samadhan Scheme which precludes the respondent from referring the document
as per Section 47-A(1) of the Indian Stamp Act.
15. Per contra, the learned Counsel for the respondent submits that the
sale deed dated 13.03.2003 has been referred to the Stamp Deputy Collector,
Tirunelveli and prima facie the guideline value has not been adopted for the
ground and hence, a preliminary reference has been made to the Stamp Deputy
Collector in regard to the under-valuation as regards the site alone. Moreover,
the Stamp Duty Collector has been requested to make an inspection of the
building at the time of determination of the market value of the property.
16. The learned Government Advocate for the respondent contends that the
value of the building located at the site has been valued by the department and
there is a specific reference in the report that the building has not been
inspected which implies that the Stamp Duty Collector has to make the
determination of the value of the building. Expatiating his submissions, the
learned Government Advocate for the respondent proceeds to project an argument
that the petitioner sent the banker’s cheque for a sum of Rs.17,241/- (Rupees
Seventeen Thousand Two Hundred and Forty One only) which is less than the
preliminary value of the building and that the deficit duty mentioned in the
letter No.166 dated 26.03.2003 is a preliminary one and it is not final. In
short, at the time of issuance of letter dated 26.03.2003, the value of the
building has not been assessed.
17. The learned Government Advocate for the respondent vehemently contends
that as per the letter of the Inspector General of Registration in Letter
No.12342/U1/95, dated 07.03.1995, if the value of the building is Rs.25,000/-
and above, then it has to be compulsorily inspected by the Officers of the
Department so as to check the evasion of stamp duty. Even in the letter of the
Inspector General of Registration in Letter No.29704/E2/2004, dated 27.12.2004
which followed the Samadhan Scheme and it has been issued as guideline for the
implementation of Samadhan Scheme and the buildings have to be inspected by the
Sub Registrar and the deficit duty has to be determined.
18. The learned Government Advocate for the respondent brings it to the
notice of this Court that the building located in the site has been inspected by
the authority on 23.03.2005 in the presence of one Kanaga Sabapathy, the husband
of the petitioner and the value for the property has been determined at
Rs.4,66,371/- and on that basis, the deficit value of the stamp duty has been
determined at Rs.22,848/-. As such, 60% of the stamp duty amount comes to
Rs.13,709/- and Rs.1,143/- aggregating in all a sum of Rs.14,852/- has been
demanded from the petitioner as per letter No.166, dated 22.03.2005.
19. The learned Government Advocate for the respondent submits that as per
the existing order, the value of the building referred to the Deputy Collector
(Stamps), is to be determined by the Deputy Collector (Stamps) and also that the
Samadhan Scheme has come to an end on 30.04.2005. Indeed, the petitioner has
not availed the Samadhan Scheme by paying the additional duty demanded and as
such, the cheque has been returned to her through the Office letter
No.2992/U4/2005, dated 06.05.2005 and if the petitioner has not availed the
opportunity to remit the amount as per Samadhan Scheme. Since the Samadhan
Scheme has come to an end on 30.04.2005, the sale deed has been sent back to the
Deputy Collector (Stamps) for further action.
20. As per the Samadhan Scheme, in G.O.Ms.No.193 Commercial Taxes
Department dated 27.12.2004, remission of 40% of the difference of duty
chargeable on the sale of the properties as proposed by the Registering Officer
and the duty already paid, has been ordered. The main object of introducing the
Samadhan Scheme is to unlock the blocked revenue to the Government as per the
letter of the Inspector General of Registration, Chennai, in No.29709/C2/04,
dated 15.06.2004.
21. In the said G.O.Ms.No.193 Commercial Taxes Department dated
27.12.2004, in paragraphs 2 to 4, it is mentioned as follows:
“2. According to the Inspector General of Registration, 46208 Documents
are pending with District Revenue Officer (Stamps)/Special Deputy Collectors
(Stamps) for determination of market value as on 30.11.2004. On account of
this, revenue by way of stamp duty amounting to crores of rupees due to the
Government remain uncollected. In view of the present financial difficulty, it
is practically not possible to appoint additional staff to speed up the work of
determination of market value of properties. In the above circumstances, the
Inspector General of Registration has proposed to implement a Samadhan Scheme
suggesting a remission of 40% of the difference of stamp duty between what is
chargeable on the value of the property as proposed by the registering officer
and the duty already paid, in order to unlock the blocked revenue to the
Government in his letter 3rd read above.
3. The Government after careful examination have decided to accept the
proposal of the Inspector General of Registration. Accordingly, they direct that
40% (Forty percent) of the difference of stamp duty between the duty already
paid and what is chargeable on the value of the properties (both for land and
buildings including chargeable assets) as proposed by the registering officer on
the basis of Guideline Register in respect of land and the PWD Schedule of Rates
in respect of buildings, be remitted.
4. The Government issue the following instructions in this regard:-
(i) Documents referred to the District Revenue Officer(Stamps)/Special
Deputy Collector (Stamps) under Sections 47-A(a), 47-A(3) and 19-B(4) of the
Indian Stamp Act, 1899 and pending with them for determination of market value
as on 30.11.2004 and the documents registered and pending with the registering
officers on the above said date for referring to the District Revenue Officer
(Stamps)/Special Deputy Collector (Stamps) for determination of market value are
eligible for availing the concession under the Scheme.
(ii) The stamp duty and the registration fee payable under the scheme
shall be collected in the registering office itself.
(iii) The scheme will not be applicable to cases pending for recovery of
arrears under the Revenue Recovery Act.
(iv) The scheme shall be implemented for three months from the date of
notification.”
22. On behalf of the Government of Tamil Nadu, Registration Department,
the Inspector General of Registration, has among other things stated under the
caption ‘SAMADHAN SCHEME’ thus:
“Pay 60% of the difference of stamp duty & Registration Fee payable as assessed
by the Sub Registrar and the Stamp duty/Registration Fee already paid by you
There will be no enquiry, inspection etc., Documents will be returned across the
counter. Special Counters opened in all the Sub Registrar Officers.
Payment may be made by Cash/D.D/Challan.
This Scheme will be in force from 28.12.2004 to 27.03.2005.
It will not be extended further.
Sd./-
INSPECTOR GENERAL OF REGISTRATION,
CHENNAI 28.”
23. The Joint Registrar, Kanyakumari, at Nagercoil, in the notice under
the Samadhan Scheme dated 22.03.2005 has stated that in the stamp duty payable
in respect of the property, out of the amount paid as stamp duty in the
document, in the balance stamp duty paid, 60% can be remitted together with 60%
registration charges and an individual is to take back the documents. Further,
in the said notice, the value mentioned in the document is stated as
Rs.2,76,000/- (Rupees Two Lakhs and Seventy Six Thousand only) and the Sub
Registrar’s value is Rs.4,66,371/- (Rupees Four Lakhs Sixty Six Thousand Three
Hundred and Seventy One only). Further, the stamp duty to be paid is
Rs.55,968/- (Rupees Fifty Five Thousand Nine Hundred and Sixty Eight only) and
the stamp duty paid is Rs.33,120/- (Rupees Thirty Three Thousand One Hundred and
Twenty only). Moreover, the difference in the stamp duty is Rs.22,848/- (Rupees
Twenty Two Thousand Eight Hundred and Forty Eight only) and the difference in
the registration charges to be paid is Rs.1,905/-. Now, out of this amount, as
per the Samadhan Scheme, 60% stamp duty to be paid is Rs.13,709/- (Rupees
Thirteen Thousand Seven Hundred and Nine only) and the 60% registration charges
comes to Rs.1,143/- (Rupees One Thousand One Hundred and Forty Three only).
24. Thus, the petitioner is to pay a sum of Rs.14,852/- (Rupees Fourteen
Thousand Eight Hundred and Fifty Two only) which has to be paid as per the
Samadhan Scheme which is available from 28.12.2004 to 27.03.2005, but the
petitioner has stated in her letter dated 23.03.2005 addressed to the Joint Sub
Registrar – I, Nagercoil that ‘Your office have informed me as well as to the
Special Thasildar (stamps) that I have to pay Rs.15,911/- towards deficit stamps
and Rs.1330/- as Registration charges. Now as per the ‘rkhjhd; jpl;lk;’ I have
to pay Rs.10,350/- as 60% of the total amount of Rs.17,291/- I am sending the
said amount as Demand Draft/bankers cheque (crossed) of Karur Vaishiya Bank,
Nagercoil.’
25. At this stage, this Court pertinently points out that the Joint
Registrar, Kanyakumari, Nagercoil, has sent a communication in Reference
No.2992/05 dated 30.03.2005 addressed to the petitioner stating that the
petitioner has only sent a sum of Rs.10,350/- by means of cheque on 23.03.2005
and that the balance of Rs.4,502/- has to be paid by her which can be paid by
her in the Office and to take back the documents. The said communication is
said to have been received by the petitioner on 05.04.2005.
26. Interestingly, in G.O.Ms.No.193 Commercial Taxes Department dated
27.12.2004, it is clearly inter alia stated thus:
“… It is reported to the Government that the number of documents
referred to the District Revenue Officer (Stamps)/Special Deputy Collector
(Stamps) has been increasing every year. However, disposal of such documents by
the District Revenue Officer (Stamps)/Special Deputy Collector (Stamps) is not
keeping pace with the receipt of the documents. Consequently, revenue due to
the State running into crores of rupees are getting blocked. The public are
also put to inconvenience, being unable to get the original documents. In order
to obviate the situation, a Samadhan Scheme was implemented in the State in the
years 1999 and 2002.”
27. In paragraph 3 of the aforesaid G.O, it is mentioned that ‘the
Government after careful examination have decided to accept the proposal of the
Inspector General of Registration. Accordingly, they direct that 40% (Forty
percent) of the difference of stamp duty between the duty already paid and what
is chargeable on the value of the properties (both for land and buildings
including chargeable assets) as proposed by the registering officer on the basis
of Guideline Register in respect of land and the PWD Schedule of Rates in
respect of buildings, be remitted.’
28. Therefore, it is quite candidly clear from the tenor of G.O.Ms.No.193
Commercial Taxes Department dated 27.12.2004, that a remission of 40% of the
difference of stamp duty between what is chargeable under the value of the
property as proposed by the Registering Officer and the duty already paid, has
been accepted by the Government and a direction to pay 40% of the difference of
stamp duty already paid on the value of the property, etc., has been ordered by
the Government.
29. But, the respondent takes umbrage as per the letter of the Inspector
General of Registration in No.29704/E2/2004, dated 27.12.2004 which followed
the Samadhan Scheme and it has issued a guideline for the implementation of the
Samadhan Scheme in and by which the buildings which ought to be inspected, have
to be inspected by the Sub Registrar to the deficit duty to be fixed
accordingly. Therefore, according to the respondent, the building of the
petitioner located has been inspected by the authority of the respondent
Department on 23.03.2005 in the presence of the petitioner’s husband.
30. A reading of the circular No.29704/E2/2004, dated 27.12.2004, issued
by the Office of the Inspector General of Registration, Chennai – 28, shows that
the Samadhan Scheme will apply to the buildings and the building where spot
inspection has been completed and it covers the documents where the value has
been shown less and this concession will have to be given the difference in
value of the spot inspection and the value of the building mentioned in the
document.
31. The letter of the Inspector General of Registration dated 27.12.2004,
has been issued in pursuance of the G.O.Ms.No.193 Commercial Taxes Department
dated 27.12.2004. Even though the respondent relies on the letter of the
Inspector General of Registration in No.29704/E2/2004, dated 27.12.2004, for the
implementation of the Samadhan Scheme, the building should be inspected by the
Sub Registrar after the duty should be fixed accordingly. In G.O.Ms.No.193
Commercial Taxes Department dated 27.12.2004, paragraph 4 shows that the
Government has issued instructions to the effect that the documents referred to
the District Revenue Officer(Stamps)/Special Deputy Collector (Stamps) under
Sections 47-A(a), 47-A(3) and 19-B(4) of the Indian Stamp Act, 1899 and pending
with them for determination of market value as on 30.11.2004 and the documents
registered and pending with the registering officers on the above said date for
referring to the District Revenue Officer (Stamps)/Special Deputy Collector
(Stamps) for determination of market value are eligible for availing the
concession under the Scheme.
32. When the G.O.Ms.No.193 Commercial Taxes Department dated 27.12.2004
has been issued with a view to obviate the situation of inconvenience being put
to public who are unable to get the original documents and earlier, the Samadhan
Scheme has been implemented in the State of Tamil Nadu in the years 1999 and
2002, then it is not open to the respondent to rely upon the letter of the
Inspector General of Registration in No.29704/E2/2004, dated 27.12.2004 and take
a plea that as per the guidelines issued in regard to the implementation of
Samadhan Scheme, the building has been inspected by the Sub Registrar in regard
to the payment of deficit duty insofar as the petitioner is concerned.
33. At this stage, one cannot lose sight of the fact that the building has
been inspected by the authority of the Department on 23.03.2005, of course, in
the presence of the husband of the petitioner.
34. A careful perusal of the contents of the letter of the Inspector
General of the Registration dated 27.12.2004 only points out that the Samadhan
Scheme will apply to the buildings and the completion of inspection in respect
of the building where the documents relate to less value of deficit stamp duty
documents, etc. But, G.O.Ms.No.193 Commercial Taxes Department dated 27.12.2004,
refers to the factum of remission of 40% of the difference of duty chargeable on
the sale of the properties as proposed by the Registering Officer and the duty
already paid and as per paragraph 4(i) of the aforesaid G.O., it will also apply
to the case of a document pending for determination of market value as on
30.11.2004.
35. In the instant case, the petitioner’s sale deed is dated 13.03.2003
and therefore, the petitioner is entitled to get the benefit of G.O.Ms.No.193
Commercial Taxes Department dated 27.12.2004 and the respondent cannot take
shelter or umbrage under the letter of the Inspector General of Registration in
No.29704/E2/2004, dated 27.12.2004, in the considered opinion of this Court.
36. As on the date of the letter of the Inspector General of Registration
in No.29704/E2/2004, dated 27.12.2004, admittedly the inspection of the property
of the petitioner has not been made by any authority of the respondent. So, the
letter at best refers that the Samadhan Scheme will apply to the buildings and
the building where spot inspection has been completed.
37. In strict sense of term, the letter of the Inspector General of
Registration in No.29704/E2/2004, dated 27.12.2004, may not apply to the
petitioner’s case where admittedly spot inspection of the site has been made on
23.03.2005, in the considered opinion of this Court.
38. The object for which G.O.Ms.No.193 Commercial Taxes Department dated
27.12.2004 has been introduced by the Government of Tamil Nadu pertaining to the
Samadhan Scheme will certainly prevail over the letter of the Inspector General
of Registration in No.29704/E2/2004, dated 27.12.2004. To put it differently,
the letter of the Inspector General of Registration in No.29704/E2/2004, dated
27.12.2004, said to be following the Samadhan Scheme which has purportedly
issued the guidelines in respect of the Samadhan Scheme in and by which the
building has to be inspected, cannot override the G.O.Ms.No.193 Commercial Taxes
Department dated 27.12.2004 issued by the Government of Tamil Nadu with an
avowed object. Therefore, the announcement has been made by the Inspector
General of Registration, Chennai – 28, on behalf of the Government of Tamil Nadu
under the Samadhan Scheme that there will be no enquiry, inspection etc., and
the documents will be returned across the counter and also there is an
indication that special counters have been opened in all the Sub Registrar
Offices and the payment has been requested to be made by Cash/D.D/Challan with
an intimation that the said Scheme will be in force from 28.12.2004 to
27.03.2005.
39. Suffice it for this Court to point out that the petitioner is entitled
to get the benefit of G.O.Ms.No.193 Commercial Taxes Department dated
27.12.2004 and also the petitioner is entitled to derive benefit under the
Samadhan Scheme in respect of the sale deed dated 13.03.2003.
40. Accordingly, this Court directs the respondent to make fresh demand on
the petitioner by adhering to the G.O.Ms.No.193 Commercial Taxes Department
dated 27.12.2004 and as per the tenor and spirit of the Samadhan Scheme that has
been in force for the period from 28.12.2004 to 27.03.2005 without inspection of
the site within a period of two weeks from the date of receipt of a copy of this
order and on receipt of the said demand notice from the respondent, the
petitioner is given two weeks time to pay the amount mentioned in the said
demand either by way of cash or demand draft and thereafter, on receipt of the
same, the respondent is directed to return the document concerned within a
period of ten days therefrom to the petitioner.
41. In the result, this writ petition is allowed leaving the parties to
bear their own costs. Resultantly, the impugned order passed by the respondent
in No.2992/05 dated 30.03.2005 is set aside so as to give a complete quietus to
the controversies involved between the parties.
rsb
To
The Joint Sub Registrar No.I,
Sub Registrars Office,
Kanyakumari at Nagercoil,
Nagercoil – 629 001.