Jatinder Kumar vs Commissioner, Ambala Division and Others

Jasbir Singh, J.—This order will dispose of CWP Nos. 7886 of 2009, 7897 of 2009 and 7918 of 2009. For facility of reference, facts are being mentioned from CWP No. 7886 of 2009.

This writ petition has been filed to lay challenge to order dated 26.2.2007 (Annexure P3) and order dated 28.11.2007 (Annexure P6) directing the petitioner to deposit an amount of Rs. 3,35,200/-towards payment of deficient stamp duty, affixed on the sale deed which was executed on 7.12.2004.

Record reveals that on 7.12.2004, the petitioner purchased land vide sale deed No. 9622. After registering the sale deed, the Sub-Registrar made a reference u/s 47-A of the Indian Stamp Act, 1899 (in short the Act), stating that the petitioner had under value the land purchased by him, which has caused loss to the exchequer. On receipt of reference, the Collector issued notice to the petitioner to show cause as to why he be not asked to pay towards deficient stamp duty. Petitioner appeared with his counsel, filed written reply before the Collector, wherein it was stated that the land was correctly purchased @ Rs. 450/-per sq.yards which is more than the Collector rate fixed for the area in question. It was further stated that the purchased land is situated away from the Abadi and it is not residential or commercial property. Beyond that no evidence was put on record. The Collector on 7.2.2007, went to the spot along with Patwari and Kanungo and found that the purchased land was situated on pucca street on Jagadhri Bilaspur road in Khasra No. 17, 23/1. It was further noticed that many factories are situated near to the site in dispute and accordingly, the Collector assessed value of the land, in dispute, at Rs. 1300/-per sq.yards. The petitioner was directed to pay an amount of Rs. 3,35,200/-towards deficiency in payment of stamp duty. The petitioner went in appeal, which was dismissed on 28.11.2007. Hence, this writ petition.

Counsel for the petitioner, by placing reliance on a Division Bench judgment of this Court in Naresh Kumar and Ors. v. State of Haryana and Anr. 2004 (4) R.C.R. 217, has vehemently argued that the Collector, before passing the impugned order Annexure P3, has not conducted an enquiry, as is envisaged under the provisions Section 47-A of the Act. He further argued that the petitioner was not given an opportunity to lead evidence, which has resulted into grave loss to him. Counsel also averred that to rebut spot inspection report, no opportunity was provided to the petitioner. By stating as above, he prayed that this writ petition be allowed and the impugned orders be set aside.

After hearing counsel for the petitioner, this Court feels that no case is made out for interference at the instance of the petitioner and this writ petition is liable to be dismissed.

Amount, in dispute has been ordered to be realized by invoking the provisions of Section 47-A of the Act, which reads thus:

47-A. Instruments under-valued how to be dealt with -

(1) If the Registering Officer appointed under the Registration Act, 1908, while registering any instrument transferring any property has reason to believe that the value of the property or the consideration, as the case may be, 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 value or consideration as the case may be, and the property duty payable thereon.

(2) On receipt of 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 value or consideration and the duty as aforesaid and the deficient amount of duty, if any, shall be payable by the reason liable to pay the duty."

It is contention of counsel for the petitioner that as per provisions of Sub-section 2 of Section 47-A of the Act, no reasonable opportunity of hearing was given to the petitioner, no enquiry was conducted and the impugned order was passed without complying with the principles of natural justice.

This Court feels that contention raised is liable to be rejected. Under the Act, Rules known as Haryana Stamp (Prevention of Undervaluation of Instruments) Rules, 1978 have been framed. Rule 4 reads as under:

Rule 4. Assessment of Duty.-(1) On receipt of reference under Sub-section (1) of Section 47-A, the Collector shall serve on the person or persons concerned a notice in form I, requiring him on a date and at a place to be specified therein either to attend in person or through an authorized agent to produce or to cause to be produced any evidence on which such person or persons may reply in his support.

(2) The Collector, after taking such evidence as the person or persons may produce and after making such enquiry as he may deem proper, shall determine the value of property or consideration as the case may be, and assess the amount of deficient duty recoverable from the person concerned.

(3) If the person or persons fails or fail to attend in response to the notice served under Sub-rule (1), the Collector shall proceed ex parte and assess the deficient amount of duty, if any, to the best of his judgment.

Reading of the above said provision indicates that a person concerned is entitled to get a notice from the Collector, stating date of appearance and asking him to produce any evidence on record to rebut averments made against him in that notice. Rule further mandates that the Collector after taking note of such evidence, as may be produced by the person concerned and after making enquiry, shall determine value of the property and assess amount of deficient stamp duty, if any.

In the present case, the petitioner was directed to put in appearance before the Collector vide notice dated 10.3.2005, wherein it was stated as under:

You are hereby directed to appear before the undersigned in person or by a duly authorized agent on 18.3.05 day of ___ at 10.00 A.M. to answer the claim and as the date fixed for your appearance as appointed for final disposal of the case you must be prepared to produce on that day all witnesses upon whose evidence and all the records and documents upon which your reply in support of claim is based.

Reading of extract of the notice shows that the petitioner was directed to file his reply and produce any other evidence on record to negative claim raised against him. It is an admitted fact that on the date fixed, except filing reply, the petitioner led no evidence on record to prove that sale deed was got executed as per market value of the land purchased. Even thereafter, he did not ask for any opportunity to produce evidence. Compelled under the circumstances, the Collector went to the spot on 7.2.2007, taking note of situation of the plot purchased, he assessed value of the land @ Rs. 1300/- per sq.yards.

To press his claim, counsel for the petitioner has placed reliance upon a Division Bench judgment of this Court in Naresh Kumar''s case (supra), wherein similar controversy was under consideration of the Court and after discussing facts of that case, it was observed as under:

In the present case, respondent No. 2 determined the value of the property as per the rate fixed by the Collector without giving notice to the petitioners that he proposes to take into consideration the said rate and without considering the evidence produced by them. To put it differently, respondent No. 2 abdicated his discretion, which he was expected to exercise judiciously, to the rate fixed by the Collector and made determination without applying mind to the requirement of Section 47-A(2) of the Act read with Rule 4 of the Rules.

In view of facts of this case, as narrated above, benefit of above said judgment, cannot be extended to the petitioner. Vide notice Annexure P1, the petitioner was cautioned to put on record his entire evidence, which he failed. Rule 4 also mandates that it is for the noticee to produce evidence before the Collector.

To test argument of the petitioner that the sale deed was got registered by giving correct price of the land, vide order dated 26.5.2009, he was directed to place on record sale deeds and any other documentary evidence to show that the stamp value of the land, at the time of purchase, was less than Rs. 1300/-per sq.yards. Case was adjourned to today. Nothing has been brought on record to show that value of the land was less than the value assessed by the Collector.

In view of above, the petitioner cannot allege that there was no opportunity with him to dispute value of the property, as assessed by the Collector.

In view of above, this writ petition fails and is dismissed.