Kamta Prasad Tewari vs Chief Revenue Controlling Authority and Another

P.K. Jain, J.—Heard Sri H. N. Sharma, learned Counsel for the Petitioner and the learned standing counsel representing the State.

By the present writ petition, the Petitioner challenges the order of the Collector (Annexure 5 to the writ petition) and the order of the revisional court (Annexure 6 to the writ petition).

Brief question raised for consideration is whether while acting u/s 47A of the Indian Stamp Act, 1899 on the report of the Registering authority, the Collector can impose penalty as envisaged in Section 40 of the Indian Stamp Act, 1899 (hereinafter called as the Act)?

Admitted facts are that the Petitioner presented before the Sub-Registrar, Bindki, district Fatehpur a Waqfnama which is said to have been executed by one Mukhlal in favour of Banumanji Maharaj Virajman, Mandir. In the said Waqfnama, valuation of the property was not mentioned. The Sub-Registrar, therefore, referred the matter to the Collector, Fatehpur u/s 47A of the Act for determination of the market value of the property involved in the said deed so that proper stamp fee payable by the Petitioner may be determined. The Collector on such a reference fixed the market value at Rs. 46,475 and deficiency in the stamp duty at Rs. 1,745.75 paise and further imposed penalty of Rs. 8,178.75 paise, being five times of the stamp duty evaded by the Petitioner. The revisional authority upheld the order of the Collector observing that penalty could be imposed u/s 40 of the Indian Stamp Act.

During arguments, learned Counsel for the Petitioner conceded that he was ready to pay the amount of duty fixed by the authorities below but he seriously challenges the orders of the authorities below imposing penalty. His main contention is that in a case referred u/s 47A to the Collector, he has no authority to impose any penalty. In support of his contention, the learned Counsel for the Petitioner has referred to a Division Bench case of this Court in Kaka Singh Vs. The Additional Collector and District Magistrate (Finance and Revenue), Bulandshahr and Another, . In paragraph 17, the Division Bench of this Court held as follows:

We find force also in the argument of the Petitioner''s learned Counsel that since Section 47A does not empower the Collector to impose penalty in the event of his finding that the market value was not truly set forth in the instrument, such an order imposing the same would be beyond Section 47A. For imposing penalty in a case like the present power was specifically to be conferred. In the absence of a specific provision made in that respect, it is not possible to uphold the contention of the standing counsel that penalty could be imposed whenever and wherever the Collector u/s 47A finds that the value set forth was not true. While enacting Section 47A, the Legislature, although empowered the Collector to determine the market value of the property, which is the subject of conveyance and the duty payable thereon, it did not make any provision empowering the Collector to impose penalty.

A plain reading of Section 47A of the Act amended by U.P. Amendment Act No. 11 of 1992 would show that the powers u/s 47A to the Collector are restricted to determining the market value of the property and the proper duty payable thereon. There is nothing in Section 47A of the Act which empowers the Collector to impose any penalty in such cases. The revisional court in its order dated 9.7.1979 observed that u/s 40 of the Act, the Collector was empowered to impose a penalty not exceeding ten times the amount of the duty or of the deficient portion of the duty. The view taken by the revisional court does not appear to be correct. It is well-settled that Section 40 of the Act can applies only whenever instrument is impounded u/s 33 or it is sent to the Collector by an authority receiving the said instrument in original as evidence u/s 38(2) of the Act. None of these conditions are satisfied in the present case and, therefore, the view taken by the revisional authority that the penalty could be imposed u/s 40 of the Act cannot be upheld.

In view of the foregoing discussions, the petition deserves to be partly allowed and is hereby partly allowed. The orders of the authorities below imposing penalty of Rs. 8,178.75 paise hereby quashed.

The stay order dated 14.9.1979 is hereby vacated.