Suresh Kumar and Others vs State of Punjab

Paramjeet Singh, J.—Instant civil revision petition has been filed for setting aside the order dated 30.06.1995 passed by Collector, Faridkot and order dated 17.10.2000 passed by [earned Additional District Judge, Faridkot. Shorn of unnecessary details, the facts relevant for disposal of the present petition are to the effect that Joint Registrar, Gidderbaha vide his letter No. 44/Rakba dated 02.05.1994 sent the complaint of one Mohan Lal son of Desh Raj, r/o Gidderbaha to the Collector, Faridkot for initiation of proceedings u/s 47A (as applicable in Punjab) of the Indian Stamp Act, 1899 (in short "the Act") with regard to attestation of undervalued sale deeds No. 319 and 321 dated 27.04.1994. In pursuance to the complaint, notices were issued to the petitioners-respondents u/s 47A of the Act. They put in appearance through their counsel, however, the vendors did not come present in spite of munadi, therefore, they were proceeded ex parte. Reports from Tehsildar, Muktsar and Executive Officer, Municipal Council, Gidderbaha were received. After hearing the parties, the Collector, Faridkot came to the conclusion that the sale deeds have been attested at a lesser value to the tune of Rs. 197850/- as fixed by the Collector. In this way, stamp duty of Rs. 24,731/- has been evaded and is liable to be recovered and notice for recovery was issued. Feeling aggrieved by the order of Collector, the petitioners preferred an appeal before learned Additional District Judge, Faridkot which has been dismissed vide impugned order dated 17.10.2000. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Sections 2(12) and 47A (as applicable in Punjab) of the Act, Rules 3 and 3-A of the Punjab Stamp (Dealing of under-valued Instruments) Rules, 1983 are relevant to decide the controversy that arises in the present petition. These provisions are reproduced before:

For Punjab Section 47A Instruments under-valued how to be dealt with:

(1) If the market value of any property, which is the subject of any instrument on which duty is chargeable on market value as set forth in such instrument, is less than even the minimum value as determined in accordance with the rules made under this Act, the Registering Officer appointed under the Registration Act, 1908, shall, after registering the instrument, refer the same to the Collector for determination of the market value of such property, and the proper duty payable thereon; and]

(2) On receipt of reference under Sub-section (1), the Collector shall, after giving the parties reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules under this Act, determine the value or consideration and the duty as aforesaid, and the deficient amount of duty, if any, alongwith interest at the rate of twelve per cent per annum on such deficient amount, shall be payable by the person liable to pay the duty from the date of registration of the instrument relating to such property to the date of payment of deficient amount of the duty;

Provided that a person shall also be liable to pay penal interest at the rate of three per cent per annum, if there was an intentional omission or lapse on his part in not setting forth the correct market value of such property.].

(3) The Collector, may, suo motu, or on the receipt of a reference from the Inspector General of Registration or Registrar of a District appointed under the Registration Act, 1908 (Central Act No. 16 of 1908), in whose jurisdiction the property or any portion thereof which is the subject matter of the instrument is situated or on the receipt of a report of audit by the Comptroller and Auditor General of India or by any other authority authorized by the State Government in this behalf or otherwise, within a period of three years from the date of the registration of an instrument, call for and examine any instrument for the purposes of satisfying himself as to the correctness of the value of the property or of the consideration disclosed and of all other facts and circumstances affecting the chargeability of the instrument or as to the true character and description thereof and the amount of the duty with which it was chargeable and if after such examination, he has reason to believe that proper duty has not been paid, he may, after giving the person concerned reasonable opportunity of being heard and after holding an enquiry in the manner provided under sub-section (2), determine the value of the property or the consideration or the character or description of instrument and the duty with which it was chargeable and the deficient amount of duty, if any, would be payable by the person liable to pay duty:

Provided that a person shall also be liable to pay penal interest at the rate of three per cent per annum, if there was an intentional omission or lapse on his part in not setting forth the correct market value of such property.

(4) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3) may, within thirty days from the date of that order, prefer an appeal before the District Judge and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this Act.

Explanation.--For the purpose of this section, value of any property shall be estimated to be the price which in the opinion of the Collector the appellate authority, as the case may be, such property would have fetched, if sold in the open market on the date of execution of the instrument relating to the transfer of such property.

Rule 3.

Rule 3 Description of land/property to be included in the instruments.-

The following description of agricultural land, non-agricultural land, gardens and buildings, as the case may be, shall be inserted in the instrument of transfer presented for registration, namely:--

(1) In case of agricultural land,

(a) Khasra Number/Khewat/Khatauni Number of latest Jambandi area and location

(b) Kind of land (chant, barani, banjar etc.)

(c) If under cultivation, whether sown once or more than once in a year.

(d) Whether falling in urban or rural area.

(e) Minimum market price fixed by the Collector.

(2) In case of non-agricultural land,

(a) Khasra No./Khewat/Khatauni No. of latest jamabandi/plot Number area and location of land.

(b) Whether falling in urban or rural area.

(c) Purpose for which the land is being used presently.

(d) Minimum market price fixed by the Collector.

(3) In case of Gardens, -

(a) khasra No./Khewat/Khatauni No. of latest jamabandi area and location of land.

(b) Number of trees, kind, size and age.

(c) Whether falling to urban or rural area.

(d) The amount of average income per year derived during the last three years.

(e) Minimum market price fixed by the Collector.

(4) In case of Buildings-

(a) Name/Number of building, total area, constructed area and open area.

(b) Whether the building is used as Industrial/Commercial/Residential premises.

(c) Number of storeys and area of each storey.

(d) Whether the construction is of mud or cement, concrete of R.C.C. and year of construction.

(e) Type of construction, concrete, pucca bricks or other material.

(f) Annual rent, if given on rent.

(g) Amount of Annual House Tax, if assessed.

(h) Nature of Economic, Industrial, Developmental activity being run in the building.

(i) Minimum market price fixed by the Collector.

The description of land/property shall also be stated in Form I (in duplicate) appended to these rules and it shall be attached to the instrument presented for registration.]

3-A Procedure to be adopted for fixation of minimum value of land/property - The Collector of district shall in consultation with Committee of experts consisting of officers of the department of Public Works (Building and Road), Department of Revenue and Rehabilitation, Punjab Urban Development Authority, Department of Local Government, Department of Rural Development and Panchayats Department of Horticulture/Forest/Town Planning/Industries or any other department as may be found desirable, fix the minimum market value of land/properties, located in his district, locality-wise and category-wise and convey the same to the Registering Officers) for the purposes of levying of stamp duty on instruments of transfer of any property. The value of agricultural land will be fixed per acre/per bigha whereas for other lands/properties, it will be fixed per Maria, per square yards/per square feet/per square metre keeping in view the following factors:--

(a) In case of agricultural land -

(i) Classification of land.

(ii) Sources of irrigation.

(iii) Distance from roads, Bazars, Bus Stand, Railway Station, Factories, Educational Institutions, Hospitals, Government offices and shopping complexes.

(iv) Situation of land like urban/rural.

(v) Number of crops per year sown.

(vi) Any other special feature having bearing on valuation.

(b) In case of non-agriculture land-

(i) Distance from Roads, Bazars, Bus Stand, Railway Station, Factories, Educational Institutions, Hospitals Government Offices and Shopping Complexes.

(ii) Situation of land like urban/rural.

(iii) Purpose for which the land is being used presently.

(iv) any other special features having bearing on the valuation.

(c) In case of buildings-

(i) Type of construction, i.e. Concrete, pucca bricks or other material.

(ii) Year of construction.

(d) In case of gardens

(i) Kind of land.

(ii) Source of Irrigation.

(iii) Cost of trees, according to their kind, value, size and age.

(iv) Income being derived out of the garden.

(v) Whether situated in urban or rural area.

(vi) Any other special features having bearing on the valuation.

Note: The list of factors given above is only indicative and not exhaustive.

The rates so fixed, will be revised by the Collector, once a year as far as possible in the month of March and to be effective from first April of each year or after one month of its fixation. Copies of rates so fixed/revised shall be made available by the Collector to the Government, Inspector General of Registration, Punjab, Commissioners of Divisions, Sub Divisional Magistrate and the Registering Officers concerned. The Registering Officers will display the rate lists on the notice board for the information of general public. The value of land/properties so fixed/revised shall be deemed to be the price, which it would have fetched if sold in public auction.

From the perusal of above provisions, it is clear that the guidelines provided by the State Government only serve as a prima facie material available before the Registering Authority/Col lector to alter or to decide regarding the value. It is common knowledge that value of the property vary from place to place. In fact no absolute, maximum or minimum value can be determined. It would depend on the prevailing prices in the locality in which land covered by the instrument is situated. It is only on objective satisfaction that the authorities have to reach that the sale consideration and valuation in the documents sought to be registered is properly set forth as per the rates prevailing in market when it is presented for registration. The ultimate decision has to be taken by the Collector after taking into consideration the provisions envisaged in Sections 47A (as applicable in Punjab) of the Act, Rules 3 and 3-A of the Punjab Stamp (Dealing of under-valued Instruments) Rules, 1983.

There is nothing in the impugned orders with regard to the prices on the basis of which the stamp duty is calculated. The price is required to be determined in the light of evidence led by the parties and thereupon the stamp duty is to be calculated and fixed. Having considered the facts and circumstances of the present case particularly the facts that there is nothing to indicate as to how the value has been fixed by the Collector, location/description of the land viz. khasra number, distance and direction from the main road etc., this Court is of the view that findings of courts below are perverse. In view of this, the impugned orders dated 30.06.1995 and 17.10.2000 are set aside and the case is remanded to the Collector Sri Muktsar Sahib for fresh decision by affording adequate opportunities of leading evidence to the parties. Parties through their counsel are directed to appear before the Collector, Sri Muktsar Sahib on 01.10.2013.