The Guru Jambeshwar Surphur Gur and Khandasri Production Co-operative Industrial Society Ltd. vs The State of Haryana

H.S. Bedi, J.—Rijhu Ram, Ashok Kumar and Kumar contracted to sell land measuring 4 kanals 14 marlas for a consideration of Rs. four

lacs to the petitioner, M/s The Guru Jambeshwar Sulphur Gur and Khandsari Production Co-operative Industrial Society Ltd. Dhani Majra. The

document was presented for registration before the Sub-Registrar, Fatehbad on 5.1.1983 and though no stamp duty had been affixed on the sale

deed, the Sub Registrar nevertheless registered the document and referred the same to the Collector vide order dated 4.3.1983 u/s 47A of the

Indian Stamp Act, (hereinafter referred to as ""the Act""). The parties, appeared before the Collector on 16.5.1983 and on the objection raised by

the petitioner''s counsel that an un-stamped document could not be registered u/s 47-A of the Act, the matter was returned to the Sub Registrar for

re-consideration. The Sub Registrar thereafter impugned the document vide his order dated 21.5.1983 u/s 33 of the Act and referred the same to

the Collector, who on 2.3.1984 vide Annexure P1 passed a formal order for registration of the document and directed that a stamp duty of Rs.

50,000/- and penalty of Rs. 25,000/- be levied on the vendee, The appeal taken to the Additional District Judge, Hisar was also dismissed vide

order dated 7.1.1986. It is against the aforesaid orders that the present petition has been filed.

Mr. Ajay Kumar Mittal, the learned counsel appearing for the petitioner has argued that it was virtually the conceded position that Section 47-A

of the Act was not applicable as there was no allegation whatsoever that the instrument had been under-valued. He has also urged in this

connection that even Section 33 of the Act was applicable as the document had not come before the Collector in the course of proceedings before

him. In this connection, he has relied on a judgment reported as Rajendra Narayan Singh Deo Vs. State of Orissa, .

Mr. C.R. Dahiya, the learned Deputy Advocate General, Haryana appearing for the State has, however, pointed out that it was the admitted

position that the matter had come before the Collector on a reference made by the Sub-registrar and it was in fact the Sub-Registrar, who had

initially registered the document and then referred it for the orders of the Collector and as such Section 33 of the Act was clearly applicable to the

facts in issue. In this connection, he has relied upon a judgment reported as Kethineedi Jainendra Kumar Vs. District Registrar, Eluru and another, .

I have considered the arguments advanced by the learned counsel for the parties.

It is true that Section 47-A would not be applicable but the matter clearly falls u/s 33 of the Act. It can, by no stretch of imagination, be said that

the document had not come before the Collector in the performance of his duties. As already discussed above, the document had initially been

registered by the Sub-Registrar and thereafter sent it to the Collector for further action as per the provisions of the Act. The judgment cited by Mr.

Mittal is not applicable to the facts of the case, whereas the one cited by Mr. Dajiya clearly supports his argument.

It has then been pointed out by Mr. Mittal that there appeared to be some confusion with regard to the liability to pay stamp duty on the

document as vide notification of the State Government dated 15.7.1948, exemption in the payment of the stamp duty had initially been granted by

the Punjab Government to a certain class of Cooperative Societies, but by a notification dated 9.2.1962 (Annexure R1), the aforesaid exemption

with respect to Industrial Cooperative Societies such as the petitioner herein, had been withdrawn and it appeared that the Sub-Registrar had

under the misconception that no stamp duty was leviable had at the very outset registered the document without payment of stamp duty. The facts

leading to the case clearly support this view as well. Admittedly the document had not been stamped, but the Sub-Registrar had at the initial stage

registered the same without any objection. It is significant that the sale deed had been registered on 5.1.1983 by the Sub Registrar and thereafter

impounded by him u/s 47-A of the act on 4.3.1983, i.e., after almost two months. It is, therefore, obvious that there was absolutely no mala fide

on the petitioners'' part in not affixing any stamp duty on the document in question. I am, therefore, of the opinion that the levy of Rs. 25,000/- by

way of penalty was not justified. While admitting this petition on 9.7.1986, the recovery of the penalty had been stayed by this Court. It is,

therefore, obvious that the recovery of the penalty has not been made. This petition is accordingly partly allowed and it is directed that while the

other parts of the order shall be maintained as they are, the order with regard to the levy of penalty be quashed.