ASHOK KUMAR PADHY Vs. STATE OF ODISHA

JUDGEMENT

(1.) In this writ petition, the petitioner has made prayer to quash the proceeding in U.V.M.C. No.417 of 2008 and Certificate Case No.26 of 2014, and consequential notices at Annexures-2, 4 series and 6.

(2.) Petitioner's case is that on the basis of the claim to be the owner on the strength of Hat Patta alleged to have been granted by the ruler of Kanika Estate, one Rabindra Nath Lenka executed in favour of the petitioner registered sale deed no.5064 dated 24.8.2005 in respect of the land measuring an area of Ac.2.500 pertaining to plot no.321 under Khata No.619 of Mouza Chandrasekharpur recorded in the name of G.A. Department of the State of Orissa. At the time of registration, the petitioner was not aware of the fact that the above said land stands recorded in the name of the Government. In such circumstances, the sale deed executed in favour of the petitioner does not confer title over the land to the petitioner. The petitioner also never claimed title over the land nor possession of the land was delivered to the petitioner. The petitioner being aware that he has not derived any title on the strength of the aforesaid sale deed, never claimed any interest over the same. When the matter stood thus, the petitioner received notice at Annexure-2 from the Stamp Collector, Cuttack in U.V.M.C. No.417 of 2008 for payment of deficit stamp duty and registration fees payable under the Indian Stamp (Orissa Amendment) Act, 1962 purported to have been issued under Rule 25 (1) of the Orissa Stamp Rules, 1952. In response to such notice, the petitioner filed representation at Annexure-3 stating therein that the registered sale deed executed in favour of the petitioner having not conferred any title, the petitioner is not liable to pay any stamp duty. It is specifically averred at paragraphs 6 and 8 of the representation that the petitioner is not at all interested to take advantage and benefit of the registered sale deed in question and that he does not accept and admit the registered sale deed and the property purported to have been conveyed therein. No opportunity of hearing was given to the petitioner on his representation. However, the petitioner received notice at Annexure-4 series in Misc. Case No.26 of 2014 from the Special Certificate OfficerCum-Sub-Collector, Berhampur with regard to requisition for certificate received from the Stamp Collector-Cum-Deputy Inspector General of Registration, Cuttack for payment of deficit stamp duty and registration fees. The petitioner filed application denying his liability at Annexure-5 stating, inter alia, at paragraph-6 as follows:

(3.) A counter affidavit has been filed on behalf of opposite party nos.1 to 4 by opposite party no.3-Deputy Inspector General of Registration, Odisha. It is averred that the stamp duty and registration fees having been detected to be undervalued, there is no infirmity in initiating proceeding under Section 47-A of the Indian Stamp Act, 1899 (for short, 'the Act') followed by certificate proceeding as provided under Section 48 of the said Act. Upon reference to Section 47-A read with Section 2(14) of the Act, it is averred that the sale deed executed in favour of the petitioner is an 'instrument' of conveyance by way of sale and as 4 such chargeable with duty. Provisions under Registration Act, 1908 and the Act regulate procedure for registration of chargeable instruments. Sale deed executed in favour of the petitioner contains recital regarding payment of consideration amount. By executing the sale deed the vendor of the petitioner purported to transfer the right in favour of the petitioner. In view of non-payment of required stamp duty and registration fees, proceedings were initiated against the petitioner for realization of deficit stamp duty and registration fees in accordance with statutory provisions. The petitioner ought to have resorted to statutory provisions for redressal of his grievance. It is further averred that validity of document has no concern with the chargeability of stamp duty. Whether the person executing the instrument is authorized to execute is not material and relevant. The only thing which is relevant is that the document should be an instrument chargeable to stamp duty which is realizable on its execution. In the present case, the registering authority, while checking the valuation of the property purported to be sold to the petitioner, upon reference to other sale deeds concerning the similar nature of land, found the sale deed to have been undervalued and submitted report to the Stamp Collector. The Stamp Collector disposed of the matter by order dated 18.12.2013 at Annexure-A after complying with the requirements of Section 47-A of the Act. The petitioner was directed to deposit the deficit stamp duty and registration fees by issuing of notice at Annexure-B to the counter affidavit, copy of which is also at Annexure-2 to the writ petition. As the petitioner did not deposit the dues, the matter was referred to Collector, Ganjam for collection of Government dues by resorting to provisions under the Orissa Public Demands Recovery Act vide requisition at Annexure-C. It is further averred that in view of provision under Section 55 of the Transfer of Property Act providing for rights and liabilities of the seller and buyer, the parties to the sale deed have executed the document after ascertaining the entire facts. Reiterating that the validity of the document has no concern with the chargeability of stamp duty, it is averred that unless the sale deed is declared null and void, the petitioner is liable to pay deficit stamp duty and registration fees. It is also averred that examining the status of land transacted through an instrument is beyond the purview of the Stamp Collector and moreover, the petitioner had never raised any objection before the Stamp Collector in the under valuation proceeding. Under valuation is no way related to the right, title, interest and status of the land. The petitioner ought to have participated in the under valuation proceeding or before appropriate fora against the orders passed by Stamp Collector and Certificate Officer instead of filing the writ petition.