In the High Court of Judicature at Madras Dated :: 16..08..2011 Coram :: The Hon'ble Mr. Justice V. Dhanapalan Writ Petition No: 10987 of 2008 K.N. Thangavel Kannudaiyanpalayam Punchaikalamangalam Village Erode Taluk & District. ... Petitioner -vs- 1. The Registrar Registration Department Erode Taluk & District. 2. The Sub Registrar Registration Department Surampatti Erode District. 3. The Tahsildar Erode District. 4. The Village Administrative Officer Punchaikalamangalam Village Erode Taluk & District. ... Respondents ... ... ... Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records of the 1st respondent culminating in and by his proceedings in Ku. Ma. No: 63/B1/99 dated 28.02.2005 and consequential order passed by the 3rd respondent dated 05.04.2008 and quash the same so far as the petitioner concern and consequently directing the respondents 1 and 2 to release the document No: 619/98 dated 25.05.1998. https://hcservices.ecourts.gov.in/hcservices/ For petitioner :: Mr.V. Bharathidasan For respondent :: Mr. L.P. Shanmugasundaram Additional Govt. Pleader .. .. .. O R D E R A proceeding initiated by the District Registrar / the 1st respondent herein in Proceedings Ku.Na. No: 63/B1/99 dated 28.02.2005 and a consequential order passed by the 3rd respondent on 05.04.2008 are called in question, seeking to quash the same and for a consequential direction to the respondents 1 and 2 to release document No: 619/98 dated 25.05.1998. 2. According to the petitioner, by registered sale deeds dated 25.01.1993 and 07.05.1993, the petitioner and one V.K. Mani purchased the lands in question jointly and, thereafter, by a registered partition deed dated 25.05.1998, they have partitioned the said property, which they claim to be agricultural lands. While so, the 2nd respondent in its letter dated 10.04.2000 directed the petitioner to pay a sum of Rs. 1,02,000/- towards deficit stamp duty for Document No: 619 of 1998 for which partition has been effected between the petitioner and the said V.K. Mani. It is the petitioner's case that the said V.K. Mani has assured him that he would approach the respondents 1 and 2 and get the document cleared as the agricultural lands have been treated as commercial lands and in any case, there cannot be a stamp duty of a sum of Rs. 1,02,000/- for the partition which is impermissible in law. The 2nd respondent has sent another letter on 21.03.2003 directing the petitioner and V.K. Mani to produce the document for spot inspection. Even though the petitioner was ready with the document, the 2nd respondent didn't come for inspection. But to the shock and surprise, the 1st respondent issued a certificate under Section 33 A (1) of the Indian Stamp Act, hereinafter referred to as the Act, and directed the recovery of the above said amount under Section 48 of the Act without following the procedure contemplated under Section 33 A (1) of the Act. According to him, no certificate under Section 33 A (1) o the Act shall be granted without due enquiry and an opportunity of hearing and though the letters dated 23.01.2000 and 20.02.2000 have been served on the petitioner, they are not notices under Section 33 A (1) of the Act and the enquiry under the said Section cannot be invoked after three years from the date of registration of the instrument. Even after the order dated 20.08.2005, the said V.K. Mani has informed the petitioner that he will pursue the matter but, he has not chosen to do so. But the 3rd respondent has issued notice under the Revenue Recovery Act on 05.04.2008, thereby informing the petitioner that in the absence of the payment of the amount being deficit stamp duty, the revenue recovery proceedings would be initiated and, therefore, the said proceeding challenged by the petitioner on the ground that the proceedings contemplated by the https://hcservices.ecourts.gov.in/hcservices/ respondents without following the procedure is liable to be set aside as the said proceedings are without issuance of notice and without an opportunity and beyond the period of limitation as prescribed under the Act. 3. The 1st respondent has filed counter and stated that the averment of the petitioner that the properties partitioned between the petitioner and V.K.Mani are agricultural lands are denied as the property comprised in Survey No: 106/1 have been converted as house sites according to Document No: 1695 of 1984 and 704 of 1992 and, therefore, the property value for partition has been fixed as Rs. 20,56,000/- and the stamp duty leviable on the said value is Rs. 82,240/-, according to Article 45 of the Act. Further the registration fee payable is Rs. 20,566/- after deducting the stamp duty of Rs. 1,250/- and the registration fee of Rs.310/- deficit stamp duty and the registration fee totally works out to Rs. 1,01,240/- and this respondent has fixed the sum of Rs. 1,02,000/- as compounding fee in lieu of prosecuting the petitioner and the respondents 1 and 2 are ready to inspect the property but the petitioner failed to turn up to identify the property for inspection. 4. It is the stand of the respondent that certificate has been issued to collect the deficit stamp duty and registration fee under Section 45 of the Act as arrears of land by "inadvertence" and that the said certificate has been issued stating that it is issued under Section 33 A (1) of the Act as the proceedings has not been contemplated under Section 33 A (1) of the Act and hence compliance of the provisions of the said Section are not warranted. Further, the value of the property are not fully and truly set forth in the document. This respondent is empowered to compound the offence and according to Section 70 (3) of the Act, the amount of compensation shall be recoverable in the manner provided under Section 48 of the Act and accordingly, the amount of compensation fixed at Rs.1,02,000/- has been certified to be the collected in the manner provided under Section 48 of the Act and therefore, they prayed for dismissal of the writ petition. 5. Mr.V. Bharathidasan, learned counsel appearing for the petitioner in his submission has strenuously contended that the partition deed between the petitioner and V.K. Mani was presented before the respondent by V.K.Mani and, therefore, what are all notices alleged to have been issued were served and issued in the name of V.K. Mani and not to the petitioner except the impugned proceedings dated 28.02.2005 which according to him is vitiated by Section 33 A (1) wherein a time limit has been provided that no such enquiry shall be commenced after the expiry of three years from the date of registration of the instrument. Therefore, the action taken by the respondents for a document which was presented on 25.05.1998 cannot be proceeded with by the competent authority after the expiry of three years. He would further contend that the competent authority to initiate the proceeding https://hcservices.ecourts.gov.in/hcservices/ is the District Registrar of the concerned Registration District and no other authority is empowered to initiate proceedings and, therefore, any notice which was issued by the Sub Registrar on 10.04.2000 cannot be taken as a notice issued under Section 33 A (1) of the Act. Mr. V. Bharathidasan learned counsel for the petitioner would rely on the decision of this Court reported in 1995 (1) MLJ 40 ( R.M. Ibrahim vs. District Registrar) wherein the Court held that, " 5. Any way, it is clear that without a certificate as contemplated under Section 33 – A no recovery action can be taken by the respondent for recovering any alleged deficit stamp duty. Now the Government Advocate also states that the respondent would take necessary proceedings under Sec. 33-A and that recovery would be taken only after the certificate contemplated under Sec.33-A. Therefore, it is clear that the present order is without jurisdiction. Accordingly, it is quashed and the writ petition is allowed with costs. " Counsel would also rely upon yet another decision of this Court reported in 2003 (3) L.W. 160 (O.N.S. Hyder Ali vs. The Sub Registrar, District Registrar Cadre, O/o. Sub Registrar of Assurances II, Davidson Street, Sowcarpet, Madras – 1). The relevant portion of the decision reads thus, " 5. ..... ....... .... .... ..... That apart, the grievance of the petitioner is that there was n such enquiry at all initiated and only the impugned order directing the petitioner to pay the stamp duty and registration fee has been made. The said impugned order has been made beyond a period of three years. The respondent has no authority to initiate either the inquiry or make a demand in respect of the payment of stamp duty as well as registration fee beyond a period of three years of the registration. In that view of the matter, I find that the impugned order cannot be sustained in the eye of law. Moreover, there is no inquiry whatsoever conducted before such impugned order was passed. In the absence of inquiry, the order is also opposed to Section 33 – A of the Indian Stamp Act, 1899 and Section 80-A of the Registration Act, 1908. 6. In view of the above finding, the impugned order is set aside and the writ petition is allowed. " 6. Per contra, Mr.L.P. Shanmuga Sundaram, learned Additional Government Pleader, on instruction, submits that the impugned notice is issued inadvertently under Section 33 A (1) of the Act instead of Section 48 of the Act and therefore, petitioner cannot take advantage of three years period of limitation by taking shelter under the provisions of Section 33 A (1) of the Act. What are all the https://hcservices.ecourts.gov.in/hcservices/ proceedings initiated on 10.04.2000 and 21.03.2000 were notices issued on the petitioner and, therefore the period of limitation as contemplated under the Act has been scrupulously followed as the petitioner was put on notice and also an opportunity of hearing was extended. He would further contend that the notice issued on 10.04.2000 is in compliance with Section 33 A (1) of the Act and, therefore, the action contemplated under Section 48 of the Act cannot be faulted with. It is his further contention that as against the order passed by the 1st respondent there is an effect appellate remedy under Section 33 A (iii) of the Act is available to the petitioner. 7. I have heard the learned counsel on either side and perused the records and relevant provisions of the Act. 8. A circumspection of facts would reveal that the petitioner along with one V.K. Mani has purchased the property by a registered Sale Deed dated 25.01.1993 and 07.05.1993. Thereafter, they have partitioned the property and entered into a deed of partition on 25.05.1998. The petitioner claims that the lands are agricultural lands and the said document was presented before the respondent on 25.05.1998. Thereafter, the second respondent sent a letter on 10.04.2000 to the petitioner directing him to pay a sum of Rs. 1,02,000/- towards deficit stamp duty for the Document No: 619 of 1998 by which partition has been effected between the petitioner and the said V.K. Mani. Petitioner's claim is that even at the time of presentation of the document, the said V.K. Mani undertook to get the document cleared off from the authorities. However, the 2nd respondent on 21.03.2000 has sent another letter to the petitioner and also to V.K. Mani to produce the document for spot inspection. Though the petitioners claim that they were present, the respondent disputed that the petitioner and the said V.K. Mani were not ready for the spot inspection. While so, the 1st respondent, on 28.02.2005, has issued the certificate under Section 33 A (1) of the Act directing the petitioner to pay a sum of Rs. 1,02,000/- as deficit stamp duty otherwise, they will proceed to recovery the amount under the Revenue Recovery proceedings under Section 34 of the Act. 9. A perusal of the records and the impugned proceeding would reveal that the proceedings contemplated by the 1st respondent is under Section 33 A (1) of the Act and accordingly they proceeded to initiate action to recover the deficit stamp duty of Rs. 1,02,000/- from the petitioner and now the respondents have taken a stand that the certificate has been issued to recover the deficit stamp duty and the registration fee under Section 45 of the Act as arrears of land revenue but by inadvertance the certificate has been issued stating that it is issued under Section 33 A of the Act and that the proceeding has not been contemplated under Section 33 A and therefore, compliance of the provisions of that Section are not warranted. 10. To examine the above position whether the respondents are https://hcservices.ecourts.gov.in/hcservices/ competent to issue proceedings under Section 33 A (1) of the Act, it is relevant to refer to the said provision, which is as follows : " Section 33-A Recovery of deficit stamp duty – (1) Notwithstanding anything contained in section 33 or in any other provision of this Act, if, after the registration of any instrument under the Registration Act, 1908 (Central Act XVI of 1908), it is found that the proper stamp duty payable under this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a certificate from the Registrar of the district under the Registration Act, 1908 (Central Act XVI of 1908) be recovered from the person liable to pay the duty, as an arrear of land revenue. Provided that no such certificate shall be granted unless due inquiry is made and such person is given an opportunity of being heard : Provided further that no such inquiry shall be commenced after the expiry of three years from the date of registration of the instrument. " 11. The petitioner's partition deed was presented on 25.05.1998. Thereafter, the competent authority to proceed with if there is any deficit stamp duty is the Registrar of the District concerned and a certificate to that effect has to be issued for the said amount. It is provided in the said Section that no such certificate shall be granted unless due inquiry is made and such person is given opportunity of being heard. Further, it is clear from the above provision that the competent authority can initiate action within a period of three years from the date of registration of the document. From a perusal of the records, it is clear that though the document was presented on 25.05.1998, the notice issued by the respondent in the name of Mr.V.K.Mani is on 24.01.2000 and 20.02.2002. The communication dated 10.04.2000 addressed to the petitioner is issued only by the Sub Registrar of the Registration District who is not competent under the Act to initiate proceedings under Section 33 A (1). From the analysis of the entire proceedings as well as the records, it is clear that no notice under Section 33 A (1) was ever issued to the petitioner within a period of three years which is the limitation period as provided under the Act. When there was no notice within the period stipulated under the Act and after the period of limitation if a notice is issued by an incompetent authority, it cannot be construed that petitioner has been put on notice and thus was given an opportunity of hearing to defend his case. Though the stand of the respondent is that all the notices were addressed to V.K. Mani who has executed the document in favour of the petitioner and therefore, it should be construed as a notice issued under Section 33 A (1) of the Act, from a perusal of the records it is seen that petitioner being a purchaser and it is his stand that the entire document was received by the concerned V.K. Mani and the respondents have rightly proceeded against him by issuing a https://hcservices.ecourts.gov.in/hcservices/ notice to the said V.K.Mani within the time frame but the said notices were not issued to the petitioner and they have proceeded to issue a certificate under Section 33 A (1) of the Act only in the impugned proceedings dated 28.02.2005 and therefore, any notice as contemplated by the respondents are not notices in favour of the petitioner. Therefore, any proceeding initiated for recovery of the amount from the petitioner cannot be sustained for the reason that the limitation prescribed namely within the period of three years for recovery of the amount from the petitioner cannot be allowed to proceed as it stipulates that the notice of enquiry as well as an opportunity of hearing to be given to the petitioner before recovering the amount by way of Revenue Recovery Proceedings under Section 48 of the Act. 12. The stand taken by the respondents is that it not the proceedings under Section 33 A (1) of the Act, but it is only the proceedings initiated under Section 48 of the Act cannot have a locus to stand for the reason that the proceedings clearly mandates that it is issued under Section 33 A (1) of the Act and nowhere there is a mention that it is contemplated under Section 48 of the Act. That stand has to be vindicated by any document in support of their contention or any document which would reveal that nowhere in the impugned proceedings the respondent has issued a certificate under Section 33 A (1) of the Act on an earlier occasion within the time frame as prescribed. If at all any notice is issued within the time frame, it is only to the said V.K.Mani and not to the petitioner as per law. 13. When the Act contemplates that recovery of the amount of any deficit stamp duty is to be done in the manner as prescribed by initiation of the proceedings by the competent authority and that too after giving notice to the person aggrieved and after hearing the person by giving an opportunity of hearing to him within the time frame, it is incumbent on the respondents to proceed and initiate action only in accordance with law as provided for. They cannot take advantage of the mentioning of the provision by stating that it is inadvertently made. As of now, this action which they contemplate to take against the petitioner cannot be sustained as they are not following the procedure contemplated under the provisions of the Act and also in violation of the principles of natural justice in so far as the petitioner is concerned and therefore, the impugned proceedings in so far as the petitioner is concerned cannot be sustained. 14. For the foregoing reasons and upon perusal of the entire records, I am of the considered opinion that the impugned proceedings contemplated against the petitioner for recovery of the deficit stamp duty under Section 33 A (1) of the Act cannot be allowed to proceed and, therefore, the impugned proceeding is quashed. However, the respondent is at liberty to proceed to recover the amount in the manner as provided under law. The writ petition is allowed with the https://hcservices.ecourts.gov.in/hcservices/ above said directions and observations. Connected miscellaneous petition is closed. There shall be no order as to the costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gp To 1. The Registrar Registration Department Erode Taluk & District. 2. The Sub Registrar Registration Department Surampatti Erode District. 3. The Tahsildar Erode District. 4. The Village Administrative Officer Punchaikalamangalam Village Erode Taluk & District. +1cc to Mr.V.Bharathidasan, Advocate Sr 50629 +1cc to Govt. Pleader Sr 50648 KU(CO) km/7.10. W.P. No: 10987 of 2008 https://hcservices.ecourts.gov.in/hcservices/