1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20.10.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL WA(MD)No.1090 of 2011 and MP(MD)No.1 of 2011 Gnanaselvi :Appellant -Vs- 1.The District Collector, Thoothukudi District. 2.The Special Deputy Collector (Stamps), The Collectorate, Thoothukudi. 3.The Sub Registrar, Kovilpatti. 4.Narayanasamy :Respondents Writ Appeal is filed under Clause 15 of the Letters Patent against the order of this Court dated 9.9.2011 passed in W.P.(MD)No.10297 of 2011. WP(MD)No.10297 of 2011:Writ Petition filed under article 226 of the constitution of India, to issue a writ of certiorari calling for the records pertaining to the notice issued by the third respondent in Na.No.303/2011 dated 24.05.2011 and quash the same. For appellant :Mr.T.A.Ebenezer For respondents 1 to 3 :Mr.S.Venkatesh,Government Pleader. JUDGMENT (Judgment of the Court was delivered by K.N.BASHA, J) Mr.S.Venkatesh, learned Government Pleader, takes notice for the respondents 1 to 3. It is seen that the Writ Court had dispensed with the notice to the fourth respondent. By mutual consent, the Writ Appeal itself is taken up for final hearing. 2.Challenge in this Appeal is to the order of the Writ Court dated 9.9.2011passed in W.P.(MD)No.10297 of 2011 dismissing the Writ Petition filed by the appellant challenging the notice issued by the third respondent dated 24.5.2011 in Na.No.303/2011 in respect of the alleged undervaluation of the property registered. 3.Mr. T.A. Ebenezer, learned counsel appearing for the appellant would contend that the impugned notice dated 24.5.2011 issued by the third respondent herein is in respect of the alleged complaint received for undervaluation of the property which was already registered and as such, the third respondent viz., the Sub Registrar has no jurisdiction to enquire into the allegation of undervaluation of the property, which was already registered.It is contended that as per Section 47-A of the Indian Stamp Act, any enquiry regarding the undervaluation of the property in respect of the market value or in respect of the deficit stamp duty, only the second respondent herein viz., the Special Deputy Collector (Stamps) is empowered to enquire into the matter. Therefore, it is contended that the order of the Writ Court is liable to be set aside as the Writ Court has directed the appellant to appear before the third respondent pursuant to the impugned notice and explain and raise objection regarding the jurisdiction of the third respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 4.Learned Government Government Pleader would submit that the third respondent has only issued a notice dated 24.5.2011 in order to enquire into the complaint preferred by the fourth respondent regarding the alleged undervaluation of the property and the third respondent may refer the matter to the second respondent and as such, there is no illegality in issuing the impugned notice. 5.We have carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the order passed by the Writ Court and impugned notices. 6.A perusal of the impugned notice dated 25.4.2011 coupled with the complaint preferred by the fourth respondent dated 7.4.2011 makes it crystal clear that the impugned notice was sent in order to conduct the enquiry regarding the alleged undervaluation of the property at the time of registration of the sale deed by the the appellant herein. It is pertinent to know that as per provision under Section 47-A of the Indian Stamp Act, only the second respondent viz., the Special Deputy Collector (Stamps) alone is empowered to enquire into the matter of allegation of undervaluation or deficit in stamp duty and not the Sub-Registrar viz., the third respondent herein. Section 47-A of the Indian Stamps Act reads hereunder: "47-A.Instruments of conveyance etc.,under-valued how how to be dealt with – (1) If the registering officer appointed under the Indian Registration Act, 1908 (Central Act XVI of 1908) while registering any instrument of conveyance, exchange, gift, release of benami right or settlement, has reason to believe that the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of market value of such property and the proper duty payable thereon. (2) On receipt of a reference under sub-section (1), the Collector shall, after giving parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or settlement and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty. (3) The Collector may, suo motu or otherwise, within five years from the date of registration of any instrument of conveyance, exchange, gift release of benami right or settlement not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject matter of conveyance, exchange, gift release of benami right or settlement and the duty payable thereon and if after such examination, he has reason to believe that the market value of the property has not been truly set forth in the instrument, he may determine the market value of such property and the duty as aforesaid in accordance with the procedure provided for in sub-section (2). The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty." https://hcservices.ecourts.gov.in/hcservices/ 3 7.A reading of the above said provision would make it abundantly clear that the third respondent has no jurisdiction to conduct enquiry on the allegation of undervaluation of the property and it is only the second respondent who is having such power. It has been stated if the registering officer is having any doubt over the market value of the property registered, he can very well refer the same for deciding the correct value before the second respondent. 8.In view of the same, the impugned notice issued by the third respondent dated 24.5.2011 itself is unsustainable in law as the same was issued not by a competent authority. Such being the position, the appellant cannot be directed to appear before the third respondent for submitting his explanation or objection. It is needless to state that the petitioner is entitled to challenge even notice if the same is issued without jurisdiction or by a incompetent authority. Accordingly, we are constrained to set aside the impugned notice dated 24.5.2011 issued by the third respondent herein and the order passed by the Writ Court dated 9.9.2011 in W.P.(MD)No.10297 of 2011. The Writ Appeal is allowed. The connected Miscellaneous Petition is closed. No costs. It is made clear that it is open to the third respondent herein to refer the complaint preferred by the fourth respondent to the second respondent herein as per the provision under Section 47A(3) of the Indian Stamp Act. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The District Collector, Thoothukudi District. 2.The Special Deputy Collector (Stamps), The Collectorate, Thoothukudi. (asvm) RP/10.11.2011/3P/3C. W.A.(MD)No.1090 of 2011 and M.P.(MD)No.1 of 2011 20.10.2011 https://hcservices.ecourts.gov.in/hcservices/