IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 11137 of 2007 Date of Decision: April 10, 2008 S.B. Agro Foods Nihal Singh Wala …Petitioner Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA Present: Ms. G.K. Mann, Advocate, for the petitioner. Ms. Charu Tuli, Sr. DAG, Punjab, for the respondents. M.M. KUMAR, J. The instant petition is directed against order dated 22.8.2006, passed by the Collector-cum-Deputy Commissioner, Moga-respondent No. 3 (P-1) and order dated 23.1.2007, passed by the Commissioner, Ferozepur Division, Ferozepur-respondent No. 2 (P-2). In both the orders it has been held that the petitioner vendee had resorted to evasion of stamp duty alongwith the registration fee by showing far less sale price in the sale deed, dated 10.12.2002 which was executed only for Rs. 3,91,500/-. The basis for re-opening of the case is the complaint made by the vendor Shri Lachman Singh, C.W.P. No. 11137 of 2007 who had stated that he has, in fact, received Rs. 23,70,000/- for the land in question. Brief facts of the case are that on 11.10.2004, the Inspector Registration-cum-Sub Divisional Magistrate-respondent No. 4, made a report that sale deed No. 1976, dated 10.12.2002, in respect of land measuring 19 Kanals 7½ marlas, was executed for Rs. 3,91,500/- by Shri Lachman Singh in favour of the petitioner. Subsequently, said Lachman Singh made a complaint that sale agreement in respect of the land in question was executed for a sum of Rs. 23,70,000/-, which was kept by the vendee-petitioner, and he had received the full amount. The vendor-complainant also alleged to have furnished proof regarding use of sale consideration amount. Respondent No. 4 recommended for initiation of proceedings under Section 47-A of the Indian Stamps Act, 1899. In response to the notice issued by respondent No. 3, the vendee petitioner appeared and refuted the allegations. On 2.8.2006, the statement of the vendor- complainant Shri Lachman Singh was recorded wherein he denied the factum of having made any complaint and that the sale deed was not made for Rs. 23,70,000/- rather it was for Rs. 3,91,500/-. However, on the basis of the earlier statement dated 7.7.2004, made by the vendor-complainant before the Sub Divisional Magistrate, Nihal Singh Wala, respondent No. 3 came to the conclusion that the vendor complainant has changed his version because of pressure exerted upon him by the vendee-petitioner. Accordingly, it has been ordered to pay the deficient amount of Rs. 1,38,590/- towards less stamps and 2 C.W.P. No. 11137 of 2007 less registration fees and further ordered to recover 12% interest on the less amount deposited w.e.f. 10.12.2002 till the recovery is made (P-1). Feeling aggrieved, the petitioner preferred an appeal under Section 47-A of the Act before the Commissioner, Ferozepur Division, Ferozepur-respondent No. 2, which has been dismissed vide order dated 23.1.2007 (P-2). The whole basis for passing the orders by the District Collector-cum-Addl.Deputy Commissioner, Moga is the statement made by the vendor complainant before the Naib Tehsildar on 7.7.2004 which infact has been heavily relied upon by the Sub Divisional Magistrate in his report dated 1.10.2004. However, the vendor complainant before the District Collector cum Addl. Deputy Commissioner made a statement on 2.8.2006 explaining that he never made such a statement before the Naib Tehsildar, Nihal Singh Wala although it was signed by him. He further submitted to explain that somebody by mis-chief got the statement recorded and that he know only how to sign but could not read. He specifically controverted the allegation that the sale price of the land in question was Rs.23,70,000/- as alleged rather than the price shown in the sale deed namely Rs.3,91,500/-. It is further interesting to note that the vendor complainant had stated that his signatures were obtained for the purposes of entering mutation for the land which he had purchased at Dhurkot Ran Sinh on the blank paper. The Naib Tehsildar Nihal Singh Wala is alleged to have recorded a statement. However, the District Collector cum Addl. Deputy Commissioner adopted the 3 C.W.P. No. 11137 of 2007 approach by placing reliance on the statement made by the vendor complainant on 7.7.2004 by observing as under: “ I have seen all the documents came on record and the report of Sub Divisional Magistrate Nihal Singh Wala and the reply of the respondent dated 30.3.2005 and the affidavits of the witnesses. Shri Lachman Singh son of Shri Sohan Singh resident of Dhurkot Ransih sold the disputed land to M/s SB Foods Agro and he himself got his statement recorded on 7.7.2004 before Naib Tehsildar Nihal Singh Wala that he and his brother had used the amount. He himself admitted that he sold 19 kanal 7/1/2 marla for a consideration of Rs.23,70,000/- and sale agreement was also reduced into writing, which was written by Kehar Singh, deed writer. This sale agreement is with the purchaser.” The basic reason for discarding the statement of vendor- complainant has been recorded in the last para of the order. It has been observed by the District collector cum Addl. Deputy Commissioner that the vendor complainant had made a complaint that the sale deed was not executed on the basis of the agreement to sell and lateron he resiled from his earlier statement because of the pressure of the vendee-petitioner. The afore-mentioned factual position is evident from the concluding para of the order which reads thus: 4 C.W.P. No. 11137 of 2007 “ From the facts mentioned above, it is proved that Lachman Singh seller first made a complaint that this registry was not executed based on the agreement. However, lateron because of pressure put by the purchaser, he resiled from his earlier statement as in his earlier statement he has stated that after selling the land, they had purchased 30 kanals of land in village Dhurkot Ransih and had spent the money on domestic purposes. From all these facts, it is proved that the sale deed has been executed on less rate and not as agreed between the parties and later on he resiled from his earlier statement. As such I exercising the powers under the Indian Stamp Act 1899 and the Rules framed thereunder, I fix the deficient amount of Rs.1,38,590/- towards less stamps and less registration fees and also, order to recover 12% interest on the less amount deposited w.e.f. 10.12.2002 till the recovery is made. As such the respondents be issued a notice under Section 5(1) under form No.2 to deposit the amount of less stamps and registration fee from the registration of document under section 47 A, sub section 3 till the amount of stamps and registration fees with 12% interest in the government treasury and submit the copy of challan/ receipt within thirty days, otherwise the same will be recovered by declaring it 5 C.W.P. No. 11137 of 2007 revenue deficiency. The file after its compliance be consigned to the record room.” (Emphasis added) Even the statement by the District Collector cum Addl. Deputy Commissioner has been accepted by the Commissioner, Ferozepur Division, Ferozepur which is explicit from the perusal of para 5 of the order dated 23.1.2007 and the same reads thus: “ I have considered the arguments advanced by the learned counsel for the appellant and written arguments of the State representative and have perused the record of the case. The statement dated 7.7.2004 made by Lachhman Singh vendor before the Naib Tehsildar Nihal Singh Wala shows that he had his two brothers had sold 19 kanals 7.1/2 marla of land on 10.12.2002 to S.B.Agro Foods, Nihal Singh Wala whose owner is Suraj Bhan son of Madan Lal of Nihal Singh Wala for 23,70,000-/- but the vendee got the sale deed executed only for Rs.3,91,500/-. In the ruling reported in 1975 Current Law Journal it has been held by the Hon’ble Punjab and Haryana High Court that “plaintiff/ respondent cannot be allowed to approbate and reprobate by taking inconsistent stand. Moreover as per the written statement filed by the Sub Registrar, Nihal Singh Wala Barnala Road and its incremental and locational value play a very important role in the present case. The learned Collector, therefore, rightly directed the appellant to pay deficiency 6 C.W.P. No. 11137 of 2007 of stamp duty and registration fee amounting to Rs.1,38,590/- alongwith interest @ 12%. I do not see any force in the appeal and dismiss the same.” After hearing learned counsel for the parties at a considerable length we find that the District collector cum Addl. Deputy Commissioner, respondent no.3 and commissioner, Ferozepur Division, Ferozepur, respondent no.2 have committed grave error in law by accepting the statement of the vendor complainant to be a gospel truth and discarding his later statement. The vendor complainant has categorically stated that his signatures were obtained on blank paper for the purposes of moving an application for mutation and the blank papers were used for writing the statement dated 04.04.2007 imputed to him. He has further deposed before the District Collector cum Addl. Deputy Commissioner that he did not know how to read but he could only sign. Therefore he had signed under mis-representation and his signatures were obtained by mis- chief. He reiterated that the property was sold for an amount of Rs.3,91,500/- which is the amount shown in the transfer deed. The District Collector cum Addl. Deputy Commissioner has discarded his explanatory statement by stating that he had resiled under pressure from the vendee petitioner. A perusal of the record shows that there is no evidence of any such pressure and in the absence of such an evidence the Court could not have assumed the reason of pressure for resiling by the vendor complainant from his statement dated 7.7.2004. The afore-mentioned assumption is absolutely extraneous to the facts 7 C.W.P. No. 11137 of 2007 on record. Therefore, no finding on the basis of such presumption could have been recorded. If we consider both the statements made by the vendor complainant dated 7.7.2004 which is alleged to be made before the Naib Tehsildar and dated 2.8.2006 which was made before the District Collector cum Addl. Deputy Commissioner then it can easily be concluded that the first statement stand explained by the subsequent statement. The vendor complainant not only disowned the statement but goes to the extent of pointing out that his signatures were obtained by mis-chief on blank papers by holding out to him that application for mutation in respect of the land he had purchased at Dhurkot Ran Sinh was to be filed on which his statement was lateron recorded. Firstly it cannot be concluded that as to which statement was correct because the first statement would not be inculpatory to constitute admission within the meaning of Section 17 of the Indian Evidence Act, 1872. It is only in cases of admission that reliance could be placed because admission sustain their authenticity from the fact that the maker thereof has made the statement against himself i.e. inculpatory. Even such statements are open to explanation and can be successfully withdrawn as is the settled position. In that regard reliance could be placed on Narayan Bhagwant Rao v. Gopal AIR 1960 SC 100. However, in the present case impugned statement was made by the vendor complainant against the vendee-petitioner on 7.7.2004. The afore-mentioned statement was resiled by tendering explanation. There is neither any cross examination nor any further 8 C.W.P. No. 11137 of 2007 authenticity which could be attached to the statement made by the vendor complainant on 7.7.2004. It could have been substantiated by the respondents by producing evidence with the consistent statement made by vendor complainant on 7.7.2004 that his brother has utilized the money either by purchasing the land or immoveable property or any other valuable item. The statement made by the vendor complainant on 2.8.2006 could have been belied by producing document to prove that no land by the vendor-complainant was purchased at Dhurot Ran Sinh for which mutation was required to be entered. Thus looking from any angle the statement made by the vendor complainant on 7.7.2004 cannot constitute basis for concluding that the vendee petitioner had resorted to evasion of stamp duty/ registration fee. Moreover, the evidence of assuming pressure is imaginary which has been unlawfully assumed by the District Collector cum Addl. Deputy Commissioner. The findings are thus without any evidence and are liable to be set aside. For the reasons afore-mentioned this petition succeeds. The impugned orders dated 22.8.2006 and 23.1.2007 are set aside. If the title deed belonging to the vendee petitioner has been impounded the same be returned to it forthwith. (M.M. KUMAR) JUDGE (SABINA) April 10, 2008 JUDGE Pkapoor FIT FOR INDEXING 9