1 CWP No.4964/2001 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.4964/2001 The Sub Registrar-II and another Versus Civil Judge and others DATE OF ORDER --- March 23,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.M.S.Kachhawa, Dy.Govt.Counsel for the petitioners Mr.Manish Sharma, for the respondent No.3 BY THE COURT (1) By this writ petition, the petitioners have prayed for quashing the order dated 19.4.2001 (Ex.1) and to direct the respondent No.3 to make good the deficiency of stamp duty amounting to Rs.1,02,160/-. (2) Briefly stated, the facts of the case, as per the petitioners, are that an agreement dated 27.12.1976 was executed between respondent No.2 and respondent No.3 for sale of the property for a sum of Rs.19,600/-, with the following description of the property in question: “North – 50' South – 54' Measurement of North-South from the side of East is 33' 3” and from the side of West 56' 3”. Total area of the plot is 248.53 Sq.Yards.” (3) When pursuant to this agreement, the sale deed was not executed by respondent No.2, the respondent No.3 filed a civil suit for specific performance against respondent No.2, which was decreed and it was directed that the sale deed may be executed. On presentation of the document for registration, the petitioners demanded stamp duty of Rs.1,03,970/- as per the 2 CWP No.4964/2001 market value of the property i.e. Rs.16,02,320/- on the date of presentation of the document for registration. The respondent No.3 Lallo Lal filed Execution Case No.15/99 in the court of respondent No.1. On the said execution petition, the respondent No.1 directed the petitioners to register the document on the valuation of Rs.19,600/- vide order dated 19.4.2001 (Ex.1). (4) The respondent No.2 filed reply to the writ petition wherein it was stated that on 27.12.1976, the market value of the property in question was Rs.19,600/- and the sale consideration at the time of agreement would be the sole basis for charging the stamp duty and since in the present case the agreement was entered into in the year 1976, therefore, the valuation of the property as on the date of execution of the agreement is the relevant factor for charging stamp duty. (5) No reply has been filed on behalf of respondent No.3. (6) Submission of counsel for the petitioners is that as per Sec.2(10) read with Sec.17 of the Rajasthan Stamp Law (Adaptation) Act,1952 (7 of 1952) (in short `the Act of 1952'), the stamp duty is chargeable on the basis of the market value on the date the document is presented for registration. (7) Submission of counsel for the respondent No.3 is that the valuation of the instrument should be taken as mentioned therein. In other words, the date of execution is relevant for the purpose of determination of market value even after the decree of the court. (8) In the instant case, the dispute is whether the stamp duty is to be charged on the valuation mentioned in the agreement to sell or the market value of the property on the date when the instrument was presented for registration. It is admitted case of the parties that on the date of presentation of the document, the stamp duty was payable @ 10%. (9) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. 3 CWP No.4964/2001 (10) The aforesaid controversy has been set at rest by the Supreme Court in State of Rajasthan and others V. M/s.Khandaka Jain Jewellers (AIR 2008 SC 509) (Para 10) wherein it has been held that the market value of the agreement to sell is to be ascertained by the Registering Authority at the time of registration and the authority should not go by the value mentioned in the instrument. Paras 10 and 12 of the aforesaid judgment are relevant and the same are as under: “Para 10 10. It may be mentioned that there is a difference between an agreement to sell and a sale. Stamp duty on a sale has to be assessed on the market value of the property at the time of the sale, and not at the time of the prior agreement to sell, nor at the time of filing of the suit. This is evident from section 17 of the Act. It is true that as per Section 3, the instrument is to be registered on the basis of the valuation disclosed therein. But Section 47-A of the Rajasthan (Amendment) Stamp Duty Act contemplates that in case it is found that properties are under valued then it is open for the Collector (Stamps) to assess the correct market value. Therefore, in the present case when the registering authority found that valuation of the property was not correct as mentioned in the instrument, it sent the document to the Collector for ascertaining the correct market value of the property. The expression "execution" read with Section 17 leaves no manner of doubt that the current valuation is to be seen when the instrument is sought to be registered. The Stamp Act is in the nature of a taxing statute, and a taxing statute is not dependant on any contingency. Since the word "execution" read with Section 17 clearly says that the instrument has to be seen at the time when it is sought to be registered and in that if it is found that the instrument has been undervalued then it is open for the registering authority to enquire into its correct market value. The learned single Judge as well as the Division Bench in the present case had taken into consideration that the agreement to sell was entered into but it was not executed. Therefore, the incumbent had to file a suit for seeking a decree for execution of the agreement and that took a long time. Therefore, the Courts below concluded that the valuation which was in the instrument should be taken into account. In our opinion this is not a correct approach. Even the valuation at the time of the decree is also not relevant. What is relevant in fact is the actual valuation of the property at the time of the sale. The crucial expression used in Section 17 is "at the time of execution". Therefore, the market value of the instrument has to be seen at the time of the execution of the sale deed, and not at the time when agreement to sale was entered into. An agreement to sell is not a sale. An agreement to sell becomes a sale after both the parties signed the sale deed. A taxing statute is not contingent on the inconvenience of the parties. It is needless to emphasize that a taxing statute has to be construed strictly and considerations of hardship or equity have no role to play in its construction. VISCOUNT SIMON quoted with approval a passage from ROWLATT, J. expressing the principle in the following words: (emphasis supplied) 4 CWP No.4964/2001 "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Para 12 12. In this back-ground, if we construe Section 17 read with Section 2(12) then there is no manner of doubt that at the time of registration, the Registering Authority is under an obligation to ascertain the correct market value at that time, and should not go by the value mentioned in the instrument.” (emphasis supplied) (11) The aforesaid judgment of the Supreme Court in Khandaka Jain Jewellers, covers the whole controversy raised in the present writ petition and the executing court (respondent No.1) has committed a legal error in issuing direction for registering the document as per the valuation mentioned therein and further committed an error in not considering the fact that the date of presentation of the agreement for registration is relevant for the purpose of determination of the market value for calculation of the stamp duty. (12) Accordingly, the writ petition is allowed and the impugned order dated 19.4.2001 (Ex.1) is quashed and set aside. The petitioners are free to take into consideration the market value of the property in question, as prevalent on the date of presentation of the document for registration, for the purpose of charging stamp duty and further, to execute the sale deed within a period of six months from the date of receipt of copy of this judgment. (Prem Shanker Asopa) J. गोpa ल