REGISTRAR OF ASSURANCES & ANR. versus ASL VYAPAR PRIVATE LTD. & ANR
[2022] 11 S.C.R. 1098, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
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   [2022] 11 S.C.R. 1098
REGISTRAR OF ASSURANCES & ANR.
v.
ASL VYAPAR PRIVATE LTD. & ANR
(Civil Appeal No.8281 of 2022)
NOVEMBER 10, 2022
[SANJAY KISHAN KAUL, ABHAY S. OKA AND VIKRAM
NATH, JJ.]
Indian stamp Act,1899 – s.47A – Reference – Answered –
Held: s.47A has no application to a public auction carried out
through Court process/receiver as it is the most transparent manner
of obtaining the correct market value of the property – The
independent determination of value of property by a Registering
officer would not apply to a Court sale but to a private transaction
– Interference by the Registering Authority on the aspect of price
of transaction is unjustified – Reference is required to be answered
by opining that in case of a public auction monitored by the Court,
the discretion would not be available to the Registering Authority
u/s.47A of the Act.
Indian Stamp Act,1899 – Object and purpose – Discussed.
Answering the reference and dismissing the appeals, the
Court,
HELD : 1. This Court does not have slightest hesitation in
upholding the view that the provision of Section 47A of the Act
cannot be said to have any application to a public auction carried
out through court process/receiver as that is the most transparent
manner of obtaining the correct market value of the property.
[Para 22][1113-A-B]
2. It is no doubt true that in a court auction, the price
obtainable may be slightly less as any bidder has to take
care of a
scenario where the auction may be challenged which could result
in passage of time in obtaining perfection of title, with also the
possibility of it being overturned. But then that is a price
obtainable as a result of the process by which the property has to
be disposed of. One cannot lose sight of the very objective of the
introduction of the Section whether under the West Bengal
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Amendment Act or in any other State, i.e., that in case of under
valuation of property, an aspect not uncommon in our country,
where consideration may be passing through two modes – one
the declared price and the other undeclared component, the State
should not be deprived of the revenue. Such transactions do not
reflect the correct price in the document as something more has
been paid through a different method. The objective is to take
care of such a scenario so that the State revenue is not affected
and the price actually obtainable in a free market should be capable
of being stamped. If one may say, it is, in fact, a reflection on the
manner in which the transfer of an immovable property takes
place as the price obtainable in a transparent manner would be
different. An auction of a property is possibly one of the most
transparent methods by which the property can be sold. Thus, to
say that even in a court monitored auction, the Registering
Authority would have a say on what is the market price, would
amount to the Registering Authority sitting in appeal over the
decision of the Court permitting sale at a particular price. In a
court auction following its own procedure, the Registering Officer
cannot have any reason to believe that the market value of the
property was not duly set forth – a pre-requisite for a Registering
Authority to exercise its power under the said Section. [Paras
23, 26][1113-B-F, 1114-D-E]
3. If this court see in the factual
context of the two scenarios
in respect of the two cases, the telling aspect in a partition case
was the existence of 98 tenants on a land at a monthly rent of
Rs.8,000 for the entire land and 80 vendors occupying the land
for hawking business during day time. It is trite to say that the
mere existence of tenancy results in a considerable decline in
the market value of the property as they may have their statutory
rights and even otherwise, the purchaser would be acquiring the
property hardly in an ideal scenario and would be left with the
burden to take legal processes for the eviction. In such a scenario,
there is actually a great depression in the market value of the
property as even if a fair transaction without an auction takes
place with full reflection of price, the transacted value would be
half or less of a vacant property. The tenancy aspect can hardly
be said to be an aspect which could be ignored in the determination
of the price. [ Para 27][1114-E-G]
REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
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4. In the company matter, repeated auctions were held and
it is in the negotiated bid that the higher price was obtained. It
was court monitored. There would be no occasion for the court
to accept the bid if it was not satisfied with the process and the
valuation. A correct value of a property is the one where there is
a purchaser and a seller ad idem on the price (the actual price).
The market value is, thus, the value which the highest bidder is
willing to pay in the facts and prevailing circumstances and not a
notional price. [Para 28][1115-A-B]
6. This Court find hardly any rational in adopting the
submissions on behalf of the appellant. The provisions are not
dissimilar in the different enactments in its fundamentals; the
“reason to believe” of a Registering Officer has to be based on
ground realities and not some whimsical determination; the
Registering Authority cannot be permitted to doubt the liquidation
proceedings as having some superior knowledge when it is a
court monitored process where the court would take care of
aspects such as cartelization; the Registering Authority can hardly
be said to be the only authority with knowledge of the subject to
the exclusion of the court; the independent determination by a
Registering Officer would not apply to a court sale but to a private
transaction; the Stamp Act being a fiscal statute, while being
interpreted strictly and literally would not imply some kind of
absolute power. [Para 29][1115-C-D]
Govt. of Andhra Pradesh & Ors. v. P. Laxmi Devi 2008
(4) SCC 720 : [2008] 3 SCR 330; V.N. Devadoss v.
Chief Revenue Control Office-cum-Inspector & Ors.
(2009) 7 SCC 438 : [2009] 8 SCR 1043; Birendra Nath
Manna & Anr. v. State of West Bengal & Ors. 2000 (1)
CHN 173; M/s. Kayjay Industries Pvt. Ltd. V. M/s.
Asnew Drums (P) Ltd. & Ors. (1974) 2 SCC 213 : [1974]
3 SCR 678; Additional Distt. Sub-Registrar, Siliguri v.
Pawan Kumar Verma (2013) 7 SCC 537; The Inspector
General of Registration v. K.P. Kadar Hussain 2014
SCCOnline Mad 3503 – referred to.
Case Law Reference
[2008] 3 SCR 330
referred to
Para 8(1)
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[2009] 8 SCR 1043
referred to
Para 8(2)
[1974] 3 SCR 678
referred to
Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No.8281
of 2022.
From the Judgment and Order dated 13.05.2010 of the High Court
at Calcutta in APOT No.196 of 2008 in EOS No.32 of 1987.
With
Civil Appeal No.8282 of 2022.
Anand Grover, Sr. Adv., Ms. Astha Sharma, Nipun Saxena,
Ravinder Singh, Ms. Raveesha Gupta, Ms. Mantika Haryani, Sanjeev
Kaushik, Shreyas Awasthi, Ms. Deeksha Agrawal, Shantanu Sharma,
Archit Adlakha, Ms. Somya Saxena, Advs. for the Appellants.
Gaurav Kejriwal, Pankaj Singhal, Pawas Agarwal, Arjun Agarwal,
Partha Sil, Sanjiv Saxena, Ruchir Mishra, Ramnik Mishra, Tavish B Prasad,
Sonjoy Kumar Ghosh, Mrs. Rupali Samanta Ghosh, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
Leave granted.
Background:
1. The impugned judgment dated 13.05.2010 in W.P. No. 1295/
2009 passed by the High Court of Calcutta decided a reference arising
from the following two matters –
(i) State of West Bengal & Anr. v. Sati Enclave Pvt. Ltd. & Ors.,
a Letters Patent Appeal being APOT No. 196 of 2008 from a
partition and administration suit (“the Partition matter”) and,
(ii) ASL Vyapar Pvt. Ltd. v. The Registrar of Assurances & Ors.,
a Writ Petition being Writ Petition No. 1295 of 2009 (“the Company
matter”).
The facts:
2. In Re the Partition Matter: In a Partition Suit being
Extraordinary Suit No. 32 of 1987, Ld. Single Judge passed an order
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dated 15.09.1987 for the sale of Premises No. 20 to 20/14 (except 20/
10) Chetla Flat Road, Kolkata- 700027 (“the land”), measuring 41 cottahs
and 21 chittacks, i.e. approximately 2800 square metres. On 08.03.2006,
the Joint Receivers appointed by the Court issued an advertisement in
The Telegraph, a leading daily newspaper for sale of the land. At the
auction, several parties participated, and the offer made by one Priya
Dutta at the rate of Rs.1,88,500 per cottah was the highest. However,
she did not pay the entire earnest money which was stipulated at the
rate of 10% of the bid amount. Sati Pvt. Ltd. (R1 in S.L.P.(C) 22197 of
2010) also offered to match the bid amount Rs.1,88,500 and to pay the
entire earnest money within 3 days. The court directed default clauses
in case of failure to pay the earnest money or consideration amount,
such as, if Sati Pvt. Ltd. did not pay the earnest money within 3 days, the
joint receivers could proceed to convey the property to the next highest
bidder whose bid was for Rs.1,88,000 per cottah.
3. Vide order dated 04.12.2006, Ld. Single Judge accepted the
offer of Sati Pvt. Ltd. and confirmed the sale in its favour. It was further
directed that the aforesaid consideration being the actual consideration
for the property would be treated as value of the property for the purpose
of registration and stamp duty. The Joint Receivers executed the
conveyance in favour of Sati Pvt. Ltd. and
presented the same for
registration on 16.05.2007 for sale consideration of Rs.78,69,875. Stamp
duty of Rs. 5,48,810 and Registration Fee of Rs. 86,650 were also paid.
4. However, on 14.12.2007, the Registrar of Assurances issued a
notice under section 47A (2) of the Indian Stamp Act, 1899 (“the Act”)
intimating that the market value of the land was assessed by the
Registering Officer at Rs. 7,76,69,838 on which deficit Stamp Duty of
Rs.48,85,888 and deficit Registration Fee of Rs. 7,67,800 were required
to be paid. Sati Pvt. Ltd. filed a Contempt Application against the Registrar
for allegedly committing breach of the order dated 04.12.2006 of the Ld.
Single Judge. The Registrar filed an application seeking recalling of order
dated 04.12.2006, but the same was rejected. Aggrieved, the Registrar
filed an appeal before the Division Bench who referred the question for
decision by a larger bench.
5. In Re the Company matter: By an order dated 21.07.2004 of
the Ld. Single Judge, M/s. Kayan Udyog Ltd. was ordered to be wound
up and the Official Liquidator was directed to take the necessary steps.
The Official Liquidator published an advertisement on 12.05.2006 in daily
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newspapers inviting offers for purchase of assets and properties of the
company on “as is where is and whatever there is basis” with a Reserve
Price of Rs.1.20 crores and the highest offer received was Rs.75,00,000.
The Company Court directed revision of the Reserve Price and to issue
a fresh advertisement. In the second advertisement dated 15.09.2006,
the Reserve Price was fixed at Rs. 1 crore and the highest offer received
was Rs.86,00,000 which was subsequently enhanced to Rs. 87,00,000
when the auction was held in the Company Court.
6. Vide order dated 08.09.2006, the Company Court confirmed
the sale in favour of ASL Pvt. Ltd. at Rs.87,00,000 subject to certain
conditions of payment within stipulated time periods. On payment of the
entire consideration, the Official Liquidator executed the Conveyance
Deed on 07.05.2008 and presented the same before the Registrar of
Assurance, Calcutta for registration. On 06.08.2008, the Additional
Registrar of Assurance-II issued a Demand Notice to ASL Pvt. Ltd.
informing that the market value of the property was assessed at Rs.1.70
crores and ASL Pvt. Ltd. had to pay the deficit Stamp Duty of Rs.5,86,000
as well as deficit Registration Fee of Rs.92,125. Aggrieved, ASL Pvt.
Ltd. filed the writ petition challenging the notice. Ld. Single Judge referred
the question to a larger bench.
Proceedings before the Full Bench of the Calcutta High Court:
7. In order to appreciate the controversy, it would be appropriate
to
first reproduce the relevant provision in exercise of which power the
higher stamp duty was sought. Section 47A was inserted by the Indian
Stamp (West Bengal Amendment) Act, 1990 (hereinafter referred to as
the ‘Act’) reads as under:
“47A. – Instruments of conveyance etc. undervalued how to be
dealt with – (1) Where the registering officer appointed under the
Registration Act, 1908 (16 of 1908), has while registering any
instrument of conveyance, exchange, gift, partition or settlement,
reason to believe that the market value of the property which is
the subject matter of such instrument has not been truly set forth
in the instrument, he may, notwithstanding the contrary provisions
in Section 35 insofar as it relates to registration, register such
instrument provisionally, subject to determination of the market
value under sub-section (2), and, after registering such instrument,
refer the matter to such authority as may be prescribed for
REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
PRIVATE LTD. & ANR [SANJAY KISHAN KAUL, J.]
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determination of the market value of such property and the proper
duty payable thereon.”
Section 47A was further amended by the Indian Stamp (West
Bengal Amendment) Act, 1998 with effect from 15.03.2021, and reads
as under:
“47A. Instruments of conveyance, etc. undervalued, how to be
dealt with (1) Where the registering officer appointed under the
Registration Act, 1908 (16 of 1908) has, while registering any
instrument of
a) agreement or memorandum of an agreement relating to a
sale or lease-cum sale of immovable property,
b) conveyance, (c) to (h) .......
reason to believe that the market value of the property which
is the subject matter of any such instrument has not been truly
set forth in the instrument ·presented for registration, he may,
after receiving such instrument, ascertain the market value of
the property which is the subject matter of such instrument in
the manner prescribed and compute the proper stamp duty
chargeable· on the market value so · ascertained and thereafter
he shall, notwithstanding anything to the contrary contained in
the Registration Act, 1908, in so far as it relates to registration,
keep registration of such instrument in abeyance till 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.”
8. The
successful purchasers (respondents herein) sought to rely
upon the two judicial views of this Court in support of their contention
that the transacted value alone should be taken into consideration for
affixation of stamp duty.
1. Govt. of Andhra Pradesh & Ors .v. P. Laxmi Devi1, which
arose under Section 47A as applicable to Andhra Pradesh, wherein
the Court opined that there was large scale undervaluation of the
real value of property in sale deed so as to defraud the government
proper revenue. There was no provision in the original Stamp Act
1 2008(4) SCC 720
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to empower the Revenue Authorities to make an inquiry about
the value of the conveyed property. Hence, amendments were
made to the Indian Stamp Act from time to time in several states
to determine the correct stamp duty.
2. V.N. Devadoss v. Chief Revenue Control Office-cum-
Inspector & Ors.2, which arose under Section 47A as applicable
to Tamil Nadu, wherein it was held that it is not a routine procedure
to be followed in respect of each and every document of
conveyance presented for registration without any evidence to
show lack of bona fide of the parties. Therefore, the basis for the
exercise of power under section 47A of the Act is the wilful
undervaluation of the subject of transfer with fraudulent intention
to evade payment of proper stamp duty. The Registering Officer
cannot have any reason to believe that the market value of the
property was not truly set forth in an instrument of transfer
executed pursuant to the order of a court, when the property was
sold at a public auction after the publication of the advertisement
in newspapers.
9. The respondents then relied upon the judgment in Birendra
Nath Manna & Anr. v. State of West Bengal & Ors.3, which upheld
the constitutional validity of Section 47A as applicable to West Bengal.
The Respondents also submitted that the Statement of Objects and
Reasons for enactment of the Indian Stamp Act (West Bengal
Amendment) 1990 contained the explanation for insertion of Section
47A. It was stated that West
Bengal is no exception to the general
phenomenon of under valuation of properties and the revenue from stamp
duty has increased sharply for states where the basis of charging duty
was changed from the declared price or value of properties to the market
value.
10. In the aforesaid context it was pleaded that the best possible
prices were obtainable through a transparent method and that is what
was the price of the transactions. In the partition matter, there were 98
tenants on the land and the total monthly rent was Rs.8,000 for the
entire land and 80 vendors were occupying the land for hawking business
during daytime and, thus, the consideration of Rs.78,69,000 was the best
possible price. Similarly, in the company matter, the endeavour was made
2 (2009) 7 SCC 438
3 2000 (1) CHN 173
REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
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more than once but even the reserve price was not obtainable and, thus,
the best possible price was obtained at an auction. The market value of
the property would not be a hypothetical figure, which the bidder must
match rather it is the value, which is obtainable through the process of
the highest bidder willing to pay under the prevailing circumstances.
11. On the other hand, the State (appellant before us) submitted
that the provisions brought about by the amendment mentioned aforesaid
was different from the one in Tamil Nadu and, thus, the pronouncement
in V.N. Devadoss4 case will not apply. In addition, it was urged that the
Ld. Single Judge vide order dated 04.12.2006 lacked the jurisdiction to
give pre-emptive direction that the consideration being the actual
consideration for the property would be treated as value of the property
for registration and stamp duty as Section 47 of the Act provides that the
order passed by the Chief Controlling Revenue Authority shall be final
and shall not be called into question in any civil court or before any
authority.
12. The three Judges Bench held on the conspectus of the aforesaid
arguments that Section 47A of the Act as applicable to West Bengal
read with Rule 3 of the West Bengal Stamp (Prevention of Undervaluation
of Instruments) Rules, 2001 (hereinafter referred to as the ‘Rules’) is
not applicable to an instrument executed by a Receiver pursuant to an
order of sale
passed by a civil court, after publication in newspapers.
The sale conducted by the court through its officers qualifies to be an
open market sale subject to the following conditions:
a) there must be wide publicity of the proposed sale and
particularly there shall be publication of advertisement in at
least one newspaper having wide circulation in the concerned
city/town/ district.
b) The purchaser of the property must not be connected with
or related to the authority/ officer conducting the sale.
13. In the discussion over the objective and purport of Section
47A of the Act as applicable to the State of West Bengal, Tamil Nadu
and Andhra Pradesh, it was observed that they were in pari materia
insofar as they confer power on the Registering Officer not to register
an instrument when the Registering Officer has reason to believe that
the market value of the property has not been truly set forth in the
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instrument. The difference in language of the Section was not significant.
When a property is sold in a private sale, the registering officer has the
power to determine the actual value of the property. As legal fictions are
limited for the purpose for which they are created and cannot be widened
by Rules made under the Act and no such fiction is required to be provided
for determining the price of the property when it is sold in the open
market. Thus, the definition of “Market Value” as under Section 2(16B)
of the Act would not apply to the property if actually sold in the open
market.
“2(16B) – ‘Market Value’ means, in relation to any property which
is the subject matter of an instrument, the price which such property
would have fetched or would fetch if sold in open market on the
date of execution of such instrument as determined in such manner
and by such authority as may be prescribed by rules made under
this Act of the consideration stated in the instrument, whichever
is higher.”
14. Insofar as the expression “whichever is higher” in the sub-
section aforesaid, it would mean the higher of the two prices, i.e., the
price which such property would have fetched in the open market on the
date of execution of such instrument (i.e., in the immediate past) or the
price which such property would fetch if sold in the open market on the
date of execution of such instrument (i.e., in the immediate future). If
the legislature had intended that Section 2(16B)
of the Act was to apply
to open market sales also it would have made a separate or specific
provision regarding the determination of the price of the property being
sold in the open market. The expression “if sold in open market” pre-
supposes that the property was not sold in the open market. The language
of Rule 3 also buttresses the same view where none of the four methods
of determining the value of the property in question refers to value fetched
at an open market sale. A court sale was opined to be an open sale.
Advertisements published in the daily newspapers having wide circulation
in the city or town where the property is situated is an open market sale.
The court may be well advised to get the valuation of the property made
by a registered valuer for the purposes of fixing the Reserve Price before
issuing the advertisement in newspapers. However, this cannot be a
pre-requisite as it is not always possible to get bids above the reserve
price or even matching the reserve price, as was seen in the company
matter. The whole basis of holding that a Court sale is an open market
REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
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sale is the sanctity with which the proceedings of the sale are conducted
by the court and its officers. In case the registering authority has any
material to doubt such sanctity, it is open for it to move the court with a
proper application pointing out such materials for reviewing the order
regarding the determination of price.
15. We may note that in order to buttress the entitlement for fixation
of stamp duty based on a market value as perceived in the aforesaid
sub-section, the State relied upon the judicial pronouncement of this Court
in M/s. Kayjay Industries Pvt. Ltd. V. M/s. Asnew Drums (P) Ltd. &
Ors.5 It was submitted that a Court sale is a forced sale and
notwithstanding the competitive element of a public auction, the best
price is not often forthcoming, thereby creating an apprehension that it
will adversely affect the State Exchequer in respect of other properties
in the area. However, even if the property at a Court sale does not fetch
the highest or best available price and there are other pieces of evidence
of market value of similar properties available in the area, the Registering
Officer can always consider the other sale instances or any other material
reflecting higher value of the property under sections 47A(1)(2) read
with Section 2(16B) of the Act and Rule 3 of the Undervaluation Rules
of 2001.
The Occasion for Reference:
16. On consideration of the matter on 6.2.2020, it was opined that
the impugned judgment had traversed certain areas over which the Court
had reservations:
a. the interpretation of Section 2(16B) of the Act as set out in
para 24 of the impugned judgment (referring to the higher price
in the immediate past or immediate future), is contrary to the
wordings of the statute;
b. para 27.4 of the impugned judgment (giving Registering
Officer the liberty to move the court with proper application in
case of doubts on sanctity of the open market sale) sought to
give the Registering Authority a new channel to open up final
transaction having far reaching repercussions; and
c. the conclusion contained in paras 29.1 and 29.2 (holding
that a court sale cannot be the subject matter of exercise of
5 (1974) 2 SCC 213
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powers by the Registering Authority, along with conditions to
be satisfied for a court sale to be an open market sale) were
beyond what was observed.
17. In the conspectus of the aforesaid it was opined that the Bench
would have proceeded to enunciate the legal position, but the respondent
mentioned a judgment of two Judges Bench of this Court in Additional
Distt. Sub-Registrar, Siliguri v. Pawan Kumar Verma6 which held
that a Registering Authority cannot be compelled to follow the value
fixed by the court for purposes of suit valuation, which sought to traverse
a different path. It was held that a legal principle should be settled in the
context of Section 47A in West Bengal, after taking into consideration
that similar amendments were made in the states of Tamil Nadu and
Andhra Pradesh though they were not identical. Thus, the matter was
referred to a three-Judges Bench of this Court.
Submissions of the Appellant:
18. The appellant sought to assail the restriction on the power of
the Registering Officer in case of court auction sales by contending:
•
Section 47A of the Act as applicable to West Bengal is
different from Section 47A of the Act as applicable to Tamil
Nadu. Under the Indian Stamp Act (Tamil Nadu
Amendment) Act, 1967, the matter would be referred to
the Collector for the determination of market value, whereas
under the Indian Stamp Act (West Bengal Amendment)
Act, 1990, the matter has to be referred to such authority
as may be prescribed in
the Rules for the same. The
“reasonable belief” under Section 47A of the Act is an
objective assessment based on the facts and information
disclosed, and it is incorrect to read the intention of the
parties to the sale.
•
The impugned judgment incorrectly drew a similarity
between Section 2(16B) of the Act as amended in West
Bengal and the Explanation appended to Section 47A of
the Act applicable in Tamil Nadu. The former contemplates
that the market value must be determined in the manner
prescribed in the W.B. Stamp Rules and aims to determine
6 (2013) 7 SCC 537
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an amount “whichever is higher”, whereas the latter leaves
it to the discretion of the authorities specified therein.
•
There could be diverse reasons for the Registering Officer
to have ‘reason to believe’ that the market value is incorrect,
including in a court sale or liquidation proceedings, the
advertisement was not made properly to elicit buyers; the
sale of the property was frequently postponed; or
cartelization among buyers. As per Kayjay Industries7
case, it was held that in a court auction sale, there is more
likelihood of a distress sale at a lower value. The Registering
Officer has the requisite experience in this behalf, namely
their knowledge of market values of different areas and
circle areas based on sales in the immediately preceding 5
years, and the discrepancy between the market value and
value disclosed in the instrument.
•
Rule 3 of the W.B. Stamp Rules enlists the different ways
in which the market value of a property can be determined.
The term “or” as used in Rule 3 denotes that the ways
mentioned therein are disjunctive with the primary objective
being to devise a mechanism that brings the “highest price”
or “whichever is greater”. Therefore, the Registering
Officer is not bound by only what is specified in the deed or
determined by the court and can determine a value that is
greater amongst the ways stipulated therein. The impugned
judgment eliminates the independent “determination” by the
Registering Officer for every court sale, which is against
the plain reading of the statute and the objective lying
underneath, viz. to determine the “highest price” of the
property.
•
The expression “shall” makes it obligatory for the
Registering Authority to “determine” the market value of
the property based on the “highest price”. The impugned
judgment has erred in interpreting Section 47A of the Act
and Rule 3 of the W.B. Stamp Rules in a manner which is
against the very objective of the Act, the purpose of which
is to levy the stamp duty itself, i.e. maximize the revenue of
the State. The impugned judgment has held that if a sale is
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concluded by the court process, or during liquidation
proceedings, or open sales, the Registering Authority shall
have to take the value of the property as gospel truth, and
not carry out its mandatory statutory obligation for the
“determination” based on the ways under Rule 3(1) of the
W.B. Stamp Rules.
•
It is settled law that an interpretation that limits or curtails
the discretion of the authority, when such discretionary
powers and limits are laid down in the statute itself, is
impermissible. When the legislature has not created a
distinction between specific classes (distress sale and other
forms of sale), the Court cannot, by a judicial decision, create
or carve out a new class which was not contemplated by
the statute.
•
The Stamp Act being a fiscal statute, should be interpreted
strictly and literally. The impugned judgment inserted a ‘non-
obstante clause’ which would make Rule 3 of the W.B.
Stamp Rules and Sections 47A, 47B, and 47C of the Act as
applicable in West Bengal, inapplicable to any court sale/
auction sale. The impugned judgment cannot create an
‘exemption’ clause in the fiscal statute when none is provided
under the statute. Section 47A as amended in West Bengal
is similar to Section 47A as amended by the State of Andhra
Pradesh, which has been upheld in P. Laxmi Devi8 case,
wherein it was held that where wordings of a taxation statute
are so plain and unambiguous that it admits no exceptions,
the relying on the object and purpose
of the amendment
would be committing an error.
•
The decision of V.N. Devadoss9 case is per incuriam in
view of paragraph 7 of Kayjay Industries10 case which
held that a court sale is a forced sale notwithstanding the
competitive element of a public auction, and the best price
is often not forthcoming.
•
The impugned judgment relies on the doctrine of deemed
fiction to conclude that the object of the Act is to prevent
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REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
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fraudulent undervaluation. Unlike the authorities relied upon
in the impugned judgment, the application of the doctrine of
deemed fiction is misplaced.
Submission of the Respondents:
19. Learned counsel for the respondents sought to support the
view of the High Court by relying upon the judgment of this Court in The
Inspector General of Registration v. K.P. Kadar Hussain11 to the
effect that sale deeds executed by the court auctioned sales are allowed
to be questioned by a party on some pretext, the sanctity, finality, and
credibility of such court auctioned sales and execution of the sale deeds
will come under cloud and the same should not be permitted.
20. In the Company matter, emphasis was placed on the intention
of the State Legislature, i.e., to accept ‘market value’ as set forth in an
instrument by which the immovable property was transferred or acquired
by the Central or the State Government or any other authority under the
Central or State Government, etc. without any reference of Section 2(16B)
and 47A of the Act, as can be seen from Rule 3C(9) of the West Bengal
Stamp Rules. It was contended that there was, thus, no question of
intention of any defraud or not disclose the correct price in a court sale
and as per the observations in V.N. Devadoss12 case the Registering
Authority cannot be permitted to sit over appeal over the decision of the
court, especially a Constitutional Court and doubt the
consideration
determined in a court authorised sale.
21. It was pleaded that the reliance placed on Kayjay Industries13
case was improper as it had been observed in para 9 that “court sales
and market prices are distant neighbours.” The ratio of Pawan Kumar
Verma14 case would have no application as it is not an issue of suit
valuation. Moreover, the observations of the Supreme Court that the
Registering Authority will have an opportunity to make back reference
to the concerned court, and such court will freshly determine the suit
valuation, is not proper procedure as the court stands on a higher footing,
has the sanctity of law and cannot be altered by the Registering Authority
on the pretext of generating higher revenues.
11 2014 SCC Online Mad 3503
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Conclusion:
22. On the conspectus of the matter, we have not the slightest
hesitation in upholding the view that the provision of Section 47A of the
Act cannot be said to have any application to a public auction carried out
through court process/receiver as that is the most transparent manner
of obtaining the correct market value of the property.
23. It is no doubt true that in a court auction, the price obtainable
may be slightly less as any bidder has to take care of a scenario where
the auction may be challenged which could result in passage of time in
obtaining perfection of title, with also the possibility of it being overturned.
But then that is a price obtainable as a result of the process by which the
property has to be disposed of. We cannot lose sight of the very objective
of the introduction of the Section whether under the West Bengal
Amendment Act or in any other State, i.e., that in case of under valuation
of property, an aspect not uncommon in our country, where consideration
may be passing through two modes – one the declared price and the
other undeclared component, the State should not be deprived of the
revenue. Such transactions do not reflect the correct price in the document
as something more has been paid through a different method. The
objective is to take care of such a scenario so that the State revenue is
not affected and the price actually obtainable in a free market should be
capable of being stamped. If one may say, it is,
in fact, a reflection on
the manner in which the transfer of an immovable property takes place
as the price obtainable in a transparent manner would be different. An
auction of a property is possibly one of the most transparent methods by
which the property can be sold. Thus, to say that even in a court monitored
auction, the Registering Authority would have a say on what is the market
price, would amount to the Registering Authority sitting in appeal over
the decision of the Court permitting sale at a particular price.
24. It is not as if a public auction is carried out just like that. The
necessary pre-requisites require fixation of a minimum price and other
aspects to be taken care of so that the bidding process is transparent.
Even after the bidding process is completed the court has a right to
cancel the bid and such bids are subject to confirmation by the court.
Once the court is satisfied that the bid price is the appropriate price on
the basis of the material before it and gives its imprimatur to it, any
interference by the Registering Authority on the aspect of price of
transaction would be wholly unjustified.
REGISTRAR OF ASSURANCES & ANR. v. ASL VYAPAR
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25. We may only note that this Court in P. Laxmi Devi15 case has
opined the purpose behind bringing into force Section 47A in the Andhra
Pradesh State, i.e., in case of large scale under-valuation of the real
value of property in the sale deed, the Government is defrauded of a
proper revenue. It was to take care of the absence of any provision in
the original Stamp Act empowering revenue authority to make an inquiry
about the value of the conveyed property, that the Amendment was
brought forth so that the revenue did not suffer. The judgment in V.N.
Devadoss16 case albeit in respect of Amendment in Tamil Nadu, opined
that it was not a routine procedure to be followed in respect of each and
every document of conveyance presented for registration without any
evidence to show a lack of bona fides of the parties. There has to be a
willful under-valuation of the subject of transfer with fraudulent intention
to evade payment of proper stamp duty.
26. We do not accept the contention that the mere wordings of
these different provisions in any way take away the fundamental intent
with which the provision was brought into force and specifies so in the
same manner though albeit in a different language. In a court auction
following its own procedure, the Registering Officer cannot have any
reason to believe that the market value of the property was not duly set
forth – a pre-requisite for a Registering Authority to exercise its
power
under the said Section.
27. If we see in the factual context of the two scenarios before us
in respect of the two cases, the telling aspect in a partition case was the
existence of 98 tenants on a land at a monthly rent of Rs.8,000 for the
entire land and 80 vendors occupying the land for hawking business
during day time. It is trite to say that the mere existence of tenancy
results in a considerable decline in the market value of the property as
they may have their statutory rights and even otherwise, the purchaser
would be acquiring the property hardly in an ideal scenario and would be
left with the burden to take legal processes for the eviction. In such a
scenario, there is actually a great depression in the market value of the
property as even if a fair transaction without an auction takes place with
full reflection of price, the transacted value would be half or less of a
vacant property. The tenancy aspect can hardly be said to be an aspect
which could be ignored in the determination of the price.
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28. In the company matter, repeated auctions were held and it is
in the negotiated bid that the higher price was obtained. It was court
monitored. There would be no occasion for the court to accept the bid if
it was not satisfied with the process and the valuation. A correct value
of a property is the one where there is a purchaser and a seller ad idem
on the price (the actual price). The market value is, thus, the value which
the highest bidder is willing to pay in the facts and prevailing circumstances
and not a notional price.
29. We find hardly any rational in adopting the submissions on
behalf of the appellant. The provisions are not dissimilar in the different
enactments in its fundamentals; the “reason to believe” of a Registering
Officer has to be based on ground realities and not some whimsical
determination; the Registering Authority cannot be permitted to doubt
the liquidation proceedings as having some superior knowledge when it
is a court monitored process where the court would take care of aspects
such as cartelization; the Registering Authority can hardly be said to be
the only authority with knowledge of the subject to the exclusion of the
court; the independent determination by a Registering Officer would not
apply to a court sale but to a private transaction; the Stamp Act being a
fiscal statute, while being interpreted strictly and literally would not imply
some kind of absolute power.
30. The decision of this Court in V.N. Devadoss17
case can hardly
be said to be per incuriam. No doubt a court monitored auction is a
forced sale, but then it has a competitive element of a public auction to
realize the best possible price. In many court cases, this is the process
followed by the court to get the best obtainable price taking due precaution.
31. We are, thus, of the view that this reference is required to be
answered by opining that in case of a public auction monitored by the
court, the discretion would not be available to the Registering Authority
under Section 47A of the Act.
32. We may further add that while making the reference, the
Bench itself had noted some aspects of the impugned judgment which
could not find favour with it. Thus, we are not giving our imprimatur to
some of the rational adopted in the impugned judgment as already
mentioned in the order of reference. These have been set out, once
again, aforesaid as small paras (a), (b) & (c) while dealing with the
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aspect of reference and on these aspects, the impugned judgment cannot
be said to be laying down the correct principles of law.
33. However, no further inquiry in that aspect is necessary in
view of what we have opined herein and, thus, the appeals can stand
disposed of without the requirement of further reference to a two Judges
Bench to deal with the facts and circumstances of the case as those
aspects have also been dealt with by us.
34. The reference is answered accordingly and the appeals stand
dismissed albeit for the reasons set out herein.
Ankit Gyan
Appeals dismissed.
(Assisted by : Aarsh Choudhary, LCRA)