Bhaskara Bhattacharya, C.J.
1. All these Special Civil Applications were taken up together as the subject-matter of challenge in all these applications is the legality and validity of a Circular dated 9th May 2007 issued by the Respondent No. 2 purporting to be as part of simplification of the Rule 45[1] of Registration ,viz. the Gujarat Registration Rules, 1970.
2. In order to appreciate the aforesaid question, it will be profitable to refer to the Circular dated 9th May 2007 which is quoted below:-
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œCIRCULAR:
In the State the documents of the immovable properties are registered in the office of the Sub-Registrar. From experience it is learnt that, in the absence of sufficient knowledge about the law/rules the documents with insufficient stamp duty are lying in the office without registration. Due to non-registration of the pending documents the copy of the document and the index-2 are not supplied, due to this reason the party has misunderstandings without any reasons. Thus, with the bona fide intentions for bringing about convenience, transparency in the administration and to return the documents to the parties after registration and as part of simplification the Rule 45[1] of Registration will have to be implemented as here below.
[1] As per the Gujarat Registration Rules, 1970 Rule 45 whether the document produced for registration is bearing appropriate stamp duty or not? This has to be examined by the registering officer. In reference to the above provision as per the section 32[a] of the Stamp Act with regard to the documents produced for registration if the stamp duty as per the market value of the property is not paid then the registering officer will take into consideration the provisions of section 45 of the above Rule and not accept the same and also not issue the token and without accepting such document for registration and inform the parties to produce before the Deputy Collector for determination of the appropriate stamp duty. And in each office registers will have to be maintained in the forms, and give numbers and make entry of the same in the register, and not to issue receipts and not to accept the registration fees.
[2] After the Deputy Collector opines that the document is bearing appropriate stamp duty only thereafter after the party pays sufficient stamp duty only thereafter the document will be accepted and take on hand the procedure as per the Registration Act. All the registering officers to make note of the same.
[3] The said Circular to be implemented from 15.5.2007.
The above instructions to be scrupulously followed and acknowledge receipt of the said Circular by post.
Note bears signature of S.S.and I.G.R."
(Emphasis supplied by us).
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3. Mr. Devan Parikh, the learned Senior Advocate, appearing on behalf of the petitioners, has strenuously contended before us that the impugned Circular is void ab initio, inasmuch as, the same is contrary to the relevant provisions relating to the registration of the documents provided in the Bombay Stamp Act, 1958 [hereafter referred to as the œStamp Act?] and also to the provisions contained in the Registration Act, 1908 [hereafter referred to as œthe Registration Act?] as well as the Rules framed under those two Acts. Mr. Parikh contends that the authority who issued the aforesaid Circular has no legal competence to issue such direction for the purpose bypassing the relevant provisions contained in the Registration Act and the Stamp Act as well as the Rules framed there under. He, therefore, submits that the aforesaid Circular should be quashed and the authorities for registration should be asked to comply with the relevant provisions contained in the Registration Act as well as the Stamp Act and the Rules framed there under while dealing with the question of insufficient amount of stamp duty.
4. Mr. P.K. Jani, the learned Government Pleader, appearing on behalf of the State of Gujarat, has, on the other hand, opposed the aforesaid contention of Mr. Parikh and has submitted that the object of the above Circular is to simplify the existing Rule 45 of the Registration Rules for the quick disposal of the disputes relating to the deficit stamp duty payable for the various registrable deeds which results in delayed registration. Mr. Jani contends that although the Circular was not issued under the rule making power of either the Registration Act or the Stamp Act, such Circular has, in no way, taken away any of the rights conferred upon the citizens under any law for the time being. Mr. Jani contends that when a document is presented for registration, if the registering officer accepts the document keeping the dispute about valuation of the property alive and grants a receipt acknowledging presentation of the document for registration, the person presenting the document for registration as well as the beneficiary under the transaction will lose interest in the matter of settling the dispute of valuation as well as the payment of the consequent additional stamp duty to the competent authority. According to Mr. Jani, on the other hand, if the registering officer finds that the consideration set forth in the document is, on the face of it, less than the market value reflected from the valuation of the land prepared area-wise by the State which is popularly called jantri-value, by the notification impugned, he has been given discretion not to accept such presentation and to ask the person presenting the document to get the proper valuation done by a competent person, namely, the Deputy Collector. According to Mr. Jani, the Deputy Collector generally decides such question of valuation and the stamp duty payable within 15 days and thus, the parties to the transaction will not suffer any prejudice, because the document is required to be presented for registration within 4 months from the date of the execution in accordance with law. According to Mr. Jani, the procedure prescribed in the impugned Circular does not cause any prejudice to the person presenting the document for registration or to the parties to the transaction. Mr. Jani, by referring to interim order dated 22nd July, 2008 passed by a Division Bench of this Court, contended that while refusing to grant interim order in one of these matters, his above contention has been accepted by the Division Bench and the prayer for temporary injunction sought in the said matter was rejected. Mr. Jani, therefore, prays that we should not interfere with the above Circular issued for smooth functioning of the registration of the document.
5. In order to appreciate the aforesaid question, it will be profitable to refer to the following provisions of the Registration Act, Stamp Act as well as the rules framed thereunder:-
Sections 23, 47 and 69 of Registration Act:
œ23. Time for presenting documents.-- Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.
Provided that a copy of a decree or order may be presented within four months the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.?
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œ47. Time from which registered document operates.”A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
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"69. Power of Inspector-General to superintend registration offices and make rules.--[1] The Inspector- General shall exercise a general superintendence over all the registration offices in the territories under the State government, and shall have power from time to time to make rules consistent with this Act--
[a] providing for the safe custody of books, papers and documents;
[aa] providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under sub-section [1] of section 16A;
[b] declaring what language shall be deemed to be commonly used in each district;
[c] declaring what territorial divisions shall be recognized under section 21;
[d] regulating the amount of fines imposed under sections 25 and 34, respectively;
[e] regulating the exercise of the discretion reposed in the registering officer by section 63;
[f] regulating the form in which registering officers are to make memoranda of documents;
[g] regulating the authentication by Registrars and Sub- Registrars of the books kept in their respective offices
under section 51;
[gg] regulating the manner in which the instruments referred to in sub-section [2] of section 88 may be presented for registration;
[h] declaring the particulars to be contained in Indexes Nos.
I,II,III and IV, respectively;
[i] declaring the holidays that shall be observed in the registration offices; and
[j] generally, regulating the proceedings of the Registrars and Sub-Registrars.
[2] The rules so made shall be submitted to the State Government for approval, and, after they have been approved, they shall be published in the Official Gazette, and on publication shall have effect as if enacted in this Act.
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Sections 32A of the Bombay Stamp Act:
"32A. Determination of market value of property which is the subject matter of conveyance, etc. [1]
Instrument of conveyance, exchange, gift, certificate of sale, partition, partnership, settlement or power of attorney or to sell immovable property when given for consideration or transfer of lease by way of assignment presented for registration under the provisions of Registration Act, 1908 shall be accompanied by true copy thereof, and the statement in such form as may be prescribed by rules and if any officer registering such instrument under the aforesaid Act or any person referred to in Section 33, before whom such instrument is produced or comes in the performance of his functions, has reason to believe that the consideration set forth therein does not approximate to the market value of the property which is the subject matter of such instrument, or as the case may be, the market value of the property which is the subject matter of such instrument has not been truly set forth therein, he shall before registering the instrument or as the case may be, performing his functions in respect of such instrument, refer the instrument or true copy thereof to the Collector of such district in which either the whole or any part of the property is situated for determining the true market value of such property and the proper duty payable on the instrument under this section.
Provided that for the purpose of this sub-section, the consideration set forth in an instrument executed by the State Government, the Central Government, a local authority, Gujarat Housing Board, Gujarat Slum Clearance Board or Gujarat Industrial Development Corporation, shall be deemed to be the true market value of the property which is the subject matter of such instrument.
[2] On receipt of the instrument under sub-section [3] of Section 31 or instrument or true copy of instrument under subsection [1] of this section, the Collector of the district shall, after giving the parties concerned a reasonable opportunity of being heard, and in accordance with the rules made by the State government in this behalf, determine the true market value of the property which is the subject matter of the instrument and the proper duty payable thereon.
[3] Upon such determination, the Collector of the district shall require the party liable to pay the duty, to make payment of such amount as is required to make up the difference between the amount of duty determined under this sub-section and the amount of duty already paid by him and shall also require such party to pay a penalty of two hundred and fifty rupees or the amount of the proper duty or of the deficient portion thereof whichever is less and on such payment, return the instrument to the officer referred in sub-section [3] of section 31 or, as the case may be, sub-section [1] of this section:
4. The Collector of the district may, suo motu or on receipt of information from any source, within six years from the date of registration of any instrument referred to in sub-section [1], (not being the instrument upon which an endorsement has been made under Section 32 or the instrument in respect of which the proper duty has been determined by him under subsection
[3] or an instrument executed before the date of the commencement of the Bombay Stamp [Gujarat Amendment] Act, 1982) [Guj. 21 of 1982] call for examine the instrument for the purpose of satisfying himself as to the correctness of the consideration or of the market value of the property which is the subject matter of such instrument and the duty payable thereon; and if on such examination, he has reason to believe that the consideration does not approximate to the market value of such property or, as the case may be, market value of such property has not truly and fully set forth in the instrument, he shall proceed as provided in sub-sections [2] and [3].
Section 53A of the Bombay Stamp Act:
53A. Revision of Collectors decision under Sections 32, 32A, 39 and 41:-
(1). Notwithstanding anything contained in sub-section (3) of Section 32, sub-section (3) of section 32-A, sub-section (2) of section 39 and sub-section (2) of section 41, when through mistake or otherwise any instrument is charged with less duty than leviable thereon, or is held not chargeable with duty, by the Collector, the Chief Controlling Revenue Authority may, within a period of six years from the date of certificate of the Collector under Sections 32, 32A, 39 or 41, as the case may be, required the concerned party to produce before him the instrument and, after giving a reasonable opportunity of being heard to the party, examine such instrument whether any duty is chargeable or any duty is less levied thereon and pass an order for recovery of the deficit duty, if any, from the concerned party. An endorsement shall be made on the instrument after payment of such deficit duty.
(2). On failure to produce the original instrument by the party, the Chief Controlling Revenue Authority shall proceed under this section on the basis of the true copy or an abstract of the instrument filed with the Collector and such true copy or abstract shall be deemed to be the original instrument for the purposes of this section.
Rule 45 of the Registration Rules, 1970:
œ45. Certain requirements to be verified before accepting a document for registration.--[1] A registering officer shall, before accepting any document for registration not concern himself with its validity but see that --
[a] it is properly stamped;
[b] it is presented within the proper time and in the proper office;
[c] it is presented by a competent person;
[d] if it relates to immovable property, that it is not open to objection under section 21 or 22;
[e] if any document is in a language which he does not understand, the provisions of section 19 are complied with;
[f] any interlineations blanks, erasures or alterations appearing in the document are attested by the signature or initials of the person or persons executing the same as required by section 20;
[g] the deed does not contravene the provisions of Sub-Section [1] of Section 5 of the Foreign Exchange Regulation Act, 1947, and
[h] Whether sale certificate and prior permission in writing of the authorities concerned are produced before him in original, if the deed relates to transfer of Government built property.
[2] If on presentation of the document, the fees prescribed under section 78 are not paid demand, the registering officer shall refuse to register the document.
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6. After going through the aforesaid provisions of the two statutes quoted above, we find that after the execution of a document which requires compulsory registration under Section 17 of the Registration Act, the same is required to be presented within the specified timelimit provided in Section 23 of the Registration Act. It further appears that in case of compulsorily registrable document, the effect of the transaction is given only after the document is registered but once it is registered, it will take effect from the date of its execution.
7. We are, therefore, not impressed by the submission of Mr. Jani that once receipt is given showing presentation of a document for registration, the party presenting it or the parties to the transaction will lose interest in the matter of settling the dispute of under valuation and insufficient stamp duty and their object will be to delay the said proceeding. Once a person purchases a property, his intention will be to complete the process of registration as early as practicable; otherwise, he will not be able to utilize the said document in proof of his title that has accrued in his favour. On the other hand, if the registration is kept pending, he may face various difficulties in future and will in fact, not get the benefit of the document although executed in his favour in any legal proceedings.
8. From the provisions quoted above, we find that those statutory provisions provide that when a document is presented for registration with a valuation which according to the registering authority is less than the appropriate valuation and consequently without the requisite amount of stamp duty payable under the Stamp Act being affixed, it is the duty of the registering authority to accept the document for registration and thereafter, call upon the person presenting the same within the specified time asking him to pay the deficit stamp duty and if the person presenting the document raises a dispute, it is the duty of the said officer to adjudicate the dispute and thereafter, to direct him to pay the balance amount due within a specified time. Of course, such adjudication by the registering authority is subject to revision before the appropriate authority specified in Section 53A of the Stamp Act and the matter may be moved even before the higher forum. In our opinion, Mr. Parikh is quite justified in contending that in refusing to accept the document by branding it as œundervalued? with aid of the impugned Circular, the respondent-authority has violated the procedure provided in Sections 32A and 53A of the Stamp Act and Rule 45 of the Registration Rules. In other words, by way of a circular, there is no scope of deviating from the prescribed procedure provided in Sections 32A and 53A as well as Rule 45 indicated above. It appears that by virtue of the above provisions, a person presenting a document for registration even with inappropriate stamp duty has a right to have a receipt acknowledging presentation of a document, and thereafter, to face the proceedings for determination of the appropriate valuation but by dint of the circular impugned, the respondents are denying such statutory right to the person presenting such document. A citizen has the right to present a document for registration even on the last day prescribed under Section 23 of the Registration Act but by taking aid of the circular impugned, the Respondents can make the right to present the document barred by limitation by refusing to accept the same on the last day. Even by refusing to accept a document for presentation well within the period of limitation and by not resolving the dispute as to valuation within the time fixed under Section 23 of the Registration Act, the right of presentation for registration may become barred.
Although Mr. Jani tried to convince us that there is provision of condonation of delay for presentation of document, we are of the view that the State-authority has no right to compel a citizen to invoke the said provision of condonation of delay when he, as a matter of right, wants to avail of his right by presenting the document within the period of limitation even with the alleged undervaluation and the consequent, insufficient amount of stamp duty. We have also pointed out that so long the dispute as to the stamp duty is not resolved by the State-respondent, the parties to the document shall not be entitled to get benefit out of it. Therefore, for their respective interest, the parties to the transaction will expedite the disposal of the dispute as to valuation and will pay the requisite amount of stamp duty. Moreover, the observations expressed while disposing of application for interim relief are always prima facie and such observations are never binding upon the court while disposing of the matter finally.
9. We, therefore, find that in this case, inspite of existence of a specific statutory provision dealing with the case of entertainment of a document for registration even when the registering authority alleges undervaluation with insufficient stamp, the respondentauthority, by issuing the impugned Circular has invented an unlawful method of circumventing the prescribed law passed by the competent legislation.
10. We, therefore, find that the aforesaid Circular is without any authority of law not being sanctioned by the competent Legislature and on the contrary, is in conflict with the existing legislation dealing with the subject.
11. Consequently, we quash the impugned Circular dated 9th May 2007 as without jurisdiction and direct the respondent-authority to follow the existing statutory provisions indicated above in case of presentation of any document with the alleged undervaluation and the consequent insufficient stamp duty affixed.
12. All the applications are thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.