ORDER
1. Heard both sides.
2. This petition under Article 226 of the Constitution of India seeks to challenge the memo served on the petitioner by the Joint Sub-Registrar in the office of the District Registrar, Eluru dated 24-3-1999 and seeks a direction that the document in question may be registered treating it as a partition-deed.
3. The relevant facts are that the petitioner along with other executants executed a document dated 21-7-1998, described by them as settlement deed, and presented it for registration before the concerned Sub-Registrar at Eluru on 14-9-1998. The document carried a stamp duty at the rate of 3% of the market value of the property as stated in the deed.
4. However, the Joint Sub-Registrar did not take up the document for registration and got the impugned memo dated 24-3-1999 served on the petitioner calling upon him to pay the stamp duty at 6% of the market value. It appears that the executant of the document paid the stamp duty by ascertaining its value under Article 49-A of the Stamp Act whereas the Joint Sub-Registrar took the view that the stamp duty was payable under Article 49-B of the Stamp Act at 6% on the market value.
5. It is this memo calling upon the petitioner to pay the stamp duty as above, which is now challenged in this petition and also a direction is sought to the Joint Sub-Registrar to register the document as presented on the stamp duty as already paid.
6. The learned Counsel for the petitioner contends that the document falls under Article 49-A of the Stamp Act and payment of 3% stamp duty must have been considered in compliance with law and that the Sub-Registrar's view that the document falls under Article 49-B of schedule of the Stamp Act requiring payment of 6% stamp duty is erroneous. The learned Government Pleader for Revenue on the other hand contends that at this stage this Court need not go into the question as to under what Article of the Stamp Act the document falls inasmuch as the petitioner has a remedy by either under the Stamp Act or under the Registration Act. He refers to Section 31 of the Stamp Act and contends that the petitioner ought to have approached the Collector under the said section for adjudicating the proper stamp duty payable on the document in question. Section 31 of the Stamp Act reads as follows:
'31. Adjudication as to proper stamp:
(1) When any instrument, whether executed or not and whetherpreviously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding fifteen rupees and not less than five rupees) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly.'
A reading of provisions in Section 31 of the Stamp Act would disclose that it applies to those instruments whether executed or not which are brought before the Collector and the person bringing it applies to have the opinion of the Collector as to the duty if any which is chargeable on payment of the prescribed fee. The Collector is then authorised to determine the duty, if any, with which, in his judgment, the instrument is chargeable. Obviously, this applies to a case where any person on his own desires to obtain the adjudication of the Collector as to the stamp duty payable on a document. This cannot be considered as a remedy in a situation where a document presented before the Sub-Registrar for registration was in the opinion of Sub-Registrar not properly stamped. Section 31 obviously applies to the instruments which are voluntarily submitted to the Collector for his adjudication as to the stamp duty payableon them. The learned Government Pleader refers to Section 56 of the Stamp Act also in this connection. Section 56 of the Stamp Act provides for a reference to the Chief Controlling Revenue authority by the Collector in respect of adjudications sought from him under Section 31, 40 or 41 of the Stamp Act and where the Collector feels doubt as to the duty chargeable on such instruments. There is no question of Section 56 being applicable to the circumstances of this case.
7. A reference was made to Section 47-A of the Stamp Act also as amended in Andhra Pradesh. The provisions of Section 47A obviously apply where the registration is kept pending on the ground that the value of the property, as set forth in the instrument, is not in accordance with the market value of the property. This enables the Registering Officer, if he has a reason to believe, that the market value of the property, which is the subject matter of the instrument, presented for registration before him has not been truly set forth in the instrument to keep the registration pending and refer the matter in respect of the market value of the property and the stamp duty payable on the instrument to the Collector. In this case, the objection for registering the instrument on the part of the Sub-Registrar was not on account of his opinion that the market value as set forth in the instrument was not correct. The objection was as to the nature of the instrument which according to the Sub-Registrar fell under Article 49-B whereas the petitioner has paid the stamp duty on the basis of Article 49-A (a) of the Schedule.
8. The learned Government Pleader further contended that at any rate the impugned memo served on the petitioner merely calls upon him to pay additional stamp duty and that there is no substantive order that he has refused registration and that this petition is not maintainable unlessthe Sub-Registrar has passed such an order refusing registration. The learned Counsel for the petitioner on the other hand contends that though the word 'refusal' was not used by the Sub-Registrar in the impugned memo but the very direction to pay stamp duty at 6% and take back the document would in substance amount to refusal to register on the part of the Sub-Registrar.
Section 71 of the Registration Act is extracted below:
'Section 71(1) Every Sub-Registrar refusing to register a document except on the ground that the property to which it relates is not situated within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words 'Registration refused' on the document; and, on application made by any person executing or claiming under the document, shall without payment and unnecessary delay, give him a copy of the reasons so recorded.
(2) No Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.'
Section 71 of the Act is the appropriate provision under which the Sub-Registrar concerned may refuse to register a document except on the ground that the property to which it relates is not situated within his sub-district If the Sub-Registrar has decided to refuse to register a document, Section 71 of the Act contemplates that he shall make an, order of refusal and record his reasons for such order in his Book No.2 and endorse the words 'Registration refused' on the document. It further contemplates that on application made by any person executing or claiming under the document, the Sub-Registrar shall without payment and un-necessary delay, give him a copy of the reasons so recorded.
9. It is abundantly clear from the language used in Section 71 of the Registration Act that a formal order supported by reasons is mandatory for refusing to register a document under Section 71 of the Registration Act. It also authorises the person affected by the refusal to make an application for copy of such an order refusing to Register.
10. In this case, the petitioner herein has not stated that he made such an application for such a copy and at any rate no such copy is enclosed with the petition. The impugned memo merely conveys the opinion of the Sub-Registrar that the document in question shall liable to be stamped as per Article 49-B of the Stamp Act at 6% of the market value. The words 'therefore, it is for your information for taking necessary action' and the words 'you can lake back the document after paying the stamp duty as stated above' go to show that the petitioner was informed of the view of the Sub-Registrar and was given an option to pay the alleged deficit stamp duty and take back the documents. By no stretch of imagination, can it be considered as an order of refusal to register the document passed under Section 71 of the Registration Act.
11. However, it is debatable whether if the Sub-Registrar has reason to believe that the document was not duly stamped, he can direct the executant or the person claiming under the document to pay the deficit stamp duty and then call upon him to take back the document on such payment of deficit stamp duty. The impugned memo cannot be considered as a statutory order passed by the Sub-Registrar under any of the provisions of the Stamp Act or Registration Act. If the Sub-Registrar has decided to refuse to register the document on the ground that it was insufficiently stamped, it was incumbent on him to pass an order as contemplated under Section 71 of the Registration Act. It is only against an order passed underSection 71 of the Registration Act, an appeal lies to the Registrar under Section 72 of the Registration Act. In this case, the impugned memo has to be treated merely as conveyance of information to the petitioner that in the opinion of the Sub-Registrar, the document was insufficiently stamped and offering him an option to make good the deficit stamp duty so that the Sub-Registrar can proceed to register it.
12. The fact that aggrieved by the impugned memo, the petitioner has come forward to challenge it in this writ petition would, at any rate, go to show that the petitioner is not willing to exercise the option given by the Sub-Registrar to pay the deficit stamp duty as ascertained by the Sub-Registrar.
13. It is, however, seen that Section 33 of the Stamp Act appears relevant. Section 33 of the Stamp Act is extracted below for ready reference:
'33. Examination and Impounding of Instruments:
(1) Every person having by law or consent of parties authority to receive evidence, and every person-in-charge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed.'
14. This Section contemplates that every person having by law or consent of the parties authority to receive evidence like a Judge or an arbitrator and every person in-charge of a public office except an officer of a police before whom any instrument is chargeable in his opinion with duty is produced shall if it appears to him that such instrument is not duly stamped, impound the same.
15. In this case, the Sub-Registrar concerned must be held to be a person in-charge of a public office. The document in question was obviously produced before him in the performance of his functions as such Sub-Registrar. In that case, it was obligatory in view of the provisions in Section 33 of the Stamp Act that the Sub-Registrar, if it appeared to him that such instrument was not duly stamped, to impound the same.
16. In this case, it is apparent that the Sub-Registrar in question before whom the petitioner presented the document for registration had found that the document ought to have been stamped at 6% of the market value and not at 3% of the market value as is the case in respect of the document in question. In view of this opinion held by the Sub-Registrar, it was incumbent on him, in view of the provisions under Section 33 of the Stamp Act, to impound the document.
17. If the document is impounded by an authority receiving evidence and has admitted such instrument in evidence upon payment of deficit stamp duty and penalty as provided under Section 35 of the Stamp Act, he shall send to the Collector, an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Collector or to such person as he may appoint in this behalf, as contemplated in Section 38(1) of the Stamp Act.
18. This does not apply in this case as the document in question was not presented before the Sub-Registrar for receiving in evidence. In such a case, the Sub-Registrar if he decides to impound the document shall send it in original to the Collector as provided for under Section 38(2) of the Stamp Act. Under Section 40 of the Indian Stamp Act, 1899, the Collector who has received the document under Section 38 of the said Act shall proceed to decide whether the instrument is duly stamped or is not chargeable with duty or if it is chargeable with duty and is not duly stamped, he shall require payment of the proper duty or the amount required to make up the same together with a penalty of Rs.5/- or if he thinks fit, (an amount not exceeding) ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. It is obvious that in this case, the Sub-Registrar has neither passed an order refusing to register the document as contemplated under Section 71 of the Registration Act nor he impounded the document as contemplated under Section 33 of the Stamp Act.
19. It is only after the Sub-Registrar passes either of the order that the petitioner can proceed in the matter. At any rate, it is clear that it is not for this Court at this stage to proceed to examine the document and determine whether the document falls under Article 49-A or under Article 49-B of the Stamp Act. The Sub-Registrar concerned is directed to either pass an order refusing to register the document under Section 71 of the Indian Registration Act, if he so chooses, on, the ground that the petitioner is not willing to pay the deficit stamp duty as called for by him in the impugned memo dated 20-3-1999 or to proceed under the provisions under Section 33 of the Stamp Act. The Sub-Registrar concerned shall pass the requisite order within 15 days from the date of receipt of this order.
20. With these directions, this writ petition is closed. No costs.