Judgment:
S.U. Khan, J.
1. In some stamp matters learned counsel for the petitioners stated that different officers were given different targets by their higher authorities for realization of stamp duty and penalty. However, the Court could not find any good evidence in support of the said assertion. But, on the basis of experience gained while sitting for the last six months in this jurisdiction I can safely say that in some of the cases which came before me different authorities and officers went out of their way to extract as much amount as possible by way of stamp deficiency and penalty. Provisions of Section 47A of the Stamp Act shall not be overstretched lest they break. During last three or four years there has been enormous rise in stamp deficiency cases. It appears that almost every second or third deed is being impounded. This may result in killing the goose, which is laying golden eggs. If this practice is continued for a longer period execution and all registration of all sorts of deeds in Uttar Pradesh may become obsolete. Government should not underestimate the ingenuity of the public. It is quite possible that immovable property may change hands even without any deed either registered or un-registered. This will not only deprive the State Government of the valuable revenue which it is earning through stamp duty but will also give rise to enormous disputes and litigation in respect of immovable properties.
2. Sub-Registrar's primary duty is to register the deeds. They are now being directed to at least spare one day per week from their regular duties and inspect the properties in respect of which they have registered the deeds and ascertain whether proper valuation of the property was given in the deed or not.
3. In several cases the Court has found that if any person who is having some grudge against the vendee files a complaint in respect of improper payment of stamp duty on a particular sale deed, authority hearing the case places the entire burden upon the vendee and if he fails to discharge the burden the allegation of valuation made by the complainant is taken to be correct.
4. In most of the cases Tehsildar or some other authority files report on the basis of ex parte inspection and the authority hearing stamp cases decides the case only on the basis of that ex parte report.
5. The instant case also discloses an alarming state of affairs. Under the agreement in question possession was delivered and sale consideration was mentioned as Rs. 1,50,000. Stamp duty was paid on the said amount and agreement was registered. Later on it was impounded. By order dated 16.12.2004 I directed the Sub-Registrar to be present in order to explain as to why in the first instance agreement was registered even though market value of the property set forth in the agreement was less than the value fixed under U. P. Stamp (Valuation of Property) Rules, 1997. The then Sub Registrar of the registration office concerned namely Shri O. P. Katheria is present. Sub-Registrar states that at the relevant time when the deed was registered by him he was under confusion regarding payment of stamp duty on agreement with possession. Schedule 1B to the Stamp Act has been amended by U. P. Act No. 22 of 1998 (Indian Stamp (U. P. Amendment) Act, 1997). It has been provided thereby under Article 5 (b1) of Schedule 1B that on agreement for sale without possession same stamp duty shall be paid as on conveyance (No. 23 Clause (a)) on one half of the amount of consideration as set forth in the agreement. Clause 13 of statement of objects and reasons of the said Amendment Act provides that stamp duty on agreement must be paid on one half of the amount of consideration set forth in the agreement where possession is not delivered and on full amount of consideration set forth in the agreement where possession is delivered. Article 5 as amended by the aforesaid Amendment Act deals with agreements without possession. Agreements with possession have not been separately provided for. They are covered by Explanation added to Article 23 of Schedule 1B by the aforesaid U. P. Act No. 22 of 1998 which reads as under :
'For the purposes of this Article, in the case of an agreement to sell an immovable property, where possession is delivered before the execution or at the time of execution, it is agreed to be delivered without executing the conveyance, the agreement shall be deemed to be conveyance and stamp duty thereon shall be payable accordingly.'
6. The two provisos are also quoted below :
Provided that the provisions of Section 47A shall mutatis mutandis apply to such agreement :Provided further that when conveyance in pursuance of such agreement is executed, the stamp duty paid on the agreement shall be adjusted towards the total duty payable on the conveyance.
7. Sub-Registrar states that by virtue of Clause 13 of statements of objects and reasons of the aforesaid amendment Act he was of the view that on agreements for sale with possession stamp duty was payable only on the consideration mentioned in the agreement and not on the market value of the property as determined in accordance with the relevant rules i.e., U. P. Stamp (Valuation of Property) Rules, 1997 applicable to conveyances.
8. In the opinion of the Court different interpretations of a provision imposing duty or tax by different authorities is not in the interest of administration of justice. Taxing statute must be precise and unambiguous. If two interpretations are possible, the one favourable to the person who is required to pay the tax or the duty will have to be adopted. It is directed that in no case where such contingency arises either penalty shall be imposed or interest must be charged. Learned standing counsel has placed before me an order passed by Deputy Inspector General (Registration), Moradabad Division, Moradabad dated 16.1.2003 directing all the Sub-Registrars of Moradabad that cases in which stamp duty on agreements with possession was paid on the basis of consideration shown under the deed should be separated and notices must be issued in all those cases and those cases must be decided within fifteen days by stamp courts. This Court is completely unable to understand as to how within fifteen days service can be effected, full opportunity can be provided and case can finally be decided. The Deputy Inspector General (Registration) has shown not the anxiety but over-anxiousness. The said order refers to another order which was issued just one day before, i.e., 15.1.2003 and it is mentioned that similar directions were given in the earlier letter also which had not been complied with hence explanation must be given. The Court cannot appreciate this undue haste.
9. In the instant case agreement was executed on 11.1.1999 and in pursuance of the said agreement sale deed was executed on 30.8.1999. On the agreement stamp duty on the sale consideration of Rs. 1,50,000 as mentioned in the agreement was paid. However, on the sale deed additional stamp duty of Rs. 19,200 was paid taking the market value of the property as Rs. 3,42,000 determined in accordance with the aforesaid Rules of 1997. In this manner total stamp duty of Rs. 34,200 was paid. By the impugned ex parte order dated 23.1.2004 Deputy Commissioner (Stamp), Moradabad Division, Moradabad determined Rs. 34,490 as stamp deficiency. Stamp duty paid on the sale deed was not taken into consideration. Petitioner filed restoration/review petition pointing out that atleast adjustment of the stamp duty paid on the sale deed must be granted in view of second proviso to Article 23 (supra). Deputy Commissioner by order dated 27.7.2004 accepted the case of the petitioner but refused to grant any relief on the ground that after passing order dated 23.1.2004 on merit he had become functuous officio and he had no jurisdiction to correct the blunder which he had committed. Appeal filed against the said order has also been dismissed. The Court cannot but wonder at the view taken by the Deputy Commissioner (Stamp) in his order dated 27.7.2004. In the order dated 23.1.2004, it was mentioned that petitioner did not appear. In the said order it was also mentioned that Deputy Commissioner (Stamp) considered the case with a view to decide the same quickly. In the opinion of the Court Deputy Commissioner has gone a step further from the maxim 'justice hurried is justice buried'. He has buried the justice hurriedly. Every court or Tribunal has got inherent power to set aside ex parte orders, vide G. Bank v. C. G. Ind. Tribunal, AIR 1981 SC 606. Apart from it every court and Tribunal has got not only jurisdiction but duty to correct its own faults. Record of the sale deed was available in the office of Sub-Registrar. It was the duty of the Sub-Registrar to point out that additional stamp duty had been paid on the sale deed. Deputy Commissioner (Stamp) should have corrected the error when it was pointed out by the petitioner. Supreme Court in U.I. Ins. Co. v. R. Singh, AIR 2001 SC 1165, has held in para 17 'No court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.' The manner in which Deputy Commissioner decided the case and particularly his order rejecting the restoration/review application of the petitioner clearly shows undue haste and arbitrary manner in which he acted.
10. All the respondents are represented by learned standing counsel who shall file counter-affidavit within two months giving therein the total amount realized as stamp duty including the deficiency as determined and realized by virtue of cases under Section 47A of the Stamp Act in the entire State of Uttar Pradesh in the financial years starting from April, 1998 and ending with March, 2004.
11. Until further orders recovery proceedings in pursuance of impugned orders shall remain stayed.
12. Copy of the order may be given free of cost to Shri Sanjay Goswami whose assistance in the, case is very much appreciated.