1. This writ petition has been filed seeking a direction to opposite party no.1-Sub-Registrar-cum-Stamp Collector, Khurda to return the original sale deed No.2814/2007 to the petitioner and for quashing the notice dated 16.2.2008 under Annexure-3 by which the opposite party no.1 directed the petitioner either to deposit the deficit amount of stamp duty and registration fee as calculated by him or else to contest the matter to be referred to the next higher forum.
2. Short facts giving rise to this writ petition are that for maintenance of day-to-day affairs of Shree Lord Jagannath Temple, the Managing Committee after receipt of approval of the Government of Orissa for sale of the property in question published a sale notice bearing No.142 dated 8.1.1996 inviting applications from prospective purchasers. Pursuant to the said notice, prospective purchasers applied for the same. On 8.6.1996, an open auction was held. In the said open auction, the present writ petitioner became the highest bidder and knocked the bid at Rs.41,000/- per acre. As per Section 16(2) of the Shree Jagannath Temple Act, 1955, the Government of Orissa, through the Law Department accorded permission vide letter No.9006 dated 26.04.1997 for sale of the scheduled property @ Rs.41,000/- per acre. Subsequently, because of some dispute between the petitioner-vendee and the vendor, the petitioner filed writ petition bearing O.J.C. No.8073 of 1997 before this Court. In the said writ petition, this Court vide its order dated 3.3.1998 directed the vendee-petitioner to deposit the consideration money at the rate of Rs.41,100/- per acre by 31.03.1998. Vide order dated 15.12.1998 in Misc. Case No.16727 of 1998 this Court permitted the petitioner to deposit the balance sum of Rs.2.00 lakhs towards full and final consideration money of Rs.46,09,076/- within two weeks. The Court further ordered that only after deposit of Rs.2.00 lakhs the question of adjustment or forfeiture of the security deposit would be considered. The petitioner paid this shortfall amount of Rs.2.00 lakhs on 09.01.1999. However, the sale deed was presented on 26.11.2007 before opposite party no.1 for registration. Under Section-52(1)(b) of the Indian Registration Act opp. party No.1 made over receipts to the vendee-petitioner on 26.11.2007. Opposite party no.1 did not hand over the registered sale deed to the petitioner in spite of several approaches even long after expiry of the time for delivery of sale deed. While the matter stood thus, opposite party no.1 issued a notice on 16.2.2008 under Annexure-3 directing the petitioner to deposit Rs.56,15,648/- and Rs.14,03,914/- towards the deficit stamp duty and fees respectively. It was further intimated in the said notice that if the petitioner did not want to make such payment as indicated in Annexure-3 and wanted to contest the case, the matter shall be referred to the next higher forum for valuation and realization of the deficit stamp duty and fees, if any. Hence, this writ petition.
3. Mr Mohanty, learned counsel appearing for the petitioner submitted that the registering officer has no power/authority to withhold the sale deed after it was registered. The amounts of Rs.56,15,648/- and Rs.14,03,914/- assessed towards the deficit stamp duty and fees respectively are based on mere suspicion of opposite party no.1. Since the property in question was put to open auction and the valuation of the property had been fixed by this Court in O.J.C. No. 8073/1997 disposed of on 03.03.1998 and the petitioner accordingly paid the said amount to the vendor by 09.01.1999 in addition to the earnest money of Rs.2.00 lakhs deposited with the vendor, opposite party no.1 has no authority or jurisdiction at all to come to a conclusion that the property had been under valued merely because the sale deed concerning the property was presented for registration on 26.11.2007. Opposite party no.1 has also no authority to initiate Under Valuation Case No.46 of 2008 against the petitioner, as neither the provisions of the Indian Registration Act nor the Indian Stamp Act empowers him to initiate such a case. Under these two Acts no power has been conferred on the registering officer to issue any notice directing the petitioner to deposit deficit amount of stamp duty and registration fee as calculated under Annexure-3 or to contest the matter to be referred to the next higher authority. Therefore, objection with regard to maintainability of the writ petition should not be entertained. As per Rule 100 of the Orissa Registration Rules, the registering officer is to make the documents ready within seven days from the date of their admission and return the same promptly to the presentant. It further speaks that when receipts are granted to the presentant under Clause (b) of Section 52(1), the presentant shall be informed by the registering officer of the probable date on which his documents will be ready for return. The said date shall be noted on the receipt itself and every endeavour shall be made to return the documents on such date. Section 61 (2) of the Indian Registration Act speaks that soon after the registration is complete, the documents shall be returned to the person who presented the same for registration or to the other person (if any), duly nominated in writing in that behalf on the receipt as mentioned in Section 52. As per Section 80-A of the Indian Registration Act, if on inspection or otherwise it is found that the fee payable under that Act in relation to any document, which has been registered, insufficiently paid, deficit fee shall, after failure to pay the same on demand within the prescribed period, be recoverable from the person who had presented that document as arrears of land revenue. After a document is registered, it becomes the property of the vendee. Hence, the actions of the registering officer in withholding the original documents after the same was registered and issuing notice under Annexure-3 being not in conformity with law are unsustainable.
4. Learned Addl. Standing Counsel appearing for the State, on the other hand, submitted that the writ application filed by the petitioner is not maintainable inasmuch as the petitioner neither accepted the valuation fixed by the Sub-Registrar nor disputed the valuation so made by the Sub-Registrar, Khurda by filing objection to the notice in Annexure-3. In the meantime, the matter has been referred to the Inspector General of Revenue for determination of valuation of the land, stamp duty and registration fee on the said documents to which the petitioner has the right to file objection, if any, before the said Revenue authority. Since alternative remedy is very much available to the petitioner, the present writ petition is not at all maintainable. Referring to the Notification dated 15th February, 1963 of Government of Orissa in Finance Department, it was submitted that the State Government has brought in certain amendments to the Orissa Stamp Rules, 1952. Rule-28 deals with return of instrument. As per Rule 28, when an instrument has been referred to the Collector under Section 47A, the Collector shall, when he has finally dealt with it, return it to the registering officer concerned.
It was further submitted that in the earlier writ petition in O.J.C. No.8073/1997 and Misc. Case dated 3.3.1998, neither the State Government in Revenue Department nor the Collector, Khurda was made a party. Therefore, any decision taken by the Court with regard to valuation of the land in question is not binding on the Sub- Registrar, Khurda at the time of registration of the documents on 26.11.2007. The valuation was not at all acceptable on two grounds: (i) that the auction price that was fixed between the parties, viz., the vendor and the vendee, does not disclose the actual market price in the locality; and (ii) by efflux of time the valuation of the land has been enhanced and the auction price which was held good in the year2007. 1997 cannot be considered to be the same after ten years at the end of Registering Officer has nothing to do with the internal arrangement between the vendor and the vendee with regard to fixation of the land value, but he has to realize the stamp duty, registration fee on the basis of market price of the land as fixed by the State Government for the said land. The opposite party no.3 has rightly issued notice under Annexure-3 to the petitioner. However, the registering officer with abundant caution has also referred the matter to the next higher authority with further opportunity to the petitioner to agitate his claim before the said authority. The registered sale deed does not show the entire amount to have been paid by the petitioner on 31.03.1998, i.e., the date fixed by the High Court. Hence, the writ petition is liable to be dismissed.
5. In view of the rival contentions raised at the Bar, the questions that fall for consideration by this Court are as follows:-
(i) Whether the writ petition is maintainable on the ground of availability of alternative remedy. ?
(ii) Whether the registering officer has the power to withhold original document after the same is registered and he is justified in issuing notice as under Annexure-3?
(iii) Whether the valuation of the property determined at public auction and thereafter re-fixed by the High Court at a higher value is the true market value for the purpose of registration under the Indian Registration Act and the same is binding upon the registering officer?
6. The first question relates to the preliminary objection raised by O.P. No.1 regarding availability of alternative remedy. In the writ petition, the petitioner challenges the action of the registering officer in withholding the original sale deed No.2814 of 2007 after its registration and to quash Annexure-3 dated 06.02.2008 by which the registering officer directed the petitioner to deposit the deficit amount towards stamp duty and registration fee as calculated by him or else to contest the matter to be referred to the next higher forum. The argument of the petitioner is that no power is vested in the registering officer to withhold the sale deed after its registration is completed. The further contention of the petitioner is that the order passed under Annexure-3 is without jurisdiction and hence the same is liable to be quashed. According to the petitioner, there is no such provision either under the Indian Registration Act, 1908 or the Indian Stamp Act, 1899 that empowers the registering officer to issue such notice as under Annexure-3 and to withhold the sale deed after completion of registration. Thus, in the present writ petition, the jurisdiction of the registering officer is under challenge. In course of hearing, the learned counsel appearing for the opp. parties has not brought to our notice any provision either under the Indian Stamp Act or the Indian Registration Act that confers jurisdiction on the registering officer to issue notice in terms of Annexure-3 and to withhold the sale deed after completion of registration. A bare perusal of Annexure-3 reveals that the registering officer has issued the said notice without referring to any Section or Rule of any statute under which such notice is intended to be issued. Learned counsel for the opposite parties has also failed to bring to our notice any such provisions of law which give right to the petitioner to challenge such action of the registering officer in withholding the sale deed after its registration and the legality and the validity of order passed under Annexure-3 before any statutory authority.
Needless to say, the issue involving jurisdiction always goes to the root of the cause.
Law is well settled that when an order is passed by any authority having no jurisdiction or in violation of the principles of natural justice, the superior court shall not refuse to exercise its jurisdiction although there exists an alternative remedy (See Whirlpool Corpn. V. Registrar of Trade Marks, (1998) 8 SCC 1; AIR 1999 SC 22.) In Guruvayoor Devaswom Managing Committee and Another v. C.K.Rajan, (2003) 7 SCC 546, the apex Court observed that alternative remedy has been consistently held by it not to operate as a bar at least in any of the four contingencies, namely, where the writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of the Act is challenged. In view of the above, the preliminary objection raised by the opp. parties regarding maintainability of the writ petition on the ground of alternative remedy merits no consideration.
7. The second question is as to whether the registering officer has any power to withhold the original documents after the same are registered.
To deal with such a question it is pertinent to examine Section 52(1), Section 61(2), Section 80A of the Indian Registration Act, 1908 (Orissa Amendment) and Rule 100 (1) & (2) of Orissa Registration Rules, 1988, which run as under:-
"52. Duties of registering officers when document presented. (1) (a) The day, hour and place of presentation, the photographs and finger prints affixed under section 32 A, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) A receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) Subject to the provisions contained in section 62, where a document is admitted to registration, a true copy thereof shall, without unnecessary delay, be filed in the appropriate book according to the order of its admission."
"61 Endorsements and certificate to be copied and document returned. (2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52."
"80-A. Recovery of deficient registration fees as arrears of land revenue.-- If on inspection or otherwise, it is found that the fee payable under this Act in relation to any document which is registered has been insufficiently paid, the deficient fee shall, after failure to pay the same on demand within the prescribed period, be recoverable from the person who presented such document as arrears of land revenue." "100. Prompt return of documents after registration
Documents admitted to registration shall be completed and made ready for delivery within seven days from the date of their admission and shall be promptly returned to the present ant or the person authorized to receive them and the duplicate receipt returned by the parties shall be posted on to their respective originals. (2) When receipts are granted under Clause (b) of Section 52 (1) to the presenting they shall be informed by the registering officer of the probable date on which their documents will be ready for return. The said date shall be noted on the receipt and every endeavour shall be made to return the document on such date."
A conjoint reading of Section 52(1), Section 61(2) and Section 80A of the Indian Registration Act, 1908(Orissa Amendment) and Rule 100 (1) & (2) of Orissa Registration Rules, 1988 makes it amply clear that there is an obligation cast on the registering officer to make every endeavor to return the document promptly after the same is registered. He cannot withhold any document after the same is registered for any other purpose. If upon inspection or otherwise it is found that the fee payable under the Registration Act in relation to any document, which is already registered, has not been paid or has been paid insufficiently, such fee may be recovered from the person who presented such document for registration as an arrear of land revenue.
8. Learned counsel for the State submitted that according to Rule 28 of the Orissa Stamp Rules, 1952, where an instrument has been referred to the Collector under Section 47A, the Collector shall, when he has finally dealt with it, return it to the registering officer concerned. In paragraph 4 of the counter affidavit, opposite party No.1 relying on the above statutory provisions has justified his action in withholding the registration certificate. To appreciate this contention, it is necessary to know what is contemplated in Section 47A of Indian Stamp Act, 1899 (Orissa Amendment) and Rule 28 of the Orissa Stamp Rules, 1952. The relevant provisions of Section 47 A are reproduced below: "47-A. Instruments under-valued how to be dealt with- (1) Where the registering officer under the Registration Act, 16 of 1908, while registering any instrument of conveyance, exchange, gift, partition or settlement has 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, after registering such instrument, refer the matter to the Collector for determination of the market value of such property and the proper duty payable thereon.
(2) On receipt of a reference under Sub-section (1), the Collector shall, after giving the parties an opportunity of making their representations and after holding an inquiry in such manner, as may be prescribed by Rules made under this Act, determine the market value of the property which is the subject matter of such instrument, and the duty as aforesaid and the deficient amount, if any, shall be payable by the person liable to pay the duty."
Rule 28 of the Orissa Stamp Rules, 1952 as added under Chapter-V by the Finance Department Notification No.5196-ST-2162 (Pt.)-F dated 15th February, 1963 is quoted below:- "28. Return of instrument Where an instrument has been referred to the Collector under Section 47 A the Collector shall, when he has finally dealt with it return it to the Registering Officer concerned."
Section 47A of the India Stamp Act, 1989 (Orissa Amendment) contemplates that if the registering officer while registering any instrument of conveyance has 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, after registering such instrument, refer the matter to the Collector for determination of the market value of such property.
The expression "refer the matter" appearing in Section 47A(1) of the Indian Stamp Act to the Collector for determination of market value of the property does not mean transmission of the document to the Collector but reference of a doubt or dispute for resolution thereof by the Collector.
9. Section 61(2) of the Indian Registration Act, 1908 casts an obligation on the registering officer to return the document soon after the formalities of registration are completed. Rule-28 of the Orissa Stamp Rules, 1952 cannot be stretched contrary to the obligation cast on the registering officer under Section 61 (2). After all, the Central Act shall prevail over and above the State rules.
The Kerala High Court in Periyar Real Estates & etc. v. State of Kerala & Ors., AIR 2002 Kerala 248; while interpreting Section 61(2) of the Indian Registration Act, 1908 held that the Registration Act, 1908 is a Central Act. There is an obligation cast on the Registering Officer under Section 61(2) for returning the document as soon as the formalities connected with the registration are completed. The State Act cannot interfere with such obligation nor can it empower the officer to retain possession of the undervalued document after registration, contrary to the obligation cast on him by the Central Act. Thus, even if there is a dispute as to the stamp duty payable on the instrument subject to registration, after registration of the instrument, the registering officer is not entitled to retain possession of the original document under Section 45-B. By reason of Section 61(2) of the Registration Act, 1908, it is obliged to return the document and thereafter takes appropriate proceedings under Section 45-B and other provisions of the Kerala Stamp Act for adjudication and recovery of the underpaid duty. The settled legal position is that if there is any conflict between the provisions of the Act and the provisions of the Rules, the former will prevail. (Ispat Industries Ltd. v. Commissioner of Customs, Mumbai, (2006) 12 SCC 583)
Further, it is the settled law that where there is a direct conflict between a provision of law made by the State and that made by the Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. [see M. Karunanidhi v. Union of India, (1979) 3 SCC 431]
10. For the reasons stated in paragraphs 7, 8 & 9 above, we are of the considered view that O.P. No.1-registering officer is not justified to withhold the original document after registration of the same and to issue the impugned order under Annexure-3.
11. The third question is as to whether the valuation of the property determined at the public auction and thereafter re-fixed by the High Court is the true market value for the purpose of registration under the Indian Registration Act. In the instant case, it is not in dispute that the petitioner was the highest bidder in the open auction sale. This very matter came up before this Court in OJC No.8073 of 1997 and this Court re-fixed the consideration money at the rate of Rs.41,100/ per acre. This Court granted time to the petitioner to pay the entire consideration money within December, 1998. The petitioner paid the entire consideration money by 09.01.1999, as per the details given in the sale deed. There is nine days delay in making payment of Rs.2.00 lakhs (rupees two lakhs) only out of the total consideration money of Rs.46,09,076/-, which was accepted by the vendor who executed the sale deed for registration. This delay of nine days cannot be taken as a ground to say that the valuation of the land has been enhanced during these nine days. The copy of the sale deed, inter alia, reveals that as per Section 16(2) of the Shree Jagannath Temple Act, 1955, the Government of Orissa through the Law Department accorded permission for sale of the property in question at the rate of Rs.41,000/- per acre vide letter No.9006 dated 26.04.1997. In view of the same, the contention of opposite party No.1 in paragraph 3 of the counter affidavit that since in the earlier writ application neither the State Government nor the Collector, Khurda was a party, any decision following the auction sale cannot be accepted by opposite parties, is not sustainable.
The Hon'ble Supreme Court in R.Sai Bharathi V. J.Jayalalitha & Ors., 2004 CRI.L.J. 286, held that price quoted by highest bidder is to be taken as the market value unless tender process is shown to have been vitiated. In the present case, the property was sold through tender process and the bidders quoted their offers and the petitioner's offer was the highest, i.e., Rs.41,000/- per acre. This Court re-fixed the value of the land at Rs.41,100/- per acre, which is more than the rate fixed by the Law Department in Government of Orissa. The Madhya Pradesh High Court in Rambabu Agrawal V. State of M.P. & Ors., III (2003) CLT 223, held that the assessment of value of property on the basis of the current existing market value is unsustainable. Market value should be on the date on which the agreement in question was entered into for the purpose of payment of stamp duty on sale deed.
In view of the above propositions of law, the registering officer is not correct to take the valuation of the property on the date of registration as per the rate fixed by the Government to hold that the property was undervalued for the purpose of registration. He should have accepted the valuation of the property as settled by this Court during the relevant time in the year 1998, which is binding upon him for the purpose of registration.
12. For the reasons stated in the foregoing paragraphs, we quash the notice dated 16.02.2008 issued under Annexure-3 by opposite party No.1 and direct opposite party No.1 to return the registered sale deed in question to the petitioner within one week from the date of production of certified copy of this order by the petitioner.
13. The writ petition is allowed, but without any order as to costs. Writ petition allowed.