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2014 Supreme(Guj) 82
GUJRAT HIGH COURT
BHASKAR BHATTACHARYA, J. B. PARDIWALA, JJ.
Arunbhai Ramjibhai Patel & others
Versus
State of Gujarat & others.
Writ Petition (PIL) No. 10 of 2013
Decided On : 03/03/2014
Point in Issue :
Whether impugned circular dated 09.05.2007 is validly issued.
Headnote:Gujarat Registration Rules, 1970 - Rule 45(1) - Registration Act, 1908 - Sections 17, 23, 47 and 69 - Bombay Stamp Act, 1958 - Section 32(a) - 32, 39 and 41 - Circular dated 09.05.2007 - Claim to be issued to return the documents to the parties after registration and as part of simplification of Rule of registration - Propriety of - Challenged on ground that directions contained in circular by passing the relevant provisions contained in Registration Act and the Stamp Act as well as rules framed under not competent and sustainable - Finding as to - Court having considered the relevant provisions of Registration and Stamp Act held that impugned circular is without authority of Law not sanctioned by competent legislation and on the contrary is in conflict with the existing legislation dealing with the subject - Consequently Court quashed the impugned circular dated 09.05.2007 as without jurisdiction and direct the respondent authority to follow the existing statutory provisions in case of presentation of any document with under - Valuation and insufficient stamps duty.
Held :
Court 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. [Para 8]
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. [Para 8]
Court, therefore, find that in this case, in-spite 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 respondent-authority, by issuing the impugned Circular has invented an unlawful method of circumventing the prescribed law passed by the competent legislation. [Para 9]
Law Laid Down :
Any circular issued without the authority of Law contrary to the relevant provisions contained in the concerned Act can not sustained.
BHASKAR BHATTACHARYA, J.
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 Rules, 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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CIRCULAR:
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 Rules 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 R. 45 of the above Rules 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.& 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 Stamp Act] and also to the provisions contained in the Registration Act, 1908 [hereafter referred to as the 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 by-passing 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
