With reference to the demand for payment of difference in stamp duty, he also placed reliance upon an unreported judgment of this Court in W.P.No.11413 of 1989 filed against the department more or less in an identical circumstance. This Court by a final order, dated 3.7.1998 had accepted the contentions of the petitioners. In that judgment, when a rectification deed was presented for altering the survey number, a similar demand was made. This Court held that it is only a misdescription of the property which was sought to be rectified and that the law does not require to levy stamp duty on the rectification deed as a fresh sale deed. The following passage found in paragraph 5 of the said judgment may be usefully extracted below, which reads as follows: "5.I have perused the documents and I find that the contention of the petitioner is entitled to acceptance. The total extent purchased under the document is one acre. The original survey number given for the entire extent of one acre was S.No.215. However, it would appear that while the revenue authorities measured the property for the purpose of giving patta to the writ petitioner, it was discovered that the entire one acre extent did not lie in S.No.215, though a major portion, namely, 71 cents lay in the said survey number and the balance extent of 29 cents lay in S.No.214/1B1, which also belonged to the writ petitioner's vendor. As already stated, the extent, the boundaries, the consideration, are not changed. Only a mistake that had crept into the deed in respect of the survey number was sought to be rectified by introducing another survey number for the balance extent of 29 cents, thus, making up a total of one acre, as having been sold to the writ petitioner, by his vendor. It was only a misdescription of property, which was sought to be rectified. The authorities had not acted legally in seeking to levy stamp duty on the rectification deed as a fresh sale deed. There is an error apparent on the face of the record.
ORDER
The petitioner has filed the present writ petition seeking to challenge a demand notice, dated 1.6.2010 passed by the third respondent Sub Registrar, Pammal in demanding a sum of Rs.1,38,108/- towards stamp charges and differential registration charges of Rs.11,510/- in terms of Section 47B of the Stamp Act.
2.When the writ petition came up on 29.10.2010, notice was directed to be taken by the learned Government Advocate. On notice from this Court, the third respondent has filed a counter affidavit, dated 24.02.2011.
3.The contention of the petitioner was that he had purchased a vacant site to an extent of 2592 sq.ft. comprised in Grama Natham Survey No.191/2 and new Survey No.412/3 of Kolapakkam Village, Sriperumbudur Taluk for a sale consideration of Rs.53,800/- from one K.Ramachandran and K.R.Srikanth. The document for the sale of the property, dated 21.11.2001 was presented to the third respondent for registration. The third respondent kept it pending with him and later referred it for ascertaining the market value. The first respondent had fixed the market value at Rs.1,50,336/- calculating the same at the rate of Rs.58/- per sq.ft. After payment of the stamp duty and registration charges for the difference in the market value, the sale deed was also released. The petitioner in the year 2001 itself had constructed a house in the said land and that the same has been in his possession and enjoyment.
4.When the petitioner had approached the Tahsildar concerned for the grant of patta, it was informed that the new survey number for the land was S.No.412/5 and not S.No.412/3 as mentioned in the sale deed. The petitioner will be given patta after getting correction with reference to the sale deed showing the correct survey number. The petitioner thought that the guideline value for both the survey numbers was same. Therefore, he had filed a rectification deed, dated 5.2.2009 duly executed by his vendors and the same was presented to the third respondent. The third respondent had refused to register the rectification deed. He also kept the document pending without passing any order. The petitioner along with his Vendors had filed a writ petition before this Court being W.P.No.2199 of 2010 seeking for a direction to dispose of the petitioner's appeal dated 5.2.2009 against the order passed by the third respondent, dated 5.2.2009. This Court by an order dated 8.2.2010 had directed the petitioner's appeal to be disposed of. But, the second respondent without giving any opportunity to the petitioner, directed him to file a fresh rectification deed. Accordingly, the petitioner had presented a fresh rectification deed, dated 20.3.2010 duly executed by the authorities and presented Document No.2266 of 2010. However, the third respondent by the demand notice, dated 1.6.2010 had stated that the petitioner should pay the difference in the market value and that the difference was between the original deed of conveyance, dated 21.11.2001 and the present value on the date of execution of the rectification deed, dated 20.03.2010 and that they demanded a sum of Rs.1,38,108/- together with registration charges.
5.The contention of the petitioner was that the demand was made contrary to the provisions of the Indian Stamp Act and it is arbitrary. It was contended that the rectification deed, dated 20.3.2010 does not create transfers, limit extends or extinguishes any right and therefore, no differential value on stamp charge will arise on the date of execution of the rectification deed. It is contrary to Section 78(m) of the Registration Act, 1908. Introduction of rectification deed is not a new or fresh instrument under Section 2(14) of the Indian Stamp Act.
6.Refuting the said contention, the respondents in their counter affidavit had stated that Section 47-B of the Indian Stamp Act is applicable to the rectification deed. By the change of sub division of survey number, a new right is created and hence it is a new instrument. Therefore, the demand notice is in order.
7.The counsel for the petitioner placed reliance upon a judgment of this court in Etthyammal and others Vs. The Sub Collector, Tindivanam reported in 2000 (3) L.W. 779 and contended that it is unnecessary to go before the appellate authority. He also relied upon the following passage found in paragraph 13 of the said judgment which reads as follows: "13.So far as the present case is concerned what has happened is that in the course of the proceedings before the Civil Court in the suit of the year 1987 the document came to be filed and the petitioners were directed to pay stamp duty as per the partition deed on the market value obtaining in 1993. It is more than 5 years since then and the matter has not come to an end. If the petitioners are directed to avail the alternative remedy provided under Sec.56 of the Act, then it will be another eternity before a quietus can be given. In these circumstances, this Court in exercise of the powers under Article 226 of the Constitution can give suitable relief to the writ petitioners."
8.With reference to the demand for payment of difference in stamp duty, he also placed reliance upon an unreported judgment of this Court in W.P.No.11413 of 1989 filed against the department more or less in an identical circumstance. This Court by a final order, dated 3.7.1998 had accepted the contentions of the petitioners. In that judgment, when a rectification deed was presented for altering the survey number, a similar demand was made. This Court held that it is only a misdescription of the property which was sought to be rectified and that the law does not require to levy stamp duty on the rectification deed as a fresh sale deed. The following passage found in paragraph 5 of the said judgment may be usefully extracted below, which reads as follows: "5.I have perused the documents and I find that the contention of the petitioner is entitled to acceptance. The total extent purchased under the document is one acre. The original survey number given for the entire extent of one acre was S.No.215. However, it would appear that while the revenue authorities measured the property for the purpose of giving patta to the writ petitioner, it was discovered that the entire one acre extent did not lie in S.No.215, though a major portion, namely, 71 cents lay in the said survey number and the balance extent of 29 cents lay in S.No.214/1B1, which also belonged to the writ petitioner's vendor. As already stated, the extent, the boundaries, the consideration, are not changed. Only a mistake that had crept into the deed in respect of the survey number was sought to be rectified by introducing another survey number for the balance extent of 29 cents, thus, making up a total of one acre, as having been sold to the writ petitioner, by his vendor. It was only a misdescription of property, which was sought to be rectified. The authorities had not acted legally in seeking to levy stamp duty on the rectification deed as a fresh sale deed. There is an error apparent on the face of the record. "
9.In view of the above, the petitioner is entitled to succeed. Accordingly, the writ petition will stand allowed. The impugned order stands quashed. The respondents are directed to register the rectification deed without demanding any additional stamp duty on the basis of the revised market value calculated as on the date of presentation of the instrument. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. 07.06.2011
Index : Yes
Internet : Yes
vvk
To
1.The District Collector,
Kancheepuram District,
Kancheepuram.
2.The District Registrar,
Office of the District Registrar,
South-Chennai,
at Saidapet,
Chennai-600 015.
3.The Sub Registrar,
Office of the Sub-Registrar,
Pammal,
Chennai.
K.CHANDRU, J.
vvk
PRE DELIVERY ORDER IN
W.P.NO.24473 of 2010
07.06.2011
Print Page
Madras High Court
J.Thirukumaran vs The District Collector on 7 June, 2011
ORDER
The petitioner has filed the present writ petition seeking to challenge a demand notice, dated 1.6.2010 passed by the third respondent Sub Registrar, Pammal in demanding a sum of Rs.1,38,108/- towards stamp charges and differential registration charges of Rs.11,510/- in terms of Section 47B of the Stamp Act.
2.When the writ petition came up on 29.10.2010, notice was directed to be taken by the learned Government Advocate. On notice from this Court, the third respondent has filed a counter affidavit, dated 24.02.2011.
3.The contention of the petitioner was that he had purchased a vacant site to an extent of 2592 sq.ft. comprised in Grama Natham Survey No.191/2 and new Survey No.412/3 of Kolapakkam Village, Sriperumbudur Taluk for a sale consideration of Rs.53,800/- from one K.Ramachandran and K.R.Srikanth. The document for the sale of the property, dated 21.11.2001 was presented to the third respondent for registration. The third respondent kept it pending with him and later referred it for ascertaining the market value. The first respondent had fixed the market value at Rs.1,50,336/- calculating the same at the rate of Rs.58/- per sq.ft. After payment of the stamp duty and registration charges for the difference in the market value, the sale deed was also released. The petitioner in the year 2001 itself had constructed a house in the said land and that the same has been in his possession and enjoyment.
4.When the petitioner had approached the Tahsildar concerned for the grant of patta, it was informed that the new survey number for the land was S.No.412/5 and not S.No.412/3 as mentioned in the sale deed. The petitioner will be given patta after getting correction with reference to the sale deed showing the correct survey number. The petitioner thought that the guideline value for both the survey numbers was same. Therefore, he had filed a rectification deed, dated 5.2.2009 duly executed by his vendors and the same was presented to the third respondent. The third respondent had refused to register the rectification deed. He also kept the document pending without passing any order. The petitioner along with his Vendors had filed a writ petition before this Court being W.P.No.2199 of 2010 seeking for a direction to dispose of the petitioner's appeal dated 5.2.2009 against the order passed by the third respondent, dated 5.2.2009. This Court by an order dated 8.2.2010 had directed the petitioner's appeal to be disposed of. But, the second respondent without giving any opportunity to the petitioner, directed him to file a fresh rectification deed. Accordingly, the petitioner had presented a fresh rectification deed, dated 20.3.2010 duly executed by the authorities and presented Document No.2266 of 2010. However, the third respondent by the demand notice, dated 1.6.2010 had stated that the petitioner should pay the difference in the market value and that the difference was between the original deed of conveyance, dated 21.11.2001 and the present value on the date of execution of the rectification deed, dated 20.03.2010 and that they demanded a sum of Rs.1,38,108/- together with registration charges.
5.The contention of the petitioner was that the demand was made contrary to the provisions of the Indian Stamp Act and it is arbitrary. It was contended that the rectification deed, dated 20.3.2010 does not create transfers, limit extends or extinguishes any right and therefore, no differential value on stamp charge will arise on the date of execution of the rectification deed. It is contrary to Section 78(m) of the Registration Act, 1908. Introduction of rectification deed is not a new or fresh instrument under Section 2(14) of the Indian Stamp Act.
6.Refuting the said contention, the respondents in their counter affidavit had stated that Section 47-B of the Indian Stamp Act is applicable to the rectification deed. By the change of sub division of survey number, a new right is created and hence it is a new instrument. Therefore, the demand notice is in order.
7.The counsel for the petitioner placed reliance upon a judgment of this court in Etthyammal and others Vs. The Sub Collector, Tindivanam reported in 2000 (3) L.W. 779 and contended that it is unnecessary to go before the appellate authority. He also relied upon the following passage found in paragraph 13 of the said judgment which reads as follows: "13.So far as the present case is concerned what has happened is that in the course of the proceedings before the Civil Court in the suit of the year 1987 the document came to be filed and the petitioners were directed to pay stamp duty as per the partition deed on the market value obtaining in 1993. It is more than 5 years since then and the matter has not come to an end. If the petitioners are directed to avail the alternative remedy provided under Sec.56 of the Act, then it will be another eternity before a quietus can be given. In these circumstances, this Court in exercise of the powers under Article 226 of the Constitution can give suitable relief to the writ petitioners."
8.With reference to the demand for payment of difference in stamp duty, he also placed reliance upon an unreported judgment of this Court in W.P.No.11413 of 1989 filed against the department more or less in an identical circumstance. This Court by a final order, dated 3.7.1998 had accepted the contentions of the petitioners. In that judgment, when a rectification deed was presented for altering the survey number, a similar demand was made. This Court held that it is only a misdescription of the property which was sought to be rectified and that the law does not require to levy stamp duty on the rectification deed as a fresh sale deed. The following passage found in paragraph 5 of the said judgment may be usefully extracted below, which reads as follows: "5.I have perused the documents and I find that the contention of the petitioner is entitled to acceptance. The total extent purchased under the document is one acre. The original survey number given for the entire extent of one acre was S.No.215. However, it would appear that while the revenue authorities measured the property for the purpose of giving patta to the writ petitioner, it was discovered that the entire one acre extent did not lie in S.No.215, though a major portion, namely, 71 cents lay in the said survey number and the balance extent of 29 cents lay in S.No.214/1B1, which also belonged to the writ petitioner's vendor. As already stated, the extent, the boundaries, the consideration, are not changed. Only a mistake that had crept into the deed in respect of the survey number was sought to be rectified by introducing another survey number for the balance extent of 29 cents, thus, making up a total of one acre, as having been sold to the writ petitioner, by his vendor. It was only a misdescription of property, which was sought to be rectified. The authorities had not acted legally in seeking to levy stamp duty on the rectification deed as a fresh sale deed. There is an error apparent on the face of the record. "
9.In view of the above, the petitioner is entitled to succeed. Accordingly, the writ petition will stand allowed. The impugned order stands quashed. The respondents are directed to register the rectification deed without demanding any additional stamp duty on the basis of the revised market value calculated as on the date of presentation of the instrument. However, there will be no order as to costs. Consequently, connected miscellaneous petition stands closed. 07.06.2011
Index : Yes
Internet : Yes
vvk
To
1.The District Collector,
Kancheepuram District,
Kancheepuram.
2.The District Registrar,
Office of the District Registrar,
South-Chennai,
at Saidapet,
Chennai-600 015.
3.The Sub Registrar,
Office of the Sub-Registrar,
Pammal,
Chennai.
K.CHANDRU, J.
vvk
PRE DELIVERY ORDER IN
W.P.NO.24473 of 2010
07.06.2011
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