IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.33938/2013 (GM-ST/RN) BETWEEN:
D B MAHADEV SON OF D. BASAVARAJ AGED ABOUT 24 YEARS RESIDING AT SIDDESHWARA NILAYA SHIMOGA ROAD, HARIHARA TOWN DAVANAGERE DISTRICT-577601 ... PETITIONER (BY SRI. KASHYAP N NAIK, ADV.) AND 1. REGIONAL COMMISSIONER REGISTRATION AND STAMPS BANGALORE DIVISION, 2ND FLOOR B.M.T.C. BUILDING, K.H. ROAD SHANTHINAGAR, BANGALORE-27 2. DISTRICT REGISTRAR STAMP UNDER VALUATION, INVESTIGATION DIVISION, DAVANAGERE -577001 3. SUB-REGISTRAR HARIHAR HARIHAR TALUK-577601 SHIMOGGA ROAD, HARIHAR DAVANAGERE DISTRICT.
... RESPONDENTS (BY SMT. NILOUFER AKBAR, AGA. FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DT:08.04.2013, PASSED BY THE R1, VIDE ANNEXURE-A & CONSEQUENTLY THE ORDER DT.11.3.11, PASSED BY THE R2, VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 8.4.2013 passed by respondent No.1 in case bearing No.Pra.Aa.Ka/STP(A)3/2012-13 (Annexure-A) confirming the order dated 11.3.2011 passed by respondent No.2 in case bearing No.Ji.No.Da/45- A(3)Harihar/2/2010-11 (Annexure-B) whereby the petitioner is directed to pay the difference amount of deficit stamp duty of Rs.2,01,280/- and deficit registration fee of Rs.29,600/- total amounting to Rs.2,30,880/- to the Government along with 12% interest.
2. Brief facts of the case:
The petitioner herein has purchased the property bearing Nos.566 and 567 having assessment Nos.1348/1295/1348 and 1349/1296/1349 situated in ‘H’ Division, Harihar total measuring 4000 Sqft. The petitioner purchased the schedule property from one Mr.Syed Abdullal @ Share-e-Jahaan vide registered sale deed dated 12.4.2010. The said sale deed is registered as Document No.77/2010-11 in Book I and stored in CD No.HRRD38 in the office of the Sub Registrar, Harihar. It is the further case of the petitioner that respondent No.3 has noticed that the said sale deed was allegedly under valued and hence initiated suo-motu action against the petitioner and his vendor under Section 45-A(3) of the Karnataka Stamps Act, 1957 (for short “the Act”). In pursuance of the same, respondent No.2 has issued notice on 7.12.2010 to the petitioner and his vendor in Form No.2 under Rule 4 of the Karnataka Stamp (Prevention of Undervaluation of Instruments) Rules, 1977 (for short “the Rules”) and called upon the petitioner and his vendor to give their explanation in writing. Pursuant to the notice dated 7.12.2010, on 7.1.2011, the petitioner gave a written reply clarifying and explaining that the stamp duty that was paid by him on the said sale deed was proper and sufficient and requested the respondent No.2 to drop the proceedings. In the meanwhile, on 10.2.2011, respondent No.2 conducted spot inspection in the presence of the petitioner’s representative Mr.D.Hemanthraj. During the said inspection, the respondent No.2 sought for the building sanction plan obtained by the petitioner for constructing and as such a photocopy of the said plan was provided to the respondent No.2. After conducting the inspection, without giving any opportunity to the petitioner as provided under Rule 7 of the Rules, 1977, respondent No.2 has passed an order dated 11.3.2011 directing the petitioner to pay the deficit fee of Rs.2,30,880/- to the Government. Being aggrieved by the same, the petitioner filed an appeal before the respondent No.1 under Section 45(A)5 of the Act and the respondent No.1 by its order dated 8.4.2013 has confirmed the order passed by the respondent No.2. Being aggrieved by the same, the petitioner has filed this writ petition.
3. The learned counsel for the petitioner contended that even though the petitioner’s property was situated in the commercial area, he was using the same for residential purpose. To establish the same, he has produced relevant documents. Respondent No.2 without giving any opportunity has passed the order and the same has been confirmed by respondent No.1. The order passed by respondent No.2 is contrary to the provisions of Rule 7 of the Rules, 1977. Hence, the impugned order is unsustainable.
4. Per contra, the learned AGA appearing for the respondents submits that Rule 7 of the Rules, 1977 prescribes for hearing the parties before passing the order. The impugned order does not reflect that an opportunity of hearing has been given to the petitioner.
5. Heard the learned counsel for the parties.
6. The petitioner has purchased the property bearing Nos.566 and 567 vide registered sale deed dated 12.4.2010. Subsequently, respondent No.3 has noticed that the said deed was allegedly under valued and hence initiated suo-motu action against the petitioner and his vendor under Section 45-A(3) of the Act. Respondent No.2 conducted spot inspection in the presence of the petitioner’s representative Mr. Hemanthraj. As per the provisions of Rule 7(1) of the Rules, respondent No.2 without giving an opportunity to the petitioner to establish his case, has passed the order dated 11.3.2011 (Annexure-B) directing the petitioner to pay the difference amount of deficit stamp duty of Rs.2,01,280/- and deficit registration fee of Rs.29,600/- total amounting to Rs.2,30,880/- to the Government along with 12% interest and the same has been confirmed by respondent No.1 vide order dated 8.4.2013 (Annexure-A). Both these orders are contrary to the provisions of Rule 7 of the Rules, 1977 and same is unsustainable.
7. Hence, the following order:
a) The writ petition is disposed of.
b) The order dated 8.4.2013 passed by respondent No.1 in case bearing No.Pra.Aa.ka/STC(A)3/2012-13 (Annexure- A) confirming the order dated 11.3.2011 passed by respondent No.2 in case bearing No.Ji.No.Da/45-A(3)Harihar/2/2010-11 (Annexure-B), is set aside.
c) The matter is remitted back to respondent No.2 for fresh consideration in accordance with law after giving opportunity to the petitioner as provided under Rule 7 of the Rules, 1977.
d) The petitioner is directed to appear before the respondent No.2 on 23.1.2019.
e) The petitioner shall produce any other documents, if any, in support of his case.
f) Respondent No.2 is directed to dispose of the case on or before 28.2.2019.
Sd/- JUDGE DM