JUDGMENT B.K. Roy and R.K. Singh, JJ.
1. The petitioner has come up with a prayer to quash the Order dated 29.5.1992 passed by the Additional Collector (Finance and Revenue) Pargana Adhikari, Banda in Case No. 225 of 1991, under Section 47A/33 of the Indian Stamp Act (as contained in Annexure-5 to the writ petition).
2. A perusal of the impugned order and other documents shows following facts :
(i) Pursuant to inquiry and report, a notice was issued to the petitioner who had purchased the land vide deed dated 10.7.1988 executed by Avanindra Nath Gupta. Ratindra Nath Gupta and Abhinendra Nath Gupta by getting it affirmed before A.D. Singh. Notary, Banda to show cause as to why a sum of Rs. 24,086 (Rs. 2,175 on account of deficiency of the stamps. Rs. 161 on account of registration fee and Rs. 21,750 towards penalty) be not realised from him.
(ii) Upto 25.5.1992 on every date the petitioner prayed for grant of time to file objection but deliberately he filed no objection which proves his intention for not making payment and to keep the case deliberately pending.
(iii) On 25.5.1992 the petitioner by filing his objection disowned the deed and pressed to summon Avanindra Nath Gupta and others who had executed the deed, which was unjustified.
(iv) Even though the petitioner after constructing a house on the land covered by the deed is residing therein yet he has disowned the deed.
(v) The petitioner wants to mislead the Court in order to save him from payment of deficit stamps.
(vi) The petitioner has not adduced any concrete proof to support his objection, his house and his plot so as to confirm disowning of the deed and thus, his disowning is wholly incorrect and untrue.
(vii) Accordingly, realisation of the deficit stamp fee and penalty will be justified.
The Submissions :
3. Sri W.H. Khan, learned counsel for the petitioner contended as follows :
(i) Under Section 47A of the Act, penalty could not be imposed as held by a three Judges Special Bench of the Court in Girijesh Kumar Srivastava v. State of U. P., 1984 ALJ 1604.
(ii) Once the petitioner disowned the document, it was incumbent on the part of the authority concerned to have summoned the executants of the deed and then determined the question as to whether the petitioner was claiming under the document or not and finally should have dropped the proceedings.
Our Findings :
4. From the letter dated 19.3.1991 of the Assistant Inspector General, Registration. Jhansi. Camp Banda addressed to the Collector of the District/Collector Stamp. Banda, it is clear that the petitioner had filed the deed before Municipality, Banda for mutation of his name which fact came to his knowledge. In fact, he came to know of in all 16 such cases of deeds notorised by the Notary for avoiding payment of stamps. He reported all 16 incidents to him (Collector of the District/Co) lector Stamps, Banda) for taking action under Section 33 read with Section 47A of the Act, to call for the original deeds from the parties for action, to return back to Banda Municipality all the records of mutation cases after getting them photocopied. He also asked for submission of a detailed enquiry report. Thereafter, the matter was enquired into and the name of the petitioner figured against Serial No. 17. This report has not been brought on the record. The Additional Collector (Finance). Banda sent notice of show cause (as contained in Annexure-1) to the petitioner.
5. The petitioner in his objection dated 25.5.1992, which was not supported by his any verification or affidavit, has stated that the executants of the alleged deed are answerable, thus notice be sent to them ; that in the absence of any notice to them this proceeding is wholly illegal ; that he is not responsible ; that he has not produced the deed before any Court or public office nor has any finding been given after considering it ; that as the deed is void and never acted upon, which was also disowned, hence the proceedings under Sections 33 and 47A be dropped.
6. In paragraph 2 of this writ petition the petitioner has stated that the photostat copy of the document 19.7.1988 is being filed as Annexure-
III to this writ petition. In his affidavit, he claims that the statement made in paragraphs 1 to 12 of the writ petition are true to his personal knowledge. Obviously unless the petitioner was in custody of the document, he could not have produced its photostat copy.
7. A perusal of the document shows that 2.880 Sq. feet of land bearing Plot No. 49/7 Mauza Larakapurwa was sold in favour of the petitioner for Rs. 14.553 by Avanindra Nath Gupta. Ratindra Nath Gupta and Abhinendra Nath Gupta sons of Late Surendra Nath Gupta. Advocate on a Ten Rupees Stamp which was notorised by Anand Deo Singh, Notary, Banda. This document was also signed by the petitioner at three places apart from the vendors. Obviously this document is a sale deed in terms of Section 54 of the Transfer of Properly Act.
8. The deed in question was filed by the petitioner to support his prayer for mutation of his name before the Banda Municipality, which is a public office. Accordingly, the objection of the petitioner that it was not produced before any public office was/is incorrect.
9. It is well-known that it is really a transferee and not a transferor pays the money for purchasing stamps for execution of his, sale deed. Thus no error of law was committed in deciding the proceedings in the absence of any notice to the transferors or in refusing to summon them for the reasons mentioned in the impugned order. The disowning of the deed was correctly refused to be accepted. In the mutation proceedings, the petitioner had claimed reliefs under the document. A finding has been recorded that the petitioner is residing in the house constructed over the land covered under the instrument in question. The petitioner has not disputed the factum that after constructing the house on the land covered by the document, he is not residing therein.
10. Section 33(4) of the Act reads thus :
"Where deficiency in stamp duty-paid is noticed from the copy of any instrument, the Collector may suo motu or on a reference from any Court or from the Commissioner or Stamps or an Additional Commissioner of Stamps or any officer authorised by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector shall be deemed to have been produced or come before him in the performance of his functions."
A bare perusal of the aforementioned sub-section shows that it confers an authority in the Collector even to act suo motu and can call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon.
10.1. Section 33(5) of the Act reads thus :
"(5) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty under Section 40 on the copy of the instrument:
(1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under Section 38, sub-section (2), not being (a receipt) or a bill of exchange or promissory note, he shall adopt the following procedure-
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duty stamped, or that it is not so chargeable, as the case may be ;
(b) if he is of opinion that such instrument is chargeable with duty and is not duty stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees (* * *) or, if he thinks fit ( , ) (an amount not exceeding) ten times the amount of the property duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees :
Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit,. remit the whole penalty prescribed by this section.
(2) Every certificate under clause (a) of sub-section (I) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.
(3) Where an instrument has been sent to the Collector under Section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer."
10.3. Section 33(5) of the Indian Stamp Act, 1899 authorises the Collector that he may require payment of deficit stamp duty, together with penalty under Section 40. The word 'Collector' mentioned in Section 33(5) and Section 47A of the Act, means not only the Collector of District but also includes a Deputy Commissioner and any officer who may by notification in the Official Gazette be appointed in this behalf vide Section 2(ix)(b) of the Act.
10.4. There is a statutory presumption of correctness and regularity of an official act. Thus, the onus to challenge the competency of the Additional Collector, First Class/Pargana Adhikari, who had passed the order impugned, is on the petitioner. The only assertion of the petitioner in regard to the challenge to his authority stands mentioned in paragraph 5 of the writ petition, which reads thus :
"That the respondent No. 1 has no jurisdiction to pass the impugned order dated 29.5.1992 under any provision of the Stamp Act. It is only the Collector who has been empowered to take action either under Section 33 or Section 47A of the Stamp Act."
Though, no counter affidavit has been filed but the question is as to whether we should accept the aforementioned statement as correct? In his affidavit, the petitioner has claimed the aforementioned statement as true to his personal knowledge. The assertion aforementioned was required to be supported with reference to the Government record. It cannot be true to the personal knowledge of the petitioner. Thus, in the absence of any valid oath, we are not inclined to accept the submission made by Mr. Khan that the authority passing the impugned order lacked jurisdiction.
11. The Special Bench decision relied upon by Mr. Khan far from supporting is against him. It held (at page 1607 of the Report) that "subsections (4) and (5) of Section 33 lay down that if deficiency in stamp duty is noticed from the copy of any instrument, the Collector may suo motu or on a reference from Court or from any one of the authorities mentioned in sub-section, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon and if the instrument is not produced, he may require payment of deficit stamp duty together with penalty under Section 40 on the copy of the instrument. The sections referred to above would show that the Legislature has made a specific provision for payment of penalty in addition to deficiency in stamp duly where such a deficiency is noticed from the instrument itself or a copy thereof. Apparently the Assistant I.G. Registration informed the facts to the Collector which he came to know during his inspection of municipal records and thereafter the Collector issued notice to the petitioner.
12. Both points urged by Mr. Khan are thus devoid of any substance.
13. It is also pointed out that it is not the case of the petitioner in the writ petition that the quantum of deficient stamps or penalty is excessive.
14. In the result, we dismiss this writ petition but in the peculiar facts and circumstances without being there any order as to cost.
15. The office is directed to hand-over a copy of this order within one week to the learned standing counsel Sri P.K. Bisaria for its communication to respondent No. 1 so that the recovery proceedings could proceed further.