JUDGMENT Sabhajeet Yadav, J.
1. Feeling aggrieved against the judgment and order dated 17.6.2003 passed by respondent No. 2, Commissioner, Allahabad Division, Allaharad in Revision No. 51 of 2002-03 Smt. Meena Khanna v. State contained in Annexure-6 of the writ petition and the order dated 11.3.2003 passed by respondent No. 3, District Magistrate, Allahabad, contained in Annexure-4 of the writ petition, the petitioner has filed above noted writ petition before this Court
2. Brief facts giving rise cause of action of instant writ petition are that the petitioner had purchased a house in Sadiapur locality in city Allahabad for a sum of Rs. 2,50,000/- through registered sale deed on 5.2.1993 from one Dr. Budh Prakash son of Late Shyam Sunder Lal. The market value of the house in question on the date of execution of sale deed according to the circle rate fixed was Rs. 1,79,920/-( Rupees One lakh seventy nine thousand nine hundred twenty), but the stamp duty on the sale deed in question was paid by the petitioner on the valuation of Rs. 2,50,000/-. Since the house was purchased for Rs. 2,50,000/- which was more than market value/circle rate of the house in question. After registration of the sale deed the same was returned to the petitioner by the office of the Sub-Registrar (Chail), Allahabad. According to the petitioner all of sudden on 18.4.2002 she came to know that a recovery certificate has been issued against her to recover the amount of Rs. 50,750/- as deficiency of stamp duty in. the aforesaid sale deed in pursuance of an order passed by Chief Revenue Officer, Allahabad. The petitioner went to the court of Chief Revenue Officer, Allahabad and inquired into the matter, there upon she came to know about the order dated 27.1.2001 passed by Chief Revenue Officer directing a recovery of a sum of Rs. 50,750/- from the petitioner as deficiency in the stamp duty on the sale deed in question under Section 47A of Indian Stamp Act, 1899. The petitioner applied for certified copy of the order dated 27.1.2001 which was received on 19.4.2002. It is stated that before passing the impugned order dated 27.1.2001 under Section 47-A of Stamp Act the respondent No. 3 did neither issue any notice to the petitioner nor any alleged notice dated 6.8.1997 has ever been served upon her nor any inquiry as contemplated under Section 47-A (3) of Stamp, Act has been made in the matter to determine the actual market value of the property which was subject matter of instrument in question rather straightway an order had been passed by the respondent No. 3 holding that there is deficiency of stamp duty in the deed in question amounting to Rs. 50,750/- and directed a recovery to be made from the petitioner.
3. Immediately on receipt of the certified copy of the order dated 27.1.2001 the petitioner moved an application along with an affidavit for setting aside the ex-parte order dated 27.1.2001 on 23.4.2002 and to decide the case on merits after hearing the petitioner. There upon it was ordered by the respondent No. 3 to "put up for objection". There upon the petitioner has filed an objection in detail on 30.4.2002. Thereafter the respondent No. 3 has fixed a date 10.5.2002 for hearing of the case and on the aforesaid date the case was heard and a further date 17.5.2002 was fixed for judgment/order but no order was passed by the concerned authority. Ultimately the petitioner moved a transfer application before the Collector as such the Collector himself has heard the case and passed the impugned order on 11.3.2003 without considering the written objection and arguments of counsel of petitioner. By this order while rejecting the application for setting aside ex-parte order dated 27.1.2001 the respondent No. 3 has held that since the reference has already been made by Deputy Registrar on 10.1.1996 within a period of four years and there is deficiency in the payment of stamp duty chargeable upon instrument, therefore, along with the deficiency of Rs. 50,750/- a sum of Rs. 25,000/- has also been ordered as penalty to be paid by the petitioner. The aforesaid order has been passed without holding any inquiry as contemplated under Section 47-A (3) of the Stamp Act. Feeling against the impugned order dated 11.3.2003 the petitioner filed a revision under Section 56 of Indian Stamp Act before Chief Controlling Revenue Authority- Commissioner, Allahabad Division, Allahabad, which was registered as Revision No. 51 of 2002-03. After hearing the revision, the Commissioner, Allahabad Division, Allahabad has passed the impugned order contained in Annexure-6 of the writ petition, whereby he maintained almost whole order passed by respondent No. 3 and set aside only to the extent it pertains to the penalty of a sum of Rs, 25,000/-imposed upon the petitioner. No other point including the question of limitation and merit of the case has been considered and dealt with by the Commissioner hence this writ petition.
4. Counter and rejoinder affidavits have been exchanged between the parties and the case is ripped for final disposal, therefore, with the consent of the parties the case has been heard and disposed of finally at admission stage itself. I have heard Sri S.K. Pal, learned counsel for the petitioner and the learned Standing Counsel appearing for respondents and also have gone through record of the case.
5. The thrust of the submission of learned counsel for the petitioner is that undisputedly the instrument of sale deed was executed on 5.2.1993 in the office of Sub-Registrar (Chail), Allahabad and alter registration of the sale deed in question, the deed was returned to the petitioner and after a lapse of more than four years the impugned order dated 27.1.2001 has been passed by the respondent No. 3 under Section 47-A of the Stamp Act directing for recovery of a sum of Rs. 50,750/- as deficiency in the stamp duty in connection of sale deed in question. Learned counsel of petitioner has submitted that the period of limitation to take action provided in Sub-section (4) of Section 47A of Stamp Act as it stood prior to its substitution by U.P. Act No. 22 of 1998 vide section 6 (w.e.f. 1.9.1998) was only four years from the date of registration of sale deed. Since the action has been taken after expiry of the aforesaid period of four years limitation, therefore, the impugned action is wholly without jurisdiction and null and void and not sustainable in the eyes of law. Secondly before taking impugned action against the petitioner no inquiry as contemplated under Sub-section (3) of Section 47-A of Stamp Act has been held by the Collector, therefore, the order passed by him cannot sustain. Besides this the order is also not sustainable on merits as there exist no valid material to hold that the instrument in question was not duly stamped with duty chargeable thereon on the basis of actual market value of the property subject matter of the instrument in question and there is deficiency in stamp duty, therefore, the judgment and order passed by respondent No. 3 and affirmed by the respondent No. 2 is not sustainable in the eyes of law. In support of his submissions learned counsel for the petitioner has relied upon a decision rendered by a Full Bench of this Court in Grijesh Kumar Srivastava and Anr. v. State of U.P. and Ors. reported in 1998 Revenue Judgment 485. (F.B.)
6. Contrary to it learned Standing Counsel appearing for respondents has submitted that in the counter affidavit a clear cut stand has been taken that after registration of the sale deed in question an inspection was made by the Deputy Registrar in the office of Sub-Registrar (Chail), Allahabad where upon it was found that there is deficiency in the stamp duty paid by the petitioner upon the instrument in question as such a reference was made on 10.1.1996 to the Collector under Sub-section (2) of Section 47-A of Indian Stamp Act. The reference was made well within time i.e. within the prescribed period of limitation of four years and according to Rule 341(d) of Stamp Rules, which was enforced on the relevant date, the Collector has determined the deficiency of a stamp duty amounting Rs. 50,750/- on the basis of market value of property in question which was subject matter of instrument of sale deed and the penalty of a sum of Rs. 25,000/- has also been imposed due to the default in payment of stamp duty payable on the instrument. Later on the penalty has been set-aside in the revisional order. Thus the order passed by respondents No. 3 and 2 is perfectly justified and well within the ambit of authority under law.
7. Now a moot question arises for consideration before this Court is as to Whether the limitation of four years as provided in Sub-section (4) of Section 47-A of Act is for making a reference by a Court or any one of the authorities enumerated in the sub-section or it is for initiation of proceedings by the Collector?
8. In this connection it is to be noticed that a Full Bench of this Court had occasion to consider the identical question in case of Grijesh Kumar Srivastava (supra) wherein question No. 2 was framed as under :
Question No. 2:
Whether the limitation of four years as provided in Sub-section (4) of Section 47-A of Act is for making a reference by a Court or any one of the authorities enumerated in the sub-section or it is for initiation of proceedings by the Collector?
9. In order to answer the aforesaid question a Full Bench of this Court had reproduced the Sub-section (4) of Section 47-A of Indian Stamp Act as it stood at relevant point of time and quoted as under:
Section 4 7-A(4):
The Collector may, suo motu, or on a reference from any Court or from the Commissioner of stamps or an Additional Commissioner of Stamps or Deputy Commissioner of Stamps or an Assistant Commissioner of Stamps' or any officer authorized by the Board of Revenue in that behalf within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property not already referred to him under Sub-section (1) or Sub-section (2), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property which is the subject of such instrument and duty payable thereon, and if after such examination he has reason to believe that the market value of such property has not been truly set fourth in the instrument, he may determine the market value of such property and the duty payable thereon in accordance with the procedure provided for in Sub-section (3). The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty ".
10. Thereafter the Full Bench of this Court has proceeded to deal with second question in very detail as under :
"Second question:
There is no dispute from either side that the starting point of limitation is the date of registration of the instrument and the period of limitation is four years. According to learned Chief Standing Counsel if a reference from any Court or Commissioner of Stamps of Addl. Commissioner of Stamps or a Dy. Commissioner of Stamps or any officer authorized by the Board of Revenue in that behalf is made within four years from the date of registration of the instrument, whether any action is taken by the Collector or not, the proceedings would be within limitation. Shri Rajiv Joshi, learned counsel for the applicants has, on other hand, contended that the limitation of four years is for the Collector to initiate action and the date on which a reference is made by a Court or authorities enumerated in the opening part of Sub-section (4) of Section 47-A is irrelevant. The question which arises for consideration is whether the period of four years qualifies the action of the Collector or the making of reference. Under Sub-section (1) of Section 47-A the registration officer is required to make a reference to Collector before registering the instrument, while under Sub-section (2) a discretion has been given to him to register the instrument and then make a reference to the Collector for determination of market value. In normal course of events this reference would be made immediately after registering the instrument and, therefore, the inquiry under Sub-section (3) is likely to commence soon as the person in whose favour the instrument has been executed would forthwith come to know about the reference and would be interested to get the matter concluded. In the first case the instrument would remain unregistered and in the second case he will not get back the instrument after registration on account of it having been referred to the Collector. Therefore, in cases covered by Sub-section (1) and Sub-section (2) at least the factutm of reference would be immediately known to the person in whose favour instrument has been executed and he is bound to take all proceedings expeditiously in order to secure his title or get the benefits of the instrument. Under Sub-section (4) power has been conferred on the Collector to call for and examine the instrument after it has been registered for the purpose of satisfying himself as to the correctness of the market value of the property which is subject of such instrument and the duty payable thereon. This action can be taken either suo motu or on a reference from any Court or any one of the authorities enumerated in the sub-section. In our opinion, the language of the sub-section shows that the period of four years qualifies the action which may be taken by the Collector. If the interpretation suggested by learned Chief Standing Counsel was correct, the sub-section would have read like this:
"The Collector may, suo motu or on a reference from any Court or from the Commissioner of Stamps or a Deputy Commissioner of Stamps or an Assistant Commissioner of Stamps or any officer authorized by the Board of Revenue in that behalf made within four years from the date of registration of any instrument."
From the language in which the sub-section has been couched it is not possible to hold that the period of four years qualifies the reference.
It may be noticed that the language used in the opening part of Sub-section (4) of Section 33 is exactly similar to the language used in the opening part of Sub-section (4) of Section 47-A. The proviso to Sub-section (5) of Section 33 says that no action under Sub-section (4) or Sub-section (5) shall be taken after a period of four years from the date of execution of the instrument. Here the bar of limitation applies to the action which may be taken by the Collector and not to a reference. There is no reason why similar interpretation should not be given to Sub-section (4) of Section 47-A specially when both the sections namely Section 33 and Section 47A find place in same Chapter IV of the Stamp Act which deals with instrument Not Duly Stamped.
It has been held by a Full Bench of Seven Judges of our Court in Mata Badal Pandey and Ors. v. Board of Revenue, 1974 U.P. Tax Cases 570 that where there is some doubt or ambiguity in any provision in the authoritative English text, it is permissible to look into the Hindi text to remove the doubt or ambiguity. Sub-section (4) of Section 47-A as given in the Hindi version of the Act reads as follows:
"(4) Hindi version - Omitted."
The Hindi version is quite clear and there can be no two opinions on the matter that the period of limitation applies to the action which may be initiated by the Collector and not to a reference which may be made to him by a Court or other authority.
There is another reason for not accepting the submission made by learned Chief Standing Counsel. If she period of limitation is held to be applicable only to the making of a reference, a very anomalous situation may arise. There will be no limitation where the Collector choses to take suo motu action and he may do so at any time at his sweet will. Even where a reference is made within limitation i.e. within four years either by a Court or any of the authorities enumerated in the sub-section, the Collector may not proceed forthwith and the matter may be kept pending for years. He may commence proceedings after a long period, may be after decades. The property may change hands several times during this period which may create complications for the present owner who may not even be aware of the circumstances attending the execution of the instrument which is alleged to be undervalued and may not be in position to lead evidence. The value of immovable property changes fast. There has been a meteoric rise in the value of immovable property in the recent past. If the proceedings are taken after a long period it may become very difficult to give evidence regarding the market value of the property at the time the instrument was executed. Therefore, the Legislature in its wisdom thought it proper to fix a period of limitation within which the Collector must initiate action so that the inquiry may not be unnecessarily delayed. In this connection, it may be pointed out that after the decision of Himalaya House Co. Ltd. v. Chief Controlling Revenue Authority (Supra) many states inserted Section 47-A by amendment in the stamp Act and the Collector was conferred power to suo motu call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property. In Andhra Pradesh, Bihar, Orissa, Tamil Nadu, Goa, Daman and Diu and West Bengal the period of limitation for the Collector to suo motu call for and examine the instrument is two years while in Haryana, Punjab, Himanchal Pradesh it is three years. This shows that the intention of the Legislature is that the entire exercise should be concluded within a reasonable period and may not be kept pending for long.
Learned Chief Standing Counsel vehemently urged that Rule 346 of the U.P. Stamp Rules showed that the period of limitation of four years is provided for making a reference to the Collector. Rule 346 no doubt provides that the nspector of Stamps and Registration shall make a reference to the collector within four years from the date of registration of the instrument. But this rule cannot be read in isolation and has to be read along with Rule 352. Rule 352 shows that the period of limitation applies to the action which may be taken by the Collector and not to a reference. As observed earlier, the Rules are always subservient to the Act under which they have been made and they cannot override or amend the provisions of the Act itself. Rule 346 cannot change the meaning of Sub-section (4) of Section 47-A. Learned Chief Standing Counsel also referred to a Supreme Court decision rendered in Trideshwar Dayal v. Mahenswar Dayal, 1990(1) S.C.C. 377 and urged on its basis that the period of limitation does not apply to the action of the Collector. We do not think that in the aforesaid case the Supreme Court has held as a proposition of law that the period of limitation does not apply to the action which may be initiated by the Collector but applies only to a reference by a Court or other authority enumerated in the sub-section. In this case order for impounding the award of the arbitrator had been passed by the Civil Court itself and subsequent order of the Collector was held to have been passed merely as a follow up step in pursuance of the Civil Court's order.
Our answers to the questions referred are as follows:
1. While exercising power under Sub-section (4) of Section 47-A the Collector can determine the market value of the property and the duty payable on the instrument as a result of such determination but he has no power to impose penalty.
2. The period of limitation of four years in Sub-section (4) to Section 47-A applies to the action which may be initiated by the Collector and not to a reference from any Court or other authorities enumerated in the sub-section."
11. In view of the aforesaid verdict given by Full Bench of this Court it is clear that the period of limitation of four years in Sub-section (4) of Section 47-A applies to the action which may be initiated by Collector and not to a reference from any court or other authority enumerated in sub-section Now applying the law laid down by the Full Bench of this Court, it is clear that there is no indication in counter affidavit that as to whether the Collector has initiated the proceedings against the petitioner under Section 47-A of Stamp Act within a period of four years from the date of registration of sale deed in question. Rather assuming the fact for the sake of arguments that Collector has initially issued notice to the petitioner on 6.8.1997 for initiation of proceedings which was not served upon the petitioner as yet the said notice was issued on expiry of period of four years from the date of registration of sale deed in question whereas the Collector has passed order under Section 47-A of Indian Stamp Act on 27.1.2001 much after expiry of period of more than seven years from the date of Registration of the instrument in question, therefore, in view of decision rendered by Full Bench of this Court the entire proceedings initiated against the petitioner under Section 47-A of Stamp Act beyond the prescribed period of limitation is wholly without jurisdiction and beyond the authority under law. Thus the impugned order passed by respondent No. 3. and affirmed by respondent No. 2 cannot sustain on this ground alone. Besides this the next submission of the learned counsel of petitioner also finds support from the material on record as there is nothing to show that before determining the market value of the property in dispute, the Collector has held any inquiry in respect of property which is subject matter of instrument in question towards determination of market value. Thus the submission made by the learned counsel of petitioner that the impugned order has been passed by respondent No. 3 without holding any inquiry and without affording any opportunity of hearing to the petitioner to have her say in the matter also deserves acceptance by this Court in view of the matter that the learned standing counsel could not point out anything contrary to the submissions made by learned counsel for the petitioner. And lastly, there is no material on record on the basis of which the market value of property, which was subject matter of instrument, could be justified, therefore, the submission made by learned counsel of petitioner is liable to be accepted.
12. Thus in view of the aforesaid discussions made herein before, I am of considered opinion that the impugned orders cannot sustain and the same are wholly erroneous, misconceived and without jurisdiction as such not sustainable in the eyes of law. Accordingly the order dated 27.1.2001 which stood merged in the order dated 11.3.2003 passed by Collector, Allahabad and the order dated 17.6.2003 passed by Commissioner, Allahabad in Revision No. 51 of 2002-03 filed by the petitioner, contained in Annexures- 4 and 6 of the writ petition respectively and pursuant recovery proceeding are hereby quashed.
13. In view of the above discussions and observations, the writ petition succeeds and allowed.
There shall be no order as to costs.