of Mumbai and anr. (Writ Petition No.903 of 2014) decided on 26 June
2014 a learned Single Judge of this Court held that the Authorities had
misapplied the provisions of section 23 of the Indian Registration Act in
refusing the request of the Petitioner to register the document. In that
case the sale certificate was presented to the Sub-Registrar, Mumbai on
22 November 2012 and the order was passed under section 31 of the
Bombay Stamp Act on 3 April 2013 determining the stamp duty and the
final stamp duty was determined by an order dated 31 August 2013. The
learned single Judge accepted the contention on behalf of the Petitioner
that the delay had occurred on account of adjudication of the document
and that that delay cannot be taken into consideration for declining the
registration. The learned Single Judge held that there was no delay on the
part of the Petitioner to lodge the document for registration to attract the
provisions of sections 23 & 25 of the Indian Registration Act 1908. The
learned Single Judge in coming to this conclusion relied upon the
judgment of this Court in Kirti Jagdish Mulani v/s. The State of
Maharashtra & ors. (Writ Petition No.2662 of 2012) wherein it was held
that the time taken by the Authority to adjudicate the stamp duty cannot be
taken into consideration while computing the period of four months as
stipulated under section 23 of the Indian Registration Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2762 OF 2014
Akshay Vitta Management and Investment
Consultancy Services Pvt. Ltd. & Ors. .
v/s.
The State of Maharashtra & Ors.
CORAM : A.A. SAYED, J.
DATED : 21 APRIL 2015.
Citation;2016(1) ALLMR 638
By this Petition under Article 226 of the Constitution of India,
the Petitioners have impugned two orders, both dated 25 July 2014. By
the impugned orders, the Respondent No.2 and Respondent No.3
respectively declined to register the Deed of Conveyance dated 31
December 2009 on the ground that more than the eight months had
elapsed from the date of execution of the Deed of Conveyance, which is
the time stipulated for presentation of a document for registration under
sections 23 and 25 of the Indian Registration Act, 1908.
2. Under a Deed of Conveyance dated 31 December 2009, the
Petitioners had acquired certain land and building from one Jimmy Minu
Batty. The total consideration under the said Deed of Conveyance was
Rs.65,00,000/- (Rupees Sixty-five Lakhs only). On 15 April 2010, the
Petitioners submitted the Deed of Conveyance to the Collector of Stamps
for adjudication and determination of stamp duty payable thereon in terms
of section 31 of the Bombay Stamp Act, 1958 (now Maharashtra Stamp
Act, 1958). The Petitioners had calculated the stamp duty at the time of
execution of the Deed of Conveyance at Rs.3,25,000/- (Rupees Three
Lakhs and Twenty-Five Thousand only) and paid the said amount
accordingly. After a period of about 3 years & 10 months, on 25 February
2014, an adjudication order came to be passed making a demand for
additional stamp duty amount and penalty. According to the Petitioners,
the Collector of Stamps adjudicated the Deed of Conveyance and
determined the deficit stamp duty at Rs.74,200/-, on which penalty of
Rs.7,420/- was imposed. On 1 March 2014, the Petitioners paid the deficit
stamp duty of Rs.74,200/- and the penalty of Rs.7,420/-, aggregating to
Rs.81,620/- by way of e-stamping and an endorsement to that effect was
made on the Deed of Conveyance which reflects the receipt of the entire
amount.
3. According to the Petitioners, the Deed of Conveyance duly
adjudicated and endorsed was received by them on 12 March 2014. On
25 July 2014, the Petitioners forwarded the Deed of Conveyance under
cover of their letter to the Respondent No.2 and Respondent No.3 for the
purpose of registration. Respondent No.2, however, by the impugned
order dated 25 July 2014 declined to register the Deed of Conveyance on
the ground that it was presented beyond the time prescribed under
sections 23 & 25 of the Indian Registration Act,1908. Respondent No.3
also by the impugned order of even date viz. 25 July 2014, declined to
register the Deed of Conveyance on the same ground. Hence this
Petition.
4. I have heard the learned Counsel for the Petitioners and the
learned AGP. It would, at the out set, be appropriate to set out the relevant
dates and events/particulars. The same are as under:
Sr.N
o.
Date Particulars Remarks
1 31-12-2009 Deed of Conveyance executed 31-12-2009 to 15-04-2010
= 3 months and 15 days
2 15-04-2010 Deed of Conveyance submitted to
the Collector of Stamps for
adjudication
15-04-2010 to 12-03-2014
= 3 years 10 months and 25
days
(Time to be excluded,
according to Petitioners)
3 25-02-2014 Order of Adjudication was passed
stipulating a deficit in stamp duty
of Rs.74,200/- on which a penalty
of Rs.7,420/- was payable
totalling Rs.81,620/-
4 01-03-2014 The deficit stamp duty was paid
by way of e-stamping
5 12-03-2014 The Deed of Conveyance was
duly adjudicated was received by
the Petitioners
12-03-2014 to 25-07-2014
= 4 months 13 days
6 25-07-2014 The Deed of Conveyance was
forwarded to the Sub-Registrar for
the purpose of Registration
Sections 23 & 25 of the Indian Registration Act 1908, are relevant for our
purposes. They read as under:
23. Time for presenting documents
Subject to the provisions contained in sections 24, 25 and 26,
no document other than a will shall be accepted for
registration unless presented for that purpose to the proper
officer within four months from the date of its execution:
PROVIDED that a copy of a decree or order may be
presented within four months from the date on which the
decree or order was made or, where it is appealable, within
four months from the day on which it becomes final.
25. Provision where delay in presentation is
unavoidable
(1) If, owing to urgent necessity or unavoidable accident, any
document executed, or copy of a decree or order made, in
India is not presented for registration till after the expiration of
the time hereinbefore prescribed in that behalf, the Registrar,
in cases where the delay in presentation does not exceed four
months, may direct that, on payment of a fine not exceeding
ten times the amount of the proper registration-fee, such
document shall be accepted for registration.
(2) Any application for such direction may be lodged with SubRegistrar,
who shall forthwith forward it to the Registrar to
whom he is subordinate.
(emphasis supplied)
From reading of the aforesaid provisions, it would be clear that the
document is required to be presented within 4 months of the date of
execution, which period, on payment of fine, if any, can be extended for a
further period of 4 months i.e. in the aggregate a period not exceeding 8
months.
5. From the table extracted in para 3 above, it would be seen
that after the Deed of Conveyance was executed on 31 December 2009,
the same was submitted to the Collector of Stamps for adjudication on 15
April 2010, i.e. after a period of 3 months & 15 days. On and from 15 April
2010, when the Deed of Conveyance was submitted to the Collector of
Stamps for adjudication till the Deed of Conveyance was adjudicated and
received by the Petitioners on 12 March 2014, a period of 3 years 10
months & 25 days had elapsed. From 12 March 2014, when the Deed of
Conveyance was adjudicated and received by the Petitioners, till 25 July
2014 when the Deed of Conveyance was forwarded to the Sub Registrar
for the purpose of registration by the Petitioners, a period of 4 months &
13 days had elapsed. According to the Petitioners, the period of 3 years
10 months and 25 days mentioned above, is required to be excluded in
calculating the period of eight months envisaged under sections 23 & 25 of
the Indian Registration Act 1908. Thus, according to the Petitioners, the
total time taken to present the Deed of Conveyance for registration was 7
months & 28 days, which is `within' the maximum period of eight months
provided under sections 23 & 25 of the Indian Registration Act.
6. The issue for consideration in the fact situation of the present
case, when the Deed of Conveyance was executed on 31 December 2009
and presented for registration to the Sub-Registrar only on 25 July 2014,
whether Respondents Nos. 2 & 3 were right in declining to register the
same as it was not presented within eight months from the date of
execution thereof. In other words, whether the period between the
submission of the Deed of Conveyance to the Collector of Stamps for
adjudication till the said Deed of Conveyance was duly adjudicated and
received by the Petitioners, (which period works out to a period of 3 years
10 months & 25 days), is required to be excluded while calculating the
period of eight months as envisaged under sections 23 read with 25 of the
Indian Registration Act, 1908.
7. In Chhabildas Dalichand Bhayani v/s. The Sub-Registrar
of Mumbai and anr. (Writ Petition No.903 of 2014) decided on 26 June
2014 a learned Single Judge of this Court held that the Authorities had
misapplied the provisions of section 23 of the Indian Registration Act in
refusing the request of the Petitioner to register the document. In that
case the sale certificate was presented to the Sub-Registrar, Mumbai on
22 November 2012 and the order was passed under section 31 of the
Bombay Stamp Act on 3 April 2013 determining the stamp duty and the
final stamp duty was determined by an order dated 31 August 2013. The
learned single Judge accepted the contention on behalf of the Petitioner
that the delay had occurred on account of adjudication of the document
and that that delay cannot be taken into consideration for declining the
registration. The learned Single Judge held that there was no delay on the
part of the Petitioner to lodge the document for registration to attract the
provisions of sections 23 & 25 of the Indian Registration Act 1908. The
learned Single Judge in coming to this conclusion relied upon the
judgment of this Court in Kirti Jagdish Mulani v/s. The State of
Maharashtra & ors. (Writ Petition No.2662 of 2012) wherein it was held
that the time taken by the Authority to adjudicate the stamp duty cannot be
taken into consideration while computing the period of four months as
stipulated under section 23 of the Indian Registration Act.
8. In the present case, it is an admitted position that the
Authorities took 3 years 10 months & 25 days to adjudicate and return the
Deed of Conveyance. Applying the ratio laid down in the aforementioned
judgments, the period of 3 years 10 months and 25 days is required to be
excluded in reckoning the period of eight months, as envisaged by Section
23 r/w. Section 25 of the Indian Registration Act, within which period the
Deed of Conveyance was required to be presented for registration. It is
not disputed before this Court that if the aforesaid period of 3 years 10
months & 25 days is excluded, the time taken to present the document for
registration would be 7 months & 28 days, which is less than the maximum
period of 8 months.
9. It is submitted by the learned AGP that the Petitioners have an
alternate remedy under section 72 of the Indian Registration Act and the
Writ Petition ought not to be entertained and the Petitioners be relegated
to exercise that remedy. I am, however, not inclined to accept this
submission. It is a settled principle of law that the power relating to
exercise of writ jurisdiction has been considered to be a rule of self
imposed limitation and is essentially a rule of policy, convenience and
discretion and not a rule of law. The Writ Petition in the case of Chhabildas
Bhayani (supra) was entertained on the aforesaid basis. In any event, I do
not see the Appellate Authority viz; the Registrar of Assurances going
beyond the provisions of section 23 & 25 of the Indian Registration Act to
grant reliefs in favour of the Petitioner and in that sense, the alternate
remedy, in my view, may not be an efficacious one. The further contention
of the learned AGP is that by allowing registration, it would amount to
defeating the provisions of sections 23 & 25 of the Indian Registration Act.
In the facts and circumstances of the case, I do not find any merit in this
contention. The Petitioner cannot be penalised for the time taken by the
Authorities in adjudicating the Stamp Duty.
10. Moreover, in the present case it is noticed that the Petitioners
have paid substantial amount of stamp duty viz. Rs.3,25,000/- at the time
of presenting the document for adjudication and it cannot be said that the
Petitioners' intention was to delay the payment of stamp duty by keeping
adjudication pending and not following up with the Authorities. In the
Affidavit in Reply filed on behalf of the Respondent Nos.2 & 3 there is no
averment that the dates mentioned by the Petitioners are incorrect nor has
the conduct of the Petitioner been faulted or any malafides alleged in
respect of the document remaining pending for adjudication for a
substantial period. There was no explanation brought on record by the
Respondent Nos.2 & 3 as to why there was such a huge delay on the part
of the Office of the Collector of Stamps to adjudicate the Stamp Duty.
11. By order dated 18 February 2015 the Petitioner was directed
to implead the Collector of Stamps as party- Respondent No.4 and to file
Affidavit-in-Reply. Accordingly, the Affidavit-in-Reply has also been filed by
the Collector of Stamps dated 2 March 2015. In the said Affidavit there is
a reference to a letter dated 10 June 2010 requesting the Petitioner to
submit certain documents. It is alleged in the said Affidavit that the delay
took place in the adjudication case due to non-submission of the essential
documents by the Petitioners. Significantly in the Rejoinder the Petitioner
in paragraph 8.3 has denied receipt of such letter dated 10 June 2010
from the office of the Respondent No.4. There is however nothing placed
on record by the Collector of Stamps to show that the said letter dated 10
June 2010 was received by the Petitioner. As a matter of fact, it is an
admitted position that there is no acknowledgment of receipt of the said
letter by the Petitioners. It appears that the Petitioners had even
addressed a letter dated 21 June 2013 to the Respondent No.4 to refer
the case to the Deputy Director of Town Planning (Valuation) Mumbai,
which, prima facie, demonstrates the fact that the Petitioners were
pursuing the matter. In the aforesaid circumstances, I am inclined to
accept the case of the Petitioners that they had not received the letter
dated 10 June 2010 from the office of the Respondent No.4, their conduct
cannot be faulted as such.
12. In light of the above discussion, the impugned orders cannot
be sustained. They accordingly set aside. The only question which
remains is that, since the document has been presented after four months
(but within eight months), what penalty is to be levied as per section 25 of
the Indian Registration Act 1908, which provides that penalty upto ten
times the amount of the registration-fee can be imposed.
13. I find that there are no satisfactory reasons given by the
Petitioners why the Deed of Conveyance was presented after 7 months
and 28 days which is beyond the period of 4 months prescribed under
section 23 of the Registration Act. Learned A.G.P. has pointed out Rule 27
of the Maharashtra Registration Rules, 1961 which reads as follows :-
“27. Scale of fines under Section 25 or 34 :- The scale of
fines to be imposed under section 25 or 34, shall be as
follows, namely :-
(1) If the delay does not exceed one month- not
exceeding 2 ½ times the proper registration fee ;
(2) if the delay exceeds one month but does not
exceed two months – not exceeding five times the proper
registration fee ;
(3) if the delay exceeds two months but does not
exceed three months - not exceeding 7 ½ times the
proper registration fee ;
(4) if the delay exceeds three months but does not
exceed four months - not exceeding ten times the proper
registration fee.
Note : This rule does not affect the Registrar's discretion to
impose a smaller fine than the above maximum, under
Sections 25 and 34, in suitable cases.”
14. In my view, considering the facts and circumstances of the
case and the scale of present Registration fee payable on Deed of
Conveyance, interest of justice would be served by directing the
Petitioners to pay an amount of Rs.1,00,000/- as fine for the delay beyond
4 months. It is accordingly ordered. On payment of the aforesaid amount
of fine within one month from today, the Authorities shall accept and
proceed to register the Deed of Conveyance in accordance with law.
15. The Petition is allowed in the aforesaid terms with no order as
to costs.
(A.A. SAYED, J.)
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