1. The writ petitioner has challenged the alleged refusal by respondent no.4, the
District Sub-Registrar, to register a sale deed dated December 30, 2019 in favour of the petitioner.
2. It is submitted by learned counsel for the petitioner, by placing reliance on annexure P1 at page 24 of the writ petition, that the present and proposed user of the plots sought to be sold was mentioned by the petitioner in the application for obtaining the valuation for the purpose of registration as "Jal/Jaljami".
3. The e-Assessment Slip issued by the Directorate of Registration and Stamp Revenue, Government of West Bengal, however, indicates that the online form submitted by the petitioner was tampered with, by writing the word "Bastu" over the description given by the petitioner, by pen. It is argued by the petitioner that such arbitrary alteration of the proposed user as well as present user of the plots-in-question was arbitrary and illegal and beyond the jurisdiction of the authorities.
4. It is submitted that 'Jal/Jaljami' indicates that the land is used for agricultural purposes, which is also reflected from the extracts of information taken from the records of rights by the petitioner, which are also annexed to the present writ petition.
5. Learned counsel for the petitioner submits that at present the plots-in-question are being used as agricultural lands, as reflected from the records of right as well as the description given by the petitioner in her online application. Moreover, the petitioner also intends to continue user of the said land as agricultural land, whereas the authorities arbitrarily altered such proposed user to 'Bastu', which indicates buildings and/or structures standing over the said land.
6. It is argued that the assessment of stamp duty had to be made on the basis of the proposed user as well as the present use of the property-in-question and the authorities had no discretion to arbitrarily change the proposed user in the e-Assessment Slip, thereby deviating from the contents of the original application made by the petitioner.
7. It is further submitted, by placing reliance on another e-Assessment Slip issued on January 2, 2020, that is, subsequent to the e-Assessment Slip dated December 28, 2019 (annexure P1), that in such subsequent e-Assessment Slip, being annexure P4 at page 38 of the writ petition, the market value of the same plot was shown to be Rs.1,03,50,000/-, also treating the proposed user as 'Bastu'.
8. In the first assessment, the valuation was fixed at Rs.34,50,000/-.
9. It is argued by the petitioner that the said exorbitant valuation was arrived at on the basis of the description of the proposed user of the property as a Bastu, whereas such valuation would be much less in the event the current and proposed user as submitted by the petitioner in her online form, were the basis of assessment.
10. Learned counsel for the respondents-authorities files written instructions in the form of a Report, which is treated as the written notes of arguments of the respondents. It is apparent from such written notes that the respondents rely on Rules 3 and 4 of the West Bengal Stamp (Prevention of Undervaluation of Instruments) Rules, 2001 (hereinafter referred to as "the 2001 Rules") and Sections 2, 4 and 5 of Guideline No.1/94 IGR&CSR WB for assessment of market value, to validate the assessment arrived at by the authorities.
11. It is further denied by the respondents that the document-in-question was ever presented for registration, since, according to the respondents, a paid challan ought to have been annexed by the petitioner to the writ petition in the event the stamp duty and registration fees were deposited.
12. It is submitted that the query, on the basis of which the e-Assessment Slip was prepared, was generated outside of office using the e-Nathikaran software system. Since such system is online and it is open for any citizen to generate any market value putting data in the application as the citizen chooses, the details of the application ipso facto do not indicate the actual valuation of the property. The query-in-question is still not verified till date, which is mandatory for registration of the deed.
13. It is argued that the Guidelines 1/94 as well as Rule 3(1) of the 2001 Rules provides that the market value within the meaning of clause 16(B) of Section 2 of the Indian Stamp Act in relation to any land or any land with building shall, after taking into consideration the particulars referred to in sub-rule (2) thereof, be determined on the basis of the highest price for which sale of such property of similar nature and area and in the same locality or in a comparable locality has been negotiated and settled during the five consecutive years immediately preceding the date of execution of any instrument setting forth such market value or on other bases.
14. In the present case, the respondents submit that on scrutiny of the previous records of the plots-in-question in the Market Value Monitoring Registrar of lands as available in the e-Nathikaran system, it was found that the same plots had been registered, calculating market value as 'Bastu' and 'Path' vide several deeds of transfer, of the years 2016, 2017, 2018 and 2019. As such, pursuant to Rule 3 as mentioned above, the authorities were justified in assessing the stamp duty on the basis that the property under sale would be used as 'Bastu'.
15. Upon hearing the respective parties, it is necessary to consider the relevant law governing the field. Section 2(16B) defines the market value to mean, in relation to any property which is the subject-matter of an instrument, the price which such property would have fetched or would fetch, if sold in open market on the date of execution of such instrument as determined in such manner and by such authority as may be prescribed by Rules made under the Indian Stamp Act, 1899 (hereinafter referred to as "the Stamp Act") or the consideration stated in the instrument, whichever is higher.
16. Section 47A, which is also a West Bengal Amendment to the Stamp Act, stipulates that where the Registering Officer has, while registering any instrument of conveyance, reason to believe that the market value of the property which is the subject-matter of any such instrument has not been truly set forth in the instrument presented for registration, he may, after receiving such instrument, ascertain the market value of the property in the manner prescribed and compute the proper stamp duty chargeable on the market value so ascertained and thereafter keep registration of such instrument in abeyance till the condition referred to in sub-section (2) or sub-section (7), as the case may be, is fulfilled by the concerned person.
17. Sub-section (2) states that where the market value of the property which is the subject-matter of an instrument has been ascertained and the proper duty chargeable thereon has been computed under sub-section (1), the Registering Officer shall, in the manner prescribed, send to the concerned person a notice calling upon him to make payment of the deficit amount of stamp duty within such time as may be prescribed and if such deposit is made of the deficit amount of stamp duty, shall register the instrument.
18. Sub-section (7) of Section 47A of the Stamp Act says that where the concerned person makes payment in the manner prescribed, of the deficit amount of stamp duty determined under sub-section (5) together with interest if any charged under sub-section (6), the Registering Officer shall, upon furnishing to the concerned person a copy of receipted challan or bank draft in proof of such payment, register such instrument within the prescribed time.
19. Sub-section (5), on the other hand, contemplates that on a reference under sub-section (3) by the registering authority to such authority and in such manner as may be prescribed for determination of the market value of the property, the said authority shall, after giving the parties concerned in respect of the instrument a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed, determine the market value of the property which is the subject-matter of the instrument and the proper stamp duty payable thereon and shall thereafter issue a notice in the prescribed manner directing the concerned person to make payment of such deficit amount of stamp duty within the prescribed time.
20. Sub-section (6) provides for the interest to be paid on the stamp duty for delay in making such payment.
21. As such, it is seen that, at every stage of assessment, a notice and/or hearing to the interested parties is contemplated before the assessment of market value is finalized.
22. As per Section 47A, in the event the Registering Officer has any reason to believe that the market value has not been truly set forth in the instrument presented for registration, after receiving such instrument, ascertain the market value of the property.
23. It is further provided, as discussed above, that in the event of such doubt, the Registrar shall send the document to an appropriate authority to assess the market value upon hearing the parties interested. Upon such adjudication or in case the Registrar herself/ himself has any doubt as regards the valuation, the registration of such instrument shall be kept in abeyance till the deficit stamp duty is paid.
24. As such, the statute does not contemplate refusal to accept a document for registration on an online application at the first instance, by arbitrarily altering the proposed user as well as the present user of the subject-matter of the instrument, and the concerned authority has to go by the details provided by the applicant in such regard for acceptance of the document for the purpose of registration. Only thereafter can the Registrar resort to the modalities as mentioned above, in the case of any doubt, for assessment of market value upon keeping the registration in abeyance.
25. On the other hand, the 2001 Rules provide for the manner of determination of the market value and furnishing of particulars relating to any property in Rule 3.
26. However, the newly incorporated Rule 3A provides the manner of determination of the market value when an instrument is registered through the system of CORD (Computerization of Registration of Documents) software. The said provision stipulates that when an instrument is registered through the system of CORD, the market value within the meaning of Section 2(16B) of the Stamp Act, in relation to any land or any land with building or any flat used for residential or commercial or semi-commercial purpose, shall be determined in accordance with the provisions of Rules 3B to 3E. The Guidelines provided in Rule 3B, sub-rule (4) stipulates that the market value of land referred to in sub-rule (1) shall be prepared on the basis of the highest market value of the concerned land for which the land had been transacted during the five consecutive years immediately preceding the year of preparation of annual statement of market value of immovable property, the modalities of preparation of which are provided under sub-rule (1) of Rule 3B.
27. Sub-rule (6) of Rule 3B provides that if the use of a particular land at the time of preparation of annual statement of market value of such land has been changed from the previous land use, the rate of such land after appreciation or depreciation, as the case may be, shall be determined on the basis of such conversion ratio as may be decided by the Registering Officer with the approval of the District Registrar.
28. Even Form IV, as stipulated in Rule 3(2), provides for the details as to the existing nature of the land being mentioned in the description of property to be submitted along with the instrument sought to be registered.
29. Form V, framed under Rule 3(8), provides the format for a notice calling upon parties, by whom stamp duties payable, to make payment of deficit amount of stamp duty under Section 47A(2) of the Stamp Act.
30. Hence, looking into the entire scheme of the online applications for registration made under the CORD system, it is evident that the authorities cannot refuse to accept the online application for registration at the inception, let alone arbitrarily altering the present and proposed user of the property sought to be transferred.
31. Since in the present case, the e-Assessment Slip was arrived at not on the basis of the details filled in on the online application by the petitioner but by arbitrarily treating the same as 'Bastu', at the premature stage of accepting the application for registration, such action on the part of the authorities was bad in law.
32. As discussed above, the stage of assessment of stamp duty shall come only after the instrument sought to be registered is received, that too, upon giving notice and hearing to the interested parties.
33. The remedy before the registering authorities in case of assessment of market value of the property to be more than that shown in the instrument as consideration, is to keep the registration of such instrument in abeyance till the deficit stamp duty, as decided upon hearing both sides in case it is referred to an appropriate authority, is deposited.
34. Nowhere in the scheme of the Stamp Act as well as the Rules indicated above is it envisaged that the online application for registration under the CORD system can be shut out or refused on the ground of market value, by arbitrarily changing the proposed and present user of the property-in-question as mentioned in the online application itself.
35. As such, the action on the part of the registering authorities in refusing to accept the registration application on the basis of arb
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itrary valuation, was illegal and uncalled for. The appropriate stage for such assessment would be only after the document is received for registration and the remedy would be to keep the registration in abeyance till the deficit stamp duty, upon proper assessment on hearing the parties and upon notice to them, was deposited. 36. In the present case, the respondents shifted forward the process of assessment to the stage of filing of the online application for registration itself, which is contrary to law. 37. Accordingly, W.P. No. 163(W) of 2020 is disposed of by directing the respondents to accept the online application for registration of the disputed deed dated December 30, 2019, annexed as annexure P3 to the present writ petition and thereafter to undertake the necessary measures for assessment of the actual market value, in the event of any doubt in the mind of the Registrar regarding the veracity of the value of the property as shown in the deed itself. It is made clear that it will be open to the registering authorities, upon receiving such application, to adhere to the relevant provisions of law, as indicated above, for arriving at a proper assessment of the market value of the property in case of any doubt, upon appropriate notice and/or hearing being given to the petitioner as well as other interested parties. 38. There will be no order as to costs. 39. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.