Collector can not impose extreme penalty of ten times of deficient stamp duty unless dishonest or contumacious intention of evading stamp duty is found

According to Section 40(1)(b) if the Collector is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the of the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. The statutory scheme of Section 40(1)(b) as noticed above indicates that when the Collector is satisfied that instrument is not duly stamped, he shall require the payment of proper duty together with a penalty of the five rupees. The relevant part of Section 40(1)(b) which falls for consideration in these appeals is: “or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or deficient portion thereof.”[Para No.16]

    The amount of penalty thus can be an amount not exceeding ten times. The expression “an amount not exceeding ten times” is preceded by expression “if he thinks fit”. The statutory scheme, thus, vest the discretion to the Collector to impose the penalty amount not exceeding ten times. Whenever statute transfers discretion to an authority the discretion is to be exercised in furtherance of objects of the enactment. The discretion is to be exercised not on whims or fancies rather the discretion is to be exercised on rational basis in a fair manner. The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of force. Neither imposition of penalty of ten times under Section 40(1)(b) is automatic nor can be mechanically imposed. The concept of imposition of penalty of ten times of a sum equal to ten times of the proper duty or deficiency thereof has occurred in other provisions of the Act as well. We may refer to Section 35(a) in this context is as follows:

“35. Instruments not duly stamped inadmissible in evidence, etc. — No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :

Provided that—

(a)any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b)…    …     …     …”[Para No.17]

    Section 39(1)(b) of the Indian Stamp Act, 1899 came for consideration before this Court in Gangtappa and another vs. Fakkirappa, 2019(3) SCC 788 (of which one of us Ashok Bhushan, J. was a member). This Court noticed the legislative scheme and held that the legislature has never contemplated that in all cases penalty to the extent of ten times should be ultimately realized. In paragraph 16 following has been laid down by this Court:

“16. Deputy Commissioner under Section 38 is empowered to refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument. Section 38 Sub-section (1) again uses the expression "if he thinks fit". Thus, in cases where penalty of 10 times has been imposed, Deputy Commissioner has discretion to direct the refund of the penalty in facts of a particular case. The power to refund the penalty Under Section 38 clearly indicates that legislature have never contemplated that in all cases penalty to the extent of 10 times should be ultimately realised. Although the procedural part which provides for impounding and realisation of duty and penalty does not give any discretion Under Section 33 for imposing any lesser penalty than 10 times, however, when provision of Section 38 is read, the discretion given to Deputy Commissioner to refund the penalty is akin to exercise of the jurisdiction Under Section 39 where while determining the penalty he can impose the penalty lesser than 10 times.”[Para No.19]

    The expression “if he thinks fit” also occurs in Section 40 sub-clause (b). The same legislative scheme as occurring in Section 39 is also discernible in Section 40(b), there is no legislative intentment that in all cases penalty to the extent of ten times the amount of proper stamp duty or deficient portion should be realised. The discretion given to Collector by use of expression “if he thinks fit” gives ample latitude to Collector to apply his mind on the relevant factors to determine the extent of penalty to be imposed for a case where instrument is not duly stamped. Unavoidable circumstances including the conduct of the party, his intent are the relevant factors to come to a decision.[Para No.20]

Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction

It is also stated in Status Report that it was also found during investigation that SGCT Mohinder Singh has purchased land measuring 5 ½ Marlas under Khasra no.497 min situated at Barnai, Jammu, from one, Kiran Bala daughter of Hans Raj resident of Barnai, Bantalab, Jammu, in the year 2012 and sale deed had been executed in favour of alleged accused, Mohinder Singh, for sale consideration of Rs.3.85 Lacs, which was also mutated in his favour. The matter was taken up with Tehsildar North, Jammu, asking him not to allow alienation of the above landed property till further communication from Investigating Agency. Respondents maintain that when accused, Mohinder Singh, became aware about initiation of enquiry, he sold aforesaid piece of land to one, Tanveer Malik (petitioner herein) for Rs.4,68,875/-. The statement of OWP no.1404/2017 IA no.01/2017 witnesses was recorded under Section 161 and 164-A Cr.P.C. Besides, the amount collected by accused, Nirmal Kour and Mohinder Singh, from depositors by way of cheating and fraud, is required to be recovered from them, for which all efforts are being made by respondent and that the investigation of the case is in progress. Thereafter, again on 8 th August 2019 respondent no.2 filed Status Report reiterating the averments made in earlier Status Report and nothing new emerges therefrom.[Para No.5]

  Respondents 1&3 (Revenue Department) have filed their objections, asserting therein that FIR no.23/2014 police Station Crime Branch, Jammu, has been lodged against Nirmal Kour and Mohinder Singh, who have sold the land to petitioner. Respondents have made reference of communication no.CBJ/FIR-23/14/21078 dated 21st December 2015, in which they were asked not to allow alienation of land measuring 5 ½ Marlas falling under Khasra no.497 min situated at Barnai, Jammu, and make necessary entry in this regard in revenue records. Respondents 1&3 maintain in their Reply that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint against seller/vendor and, therefore, petitioner had purchased the land in question legally and was holding its possession peacefully. However, in view of communication dated 21st December 2015, received from Zonal Headquarters, Crime Branch, Jammu, issuance of revenue papers (Fard) has been withheld as respondents have no option but to withhold issuance of revenue paper in order to carry out the directions received from Crime Branch.[Para No.6]

    Petitioner has purchased land in question by way of a Sale Deed. The said Sale Deed has been registered by registering authority, viz. Sub Registrar, Jammu, on 9th July 2014. Registration of a document, in the present case is a Sale Deed, is a final seal to a document to be implemented and carried in revenue records. From the file as also from the Reply, filed by respondents 1&3, it is evident that mutation has been effected in compliance of registration of aforesaid Sale Deed and necessary entries have been made in revenue records by Revenue Department. Neither Sale Deed nor is Mutation under challenge before any court of law and therefore, the same has attained finality.[Para No.8]

    In addition to this, perusal of Reply reveals that respondents 1&3 have categorically stated that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint(s) against seller/ vendor and that petitioner has purchased the land in question legally and was holding its possession peacefully. Once that being the position, issuance of impugned direction contained in communication dated 21 st December 2015, amounts to infringement of constitutional and statutory rights of petitioner. He has purchased the land in question by way of a valid document. Preventing him from enjoying the property amounts to infringement of his constitutional rights as guaranteed under Article 300A of the Constitution of India and a human right as well. Petitioner has every right to obtain revenue excerpts with respect to his aforesaid landed property as also to alienate it in accordance with laws and rules regulating the field.[Para No.9]

Civil suit for declaration of nullity of Revenue Officers' order is maintainable

The land was recorded in the name of Government - Plaintiff is in possession and paying taxes - Defendant obtained order from revenue officer to the effect that defendant is the owner of that land - order is passed without issuing notice to plaintiff and without following due procedure and without following principals of natural justice - Defendant is taking advantage of the said order and trying to remove the plaintiff from the land - suit for declaration - bar to jurisdiction - Sec. 36, 36(A) and 36(B) of The Maharashtra Land Revenue Code.

   If the order is ultra virus the parties entitled to ignore it and to go to the Civil Court for declaration that the order is a nullity and no action should be taken against under that order, which would prejudice his right.[Para No.22]

  In view of the specific allegation that without following due procedure and without following principals of natural justice, the revenue authorities have passed the orders in favour of the defendant No.6/petitioner and further in view of the other reliefs prayed in the plaint, other than declaring the orders of the Revenue Officers as ultra virus, which are very well permissible in a civil suit, I do not find any merit in the present petition. Further I have no hesitation to hold that no infirmity of law or error has been committed by the learned trial Court while holding that the suit is maintainable. [Para No.23]