Most. Suraeya Begum Vs. Additional Deputy Commissioner (Revenue), Gaibandha and others 2017 (1) LNJ 109

Case No: Writ Petition No. 8703 of 2008

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. Sikder Mahmudur Razi , Md. Khurshedul Alam,

Citation: 2017 (1) LNJ 109

Case Year: 2016

Appellant: Most. Suraeya Begum

Respondent: Additional Deputy Commissioner (Revenue), Gaibandha and others

Subject: Civil Law

Delivery Date: 2017-03-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

15.06.2016

}

}

}

}

}

Most. Suraeya Begum

. . . Petitioners

-VERSUS-

Additional Deputy Commissioner (Revenue), Gaibandha and others

. . . Respondents

Stamp Act (II of 1899)

Section 27

By using the word ‘shall’ in the last part of section 27 of Stamp Act ( ...... shall be fully and truly set forth therein), the Legislature has made it a mandatory duty for the parties to the deed to state all the facts in the deed, so as to enable the concerned Sub-registrar to make a proper assessment as to the amount of stamp duty payable for the deed to be registered.                        . . .(11)

Stamp Act (II of 1899)

Sections 31 and 32

If the provisions of Sections 31 and 32 of the Stamp Act are read together, then it would give us a clearer picture that the ‘instrument’ must be presented before the Collector within one month from the date of its execution in order to have the Collector’s opinion as to the amount of stamp duty that is chargeable. . . .(16)

Stamp Act (II of 1899)

Section 33

The Head-Note of Section 33 of the Stamp Act amply indicates that the provisions are with regard to impounding an instrument. When any public office-holder, except a police officer, is in receipt of a deed, which has not been duly stamped, it becomes his bounden duty (shall) to impound the said unduly stamped deed.      . . . (18)

Stamp Act (II of 1899)

Section 41

If the proper amount of the stamp duty is mistakenly not paid by the executant and, later on, upon tracing out the error, the executant voluntarily approaches the Collector within one year of registering the deed with a request to pay the deficit stamp duty, the same may be allowed by the Collector.       . . . (23)

Stamp Act (II of 1899)

Sections 31, 32, 33, 40 and 41

The provisions of Sections 31, 32, 33, 40 and 41 of the Stamp Act come in operation only when an instrument is either brought to the Collector by the parties to the deed voluntarily or the same is placed before the Collector upon impounding it by the designated State-functionaries.   . . . (24)

Stamp Act (II of 1899)

Sections 33, 62 and 72

Is there any provision in the Stamp Act empowering the Sub-Registrar to impound the deed and take it to the Collector? The Sub-Registrar under Section 33 of the Stamp Act was empowered to impound the deed either at the time of presentation of the deed before him for registration and also after completion of registration if the deed would have been in his custody. After registration of the deed and handing over the same to the executant, the Sub-Registrar having become functus officio to call upon the executant to pay the deficiency, he apparently did not have any other option but to report it to the Collector. The question still remains unanswered as to under what provision the Sub-Registrar would deal with the situation. In our view evasion of stamp duty may be seen as a mere wrong done to the State by the executant if it was unintentional, but it shall amount to an offence under Chapter VII of the Stamp Act consisting of Sections 62 to 72 if it is found that the evasion was done intentionally.                                                          . . . (25)

Stamp Act (II of 1899)

Section 64

In a deed if any person does not properly, clearly, truely and fully state the facts affecting chargeability of the stamp duty, it becomes an offence. . . . (26)

Stamp Act (II of 1899)

Section 70

When a citizen commits a wrong or offence to the State, any person, be it private or Government official, is duty bound to bring it to the notice of the concerned authority for taking necessary legal action. In this case, the Sub-Registrar, though became functus officio after handing over the registered deed to the petitioner, no law of the land has prohibited the Sub-Registrar to approach the concerned revenue authority, namely the Collector, to take necessary steps for recovery of revenue due to the State.    . . .(27)

Stamp Act (II of 1899)

Section 70

Though there is no direct or specific provision in the Stamp Act outlining as to what would be the duty of a Sub-Registrar when the fact of evasion of stamp duty is revealed after delivering the registered deed from his custody, the Sub-Registrar, after being functus Officio, alike an ordinary citizen, owes a duty to inform the Collector about committing an offence of evasion of revenue and thereby institute prosecution under Section 70 of the Stamp Act.                                                           . . .(28)

Stamp Act (II of 1899)

Sections 40 and 42

As the chief revenue officer of the District, whenever he had come to know about the evasion of revenue by a citizen, it was his bounden duty to take necessary steps for recovery of the revenue either invoking the civil provisions of the Stamp Act (Sections 40 & 42) or invoking the penal provisions under Chapter VII of the Stamp Act or to take recourse to the both routs concurrently.

. . . (30)

Stamp Act (II of 1899)

Sections 31, 33, 40, 41 and 42

The thirty days time-limitation for filing an application before the Collector for assessment of proper stamp duty under the Proviso (a) of Section 31 of the Stamp Act relates to or is about adjudication of an application without any penalty/fine, and if an instrument is produced before him after expiration of 30 (thirty) days the Collector must not consider himself to be without authority inasmuch as the Collector is allowed to endorse a certificate under Section 42 of the stamp Act as to payment of proper stamp duty, even after expiry of one month, by applying the provisions of Sections 33(1) and 40(1)(b) of the Stamp Act. However, invoking the provision of Section 41 of the Stamp Act, if the deed-holder or the executant on his own motion makes a bonafide approach before the Collector within one year of the registration of the deed, the Collector, instead of impounding his deed under Section 33(1) of the Stamp Act and penalising him under Section 40(1)(b) of the Stamp Act, may accept only the deficit stamp duty.                      . . .(42)

ó¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001

wewa 5

From the date of commencement of the Bidhimala 2001 the Sub-Registrars of Bangladesh have been vested with the power to cancel the registration of a deed if the stamp duty is not paid in accordance with the method laid down in Rule 5 of the Bidhimala, 2001. But the Collectors are not empowered by any provision of any law to cancel a registered deed.                 . . . (47)

Stamp Act (II of 1899)

Sections 33, 35 and 63A

Section 35 of the Stamp Act employing the expression “No instrument Chargeable with duty shall be-------registered -------unless such instrument is duty stamped” imposes a clear prohibition upon a Sub-Registrar not to register a deed which is insufficiently stamped. The Sub-Registrar, thus, evidently was negligent in performing his duty given that under Section 35 of the Stamp Act it was the mandatory duty (shall) of the Sub-Registrar to look at the deed properly and ask for payment of the proper stamp duty before execution of the deed or to impound the deed under Section 33 of the Stamp Act. by the Finance Act, 2002 the Sub-Registrars’ failure to notice the mentioning of proper market value in the deed has been made a ‘misconduct’ and further the Sub-Registrars are presently liable to pay off the deficient stamp duty from their pocket under Section 63A.  . . . (52)

Stamp Act (II of 1899)

Section 63A

The State is entitled to have its revenue recovered from the Sub-Registrar who allows to register a deed by undervaluing a property.                                          . . . (53)

Mr. Sikder Mahmudur Razi with

Mr. M. A. Latif Prodhan, Advocates  

.....For the petitioner

Mr. Md. Khurshedul Alam, DAG

Ms. Nusrat Jahan, AAG          

... For the Respondents

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: This Rule was issued calling upon the respondents to show cause as to why the order dated 16.06.2008, passed by the Additional Deputy Commissioner (Revenue), Gaibandha, with respect to the deed no. 6559 dated 04.05.1993, which was conveyed to the petitioner vide memo no. DC/RM/08/180(4) dated 16.07.2008 (annexure-A), should not be declared to have been issued illegally, without lawful authority and of having no legal effect and why the respondents shall not be directed to take necessary steps with respect to the deed no. 6559 dated 04.05.1993 and/or such other or further order or orders as may seem fit and proper to this Court.

2.            Succinctly, the facts of the case are that the petitioner is a simple-minded housewife of a rural area. She is the sole daughter (adopted) of one Md. Sohir Uddin who, by the registered Heba deed no. 6559 dated 04.05.1993, transferred 1.29 acres of land from different plots under Mouza-Borogaon, Upazilla: Gobindaganj, District-Gaibandha to the petitioner and at the time of registration she had paid requisite stamp duty, revenue fees, registration fees and other expenses. From the said Md. Sohir Uddin, by way of another Heba deed being no. 431 dated 11.01.2003, the petitioner has also become the owner of further 1.34 acres of land from different plots under the same Mouza. Thereafter, both the deeds were cancelled by the order dated 23.12.2004 passed by the Additional Deputy Commissioner (Revenue), Gaibandha, (respondent no. 1), which was communicated to the all concerned vide Memo no. DC/RM/04/ 719/1(4) dated 28.12.2004 by the said authority in the Obomullayan Case No. 417/94-95. Eventually, it came to the knowledge of the petitioner and her donor-father in the late part of the year 2005, through overhearing rumors among the donor’s distant relatives, who have been attempting since long to grab the case-property. Then, the petitioner and her donor-father approached the Collector with a prayer to allow them to pay the deficit stamp duty and fees, and the same was rejected by the Collector on 29.12.2005 on the ground that the application has been filed beyond the time-limitation. Later on, when the petitioner filed another application for reviewing the previous orders dated 23.12.2004 and 29.12.2005, respondent no. 1 by his order dated 16.06.2008 modified his earlier orders by declaring that only deed no. 6559 dated 04.05.1993 is cancelled. Being aggrieved and dissatisfied with the Collector’s said order dated 16.06.2008, the petitioner moved to this Court and obtained this Rule.

3.            No affidavit-in-opposition has been filed by any of the respondents’ side. Given that the statements made in the writ petition & in the supplementary affidavit and their annexures were not sufficient to have all the chronological events of this case starting from 1993 to date, this Court, for proper adjudication of this Rule, called for the record of the Obomullayan Case no. 417/94-95 from the ADC (Revenue) of Gaibandha and also asked the Sub-Registrar of Gobindaganj, Gaibandha to submit written explanations to the following questions; (i) What was the value of the property at the time of registering the Deed no. 6559 dated 04.05.1993 (not the transaction value, rather the value used for the purpose of fixation of the stamp duty), and what was the basis for assessment of the stamp duty? (ii) How much stamp duty was payable by the transferee of the land in question? (iii) Who is the assigned officer/person (officially) to detect the evasion of the stamp duty? (iv) When it was detected? (v) What was the manner of communication to notify Mr. Sohiruddin (transferor) and Surayan Begum (transferee) about the evasion of stamp duty i.e. whether they were informed by registered notice or through other form? and (vi) What is the present value, as per the Government-price for the purpose of fixation of the stamp duty, of the property in question which was registered vide deed no. 6559 dated 04.05.1993 and how much stamp duty requires to be paid if the said land is registered today?

4.            The explanations to the above queries furnished in writing by the Sub-Registrar of Gobindganj, Gaibandha to this Court are reproduced below in verbatim;

“welqt wiU wcwUkb bs 8703/2008 Gi Av‡jv‡K Reve I cÖ‡qvRbxq KvMR cÎvw` †cÖiY cÖms‡M|

EfkѤš² ¢ho­u J p§­œl ®fТr­a S¡e¡­e¡ k¡­µR ®k,

(1)       D³ mg‡q Rwgi fÐL«a g~j¨ Abyhvqx Kv‡Ri Sv‡gjvi Kvi‡Y mwWK fv‡e g~j¨ wba©viY bv Kivq cieZ©x‡Z miKv‡ii ivR¯^ Av`v‡qi ¯^v‡_© weÁ AwZwi³ †Rjv cÖkvmK (ivR¯^) MvBevÜvi Av`vj‡Z gvgjv `v‡qi Kiv nq| hvi gvgjv bs 416/1994 `v‡qi c‡i wePvi wb¯úwË n‡q‡Q|

(2)                D³ mg‡q Rwgi cÖK…Z g~j¨ 16,700/- UvKv ÷¨v¤ú k~é 2,672/-V¡L¡u fÐc¢nÑa q­m L¡­Sl Q¡­f 1196/50 ØVÉ¡Çf n§ó A¡c¡u Ll¡ qu Hhw Ah¢nø 1475/50 O¡V¢a b¡L¡l L¡l­e j¡jm¡ Ll¡ q­u­Rz

(3)                avL¡m£e p¡h-­l¢SØVÌ¡l ¢h¢iæ L¡­Sl Q¡­f ØVÉ¡Çf n§ó p¢WLi¡­h ¢edÑ¡lZ e¡ Ll¡u Ah¢nø V¡L¡l SeÉ j¡jm¡ c¡­ul Ll¡ q­u­Rz

(4)                L¡­Sl Q¡­fl L¡l­Z  I pj­u ØVÉ¡Çf n§ó e¡ dl¡ fs¡l L¡l­e flhaÑ£­a k¡Q¡CL¡­m EàO¡Ve quz

(5)                ­j¡x R¢ql E¢Ÿe Hl e¡­j ®e¡¢Vn J AeÉ¡eÉ L¡NSfœ S¡l£l SeÉ pw¢nÔø LaѪf­rl j¡dÉ­j a¡l hl¡h­l ®fÐlZ Ll¡ q­u­Rz

(6)                haÑj¡­e h¡S¡l ®j¡a¡­hL plL¡l£ j§mÉ Ae¤k¡u£ 10,74,570 V¡L¡ ¢edÑ¡lZ Ll¡ quz Eš² V¡L¡l 96,711 V¡L¡ ØVÉ¡Çf n§ó AeÉ¡eÉ Ll¡¢c fСfÉ q­hz Cq¡ j­q¡c­ul pcu AhN¢a J fЭu¡Se£u hÉhÙÛ¡ NËq­Zl SeÉ ®fÐlZ Ll¡ q­m¡z”

5.            Mr. Sikder Mahmudur Razi, the learned Advocate appears for the petitioner along with Advocate M.A. Litif Pradhan. By taking us through the impugned order, Mr. Razi submits that respondent no. 1 has committed an error of law in construction and application of Rule 5(4)(Ga) of the ÷¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001 (shortly, the Bidhimala, 2001) in disposing the petitioner’s application for accepting the unpaid stamp duty. In an endeavour to elaborate his above submissions, the learned Advocate argues that while evidently the deed was executed in the year of 1993, the Bidhimala, 2001 having come into force in 2001 has no scope to be applied in the petitioner’s case. Continuing the above submissions, he argues that for argument’s sake, even if the Bidhimala, 2001 is taken to be applicable for a deed registered before framing the said Bidhimala, 2001, the provisions of Rule 5(4)(Ga) has no manner of application in the instant case inasmuch as it speaks about cancellation of a registered deed by the Sub-Registrar in the event of any Demand Draft (DD) or Pay Order (PO) being dishonored, upon being submitted along with the deed as payment of the revenue. But in the present case, no DD or PO was used for payment of revenue to the national exchequer. Mr. Razi further submits that in the Bidhimala, 2001, the power of cancellation of a deed on the ground of non-encashment of the DD or PO has been given only to the Sub-Registrars, but in this case the deed has been cancelled by the Collector.

6.            He then places the provisions of Section 31 & 32 under chapter III of the Stamp Act, 1899 (shortly, the Stamp Act), which deals with issues related to adjudication as to assessment of proper stamps, the provisions of chapter IV consisting of Sections 33 to 48 and the provisions of Section 64 of the Stamp Act and submits that the concerned authority is in no way empowered to cancel the registered deed of the petitioner and the only power the said authority has been vested with, is to impound the petitioner’s registered deed in question and to impose a penalty upon the petitioner. To elaborate this count of submissions, he submits that if it surfaces that insufficient duty has been paid at the time of registration of a deed, the said instrument may, at best, be impounded and, thereafter, upon receiving the deficit amount of stamp with penalty, the mistake can be rectified by the concerned authority. With regard to the issue of limitation in filing an application before the concerned authority namely the Collector, he submits that the petitioner and her donor-father are lay persons and the deed having been written by the licensed deed-writer, the stamp duty and other charges were paid by the petitioner according to the deed-writer’s instructions and therefore, they did not consider there had been any error in making the statements in the body of the deed or in showing the valuation of the property or if a lesser amount of stamp duty had been paid. More importantly, after initiating the Obomullayan case, they were never informed by the Sub-Registrar or by the office of the Collector about the said Obomullayan case and, therefore, the fact of initiation of the Obomullayan case was beyond the knowledge of the petitioners, as Mr. Razi contends. He argues that since they immediately approached the Collector after coming to know about the case, there was no delay. He posits that, for arguments’ sake, even if it is said that the petitioner and the executant of the deed (her father) approached the Collector after one year, their application cannot be turned down on the ground of delay, for, there is no time-limitation for filing an application before the Collector for addressing matters of such-nature in the four-corner of the Stamp Act.

7.            By making the above submissions, the learned Advocate for the petitioner prays for making the Rule absolute.

8.            No affidavit-in-opposition was filed by the Government-respondent nos. 1-4 or the non-government-respondent nos. 5-7. However, the learned DAG was allowed to make his submissions on the law points and although the learned DAG strived to defend the impugned order of cancellation of the petitioner’s registered deed no. 6559 dated 04.05.1993 passed by the ADC (Revenue), he struggled to do so in the backdrop of absence of any provision in the Stamp Act, 1899 and in the Bidhimala, 2001 empowering the Collector to cancel a registered deed. The learned DAG, however, for a few minutes harped on the issue of the maintainability of this writ petition on the ground of not taking this case to the Chief Revenue Authority, at first, under Section 56 of the Stamp Act and, then, to the High Court Division under Section 57 of the Stamp Act and, eventually, he made a humble submission that it is up to this Court to make appropriate observations and findings on this matter and, thereby, pass necessary orders.

9.            Upon going through the entire Nothi (record) of the Obomullayan Case no. 417/94-95, perusing the Sub-Registrar’s written answers to this Court’s queries, the writ petition together with its annexures, and after hearing the learned Advocate for the petitioner and the learned DAG and considering the provisions of the Stamp Act, 1899 (shortly, the Stamp Act), the Stamp Rules, 1925, the Stamp Duties (Additional Modes of Payment) Act, 1974, ó¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001 (shortly, Bidhimala, 2001), ‡c-AW©v‡ii gva¨‡g †iwR‡ó«kb wd cwi‡kva wewagvjv, 2007, the Registration Act, 1908, wbeÜb wewagvjv, 2014, m¤úwËi evRvig~j¨ wba©vib wewagvjv, 2002, m¤úwËi evRvig~j¨ wba©vib wewagvjv, 2010 and the Directives/Guidelines issued and circulated by the Inspector General of Registration (IGR) which are compiled in the Registration Manual, it transpires to us that the apparent issues to be adjudicated upon by this Court are; (i) whether the Sub-Registrar was competent to lodge complaint before the Collector after more than one year of registering the deed in question, alleging that the parties to the deed have evaded the stamp duty, (ii) pursuant to the Sub-Registrar’s complaint, whether the ADC (Revenue) performing functions of the Collector was competent to open Obomullayan Case no. 417 of 1994-95 and thereby to demand the deficit stamp duty, (iii) whether appropriate steps/actions were taken by the Collector after opening up the Obomullayan Case, such as properly summoning the parties to the deed, ensuring their presence before him, recording order of cancellation of the deed etc, (iv) what is the proper forum to challenge the order passed by the Collector in an Obomullayan Case? and (v) whether the Sub-Registrars were at fault to recover the stamp duty and, if so, whether they should be penalised?

10.        Let us first deal with the issue as to whether the Sub-Registrar had the authority to question the petitioner’s omission to comply with Section 27 of the Stamp Act and thereby to approach the Collector after a delay of more than one year of registration of the disputed deed. Section 27 of the Stamp Act, which runs as follows:

27. Facts affecting duty to be set forth in instrument-The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. (underlined by us)

11.        By using the word ‘shall’ in the last part of the above provision ( ...... shall be fully and truly set forth therein), the Legislature has made it a mandatory duty for the parties to the deed to state all the facts in the deed, so as to enable the concerned Sub-registrar to make a proper assessment as to the amount of stamp duty payable for the deed to be registered.

12.        We need to see as to whether the petitioner and her father have complied with the above provisions of Section 27 of the Act. From the facts of the case, it transpires that the petitioner is an adopted daughter of one Md. Sohir Uddin and the latter, being a childless person, at the fag end of his life, initially gifted a portion of his property vide registered deed no. 6559 dated 04.05.1993 in favour of the petitioner who throughout her life, even after her marriage, lived at the donor’s home engaging herself in looking after the donor’s well-being. The donor and the donee appear to be lay persons and due to their lack of knowledge, they might have been misguided to undervalue the property in the deed in question. After 1 (one) year and 7 (seven) months of the registration of the deed in question, on 28.12.1994, the Sub-Registrar lodged a complaint to the Collector alleging that the petitioner and her donor-father have evaded the stamp duty of Taka 1475.00 by undervaluing the property.

13.        Now, the question of which provision of the law justifies the Sub-Registrar approaching the Collector, comes up. From a minute reading of the entire Stamp Act, it appears to us that the provisions of Sections 31, 32, 33, 40 & 41 of the Stamp Act might be relevant in getting the answer to the above question. Let us first look at the provision of Section 31 of the Stamp Act, which runs as follows:

31. Adjudication as to proper stamp-(1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount not exceeding five Taka and not less than fifty poisha as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable.

(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truely set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly:

Provided that –

(a) .....................

(b) ....................      (underlined by us)

14.        The above provisions of Section 31 of the Stamp Act does not cover the situation of this case inasmuch as the expression “when any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector......” unambiguously says that there must be an ‘instrument’ before the Collector to proceed with the adjudication as to the amount of stamp duty chargeable for the said instrument, but no instrument was presented before the Collector in this case.

15.        Let us see whether Section 32 of the Stamp Act is relevant in this case. Section 32 of the Stamp Act runs as follows:

32. Certificate by collector- When an instrument brought to the collector under section 31is, in his opinion, one of a description chargeable with duty, and-

(a) .................................................

(b) .................................................

The Collector shall certify by endorsement on such instrument that the full duty (stating the amount) with which it is chargeable has been paid.

(2) .......................................

(3) .......................................

Provided that nothing in this section shall authorize the Collector to endorse-

(a)   any instrument executed or first executed in Bangladesh and brought to him after the expiration of one month from the date of its execution or first execution, as the case may be;

(b)    ................................................

(c)     ................................................ (underlined by us)

16.        If the provisions of Sections 31 & 32 of the Stamp Act are read together, then it would give us a clearer picture that the ‘instrument’ must be presented before the Collector within one month from the date of its execution in order to have the Collector’s opinion as to the amount of stamp duty that is chargeable. In the light of the fact that the Sub-Registrar approached the Collector after 1 (one) year and 7 (seven) months and that too also without presenting the deed (instrument), there is no scope to relate the facts of this case with the provisions of Sections 31 & 32 of the Stamp Act.

17.        We may now look at the provision of Section 33 of the Stamp Act, which runs as follows:

33. Examination and impounding of instruments-(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if appears to him that such instrument is not duly stamped, impound the same. (underlined by us)

18.        The Head-Note of the above Section amply indicates that the provisions are with regard to impounding an instrument. When any public office-holder, except a police officer, is in receipt of a deed, which has not been duly stamped, it becomes his bounden duty (shall) to impound the said unduly stamped deed. In this case, the deed in question is not in possession of the Sub-Registrar and, thus, he could not impound it. Thus, the provision of Section 33 of the Stamp Act also does not help us to get the answer to the question posed herein before.

19.        Let us now look at the provision of Section 40 of the Stamp Act, which runs as follows:

40. Collectors power to stamp instruments impounded-(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 an instrument chargeable with a duty of ten poisha or five poisha only or a bill of exchange or promissory note, he shall adopt the following procedure:

(a)         ..........................................

(b)         if he is of opinion that such instrument is chargeable with duty and is not duly 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 Taka or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five Taka.                                             (underlined by us)

20.        The above provision cannot be resorted to either, by the Sub-Registrar to approach the Collector, for, it deals with the Collector’s power with regard to an impounded instrument. Here, the Sub-Registrar has not sent the instrument to the Collector having impounded the instrument.

21.        Therefore, we find that the Sub-Registrar has not taken recourse to the provisions of Sections 31, 32, 33 & 40 of the Stamp Act in approaching the Collector inasmuch as the Sub-Registrar did not bring the instrument to the Collector under Section 31 of the Stamp Act seeking opinion of the Collector for adjudication as to how much of stamp duty was payable, nor was it ever impounded under Section 33 of the Stamp Act by the Sub-Registrar, nor was it received by the Collector under Section 38 of the Stamp Act and it was certainly not impounded by the Collector under Section 40 of the Stamp Act.

22.        Has the provision of Section 41 of the Stamp Act been resorted to by the Sub-Registrar in approaching the Collector? Let us have a look at the said provisions which is reproduced below:

41. Instruments unduly stamped by accident-If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable with a duty of ten poisha or five poisha only or a bill of exchange or promissory note, is produced by any person of his own motion before the Collector within one year from the date of its execution or first execution, and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay to the Collector the amount of the proper duty, or the amount required to make up the same, and the Collector is satisfied that the omission to duly stamp such instrument has been occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under Sections 33 and 40, receive such amount and proceed as next hereinafter prescribed. (underlined by us)

23.        From a plain reading of Section 41 of the Stamp Act, our unambiguous understanding is that if the proper amount of the stamp duty is mistakenly not paid by the executant and, later on, upon tracing out the error, the executant voluntarily approaches the Collector within one year of registering the deed with a request to pay the deficit stamp duty, the same may be allowed by the Collector. Therefore, the above provisions of Section 41 of the Stamp Act also do not empower the Sub-Registrar to deal with the petitioner’s omission as to valuation of the property.

24.        Thus, we find from the examinations carried out hereinbefore that the provisions of Sections 31, 32, 33, 40 & 41 of the Stamp Act come in operation only when an instrument is either brought to the Collector by the parties to the deed voluntarily or the same is placed before the Collector upon impounding it by the designated State-functionaries. In the backdrop of the fact that the Sub-Registrar reported evasion of stamp duty to the Collector without impounding the deed in question, we hold that his approach before the Collector did not fit in any of the above provisions of the Stamp Act.

25.        Is there any provision in the Stamp Act empowering the Sub-Registrar to impound the deed and take it to the Collector? The Sub-Registrar under Section 33 of the Stamp Act was empowered to impound the deed either at the time of presentation of the deed before him for registration and also after completion of registration if the deed would have been in his custody. After registration of the deed and handing over the same to the executant, the Sub-Registrar having become functus officio to call upon the executant to pay the deficiency, he apparently did not have any other option but to report it to the Collector. The question still remains unanswered as to under what provision the Sub-Registrar would deal with the situation. In our view evasion of stamp duty may be seen as a mere wrong done to the State by the executant if it was unintentional, but it shall amount to an offence under Chapter VII of the Stamp Act consisting of Sections 62 to 72 if it is found that the evasion was done intentionally. Upon skimming through the above Chapter, provision of Section 64 appears to us to be relevant for this case. Let us look at the provision of Section 64 of the Stamp Act, which is quoted below:

64. Penalty for omission to comply with provisions of Section 27-Any person who, with intent to defraud the Government,-

(a) executes any instrument in which all the facts and circumstances required by Section 27 to be set forth in such instrument are not fully and truly set forth; or,

(b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; or

(c) does any other act calculated to deprive the Government of any duty or penalty under this Act;

Shall be punishable with fine which may extend to [fifty thousand Taka and shall also be liable to pay the amount of the money by which the Government has been defrauded due to his act or omission under clause (a), (b) or (c)].

26.        From a plain reading of the above provision of Section 64 of the Stamp Act, we understand that in a deed if any person does not properly, clearly, truely and fully state the facts affecting chargeability of the stamp duty, it becomes an offence.

27.        In this case, the parties to the deed have not properly and truely mentioned the value of the property in the deed and apparently a prima facie offence has been committed and it was incumbent upon the Sub-Registrar, like any other ordinary citizen, to notify the concerned State-functionary namely the Collector about the offence of evasion of stamp duty by the petitioner and the donor. When a citizen commits a wrong or offence to the State, any person, be it private or Government official, is duty bound to bring it to the notice of the concerned authority for taking necessary legal action. In this case, the Sub-Registrar, though became functus officio after handing over the registered deed to the petitioner, no law of the land has prohibited the Sub-Registrar to approach the concerned revenue authority, namely the Collector, to take necessary steps for recovery of revenue due to the State.

28.        Therefore, it leads us to hold that though there is no direct or specific provision in the Stamp Act outlining as to what would be the duty of a Sub-Registrar when the fact of evasion of stamp duty is revealed after delivering the registered deed from his custody, a situation that has surfaced in this case, however, it is our view that the Sub-Registrar, after being functus Officio, alike an ordinary citizen, owes a duty to inform the Collector about committing an offence of evasion of revenue and thereby institute prosecution under Section 70 of the Stamp Act. Section 70 of the Stamp Act is quoted below:

70. Institution and conduct of persecutions-(1) No prosecution in respect of any offence punishable under this Act shall be instituted without the sanction of the Collector or such other officer as the Government generally, or the Collector specially, authorises in that behalf.

(2) .....................................

(3) .....................................

29.        Since the above Section 70 of the Stamp Act provides that no person can institute a criminal case without first obtaining sanction of the Collector, the approach of the Sub-Registrar of Gobindagonj under the District Gaibandha informing the Collector about the evasion of stamp duty by the petitioner may be treated to be a step taken within the purview of Section 70 of the Stamp Act.

30.        Now, let us see whether the ADC (Revenue) was empowered to ask the petitioner to pay the deficit stamp duty. It is evident from the Nathi (record) of Obomullayan Case no. 417/1994-95 that the ADC (Revenue) took the steps and issued the orders in the capacity of the ‘Collector’ meaning “........the chief officer in charge of the revenue administration of a district .....”, as defined in Section 3(10) of the General Clauses Act, 1897. So, as the chief revenue officer of the District, whenever he had come to know about the evasion of revenue by a citizen, it was his bounden duty to take necessary steps for recovery of the revenue either invoking the civil provisions of the Stamp Act (Sections 40 & 42) or invoking the penal provisions under Chapter VII of the Stamp Act or to take recourse to the both routs concurrently. A question again becomes pertinent for consideration at this stage as to which provision of the Stamp Act authorises the Collector to take necessary steps for recovery of the revenue, for, all the provisions of civil nature under the Stamp Act empower the Collector to deal with the matter in two situations; either when the deed is voluntarily placed before him or when it is presented before him after being impounded. In this case, the Collector is without the deed and he would be in a position to adjudicate upon the complaint only when the deed would be produced before him voluntarily by the parties to the deed or by the designated Government functionaries upon impounding it.

31.        The only route, thus, apparently available for the Collector is to proceed in the matter by applying the provisions of criminal offences inscribed in chapter VII of the Stamp Act, in particular, the provisions of Section 64 read with the provisions of Section 70 of the Stamp Act. Thereafter, upon hearing the parties to the deed and considering the materials on record, if the Collector finds that the parties to the deed have intentionally evaded the stamp duty, then the Collector may levy a fine of Taka 50,000/- (fifty thousand) on top of recovering the proper/deficit stamp duty. If the Collector finds no intention of the parties to the deed in paying due stamp duty, then he may take the appearance of the parties to the deed to be under Section 31 of the Stamp Act.

32.        Let us see what the Collector has done in this case. When on 28.12.1994, the Sub-Registrar brought an allegation of non-disclosure of the statements against the petitioner and the Collector issued the show cause notice upon the petitioner for intentionally trying to evade the payment of deficit stamp duty, it transpires that the Collector upon treating the Sub-Registrar’s complaint as a criminal offence under Section 64 of the Stamp Act had issued the notice upon the petitioner. Thus, we hold that the Collector was competent to initiate the Obomullayan case no. 417 of 1994-95.

33.        It leads us to see whether the Collector’s subsequent actions were lawful. After receiving the complaint from the Sub-Registrar, the Collector could have proceeded towards getting it tried either by himself or could have forwarded the matter to a Second Class Magistrate for its trial under Section 71 of the Stamp Act. Then, the Collector upon exercising his power of magistracy would have been in a position to compel the petitioner to produce the original deed and thereby punish the petitioner by a fine of Taka fifty thousand on top of recovering the deficit stamp duty, if it was found by the Collector that the parties to the deed ‘intentionally’ evaded the stamp duty. For this to have happened, the Collector was required to ensure the presence of the parties to the deed before him by any means; firstly by issuing summons to the parties and, if it would not have worked, then by arresting them through executing the W/A. In order to find out whether non-payment of proper stamp duty was intentional or unintentional, we need to see whether they were aware of the Obomullayan case no. 1994-95.

34.      In order to take up scrutiny of the above issue, we must find out as to whether the petitioner was notified about the above Obomullayan Case no. 417 of 1994-95. While the record (Nathi) of Obomullayan Case no. 417 of 1994-95 contains some notices asking the petitioner and her donor-father to show cause as to why they shall not be penalised under Section 64 of the Stamp Act for violation of Section 27 of the said Act, the order sheets of the record show that the notices had not been served upon the petitioners. From the Nathi (record) of the Obomullayan Case no. 417/1994-95, it transpires that the said Obomullayan Case was started at the instance of the Sub-Registrar of Gobindaganj under the District Gaibandha by the Collector against the petitioner and her donor-father (the executant) on 28.12.1994 for infringement of Section 27 of the Stamp Act for alleged evasion of stamp duty of Taka 1475.50 payable for the deed no. 6559 dated 04.05.1993 with an order to issue show-cause notice upon the petitioner and fixing 15.01.1995 as the next date. Thereafter, on 15.01.1995 and 22.01.1995, orders were passed in the following terms “cybivq †bvwUk †`Iqv †nvKÕÕ (let the notice be served again) and by the 4th order passed on 07.02.1996, the Collector levied a fine of Taka 1,600.00 upon the petitioner and her donor-father on the alleged ground of non-appearance of the petitioner and her father. However, it transpires from the pattern of the entire orders passed by the Collector, including the initial order of opening up the said Obomullayan case as well as the order of slapping fine upon the petitioner on 07.02.1995, that the Collector did not examine as to whether the notices, which are claimed to have been sent by the notice-servers, were at all received by the petitioner. The subsequent orders passed on 17.06.1996, 09.12.1996, 23.06.1998 & 15.07.1998 also show that the petitioner had not received the Collector’s order. Let us look at the terms of the above first order dated 17.06.1996 and last order passed on 15.07.1998. While the order dated 17.06.1996 contains the following order ÔÔmiKvix cvIbv Av`v‡qi Rb¨ W/A †`Iqv nDKÕÕ, the order dated 15.07.1998 was passed in the following terms ÔÔA`¨ †Km b_x Dc¯’vcb Kiv n‡jv| mnKvix Kwgkbvi (f~wg), †Mvwe›`MÄ Gi wbKU †_‡K †bvwUk Rvixi cÖwZ‡e`b cvIqv hvqwb| ZvwM` †`Iqv nDK| AvMvgx 16.08.1998 Bs cybivq †bvwUk Rvixi Rb¨|ÕÕ From the content of the above orders quoted hereinbefore, thus, it is crystal clear that the petitioner or her donor-father had never received the notices from the notice-servers of the office of the Collector. Moreover, it has been contended by the learned Advocate for the petitioner that the petitioner and her donor-father were not aware of the said Obomullayan Case or the order passed therein by the Collector and the said claim was not denied by the respondents here in this case and also not in Other Class Suit no. 21 of 2008 (annexure-F) when the petitioner had mentioned about not receiving the said notices in her written statement

35.        It has been claimed by the petitioner that they came to know about the Obomullayan Case no. 417 of 1994-95 in the late part of 2005 through overhearing rumors about the cancellation of their deeds among their distant relatives, who have been since long trying to grab the landed property. Thereafter, they approached the Collector on 26.12.2005 praying for allowing them to deposit the deficient amount of stamp duty of Taka 1,475.50 together with the fine to be imposed. Nothing has been produced before us to disbelieve the petitioner’s above claim that it came to the petitioner’s knowledge only when the distant relatives were speculating over the issue of cancellation of the two deeds.

36.        Thus, we find that the petitioner was neither aware of the filing of the Obomullayan Case no. 417 of 1994-95, nor was she/her donor-father properly communicated with the order dated 07.02.1996 levying fine upon them. Accordingly, we hold that she did not have any intention to dodge the deficit stamp duty of Taka 1,475.50 inasmuch as when the petitioner came to know about the fact of registering the deed in question with insufficient stamp duty, she made a prayer for payment of deficiency without squandering any further time, which amply satisfies us to hold that it was not an intentional evasion, rather it was a mistake of the petitioner caused due to the negligence of the deed writer and the concerned Sub-Registrar. Therefore, the order dated 28.12.2004 passed by the Collector of Gaibandha cancelling the petitioner’s deed no. 6559 dated 04.05.1993 on the alleged ground of her non-appearance before the Collector appears to us to be erroneous and the same is liable to be declared illegal.

37.        Let us embark upon examination of the legality and propriety of the order dated 29.12.2005 by which the petitioner’s first application dated 26.12.2005 was turned down.

38.        Through our way of scrutiny, it was revealed that after the petitioner came to know about their mistake as to non-payment of the required stamp duty, she and the executant of the deed (her father) filed an application on 26.12.2005 to the Collector to allow them to pay off the deficiency, but the petitioners’ said application dated 26.12.2005 was rejected vide the Collector’s order dated 29.12.2005 on the ground of filing the application after 30 (thirty) days. Although the Collector’s above order apparently is without a reference to any provisions of the Stamp Act, however, our assumption is that the Collector has relied upon the Proviso (a) to Section 32 of the Stamp Act taking the petitioner’s appearance before him under Section 31 of the Stamp Act. While Section 31 of the Stamp Act says that “when any instrument,----------, is brought to the Collector, and the person bringing it applies to have the opinion of that officer to the duty (if any) with which it is chargeable, ......... the Collector shall determine the duty -------------”, Proviso(a) of Section 32 of the Stamp Act stipulates that “Provided that nothing in this Section shall authorise the Collector to endorse-(a) any instrument ----------- brought to him after the expiration of one month from the date of its execution....”.

39.        However, had the Collector judiciously dealt with the matter, he certainly would have looked at the provisions of Sections 33 and 40 of the Stamp Act. While Section 33 of the Stamp Act empowers the Collector to impound an insufficiently stamped deed, Section 40(1)(b) of the Stamp Act empowers him to require the parties to the deed to pay the deficiency with a penalty of an amount of ten times of the proper duty. In the light of the fact that the petitioner and her father (parties to the deed) after coming to know about their omission under Section 27 of the Stamp Act through an unusual manner (through eavesdropping) had appeared with the deed before the Collector on 26.12.2005, it was the Collector’s duty to impound it under Section 33 of the Stamp Act. Thereafter, it was incumbent upon the Collector to form an opinion under Section 40(1)(b) of the Stamp Act and once he was of the opinion that the impounded instrument is insufficiently stamped, he could have fined ten times of the proper/deficient stamp duty in addition to the due stamp duty/deficiency. Applying the above provisions of Section 40 of the Stamp Act, the Collector, on 29.12.2005 at the time of disposal of the petitioner’s application, could have asked the petitioner to pay the deficit stamp duty of Taka 1475.50 (proper stamp duty was 2672.00 - 1196.50, the duty paid by the petitioner, as evident from the reply furnished by the Sub-Registrar to this Court) plus ten times of the said deficiency i.e. 1475.50 + 14755.00 = in total Taka 16230.50 and then could have endorsed a certificate under Section 42 of the Stamp Act.

40.        It follows that the presence of the parties to the deed before the Collector (firstly, on 26.12.2005 when they filed the application for depositing of the deficit stamp duty and, then, on 29.12.2005 when the hearing took place) was treated by the Collector to be a step under Section 31 of the Stamp Act taken by the parties to the deed. Thereafter, the Collector could have entertained the petitioner’s application applying the provisions of Sections 33 and 40 of the Stamp Act, as Sections 33 and 40 of the Stamp Act conjointly mandate the Collector to proceed towards the collection of required amount of the deficient stamp duty with ten times penalty upon impounding an instrument without being bothered about the time-limitation prescribed in Section 32 of the Stamp Act.

41.        Thus, although the Collector’s first step to issue notice under Section 64 of the Stamp Act upon the parties to the deed in question for evasion of stamp duty as well as his view to treat the petitioner’s application dated 26.12.2005 to be one under Section 31 of the Stamp Act are found to be correct, however, rejection of the same for being brought to him after the expiration of one month from the date of its execution upon assuming that the petitioner’s situation is attracted by the Proviso (a) of Section 32 of the Stamp Act, was erroneous inasmuch as the Collector’s duty was to impound it under Section 33(1) of the Stamp Act and thereby recover the deficit stamp duty plus to fine ten times of the deficient stamp duty and thereafter his further duty was to certify, by endorsing on the deed, that proper duty plus penalty have been paid off by the deed-holder.

42.        To put the above discussions and observations in a simpler version all that we want to state is that the thirty days time-limitation for filing an application before the Collector for assessment of proper stamp duty under the Proviso (a) of Section 31 of the Stamp Act relates to or is about adjudication of an application without any penalty/fine, and if an instrument is produced before him after expiration of 30 (thirty) days the Collector must not consider himself to be without authority inasmuch as the Collector is allowed to endorse a certificate under Section 42 of the stamp Act as to payment of proper stamp duty, even after expiry of one month, by applying the provisions of Sections 33(1) and 40(1)(b) of the Stamp Act. However, invoking the provision of Section 41 of the Stamp Act, if the deed-holder or the executant on his own motion makes a bonafide approach before the Collector within one year of the registration of the deed, the Collector, instead of impounding his deed under Section 33(1) of the Stamp Act and penalising him under Section 40(1)(b) of the Stamp Act, may accept only the deficit stamp duty.

43.        Therefore, we hold that the ground taken by the Collector (respondent no. 1) in his order dated 29.12.2005 to reject the petitioner’s application dated 26.12.2005 on limitation-point does not have any leg to stand.

44.        Now, we may embark upon the examination of the legality of the impugned order dated 16.06.2008. It appears that the petitioner and her donor-father, after being rejected by the Collector on 29.12.2005, approached the Collector again to have a review on the previous order dated 28.12.2004. On this occasion while the Collector was convinced to declare that his order dated 28.12.2004, by which the petitioner’s two deeds were cancelled, does not relate to the petitioner’s deed no. 431 dated 11.01.2003, he declined to review the order of cancellation of registration of the deed no. 6559 dated 04.05.1993 except making an observation that the petitioner may take the point of time-limitation, as to approaching the Collector after expiration of 30 (thirty) days of registering the deed, to the higher Court for its examination and decision. This time also the Collector could have considered the petitioner’s application under Section 31 of the Stamp Act and thereby upon impounding the original deed bearing no. 6559 dated 04.05.1993 under Section 33(1) of the Stamp Act, he could have charged 11 (eleven) times of the deficient amount of the proper duty being Taka 14755.00 under Section 40 of the Stamp Act. In contrast, he opted to affirm the decision dated 28.12.2004 by which the deed no. 6559 dated 04.05.1993 was cancelled on the alleged grounds of (i) deliberate non-appearance before the Collector and (ii) evasion of Stamp duty. We have already found hereinbefore that petitioner’s non-appearance before the Collector was not willful. For argument’s sake, even if the above nos. (i) & (ii) issues are held against the petitioner, a pertinent question comes up for consideration; was the Collector empowered by any provisions of the Stamp Act or any other law to cancel the petitioner’s deed?

45.        In the quest for the answer to the above question, we have minutely read through the entire Stamp Act and the Registration Act and we find that nowhere is the Collector vested with the power to cancel a registered deed on the ground of evasion of the stamp duty. However, in passing the order dated 28.12.2004 & the last order dated 16.06.2008, since the Collector has sought to rely on provisions of Rules 5(1) to 5(5) of the ó¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001, for effective and proper adjudication of this issue, it would be profitable if we quote the said provisions of Rules 5(1) to 5(5) of the ó¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001; which are reproduced below:

wewa-5| †c-AW©vi ev e¨vsK W«vdU-Gi gva¨‡g ÷¨v¤ú ïé cwi‡kv‡ai c×wZ-1) †c-AW©vi ev e¨vsK W«vdU Gi gva¨‡g ÷¨v¤ú ïé cwi‡kv‡ai D‡Ï‡k¨ D³ ï‡éi mgcwigvY A_© `wjj m¤úvw`Ze¨ GjvKvi †Kvb Zdwmjx e¨vs‡K Rgv w`qv D³ e¨vsK nB‡Z Bmy¨K…Z †c-AW©vi ev evsK W«vdU Gi g~jKwc Ges Dnvi eve` ÷¨v¤ú ïé cwi‡kvaKvixi bvg I ZvwiL m¤¦wjZ iwk` msMÖn Kwi‡Z nB‡e; Ges mswk­ó `wjj wbe܇bi D‡Ï‡k¨ mve-†iwR÷«v‡ii wbKU Dc¯’vc‡bi mgq `wj‡ji mwnZ †c-AW©vi ev e¨vsK W«vdU Gi g~jKwc, Dnvi GKwU d‡UvKwc Ges D³ iwm‡`i d‡UvKwc mshy³ Kwi‡Z nB‡e|

2) ......................................

3)   (K) ................................

      (L) ................................

(M) ‡c-AWv©i ev e¨vsK W«vdU Gi gva¨‡g cÖvß ÷¨v¤ú ïé ¯’vbxq evsjv‡`k e¨vsK A_ev Dnvi c‡¶ †U«Rvix Kvh©µg cwiPvjbvi `vwq‡Z¡ wb‡qvwRZ Zdwmjx e¨vs‡K GKB w`‡b A_ev cieZ©x Kvh©w`e‡m Pvjv‡bi gva¨‡g Rgv cÖ`v‡bi e¨e¯’v Kwi‡eb; Ges †U«Rvix‡Z Rgv cÖ`Ë †c-AWv©i A_ev e¨vsK W«vdU msµš— Z_¨vw` Zdwmj 2 Abymv‡i wea„Z †iwR÷«v‡i Aš—fy©³ KiZt †U«Rvixi mswk­ó Kg©KZ©v KZ„©K Dnv‡`i cÖvw߯^xKvi D‡j­Lmn Zvnvi `¯—LZI mxjhy³ KivB‡eb;

(N) ................................

4) Dc-wewa (3)(M) Gi Aax‡b †c-AW©vi ev e¨vsK W«vdU †U«Rvix‡Z Rgv Ki‡Yi cieZ©x 30 w`‡bi g‡a¨ bM`vqb bv nB‡j †U«Rvixi mswk­ó Kg©KZ©v t

(K) ................................

(L) ................................

(M) `dv (4) Abymv‡i Aby‡iva cÎ †cÖi‡Yi cieZ©x 30 w`‡bi g‡a¨ D³ †c-AW©vi ev e¨vsK W«vdU bM`vwqZ bv nB‡j Dnv A¯^xK…Z (dishonored) nBqv‡Q ewjqv MY¨ Kwi‡eb Ges Dc-wewa (5) Abymv‡i e¨e¯’v MÖnY Kwi‡eb|

5) †Kvb †c-AWv©i ev e¨vsK W«vd‡Ui bM`vqb A¯^xK„Z (dishonored) nB‡j ev Dc-wewa (4)(M) Abymv‡i A¯^xKvi ewjqv MY¨ nB‡j †U«Rvix Kg©KZ©v welqwU †iwRw÷«i gš—e¨ Kjv‡g D‡j­L Kwi‡eb Ges Dnv mve-†iwR÷«vi‡K †diZ w`‡eb, Ges GBiƒc †¶‡Î mve-†iwR÷«vi mswk­ó `wj‡ji ‡iwR‡÷«kb evwZj KiZt Dnv `wj‡ji 1 bs MÖnxZv‡K wjwLZfv‡e RvbvBqv w`‡eb|

46.        From a minute reading of the above provisions, it appears that the said Bidhimala is applicable in those cases where the Demand Draft (DD) or Pay Order (PO), which is submitted along with the deed as payment of revenue, is dishonored and, following the said dishonor, even after sending the letter by the Sub-Registrar allowing the deed-owner 30 (thirty) days time, if the DD/PO is not encashed, the registration of the deed in question shall be cancelled.

47.        From the date of commencement of the Bidhimala 2001, thus, the Sub-Registrars of Bangladesh have been vested with the power to cancel the registration of a deed if the stamp duty is not paid in accordance with the method laid down in Rule 5 of the Bidhimala, 2001. But the Collectors are not empowered by any provision of any law to cancel a registered deed.

48.        In the case in hand, since no Demand Draft or Pay Order was used at the time of registration of the deed no. 6559 dated 04.05.1993, we find that there is no applicability of the said provisions in the present case. Hence, we hold that the orders dated 28.12.2004 and 29.12.2005, both passed by the Collector of Gaibandha, are liable to be declared illegal and of no legal effect.

49.        To sum up the examination of the issues involved in this case, we note that the concerned authority, namely the Collector, was empowered to impound the instrument in question for not being duly stamped when the petitioner willingly came forward to pay the deficient stamp duty, which she has not paid apparently due to her lack of knowledge/ information in this regard and the Collector could have accepted her application by impounding the deed under Section 33(1) of the Stamp Act in tandem with imposing penalty upon the petitioner as prescribed in Section 40(1)(b) of the Stamp Act. Instead of proceeding in that line, the Collector, took the view that the petitioner’s registered deed in question is liable to be cancelled, which is, in our view, done completely upon a misconception of law by resorting to wrong construction and application of the provisions of ÷¨v¤ú ïé cwi‡kva (AwZwi³ c×wZ) wewagvjv, 2001. Therefore, the Collector’s orders dated 28.12.2004, 29.12.2005 & the impugned order dated 16.06.2008 are liable to be declared illegal, for, the same have been issued by the Collector beyond the provisions of law.

50.        Now, we may turn to see the issue of forum, as raised by the learned DAG, as to whether the issues involved in this case could have been dealt with by the Chief Revenue Authority. From a minute reading of the provisions of chapter VI of the Stamp Act, it appears to us that when the Collector exercises his power under Sections 31, 40 & 41 of the Stamp Act and if any party to the deed/ instrument is unhappy with the decision of the Collector, s/he is entitled to approach the Chief Revenue Authority. Also, the Collector himself can approach the Chief Revenue Authority when the Collector is confused to make a correct assessment about a case under the provisions of the Stamp Act. Thereafter, upon being approached either by the Collector or by the party, if the Chief Revenue Officer is unsure about the appropriate decision on a case, the Chief Revenue Authority upon framing the issues/questions, then, can refer the matter to the High Court Division for adjudication upon the issues/questions by a Bench of three judges. Therefore, the scenario of the present case being totally unsuited to the provisions of Section 56 of 57 of the Stamp Act, invocation of writ jurisdiction was correct step taken by the petitioner.  

51.        Let us now see whether the Sub-Registrar of Gobindaganj who registered the deed no. 6559 dated 04.05.1993 and, also, the Sub-Registrar of Gobindaganj who registered the deed no. 431 dated 11.01.2003 and had the occasion to inform the petitioner about the evasion of the stamp duty for the previous deed, were at fault. If they are found to be blameworthy, then we are to see whether there is any compensatory provision to recover the deficiency from them.

52.        Section 35 of the Stamp Act employing the expression “No instrument Chargeable with duty shall be-----------------registered ------------unless such instrument is duty stamped” imposes a clear prohibition upon a Sub-Registrar not to register a deed which is insufficiently stamped. The Sub-Registrar, thus, evidently was negligent in performing his duty given that under Section 35 of the Stamp Act it was the mandatory duty (shall) of the Sub-Registrar to look at the deed properly and ask for payment of the proper stamp duty before execution of the deed or to impound the deed under Section 33 of the Stamp Act. Although no express consequence of the Sub-Registrar was stated in the Stamp Act at the time of registering the deed in question, in the backdrop of operation of the above prohibitory provision, the concerned Sub-Registrar cannot escape from the blame of being negligent in performing his duty and must thereby compensate the State by paying a fine. In addition to the above provisions of Section 35 of the Stamp Act, according to the provisions of paragraph 40 (Ka) of the Directives issued by the IGR as incorporated in the ‘†iwR‡ó«kb g¨vby‡qjÕ (Registration Manual), the Sub-Registrar was barred to register the deed without being satisfied that the deed is duly stamped. Consequence of this kind of negligence was not expressly spelt out in the law and, thus, Legislature took the sloppiness of the Sub-Registrars in their consideration as a serious issue and, accordingly, by the Finance Act, 2002 the Sub-Registrars’ failure to notice the mentioning of proper market value in the deed has been made a ‘misconduct’ and further the Sub-Registrars are presently liable to pay off the deficient stamp duty from their pocket under Section 63A, which is reproduced below:

63A. Procedure where documents not properly valued.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, where it appears to the registering officer that the value of any document presented for registration is less than the market value determined in the policy made under Section 69, the registering officer shall, for the purpose of realising proper duties and other fees, require the presentant to submit the duties and fees, so required and after realising such duties and fees, he shall register the said document.

(2) Where it is found upon inspection or otherwise that by non-compliance of the provision of sub-Section (1), a document has been registered by a registering officer with improper duties and fees, such non-compliance of the said registering officer shall be deemed to be misconduct and the unpaid amount of duties and fees shall be realised from the concerned registering officer.

53.        From a mere reading of the above provisions of Section 63A, it appears that presently the State is entitled to have its revenue recovered from the Sub-Registrar who allows to register a deed by undervaluing a property.

54.        Was the Sub-Registrar who registered the deed no. 431 dated 11.01.2003 negligent in performing his duty? We find that when the donor gifted the remaining portion of his property to the petitioner vide the registered deed no. 431 dated 11.01.2003, then on 28.12.2004 the Sub-Registrar of Gobindagonj, Gaibandha made a further complaint against the petitioner and her donor alleging that since they have not paid the penalty of Taka 1600.00, which had been ordered by the Collector on 07.02.1996, both their deeds are liable to be cancelled and, accordingly, the Collector had cancelled both the deeds of the petitioner vide his order dated 28.12.2004. This appears to us to be completely a case of bizarre management on the petitioner’s matter by the Sub-Registrar, who was stationed at Gobindagonj, Gaibandha at that point of time, for, while he had an opportunity to notify the petitioner and her donor-father about the mistake/evasion of stamp duty on their first deed, there is nothing on the record to show that Sub-Registrar had done so. In fact, the Sub-Registrar could have arrested the petitioner and her donor-father with the help of the police on the strength of the W/A issued against them on 17.06.1996. Because of the slackness of the Sub-Registrar, Gobindagonj, Gaibandha, who registered the deed no. 431 dated 11.01.2003, the petitioner was not communicated about their mistake/ evasion of stamp duty on the first deed.

55.        Before parting with this judgment, it is pertinent to observe here that by virtue of possessing the registered deeds, the petitioner was supposed to enjoy the property peacefully. However, from the annexed papers it is evident that the Other Class Suit no. 13 of 2008 was filed by the donor’s distant relatives (respondent nos. 5-7) before the learned Joint District Judge, 2nd Court, Gaibandha praying for restraining the petitioner from depositing the deficit stamp duty, which was dismissed by the learned Joint District Judge, 2nd Court, Gaibandha by his order dated 19.10.2008 by allowing the petitioner’s application under Order 7 Rule 11 of the Code of Civil Procedure (CPC). In addition to the above suit, another suit being Partition Suit no. 21 of 2008, which was filed by the said distant relatives (respondent no. 5-7), was also dismissed (withdrawn) on 28.08.2014. The distant relatives of the donor, thus, apparently have been attempting to grab the property by filing frivolous litigations against the petitioner, taking advantage of the negligence of the Sub-Registrars of the Gobindagonj, Gaiandha at first at the time of registering the deed no. 6559 dated 04.05.1993 and subsequently by not pointing out the said mistake to the petitioner on the occasion of registering the deed no. 431 dated 11.01.2003. Had the concerned Sub-Registrar collected the deficit stamp duty of Taka 1475.50 on 04.05.1993 at the time of registration of the deed no. 6559 dated 04.05.1993 or had the concerned Sub-Registrar, who was working in November, 2003 at Gobindaganj under Gaibandha, notified the petitioner about the non-payment of the deficit stamp duty at the time of registering the deed no. 431 on 11.01.2003 executed by the same set of persons (the petitioner and her donor-father), the State would have earned the interest of an approximate amount of Taka 20,000/- (Twenty thousand) in the last 23 years and, further, the invaluable time of this Court that was spent in disposing this case would have been saved. By not doing so, they caused pecuniary loss to the State and hence they are liable to make good to the said loss to the State. Therefore, the said amount of 20,000/- should be compensated to the State by the two concerned Sub-Registrars.

56.        Taking the above all facts into consideration, we are of the view that adjudication of the present Rule through pronouncement of this judgment would remain ineffective, if we do not pass necessary directions upon the concerned authorities on top of making declaration as to the legality of the orders passed by the Collector in Obomullayan Case no 417 of 1994-95. Accordingly, this Court passes the following declaration and directions;

Declaration on the orders passed by the Collector:

It is declared that the orders dated 28.12.2004 & 29.12.2005 and the impugned Memo No. DC/RM/08/180(4) dated 16.06.2008 with respect to deed no. 6559 dated 04.05.1993 passed by the Additional Deputy Commissioner (Revenue), Gaibandha, in the capacity of the Collector of Gaibandha, are illegal and, thus, bear no effect.

Directions upon the IGR:

(1)         The IGR is directed to ask the former Sub-Registrar of Gobindagonj, Gaibandha who was working on 04.05.1993 to pay off the compensation of Taka 10,000/- (ten thousand) to the State and also to ask the former Sub-Registrar serving on 01.11.2003 to pay off the compensation of Taka 10,000/- (ten thousand) to the State by way of submitting treasury challans within one month from the date of receipt of this order upon tracing out their respective present locations, be they in service or in retirement.

(2)         The IGR is further directed to submit an affidavit-in-compliance before this Court on or before 24.08.2016 stating as to whether the above two former Sub-Registrars have deposited the said money in the National Exchequer.

Directions upon the Collector, Gaibandha:

(1)         The Collector Gaibandha is directed to ask the petitioner to appear before him with the deed no. 6559 of 1993 and pay the stamp duty of an amount of Taka 1475.50 + Taka 14755.00 = Taka 16230.50 in total, which is 11 (eleven) times of the deficit stamp duty. In making the above payment the petitioner shall submit the DD or PO observing the procedures laid down in Rule 5 of the Stamp Duties (Additional Modes of Payment) Rules, 2001 within 30 (thirty) days from the date of receipt of this order.

(2)         The Collector of Gaibandha is further directed to issue a certificate under Section 42 of the Stamp Act, after receiving the DD/PO of the amount of Taka 16230.50 from the petitioner and obtaining the confirmation from the concerned bank as to its encashment, in favour of the petitioner stating that the petitioner has paid the appropriate amount of stamp duty plus penalty for the deed no. 6559 dated 04.05.1993.

Direction upon the Petitioner:

The petitioner is directed to pay the deficit stamp duty of Taka 1475.50 plus penalty of an amount of Taka 14755.00 (ten times of the deficit fees) as prescribed in Section 40 of the Stamp Act, which in total stands at Taka 16,230.50, within thirty days from the date of receipt of this Order by way of submitting DD/PO in the Treasury Bank and then deposit the same to the Collector so as to enable him to issue a certificate under Section 42 of the Stamp Act.

Directions upon the Sub-Registrars:

(1)   The former Sub-Registrar of Gobindagonj, Gaibandah who performed his duty on 04.05.1993 is directed to pay a compensation of Taka 10,000/- (ten thousand) to the State by way of submitting treasury challan and the other former Sub-Registrar of Gobindagonj, Gaibandha who was on duty on 01.11.2003 is also directed to pay a compensation of Taka 10,000/- (ten thousand) to the State by way of submitting treasury challan in the Government exchequer within one month from the date of receipt of the order.

(2)   After payment of the above compensation in favour of the State, the two Sub-Registrars are directed either to submit the challans to the IGR or, in the alternative, they may file the same in this Court directly before 24.08.2016 by way of submitting affidavit-in-compliance on behalf of the IGR so as to exonerate the IGR from filing the compliance before this Court.

57.        Resultantly, the Rule is made absolute with the above observations, findings, declarations and directions.

58.        Office is directed to send a copy of this judgment to (1) Inspector General of Registration for Bangladesh (IGR) and (2) the Deputy Commissioner, Gaibandha.

59.        Office is further directed to send down the Nathi (record) of Obomullayan Case No. 417/94-95 to the Deputy Commissioner of Gaibandha at once.

60.        Let the matter appear in the Daily Cause List on or before 24.08.2016 for satisfaction of this Court that the above directions have been complied with by the concerned parties. Thereafter, the file of this writ petition may be sent to the record-room.

Ed.

 



Writ Petition No. 8703 of 2008