M.Palanisamy v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.06.2009CORAMTHE HONOURABLE Mr. JUSTICE S.NAGAMUTHUWrit Petition Nos.13252 to 13256 of 1999 andW.M.P.Nos.19009 to 19013 of 1999M.Palanisamy... Petitioner in W.P.13252/99V.Karuppannan... Petitioner in W.P.13253/99P.Ramasamy Gounder... Petitioner in W.P.13254/99N.Palaniappa Gounder... Petitioner in W.P.13255/99K.Ganesan... Petitioner in W.P.13256/99Vs.1.The State of Tamil Nadu,rep. by its Secretary to Government,Revenue Department,Fort St. George,Chennai – 600 009.2.The Inspector General of Registration,Santhome High Road,Mylapore,Chennai – 600 004.3.The Joint Sub Registrar No.1,(In the Grade of DistrictRegistrar),Karur....Respondents in all W.PsCommon Prayer :- Writ petitions have been filed under Article 226 ofThe Constitution of India to issue a Writ of certiorari calling forthe records of the third respondent issued in Na.Ka.No.1442/99 dated23.04.1999 in WPs.13252 to 13255/99 and Na.Ka.No1446/99 dated27.4.99 (in WP.13256/99) with reference to the document Nos.2265,2264, 2268, 2266 & 1217/92 and quash the same.For Petitionerin all W.Ps : Mr.V.SanjeeviFor Respondentsin all W.Ps : Mr.S.Sivashanmugam, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERWhether the amendment to the proviso to Section 19-B(4) of theIndian Stamp Act, brought in by the Tamil Nadu amendment Act 39 of1999 can be applied retrospectively is the question which has arisenin these writ petitions for consideration.2.In all these writ petitions, the petitioners had purchasedimmovable properties, of which, some are situated in the State ofTamil Nadu and the rest in the State of Kerala, under common saledeeds and they were registered by the Sub Registrar concerned in theState of Kerala. Under Section 67 of the Registration Act, the SubRegistrar concerned, after the registration is over, is required toforward a copy of the sale deed to the jurisdictional Sub Registrarin the State of Tamil Nadu. Section 19-B was introduced in the StampAct making such purchaser to pay differential stamp duty in respectof the properties situated in the State of Tamil Nadu covered insuch common sale deeds. However, the proviso to Sub Section 4 ofSection 19-B of the Act, as it stood originally, provided that nosuch proceeding under Section 19-B(4) of the Act, shall be takenafter a period of four years from the date of registration of theinstruments. The said proviso reads as follows:-"no action under this sub-section shall betaken after a period of four years from thedate of registration of such instrument." 3.The said proviso was amended in the State of Tamil Nadu bymeans of Tamil Nadu Act 39 of 1999 w.e.f 22.02.2000 by which theexpression "from the date of registration of such instrument" theexpression "from the date of receipt of the copy of such instrumentin the State of Tamil Nadu under the Registration Act of 1908(Central Act XVI of 1908)" was substituted. Thus, as per the amendedproviso, the crucial date is not the date of registration of thedocument but the date of receipt of copy of the instrument by thejurisdictional Sub Registrar in the State of Tamil Nadu underSection 67 of the Act. 4.In the cases on hand, the sale deeds in question wereregistered in the State of Kerala on 22.05.1992. And as per the un-amended proviso to Section 19-B(4) of the Act, proceedings underSection 19-B (4) of the Act for collecting the differential stampduty should have been initiated on or before 21.05.1996. But, therespondent did not do so.5.Admittedly, the jurisdictional Sub Registrar in the State ofTamil Nadu received copies of the instruments only on 23.12.1998.Within a period of four years thereafter, the third respondent https://hcservices.ecourts.gov.in/hcservices/ issued the impugned notices under Section 19-B(4) of the Act,calling upon the petitioners herein to explain as to whydifferential stamp duty should not be collected. The said noticesare under challenge in these writ petitions. 6.According to the petitioners, the crucial date forcalculating the period of limitation for initiating proceedingsunder Section 19-B(4) of the Act, in respect of the documents inquestion would be only the date of registration and not the date ofreceipt of copy of the documents by the third respondent. Inessence, it is their contention that the amendment brought in bymeans of Tamil Nadu Act 39 of 1999 will have only prospectiveoperation whereas it is the contention of the respondents that thecrucial date is only the date of receipt of copies of the documentsby the third respondent and the amendment will have retrospectiveoperation. It is further stated by the learned counsel for therespondents that though it is obligatory on the part of the SubRegistrar concerned in the State of Kerala to forward a copy of thedocument soon after the registration, in this case, it was not doneso. Admittedly, the copies were received only on 23.12.1998.Therefore, according to the respondents, the impugned notices arenot barred by limitation.7.To appreciate the rival contentions, it would be worthwhileto analyse the law on the subject at the outset. It has been wellsettled in a catina of decisions of the Hon'ble Supreme Court aswell as various High Courts that the correct mode of interpretationof applicability of an amendment to a statute would be that unlessthe terms of the statute expressly so provide or necessarily requireit, retrospective operation should not be given to a statute so asto take away or impair an existing right or create a new obligationor impose a new liability otherwise than as regards matters ofprocedure. 8.One of the earliest judgments, wherein law on this subjectcame to be analysed is Hoosein Kasam Dada (India) Ltd., v. State ofMadhya Pradesh (AIR 1953 SC 221) wherein, the Hon'ble Supreme Courthas held that "the right of appeal is a substantive right and notmerely a matter of procedure, and this right becomes vested in aparty when the proceedings are first initiated in, and before adecision is given by, the inferior Court, and such a right cannot betaken away except by express enactment or necessary intendment."9.A close reading of the above judgment would make itabundantly clear that a vested right cannot be taken away whilegiving retrospective operation to an enactment or an amendmentbrought to an enactment unless such an intention is either expresslyor implidely shown in the statute itself. In the said judgment, theHon'ble Supreme Court had an occasion to analyse the judgment of https://hcservices.ecourts.gov.in/hcservices/ this Court with approval in Mohamed Hussain Nachiar Ammal v.Commissioner of Income-tax Madras (AIR 1956 Mad.471) in which casethis Court has held as follows:-"In the accounting year ending 31.03.1942the assessee received from her non-residenthusband, sums of money amounting to Rs.9180/-which was remitted to India by bank-draftsobtained in the name of his agent. The agentpaid the amounts return of these items forassessment Proceedings under S.34 of theIncome-tax Act were initiated against her on25.07.1949 after the expiry of 4 years. UnderS.34 of the Income-tax Act, before it wasamended in 1948, the period of limitation was 4years for failure to submit a return.Therefore, the remedy was barred on 31.03.1947.The amendment came into operation on30.03.1948. It was held that the amendmentwhich enlarged the period of re-assessmentcould not be applied. The learned Judges reliedon an earlier Division Bench decision,Ramanathan Chettiar v. Kandappa Goundan, (1950)2 Mad LJ 624: (AIR 1951 Mad 314), where it wasstated by the Division Bench as follows:"It is well settled that the law oflimitation being procedural law, its provisionsoperate retrospectively in the sense that theyapply to causes of action which arose beforetheir enactment. But it is equally well-established that if a right to issue has becomebarred by the provisions of the Act then inforce on the date of coming into force of a newenactment, then such a barred right is notrevived by the application of the newenactment".10.In Govinddas v. I-T.Officer (AIR 1977 SC 552) in paragraphNo.10, the Hon'ble Supreme Court has reiterated the above view asfollows:-"10.Now it is a well settled rule ofinterpretation hallowed by time and sanctifiedby judicial decisions that unless the terms of astatute expressly so provide or necessarilyrequire it, retrospective operation should notbe given to a statute so as to take away orimpair an existing right or create a newobligation or impose a new liability otherwise https://hcservices.ecourts.gov.in/hcservices/ than as regards matters of procedure. Thegeneral rule as stated by Halsbury in Vol.36 ofthe Laws of England (3rd Ed.) and reiterated inseveral decisions of this Court as well asEnglish Courts is that "all statues other thanthose which are merely declaratory or whichrelate only to matters of procedure or ofevidence are prima facie prospective" andretrospective operation should not be given to astatute so as to affect, alter or destroy anexisting right or create a new liability ofobligation unless that effect cannot be avoidedwithout doing violence to the language of theenactment. If the enactment is expressed inlanguage which is fairly capable of eitherinterpretation, it ought to be construed asprospective only...." 11.Similar view has been taken by the Hon'ble Supreme Court inState of Punjab v. Bhajan Kaur (AIR 2008 SC 2276) wherein, it hasbeen held that the amending Act 54 of 1994 amending Section 140 ofthe Motor Vehicles Act is only a prospective legislation.12.In Kasi Prosad v. Moto Lall (AIR 1959 Calcutta 566), aDivision Bench of the Kolkatta High Court has held as follows:-"While considering the question of theretrospective operation of the statute, thenature of the right affected must first beconsidered. Where there is a vested right, anamendment will be considered as prospective soas not to effect the vested right. If the rightis merely procedural then normally there is novested right. Whether limitation is asubstantive right or a procedural right, if atthe time when a change in the law comes intooperation, the right to proceed was alreadybarred under the old Act, then it cannot berevived by virtue of the amendment unless therewas an express enactment therein to thateffect."13.If one looks into these judgments carefully, there can be nodoubt that as per the settled law, a claim which is barred by aspecific provision in an enactment cannot be revived by means of anamendment to the said provision unless such intention has beenshown, either expressly or implidely, in the statute itself. If suchintention is neither expressed in the statute, nor could beinferred, necessarily, the legislation shall be applied onlyprospectively. https://hcservices.ecourts.gov.in/hcservices/

14.Applying the said settled principle of law, if the TamilNadu amendment Act 39 of 1999 amending the proviso to Section 19-B(4) of the Act is analysed, it would be crystal clear that theintention of the legislature is not to have it retrospectively.There can be no controversy that a bar on a claim crystalizes into avested right of the beneficiary and it cannot be stated to be onlyprocedural. Therefore, such a vested right cannot be taken away bygiving retrospective effect to the amendment Act 39 of 1999. In theresult, I hold that the Tamil Nadu Amendment Act 39 of 1999 is onlya prospective legislation.15.In the cases on hand, the period of four years limitationprovided in the un-amended proviso to Section 19-B(4) of the Actexpired as early as on 21.05.1996 itself. From that date it hasbecome the vested right of the petitioners. Indisputably, the showcause notices impugned in these writ petitions were issued onlyafter expiry of the period of four years from the date ofregistration of the sale deeds and so, surely, they are barred bylimitation. 16.A feeble attempt has been made by the learned GovernmentAdvocate to convince this Court to dismiss the writ petitions on theground that the impugned notices are after all only show causenotices and the petitioners have got an alternative remedy of makingtheir submissions before the authority concerned and so the writpetitions are not maintainable. But, I am unable to agree with thesaid contention for the simple reason that mere availability of analternative remedy would not be a bar to entertain writ petitionsunder Article 226 of the Constitution of India. When the impugnednotices have been found to be barred by limitation, there would beno purpose served by directing the petitioners to go before theauthorities concerned to offer their explanations as it would onlybe a wasteful exercise. Therefore, I have to reject the contentionof the learned Government Advocate in this regard.17.In the result, the writ petitions are allowed and theimpugned show cause notices are quashed. No costs. Consequently,connected miscellaneous petitions are closed.jbmSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government,Revenue Department,Fort St. George,Chennai – 600 009.2.The Inspector General of Registration,Santhome High Road,Mylapore,Chennai – 600 004.3.The Joint Sub Registrar No.1,(In the Grade of DistrictRegistrar),Karur.639 001.+ 1 cc to the Government Pleader, SR No.21424+ 1 cc to Mr. V. Sanjeevi, Advocate SR No.21384W.P.Nos.13252 to 13256 of 1999KU(CO)SR/23.6.2009