Mrs.Surekha v. Department of Revenue, Fort St. George

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.2.2008 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.7388 of 1999Mrs.Surekha .. Petitioner vs. 1. The Commissioner and Secretary to the Government, Department of Revenue, Fort St. George Madras – 92. The Inspector General of Registration Santhome High Road, Mylapore Madras – 600 0043. The District Registrar Registrar of Assurances South Madras, Saidapet Chennai-35 .. RespondentsThis writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Certiorarified Mandamusto call for the communication in No.I No.20/B1/97, dated 18.8.1997, onfile of the third respondent and quash such proceedings dated 18.8.1997as it is vitiated by an error apparent on face of the record andfurther directing the third respondent to return the sale deeds pendingdocuments no.P 535/96, dated 29.3.1996 that is a sale deed forconsideration of Rs.2,80,250/- executed by Ramaswamy Mudaliar, Agent ofUday Malik relating to the sale of immovable property in Venpushnam,Mahabalipuram Village, Chengai MGR District, in R.S.No.245/1C2B, paimashNo.1434 after collecting only the deficit stamp duty and aftercompleting the necessary procedures for registration of sale. For petitioner : Mr.C.Ramakrishna Senior Advocate for Mr.K.Viswanath For respondents : Mr.V.Manoharan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard Mr.C.Ramakrishna, the learned counsel for Mr.K.Viswanath,appearing for the petitioner and Mr.V.Manoharan, the learned GovernmentAdvocate, appearing for the respondents.2. The petitioner has preferred the present writ petition prayingfor a writ of Certiorarified Mandamus, invoking Article 226 of theConstitution of India, seeking to quash the notice, dated 18.8.1997,issued by the third respondent in Ref.No.I No.20/B1/97, calling upon thepetitioner to pay a penalty of 10 times the deficit stamp duty, underSection 40(1)(b) of The Indian Stamp Act, 1899, as amended by The TamilNadu Amendment Act 24 of 1975, (hereinafter referred to as 'the Act')and to direct the third respondent to register the sale deed presented,on 29.3.1996 and to return the same after the completion of thenecessary formalities. 3. One of the main contentions raised on behalf of the petitioneris that the third respondent had imposed the penalty of 10 times thedeficit stamp duty, by a letter, dated 18.8.1997, without giving thepetitioner an opportunity to pay the deficit stamp duty and withoutadhering to the principles of natural justice. It has also beensubmitted that the notice, dated 18.8.1997, issued by the thirdrespondent was received by the petitioner, on 28.8.1997. By the saidnotice issued by the third respondent, the petitioner was directed topay the deficit stamp duty, along with the penalty, within a period ofone week from the date of receipt of the notice. Subsequently, theefforts taken by the petitioner to pay the deficit stamp duty for thereturn of the document have been unsuccessful. According to the impugnednotice of the third respondent, dated 18.8.1997, the petitioner was topay the deficit stamp duty of Rs.33,589/-, together with a penalty ofRs.3,85,890/-, being 10 times the deficit stamp duty, amounting to atotal sum of Rs.3,69,479/-.4. It is stated by the learned counsel appearing for the petitionerthat when an instrument is produced before the authority concerned, hecould impound the same if it appears to the said authority that suchinstrument is not duly stamped, invoking the powers vested in him, underSection 33-A of the Act. If it is found, after registration, that theproper stamp duty has not been paid for registering the said instrument,the duty or the deficit to be paid could be recovered as arrears of landrevenue, based on the necessary certificate issued by the concernedauthority. 5. It has been further stated that Section 40 of the Act would notbe applicable to the present case. Clause 2 of Section 47-A of the Actspecifies that the market value of the property and the duty payablethereon ought to be determined only after the parties concerned aregiven a reasonable opportunity of being heard and after holding an https://hcservices.ecourts.gov.in/hcservices/ enquiry in such manner as may be prescribed by the rules made under theAct. After such determination, the persons concerned would be given anopportunity to pay the difference in the amount of duty liable to bepaid, prescribing a specific period for the payment of the amount. Anyperson aggrieved by such an order may appeal to such authority as may beprescribed for the hearing of such appeal. By issuing the impugnedproceedings, under Section 40(1)(b) of the Act, the third respondent hascircumvented the procedures established by law. Thus, the petitioner hasbeen adversely affected due to the irreparable monetary loss and mentalagony caused to him. The third respondent has fixed the penalty amountwithout hearing the petitioner and without giving proper reasons forfixing the amount liable to be paid by the petitioner. When there are noguidelines prescribed for the third respondent to follow, whileexercising the discretionary powers vested in him, to decide the penaltypayable under Section 40 (1)(b) of the Act, such a provision cannot bevalid as it is arbitrary and ultra vires the constitution of India,being contrary to the principles enshrined in Article 14 of the IndianConstitution. Without following the principles of natural justice, thethird respondent had concluded that the petitioner had under valued theinstrument and had paid the deficit stamp duty with the malafideintention of gaining unlawfully. 6. It is further stated that the petitioner has no alternativeremedy as it is clear that the provisions of Section 56 of the Act wouldnot be applicable to the case of the petitioner. The Collector or thedesignated authority ought to have applied the provisions of Section 47-A of the Act by conducting an enquiry, giving the petitioner areasonable opportunity of being heard and by prescribing a specificperiod for the deficit stamp duty to be paid by the petitioner, if any.Since no such enquiry was conducted before the impugned order had beenpassed by the third respondent, it is without jurisdiction andtherefore, it is illegal and invalid in the eye of law. 7. Mr.C.Ramakrishna, the learned counsel appearing for thepetitioner had placed the following decisions before this Court insupport of his contentions.7.1. The learned senior counsel had placed reliance on the decisionof the Supreme Court in A.N.PARASURAMAN Vs. STATE OF T.N. ((1989) 4 SCC683) to show that the determination of legislative policy andformulation of rule of conduct are essential legislative functions whichcannot be delegated. The delegated authority can only be left with thetask of implementing the object of a statute after the legislature laysdown adequate guidelines for the exercise of the powers enshrinedtherein. Relying on the said decision, the learned counsel had submittedthat the impugned order cannot be held to be valid as the thirdrespondent had no delegated power to pass the impugned proceedings andthere are no guidelines prescribed for the exercise of such power. https://hcservices.ecourts.gov.in/hcservices/

7.2. The decision of the Supreme Court in KRISHNA MOHAN (P) LTD.,Vs. MCD (2003 L.W. SCC Vol.7), had been relied on to state thatdelegation of unguided and uncanalised legislative powers is invalid. 7.3. It was pointed out that the Supreme Court in SANJANA M.WIG Vs.HINDUSTAN PETROLEUM CORPN. LTD., ((2005) 8 SCC 242) had held that accessto justice by way of public law remedy would not be denied when a lisinvolves public law character or involves a question arising out ofpublic law functioning on the part of the respondent and when the forumchosen by the parties would not be in a position to grant appropriaterelief.7.4. The decision of the Supreme Court in STATE OF H.P. Vs. GUJARATAMBUJA CEMENT LTD., ((2005) 6 SCC 499) had also been relied on to statethat the power relating to alternative remedy has been considered to bea rule of self-imposed limitation. It is essentially a rule of policy,convenience and discretion and never a rule of law. Despite theexistence of an alternative remedy, it is within the jurisdiction ofdiscretion of this Court to grant the relief, under Article 226 of theConstitution of India. Thus, the learned counsel appearing for the petitioner hadsubmitted that it would be a futile exercise for the petitioner to seekhis remedy against the impugned order of the third respondent byinvoking the alternative remedy alleged to be available under the law. 8. Per contra, Mr.V.Manoharan, the learned Government Advocateappearing for the respondents, had submitted that the impugnedproceedings is only a show cause notice asking the petitioner to submitan explanation, if any, within the period specified therein. Evenotherwise the petitioner could have availed the alternative remedy underSection 56 of the Indian Stamp Act, 1899, while challenging theimpugned proceedings of the third respondent. 9. The learned Government Advocate appearing for the respondentshad relied on the decision of the Division Bench of this Court in JOINTSUB-REGISTRAR-I Vs. PRASANTH CHANDRAN (2005 (4) CTC 417), in support ofhis contentions. In the said case, the Division Bench of this Court hadheld that by a Government Order in G.O.Ms.No.736, Revenue, dated15.3.1971, it was notified that all registrars and sub-registrarsappointed under The Indian Registration Act have also been notified toexercise the powers for the purpose of the various Sections of theIndian Stamp Act, 1899, as mentioned in the said order. It has also beenheld that it was open to the aggrieved person to challenge theproceedings issued under Section 40(1) (b) of The Indian Stamp Act,1899, by approaching the Chief Controlling Revenue Authority, underSection 56 of the Act, by placing reliance on an order passed by thisCourt in TAMIL NADU STATE TRANSPORT CORPORATION (VILLUPURAM DIVISION II) https://hcservices.ecourts.gov.in/hcservices/ LTD. Vs. C.DURAI AND ANOTHER (2005 WLR 136) wherein it was held thateven if there was a violation of natural justice, the writ petitioncould still be dismissed if there was an alternative remedy. TheDivision Bench had also relied on the decision of the Supreme Court inU.P. STATE BRIDGE CORPORATION LTD. Vs. U.P. RAJYA SETU NIGAM KARMCHARISANGH, (1998 (4) SCC 268) wherein the Supreme Court had held that ifthere was a specific remedy available under a statute, the writ petitionshould not be entertained. 10. The learned Government Advocate appearing for the respondentshad also pointed out that in many writ petitions, which had arisen undersimilar facts and circumstances, this Court had directed the authoritiesconcerned to register the document in question and to return the same onpayment of the amount, as per the original demand. It was also held thatthe authorities concerned would have the liberty to challenge the orderpassed by the registering authority before the appropriate forum in anappropriate manner. 11. It was pointed out that in the present case, the Registrarconcerned had been directed to register and return the document by wayof an interim order passed by this Court following the decision of theFirst Bench of this Court, dated 16.12.1997, made in W.A.Nos.1114 to1124 of 1997. Pursuant to the said order, the document presented by thepetitioner had been registered and returned to the petitioner.12. The learned counsel appearing for the petitioner, whilereiterating his contentions, had attempted to distinguish the presentcase from the cases cited by the learned Government Advocate appearingfor the respondents. The learned counsel appearing for the petitionerhad submitted that there is no lis existing for the petitioner toagitate and there is no provision for an alternative remedy ascontemplated by the decisions of this Court or as stated by the learnedGovernment Advocate appearing for the respondents. Once it is found thatthe third respondent has no authority or jurisdiction to issue theimpugned proceedings, and that too without following the principles ofnatural justice, the impugned proceedings ought to be declared to beillegal and void and not binding on the petitioner. 13. Considering the submissions made by the learned counselsappearing for the parties concerned, this Court is of the consideredview that the issues involved in the present case have been decided bythe various order of this Court. The order passed by the First Bench ofthis Court in W.A.Nos.1114 to 1124 of 1997 and the order passed by theDivision Bench of this Court in JOINT SUB-REGISTRAR-I Vs. PRASANTHCHANDRAN (2005 (4) CTC 417) would be applicable to the present case aswell. Even though the concept of alternative remedy has been considered https://hcservices.ecourts.gov.in/hcservices/ to be a rule of self-imposed limitation and it may essentially be a ruleof policy, convenience and discretion and never a rule of law, once aDivision Bench of this Court had held in similar circumstances, that theaggrieved person ought to avail the alternative remedy provided by thestatute, it is not open to this Court to take a different view. In suchcircumstances, it is held that the writ petitioner has not shownsufficient cause or reason to interfere with the impugned proceedings.Hence, the writ petition stands dismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst.Registrarlan1. The Commissioner and Secretary to the Government, Department of Revenue, Fort St. George Madras – 92. The Inspector General of Registration Santhome High Road, Mylapore Madras – 600 0043. The District Registrar Registrar of Assurances South Madras, Saidapet Chennai-35 +1 cc to Mr.K.Viswanath, Advocate, SR.No.10928.Ksk (Co)krd / 13.03.08 Writ Petition No.7388 of 1999