A.Barakath Ali v. The Joint Sub Registrar, Chidambaram, Cuddalore District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.06.2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.20040 of 2007A.Barakath Ali.. Petitioner-vs-1.The Joint Sub Registrar, Chidambaram, Cuddalore District 2.The Collector (Stamps) cum- Assistant Collector Chidambaram, Cuddalore District.3.The Special Tahsildar Stamps – Cuddalore... Respondents Writ petition is filed under Article 226 of the Constitution ofIndia for issuance of Writ of Certiorari to call for the records inconnection with the order of the 2nd respondent dt. 08.01.2004 inC.Pa.No.5443/01-02 and quash the same.For Petitioner : Mr.R.Srinivas For Respondents: Mr.V.R.Thangavelu, AGPO R D E RWith the consent of the learned counsel appearing on eitherside, the Writ Petition itself has been taken up for consideration.2.A Challenge has been made to an order passed by the secondrespondent in C.Pa.No.5443/01-02 dated 8.01.2004, in and by whichthe petitioner's property has been valued and a deficit Stamp Duty ofRs.1,86,862/- has been ordered to pay.3.According to the petitioner, he is the native ofChidambaram and he is also an NRI doing business in Saudi Arabia. Hepurchased a property situated at Survey No. 302 and 301 and DoorNo.98-A, East Car Street, Chidambaram, with old building throughs aregistered Sale Deed dated 29.6.2001, registered as Document No.2820of 2001, in the office of the first respondent. The said documentwas not released and it was with held. It is his further case that https://hcservices.ecourts.gov.in/hcservices/ the second respondent has without knowledge conducted an enquiryinto the market value of the property and determined the stamp dutypayable thereon. According to the petitioner, he did not receive anynotice or summon for any enquiry from any of the respondents and alsodid not receive any notice in Form I or Form II or any final orders;none of the notices contemplated in law were sent to the petitioner;the petitioner was not given any opportunity to demonstrate thecorrectness of the description and value of the proprty shown in thedocument and the stamp duty paid by him and he was not summoned forany inspection.4.It is also his further case that on 21.5.2007, he receivedan order dated 15.5.2007, passed by the third respondent holding thatan amount of Rs.3,28,906/- was due from him as Stamp Duty and he hasto appear before the third respondent regarding the same on31.5.2007. Accordingly the petitioner appeared before the thirdrespondent on 31.5.2007 and he was also informed that a final orderhas been passed by the respondent on the Stamp Duty payable by himand therefore he has to pay the same. The petitioner requested thethird respondent for a xerox copy of the said final order dated8.1.2004 and only then he perused the order.5.The petitioner claims that the second respondent has notfixed the market value himself and it was fixed relying on somereport of the first respondent, which was never served on thepetitioner. Therefore, the conclusion of the second respondent isillegal and the order suffers from legal infirmity, primarily on theaspect of lack of opportunity to the petitioner, as it was passedwithout notice or information, without affording an opportunity todefend himself, without following the procedure contemplated underthe law and with non-application of mind. Hence, the above WritPetition has been filed.6.The respondent has filed a counter affidavit on on hisbehalf and on behalf of the other respondents and it is stated thatthe writ petition is not maintainable in law. It is stated that onproper intimation to the petitioner, the Joint-I Sub Registrar,Chidambaram had sent a report enclosing a original document No.2820dated 29.11.2001 and relevant records to the Special Deputy Collector(Stamps), Cuddalore, requesting to take action under section 47A(1)of the Indian Stamps act, 1899 (hereinafter referred to as the Act).Thereafter it was registered in the M.R. Register as M.R.No.5443/01-02 and then Form 1 Notice bearing No.C.Pa.5443/01-02 dated 28.3.2002was sent to the writ petitioner by post calling for hisrepresentation, if any objection against the valuation of theregistered property within 21 days. The petitioner has submitted hisexplanation subsequently with reference to Rule 6 of the said TamilNadu Stamp Rules 1968 (hereinafter referred as the Rules), an orderof estimated value of the property and the deficit stamp duty to be https://hcservices.ecourts.gov.in/hcservices/ remitted thereon along with Form II notice calling upon him to lodgehis objections, if any to such determination of the market value on26.6.2002 at Taluk Office, Chidambaram before the third respondent.The said notice was sent to the petitioner in his OfficeRef.C.Pa.No.5443/01-02 dated 13.6.2002 by post. However, he did notlodge any objection and appear before the Special Deputy Collector(Stamps) on that day. Therefore, on sending prior notice dated20.9.2002 by post, the third respondent inspected the allegedproperty on 25.9.2002 along with the staff and made an enquiry aboutthe present valuation of the property and reported the facts beforethe Special Deputy Collector (Stamps) Cuddalore. Meanwhile, the saidJoint-I Sub Registrar, Chidambaram had also sent a notice inRef.No.2039/2002 dated 30.9.2002 under the 'Samathan Scheme'informing the Government concession for settlement on payment of 60%of the deficit stamp duty and its registration fees to the writpetitioner. But he did not come forward to avail the said Governmentconcession. Thereafter on the strength of the report of the thirdrespondent, the Collector (Stamps) and Assistant Collector,Chidambaram, had issued a final order in Proceedings No. Cpa.No.5443/01-02 dated 08.01.2004 under section 47A(4) of the Act andalso with reference to Rule 7(1) of the Rules and it was sent to thepetitioner immediately by post. Accordingly the petitioner was givenopportunities by sending Form-I and Form-II Notices which were sentto his postal address, but he did not avail the opportunities andthereafter on sending intimation by post, the third respondent alongwith Sub-Inspector of Survey and the Village Administrative Officer,Chidambaram, had inspected the alleged property and made an enquiryin public. The respondent claims that the petitioner is N.R.I. andhe would have been going on abroad frequently, he had not disclosedhis foreign address anywhere and hence, the Officers are notresponsible for his ignorance. Therefore, the order of the secondrespondent is in accordance with the Act and the Rules and also it ismade under the Tamil Nadu Stamp (Prevention of Under Valuation ofInstruments) Rules, 1968. As the respondents have followed theprocedure contemplated, issued notices in Form I and Form II andafforded opportunities and therefore the respondent has proceededwith further proceedings. In the above said contention, therespondents submits that the Writ Petition is not maintainable andtherefore they prayed for dismissal of the same. 7.Heard Mr.R.Srinivas,learned counsel appearing for thepetitioner and Mr.V.R.Thangavelu,learned Additional GovernmentPleader appearing on behalf of the respondents.8. A primary contention was raised by the learned counsel forthe petitioner that the petitioner is a NRI having a permanentaddress in his native place in Chidambaram and the property purchasedhas been registered as document No.2820 and therefore, therespondents have to follow the procedure under section 15 of theRules in serving the notices either by tendering the notice or order https://hcservices.ecourts.gov.in/hcservices/ to the person concerned or his counsel or authorised agent; or tosome adult member of the family; or to the person concerned byregistered post acknowledgment due; or in the above of any modes ofservice is practicable, by affixing the notice or order in someconspicuous part of the last known place of residence of business ofthe person concerned. Since the respondents have not followed theRules, the petitioner has been deprived of availing of theopportunities and therefore, the impugned order suffers from legalinfirmities.9.On the other hand, the learned Additional GovernmentPleader controverting the submissions made by the petitioner submitsthat the petitioner has attended the enquiry and availedopportunities. He would also contend that the respondents haveinspected the properties in the presence of the public and found thatthere is an under valuation and therefore the impugned order hasbeen.10.I have heard the submissions made by the learned counselappearing on either side, perused the materials annexed in this WritPetition. I have also perused the connected relevant recordsproduced as per the direction of this Court.11.A perusal of the documents and the records produced beforethis Court would reveal that the petitioner purchased the propertysituated in at Survey No. 302 and 301 and Door No.98-A, East CarStreet, Chidambaram, with old building through a registered Sale Deeddated 29.6.2001, registered as Document No.2820 of 2001, in theoffice of the first respondent. It is also seen that certainproceedings have been initiated thereafter. From the averments ofthe respondent, it is seen that a report has been prepared and alongwith the original document it has been sent to the Special DeputyCollector (Stamps), Cuddalore, requesting to take action undersection 47-A(1) of the Act and thereafter they claim that Form Inotice bearing No.C.pa.5443/01-02 dated 28.3.2002 was sent to thepetitioner, calling upon his representation, if any objection againstthe valuation of the registered property within 21 days and there wasno explanation submitted by the petitioner. Thereafter Form IInotice intimating that the deficit stamp duty has to be paid by thepetitioner and calling upon the petitioner to file the objection ifany to such determination of the market value and the deficit stampduty. The respondent claims that the notice dated 13.6.2002 was sentby post and thereafter the petitioner did not lodge any objection andappear before the Special Deputy Collector (Stamps) on that date.The respondents appearred to have inspected the property andconducted an enquiry and again a notice dated 30.9.2002 was sent tothe petitioner intimating that there is a 'Samadhan Scheme' forsettlement on payment of 60% of the deficit stamp duty and itsregistration fees and the petitioner may avail the scheme. Even thenthe petitioner has not come forward to avail the said concession. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the respondents passed the final roder on 8.1.2004.12.A perusal of the records would also reveal that the finalorder dated 8.1.2004 was despatched from the Office and to examinewhether it was sent to the petitioner as per Rules contemplated thatin case of an individual person, the final order to be served bydelivering or tendering the notice or order to the person concernedor his counsel or authorised agent; or by delivering or tendering thenotice or order to some adult member of the family; or by sending thenotice or order to the person concerned by registered postacknowledgment due; or if none of the aforesaid modes of service ispracticable, by affixing the notice or order in some conspicuous partof the last known place of residence of business of the personconcerned. 13.It is seen from the records that none of the aboveprocedures have been followed by the respondents in despatching theabove orders. Therefore, the orders suffer from the legal infirmityas it was not served to the petitioner as per Rule 15 of the Act,which provides for mode of service of notice and orders to theparties. As the procedure contemplated under the relevant Rules hasnot been followed by the respondents and notices appear to have notbeen served and therefore the petitioner has not availed theopportunities. If the notices would have been served as prescribedunder law, the opportunity of hearing and availing concession of theGovernment, could have been followed by the petitioner and contestedthe matter in the manner known to law. It is also seen from theaverments of the respondents' counter that the enquiry conducted andthe procedure followed in conducting the enquiry are not done in thepresence of the petitioner. Therefore, that the procedurecontemplated for conduct of enquiry in the presence of the petitionerwould be an appropriate manner and in the absence of such anenquiry, the action of the respondents appear to be against theprocedure contemplated. Therefore in that count also the ordersuffers from legal infirmity.14. In the light of the above procedural irregularity as therewas non service of notice to the petitioner in the manner known tolaw and also in violation of Principles of Natural Justice as thereis no opportunity of hearing and threfore, the impugned order suffersfrom legal infirmity and it is unsustainable. Accordingly, theimpugned order of the second respondent dated 08.01.2004 passed inC.Pa.No.5443/01-02, set aside and the matter is remitted to thesecond respondent for fresh consideration following the procedurecontemplated under the law and after affording an opportunity ofhearing and then pass appropriate orders, within a period of eightweeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/

15.The Writ Petition is allowed on the above terms. No costs.Consequently, connected Miscellaneous Petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar rpaTo1.The Joint Sub Registrar, Chidambaram, Cuddalore District 2.The Collector (Stamps) cum- Assistant Collector Chidambaram, Cuddalore District.3.The Special Tahsildar Stamps – Cuddalore.1 cc To The Government Pleader, SR.240951 cc To Mr.R.Srinivas, Advocate, SR.24044W.P.No.20040 of 2007RSY(CO)SRA 7/7/2009