Raja2. Murugesan v. The Tahsildar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-03-2009CORAM:THE HONOURABLE MR.JUSTICE A.KULASEKARANW.P.No.13456 of 20001. Raja2. Murugesan ..Petitioners Versus1. The Tahsildar Gangavalli Taluk Salem District2. The Village Administrative Officer Ulipuram Village Gangavalli Taluk Salem District ..Respondents Petition filed under Article 226 of The Constitution of Indiapraying for a Writ of Certiorari as stated therein.For Petitioners:Mr. T. Muruga ManickamFor Respondents:Mr. V. Viswanathan Additional Government PleaderORDERThe petitioners have filed this writ petition praying for a Writof Certiorari by calling for the records relating to the un-numberedForm-I dated 01.06.2000 issued under Section 8 of the Tamil NaduRevenue Recovery Act, 1864 on the file of the first respondent hereinin respect of S.No.236/1, Ulipuram Village, Gangavalli Taluk, quashthe same.2.Heard both sides. The property, which is the subjectmatter of this writ petition, was sought to be attached by the firstrespondent by issuing order in Form No.I dated 01.06.2000 invokingSection 8 of the Revenue Recovery Act, 1864, which is challenged inthis writ petition. 3.Mr. Muruga Manickam, learned counsel appearing for thepetitioners submitted that except the impugned communication, no https://hcservices.ecourts.gov.in/hcservices/ notice or order was issued to the petitioners relating to the issueinvolved in this writ petition; that the first respondent issued theimpugned order to attach the immovable property of the petitionerscomprised in Survey No.236/1, which was purchased by them on11.03.1996; that in the impugned order the name of the petitioners'Vendor alone is mentioned and the petitioners name is not found; thatthe petitioners are not liable to pay any amount to any authorities;that in the impugned order, it is alleged that the petitioners'vendor was liable to pay certain arrears of stamp duty to theauthorities under the Registration Act; that in such event, the saidauthorities ought to have issued a Certificate as contemplated underSection 33-A of the Indian Stamp Act, 1899 for which prior enquiry,that too within three years from the date of registration of thedocument are required, but those mandatory conditions were notcomplied with by the respondents prior to the issuance of theimpugned order, moreover, the respondents cannot proceed against theproperty of the petitioners, as the same was transferred in theirname as early as 1996; that assuming for argument sake if Section 8of the Revenue Recovery Act, 1864 is applicable, then there should bea notice of demand in writing by the respondents but no such demandin writing has been served on the petitioners and prayed for allowingthe writ petition.4.On the above contention, this Court heard the learnedAdditional Government Pleader appearing for the respondents, who,relying on the counter affidavit, submitted that the petitioners havepurchased the property in Survey No.236/1 and 236/4, to a totalextent of 3.29 acres from one Nagarani; that the said Nagarani isliable to pay arrears of stamp duty in respect of the said land; thatthe said Nagarani sold the property to the petitioners, hence, therespondents are entitled to collect the said amount from thepetitioners and prayed for dismissal of the writ petition. 5.This Court carefully considered the submission of counselfor both sides and perused the materials placed. It is submitted bythe petitioners that except the impugned communication, no notice ororder was served on them relating to the issue involved in this writpetition. The impugned communication was issued under Section 8 ofthe Revenue Recovery Act, 1864 to recover the alleged arrears ofstamp duty payable by the petitioners' vendor, however, it was notissued in the name of the petitioners, but only in the name of theirvendor., Though they have purchased the property as early as 1996 andtheir names were also stated to have been incorporated in all therecords of the authorities concerned, it is not explained why theimpugned communication was not issued in the name of the petitioners.6.Now, we look into Section 8 of The Tamil Nadu RevenueRecovery Act, 1864, which runs as follows:- https://hcservices.ecourts.gov.in/hcservices/ "8.Rules for seizure and sale of movableproperty.- In the seizure and sale of movableproperty for arrears of revenue, the followingrules shall be observed:-1st – Demand in writing – Defaulter to beserved with a copy.- The Collector, or otherofficer empowered by the Collector in thatbehalf, shall furnish to the person employed todistrain the property of a defaulter, a demand inwriting and signed with his name, specifying thename of the defaulter, the amount of the arrearsfor which the distress maybe issued, and the dateon which the arrears fell due. The personemployed to distrain shall produce the writingwhich, if the arrear together with the batta dueto him under Section 53 be not at once paid,shall be his authority for making the distress,and on the day on which the property may bedistrained, shall deliver a copy of such writingto the defaulter, endorsing thereon a list ofinventory of the property distrained and the nameof the place where it may be lodged or kept.2Nd – Writing to State that the distrainedproperty will be sold.- The writing shall furtherset forth that the distrained property will beimmediately brought to the public sale, unlessthe amount, with (penalty), batta and all theexpenses of the distress, be previouslydischarged.3Rd – Service when defaulter is absent.- Whendefaulter may be absent a copy of the writingwith the endorsement, shall be fixed or left athis usual place of residence, or on the premiseswhere the property may have been distrained,before the expiration of the third day,calculating from the day of the distress."7.Section 8 of the Revenue Recovery Act says that theCollector, or other officer empowered by the Collector in thatbehalf, shall furnish to the person employed to distrain the propertyof a defaulter, a demand in writing and signed with his name,specifying the name of the defaulter, the amount of the arrears forwhich the distress may be issued, and the date on which the arrearsfell due. It is seen from the impugned communication that nothingwhispered about the date on which the arrears fell due. It isfurther seen from Section 8 of the said Act that the authorities, formaking the distress on the date on which the property may be https://hcservices.ecourts.gov.in/hcservices/ distrained shall deliver a copy of such writing to the defaulter,endorsing thereon a list of inventory of the property distrained andthe name or the place where it may be lodged or kept. In this case,the copy of such writing not served on the defaulter i.e., thepetitioners' vendor nor the list of inventory of the propertydistrained is mentioned in the impugned communication. A furtherreading of Section 8 of the Act would make it clear that no where itis permissible to the authorities to effect recovery from theproperty belonging to a person other than the defaulter, though thosepersons have in their possession the property which earlier belongedto the defaulter. The crucial date for determination of theownership of the property in the defaulter would be the one whenprocess for recovery under the Act is sought to be executed againstit. If on that date the property has already changed hands and is nolonger the property of the defaulter, there is no jurisdiction in theCollector to issue process against that property. 8.The learned Additional Government Pleader appearing for therespondents has not cited any valid provisions of law which may givepowers to the authorities to take action against the movable propertyin the hands of the transferree. It will be useful to refer thedecision of this Court reported in (Pappammal vs. The State of TamilNadu, represented by the Tahsildar, Sriperumbadur, Chinglepet) 1977II MLJ 157 wherein it was held thus:-"A bare reading of these provisions makes itquite clear that the Collector or the officerauthorised by him in that behalf can recover thearrears of land revenue only by the sale of themovable and immovable property belonging to thedefaulter. They nowhere permit such recovery tobe made from the property belonging to personsother than the defaulter albeit that such personshave in their possession property which earlierbelonged to the defaulter. The crucial date fordetermination of the ownership of the property inthe defaulter in the defaulter would be the onewhen process for recover under the Act is soughtto be executed against it. If on that date theproperty from which the arrears are to berecovered belongs to the defaulter, it maycertainly be attached and sold in execution ofthe Collector's process. If, however, on thatdate the property has already changed hands andis no longer the property of the defaulter, thereis no jurisdiction in the Collector to issueprocess against that property. It is true thatin the case of land in regard to which landrevenue has not been paid, the right of theCollector to recover it from that land and even https://hcservices.ecourts.gov.in/hcservices/ after it has changed hands is not affected by thetransfer, but that is so because that right isgiven to the Collector by other provisions of theAct, which are contained in Section 2 thereof andwhich declare that any land along with thebuildings upon it shall be regarded as securityof the public revenue. Learned counsel for theState has not been able to point out anyprovision of law, whether contained in the Act orelsewhere, which may given the Collector power tofollow movable property in the hands of thetransferee, and I do not see how the Tahsildarcould issue process against any property belongedto the petitioner even though such property wasearlier owned by the debtor-firm and was sold tothe petitioner subsequent to the date of theLabour Court's award. This was also the viewtaken by Ramakrishnan, J., in P. Kannamba vs.Board of Revenue.3.Holding the action of the Tahsildar tobe without jurisdiction, I accept the petitionand quash the impugned order. The petitionershall have her costs of the proceedings from therespondent State. Counsel's fee Rs.100/-." 9.In this context, it is necessary to look into Section 33-Aof the Indian Stamp Act, which is extracted hereunder:-“33-A.Recovery of deficit stamp duty-(1) Notwithstanding anything contained insection 33 or in any other provisions of thisAct, if, after the registration of anyinstrument under the Registration Act, 1908(Central Act XVI of 1908), it is found that theproper stamp duty payable under this Act inrespect of such instrument has not been paid orhas been insufficiently paid, such duty or thedeficit, as the case may be, may, on acertificate from the Registrar of the districtunder the Registration Act, 1908 (Central ActXVI of 1908) be recovered from the person liableto pay the duty, as an arrear of land revenue.Provided that no such certificate shall begranted unless due inquiry is made and suchperson is given an opportunity of being heard; https://hcservices.ecourts.gov.in/hcservices/ Provided further that no such inquiry shallbe commenced after the expiry of three yearsfrom the date of registration of the instrument. (2)The Certificate of the Registrar ofthe District under sub-section (1) shall,subject only to appeal under sub-section (3), befinal and shall not be called in question in anycourt or before any authority.(3)Any person aggrieved by a certificateof the Registrar of the district under sub-section (1) may appeal to the Chief ControllingRevenue Authority. Any such appeal shall bepreferred within such time, and shall be heardand disposed of in such manner, as may beprescribed.” 10.It is seen from Section 33-A of the Indian Stamp Act thatthe arrears of stamp duty may, on a certificate issued from theRegistrar of the District under the Registration Act, 1908 berecovered from the person liable to pay the duty as an arrears ofland revenue, however, no such certificate shall be granted unlessdue enquiry is made and such a person is given an opportunity ofbeing heard. In this case, the petitioners have stated that theyare not liable to pay the arrears of stamp duty and no certificatewas issued by Registrar to recover the said arrears and even if sucha certificate is issued, the amount could be recovered from theperson liable to pay the stamp duty and not from the petitioners.The enquiry should be commenced within three years from the date ofregistration of the instrument for issuance of the certificate by theRegistrar, besides no certificate issued by the Registrar wasproduced. Even such certificate is issued, opportunity is to beafforded under sub-section (3) of Section 33-A to the aggrievedperson to file an appeal before the Chief Controlling Authority. Inview of the said reasons, it is not difficult to hold that there isno jurisdiction for the respondents to issue process against thepetitioners property. The respondents, indeed, not furnished anydetail or evidence to show the compliance of Section 8 of the RevenueRecovery Act, 1864 as well as Section 33-A of the Indian Stamp Act.11.For the said reasons, the impugned order is quashed. Thewrit petition is allowed as prayed for. No costs. In case, therespondents intended to proceed to recover the amount, they can do soonly by following due process of law.sd/-Asst.Registrar/true copy/rshSub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Tahsildar Gangavalli Taluk Salem District2. The Village Administrative Officer Ulipuram Village Gangavalli Taluk Salem District+ 1 c.c. to Mr. T. Murugamanikkam, Advocate. S.R.No.10472.+ 1 c.c. to The Government Pleader. S.R.No.10918.WP.No.13456 of 2000TS (CO)GSK 20.04.2009.