The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.18531 of 2016 Dinesh Gupta ...... Petitioner -Versus- Certificate Officer, Sub- …... Opposite Parties Collector Office, Jharsuguda and others For Petitioner : Mr. Sanjeev Udgata, Advocate For Opp. Parties : Mr. B. Panigrahi, ASC ----- CORAM: JUSTICE SANJAY KUMAR MISHRA ________________________________________________________________ Date of Hearing and Judgment: 01.11.2023 ________________________________________________________________ S.K. Mishra, J. 1. The Writ Petition has been preferred with a prayer to quash the impugned warrant of attachment dated 01.12.2015, as at Annexure-4, so also the proceeding in Certificate Case No.1 of 2007 pending in the Court of Certificate Officer, Sub-Collector Office, Jharsuguda (Opposite Party No.1). 2. The case of the Petitioner is that pursuant to an auction sale on 21.03.2002, being an auction purchaser, a registered deed of conveyance was executed between the Petitioner and the Orissa State Financial Corporation, shortly herein after, OSFC. The Petitioner took W.P.(C) No.18531 of 2016 Page 1 of 10 possession of the industrial concern in terms of Section 29 of the State Financial Corporations Act, 1951 (shortly, ‘SFC Act’, 1951). The case of the Petitioner is that by virtue of deed of conveyance he was exempted from payment of the stamp duty in terms of the Government Notification dated 14.03.2002. When the matter stood thus, a certificate proceeding vide Certificate Case No.1 of 2007 was initiated against the Petitioner by the Opposite Party No.2 in the Court of Opposite Party No.1 to pay the stamp duty of Rs.8,33,200/- on the basis of audit objection calculated on the total outstanding due to the OSFC by the original borrower and not on the sale consideration, for which the aforesaid deed of conveyance was registered. Accordingly, a notice in Form No.3 under Section 6 of the Odisha Public Demands Recovery Act, 1962, (shortly, “OPDR Act, 1962”) was served on the Petitioner to pay the stamp duty. Pursuant thereto, the Petitioner filed a Petition under Section 8 of the OPDR Act, 1962 denying his liability stating therein that neither the Petitioner was given an opportunity to meet the audit objection nor the matter was ever referred to the Collector for determination of stamp duty and the purported requisition was filed without any certificate by the Opposite Party No.1. It was further stated in the said Petition that it was not served with any certificate along with notice. Thereafter, the Opposite Party No.1 issued warrant of attachment of the movable W.P.(C) No.18531 of 2016 Page 2 of 10 property lying on the schedule land covered under the aforesaid conveyance deed.
Legal Reasoning
3. Mr. Udgata, learned Counsel for the Petitioner draws attention of this Court to Order 13829/R, dated 14.03.2002 issued by the Government of Orissa, Revenue Department and submits, in exercise of power conferred in Sub-Section (1) of Section 9 of the Indian Stamp Act, 1899 (2 of 1899), the State Government, with a view to give effect to certain incentives, declared under Resolution of the Industries Department dated 03.12.2001 on Industrial Policy, 2001, remitted the stamp duly payable under the said Act, in respect of the instruments as specified in Column (2) of the Schedule to the extent that deeds executed for transfer of Industrial Units to a new owner/management under the provisions of the SFC Act, 1951 is fully exempted/remitted from payment of stamp duty. Mr. Udgata further draws attention of this Court to the relevant portion of the deed of conveyance, where in it has been specifically mentioned that said deed is exempted from payment of stamp duty under the Stamp Act, 1899, in view of the Notification dated 14.03.2002. Learned Counsel for the Petitioner submits, despite such exemption from payment of stamp duty, a certificate proceeding was initiated against his client. Being noticed, the Petitioner filed Petition W.P.(C) No.18531 of 2016 Page 3 of 10 under Section 8 of the OPDR Act, 1962 denying liability. Without determining the said Petition under Section 9 of the said Act, 1962, the impugned warrant of attachment of immovable property in Form No. A, as at Annexure-4, was issued by the Opposite Party No.1. On getting such warrant of attachment, the Petitioner filed a Petition on 02.02.2016 (Annexure-5) with a prayer to recall the said warrant of attachment immediately without execution, with further prayer to hear the Petitioner on merit and decide its Petition filed under Section 8 of the OPDR Act, 1962 in terms of Section 9 of the said Act, 1962. Mr Udgata submits, the said application is still pending despite it was clarified by this Court vide Order dated 23.11.2016 that pendency of the present lis shall not be a bar for the Certificate Officer to hear and dispose of the Petition filed by the Petitioner dated 02.02.2016. 4. Though this is a matter of year, 2016 and a direction was given vide Order dated 23.11.2016 to the State Counsel to obtain instruction in the matter and file Counter Affidavit, till date no Counter has been
Decision
filed denying or disputing the averments made in the Writ Petition. 5. Heard Mr. Udgata, learned Counsel for the Petitioner so also Mr. B. Panigrahi, learned ASC for the State Opposite Parties. 6. Before dealing with the prayer made in the Writ Petition, it is apt to reproduce below the relevant portion of the Notification dated 14.03.2002 of the Government of Orissa, Revenue Department. W.P.(C) No.18531 of 2016 Page 4 of 10 “Government of Orissa Revenue Department Order No.Stamp-25/2002.13829/R., Bhubaneswar, dated 14th March, 2002 In exercise of the powers conferred by clause (a) of sub-section (1) of the section 9 of the Indian Stamp Act, 1899 (2 of 1899), the State Government, with a view to give effect to certain incentives declared under Resolution of the Industries Department No. 26115-XIV-HI-26/2001 dated the 3rd December, 2001 on Industrial Policy, 2001, do hereby remit the Stamp duty payable under the said Act, in respect of the instruments as specified in column (2) of the Schedule below to the extent specified against them in column (3) thereof. SCHEDULE Sl. Description of instruments No. Extent of remission of Stamp Duty ----- ------------------------------------------------ -------------- (1) (3) (2) (1) Deed executed for allotment of land by the Full Government to IDCO (2) Decd executed for transfer of land or shed In excess by the Government and IDCO to Industrial Units. of the calculated @ 5% of the land value. (3) Deed Executed for transfer or allotment In excess of Of land by Government or IDCO to Industrial Units after acquisition of private land by the Government or, as the case be, by IDCO the duty calculated @ 5% of the land value. (4) Deed executed for transfer of Industrial Full Units to a new owner/management under the provisions of the State Financial Corporation Act, 1951. W.P.(C) No.18531 of 2016 Page 5 of 10 II. Illustration : xxx By Order of the Governor R.L. Jamuda Commissioner-cum-Secretary to Government” (Emphasis supplied) Similarly, the relevant portion of deed of conveyance dated 14.10.2003 being germane to the present lis, is also extracted below: “The VENDEE shall use the property for industry purpose only. This deed is exempt from payment of stamp duty under the stamp Act vide Government Notification No.Stamp- 25/2002-13829/R, Dt.14th March, 2002.” (Emphasis supplied) 7. Also, for ready reference, Sections 8, 9 and 13 of the OPDR Act, 1962 are extracted below: 8. Filing of petition denying liability –(1) the certificate- debtor may, within thirty days from the service of the notice required by Section 6 or where the notice has not been duly served, then within thirty days from the execution of any process for enforcing the certificate, present to the Certificate Officer in whose office the certificate is filed or to the Certificate Officer who is executing the certificate, a petition, in the prescribed from, signed and verified in the prescribed manner, denying his liability only on the ground that – (a) the certificate dues have been fully or partly paid; or (b) the person on whom such notice has been served is not the person named as certificate-debtor in the certificate: Provided that a certificate-debtor in respect of dues other than those in relation to which the liability under any law for the time being in force is not open to question in a Civil Court may also deny his liability on any other ground; Provided further that no petition under this sub-section shall be entertained by a Certificate Officer unless he is satisfied that such amount of the certificate dues as the W.P.(C) No.18531 of 2016 Page 6 of 10 certificate-debtor may admit to be due from him has been paid. (2) If any such petition is presented to a Certificate Officer other than the Certificate Officer in whose office the original certificate is filed, it shall be sent to the latter officer for disposal. 9. Hearing and determining of such petition – The Certificate Officer in whose office the original certificate is filed may after hearing the petition and taking evidence, if necessary, confirm, set aside, modify or vary the certificate as he deems fit.” 13. When certificate may be executed – No step in execution of a certificate shall be taken until the period of thirty days has elapsed since the date of the service of notice required by Sections 6 and 10 or, when a petition has been duly filed under Section 8, until such petition has been heard and determined: Provided that where the whole or any part of the movable property of the certificate-debtor is liable to attachment under this Act, the Certificate Officer may, at any time for reasons to be recorded in writing direct an attachment of the whole or any part of such movable property.” (Emphasis supplied) 8. From the above, it is amply clear that deed executed for transfer of an industrial unit to a new owner / management under the provisions of SFC Act, 1951, is fully exempted / remitted from payment of stamp duty. Admittedly, the Petitioner being the auction purchaser, OSFC, being authorized under the Provisions of SFC Act, 1951 to sell the property mortgaged and hypothecated in its favour, executed the said deed of conveyance in favour of the Petitioner on 14.03.2002 clearly mentioning therein that the said deed is exempted from payment of stamp duty under the Stamp Act in terms of the Notification of the Government dated 14.03.2002. Despite such W.P.(C) No.18531 of 2016 Page 7 of 10 admitted fact, the District Sub-Registrar, who is the Registering Authority, initiated Certificate Proceeding Case No.1 of 2007 as the Certificate Holder against the present Petitioner in the Court of Certificate Officer, Sub-Collector Office, Jharsuguda. 9. On being noticed under Section 6 of the OPDR Act, 1962, the C.Dr. has filed a Petition under Section 8 of the OPDR Act, 1962 denying his liability taking a specific plea therein that the Certificate Holder had permitted exemption of stamp duty on the deed of conveyance executed by the Orissa State Financial Corporation, who is exempt from payment of stamp duty as per the Government Notification dated 14.03.2002. Paragraph 3 of the said Petition denying liability, being relevant to the present lis, is extracted below: “3. That the certificate holder had permitted exemption of stamp duty on the deed of conveyance executed by Orissa State Financial Corporation who is exempt from payment of stamp duty as per Government Notification No. Stamp-25/2002-13829/R, dated 14th March 2002. The C. Hr. was satisfied that the deed of conveyance presented for registration by the O.S.F.C. was eligible for exemption and he cannot now demand deficit stamp duty acting on the commence of audit staff.” (Emphasis supplied) 10. When the matter stood thus, without determining the said Petition denying liability so also giving opportunity to Petitioner in terms of Section 9 of the OPDR Act, 1962, the Certificate Officer issued the warrant of attachment of immovable property dated 01.12.2015 W.P.(C) No.18531 of 2016 Page 8 of 10 (Annexure-4). On getting the warrant of attachment, the Petitioner, who is the C. Dr. in Certificate Case No.1 of 2007, filed a Petition on 02.02.2016 (Annexure-5) to recall the warrant of attachment of movable property forwarded to Tahsildar, Jharsuguda, with a prayer to hear the Petitioner and determine its Petition denying liability under Section 8 of the OPDR Act, as provided under Section 9 of the said Act, 1962. 11. In view of the stand of the Petitioner, while staying further proceeding in Certificate Case No.1 of 2007 pending before the Certificate Officer, Jharsuguda, this Court rightly observed that pendency of the Writ Petition shall not be a bar to hear and dispose of the Petition filed by the Petitioner dated 02.02.2016. The relevant portion of the said interim Order dated 23.11.2016 is extracted below for ready reference: “ As an interim measure, it is directed that, there shall be interim stay of further proceeding in Certificate Case No.1 of 2007 pending before the Certificate Officer, Jharsuguda till the next date. It is further observed that, pendency of this writ petition shall not be a bar for the Certificate Officer to hear and dispose of the petition filed by the petitioner vide Annexure-5 to the writ petition, to recall the order of attachment and warrant of arrest.” (Emphasis supplied) 12. A query being made during hearing, the learned Counsel for the Petitioner submits, despite such observation/clarification by this W.P.(C) No.18531 of 2016 Page 9 of 10 Court, the Certificate Officer did not bother to decide the said Petition dated 02.02.2016 and the same is still pending for consideration and disposal. 13. In view of the above, this Court is inclined to set aside the warrant of attachment dated 01.12.2015, as at Annexure-4, issued by the Certificate Officer, Jharsuguda in Certificate Case No.1 of 2007. Accordingly, the same is set aside. The Opposite Party No.1 is directed to deal with and dispose of the Petition dated 26.03.2007 filed by the Petitioner under Section 8 of the OPDR Act, 1962 so also the Petition dated 02.02.2016, keeping in mind the Government Notification dated 14.03.2002 (supra) so also the terms of deed of conveyance, as extracted above. Needless to mention here that the Certificate Officer is to follow due procedure as prescribed under Section 9 of the OPDR Act, 1962 while dealing with the Petitions of the Petitioner. The certificate proceeding is to be disposed of within a period of two months from the date of production of the certified copy of this judgment. 14. With the said observation, the Writ Petition stands allowed and disposed of. No order as to cost. Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Nov-2023 19:26:51 Orissa High Court, Cuttack Dated, 1st November, 2023/Padma (S.K. MISHRA) (JUDGE) W.P.(C) No.18531 of 2016 Page 10 of 10