Madras High Court
Jt. Sub Registrar-I vs Prasanth Chandran on 11 July, 2005
Equivalent citations: AIR2005MAD354, 2005(4)CTC417, (2005)3MLJ628, AIR 2005 MADRAS 354, (2005) 3 MAD LW 414, (2005) 199 REVDEC 685, (2005) 3 MAD LJ 628, (2005) 35 ALLINDCAS 546 (MAD), (2005) 4 CTC 417 (MAD)
Author: F. M. Ibrahim Kalifulla
Bench: Markandey Katju, F.M. Ibrahim Kalifulla
JUDGMENT F. M. Ibrahim Kalifulla, J.
1. The Joint Sub Registrar-I, District Registrar Office, Coimbatore is the appellant. The challenge is to the order of the learned single Judge dated 21-9-2004 in W.P. No. 15449 of 2004.
2. By the impugned order, the respondent's writ petition challenging the notice dated 19-3-2004 came to be allowed with a further direction to the appellant herein for registration of the document presented by the respondent within a period of 15 days and for the release of the same.
3. The brief facts which led to the filing of the writ petition, are required to be stated.
There was a partition between the respondent, his father and his brother on the one side and the paternal uncle and his sons on the other side, by a deed dated 22-8-2003. Under the said document, the respondent was allotted 'A' Schedule property while 'B' Schedule property was allotted to the paternal uncle and his children. That part of the deed by which, "A" Schedule property came to be allotted to the respondent is found in Clause (1) of the document which reads as under :
(1). With the consent and concurrence of all parties and by way of family arrangement, the properties set out in Schedule 'A' hereunder is allotted to Mr. Prasanth Chandran, No. 3 of the PARTIES OF THE FIRST PART exclusively, to be held and enjoyed by him as on absolute owner thereof. The allotment of the 'A' Schedule property as above to Mr. Prashanth Chandran, is accepted and acknowledged as the allotment of the property in full and final settlement of the rights of the PARTIES OK THE FIRST PART IN TOTO."
4. The document was stated to have been presented immediately after its execution before the appellant. Thereafter by a notice dated 19-3-2004, the appellant held that the said document has been lying in its office as 'Pending Document' bearing No. 142/ 2003, inasmuch as the recitals contained in the said document would fall within provision of Section 5 of the Indian Stamp Act and therefore, it was impounded for payment of deficit stamp duty and registration fee as well as penalty. In the said notice, after referring to Clause (1) and (2) of the document, the appellant also reached a conclusion that it required collection of deficit stamp duty of Rs. 2,66,530/-, deficit registration fee of Rs. 66,700/- apart from penalty of Rs. 5000/-, in all a sum of Rs. 3,38,230/-. While directing the respondent to show cause why the deficit stamp duty and registration fee along with penalty should not be collected, it was also held that the respondent could prefer an appeal within the time stipulated, namely, 15 days of the receipt of the said letter dated 19-3-2004. The respondent submitted his reply dated 5-4-2004, contending that it was purely a partition deed, that in a partition deed, all the co-sharers need not be allotted properties, that the properties partitioned under the document can be allotted to one or some sharers to the exclusion of others and therefore, the said document cannot be construed as a composite deed of partition as well as release. Thereafter, the appellant is stated to have passed an order dated 7-5-2004, holding that the explanation submitted by the respondent was not convincing and therefore, a sum of Rs. 2,66,530/- by way of deficit stamp duty along with a sum of Rs. 5000/- by way of penalty was being levied. The said order also stated that if the respondent is aggrieved against the said order, he can file his appeal.
5. The respondent filed the present Writ Petition on 20-5-2004. In the affidavit filed in support of the Writ Petition, there is no reference to the order dated 7-5-2004. The challenge was only to the earlier show cause notice dated 19-3-2004. On behalf of the appellant, a counter affidavit was filed on 29-7-2004, in which, it is stated that after due consideration of the respondent's reply, the earlier order dated 19-3-2004 was confirmed and that 30 days time was given to enable the respondent to approach the Chief Controlling Revenue Authority and Inspector General of Registration by invoking Section 56(1) of the Stamp Act. It was in the above said background, the impugned order came to be passed by the learned Judge.
6. Assailing the said order, the learned Government Pleader would contend that having regard to the nature of allotment, made in favour of the respondent in respect of the 'A' Schedule property under Clause (1) of the deed in question, the document was treated as Partition-cum-Release deed, therefore, the appellant had to impound the document for want of deficit stamp duty as well as deficit registration fee, and since the explanation of the respondent was not acceptable, the final order came to be passed on 7-5-2004. According to the learned Government Pleader, the impounding of the document and the order demanding deficit stamp duty and registration fee would fall under Section 33(2), 40 and the other connected provisions of the Stamp Act and therefore, the remedy of the respondent is to file an appeal before the Chief Controlling Revenue Authority (Inspector General of Registration) by invoking Section 56 of the Indian Stamp Act.
7. On the other hand. Mr. M. S. Krishnan, learned counsel appearing for the respondent would contend that if at all the appellant wanted to impound the document as Joint Registrar, the appellant should have forwarded the instrument to the Collector after the impounding as per Section 38(2) of the Indian Stamp Act, who alone could have exercised his powers under Section 40 of the Act to pass appropriate orders as to whether or not any further deficit stamp duty was payable. According to the learned counsel only thereafter, if any doubt arise as to the amount of duty chargeable on the instrument, the Collector could make a reference to the Chief Controlling Revenue Authority as per Section 56(2) of the Stamp Act. The learned counsel would therefore contend that going by the nature of the orders passed by the appellant, there was no scope for the respondent to invoke the remedy provided under Section 56(2) of the Act.
8. We have heard the learned Government Pleader for the appellant as well as the learned counsel for the respondent.
Under Section 31 of the Indian Stamp Act, the Collector has been empowered to determine the duty (if any) with which in his judgment, the instrument that is brought before him is chargeable whether such instrument was executed or not and whether properly stamped or not. Under Section 33(1)(b), irrespective of what is provided under Section 31, the Collector before whom any instrument is brought for determining the duty with which the instrument is chargeable can impound the same if such instrument is not duly stamped. Under Section 40(1)(b) of the Act, the Collector, who after impounding an instrument under Section 33 is of the opinion that such instrument is chargeable with duty is not duly stamped, can require the payment of proper duty or the amount required to make up the same, together with a penalty of five rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees. While Section 33, 38 and 40 fall under Chapter IV of the Act. Section 56 of the Act prescribes that the powers exercisable by a Collector under Chapter IV and V would be subject to the control of the Chief Controlling Revenue Authority. The Collector himself while acting under Section 40 of the Act, develops any doubt as to the amount of the duty with which any instrument is chargeable, can draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority. Thereafter, it is for the Chief Controlling Revenue Authority to consider the case and send a copy of its decision to the Collector to proceed further. That apart, under Section 57 of the Act, the Chief Controlling Revenue Authority himself can refer any matter referred to it under Section 56(2) or otherwise which comes to its notice for further reference to the High Court under Sub-section (2) of Section 57 which is to be decided by not less than three Judges of the High Court.
9. The learned Government Pleader brought to our notice certain G.Os. issued in pursuance of Section 2(9)(a) and (b) of the Indian Stamp Act. Based on the above provisions and the relevant notifications, the submissions made on behalf of the appellant is that by virtue of Section 2(9)(a)(b) of the Stamp Act, G.O.Ms. No. 736 Revenue dated 25-3-1971 came to be issued, under which, all Registrars and Sub-Registrars have been notified as "Collector" in respect of powers to be exercised as such under certain provisions of the Stamp Act, that such notification included the power exercisable under Sections 31, 32 as well as 40 of the Act. It is therefore, contended that the proceedings impugned in the writ petition, dated 19-3-2004 as well as the subsequent order dated 7-5-2004 was valid in law. Consequently, it was submitted that the only remedy available to the respondent was to approach the Chief Controlling Revenue Authority under Section 56(1) of the Act by way of a revision.
10. We find force in the submissions of the learned Government Pleader. On a perusal of the Government Orders appended to Section 2(9) of the Act, we find that certain Officers have been notified as Collectors for the purpose of exercising the powers conferred under Sections 31, 32, 38 and 40 of the Indian Stamp Act noted against them within the limits of their jurisdiction. In Serial No. 4, apart from the Personal Assistant to the Inspector General of Registration, all District Registrars of the Registration Department have been notified as "Collectors" for the purpose of Sections 31, 32, 38(2), 40, 41, 42, 48 and 56 and 70 of the Act. By a subsequent notification under G. O. Ms. No. 736 Revenue dated 15-3-1971, all Registrars and Sub-Registrars appointed under the Indian Registration Act have also been notified in the same manner. The learned counsel for the respondent obviously seemed to have failed to take note of the above referred to notifications, in and by which, the respective District Registrars have been notified to act as Collectors under Section 2(9) of the Act for the purpose of Sections 31, 32, 38 and 40 of the Act.
11. A conspectus reading of Sections 31, 33(2) and 40(1)(b) along with the above referred to Notifications stated to have been passed under Section 2(9) of the Indian Stamp Act, and the Indian Registration Act, makes it clear that whomever has been notified as "Collector" could impound a document when it comes before him and when it appears to him that such instrument is not duly stamped. Thereafter by virtue of Section 40(1)(b), the Collector is empowered to call upon the concerned person to pay the proper duty apart from levying any penalty as prescribed under the said provision. After any such order is passed by the Collector, invocation of Section 56 automatically coming into play.
12. In the case on hand, the initial show cause notice dated 19-3-2004 disclose that the appellant in the cadre of a District Registrar issued the said show cause notice, apparently in exercise of his powers under Section 40(1)(b) of the Act. The subsequent order dated 7-5-2004 also came to be passed after the receipt of the reply filed by the respondent on 5-4-2004. As stated earlier, the respondent did not challenge the subsequent order dated 7-5-2004 confirming the proposal made in the show cause notice dated 19-3-2004. Though the appellant in its counter in paragraph 7 pointed out that after the receipt of the reply of the respondent dated 5-4-2004 and after giving due consideration to the said reply, the earlier order was confirmed, the said averment was not refuted by way of any reply on behalf of the respondent. The Writ Petition itself came to be filed only on 20-5-2004. Yet there was no challenge to the final order dated 7-5-2004. In the order of confirmation, the appellant after determining the deficit stamp duty and the fine amount, pointed out that if the respondent is aggrieved, he can prefer an appeal within 30 days from the date of receipt of copy of the order. It is not the case of the respondent that any such appeal was preferred by him. Provision of appeal referred to by the appellant in the said order dated 7-5-2004 apparently refers to Section 56 of the Act.
13. Under Section 56(1), the powers exercisable by a Collector under Chapter IV and V as well as Clause (a) to the first proviso to Section 26. In all cases will be subject to the control of Chief Controlling Revenue Authority. Under Sub-section (3) of Section 56. It is provided that the Chief Controlling Revenue Authority should consider the case and send a copy of its decision to the Collector who should proceed to assess and charge duty if any in conformity with such decision. Therefore a conjoint reading of Section 40(1)(b) and 56 makes it clear that the Chief Controlling Revenue Authority has been invested with the necessary appellate jurisdiction over the decision of the Collector in respect of determination of any duty payable on any instrument in exercise of his powers under Section 40(1)(b). In this context, it will also be relevant to refer to Section 57(1) of the Act wherein, the Chief Controlling Revenue Authority has been Invested with the powers to make a further reference to this Court for its decision. Section 57(1) is couched in the following words :
"The Chief Controlling Authority may state in a case referred to it under Section 56, Sub-section (2), or otherwise, coming to its notice, and refer such case, with its own opinion thereon".
The set of expressions "or otherwise coming to its notice" only indicates that apart from the Collector making a reference to the Chief Controlling Revenue Authority under Sub-section (2) of Section 56, there can also be circumstances when it may come to the notice of the Chief Controlling Revenue Authority as regards orders passed by the Collector in exercise of its powers under Chapter IV and V of the Act which by virtue of Section 56(1) would always be subject to the control of the Chief Controlling Revenue Authority. We, therefore, hold that the order dated 7-5-2004 pursuant to the show cause notice dated 19-3-2004 can always be challenged by the respondent by approaching the Chief Controlling Revenue Authority under Section 56 of the Act. We are also fortified by our conclusion by the judgment of the Hon'ble Supreme Court reported in " (Chandravarkar Sita Ratna Rao v. Ashalata S. Guram)" wherein para 61, the Hon'ble Supreme Court has held as under :
"61. When the grammatical conclusion is clean and manifest and without any doubt that contention ought to prevail unless there are some strong and obvious reasons to the contrary...."
14. The respondent should have worked out its remedy only before the said authority as regards his grievances as against the initial show cause notice dated 19-3-2004 as well as the subsequent order of confirmation dated 7-5-2004. Since such an efficacious alternate remedy has been made available to the respondent, we are unable to sustain the order of the learned single Judge in having gone into the nature of the document and the expressions of his final opinion on it. It has been repeatedly held by various decisions that wherever there is alternate remedy available to an aggrieved person, the writ jurisdiction cannot be invoked. In the judgment reported in "2005 Writ LR 136 (Tamil Nadu State Transport Corporation (Villupuram Division II) Ltd. v. C. Durai)", this Court has held as under paras 4 and 5 :
"4. ...In our opinion, even if there is violation of natural justice or the order is without jurisdiction, the writ petition can still be dismissed if there is an alternative remedy.
"5. In U. P. State Bridge Corporation Ltd. v. U. P. Rajya Setu Nigam Karmachari Sangh, , the Supreme Court held that if there is a specific remedy available under a statute a writ petition should not be entertained."
We, therefore, set aside the order of the learned single Judge.
15. Accordingly, the Writ Appeal is allowed. While setting aside the order of the learned single Judge, since we have held that the respondent has got an alternate remedy to approach the Chief Controlling Revenue Authority under Section 56 of the Act, the respondent, is given liberty to work out his remedy before the said forum within 30 days from the date of receipt of copy of this order inasmuch as the controversy relating to the whole issue has been pending consideration before this Court till this date. If the respondent fails to avail the liberty given within the stipulated time, the benefit granted under this order would automatically cease to operate. No costs. Consequently, WAMPs are closed.