Karnataka High Court
Sri Malchira C Nanaiah vs State Of Karnataka on 15 December, 2021
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.15511 OF 2021(GM-ST/RN)
BETWEEN:
1. SRI. MALCHIRA C NANAIAH,
S/O ALTE SRI. MALACHIRA CHITIAPPA,
AGED ABOUT 70 YEARS,
2. SMT. M N NEELAMMA,
W/O SRI. MALCHIRA C NANAIAH,
AGED ABOUT 65 YEARS,
BOTH ARE R/AT NITOOR VILLAGE
AND POST VIA BALELE,
SOUTH KODAGU - 571 219.
SENIOR CITIZEN BENEFIT NOT CLAIMED.
...PETITIONERS
(BY SMT. RUPA RON, ADVOCATE FOR
SRI. KIRAN V RON, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
REPRESENTED BY PRINCIPAL SECRETARY,
M S BUILDING, DR. B.R. AMBEDKAR VEEDHI,
BANGALORE - 560 001.
2. DISTRICT REGISTRAR AND
DEPUTY COMMISSIONER OF STAMPS,
NO.580/2A, C H -44/2A, 1ST FLOOR,
DEEWANS ROAD, LAKSHMIPURAM,
CHAMRAJA MOHALLA,
MYSORE - 570 004.
... RESPONDENTS
(BY SRI. B V KRISHNA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 09.11.2020 PASSED BY THE R2 AT
ANNEXURE-A AND ETC,
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THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The short grievance of the petitioners is against the alleged levy of excess penalty under Chapter IV of the Karnataka Stamp Act, 1957, on the instruments in question. Learned counsel for the petitioner vehemently submits that in terms of Section 39 of the Act, the penalty levying authority ought to have exercised the discretion judiciously and this having not been made, the impugned order is vulnerable for challenge.
2. Learned Additional Government Advocate appearing for the respondent opposes the writ petition contending that orders made in discretion are not amenable to challenge in writ jurisdiction constitutionally vested in this Court; he also submits that the impugned order reflects the reasons for the decision and therefore, indulgence of the Writ Court is not warranted.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons:
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a) The provisions of Sections 38 & 39 are cognate in nature and therefore, they have to be construed in the light of each other; text & context of these two provisions vest abundant discretion in the authorities in the matter of imposition of penalty where the instrument is not duly stamped; discretion contemplated under these provisions is not of "muhgal discretion"; it only means according to the rules of reason & justice; the impugned order is not animated with this approach and therefore, is liable to be voided.
b) The vehement contention of learned AGA that the mistake lies with the petitioners themselves in occasioning the passing of impugned order and therefore, they cannot turn around and lay a challenge thereto, does not impress this Court; in the matter of imposition of stamp duty, law leaves no discretion, is true; however, in a Welfare State, the power to impose penalty lies on a different footing and a host of elements enter discretionary decision making process.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; matter is remitted for fresh consideration 4 in accordance with law after notice to the parties. All contentions are kept open.
Time for deciding the remand is eight weeks from the date a copy of this judgment is handed to the answering respondent and if delay is brooked, he may be required to pay penal costs after an appropriate application being moved in this regard.
Now, no costs.
Sd/-
JUDGE Bsv