Uttarakhand High Court
State Of Uttarakhand Through Upper ... vs M/S Automat on 6 January, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 6TH DAY OF JANUARY, 2021
BEFORE:
HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA
Writ Petition No.21 of 2021 (M/S)
BETWEEN:
AUTOMAT IRREGATION PRIVATE LIMITED Registered Office at Plot
No.94, Sector-6A, IIE, SIDCUL, BHEL, Haridwar, Uttarakhand
....Petitioner
(By Mr Sanjeev Sharma, Ms. Priyanka Agarwal and Mr. Somya
Chaturvedi, Advocates)
AND:
1. State of Uttarakhand through Upper Collector (Finance and Revenue),
Haridwar, Government of Uttarakhand
2. State Infrastructure and Industrial Development Corporation of
Uttarakhand Limited 29, IIE (IT Park), Dehradun-248001
Uttarakhand. Also at Regional Office, IIE, Haridwar
3. Tehsildar Haridwar
.....Respondents
(By Mr. Sudhir Singh, Standing Counsel for the State of
Uttarkhand and Mr. Vipul Sharma, Advocate for respondent
no.2.)
JUDGEMENT
A lease deed in relation to plot no.95 Sector No.6A, having an area of 14350 square meters in an industrial area IIE, District Haridwar, was leased out to the -2- petitioner by respondent no.2. Since the said lease deed dated 28.11.2013, would fall to be a deed, falling within the ambit of Section 17 of the Registration Act, it was mandatorily required to be registered and as a consequence thereto, the said deed was registered. But later on, on a report, which was submitted, being Report No.10306 of 2014, it was found and as was assessed by the authorities, that the stamp duty which was paid by the petitioner on the said lease deed dated 28.11.2013, according to the petitioner it has not suffered from deficiency in the remittance of the stamp duty, which was paid on it to the tune of Rs.6,96,450/- and consequently according to the report, the Additional Collector (Finance/Revenue) Haridwar, had issued Notice No.922/Stamp dated 18.07.2017, showing it to be a notice under Section 47-A, to be read with Section dated 33/40 Kha of Stamp Act, to be read with Rule 350 of the Rules framed under the Act. By virtue of the said notice, which was issued on 10.07.2017, the petitioner was called upon to appear before the Assistant Collector, on the date prescribed in the said notice in order to extend his defence, with regards to the action proposed to be taken as a consequence of the notice which was issued on 18.07.2017 and consequently, the notice reads as under:-
^^vkidks ;g Hkh lwfpr fd;k tkrk gS fd ;fn vkids )kjk fu;r fnukad ,o le; ij mifLFkr gksdj dksbZ tokc vFkok lk{; izLrqr ugha fd;k x;k rks bl U;k;ky; }kjk vkids fo:) ,d i{kh; dk;Zokgh djrs gq, ikbZ xbZ deh LVkEi 'kqYd vkfn fu;ekuqlkj vFkZn.M lfgr vkjksfir dj fn;k tk;sxkA^^
2. The argument of the learned counsel for the petitioner is that the issuance of the notices, thereby calling upon the petitioner to appear on the specified date, would suffer from certain defects, for the reason being that the -3- heads under which the determination of deficiency of stamp was to be made was not specific therein as notice used the words ^^leLr izHkkjksa^^] and hence, in the absence of there being the specific heads prescribed in the notice, the notice dated 18.07.2017 itself as against which the determination of the deficiency of stamp was to be determined by the Additional Collector, would itself render him to be incapacitated to have an appropriate and adequate defence before the court of Additional Collector in the proceedings which were likely to be drawn against him under Section 47-A of the Stamp Act. In response to the notice, which was issued on 10.07.2017; the petitioner did put in appearance before the court below and had placed the documents on record in support of his case, before the court, but however later on for reasons unknown they had not participated in the proceedings and a finding to that effect has been recorded by the court of Additional Collector, in Case No.233/MB/2017-2018, State vs. M/s Automat Irrigation Pvt. Limited, and as per the finding recorded therein in the judgment dated 06.02.2020 the Court has observed that the petitioner, did appear before the court, based on the record, but later on had not participated in the proceedings and as a consequence thereto, the court had no option except to proceeded to pass an order on merits on 06.02.2020 determining the deficiency payable on the deed to the tune of Rs.6,96,450/-. Besides this the said amount, which was levied in its totality which was payable towards the interest and the penalty was assessed as to a total amount of Rs.21,76,425/-.
3. The petitioner contended, thereof that the said decision, which was rendered by Assistant Collector on -4- 06.02.2020, since being ex-parte and the petitioner was not provided with an adequate opportunity, to raise his defence, before an actual determination was being made;
because of the defects, which was allegedly being suffered by the notice, which was issued to them by the respondents they had filed an application for recall of the judgment dated 06.02.2020, seeking recall of the order dated 06.02.2020, and in the recall application thus, filed by the petitioner he himself has admitted the fact that after the issuance of notice and its receipts, they had put in appearance before the court of Assistant Collector; but the discrepancy, which has been pointed out by the petitioner was that and by way of reiteration of fact, that it is once again observed, that his argument was that in the absence of there being the details being provided, in the notice under which the deficiency was expected to be determined and levied by the respondents, it would be treated that he was not provided with an adequate opportunity, to have his say after putting in appearance and explaining the deficiency as projected in the report submitted; being Report No.10306/2014.
4. The restoration application as preferred by the petitioner came up for consideration before the court of Additional Collector and the Additional Collector vide its order dated 23.11.2020; had rejected the same after recording a finding to the effect that after issuance of the notice, the petitioner had appeared before the court, the petitioner had placed the documents on record, but thereafter despite of having knowledge of the proceedings, he had not participated in the case, consequently resulting -5- into the decision rendered on 06.02.2020. Hence, the restoration filed by the petitioner too stood rejected.
5. The contention of the petitioner by invoking the writ jurisdiction under Article 227 of the Constitution of India, while giving challenge to the impugned order dated 06.02.2020 and 23.11.2020; is exclusively based on a premise that the writ jurisdiction under Article 227 of the Constitution of India, would be amenable to him for the reason being that according to his perception, the notice which was principally issued, since, according to his version it suffered from certain defects, it cannot be said that it had effectively provided him an opportunity to defend himself, before the court of Assistant Collector and hence, his contention was that he may not be relegated back to avail the statutory alternative remedy available to him under Section 56 of the Act, of preferring a revision before Chief Controller of Stamps.
6. In relation thereto to support his contentions, the counsel for the petitioner had made reference to number of authorities, on which he wants to place reliance and particularly he has drawn the attention of this Court to the judgment which was rendered in the matters of M.P. State Agro Industries Development Corporation Ltd. and Others vs. Jahan Khan as reported in 2007 (10) Supreme Court Cases 88, and he has drawn the attention of this Court to the contents and ratio as laid down in para 10 of the said judgment; where the Hon'ble Apex Court has laid down, that the alternative remedy may not be an absolute bar; when the proceedings itself suffers from the -6- vices of non adherence of principle of natural justice. Para 10 on which the reliance has been placed by the counsel for the petitioner is quoted hereunder:-
"10. Before parting with the case, we may also deal with the submission of learned Counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely,
(i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or
(iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar.
(See: Whirlpool Corporation v. Registrar of Trade MarksMANU/SC/0664/1998 : AIR1999SC22 , Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors.MANU/SC/1199/2002 :
AIR2003SC2120 , State of H.P. v. Gujarat Ambuja Cement Ltd.MANU/SC/0421/2005 :
AIR2005SC3836 and Sanjana M. Wig v.
Hindustan Petroleum Corporation Ltd.MANU/SC/0563/2005: AIR2005SC3454 )."
7. After having considered the factual backdrop of the above authority, under which the Hon'ble Apex Court had laid down the aforesaid principle of non adherence of the principle of natural justice and its effect on an availability of an avenue of alternative remedy, I am of the -7- view that the said principle was laid down in altogether a different set of circumstances and context, where the disciplinary proceeding, was being imposed upon the delinquent respondents, therein and it was the said question which was put to challenge before the Hon'ble Apex Court; as to whether the imposition of the punishment, which would amount to be having an effect of monetary loss on the delinquent respondents therein, it ought to have been done resorted to by the respondents only after providing an adequate opportunity of hearing, to the respondents therein and consequently, the court held that the alternative remedy would not be creating an absolute bar in invoking a jurisdiction under Article 226 and 227 of the Constitution of India.
8. In response to it, my view is slightly distinct to the preposition; which has been laid down in the set of circumstances which has been dealt with in the matters of M.P. State Agro, which was altogether a different issue and basis; for the reason being that the said judgment was dealing with the facts and circumstances of that particularly case, which entailed a consideration of the effect of the disciplinary proceedings, which was governed by the separate set of service rule, which was applicable in relation to the delinquent employee, who had challenged the disciplinary proceedings and because it had suffered from principles of natural justice.
9. Here in the present writ petition distinction is that the proceedings, which are drawn against the petitioner, are contemplated to be under Section 47-A of the Stamp -8- Act, which entails that any decision which has been rendered under Section 47-A; would be statutorily a subject matter of a revisional jurisdiction under Section 56 of the Stamp Act. This Court feels it to be essential to answer the question at this stage itself that there is a distinction between an "alternative remedy", and the "statutory remedy". The alternative remedy is an option and carries a latitude and scope of its choice, where under the set of circumstances, where a non compliance of the principle of natural justice, a person is left open to avail the remedies, which are alternatively available to him and it is a choice which could be exercised under the given set of circumstances of a case and by way of discretion too, but under statutory remedy, in those cases, where it requires a determination of factual aspects and particularly in the case at hand, where the determination was to be made with regards to the deficiency of the Stamp duty, which was payable on the lease deed, which was executed in favour of the petitioner by respondent no.2, it would fall to be a statutory remedy and hence this Court is of the view that the principle enunciated in para 10 of M.P. State Agro Industries (Supra) would not be applicable in the present case and the circumstances under which the case has reached this stage.
10. The another judgment, on which the learned counsel for the petitioner has placed reliance is that as was rendered by the Division Bench of Allahabad High Court in the matters of Sumati Nath Jain vs. State of Uttar Pradesh and others precisely, if para 2 of the said judgment is taken into consideration, where though a challenge was given to the notice under Section 47-A, -9- which was issued to the petitioner therein, but it was the stage, at which Court was exercising its jurisdiction under Article 226 of the Constitution of India; where the propriety and validity of the notice itself, which was issued under Section 47-A, itself was put to challenge on an original side, before the High court under Article 226 of the Constitution of India, that is why the judgment which was rendered by the learned Single Judge was made as a subject matter of the special appeal, which has been provided under the rules of the Court provided under the High Court Rules.
11. In the present case after going through the facts of Sumati Nath Jain (Supra) yet again I am of the view that there is a distinction and the principles, as on which reliance has been placed particularly, that as contained in para 14, which has been referred to hereunder:-
"14. A plain reading of the notice indicates that the second respondent had accepted the report of the Sub Registrar and already formed an opinion that the instrument was liable to be taxed with additional stamp duty. There was no opportunity provided to the appellant to show cause why the second respondent may not assume jurisdiction under section 47A of the Act as mandated under Rule 7 of the U.P. Stamp (Valuation of Property Rules) 1997. The appellant was neither apprised of the basis nor provided the material upon which the Collector formed the opinion that the property comprised in the instrument was undervalued or that additional stamp duty was payable thereon.
Dealing with this aspect of the matter the Division Bench in Smt. Vijaya Jain held:--
"From the provisions extracted above, it is apparent that the Collector proceeds under sub section (3) of Section 47-A read with rule 7 when he has reason to believe that the market value of the property comprised in the instrument has not
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been truly set forth and that in the opinion of the Collector, circumstances exist warranting him to undertake the enquiry contemplated under rule 7. What we however find from the notice dated 09 September 2013 is that the Collector has proceeded to record, albeit prima facie, that the instrument in question has been insufficiently stamped to the extent of Rs. 8,89,000/-. The notice apart from referring to a note dated 20 May 2013, received from the Assistant Inspector General of Registration neither carries nor discloses any basis upon which the Collector came to the prima facie conclusion that the appellant was liable to pay Rs. 8,89,000/- as deficit stamp duty. In our opinion a notice of this nature must necessarily disclose to the person concerned the basis and the reasons upon which the Collector has come to form an opinion that the market value of the property has not been truly set forth. In the absence of a disclosure of even rudimentary details on the basis of which the Collector came to form this opinion, the person concerned has no inkling of the case that he has to meet. A notice in order to be legally valid and be in compliance with the principles of natural justice must necessarily disclose, though not in great detail, the case and the basis on which action is proposed to be taken against the person concerned. Not only this and as is evident from a bare reading of rule 7, at the stage of issuance of notice, the Collector has to proceed on the basis of material which may tend to indicate that the market value of the property has not been truly and faithfully disclosed in the instrument. The stage of computation of market value comes only after the provisions of sub rules (2) (3) and (4) of rule 7 come into play. At the stage of issuance of notices, the Collector calls upon the person concerned to show cause "as to why the market value of the property.... be not determined by him..... In the facts of the present case, we find that the Collector had already prejudged the issue by recording that the appellant had paid deficit stamp duty to the extent of Rs. 8,89,000/-."
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12. The aforesaid circumstances and the principles laid down, would, not apply for the reason being that therein the Court was exercising its original jurisdiction under Article 226 of the Constitution of India, testing the very veracity of the notice under Section 47-A, itself and it was exercising its appellate jurisdiction under the Rules of the Court, which is not the circumstances, which is prevalent, under which the said principle could be made applicable, under the facts and circumstances of the present case.
13. The counsel for the petitioner had made a reference to yet another judgment, which was rendered by the Division Bench of Allahabad High Court as reported in AIR 1986 Allahabad 107 Kaka Singh vs. Additional Collector and District Magistrate (Finance and Revenue), Bulandshahr and another.
14. After having considered the principles as laid down therein by the Division Bench Allahabad High Court, in the said case, it was not a case, which was specifically overriding the impact of statutory remedy available to the person concerned under the Stamp Act itself. But the distinction carved out therein for interfering in a writ jurisdiction under Article 226 of the Constitution of India, it was a case, while deciding the writ petition, itself, it was indulging consideration of a question where the veracity of Rule 341 framed under the Act, itself was put to challenge and that is why the Division Bench of the Allahabad Court while being conscious of the fact of the availability of an alternative remedy; had interfered in a writ jurisdiction in
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Kaka Singh Case (Supra) because the validity of Rule 341, itself was put to challenge, because under the concept of the jurisdiction as it was then prevalent before the Allahabad High Court wherever the vires of a particular rule or Act, was put to challenge it was, made amenable to the Division Bench and that is why the said question was answered by the Division Bench with regards to the impact of Rule 341 on the power of imposition of penalty, vested with the authorities under the Stamp Act, while exercising powers under Section 47-A of the Stamp Act. Meaning thereby if a logical interpretation, as given to para 4 of the said judgment is taken into consideration, I am of the view that it was not over riding the effect of a remedy, which had been made available under the statutes, the exception which was carved out therein for interference was only because a validity of the statute itself was put to challenge where the writ petition was entertained. Reference be had to the contents of para 4, 5, 6 and 17, which are referred hereunder:-
"4. Against the judgment of the Additional Collector, the petitioner has come to this Court by means of the present writ.
5. To the maintainability of the writ petition a preliminary objection was raised. The same was that as the petitioner could move an application for reference to the Board of Revenue, the writ petition was liable to be rejected on the ground of availability of alternative remedy. We would have accepted the preliminary objection and dismissed the writ petition on that ground but as the petitioner has challenged the validity of Rule 341 of the Rules framed under the Stamp Act, we thought it advisable to decide the said question. Board of Revenue has no authority to adjudicate the validity of the rule. It is a creature of the Stamp Act and has only those powers which are conferred by it. It cannot examine the validity of the rule.
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6. Section 47-A was inserted by means of an amendment. The scheme of Section 47-A of the Act is to deal with those cases where private parties by arrangement clandestinely or fraudulently undervalued the property which is the subject matter of transfer with a view to deprive the government of legitimate revenue by way of Stamp duty. Before addition of Section 47-A, there was no provision in the Stamp Act empowering the revenue authorities to make an enquiry of the value of the property conveyed for determining the duty chargeable. Section 27 of the Stamp Act laid down that the consideration if any and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. In case a person did not set forth true amount for which the transaction had taken place, the revenue authorities had no power to proceed with the defaulter, Himalaya House Co. Ltd. v. The Chief Controlling Revenue Authority, AIR 1972 SC 899. The Supreme Court held that for the purpose of Article 23, the value of consideration must be taken to be one as set forth in the conveyance deed. The question whether the purpose of determining the value of the consideration to revenue must have regard to what the parties to the instrument have elected to state the consideration to be.
17. We find force also in the argument of the petitioner's learned counsel that since Section 47A does not empower the Collector to impose penalty in the event of his finding that the market value was not truly set forth in the instrument, such an order imposing the same would be beyond Section 47-A. For imposing penalty in a case like the present, power was specifically to be conferred. In the absence of a specific provision made in that respect, it is not possible to uphold the contention of the Standing Counsel that penalty could be imposed whenever and wherever the Collector under Section 47-A finds that the value set forth was not true. Section 47- A as stated above, was brought in recently to cover a case of evasion. While enacting Section 47-A, the legislature although empowered the Collector to determine the market value of the
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property, which is the subject of conveyance and the duty payable thereon, it did not make any provision empowering the Collector to impose penalty."
15. Subsequently, later the judgment of Kaka Singh was further considered, and clarified by the Full Bench of Allahabad High Court in the case reported in 1998(1) ARC 337, Girjesh Kumar Srivastava and Ors. vs. State of U.P. and Ors.
16. The counsel for the petitioner has yet again drawn the attention of this Court to yet another judgments which has been rendered by the Coordinate Bench of Allahabad High Court, as reported in AIR 2008 Allahabad 176, Vijay Kumar and another vs. Commissioner Meerut Division & Another; wherein the principles of the implications of Rule 7 and the modalities to be adopted for determining the deficiency was at a stage when the petitioner therein had approached the writ court under Article 227 of the Constitution of India, after exhaustion of his remedy as available to the petitioner therein, under Section 56 of the Act and there the Court has interpreted the propriety and the manner in which the determination of deficiency was arrived at by the stamp authorities, which was a determination of the Revisional judgment too. Meaning thereby if the said judgment is taken into consideration, it was yet again not eradicating the availability of a statutory remedy available under Section 56 of the Stamp Act, rather the implications of Rule 7, was taken into consideration, when the Court under Article 227 of the Constitution of India, was exercising its supervisory
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jurisdiction over the judgments passed by the subordinate court. Reference was made to Para 2, 7, 8 and 19, which gives the answer to question, raised in the said writ petition in the exercise of its supervisory jurisdiction, while considering the revisional judgment too. Paragraphs 2, 7, 8 & 19 are quoted hereunder:-
"2. The petitioner, in response to the show cause notice, appeared before the ADMCF&R) and contended that the sale consideration in the instrument has been properly and correctly set out. The stamp duty has been paid as per the circle rate fixed by the District Magistrate. He further submitted that the exemplar referred to in the report of the Sub Registrar are not applicable to the facts of the present case as properties mentioned there in are differently situated.
7. The Stamp Act is a fiscal statute and it has to be interpreted strictly and construction of hardship or equity has no role to pay in its construction. It is a taxing statute and has to be read as it is. In other words, the literal rule of interpretation applies to it. See- State of Rajasthan v. Khandaka Jain Jewellers AIR 2008 SC 509. In this case the Supreme Court has referred its earlier judgment in the case of A.V. Fernandez v. State of Kerala AIR 1957 SC 657. Also Government of A.P. and Others v. Smt. P. Laxmi Devi, 2008 AIR SCW 1826: AIR 2008 SC 1640.
8. In the above background the phrase 'reason to believe' occurring in Sub section (3) of Section 47-A has to be considered. Identical phrases have been placed in almost every fiscal statutes such as Income Tax Act, Sales Tax Act etc. With reference to the expression 'reason to believe' used in Section 34 of the Old Income Tax Act it has been held that they do not mean purely subjective satisfaction on the part of the Income Tax Officer. The 'belief must have been held in good faith, it cannot be merely a pretence. To put it differently it is open to court to examine the question whether the reasons to believe have a rational connection or a relevant bearing to the formation of belief and are not extraneous or
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irrelevant to the purpose of section, as held in S. Narayanappa and Ors. v. CIT Bangalore, AIR 1967 SC 523. The words 'reason to believe' are stronger than the expression 'for satisfaction' Belief must not be arbitrary or irrational. It must be reasonable or must be based on reasons which are relevant and material.
19. In the case of Prakashwati v. Chief Controlling Revenue Authority Board of Revenue, Allahabad 1996 (87) R.D. 419 "Hon'ble the Apex Court has held that situation of a property in an area close to a decent colony not by itself would make it part thereof and should not be a factor for approach of the authority in determining the market value. According to said decision valuation has to be determined on constructive 'materials, which could be made available before the authorities concerned."
17. Similarly another judgment on which the reference has been made by the counsel for the petitioner was that as reported in AIR (2014) 2 ALJ 264, Maya Devi Yadav & others vs. State of Uttar Pradesh & others here again; once again the learned Coordinate Bench of the Allahabad High Court, was dealing with an identical situation, as it has already been observed in the matters of Vijay Kumar (Supra) where the writ court was seized with the jurisdiction under Article 227 of the Constitution of India at the stage of scrutinizing the judgment which was passed by the Chief Controller of Revenue Authority, in a judgment which was rendered in a stamp revision under Section 56 of the Act. These two ratios on which the reliance has been placed particularly, that in the case of Vijay Kumar's, as well as in Maya Devi's case will not be applicable in the present case because there the court was determining the stages of calculation of the deficiency of the stamp after the culmination of the
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proceedings by the forum or the courts, which were provided under the Act itself. Because the findings of para 1, 14, 15 referred hereunder:-
1. In this writ petition the petitioner has prayed for a writ, order or direction in the nature of certiorari to quash the order dated 10.8.2000 (Annexure 18-A) under Section 33/47A of the (Indian) Stamp Act, 1899 (hereinafter referred to as the 'Act') passed by the Collector, Etah and the order dated 19.11.2011 passed by the Chief Controlling Revenue Authority (Board of Revenue) U.P., Allahabad in Stamp Revision No. 62/2000-01 (Annexure 1).
Facts of the Case Briefly stated the facts of the present case are that the petitioners purchased 15 years old double storied hotel building consisting of 29 rooms, two store room, 5 shops facing Etah road and 6 shops facing Agra road located on the crossing of G.T. Road and Agra Road with total ground area of 596 Sq. Meters, falling within the limits of Nagar Palika, Etah. The sale-deed was executed on 13.2.1998 and was presented on 14.2.1998 for registration before the Sub- Registrar, Etah who prima facie found that the market value of the property was not truly set forth in the instrument and as such referred the same under Section 47A(1) of the Act to the Divisional Commissioner (Finance and Revenue), Etah through its Registrar on 16.3.1998 (Annexure-2) stating that the minimum market value of the aforesaid property as per circle rate list under Rule 4 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 (hereinafter referred to as the "Rule 1997") issued by the District Magistrate, comes to Rs. 1,49,00,000/- as against the value of Rs. 36,00,000/- shown in the sale-deed dated 13.2.1998 (Annexure 1-A). The Sub-Registrar further mentioned that for the purposes of enquiry of the current market value, the matter is being referred under Section 47A(1/2) of the Act. In the reference the Sub- Registrar further mentioned that Stamp Duty of Rs. 3,60,000/- paid on the alleged market value of the property in question of Rs. 36,00,000/- is
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deficient. The petitioners filed an objection dated 17.4.1998 before the Assistant Commissioner (Stamp), Etah stating that the market value of the property in question has been correctly shown and in case of any doubt the competent authority may be directed to make the spot inspection and submit the report. Pursuant to the direction of the Assistant Commissioner (Stamp), the Naib Tehsildar inquired the matter. He recorded the statement of the petitioner No. 3, who stated on oath that all rooms are let out, it may fetch rent at about Rs. 10,000/- per month. He admitted that the building in question was a hotel and is situated at about one Km. from clock Tower Market and about 300 meters from bus stand. The Naib Tehsildar submitted his report dated 21.5.1998 (Annexure 4) wherein he suggested the market value of the building in question to be Rs. 36,30,000/- without giving any basis. It is stated in paragraph No. 11 of the writ petition that the D.G.C. (Revenue) filed an application dated 13.7.2000 before the Collector, Etah stating therein that the report of Naib Tahsildar is in suppression of the material facts and as such the matter may be re-enquired by the competent officer. Therefore, a letter was sent by the Court of the District Magistrate, Etah dated 14.7.2000 under the signature of the A.D.M. (F&R), Etah to the Tehsildar, Etah directing him to submit his report with regard to the market value of the property in question. It appears that at this stage the aforesaid matter was registered as Case No. 3/2000 (Satyadev Pathak v. Smt. Maya Devi Yadav and others) under the Stamp Act in the Court of Collector, Etah. In this case on 14.7.2000 the vakalatnama was filed and the order for re-enquiry was passed. As per order sheet dated 19.7.2000 of the Court of District Magistrate, Etah, the Tehsildar, Etah submitted his report dated 17.7.2000 (Annexure 11) giving details of rent of shops and mentioned that the building in question is a commercial building which is a hotel with facility of foods and snacks and is situate on the commercially important place within the market area. He estimated the market value based on rental to be Rs. 1,98,000,000/-. In the meantime the petitioners moved an application before the Divisional Commissioner for transfer of
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the case from the Court of District Magistrate, Etah to the Court of some other District Magistrate in the division on which the Divisional Commissioner passed an order dated 15.7.2000 staying further proceedings till 25.7.2000 and called for the report. The order of the Divisional Commissioner dated 15.7.2000 has been filed as Annexure 14. vide order dated 25.7.2000 (Annexure 15) the Divisional Commissioner directed the District Magistrate, Etah to submit report by 8.8.2000 and till then matter be not proceeded by the District Magistrate, Etah. It is stated in paragraph No. 21 of the writ petition that the stay order dated 25.7.2000 was filed before the District Magistrate, Etah on 26.7.2000 who adjourned the case for 9.8.2000. It is stated in paragraph Nos. 22, 23 and 24 of the writ petition that the Commissioner did not sit on 8.8.2000 and as such his reader fixed the date for 29.8.2000 and therefore the petitioners moved an application for extension of stay order on 9.8.2000 and whereupon the Divisional Commissioner fixed the date for 29.8.2000 and extended the stay order. Petitioners applied for certified copy of the order of stay extension dated 9.8.2000 on the same day, which was received from the Court of Divisional Commissioner on 10.8.2000 and the same was immediately submitted to the reader of the District Magistrate on the same day at about 1.00 pm. Copy of the stay extension order dated 9.8.2000 and adjournment application dated 10.8.2000 have been filed as Annexure Nos. 17 and 18. On the adjournment application the District Magistrate passed the following order:-
(Vernacular matter omitted.......Ed.)
14. Thus, the CCRA also appears to have acted arbitrarily while passing the impugned order dated 19.11.2001.
15. In the case of Uma Nath Pandey and others v. State of U.P. and another, [(2009) 12 SCC 40 para 3: AIR 2009 SC 2375, paras 5 to 90)], the Hon'ble Supreme Court noted the concept of natural justice that is another name of common sense justice. The adherence to principles of natural justice as recognised by all civilized
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States is of supreme importance when a quasi- judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well-settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. Natural justice has been variously defined by different Judges, for instance a duty to act fairly, the substantial requirements of justice, the natural sense of what is right and wrong, fundamental justice and fair-play in action. Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but
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is shared in common by all men. The first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causa sua' that is no man shall be a judge in his own cause. The second rule is 'audi alteram partem', that is, 'hear the other side'. A corollary has been deduced from the above two rules and particularly the audi alteram. partem rule i.e. 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental The purpose of following the principles of natural justice is the prevention of miscarriage of justice. Applying the aforesaid principles of natural justice on the facts of the present case, this Court is of the opinion that the principles of natural justice has been violated which vitiates the impugned orders."
was, a judicial scrutinization of both the order by District Magistrate as well as the revisional authority, meaning thereby the platform of revisional jurisdiction was not wiped out on the pretext of there being violation of principles of natural justice. This reason is justified by the reasoning of paras 1, 14 and 15 of the judgment referred above.
18. Lastly, the counsel for the petitioner had yet again made reference to the judgment of the Hon'ble Apex Court as reported in AIR 1985 SC 613 Babu Bhai and
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Company and another vs. State of Gujrat and other and he has made reference to the principles laid down in para 8 of the said judgment where widely it has enunciated, as to what would be the impact in case if the State resorts to the process of summary eviction of an occupant from the property occupied by him under the provision contemplated under the town planning Act, which was based on altogether a different fact and having a different emergent impact. Paragraphs 2, 4 and 8 of the said judgment are quoted hereunder:-
"2. By a notification dated 21st July, 1965 the State Government of Gujarat sanctioned the final Town Planning Scheme in respect of certain areas lying within the limits of Borough Municipality of Ahmedabad and directed that the said Final Scheme shall come into force on 1st September, 1965. The lands in the possession of the appellants were allotted or reserved for construction of roads and other public purposes in that Scheme and therefore, being lands required by the Municipal Corporation they vested absolutely in Municipal Corporation (local authority) free from all encumbrances under Section 53(a) of the Act. Thereafter by notices issued under Section 54 read with Rule 27 the Municipal Corporation called upon the appellants to hand over possession of the lands in their occupation, which, since such vesting, they were not entitled to occupy ; in other words, the procedure or the remedy for summary eviction of the appellants was resorted to by the Municipal Corporation.
4. The High Court has negatived both the grounds of challenge. As regards ground (a), relying upon the decision in Wolver hampton New Water Works case reported in (1859) 6 C.B. (N.S.) 336 and observations of Willes J. there in (appearing at page 356 of the Report) the High Court took the view that the rights of the local authority (to own and obtain possession of such lands) with the corresponding liability of the occupants to suffer eviction there from did not
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exist under the law prior to the making of the Final Scheme, that such rights and liabilities were created for the first time by the Final Scheme which is to be read as part of the Act and since the Act creating these new rights and liabilities provided for a special and particular remedy for enforcing them under Section 54 the remedy of summary eviction must be held to be an exclusive remedy and the liability to eviction arising under Section 53(a) or (b) cannot be enforced by the ordinary remedy of a suit ; in other words, the remedy of summary eviction under Section 54 having been held to be an exclusive remedy the entire ground of challenge disappeared. As regards ground (b) the High Court took the view that Section 54 conferred upon the local authority a quasi-judicial power and not administrative power and as such it was bound, conformity with the principles of natural justice, to give an opportunity of hearing to the occupants before taking the threatened action of summary eviction and therefore no question of section being bad in law arose ; as regards Rule 27 the High Court held that since the said Rule did not contain any express exclusion of such hearing and since Section 54 impliedly required the observance of principles of natural justice on the part of the local authority while exercising the power of summary eviction, the said requirement must also be read in Rule 27 and so read the Rule could not be regarded as ultra vires the section. The High Court also proceeded to indicate in what ways such hearing could be afforded by the local authority while acting under the said Rule. This is how the High Court upheld the constitutional validity of Section 54 of the Act and Rule 27 of the Rules.
8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by Section 54 it will appear clear that the topic of making of town planning schemes is dealt with in Sections 21 to 53 while Section 54 (and some of the following Sections like 55 and 71 to 78) deal with the aspect of the execution of town planning schemes and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in
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their occupation has been conferred upon the Local Authority itself-a highly responsible body, and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying lands which they are no; entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi-judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing extraneous based on any extraneous, non-germane, irrelevant or malafide consideration would be subjects to the writ jurisdiction of court. Having regard to these aspects, mere absence of corrective machinery by way of appeal or review would not in our view render the provision invalid."
19. With all due reverence at my command, I am of the view that the backdrop under which the principles of natural justice has been directed and solicited to be adhered to in para 8 of the said judgment it was in a situation where the town planning scheme, was sought to be enforced and as a consequence thereto of the enforcement of the scheme, the occupants were supposed to be evicted from the property which they were allegedly occupying. The basic ethos of deciding the aforesaid case, based on the principle of natural justice for effecting the person who were in occupancy of the property may not be having the same principle, which may be equally made applicable in the present case where the determination of
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stamp liability, has to be made under the provision of Stamp Act and hence, the said principle as relied from para 8 which is referred to above, will not apply in the present case.
20. This Court is also conscious of the view that the modalities, and the reasoning, which the petitioner has sought to argue in the present writ petition of having a bearing of non providing him with an effective opportunity to defend his case before the court below on account of the deficiency in the notice issued to him, which he has pointed out, the parameters which he anticipated that after putting appearance and placing the documents on record, he was expected to be issued with the notices under Rule 7, for providing him an opportunity to have his say into the matter, in the manner in which the determination of deficiency of stamp has been made by the respondents, I am of the view that all these aspects, will still fall to be within the ambit of factual consideration under Section 56 of the Act. Consequently, since the petitioner has not got an effective statutory remedy available under Section 56, this writ petition is being dismissed on the ground of availability of statutory remedy to the petitioner under Section 56 of the Stamp Act.
(Sharad Kumar Sharma, J.) Arti