Allahabad High Court
Sushil Kumar Jain vs State Of U P And 2 Others on 2 August, 2019
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 21.05.2019 Delivered on 02.08.2019 Case :- WRIT - C No. - 16942 of 2019 Petitioner :- Sushil Kumar Jain Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ashish Kumar Singh,Rahul Jain Counsel for Respondent :- C.S.C. With Case :- WRIT - C No. - 16951 of 2019 Petitioner :- Sushil Kumar Jain Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ashish Kumar Singh,Rahul Jain Counsel for Respondent :- C.S.C. With Case :- WRIT - C No. - 16956 of 2019 Petitioner :- Sushil Kumar Jain Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ashish Kumar Singh,Rahul Jain Counsel for Respondent :- C.S.C. With Case :- WRIT - C No. - 16960 of 2019 Petitioner :- Sushil Kumar Jain Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ashish Kumar Singh,Rahul Jain Counsel for Respondent :- C.S.C. Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the parties.
2. The issue involved in the bunch of petition is as to whether a stranger or third party can be said to be an aggrieved person by an order passed by competent authority in a proceeding under Section 47-A of the Indian Stamp Act, 1899 (hereinafter referred to as 'Act, 1899') and has locus- standi to maintain an application under Section 57 of the Act, 1899 in the context of word 'otherwise coming to its notice' used in Section 57 (1) of the Act, 1899, and on such an application being filed, whether the Chief Controlling Revenue Authority is under obligation to make reference to the High Court.
3. For the convenience, the facts are delineated from Writ - C No. 16942 of 2019.
4. The case of the petitioner is that he is the owner and in possession of Khasra No.2765 (1 bigha 3 biswa), 2767 (6 bigha 1 biswa and 1 kothi), 2768 (3 biswa), 2769 (4 biswa), 2770 (3 bigha 5 biswa) in total 10 bigha and 17 biswa or 27439.65 square meters of land. One Mr. Deep Chand Jain, Vijai Kumar Jain (S/o Deep Chand Jain), Gopi Chand Jain and Akshay Kumar Jain (S/o Gopi Chand Jain) also had share in the aforesaid khasra. According to the petitioner, a family settlement was entered into between the parties on 08.05.1977 in which 7941.06 square meter of the land in the south came to the share of Deep Chand Jain, Vijay Kumar Jain, Gopi Chand Jain, and Akshay Kumar Jain. After the death of Deep Chand Jain and Vijay Kumar Jain, the aforesaid portion was inherited by Smt. Vaishalya Jain widow of late Vijay Kumar Jain and his sons Atul Kumar and Sanjay Jain. The petitioner was given 19498.60 square meter in the north of the aforesaid khasra as per the settlement.
5. The further case of the petitioner is that Smt. Vaishalya Jain and her son after long span of time of family settlement expressed their desire that they are entitled to more share in the aforesaid plots and Smt. Vaishalya Jain and Sanjay Jain illegally without having any title sold an area of 0.2386 hectare in favour of respondent no.3 Ravindra Kumar Tyagi by registered sale deed executed on 21.07.2015 which in fact was given to the petitioner under family settlement deed dated 08.05.1977.
6. From the pleadings in the writ petition, it appears that petitioner has obtained an exparte decree of injunction dated 28.04.2017 with respect to the land for which sale deed has been executed, and the said decree has been put in execution by filing Case No. 615 of 2015.
7. It transpires from the record that a case No. 225 of 2017-18 (computerized No. D-2017115203148) was registered on the report of sub-Registrar dated 11.11.2016 for deficiency of stamp duty against respondent no.3. The Assistant Collector (Stamp)/Collector (Stamp), Meerut determined the stamp deficiency at Rs.50,290/- by order dated 02.11.2018 on the basis of report dated 21.12.2017 submitted by Assistant Inspector General Registration, Meerut, .
8. The respondent no.3 feeling aggrieved by order dated 02.11.2018 passed by Assistant Commissioner (Stamp), Meerut in Case No. 225 of 2017-18 (computerized No. D-2017115203148) preferred statutory appeal before Deputy Commissioner (Stamp) Meerut Division, Meerut which was numbered as Case No. 02385 of 2018 (computerized no. C201811000002385).
9. The petitioner, though, was not a party before the Assistant Commissioner (Stamp), Meerut preferred statutory appeal No.C201911000000162 challenging the order dated 02.11.2018 in Case No. 225 of 2017-18 (computerized No. D-2017115203148) wherein he contended that respondent no.3 in collusion with respondents authorities have evaded huge stamp duty. The petitioner in the said appeal also preferred an application in the month of March, 2019 under Section 57 of the Act, 1899 seeking reference to the High Court on the following questions:-
"1. क्या जिलाधिकारी महोदय द्वारा निर्धारित सर्किल रेट अंकन ९०००/- रुपये प्रति वर्ग मीटर होने के पश्चात् सब रजिस्ट्रार मेरठ को उससे कम दर पर स्टाम्प की गड़ना करने का अधिकार प्राप्त हैं, या नहीं?
२. क्या प्रश्नगत संपत्ति की दर जिलाधिकारी महोदय द्वारा निर्धारित सर्किल रेट के अनुसार ९०००/- प्रति वर्ग मीटर होती हैं या नहीं?
३. क्या भूमि आबादी की होने व नगरपालिका के ३५० मीटर परिधि के अंदर होने के कारण शासनदेश के अनुपालन में आबादी की दर देय थी या नहीं?
४. क्या एक ही ज़मीन के दो अलग अलग दरों के गड़ना करके बैनाम निष्पादित करके रजिस्ट्रार महोदय द्वारा त्रुटि की गयी हैं?
10. According to petitioner, the land in question is an abadi land within the urban area and, therefore, stamp duty in respect of aforesaid land is chargeable @ Rs. 9000 per square meter applicable to residential land whereas the stamp duty @ Rs. 8,000/- per square meter applicable to the agricultural land was paid by the respondent no.3. Thus, respondent no.3 has evaded huge stamp duty by paying the stamp duty applicable to the agriculture land treating the land in question as agriculture land.
11. The appeal of the petitioner was connected with the appeal of respondent no.3 and both the appeals came to be decided by the Deputy Commissioner (Stamp), Meerut Division, Meerut by order dated 15.03.2019 whereby the appellate authority affirmed the order of the Assistant Commissioner (Stamp), Meerut and dismissed the appeal of the respondent no.3 as well appeal of the petitioner. While dismissing the appeal of the petitioner, the appellate authority recorded a finding that application under Section 57 of the Act, 1899 has been filed by the petitioner only for the purpose of delay in disposal of appeal and accordingly, the appellate authority has rejected the application dated 13.03.2019/14.03.2019 of the petitioner under Section 57 of the Act, 1899. The appellate authority further held that though petitioner has contended in the appeal that the order of the Assistant Commissioner (Stamp), Meerut is against the settled principles of law and without application of judicial mind but the appellant/petitioner could not establish on record that the order of the Assistant Commissioner (Stamp), Meerut dated 02.11.2018 is not as per law. Accordingly, on merit also the appellate authority found that case of petitioner is not sustainable in law, and consequently, it dismissed the appeal of the petitioner.
12. The petitioner in the present petition has challenged the order of the appellate authority dated 15.03.2019 only to the extent by which his application under Section 57 of the Act, 1899 has been rejected which is also evident from the prayer made by the petitioner in the writ petition which is extracted herein below:-
"Issue a writ order or direction in nature of certiorari quashing the part of order dated 15.03.2019 where by the application under section 57 of the Indian Stamp Act, 1899 has been dismissed by respondent no.2 (Annexure-1)"
13. Challenging the aforesaid order, learned counsel for the petitioner contends that appellate court has erred in law in rejecting the application of the petitioner on the ground that the petitioner in order to delay the disposal of appeal has filed the application under Section 57 of the Act, 1899 without appreciating the facts on record which clearly establishes that it was a case of evasion of heavy stamp duty by the respondent no.3 and a clear case of reference under Section 57 was made out, and therefore,the appellate authority was bound to refer the matter to the Chief Controlling Revenue Authority, who under Section 57 of the Act, 1899 was under obligation to refer the questions framed in the said application to the High Court.
14. He further submits that Section 57 of the Act, 1899 envisages two modes to make reference. The first one is provided under Section 56(2) of the Act, 1899 and second is by virtue of words 'otherwise coming to its notice' used in Section 57(1) of the Act, 1899. According to the petitioner, he derives his locus to file application for reference from the words 'otherwise coming to its notice' in Section 57 (1) of the Act, 1899 and thus, he contends that anybody who finds a case of evasion of stamp duty can bring to the notice of Chief Controlling Revenue Authority by filing application under Section 57 of the Act, 1899, and once it has come to the notice of Chief Controlling Revenue Authority that there is evasion of stamp duty and there is substantial question of law, an obligation is imposed upon the Chief Revenue Controlling Authority to refer the matter to the High Court. Thus, the submission of learned counsel for the petitioner is that an application of petitioner under Section 57 of the Act, 1899 was maintainable, and the appellate authority has erred in dismissing the application of petitioner under Section 57 of the Act, 1899. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgement of this Court in the case of Akhlaq Vs. State of U.P. & Others 2019(3) ADJ 378.
15. Rebutting the aforesaid submission, learned Additional Chief Standing Counsel contends that petitioner is not an aggrieved person and as such he has no locus standi to file an application under Section 57 of the Act, 1899. According to him, the words 'otherwise coming to its notice' used in Section 57 (1) of the Act connotes only those who are party to the proceeding meaning thereby that besides the State Authority, the person against whom stamp duty is imposed is also provided a remedy under Section 57 (1) of the Act, 1899 for reference of his case to the High Court if any substantial question of law is involved. He further submits that the words "otherwise coming to its notice' is to be interpreted in the context of the scheme of the Act and legislature has taken due care to protect the interest of the State from evasion of stamp duty as right of appeal is also provided to the Government under Section 56(1-A) of the Act, 1899 and thus, the words "otherwise coming to its notice' cannot be stretched to an extent to bring within its compass the person who is not a party to lis. In support of his aforesaid submission, he has placed reliance upon the judgement of Apex Court in the case of Raymond Ltd. & Another Vs. State of Chhatisgarh and Others AIR 2007 SC 2854.
16. He further submits that petitioner is not a bona fide litigant inasmuch as it is clear from the pleadings in the writ petition that petitioner has obtained some exparte injunction decree against respondent no.3, and to settle his personal score, he has preferred the appeal against the order dated 02.11.2018 and filed application under Section 57 in the said appeal. He submits that it is settled principles of law that a person who is espousing a cause of public interest should not have any personal interest in espousing the said cause, and in the present case, it is evident from the pleadings in the writ petition that the petitioner has personal grievance against respondent no.3, therefore, the appeal as well as application under Section 57 of the Act, 1899 preferred by the petitioner was not bona fide and deserves to be dismissed on this ground also.
17. I have considered the rival submissions of the parties and perused the record of the case.
18. Before adverting to the rival submissions of the parties, it is pertinent to have glance at Sections 56 and 57 of the Act, 1899 which are extracted herein below:-
"56 Control of and statement of case to Chief Controlling Revenue Authority-(1) The powers exercisable by a Collector under Chapter IV and Chapter V and under clause (a) of the first proviso to section 26 shall in all cases be subject to the control of the Chief Controlling Revenue-authority.
(1-A) Notwithstanding anything contained in any other provisions of this Act, any person including the Government aggrieved by an order of the Collector under Chapter IV, Chapter V or under clause (a) of the first proviso to Section 26 may, within sixty days from the date of receipt of such order, prefer an appeal against such order to the Chief Controlling Revenue Authority, who shall, after giving the parties a reasonable opportunity of being heard consider the case and pass such order thereon as he thinks just and proper and the order so passed shall be final:
Provided that no application for stay or recovery of any disputed amount of stamp duty including interest thereon or penalty shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than one-third of such disputed amount:
Provided further that where the Chief Controlling Revenue Authority passes an order for the stay of recovery of any stamp duty, interest thereon or penalty or for the stay of the operation of any order appealed against and such order results in the stay of recovery of any stamp duty, interest thereon or penalty, such stay order shall not remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the Collector concerned for the payment of the outstanding amount].
(2) If any Collector, acting under section 31, section 40 or section 41, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue-authority.
...
57. Statement of case by Chief Controlling Revenue-authority to High Court. -- (1) The Chief Controlling Revenue-authority may state any 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, --
[(a) if it arises in a State, to the High Court for that State;
[(b) if it arises in the Union territory of Delhi, to the High Court of Delhi;
[(c) if it arises in the Union territory of Arunachal Pradesh or Mizoram, to the Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura)];
(d) if it arises in the Union territory of the Andaman and Nicobar Islands, to the High Court at Calcutta; and
(e) if it arises in the Union territory of the [Lakshadweep], to the High Court of Kerala];
(ee) if it arises in the Union territory of Chandigarh, to the High Court of Punjab and Haryana;
[(f) if it arises in the Union territory of Dadra and Nagar Haveli, to the High Court of Bombay.] (2) Every such case shall be decided by not less than three Judges of the High Court 1*** to which it is referred, and in case of difference the opinion of the majority shall prevail."
19. Section 56 (1-A) provides appeal by any person including the Government aggrieved by an order of the Collector under Chapter IV, Chapter V or under clause (a) of the first proviso to Section 26 to the Chief Controlling Revenue Officer. Thus, the legislature has taken due care to safeguard the interest of the State in case of evasion of stamp duty by conferring the power of appeal upon the Government against the order of Collector under the chapter IV & V or clause (a) of first proviso to Section 26.
20. Further, as per Section 56(2) if the Collector, acting under section 31, section 40 or section 41, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw a statement of the case and refer it with his own opinion for the decision of Chief Controlling Revenue Authority. Thus, Section 56(2) postulates another mode of determination of the amount of duty chargeable on any instrument by Chief Controlling Revenue Authority in case of any doubt about the amount of duty chargeable on the said instrument.
21. Section 57(1) envisages two modes when the Chief Controlling Revenue Authority can make reference to the High Court. Firstly, if any case is referred to him by the Collector under Section 56(2), and the secondly the cases which 'otherwise coming to its notice'. In the context of the present case, one of the pertinent question which arises for consideration is as to whether the appeal under Section 56(1-A) by the petitioner against the order dated 02.11.2018 passed by Assistant Commissioner (Stamp), Meerut in Case No. 225 of 2017-18 (computerized No. D-2017115203148) was maintainable and if not, whether the application under Section 57 of the Act, 1899 could be filed by the petitioner in an appeal which was not maintainable on his behalf.
22. To appreciate the question as to whether the appeal could be filed by the petitioner against the order of the Assistant Commissioner (Stamp), Meerut dated 02.11.2018, it would be useful to refer the judgement of the Apex Court in the case of Northern Plastics Ltd. Vs. Hindustan Photo Films MFG Co. Ltd. (1997) 4 SCC 452. In the said case, appellant (Northern Plastics Ltd.) was allowed by the order passed by the Assistant Collector of Customs, Bombay dated 05.06.1989 whereby he agreed with the notings made by the Assistant Collector of Customs, Bombay dated 31.05.1989 recommending the release of the imported goods to the appellant on payment of full custom duty. The aforesaid order was challenged by one M/s Hindustan Photo Films MFG Co. Ltd. (hereinafter referred to as 'HPF') and also by Union of India in several legal proceedings. However, having not succeeded in those proceedings, HPF and Union of India preferred separate appeals challenging the order dated 05.06.1989 passed by the Assistant Collector of Customs, Bombay before the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT') under Section 129-A of the Customs Act, 1962 (hereinafter referred to as 'Act, 1962'). The CEGAT held the appeals preferred by the HPF as well as Union of India not maintainable on the ground that they do not fall within the ambit of words 'any person aggrieved' used in Section 129-A of the Act, 1962, and consequently, it dismissed both the appeals. The HPF as well as Union of India preferred two writ petitions against the order of CEGAT dismissing the appeal, and the High Court allowed the writ petition of HPF as well as Union of India holding that appeal on behalf of HPF as well as Union of India was maintainable.
23. Feeling aggrieved by the judgement of the High Court in the two writ petitions, the appellant (Northern Plastics Ltd.) preferred Special Leave Petition before the Apex Court. The Apex Court after considering the scheme of the Act, 1962 affirmed the order passed by the CEGAT holding appeal of Union of India and the HPF not maintainable. The Apex Court also held that principle underlying in respect of concept of locus standi in public interest litigation filed before Apex Court under Article 32 of Constitution of India or under Article 226 of Constitution of India before High Court cannot be imported for deciding the right of appeal under the statutory provisions contained in the Customs Act, 1962. The Apex Court further held that only those permitted by the statute to prefer appeal can exercise the right of appeal subject to the conditions regarding filing of such appeals. Paragraphs 8 and 9 of the aforesaid judgement are being extracted herein below:-
"8. At the outset it must be kept in view that appeal is a creature of statute. The right to appeal has to be exercised by persons permitted by the statute to prefer appeals subject to the conditions regarding the filing of such appeals. We may in this connection usefully refer to a decision of four learned judge of this Court in the case of The Anant Mills Co. Ltd. etc. etc. v. State of Gujarat & others etc. etc. [AIR 1975 SC 1234 = (1975) 2 SCC 175]. In that case Khanna, J., speaking for the Court had to consider the question whether the provision of statutory appeal as per Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, 1949 which required the appellant to deposit the disputed amount of tax before appeal could be entertained could be said to be in any way violative of Article 14 of the Constitution of India. Repelling the aforesaid challenge to the vires of the said provision the following pertinent observations were made in para 40 of the Report :
"...The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income-tax Act, 1922. The proviso to the section provided that '..........no appeal shall lie against an order under sub-section (1) of Section 46 unless the tax had been paid'. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the Legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for discharge of that liability or the fulfilment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it ........."
9. It has also be noted that the wider concept of locus standi in public interest litigation moved before this Court under Article 32 of the Constitution of India which itself is a fundamental right or under Article 226 before High Courts which also offers a constitutional remedy cannot be imported for deciding the right of appeal under the statutory provisions contained in the Customs Act. Whether any right of appeal is conferred on anyone against the orders passed under the Act in the hierarchy of proceedings before the authorities has to be judged from the statutory settings of the Act and not before them. Therefore, in our view, the High Court in the impugned judgment had erred in drawing the analogy from the more elastic concept of locus standi under Article 32 of Article evolved by this Court by its decisions on the subject. It is also to be appreciated that the decision of this Court in Bar Council of Maharashtra v. M.V. Dabholkar etc. etc. AIR 1975 SC 2092 was based on an entirely different statutory scheme. For judging the competence and locus standi of the Union of India or the HPF for moving appeals before CEGAT against the order of Additional Collector of Customs passed under Section 122 of the Act the answer must be found from within the four corners of the Act itself."
24. In paragraph 10 of the judgment of Northern Plastics Ltd. (supra), the Apex Court held that the only the parties to proceedings before the Adjudicating Authority i.e. Collector of Customs could prefer such an appeal to the CEGAT. Relevant portion of paragraph 10 of the aforesaid judgement is being extracted herein below:-
10.... "In the light of this statutory scheme, therefore, it is not possible to agree with the contention of learned counsel for the contesting respondents that sub-section (1) of Section 129-A entitles any and every person feeling aggrieved by the decision or order of the Collector of Customs as an adjudicating authority, to prefer statutory appeal to the Appellate Tribunal. Neither the Central Government, through Industries Department, nor the rival company or industry operating in the same field as the importer can as a matter or right prefer an appeal as 'person aggrieved' is wider than the phrase 'party aggrieved'. But in the entire context of the statutory scheme especially sub-section (3) of Section 129-A it has to be held that only the parties to the proceedings before the adjudicating authority Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under S.122 can prefer such an appeal only when directed by the Board under Section 129-D(1) and not otherwise. It is easy to visualise that even a third party may get legitimately aggrieved by the order of the Collector of Customs being the adjudicating authority if it is contended by such a third party that the goods imported really belonged to it and not to the purported importer or that he had financed the same and, therefore, in substance he was interested in the goods and consequently the release order in favour of the purported importer was prone to create a legal injury to such a third party which is not actually arraigned as a party before the adjudicating authority and was not heard by it. Under such circumstances such a third party might perhaps be treated to be legally aggrieved by the order of the Collector of Customs as an adjudicating authority and may legitimately prefer an appeal to the CEGAT as a 'person aggrieved'. That is the reason why the Legislature in its wisdom has used the phrase 'any person aggrieved' by the order of Collector of Customs as adjudicating authority in Section 129-A(1). But it order to earn a locus standi as 'person aggrieved' other than the arraigned party before the Collector of Customs as an adjudicating authority it must be shown that such a person aggrieved being third party has a direct legal interest in the goods involved in the adjudication process. It cannot be a general public interest or interest of a business rival as is being projected by the contesting respondents before us............."
25. Further in paragraph 12 of the judgment of Northern Plastics Ltd. (supra), Apex Court repelled the contention of Union of India that appeal on behalf of Union of India was maintainable as it has to subserve a larger public interest. Relevant portion of paragraph 12 of the aforesaid judgement is being extracted herein below:-
".......12. So far as the Union of India is concerned we may proceed on the basis that it may have to subserve a larger public interest by raising the present dispute and may legitimately feel aggrieved by the order of the Additional Collector of Customs. But even if it is so, the statutory procedure laid down by the Parliament in its wisdom for enabling the challenge to the adjudication order of the Collector of Customs by way of appeals or revisions, to which we have made a mention, has got to be followed in such an eventuality........"
26. Now, in the case in hand, it is evident that Section 56 (1-A) of the Act, 1899 confers the right of appeal to those aggrieved by the order of the Collector passed under Chapter IV, Chapter V or under clause (a) of the first proviso to Section 26 or to the Government. A plain reading of Section 56 (1-A) clearly suggests that it is only those who are party to the lis have been conferred the right of appeal and, therefore, in the opinion of the Court, the appeal on behalf of the petitioner against the order dated 02.11.2018 passed by the Assistant Commissioner (Stamp), Meerut was not maintainable as petitioner was not a party in proceeding under Section 47-A of the Act, 1899 before Assistant Commissioner (Stamp), Meerut. Since appeal on behalf of petitioner was not maintainable, therefore, in the opinion of the Court, application under Section 57 of the Act, 1899 on behalf of petitioner was also not maintainable.
27. The present controversy can also be viewed from one more perspective i.e. whether any application preferred by any person to the Chief Controlling Revenue Authority under Section 57 of the Act, 1899 would fall within the word 'otherwise' which entitles him for reference under Section 57 of the Act, 1899. In this regard it is pertinent to notice the judgement of Apex Court in the case of Raymond Ltd. & Another (supra) relied upon by the learned counsel for the respondents wherein Apex Court while interpreting Section 56(4) inserted by way of State amendment held that revisional power conferred under Section 56(4) of the Act, 1899 is to be exercised by the Board of Revenue either on its own motion or on application of 'any party'. The Apex Court further held that the word 'any party' implies both parties to the lis. Paragraph 16 of the aforesaid judgement is being extracted herein below:-
"16. It is true that Sub-section (2) of Section 56 of the Act does not refer to Section 32 but the same, in our opinion, was not necessary. Sub-section (4) of Section 56 was inserted by way of a State Amendment. The intention of the legislature in inserting the said provision is clear and explicit as by reason thereof a power of revision has been conferred upon the highest authority of Revenue in the State, viz., Board of Revenue. The revisional power is to be exercised by the Board of Revenue either on its own motion or on an application by any party. The term "any party" used in the said provision is of some significance. By reason of the said provision, not only the State but also the person who had filed an application under Section 31 of the Act, thus, may file a revision application before the Board of Revenue. The terms "any party", therefore, implies both the parties to the lis and not the party filing an application under Section 31 of the Act alone. The revisional power is to be exercised by the Board so as to enable it to satisfy itself in regard to the amount with which the instrument is chargeable with duty. The revisional proceeding has a direct nexus with determination of an instrument being charged with duty and not the endorsement made thereupon at a subsequent stage."
28. Even in the case of Banarsi Das Ahluwalia Vs. The Chief Controlling Revenue Authority, Delhi, the Apex Court held that the person against whom any order of Revenue Authority imposing penalty or deficient stamp duty is passed, and if it involves substantial question of law, he has remedy under Section 57 of the Act, 1899 to approach the Chief Controlling Revenue Authority for referring the case to the High Court. Relevant portion of aforesaid judgement is being extracted herein below:-
".....It also must now be taken as settled that that duty is not affected by the question whether the case is pending before the Authority or not. The principle underlying the decision is that sec. 57 affords a remedy to the citizen to have his case referred to the High Court against an order of a revenue authority imposing stamp duty and/or penalty provided the application involves a substantial question of law and imposes a corresponding obligation on the authority to refer it to the High Court for its opinion. Such a right and obligation cannot be construed to depend upon any subsidiary circumstance such as the pendency of the case before the Authority......."
29. Thus, the principles underlined in the aforesaid judgement unambiguously suggests that any person aggrieved by the order of the Revenue Authority can approach the Chief Controlling Revenue Authority under Section 57 of the Act, 1899 for reference of his case to the High Court if it involves substantial question of law, and the Chief Controlling Revenue Authority is under obligation to refer the case to the High Court. Under the scheme of the Act, there is nothing from which it can be inferred that the words 'otherwise coming to its notice' used in Section 57 (1) of the Act, 1899 can be stretched to such an extent so as to include within its periphery any person and not only the persons who are party to the lis.
30. The judgement of this Court in the case of Akhlaq (supra) relied upon by the learned counsel for the petitioner has been rendered by this Court in the case of fair price shop matter by placing reliance upon the judgement of Apex Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra & Others AIR 2013 SC 58, and this Court held that complainant has right to approach the High Court under Article 226 of the Constitution of India to challenge the order passed by the appellate authority restoring the licence of the original licence holder. In this regard it is also worth mentioning that this Court in the aforsaid case has failed to notice the judgement of the Apex Court in the case of Northern Plastics Ltd. (supra) wherein Apex Court has clearly held that the right of appeal is statutory right and can be availed only by those who are conferred the right of appeal under the statute itself and not by any one else.
31. Further, the Apex Court in the case of Ayaaubkhan Noorkhan Pathan (supra) which has been relied upon by this court in the case of Akhlaq (supra) has also reiterated the principles that the person who is not a party to the lis has no right to challenge an action. In the said case, the respondent no.5 in the Special Leave Petition before the Apex Court has questioned the validity of the caste certificate issued in favour of appellant (Ayaaubkhan Noorkhan Pathan). The High Court allowed the writ petition of respondent no.5 holding that respondent no.5 has locus-standi to question the legality of caste certificate issued in favour of appellant (Ayaaubkhan Noorkhan Pathan). The Apex Court reversed the judgement of the High Court and held that respondent no.5 has no locus to challenge the caste certificate of the appellant (Ayaaubkhan Noorkhan Pathan). Paragraph 23 of the aforesaid judgement is being extracted herein below:-
"23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus-standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect.
32. Thus, for the reasons given above, the judgement of this Court in the case of Akhlaq (supra) does not come in aid of the petitioner. Accordingly, considering the fact that legislature has provided sufficient safeguard in case if there is any evasion of stamp duty by permitting the Government to prefer appeal under Section 56(1-A) of the Act, 1899, and further in case of any doubt regarding the chargeability of stamp duty under Section 31, Section 40 or Section 41, the Collector can refer the matter to the Chief Controlling Revenue Authority, in the opinion of the Court, the submission of learned counsel for the petitioner that the present is a case of evasion of heavy stamp duty which has been brought to the notice to Chief Controlling Revenue Authority by the petitioner and the Chief Controlling Revenue Authority is obliged to refer the matter to the High Court is devoid of merit and is rejected. Further, in the scheme of the Act, the words ''otherwise coming to its notice' used in Section 57 of the Act gives remedy to the private party also who is one of the party to the lis to refer its case to the High Court in case it involves substantial question of law.
33. The petitioner even otherwise is not a bona-fide litigant for the reason that some family dispute is pending between the parties, and the petitioner as is evident from the pleadings in the writ petition has obtained an ex-parte decree of injunction. Thus, it is evident that the petitioner in order to espouse his personal cause, had preferred the appeal against the order of the Assistant Collector (Stamp)/Collector (Stamp), Meerut and filed an application under Section 57 of the Act, 1899 for reference to the High Court. Since, the petitioner is not a bona fide litigant and in fact has opted the remedy of appeal in order to settle his personal score, therefore, it is not a fit case of exercise of extra ordinary power by this Court under Article 226 of Constitution of India.
34. Thus, in the light of the above observations and discussions, all the four writ petitions are not maintainable and consequently, dismissed. There shall be no order as to cost.
Order Date :- 02.08.2019 Sattyarth