Allahabad High Court
Super Seal Flexible Hose Limited Thru ... vs State Of U.P. And 2 Others on 5 December, 2022
Author: Siddhartha Varma
Bench: Siddhartha Varma, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No.40 Case :- WRIT - C No. - 61914 of 2017 Petitioner :- Super Seal Flexible Hose Limited Thru Its Auth. Signatory Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Prakhar Tandon,V.K. Singh Counsel for Respondent :- C.S.C. WITH Case :- WRIT - C No. - 30548 of 2008 Petitioner :- Super Seal Flexible Hose Ltd. Respondent :- State of U.P. and Others Counsel for Petitioner :- S. Shekhar,V.K. Singh Counsel for Respondent :- C.S.C.,G.P. Srivastava,G.P.Goswami,Mahesh Narain Singh Hon'ble Siddhartha Varma, J.
Hon'ble Ajit Singh, J.
(Per : Siddhartha Varma, J.) Writ-C No.30548 of 2008 was filed with a prayer that the notice dated 5.5.2008 which was issued by the Collector, Gautam Budh Nagar and the letter dated 11.1.2008 which was issued by the respondent no.3-Sub-Registrar, Gautam Budh Nagar be quashed.
The notice which was served upon the petitioner was a notice under sections 17, 27, 33, 40, 47-A and 64 of the Indian Stamp Act, 1899 read with Rules 7, 8, 9 and 10 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997. The notice was to the effect that the document i.e. the lease deed which was executed by the U.P. State Industrial Development Corporation-respondent no.4 (hereinafter referred to as the "UPSIDC") on 17.12.2007 had not stated about certain properties which were leased out to the petitioner and, therefore, as per the notice there was a shortage of stamp duty to the extent of Rs.74,08,000/-. The petitioner was required to appear on 4.6.2008 and was required to place before the Stamp Authorities its version. Apparently, the notice was based upon an inspection report of the Sub-Registrar of the Registration Department dated 11.1.2008. When the writ petition was filed, an order was passed by a Division Bench of this Court on 2.7.2008. The same is being reproduced here as under :-
"1. Heard Sri V.K. Singh in support of this petition. Sri Goswami appears for Respondents no.1, 2 and 3. Sri Mahesh Narain Singh appears for Respondent no.4. Sri V.K. Singh states that he will file reply to the notice which the petitioner has received.
2. Matter to stand over to 30.7.2008."
As per the order, the petitioner was required to file a reply to the notice which was challenged in the writ petition.
When on 5.12.2017 a citation to appear was issued by the respondent no.3 i.e. the Tehsildar, Gautam Budh Nagar for depositing Rs.1,48,16,000/- as deficient stamp duty, the petitioner filed Writ-C No.61914 of 2017 for quashing of the citation dated 5.12.2017 and for the quashing of the recovery certificate which was issued earlier by the Collector on 10.11.2017. The petitioner also had sought the quashing of the order dated 28.8.2017 which was the order of the Collector under section 33/47-A of the Indian Stamp Act, 1899. The complete copy of this order was brought on record by a Supplementary Affidavit dated 28.9.2022. The Writ-C No.61914 of 2017 was entertained by this Court and order dated 21.12.2017 was passed which is being reproduced here as under :-
"Connect with Writ C No.30548/2008.
Learned Standing Counsel has accepted notice on behalf of the respondents, who may file counter affidavits within a month. Rejoinder if any, within two weeks thereafter.
List in the week commencing 12.3.2018.
Till the next date of listing, the recovery proceedings pursuant to citation dated 5.12.2017, shall remain stayed, provided the petitioner deposits 1/3rd of the entire deficiency with upto-date-interest, before the Collector concerned within 2 months from today. Previous deposit, if any, shall stand adjusted.
However, in the event of default, the interim order shall stand automatically vacated."
Thereafter, affidavits between the parties were exchanged. However, since the petitioner was aggrieved by the fact that the High Court had directed by its order dated 21.12.2017 to deposit 1/3rd of the entire amount of deficiency as was found by the Stamp Authorities, the petitioner had filed a Special Leave Petition (Civil) No.3465 of 2018. The Supreme Court in the SLP refused to interfere but directed the petitioner to bring on record all the Government Orders before the High Court which it was producing before the Supreme Court and the SLP was finally disposed of. While disposing the SLP, the amount which was directed to be deposited by the petitioner was deferred. The order of the Supreme Court is being reproduced here as under :-
"Mr. K.V. Vishwanathan, learned senior counsel appearing for the petitioner, has invited our reference to the Government Order dated 06.07.2006. It is submitted that in a case of undisputed demerger, the petitioner is entitled to the benefit of the Deferment Order and, therefore, the stamp duty need not be paid afresh.
The petitioner is permitted to file an application before the High Court on this specific contention within a period of three weeks from today, in which case, we request the High Court to consider the application for modification of the interim order dated 21.12.2017 and pass appropriate orders within thirty days from the date of filing of the application.
Till orders are passed on the application to be filed by the petitioner, the direction for deposit may be deferred.
In view of the above, the Special Leave Petition is disposed of.
Pending Interlocutory Applications, if any, stand disposed of."
The matter was heard on 21.10.2022. Sri V.K. Singh, learned Senior Counsel assisted by Sri S.Shekhar and Sri Nagendra Singh, Advocates argued for the petitioner. Sri Nimai Das, learned Additional Chief Standing Counsel assisted by Sri R.D. Mishra, Advocate argued for the State and Sri Mahesh Narain Singh appeared for respondent no.4-UPSIDC in Writ-C No.30548 of 2008.
Facts leading to the filing of the two writ petitions are that M/s. Super Seals India Limited (the transferor company) had two divisions namely, Sealing Products Division and Hose Division. The transferee company i.e. the petitioner-Super Seal Flexible Hose Limited was dealing only in the Hose Division. Therefore, the company-M/s. Super Seals India Limited (the transferor company) demerged its Sealing Product Division from the Hose Division and the Hose Division of Super Seals India Limited was amalgamated with the petitioner company M/s. Super Seal Flexible Hose Limited.
The transferor company, therefore, had filed an application under section 391(2) of the Companies Act, 1956 before the Delhi High Court for the approval of the Scheme of Arrangement. The Delhi High Court as per its order dated 22.11.2006 sanctioned the Scheme as was placed before it and, therefore, the shares which were of the transferor company to the extent they dealt with Hose Division stood transferred to the transferee company. The Delhi High Court while sanctioning the Scheme directed that the transferor company and the transferee company would comply with the statutory provisions and if the stamp duty was payable then it shall be paid in accordance with law. The operative portion of the order dated 22.11.2006 passed by the Delhi High Court is being reproduced here as under :-
"In view of the undertakings given above and the affidavit dated 20th November, 2006 of Mr. Deepak Talwar agreeing to change the appointed dated to 1st December, 2005, I allow the present petition. Subject to above modification and undertakings, the scheme is sanctioned. The transferor company and the transferee company will comply with the statutory provisions. Certified copy of the order will be filed within the ROC within five weeks from the date of the order. Stamp duty, if payable, shall be paid in accordance with law.
The petitions are disposed of."
After having complied with all the formalities, the transferee company i.e. the petitioner took over the manufacturing of flexible hose pipes. From the record, we find that after the Scheme of the transferor and transferee company was sanctioned under section 391(2) and Section 394 read with sections 100 and 103 of the Companies Act, 1956, all formalities as were required to be undergone as per the order of the Delhi High Court dated 22.11.2006 were undergone. The petitioner, which was the transferee company, thereafter became entitled to get its name recorded in the place of M/s. Super Seals India Limited. Here it may be noted that M/s. Super Seals India Limited and the petitioner Super Seal Flexible Hose Limited, both had separate lease deeds with the UPSIDC and, therefore, now the necessity arose to get only the name of Super Seal Flexible Hose Limited recorded in the records of UPSIDC. The UPSIDC thereafter taking into consideration the change which had taken place, executed a fresh lease deed in favour of the petitioner Super Seal Flexible Hose Limited on 17.12.2007. This document dated 17.12.2007 is the vortex of all controversy. It appears that an inspection was conducted by the Sub-Registrar, Registration Department of Gautam Budh Nagar on 24.12.2007 and it was found that in the total area of the plot no.B-7 which was measuring 19992.78 sq. meters, 11000 sq. meters (66% of the land) had constructions and there was a factory for the purposes of manufacturing of hose pipes running in the constructed portion and, therefore, the Sub-Registrar found that stamp worth Rs.74,08,000/- was deficient on the lease deed and thereafter he submitted his report dated 11.1.2008. The Collector, Gautam Budh Nagar thereafter under sections 17, 27, 33, 40, 47-A and 64 of the Indian Stamp Act 1899 read with Rules 7, 8, 9 and 10 of the U.P. Stamp (Valuation of Property) Rules, 1997 issued a notice to the petitioner to show cause as to why the deficiency of stamp be not recovered from the petitioner. This notice was issued on 5.5.2008. The petitioner thereafter challenged the inspection report and the notice by means of Writ-C No.30548 of 2008.
The petitioner has filed the order sheet of the case before the Collector and from the order sheet it appears that on 4.6.2008, 16.6.2008, 27.6.2008 dates were fixed and the petitioner continuously appeared and prayed for time for filing of the objection. On 10.7.2008 the order sheet indicates that the petitioner appeared and filed its objection to the show cause notice and also submitted certain evidence. The case was thereafter fixed for 16.7.2008 for arguments. On 16.7.2008 the Presiding Office was busy and, therefore, the case could not be taken up and 21.7.2008 was fixed as the next date for arguments. On 21.7.2008, arguments were heard and the case was fixed for orders on 4.8.2008. On 4.8.2008 again the officer was busy and therefore, the case could not be taken up. On 10.8.2008 again, date was fixed for 1.9.2008. On 1.9.2008 again the officer was busy and the case was fixed for 18.9.2008 on which date again the matter was adjourned for 16.10.2008. On 16.10.2008, the officer was again busy and the case was fixed for 19.11.2008. On 19.11.2008, the officer was once again busy and the case was adjourned for 19.1.2009. Again the case could not be taken up and was fixed for 7.2.2009. On 7.2.2009, the officer was busy and the case was adjourned for 16.3.2009. On that date the petitioner had taken time and the arguments of D.G.C. (Revenue) were heard and the case was fixed for 23.3.2009 for orders. On 23.3.2009 again date was fixed for 13.4.2009. On 13.4.2009, an order was passed that the plant, machinery and the factory were to be inspected by the Executive Engineer of the Prantiya Khand, Lok Nirman Vibhag, Gautam Budh Nagar and the case was thereafter fixed for 7.8.2009. After 7.8.2009, the order sheet indicates that only general dates were fixed for 9.1.2010, 12.4.2010, 21.6.2010, 13.9.2010, 10.12.2010, 14.3.2011, 13.6.2011, 23.9.2011, 16.12.2011, 19.6.2012 and 20.7.2012. On 20.7.2012 there appears to be some order in the order sheet by which the report of the Executive Engineer was awaited. On 14.9.2012 again a date was fixed for 24.12.2012. On 24.12.2012, date was fixed for 14.1.2013. Thereafter date was again fixed for 11.2.2013 and thereafter again 18.3.2013 and 22.4.2013 were fixed. On all these dates the report of the Executive Engineer was awaited. On 22.4.2013, it appears that the petitioner did not appear and the case was fixed for 23.5.2013 on which date again the report of the Executive Engineer was not there and the case was adjourned for 17.6.2013. Thereafter 15.7.2013, 2.8.2013, 16.8.2013, 26.8.2013, 13.9.2013, 7.10.2013, 11.11.2013, 2.12.2013, 23.12.2013, 13.1.2014, 27.1.2014, 24.2.2014, 28.3.2014, 5.5.2014, 2.6.2014, 30.6.2014, 28.7.2014, 18.8.2014, 12.9.2014, 27.10.2014, 1.12.2014, 5.1.2015, 9.3.2015, 6.4.2015, 27.4.2015, 25.5.2015, 22.6.2015, 20.7.2015, 17.8.2015, 12.10.2015, 2.11.2015, 30.11.2015, 14.12.2015, 18.1.2016, 8.2.2016 and 7.3.2016 were fixed but no report from the Public Works Department was presented before the Prescribed Authority. Suddenly, on 4.4.2016, it appears that the report was placed and on that date the petitioner was not present. Yet, the case was fixed for 18.4.2016. Thereafter the order sheet reveals that dates were fixed for 2.5.2016, 23.5.2016, 27.6.2016, 11.7.2016, 8.8.2016, 5.9.2016, 19.9.2016, 24.10.2016, 28.11.2016, 26.12.2016, 23.1.2017, 13.2.2017, 20.3.2017, 24.4.2017, 22.5.2017, 12.6.2017, 3.7.2017 and 31.7.2017. On all these dates the petitioner had not appeared and on 14.8.2017, the case was ordered to proceed ex-parte against the petitioner and the opportunity to place its side of the case was withdrawn. The DGC (Revenue) ofcourse was heard in detail and the case was fixed for 28.8.2017 for orders. On 28.8.2017, the impugned order was passed. In pursuance of the impugned order, a recovery certificate was issued on 10.11.2017 by the Collector and the Collector thereafter forwarded the matter to the Tehsildar to recover the arrears by recovering them as arrears of land revenue.
Aggrieved thereof, the petitioner has filed the instant writ petition.
Learned counsel for the petitioner essentially made the following submissions :-
i. When the transferor company i.e. M/s. Super Seals India Limited demerged its Sealing Product Division from the Hose Division and the Hose Division got merged with the transferee company namely Super Seal Flexible Hose Limited then the scheme was placed before the Delhi High Court which sanctioned the scheme and it was categorically stated in the order that the transferor company and the transferee company would comply with all the statutory provisions. It had further stated that the certified copy of the order of the Delhi High Court would be placed before the Registrar of the Companies and all necessary formalities would be completed. Further the order of the Delhi High Court dated 22.11.2006 had stated that if any stamp was payable then it shall be paid in accordance with law. Learned counsel, therefore, submitted that if there was any transfer, it was between the transferor company and the transferee company and whatever stamp had to be levied, was also levied. Learned counsel for the petitioner has submitted that any stamp which was leviable had to be levied as per the judgment reported in 2009 (1) ADJ 569 : M/s. Hero Motors Ltd. vs. State of U.P. & Others.
ii. Learned counsel for the petitioner submitted that both the transferor company and the transferee company had separate leases with the UPSIDC and it was only to smoothen matters, the UPSIDC, after entering the name of the petitioner-company, requested the petitioner to enter into a fresh lease deed so that with regard to the land over which structures of the transferor company stood could be mutated in the name of the transferee company i.e. the petitioner Super Seal Flexible Hose Limited in its records.
iii. Learned counsel for the petitioner submitted that when the lease was signed on 19.12.2007 between the petitioner Super Seal Flexible Hose Limited with the UPSIDC, only the land was the subject matter of the lease. All transfer of the factories etc. of the transferor company was already stamped as per the order of the Delhi High Court dated 22.11.2006 and, therefore, the lease viz.-a-viz. the UPSIDC and the petitioner could be stamped only with regard to the land which was the subject matter of the lease.
iv. Learned counsel for the petitioner submits that if the order sheet of the case which was proceeded with before the Collector, was seen then it would be clear that the Collector had proceeded with the case in a very lackadaisical manner. Notice was issued to the petitioner on 5.5.2008. The petitioner had appeared and was sincerely pursuing the matter. On 10.7.2008, the petitioner had also submitted his objection to the notice and had also filed all the evidence and thereafter continuously only dates were fixed despite the fact that the petitioner had appeared. Till 13.4.2009 the petitioner had appeared but when on that date a report was called for from the Executive Engineer, Public Works Department, the Collector as also the petitioner thereafter awaited the report from the Executive Engineer. The petitioner, it appears, began to lose interest in the case as only dates were being fixed. Learned counsel submitted that ideally the petitioner ought to have appeared on all the dates fixed but when the Prescribed Authority from the order sheet was seeing that the petitioner had stopped attending the proceedings after 13.4.2009 then it was the duty of the Prescribed Authority to have issued notices afresh, specially when a report had come on record on 4.4.2016 and which necessarily had to be objected to.
v. Learned counsel for the petitioner states that when the report ultimately was produced on 4.4.2016, at least a notice ought to have been issued to the petitioner for appearing and for objecting to the notice. Learned counsel, therefore, submits that the order dated 14.8.2017, by which it was decided to proceed ex-parte against the petitioner and by which the opportunity to adduce evidence by the petitioner was closed, was an absolutely illegal order. He, therefore, submits that the impugned order dated 28.8.2017 was also absolutely an illegal order.
vi. Learned counsel for the petitioner submits that definitely the objections of the petitioner were on record. The objection could have been looked into before the passing of the order. He, however, submits that instead of looking into the objection, the Collector had only relied upon the order dated 14.8.2017 by which the case was ordered to proceed ex-parte.
vii. Learned counsel for the petitioner further submits that even if the Collector was passing the order ex-parte then he could not have relied upon the ex-parte report of the Sub-Registrar, Gautam Budh Nagar dated 11.1.2008 and he should have personally visited the spot and thereafter should have come to the conclusion as to what was the deficiency in the document. Learned counsel submitted that the report could have been used to initiate the proceedings but could not have been used to finally decide the deficiency. He relied upon a judgment of this Court dated 4.3.2005 passed in Writ Petition No.36661 of 2004 (Ram Khelawan alias Bachcha vs. State of U.P. & Ors.). He also relied, for laying stress further on this issue, on the judgments of this Court in Anshu Chhabara vs. Collector and Commissioner, Jhansi Division reported in 2009 (1) AWC 512 and in the case of Veer Bal Singh vs. State of U.P. & Ors. reported in 2009 (2) ADJ 481.
viii. Learned counsel for the petitioner submitted that when the report was called for from the Public Works Department on 13.4.2009 and the same was submitted on 4.4.2016 then definitely the petitioner expected a notice from the Authorities to present himself and also to object to the report.
ix. Learned counsel for the petitioner further submitted that the recital in the order that the petitioner had objected to the inspection which was sought to be done by the Executive Engineer was absolutely baseless.
x. Learned counsel for the petitioner further submitted that the penalty which had been imposed was also illegal as the same had been imposed without recording any reason. To bolster this argument of his, learned counsel relied upon the judgments of this Court in Aegis B.P.O. Service Ltd. vs. State of U.P. & Ors. reported in 2011 (1) AWC 33 and in Satya Vijay vs. State of U.P. & Ors. reported in 2012 (6) ADJ 188.
xi. Learned counsel also relied upon a Government Order dated 6.7.2006 which dealt with cases of undisputed demerger.
In reply, Sri Nimai Das, learned counsel appearing for the respondent nos.1, 2 and 3 which are the State respondents in both the writ petitions submitted that when the authority concerned has to come to a conclusion as to what was the stamp payable on a document then it had to see all the facts and circumstances and had to take into account the intentions of the parties. Learned Additional Chief Standing Counsel Sri Nimai Das has submitted that when the lease deed transferred a certain land in favour of the petitioner then all plants and machineries which were established on the land should have been taken into account after dealing with the valuation of the property for concluding as to what stamp had to be levied. Sri Nimai Das submitted that there was no defect in the notice and the notice ought to have been replied to and contested by the petitioner. He, therefore, submitted that no fault could be found in the order dated 28.8.2017. Learned Additional Chief Standing Counsel relied upon a decision of the Supreme Court in Duncans Industries Ltd. vs. State of U.P. & Ors. reported in AIR 2000 SC 355 to support his arguments. Learned Additional Chief Standing Counsel further submitted that the order impugned in the Writ-C No.61914 of 2017 was appellable and the writ petition may not be entertained.
A perusal of the counter affidavit filed by UPSIDC shows that the petitioner was given only the land on account of the lease which was executed by the UPSIDC.
Having heard learned counsel for the parties, this Court is of the view that the order dated 28.8.2017 which was passed by the Collector under section 33/47A of the India Stamp Act, 1899 cannot be sustained in the eyes of law inasmuch as the manner in which the order was passed was not correct.
From the record the Court finds that a notice was issued to the petitioner on 5.5.2008. The petitioner thereafter had appeared and on 10.7.2008 had filed objections to the show-cause notice. He had also submitted certain evidence which according to it were in its favour. Thereafter from the order sheet, which has been filed by the petitioner along with the rejoinder affidavit, it becomes clear that almost 70 dates were fixed. The petitioner had continued to appear. On 13.4.2009 an order was passed that the plant, machinery and the factory were to be inspected by the Executive Engineer of the Prantiya Khand, Lok Nirman Vibhag, Gautam Budh Nagar. Thereafter also several dates were fixed but on all these dates neither was the report filed by the Executive Engineer nor was the case taken up and after 22.4.2013 the petitioner had stopped appearing. Even after 22.4.2013 number of dates were fixed and the case was not taken up. Ultimately when on 4.4.2016, the report of the Executive Engineer of the Public Works Department was filed, the petitioner had no knowledge of the filing of the report and the case proceeded ex-parte by an order dated 14.8.2017 and ultimately it was decided on 28.8.2017. Ideally, as the petitioner's counsel had argued, the petitioner ought to have appeared on all the dates. However, the Court finds that when on 13.4.2009 the Executive Engineer of the Prantiya Khand, Public Works Department, Gautam Budh Nagar was directed to file the inspection report after a due inspection and after that when he had not filed the report on almost 50 dates, it was but natural that the petitioner had stopped appearing. The petitioner had no knowledge of the fact that the report was ultimately filed on 4.4.2016. The Court is, therefore, of the view that when the Prescribed Authority was looking at the order sheet and and was seeing that the petitioner was not appearing for the past so many dates, then a notice ought to have been given to the petitioner to appear in the case.
What is more, when on 4.4.2016 after a lapse of seven years when the report had been filed then the petitioner also ought to have been given an opportunity to object to the report. The report had stated that the petitioner had not allowed the Executive Engineer to inspect the premises. This the petitioner had stated in the writ petition was a false fact. All these facts could have been resolved had an opportunity been given to the petitioner to object to the report.
Further the Court finds that two firms had merged by an order of the Delhi High Court dated 22.11.2006 wherein it was held that the stamp duty, if any was payable by the transferee company, would be paid in accordance with law. Learned counsel for the petitioner has argued that any stamp duty which was payable on a merger had to be paid as per the law laid down in the judgment reported in 2009 (1) ADJ 569 : M/s. Hero Motors Ltd. vs. State of U.P. & Others and therefore, the question for paying stamp duty on the plant and machinery again did not arise. The Court definitely is of the view that the Prescribed Authority ought to have looked into this aspect of the matter. The merger had taken place between the transferor company namely M/s. Super Seals India Limited and the transferee company namely Super Seal Flexible Hose Limited as per the order of the Delhi High Court dated 22.11.2006. If any stamp duty had to be imposed, it must have been imposed at that point of time itself. What is more, the Court finds that even the stamp duty which was leviable at the time of the merger/demerger was also not a point in issue in the instant case. The only issue which was there before the Prescribed Authority was as to what was the property which was being leased out by the UPSIDC to the petitioner-company. The Court finds that only the land was the subject matter of the transfer by means of a lease. When the Additional Chief Standing Counsel argued by taking support of the judgment of the Supreme Court in Duncans Industries Ltd. vs. State of U.P. & Ors. reported in AIR 2000 SC 355 then definitely the Court went through that judgment and found that it was with regard to transfer which had taken place on account of a deed. If paragraph 10 of the judgment is seen, then it becomes clear that even the deed which was the subject matter before the Stamp Authorities was a sale deed which contained the details of all the plant etc. which were being transferred. In the instant case, if the lease deed is perused it would become apparently clear that only the land measuring 19992.78 sq. meters, [11000 sq. meters (66% of the land) which was transferred by the transferee company], was to be registered and, therefore, the Court is also of the view that the Prescribed Authority erred in law while taking into account the plant and machinery which were situate over the land in question. The Court also finds from the order dated 28.8.2017 that the Prescribed Authority i.e. the Collector had relied upon the submissions made by the District Government Counsel who had argued the matter and had laid stress on the issue that the petitioner had not appeared for almost 70 dates. The Court is of the view that this fact should have definitely been taken into account and the Collector should have at least issued a notice to the petitioner to appear in the case. The Court is also of the view that when the Executive Engineer had come up with the report and had stated in the report that the petitioner had created hindrance at the time of inspection then also the petitioner should have been given an opportunity to rebut the averments made in the report. Still further, the Court is of the view that the stamp Authority passed the order relying upon an ex-parte report dated 11.1.2008 of the Sub-Registrar, Gautam Budh Nagar. The ex-parte report could have been used for initiating a case but it could not have been used for deciding the case. Even if the Collector had to decide the case without issuing notice to the petitioner then it would have been in the fitness of things that he should have visited the spot in question and should thereafter have concluded as to what was the valuation on which the stamp duty ought to have been imposed. Still further, the Court is of the view that no reason has been given while imposing the penalty.
In his arguments, learned Additional Chief Standing Counsel had argued that the petitioner had an alternative remedy of filing an appeal under the Stamp Act. However, we are not relegating the petitioner to avail the remedy of appeal as we find that the order impugned dated 28.8.2017 itself is an ex-parte order as the petitioner was not heard before the order was passed. When the Collector was aware of the fact that the petitioner had not appeared for the last 70 dates and when the Collector was also aware of the fact that the report which was called on 13.4.2009 was submitted on 4.4.2016, then also the Collector ought to have issued notices to the petitioner to appear and to file his objection to the report.
All these having not been done, we are definitely of the view that the order dated 28.8.2017 cannot be sustained in the eyes of law and, therefore, has to be set-aside and also since the order is an ex-parte one, we find that the question of relegating the petitioner to file an appeal does not arise. The order dated 28.8.2017 which was an ex-parte one, is, therefore, being quashed and is being set-aside. The recovery proceeding initiated by the recovery certificate dated 10.11.2017 is also quashed and is set aside. The matter is being remitted back to the Collector to decide the matter afresh. He shall now issue fresh notice to the petitioner. If the need arises for an inspection, he shall also get the inspection done of the premises and only thereafter would he decide the case. Also, if any penalty is to be imposed then reasons would have to be given. The whole exercise shall be completed within a period of six months. The liability shall be assessed as would have been there on the date when the lease was executed.
Since we find that there is an order dated 14.8.2017 by which the case was ordered to be proceeded ex-parte and the opportunity to place the petitioner's case was withdrawn, we also set-aside the order dated 14.8.2017.
The writ petition being Writ-C No.61914 of 2017 is, therefore, partly allowed.
Since, we are not setting aside the notice dated 5.5.2008, the writ petition being Writ-C No.30548 of 2008 stands dismissed.
Also, we are not elaborating on the Government order dated 6.7.2006 as that appears to be with regard to the stamp duty leviable in the cases of undisputed demerger.
Order Date :- 05.12.2022 GS (Siddhartha Varma, J.) (Ajit Singh, J.)