Uttarakhand High Court
M/S Ratan Seeds Pvt. Ltd vs Asst. Commissioner Stamps And Ors on 9 May, 2019
Equivalent citations: AIRONLINE 2019 UTR 114
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1260 of 2019 (M/S)
M/s Ratan Seeds Pvt. Ltd. .......Petitioner
Vs.
Asst. Commissioner Stamps and ors.
......Respondents
Mr. Aditya Singh, Advocate for the petitioner.
Mr. P.C. Bisht, Standing Counsel for the State.
Chronological list of cases cited
(2003) 5 SCC 399 Seth Chand Ratan vs. Pandit Durga Prasad.
(2003) 3SCC 524 Sadhana Lodh vs. National Insurance Co.
Ltd. and anr.
Hon'ble Lok Pal Singh, J.
Petitioner company has invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India, seeking writ in the nature of certiorari quashing the impugned order dated 27.02.2019 passed by Assistant Commissioner Stamps/ Collector Stamps, Udham Singh Nagar
2. Brief facts, of the case, are that initially lease deed was executed by one Sri Jagir Singh on 23.03.1996 in favour of the petitioner company, granting lease of the Bhoomidhari land, bearing khasra no. 105/6 admeasuring 0.809 hectares for a period of 20 years commencing from 23.03.1996, in consideration of the payment of ` 2,000/- per annum as rent. Before expiry of the lease period, another lease deed was executed by Sri Gurdayal Singh (successor of Sri Jagir Singh) on 22.03.2016 for a period of 30 years in the favour of the petitioner company @ ` 2000/- per annum. The said lease deed was got registered in the office of the Sub- Registrar, Kashipur. Sub-Registrar, Kashipur, found some short fall in the payment of stamp duty on the lease 2 deed, therefore it sent intimation to the Registrar Stamp, Udham Singh Nagar in this regard and the matter was referred to Assistant Commissioner Stamp/Collector Stamp. Notice under section 47-A of the Indian Stamp Act was issued to the petitioner company and case no. 06/MV/2016-17 was registered against the petitioner.
3. Despite time granted to the petitioner company, objection to the notice has not been filed and the case was proceeded ex-parte and vide order dated 09.11.2018 petitioner company was directed to pay deficient stamp duty of ` 11,12,160/- along with interest and penalty of ` 5,00,500/- and the petitioner company was directed to deposit total amount of ` 16,12,660/- in default of payment of which same shall be recovered as land revenue.
4. Perusal of the impugned order dated 27.02.2019 would reveal that an application for setting aside the ex- parte order dated 09.11.2018 had been filed on behalf of the petitioner and same has been allowed with condition that petitioner company shall deposit an amount of ` 1000/- as penalty and 30.01.2019 was fixed for hearing an objection. But, again, counsel for the petitioner company did not turn up and further time was sought to file objection. Thereafter, matter was fixed for 27.02.2019. In the objection, it is stated by the petitioner company that since lease deed was executed for a period of 30 years, therefore, stamp duty paid by the petitioner is sufficient. The Assistant Collector, Stamp/ Collector Stamp considering the report of Sub-Registrar and previous lease deed dated 23.02.1996, which was for a period of 20 years, and subsequent lease deed dated 3 25.02.2016, which has been executed in the life time of previous deed, has considered it as a lease for a period of 50 years and relying upon the provisions of Article 35 A- 6, Schedule 1-B of the Indian Stamp Act has observed that the lease has exceeded period of 30 years and the stamp duty on the same has to be calculated in the market value of the property and decided the case under section 33/47A of the Indian Stamp Act directing the petitioner to pay deficient stamp duty of ` 11,12,160/- along with interest and penalty of ` 6,01,000/- and in toto to deposit an amount of `17,13,160/-. It was also directed that in default of payment of deficient stamp duty, the same shall be recovered as arrears of land revenue.
6. Feeling aggrieved by order dated 27.02.2019, the petitioner company is before this Court.
7. Learned counsel for the petitioner would urge that Assistant Collector, Stamp/ Collector Stamp has exceeded in its jurisdiction in without having considered Rule 7 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1977 (as applicable in the State of Uttarakhand), (hereinafter referred as Rules 1977) and the petitioner company has no alternative remedy to assail the impugned order.
8. On the other hand, learned Standing Counsel for the State would urge that an order, passed under Section 47 A of the Indian Stamp Act is appealable under section 56 of the Indian Stamp Act.
49. For kind reference, section 56 of the Indian Stamp Act is reproduced hereunder:-
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 for 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 also 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 amounts:
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 doubts 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.
(3) Such authority shall consider the case and send a copy of its decision to the Collector who shall proceed to assess and charge the duty (if any) in conformity with such decision.
10. In reply, learned counsel for the petitioner would urge that in view of the Rule 7 of Rules 1977, remedy of revision or appeal is not available to the petitioner.
511. For kind reference Rule 7 of the Rules 1977 is extracted hereunder:-
7. Procedure on receipt of a reference or when suo motu action is proposed under Section 47-A:-
(1) On receipt of a reference or where action proposed to be taken suo motu under Section 47-A, the Collector shall issue notice to parties to the instrument to show cause within thirty days of the receipt of such notice as to why the market value of the property set forth in the instrument and the duty payable thereon be not determined by him.
(2) The Collector may admit oral or documentary evidence, if any, produced by the parties to the instrumental and call for and examine the original instrument to satisfy himself as to the correctness of the market value of the subject matter of the instrument and for determining the duty payable thereon.
(3) The Collector may-
(a) call for any information or record from any public officer, officer or authority under the Governemnt or a local authority;
(b) Examine and record the statement of any public officer or authority under the Government or the local authority; and (C) inspect the property after due notice to parties to the instrument.
(4) After considering the representation of the parties, if any, and examining the records and other evidence, the Collector shall determine the market value of the subject matter of the instrument and the duty payable thereon.
(5) If, as a result of such inquiry, the market value if found to be fully and truly set forth and the instrument duly stamped according to such value, it shall be returned to the person who made the reference with a certificate to that effect. A copy of such certificate shall also be sent to the Registering Officer concerned.
(6) If, as a result of inquiry, the instrument is found to be undervalued and not duly stamped, necessary action shall be taken in respect of it according to relevant provision of the Act.
12. The matter was referred by the Sub Registrar Kashipur to the Assistant Collector Stamps/Collector Stamps, Udham Singh Nagar in regard to the deficiency 6 of stamp duty whereby notice under section 47-A of the Indian Stamp Act was issued to the petitioner company. Initially, petitioner company did not file its objection when the matter was decided ex-parte against it, thereafter it preferred recall application which was considered and after giving opportunity to the petitioner company, the impugned order dated 27.02.2019 was passed against the petitioner company.
13. From the perusal of the provision contained in Chapter IV and Chapter V of the Indian Stamp Act, provision of section 56 of the Stamp Act and Rule 7 of the Rules 1997 it is abundantly clear that any order passed by the Collector under Chapter IV and Chapter V of the Indian Stamp Act, is appelable under section 56(1-A) of the Stamp Act, and, in other sections it is appealable. Thus, Statute provides statutory remedy of revision or appeal against any order passed under Chapter IV and Chapter V of the Indian Stamp Act.
14. The jurisdiction of this Court under Article 227 of the Constitution of India is an extraordinary jurisdiction. Though, this jurisdiction can be exercised by the Court in extraordinary circumstances to correct the error of law and to avoid miscarriage of justice with the parties litigating. Normally, jurisdiction under Article 227 of the Constitution of India should not be exercised in the favour of the party who has not chosen to invoke statutory remedy of revision or appeal, as available under the Statute.
15. The Hon'ble Apex Court in the case of Seth Chand Ratan1 has held that when the party had statutory 7 remedy of assailing the order passed by the District Court by filing an appeal to the High court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.
16. The Hon'ble Apex Court in the case of Sadhana Lodh1 has held that High Court ought not to have entertained the petition under Articles 226/227 of the Constitution of India when a remedy of filing an appeal before the High Court is available.
17. In the judgments (supra) the Hon'ble Apex Court has held that extraordinary jurisdiction under Article 226 or 227 of the Constitution of India should not be evoked when a statutory remedy of appeal or revision is available to any aggrieved party.
18. If this Court in exercise of its superintending power under Article 227 of the Constitution of India entertains a writ petition when a statutory remedy of appeal or revision is available to an aggrieved person or party, there may be risk of its becoming an erroneous precedent, which will take away the statutory remedy on one hand and will open the floodgate of litigation directly to the High Court under Article 227 of the Constitution of India.
819. Thus, in view of the foregoing discussion, this Court, is, therefore, not inclined to entertain the writ petition under Article 227 of the Constitution of India, as statutory remedy of appeal is available to the petitioner under section 56 of the Indian Stamp Act.
20. Thus, the writ petition stands dismissed. However, observation made by this Court in the judgment and order will not influence the revisional/appellate court in deciding the revision/appeal, if filed.
21. Let a certified copy of this judgment be supplied to the counsel for the petitioner company within 24 hours, on payment of usual charges.
(Lok Pal Singh, J.)
Parul 09.05.2019