Rajasthan High Court - Jodhpur
Nagendra Singh vs State Of Rajasthan (2023/Rjjd/017908) on 26 May, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023/RJJD/017908]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14541/2019
1. Nagendra Singh S/o Sh. Vikram Singh, Aged About 59
Years, Resident Of Pokaran House, P.w.d. Road, Jodhpur.
2. Fort Pokaran Hotel And Resort Private Ltd., Through Its
One Of The Director, Sh. Param Vijay Singh, S/o Sh.
Nagendra Singh Aged About 34 Years, R/o Pokharan Dist.
Jaisalmer.
----Petitioners
Versus
1. State Of Rajasthan, Through The Inspector General
Registration And Stamps Department, Jaipur.
2. Deputy Inspector Of General Stamp And Registration,
Barmer.
3. Sub-Registrar Stamp And Registration Pokharan,
Jaisalmer.
4. Tehsildar Pokharan, Jaisalmer.
----Respondents
For Petitioner(s) : Mr. O.P. Mehta through VC with
Mr. Falgun Buch
For Respondent(s) : Ms. Akshiti Singhvi for
Mr. Sandeep Shah, AAG, Sr. Advocate
HON'BLE DR. JUSTICE NUPUR BHATI
Order 26/05/2023 (1) The petitioner has filed the present writ petition under Article 226 of the Constitution of India with the following prayers:-
"(i) the order dated 20.08.2019 (Annexure-7), the recovery notice dated 26.08.2019 (Annexure-8) and all subsequent proceedings initiated thereunder may kindly be quashed and set aside;
(ii) all the subsequent proceedings initiated in relation to the case no.120/2018 instituted before the DIG Stamps, Barmer may kindly be quashed and set aside;
(D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (2 of 9) [CW-14541/2019]
(iii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the applicant."
(2) The facts apropos to the case are that the petitioner No.2 is a company, which was desirous to run a hotel and thus, it approached the petitioner No.1 to lease out the property, namely, Fort Pokaran, owned by the petitioner No.1 and accordingly a lease-deed (Annex.1) was executed on 16.09.1997 for a period of 20 years.
(3) During the lease period, the petitioner No.2 was running hotel business. In the year 2014, the petitioner No.2 also ventured into the business of art and craft and since the scope of the lease-deed (Annex.1) was only to the extent of running of hotel business, it was decided to terminate the earlier lease-deed dated 16.09.1997 (Annex.1) and to execute a fresh lease-deed to run the hotel business as well as business of art and craft. In view of the aforesaid, a cancellation-deed was executed on 11.04.2014 (Annex.2) whereby the earlier lease-deed dated 16.09.1997 was cancelled and possession of the property in question was handed over to the petitioner No.1 by the petitioner No.2. Thereafter, both the parties agreed to execute a fresh lease-deed and accordingly a fresh lease-deed dated 11.04.2014 (Annex.3) was executed and the petitioner No.2 was permitted to run hotel business as well as the business of art and craft.
(4) In the year 2017, the office of Accountant General undertook inspection of the documents along with the registered documents maintained by the respondent No.2 and respondent No.3 at their (D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (3 of 9) [CW-14541/2019] respective offices and during inspection, an audit objection with regard to the lease-deed dated 11.04.2014 (Annex.3) was raised stating inter alia that since the lease-deed dated 11.04.2014 is effective from 07.04.2014 for a period of 19 years, which will make it a continuous lease of the earlier lease dated 16.09.1997 and since the cumulative period under the these leases is more than 20 years, the same would amount of perpetual lease and the stamp duty as well as registration charges etc. would be payable on the document as a conveyance. In light of the said audit objection, a notice dated 15.02.2017 (Annex.4) was served upon the petitioner No.2.
(5) The petitioner No.2 filed detailed reply to the notice (Annex.4) and submitted that operation and effect of the earlier lease-deed dated 16.09.1997 was cancelled by way of cancellation-deed dated 11.04.2014. It was also submitted that operation of the lease-deed dated 11.04.2014 was to be made effective from 17.04.2014 but due to inadvertent error and bona fide mistake, it was mentioned as 07.04.2014 instead of 17.04.2014.
(6) Thereafter, the respondent authorities decided the matter vide order dated 20.08.2019 (Annex.7) and without even supplying the certified copy of the order aforesaid, issued a recovery notice dated 26.08.2019 (Annex.8) to which reply (Annex.9) was filed. It is also stated that the petitioners executed correction-deeds in the lease-deed dated 11.04.2014 and cancellation-deed dated 11.04.2014. However, the respondents did not pay any heed. Hence, this petition.
(D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (4 of 9) [CW-14541/2019] (7) Learned counsel for the petitioners submits that it is trite law that while calculating the stamp duty over a document, the document per se is to be examined. He submits that as per the provisions of Article 33(a)(ii) of the schedule appended to the Act of 1998, the stamp duty on the lease-deed executed for a term exceeding 20 years, the stamp duty is payable on the market value of the property treating the same as conveyance in which it must be clear that it is executed for a term exceeding 20 years. But, in the present case, both the lease-deeds dated 16.09.1997 and 11.04.2014 are independent documents and the lease-deed dated 11.04.2014 came into existence after the cancellation of earlier lease-deed dated 16.09.1997. Both the lease-deeds cannot be read together to stretch the period of lease beyond 20 years. (8) Learned counsel for the petitioners further submits that while making audit objections, both the lease-deeds were read together without applying its mind, which is absolutely perverse and illegal. (9) Learned counsel for the petitioners also submits that respondents-authorities have not considered the correction-deeds while passing the impugned order and in view of this, the same deserves to be quashed and set aside.
(9) Learned counsel for the respondents raised a preliminary objection regarding the maintainability of the writ petition on the ground of alternative remedy being available to the petitioner under Section 65 of the Rajasthan Stamps Act, 1998 (hereinafter referred to as 'the Act of 1998') against the impugned order dated 20.08.2019. She also submits that as per the law laid down by this Court, the writ petitions have been dismissed on the ground of statutory remedy available under Section 65 of the Act of 1998.
(D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (5 of 9) [CW-14541/2019] (10) Learned counsel for the respondents also submits that the petitioners have stated wrong facts about the second lease-deed dated 11.04.2014 that the same has been executed for another purpose whereas a perusal of the same will reveal that there is no such change in both the lease-deeds. Further, no document has been placed showing venturing of business of art and craft. Thus, it can very well be established that the second lease-deed is in continuation of the first-lease and thus, the lease-deed was executed for a period of more than 20 years and hence, the stamp duty has rightly been raised against the petitioners. (11) So far as the submission regarding correction-deeds, learned counsel for the respondents submits that the same have been executed after the issuance of recovery notice and thus, the same are nothing but an after thought. Therefore, the same cannot be taken into account.
(12) Learned counsel for the respondents placed reliance upon the judgment of Hon'ble the Supreme Court in the case of Assistant Commissioner of State Tax & Ors. Vs. Commercial Steel Limited [2021 SCC OnLine SC 884] and judgments of this Court in the cases of M/s. Mahraja Enclave Vs. State of Rajasthan & Ors. [SBCWP No.10001/2018, decided on 12.04.2019] and M/s. Fine Mineral Industry Vs. State of Rajasthan & Ors. [SBCWP No.7943/2007, decided on 18.01.2022].
(13) In rejoinder, learned counsel for the petitioners submits that mere availability of alternative remedy is not bar upon this Court to invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India. He also submits that it has observed by (D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (6 of 9) [CW-14541/2019] this Court that albeit the remedy of revision has been statutorily provided but when the Court is satisfied that the facts of the case are such which reveals hat not only the demand is patently illegal but also exorbitant to make the remedy by way of revision ineffective, then the extraordinary writ jurisdiction under Article 226 of the Constitution of India can be invoked. He further submits that the respondent-authorities have invoked Section 51 of the Act of 1998 while passing the impugned order and contends that while exercising powers under Section 51 of the Act of 1998, the authority concerned has to record reasons that the instrument has not been properly valued. But, in the instant case, no reason whatsoever has been recorded while passing the impugned order. (14) Learned counsel for the petitioners placed reliance upon the judgment of Hon'ble the Supreme Court in the case of Har Devi Asnani Vs. State of Rajasthan & Ors. [(2011) 14 SCC 160], judgment of Division Bench of this Court in the case of Kuri Chand Vs. DIG (Stamp) Udaipur & Anr. [DBSAW No.105/2010, decided on 11.04.2016] and in the case of Ashiana Amar Developers Vs. State of Rajasthan & Ors. [SBCWP No.4402/2013, decided on 02.12.2016]. (15) I have given my thoughtful consideration to the rival submissions made at the Bar and perused the material available on record.
(16) Learned counsel for the petitioners submitted that the respondents-authorities have wrongly invoked Section 51 of the Act of 1998. Sub-section (4) of Section 51 of the Act of 1998 empowers the registering authorities, being public officers to make a reference. It is noteworthy that sub-section (2) of Section (D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (7 of 9) [CW-14541/2019] 51 does not use the expression - 'reference', whereas sub-section (4) does. Hence, the respondents have, without seeing the documents, can make a reference in exercise of power under sub- section (4) of Section 51. Therefore, the argument of the learned counsel for the petitioners does not hold much water. (15) In regard to the submission of violation of the principles of natural justice made by the learned counsel for the petitioners, it is evident from the record that notices (Annex.3) were issued to the petitioners and replies were filed by the petitioners and the impugned order has been passed in the presence of the counsel for the petitioners. Thus, it cannot be said that there was any violation of principles of natural justice.
(16) Learned counsel for the respondents raised a preliminary objection regarding maintainability of the present writ petitions in view of the availability of alternative remedy under Section 65(1) of the Act of 1998, which reads as under:-
"65. Revision by the Chief Controlling Revenue Authority--
(1) Any person aggrieved by an order made by the Inspector General of Stamp or Collector under Chapter IV and V and under clause (a) of the first provision to section 29 and under section 35 of the Act, may within 90 days from the date of order, apply to the Chief Controlling Revenue Authority for revision of such order:
Provided that the Inspector General of Stamp or any other officer authorised specially or generally by the Inspector General of Stamp may, if aggrieved by any order referred to in this sub-section, may file revision before Chief Controlling Revenue Authority within 180 days from the date of the communication of the order.
Provided further that no revision application shall be entertained unless it is accompanied by a satisfactory proof of the payment of twenty five percent of the recoverable amount."
(D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (8 of 9) [CW-14541/2019] (17) Learned counsel for the petitioners, while placing reliance upon various judgments, submitted that the right of appeal or revision is not an absolute right and it is a statutory right, which can be circumscribed by the conditions in the grant made by the statutes.
Under the proviso to Section 65(1) of the Act of 1998, it is provided that there is alternative, efficacious remedy of filing revision with requirement of pre-deposit amount to the extent of 25% and where there is a requirement of pre-deposit, statutory remedy must be exhausted as has been held in the case of M/s. Maharaja Enclave (supra), wherein it has been observed as under:-
"After hearing learned counsel for the parties at length as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that it would be prejudicial at this stage to the parties to make any comment on merits of the case, and this Court sees that the impugned order has a clear alternative remedy as provided under Section 65(1) of the Act of 1998. The alternative and efficacious remedy is available with only 25% of the amount to be paid as per the new amendment in the law, which has done away with the mandatory requirement of payment of 50% of the amount......"
(18) Learned counsel for the respondents also placed reliance upon the judgment of a Coordinate Bench of this Court in the case of M/s. Fine Mineral Industry (supra), in which, it was observed as under:-
"30. Keeping in mind the facts and circumstances of the case, and in light of the fact that a statutory alternate remedy is available to the petitioner, and deriving strength from the decisions rendered by the Hon'ble Apx Court in (D.B. SAW/577/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 12/11/2023 at 01:01:47 AM) [2023/RJJD/017908] (9 of 9) [CW-14541/2019] Genpact (supra) and Ansal Housing (supra), this Court does not find it a fit case for making any interference. "
(19) It is a settled law that when a statutory forum is created by law for redressal of a grievance, a writ petition should not be entertained ignoring the statutory dispensation unless it is demonstrated that the alternative statutory is not an efficacious remedy. No reason has been assigned by the learned counsel for the petitioners to demonstrate why the revisional jurisdiction of the Chief Controlling Revenue Authority under Section 65 of the Act of 1998 does not provide an efficacious remedy. (20) In view of the above and for the reasons stated above, the writ petition, being devoid of merit, is dismissed. (21) The stay application and all other pending applications, if any, also stand disposed of.
(DR. NUPUR BHATI),J 110-skm/-
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