Allahabad High Court
Smt. Maya Devi Yadav Andothers vs State Of U.P. & Others on 14 August, 2013
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 31.7.2013 Delivered on :14.8.2013 In Chamber Case :- WRIT- C No. 41301 of 2001 Petitioner :- Smt. Maya Devi Yadav And others Respondent :- State of U.P. & Others Counsel for Petitioner :- G.N. Verma, H.N. Singh, Niklank Jain, Ranjit Saxena, S.N. Singh Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. In this writ petition the petitioner has prayed for a writ, order or direction in the nature of certiorari to quash the order dated 10.8.2000 ( Annexure No. 18-A) under Section 33/47A of the Indian Stamp Act, 1899 ( hereinafter referred to as the 'Act') passed by the Collector, Etah and the order dated 19.11.2011 passed by the Chief Controlling Revenue Authority (Board of Revenue) U.P., Allahabad in Stamp Revision No. 62/2000-01 (Annexure No.1).
Facts of the Case
2. Briefly stated the facts of the present case are that the petitioners purchased 15 years old double storied hotel building consisting of 29 rooms, two store room, 5 shops facing Etah road and 6 shops facing Agra road located on the crossing of GT Road and Agra Road with total ground area of 596 Sq. Meters, falling within the limits of Nagar Palika, Etah. The sale deed was executed on 13.2.1998 and was presented on 14.2.1998 for registration before the Sub-Registrar, Etah who prima facie found that the market value of the property was not truly set forth in the instrument and as such referred the same under Section 47A(1) of the Act to the Divisional Commissioner ( Finance and Revenue), Etah through its Registrar on 16.3.1998 ( Annexure No.-2) stating that the minimum market value of the aforesaid property as per circle rate list under Rule 4 of the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 ( hereinafter referred to as the 'Rule 1997') issued by the District Magistrate, comes to Rs.1,49,00,000/- as against the value of Rs.36,00,000/- shown in the sale deed dated 13.2.1998 ( Annexure No.1-A). The Sub-Registrar further mentioned that for the purposes of enquiry of the current market value, the matter is being referred under Section 47A(1/2) of the Act. In the reference the Sub-Registrar further mentioned that Stamp Duty of Rs.3,60,000/- paid on the alleged market value of the property in question of Rs.36,00,000/- is deficient. The petitioners filed an objection dated 17.4.1998 before the Assistant Commissioner (Stamp), Etah stating that the market value of the property in question has been correctly shown and in case of any doubt the competent authority may be directed to make the spot inspection and submit the report. Pursuant to the direction of the Assistant Commissioner (Stamp), the Naib Tehsildar inquired the matter. He recorded the statement of the petitioner no. 3, who stated on oath that all rooms are let out, it may fetch rent at about Rs.10,000/- per month. He admitted that the building in question was a hotel and is situated at about one Km. from clock Tower Market and about 300 meters from bus stand. The Naib Tehsildar submitted his report dated 21.5.1998 (Annexure No.4) wherein he suggested the market value of the building in question to be Rs.36,30,000/- without giving any basis. It is stated in paragraph No. 11 of the writ petition that the D.G.C. ( Revenue) filed an application dated 13.7.2000 before the Collector, Etah stating therein that the report of Naib Tahsildar is in suppression of the material facts and as such the matter may be re-enquired by the competent officer. Therefore, a letter was sent by the court of the District Magistrate, Etah dated 14.7.2000 under the signature of the A.D.M. (F&R), Etah to the Tehsildar, Etah directing him to submit his report with regard to the market value of the property in question. It appears that at this stage the aforesaid matter was registered as Case No.3/2000 ( Satyadev Pathak Vs. Smt. Maya Devi Yadav and others) under the Stamp Act in the court of Collector, Etah. In this case on 14.7.2000 the vakalatnama was filed and the order for re-enquiry was passed. As per order sheet dated 19.7.2000 of the court of District Magistrate, Etah, the Tehsildar, Etah submitted his report dated 17.7.2000 ( Annexure No. 11) giving details of rent of shops and mentioned that the building in question is a commercial building which is a hotel with facility of foods and snacks and is situate on the commercially important place within the market area. He estimated the market value based on rental to be Rs.1,98,000,000/-. In the meantime the petitioners moved an application before the Divisional Commissioner for transfer of the case from the court of District Magistrate, Etah to the court of some other District Magistrate in the division on which the Divisional Commissioner passed an order dated 15.7.2000 staying further proceedings till 25.7.2000 and called for the report. The order of the Divisional Commissioner dated 15.7.2000 has been filed as Annexure 14. Vide order dated 25.7.2000 (Annexure No.15) the Divisional Commissioner directed the District Magistrate, Etah to submit report by 8.8.2000 and till then matter be not proceeded by the District Magistrate, Etah. It is stated in paragraph no. 21 of the writ petition that the stay order dated 25.7.2000 was filed before the District Magistrate, Etah on 26.7.2000 who adjourned the case for 9.8.2000. It is stated in paragraph no.22, 23 & 24 of the writ petition that the Commissioner did not sit on 8.8.2000 and as such his reader fixed the date for 29.8.2000 and therefore the petitioners moved an application for extension of stay order on 9.8.2000 and whereupon the Divisional Commissioner fixed the date for 29.8.2000 and extended the stay order. Petitioners applied for certified copy of the order of stay extension dated 9.8.2000 on the same day, which was received from the court of Divisional Commissioner on 10.8.2000 and the same was immediately submitted to the reader of the District Magistrate on the same day at about 1.00 pm. Copy of the stay extension order dated 9.8.2000 and adjournment application dated 10.8.2000 have been filed as Annexure Nos.17 and 18. On the adjournment application the District Magistrate passed the following order :-
^^vkt fnukad 10-8-2000 'kke 5-25 ij ;g LFkxu vkns'k izLrqr fd;k x;kA rc rd LFkxu vkns'k ds vHkko esa fu.kZ; [kqyh vnkyr esa lquk fn;k x;k FkkA**
3. Thus the District Magistrate, Etah passed the order dated 10.8.2000 ( Annexure No. 18A) accepting the report of the Tehsildar regarding market value of Rs.1,98,00,000/- and determined the deficiency of stamp duty at Rs.16,20,000/- and also imposed penalty of equal amount under Section 40(B) of the Act.
4. Aggrieved by the aforesaid order, the petitioners filed a Revision No. 62 of 2000-01 before the Chief Controlling Revenue Authority U.P., Allahabad which was dismissed by the impugned order dated 19.11.2001 ( Annexure No. 1) and the order of the District Magistrate, Etah dated 10.8.2000 was upheld. Aggrieved by the order of the Chief Controlling Revenue Authority (Board of Revenue) U.P., Allahabad dated 19.11.2001 the petitioner has filed the present writ petition.
5. We have heard Sri H.N. Singh, learned counsel for the petitioners and Sri Ravi Prasad, learned Additional Chief Standing Counsel who appears for the respondents.
Submission on behalf of the petitioners
6. The learned counsel for the petitioners submits that : -
(i) The Tehsildar, Etah submitted the report to the District Magistrate without giving any notice to the petitioners and without making any enquiry on the spot which is in clear breach of the provision of Rule 7(3)(c) of the Rules, 1997 as well as violates the principles of natural justice. The report submitted by the Tehsildar is wholly arbitrary. The District Magistrate, Etah passed the order dated 10.8.2000 without affording any effective opportunity of hearing. The District Magistrate, Etah could not have passed the order on 10.8.2000 since the stay order passed by the Divisional Commissioner dated 9.8.2000 was in operation. He passed the order in haste which is against the basic principles of law and justice. These facts are evident from the copy of the order sheet, the stay orders of the Divisional Commissioner dated 15.7.2000, 25.7.2000 and 9.8.2000 ( Annexure No.10, 14, 16 and 17 to the writ petition) and the order of the District Magistrate dated 10.8.2000 passed on the adjournment application of the petitioner dated 10.8.2000 ( Annexure No. 18). The C.C.R.A. also committed grave error in rejecting the plea of breach of principles of natural justice. It is a fit case to be remanded to the District Magistrate, Etah for proper adjudication.
(ii) Admitting the property in question to be a commercial building, the market value could have been determined by the Collector only in accordance with the provisions of Rule 4 read with Rule 5(c)(ii) of the Rules, 1997 and not by taking own rental estimate as has been done in the report by the Tehsildar and accepted by the District Magistrate in the impugned order dated 10.8.2000 and the C.C.R.A. by the impugned order.
(iii) The penalty under Section 47A(4) of the Act could not be imposed since the deed was registered and the reference was made prior to the amendment by U.P. Act No. 22 of 1998 effective from 1.9.1998.
(iv)In view of Article 20 of the Constitution of India, penalty cannot be levied as per amended provision of Section 47A(4) of the Act inasmuch as it can be imposed as per law as existed on the date of execution of the sale deed and not as per penal provision which came later.
Submission on behalf of State-Respondent
7. Sri Ravi Prasad, learned Additional Chief Standing Counsel appearing for the respondent supports the order passed by the District Magistrate, Etah dated 10.8.2000 and the order passed by the CCRA dated 19.11.2001. He submits that the Collector has passed the order in accordance with law after due enquiry as required under Section 47A of the Act. The report of the Tehsildar is wholly correct and does not suffer from any infirmity. He submits that the copy of the order of the Divisional Commissioner dated 9.8.2000 extending the stay order was submitted by the District Magistrate who had already pronounced the order in the open court on 10.8.2000 deciding the stamp case. He submits that the penalty has been correctly imposed and the market value has been lawfully determined by the District Magistrate, Etah. The principles of natural justice has not been violated.
Findings
8. Considering the facts of the case and evidences on record I find much force in the submission of the learned counsel for the petitioners that the impugned order dated 10.8.2000 was passed by District Magistrate, Etah in gross violation of principles of natural justice. As per order sheet ( Annexure No.10) the first order sheet entry in the case before the District Magistrate, Etah is dated 14.7.2000 wherein it is mentioned that an application has been moved by DGC ( Revenue) for re-enquiry on which order for re-enquiry is passed and the case is fixed for 19.7.2000. Thereafter the report of the Tehsildar, Etah dated 17.7.2000 ( Annexure No.11) was submitted. In the meantime, the petitioners moved an application dated 15.7.2000 ( Annexure No.12) before the Divisional Commissioner, Agra to transfer their case before some other District Magistrate, alleging that the Respondent No. 2, i.e., the District Magistrate Sri Ajit Kumar Tandon has personal enmity with the family of the petitioners for reason that the uncle of petitioner no. 3, Shishu Pal Singh Yadav (MLA Sadar) has made certain complaints to the Election Commission at the time of Panchyat election and by that the District Magistrate, Sri Ajit Kumar Tandon was very much annoyed. This application was considered by the Divisional Commissioner who passed the following order dated 15.7.2000 ( Annexure No.14) : -
^^ftykf/kdkjh ,Vk ls vk[;k izkIr dj fnukad 25-7-2000 dks izLrqr dh tk;sA rc rd ftykf/kdkjh }kjk bl okn esa vfxze dk;Zokgh u dh tk;A**
9. The Divisional Commissioner vide order dated 25.7.2000 ( Annexure No. 15) extended the stay order as under : -
^^vkns'k i=kokyh izLrqr gq;hA LFkkukUrj.k izkFkZuk i= ij ftykf/kdkjh ,Vk }kjk viuh vksj ls izLrjokj fVIi.kh izLrqr u djds ftyk 'kkldh; vf/koDrk &jktLo&,Vk dh fVIi.kh dks layXu djds Hkstk x;k gSA vr% mUgsa funsZf'kr fd;k tkrk gS fd os fnukad 8-8-2000 ls iwoZ viuh izLrjokj fVIi.kh izsf"kr djsaA rc rd ftykf/kdkjh] ,Vk }kjk iz'uxr okn esa vfxze dk;Zokgh u dh tk;A fnukad %&25-7-2000 g0v0 &jktho xqIrk& vk;qDr**
10. Vide order dated 9.8.2000 ( Annexure No. 17) the Divisional Commissioner extended the stay order as under : -
^^ lquokbZ dh fu/kkZfjr frfFk fnukad 29-8-2000 rd LFkxukns'k c<+k;k tkrk gSA**
11. The copy of the aforesaid order extending the stay order was issued by the Court of Divisional Commissioner on 10.8.2000 and on the same day it was submitted by the petitioners alongwith application dated 10.8.2000 (Annexure No. 18) on which the District Magistrate, Etah passed the following order :-
^^vkt fnukad 10-8-2000 'kke 5-25 ij ;g LFkxu vkns'k izLrqr fd;k x;kA rc rd LFkxu vkns'k ds vHkko esa fu.kZ; [kqyh vnkyr esa lquk fn;k x;k FkkA**
12. The relevant order sheet entry dated 9.8.2000 and 10.8.2000 (Annexure No. 10) are reproduced below : -
*9-8-2000 %& vkt ;g i=koyh is'k gq;h mHk; i{k gkftj vk;s cgl lquh x;h izkFkhZ ds vf/koDrk dk dFku gS fd og ekuuh; vk;qDr egksn; dk LFkxu vkns'k dy fnukad 10-8-2000 dks nkf[ky dj nsxk vkns'k gqvk fd lats'k ;kno dks LFkxu vkns'k nkf[ky djus ds fy;s 10-8-2000 rd le; fn;k tkrk gSA 10-8-2000 %& vkt ;g i=koyh is'k gq;h lats'k ;kno dh rjQ ls dksbZ LFkxu vkns'k izLrqr ugha fd;k x;kA fgUnh Vk;i'kqnk vkns'k layXu i=koyh deh LVkEi 16]20]000-00 rFkk vFkZn.M 16]20]000-00 dqy 32]40]000-00 :i;s vkjksfir fd;k tkrk gS tks [kqyh vnkyr esa lquk;k x;kA**
13. From the perusal of the aforesaid facts, it is evident that the petitioners have well brought to the notice of the District Magistrate, Etah the fact that stay order has been extended by the Divisional Commissioner on 9.8.2000. To submit certified copy of this order , the District Magistrate, Etah granted time upto 10.8.2000 and the petitioners admittedly produced the certified copy of the order of the Divisional Commissioner before the District Magistrate, Etah on 10.8.2000. When the District Magistrate, Etah himself has granted time upto 10.8.2000 to submit the certified copy of the order of the Divisional Commissioner dated 9.8.2000 extending the stay order, then there was no occasion before the District Magistrate, Etah to pass the final order on 10.8.2000 itself without any opportunity of hearing to the petitioners and creating a demand of stamp duty and penalty to the tune of Rs.32,40,000/-. Thus, the action of the District Magistrate was wholly arbitrary and grossly violative of principles of natural justice. From the entries of the order sheet it is clear that neither the petitioners were confronted with the alleged report of the Tehsildar dated 17.7.2000 nor were afforded any opportunity of hearing. The District Magistrate, Etah could not have passed the impugned order dated 10.8.2000 when the stay order granted by the Divisional Commissioner, Etah dated 9.8.2000 was in operation. The Chief Controlling Revenue Authority U.P., Allahabad while passing the impugned order dated 19.11.2001 has also completely failed to appreciate the evidences before it and merely reiterated the order passed by the District Magistrate, Etah holding that the petitioners failed to produce the order of the Divisional Commissioner dated 9.8.2000 before the District Magistrate, Etah on 10.8.2000 within the working hours between 10 AM to 5 PM rather filed it at 5.25 pm. The CCRA has completely failed to consider that the order of the District Magistrate, Etah dated 10.8.2000 ( Annexure No. 18A) is a typed order and runs in seven pages which could not neither have been dictated nor could have been typed and pronounced within 25 minutes i.e. between 5.00 pm. to 5.25 pm. The finding of the C.C.R.A. that stay order became infructuous since the final order was passed, appears to be wholly arbitrary. The relevant portion of the order of the CCRA is reporudced below : -
^^fnukad 9-8-2000 dks fuxjkuhdrkZx.k }kjk fn;s x;s izkFkZuki= ij voj U;k;ky; us mUgsa fnukad 10-8-2000 rd dk le; LFkxukns'k c
14. Thus, the CCRA also appears to have acted arbitrarily while passing the impugned order dated 19.11.2001.
15. In the case of Uma Nath Pandey & Ors. vs State of U.P.& Anr. [(2009) 12 SCC page 40 para 3], the Hon'ble Supreme Court noted the concept of natural justice that is another name of common sense justice. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression `civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. Natural justice has been variously defined by different Judges, for instance a duty to act fairly, the substantial requirements of justice, the natural sense of what is right and wrong, fundamental justice and fair-play in action. Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is `nemo judex in causa sua' or `nemo debet esse judex in propria causa sua' that is no man shall be a judge in his own cause. The second rule is `audi alteram partem', that is, `hear the other side'. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule i.e. 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' or in other words, as it is now expressed, `justice should not only be done but should manifestly be seen to be done'. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. Applying the aforesaid principles of natural justice on the facts of the present case, this Court is of the opinion that the principles of natural justice has been violated which vitiates the impugned orders.
16. In view of the discussions made above, I am of the considered opinion that the impugned orders have been passed by the District Magistrate, Etah as well as the CCRA in gross violation of the principles of natural justice and as such both the orders cannot be sustained. Accordingly the order dated 10.8.2000 passed by the District Magistrate, Etah as well as the order dated 19.11.2001 passed by the Chief Controlling Revenue Authority U.P., Allahabad are hereby set aside and the matter is remitted back to the District Magistrate, Etah to pass order afresh in accordance with law after affording sufficient opportunity of hearing to the petitioners.
17. Although question with regard to the market value and penalty have been left open to be decided by the District Magistrate, Etah, yet this court can not loose sight of the fact that during the course of argument the learned counsel for the petitioners has admitted the building in question to be a commercial building which is also supported by the undisputed facts noted in para 2 above regarding the building in question. Hence its market value has to be determined by the District Magistrate in accordance with law as a commercial building.
18. Since, this Court has found that the impugned orders have been passed in violation of principles of natural justice and for that reason alone they are being set aside, the Court does not intend to decide the other issues raised by the petitioners in this writ petition and leaves it open to the petitioners to raise all such arguments as may be available to them, before the District Magistrate, Etah.
19. In result the writ petition is allowed with cost. The order dated 10.8.2000 passed by the District Magistrate, Etah and the order dated 19.11.2001 passed by the Chief Controlling Revenue Authority U.P., Allahabad in Revision No. 62/2000-01 are hereby set aside and the matter is remanded to the District Magistrate, Etah with direction to pass order afresh in accordance with law after affording sufficient opportunity of being heard to the petitioners, within six months from the date a certified copy of this order is produced by the petitioners before him.
Order Date :14.8.2013 Mukesh