Rajasthan High Court - Jodhpur
Vinod Infradevelopers Limited vs State Of Rajasthan-State ... on 12 July, 2023
Author: Nupur Bhati
Bench: Nupur Bhati
[2023:RJ-JD:21107]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2936/2021
Vinod Infradevelopers Limited, Through Its Authorized Signatory
Sh. Vinod Singhvi S/o Sh. Ummedmal Singhvi , Aged About 49
Years , R/o 3 Pal Link Road, Jodhpur
----Petitioner
Versus
1. State Of Rajasthan-State, Through Principal Secretary
(Revenue), Government Of Raj. , Jaipur
2. The District Collector (Stamps), Jodhpur Circle , Jodhpur
----Respondents
For Petitioner(s) : Mr. Chetan Prakash Soni
For Respondent(s) : Ms. Pratyushi Mehta for Mr. Sandeep
Shah, Sr. Adv., cum, AAG
HON'BLE DR. JUSTICE NUPUR BHATI
Order 12/07/2023
1. The present writ petition has been filed under Article 226 and 227 of the Constitution of India with the following prayers:
"It is, therefore, humb1y prayed that the record of the case may kindly be called for and the writ petition filed by the petitioner may kindly be allowed and:
1. by any writ, order or direction, the impugned order dated 21.01.2021 passed by the learned District Collector (Stamp) Jodhpur Division, Jodhpur in Reference Case no. 486/2018and impugned demand notice dated 28.01.2021 passed by the learned Collector (Stamps), Jodhpur Division, Jodhpur may kindly be quashed and set:
2. any other appropriate writ, order or direction, which this Hon'ble Court may deem just and proper in the circumstances of the case, may kindly be passed in favour of the petitioner.
3. The writ petition may kindly be allowed with costs throughout."(Downloaded on 12/11/2023 at 02:30:41 AM)
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2. The brief facts of the case are that a partnership deed was executed between the petitioner company and one Padmawati Associate, Jodhpur, situated at Opposite Vinod Tower, 401, LIGH, in front of Naiyon Ki Bagechi, Jodhpur on 21.10.2014 on a stamp paper of Rs.500/-, which was notarized by the Notary Public, Jodhpur.
3. The Partnership deed between the petitioner company and Padamwati Associate stated that the partners will work over a land as-measuring 3785.5 sq. meter situated at village Chokha, Tehsil & District Jodhpur and decided to run a business of hotel. The said partnership deed states that the business would only commence after the Padmawati Associates deposits Rs. 7,00,00,000/- in petitioner Company's Bank Account.
4. Later on, when an audit was made by the office of the Accountant General, then it came to light that the said partnership deed is in violation of Article 43 (1) (C) of Schedule of the Rajasthan Stamp Act, 1998 because as per the partnership deed the land in question is being transferred and therefore the parties to the agreement are required to pay stamp duty in total Rs.35,76,230/- @ 1300/- per sq. feet, and thus the notice dated 17.10.2018 under the Schedule of the 1998 Act highlighting the same discrepancy in the document for depositing the remaining amount was served upon the petitioner.
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5. Since the petitioner company failed to deposit the aforesaid amount, a reference case No. 486/2018 came to be registered against it before the District Collector (Stamp), Jodhpur Division, Jodhpur.
6. During the hearing and in the reply to the notice of the matter before the District Collector (Stamps), the petitioner-company specifically stated that the land in question is in possession of the petitioner company and there is no transfer of ownership rights by way of executing the partnership deed dated 21.10.2014 and therefore, there is no question to pay any stamp duty or deficit stamp duty by the petitioner company. It was also stated in the reply that the partnership deed/agreement which was executed between the parties, but due to the fact that the terms and conditions of the same could not be followed by the parties, the same came to be cancelled vide cancellation deed dated 30.6.2015.
7. However, the District Collector (Stamps), Jodhpur Division, Jodhpur after hearing to the petitioner-company and the written arguments submitted by them, vide its order dated 21.1.2021 answered the reference in affirmative and directed that a sum of Rs.75,46,384/- be recovered from the petitioner-company and said Padamawati Associate with further direction that the aforesaid amount shall also carry interest @ 12% from the date of the judgment till the said amount is not deposited, It is in pursuance of the aforesaid order dated 21.1.2021 passed by the District (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (4 of 11) [CW-2936/2021] Collector (Stamps) Jodhpur, a recovery notice dated 28.1.2021 came to be received by the petitioner-company from the office of the District Collector (Stamp) demanding a total sum of Rs.75,46,384/- to be deposited within seven days from the date of receipt of the notice and it was informed that the proceedings of attachment of movable and immovable property of the petitioner company would be initiated.
8. Being aggrieved of the order dated 21.1.2021 and demand notice dated 28.1.2021 passed by the District Collector (Stamp) Jodhpur, the petitioner company has preferred this petition.
9. Learned counsel for the petitioner submits that the order impugned dated 21.1.2021 passed by District Collector (Stamps) Jodhpur is a non-speaking order because while passing the order impugned, the District Collector (Stamps), Jodhpur Division, Jodhpur failed to consider the fact that the partnership deed/agreement was executed between the parties, but the same came to be cancelled and therefore, there was no question of registering the same and for paying the stamp duty. There was no transfer of land in question and the order was passed only on the basis of the audit objection. On this account, the impugned order as well as the impugned demand notice are required to be quashed and set aside.
10. The learned counsel for the petitioner further submits that if the documents annexed with the writ petition are seen then it is (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (5 of 11) [CW-2936/2021] clear that there was non-performance of contractual condition by the co-partner which led to dissolution of the partnership firm on mutual agreement, the order is passed only on the basis of assumption that the property rights are being transferred by way of the document in question i.e., partnership deed.
11. That the learned counsel for the petitioner also submits that the District Collector in the order impugned has not come to the conclusion that there is transfer of property as there is no independent finding of the District Collector to show and suggest that there was transfer of property. The District Collector only while noting the fact that there is audit objection, stated that there is transfer of property, also the District Collector has not considered the reply and written arguments of the petitioner.
12. The learned counsel for the petitioner further placed reliance on section 51 of the Rajasthan stamps act 1998 that the Collector does not have the jurisdiction, section 51 of the Act of 1998 which reads as under:-
51. Instrument undervalued, how to be valued -
(1) Notwithstanding anything contained in the Registration Act, 1908 (Act No. 16 of 1908) and the rules made thereunder as in force in Rajasthan where, in the case of any instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument, the registering officer has, while registering the instrument, reasons to believe that the market value of the property has not been truly set forth in the instrument, he may either before or after (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (6 of 11) [CW-2936/2021] registering the instrument, send it in original to the Collector for taking action under sub-section (3). (2) When through mistake or otherwise any instrument which is undervalued and not duly stamped is registered under the Registration Act, 1908, the registering officer may call for the original instrument from the party and, after giving the party liable to pay stamp duty an opportunity of being heard and recording the reasons in writing and furnishing a copy thereof to the party, impound it and on failure to produce such original instrument by the party, a true copy of such instrument taken out from the registration record shall, for the purposes of this section, be deemed to be the original of such instrument and send it to the Collector for taking action under sub-section (3)
13. The Learned counsel for the respondents raised a preliminary objection regarding maintainability of the present writ petition 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 (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (7 of 11) [CW-2936/2021] 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."
14. The learned counsel for the petitioner in rebuttle contended that in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction supporting the same the learned counsel for the petitioner placed reliance on the case of Harbanslal Sahnia vs. IOCL reported in (2003) 2 SCC 107 in which it was held that:
"In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged."(Downloaded on 12/11/2023 at 02:30:41 AM)
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15. The learned counsel for the respondents further submits that the present writ petition deserves to be dismissed on account of availability of statutory alternative remedy. The petition has been preferred praying for quashing of the order dated 21.01.2021 passed by the Collector (Stamps) Jodhpur as also consequential recovery notice dated 28.01.2021 issued by the Sub-Registrar Jodhpur. However, the petitioner has approached this Hon'ble Court without exhausting the alternative and efficacious remedy available under Section 65 (1) of the Rajasthan Stamps Act1998 ("Act of 1998") for filing revision against the impugned order dated 21.01.2021 before the Rajasthan Tax Board, Ajmer.
16. The learned counsel for the respondents also submits that there have been a catena of judgments to the effect that in case there is an alternative remedy provided then it is necessary for the petitioner to exhaust the remedy being available, but for two exceptions i.e in case there is allegation of malafide or the order is without jurisdiction. In the present petition, none of the two grounds have been raised by the petitioner. Thus, the petitioner is having alternative and efficacious remedy. Thus the writ petition filed under Article 226 of the Constitution of India invoking extra- ordinary jurisdiction of this Hon'ble Court deserves to be dismissed on the ground of availability of efficacious and alternative remedy.
17. The learned counsel for the respondents further submits that the present writ petition deserves to be dismissed on account of misstatement and concealment of facts made by the petitioner (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (9 of 11) [CW-2936/2021] with a view to mislead this Hon'ble Court, inasmuch as the peti- tioner has made false statement that no transfer of property took place upon execution of partnership deed dated 21.10.2014 whereas a bare perusal of the various clauses of the partnership deed in question shall prove otherwise, that the said immoveable property was contributed by the petitioner to the firm by way of capital contribution.
18. The learned counsel for the respondents also submits that the Collector (Stamps) Jodhpur passed the order dated 21.01.2021, determining the proper stamp duty to be paid by the parties upon the partnership deed dated 21.10.2014. Thus the respondents have proceeded strictly in accordance with law and the provisions of the Act of 1998 in determining the deficiency in stamp duty on the partnership deed dated 21.10.2014. Hence, the petitioner has no reason to be aggrieved by the same and the present writ peti- tion deserves to be dismissed.
19. Further, Learned counsel for the respondent placed reliance upon the judgment of this Court in the case of M/s. Fine Min- eral Industry vs State of Rajasthan passed in SBCWP No. 7943/2007 , in which, it was held as under:-
"30. Keeping in mind the facts and circumstances of the case, and in light of the fact that a statutory alter- nate remedy is available to the petitioner, and deriving strength from the decisions rendered by the Hon'ble Apx Court in Genpact (Supra) and Ansal Housing (Supra), this Court does not find it a fit case for mak-
ing any interference."
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20. The Learned counsel for the respondents also placed reliance on the case of Smt Durga Bhati vs state of Rajasthan (SB CWP No.14741/2017), passed by this Hon'ble court wherein it was held that the writ petition is not maintainable on the ground that alternative remedy is available under section 65(1) of The Ra- jasthan Stamps Act 1998.
21. Heard the learned counsels for the parties; perused the mate- rial available on record and the judgments cited at the Bar.
22. This court observes that the learned counsel for the respon- dents has raised a preliminary objection regarding maintainability of the present writ petition on the ground of availability of alterna- tive remedy under Section 65 (1) of the Act of 1998 and this court is of the view that the judgment on which reliance is placed by the petitioner, i.e. Harbanslal Sahnia vs. IOCL (supra), otherwise therein that the petitioner is not required to exhaust alternate remedy, is not applicable to the present case, as the petitioner failed to demonstrate the three contingencies, i.e, the petitioner failed to establish that there was violation of the principles of nat- ural justice during the proceedings before the District Collector, as it is evident from the record that the order was passed in pres- ence of the counsel for the petitioner and the communication dated 17.10.2018 regarding the impounding of the document for deficiency in evaluation of stamp duty, was also made from the Office of Stamps Collector, Jodhpur to the petitioner; the petitioner (Downloaded on 12/11/2023 at 02:30:41 AM) [2023:RJ-JD:21107] (11 of 11) [CW-2936/2021] further failed to show violation of any of his fundamental right and also petitioner is not able to show that the proceedings before the District Collector was without the jurisdiction.
23. This court further observes that the current issue has been dealt with earlier by this Court in the case of Smt Durga Bhati vs state of Rajasthan (SB CWP No.14741/2017), wherein it was held that the writ petition is not maintainable on the ground of alternative remedy being available to the petitioner under Section 65 (1) of The Rajasthan Stamps Act 1998.
24. Thus, without entering into the merits of the case, the writ petition is dismissed on the ground of alternate remedy being available to the petitioner. However, the petitioner shall be at liberty to avail the alternative remedy available to him and approach the competent authority for the redressal of his grievance.
25. Stay applications and all pending applications, if any, also stand dismissed.
(DR. NUPUR BHATI),J 168-/Devesh Thanvi/-
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