Madhya Pradesh High Court
Ahshan Hussain vs The State Of Madhya Pradesh on 31 July, 2024
1
WA-1243-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA,
ACTING CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 31st OF JULY, 2024
WRIT APPEAL No. 1243 of 2024
AHSHAN HUSSAIN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Greeshm Jain - Advocate for the appellants.
Shri Ritwik Parashar - Advocate for respondents/State.
ORDER
Per: Sanjeev Sachdeva, Acting Chief Justice
1. Appellants impugn order dated 12.03.2024 whereby learned Single Judge has dismissed the writ petition filed by the appellants impugning order dated 06.02.2020 passed by Board of Revenue.
2. Appellants are aggrieved by an order dated 20.07.2015 passed by the Collector of Stamps directing the appellants to pay stamp duty of Rs.1,38,18,480/-. Aggrieved by the order, appellant filed an appeal to the Commissioner under Section 47(A)(4) of Indian Stamp Act (as amended by the State of M.P.) (for brevity 'Act'). The Commissioner by order dated 04.10.2017 dismissed the appeal filed by the appellants.
2WA-1243-2024
3. We may note that after 04.10.2017 when the appeal was dismissed, further amendment was carried out in the Indian Stamp Act by the State of M.P. and Section 47(A)(5) of the Act was repealed and a new provision Section 40(1)(e) of the Act was incorporated. Section 47(A)(5) of the Act provided for an appeal before the Chief Controlling Revenue- authority and Section 40(1)(e) of the Act provided for an appeal before the Chief Controlling Revenue-authority.
4. Instead of filing an appeal, appellants filed a revision under Section 56 of the Act on 28.08.2018. Subsequently, appellants filed an application dated 01.10.2019 seeking conversion of the revision into an appeal under Section 47(A)(5) of the Act. Said application seeking conversion was dismissed by the Chief Controlling Revenue-authority on 06.02.2020 holding that conversion could not be permitted as Section 47(A)(5) of the Act had been abolished. This decision was challenged by the appellants in the subject writ petition.
5. As noticed above, subject writ petition has been dismissed by order dated 12.03.2024. Learned Single Judge held that since provisions of Section 47(A)(5) of the Act have been omitted, the conversion was rightly rejected. Learned Single Judge has held that right of appeal is not an inherent right and is a statutory right and right of appeal will have prospective effects unless it is made retrospectively. Learned single Judge has held that the amendments carried out in the Statute on 23.10.2017 would not have a retrospective application and cannot make the order appealable which was not appealable prior thereto.
6. Reference may be made to the provisions of Section 47(A)(4)(5) of the Act as it stood prior to its omission by the M.P. Act 30 of 2017 w.e.f. 23.10.2017. Section 47(A)(4) and (5) of the Act reads as under:
3WA-1243-2024 "47(A) (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) Any person aggrieved by an order of the Collector under sub-
section (2) or sub-section (3) may, in the prescribed manner appeal against such order to the Commissioner who may either himself decide the appeal or transfer it to the Additional Commissioner of the Division.
(5) Any person aggrieved by an order passed in appeal under sub- section (4) may in the prescribed manner appeal against such order to the Chief Controlling Revenue-authority, Madhya Pradesh."
7. Section 47(A)(4) of the Act prior to amendment provided that person aggrieved by an order of the Collector may prefer an appeal against such order of the Commissioner. Section 47(A)(5) of the Act provided that any person aggrieved by an order passed in appeal under sub-section (4) may prefer an appeal to the Chief Controlling Revenue- authority, Madhya Pradesh.
8. In terms of Section 47(A)(5) of the Act, appellants could have preferred an appeal to the Chief Controlling Revenue-authority from the order passed by the Commissioner under Section 47(A)(4) of the Act.
9. Section 47(A)(5) of the Act was omitted w.e.f. 23.10.2017 and in its place Section 40(1)(d) & (e) was inserted. Section 40(1) (d) & (e) of the Act read as under:
"40(1) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) Any person aggrieved by an order of the Collector
under sub-section (1) may, in the prescribed manner, appeal against such order to the Officer notified by the State Government in this regard:
4WA-1243-2024 Provided that no appeal shall be admitted unless such person has deposited atleast 25 percent of the amount of deficit stamp duty as ordered by the Collector. Such amount shall be adjustable against the amount payable as per final order of the appellate authority, or refundable together with an interest of one percent for every month or part thereof from the date of deposit;
(e) Any person aggrieved by an order passed in appeal under clause (d) may appeal against such order to the Chief Controlling Revenue Authority in the prescribed manner."
10. Section 40(1)(d) of the Act stipulates that any person aggrieved by an order of the Collector may appeal against such order to the officer notified by the State Government in this regard. Section 40(1)(e) of the Act provides that any person aggrieved by an order passed in appeal under clause (d) may file appeal to the Chief Controlling Revenue Authority.
11. In the instant case, the order under Section 47(A)(4) of the Act was passed by the Commissioner on 04.10.2017 and appellants initially filed a revision on 28.08.2018 under Section 56(1) of the Act.
12. Section 56 of the Act reads as under:
"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.
(2) If nay Collector, acting under section 31, section 40 or section 41, feels doubt as to the amount of duty, with which any instrument is chargeable, he may drawn 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, after giving a reasonable opportunity of being heard to the parties concerned, 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.
(4) The Chief Controlling Revenue-authority may, on its won motion or on the application by any part, at any time for the 5 WA-1243-2024 purpose of satisfying itself as to the amount with which the instrument is chargeable with duty, call for and examine the record of any case disposed of by the Collector and may pass such order in reference thereto as it thinks fit:
Provided that it shall not vary or reverse any order unless notice has been served on the part concerned and opportunity given to him for being heard :
Provided further that no application for revision shall be -
(i) entertained against an order appealable under this Act;
(ii) entertained unless presented within ninety days from the date of order and in computing the period aforesaid, the time requisite for obtaining copy of the said order shall be excluded."
13. Second proviso to Section 56 of the Act provides that no application for revision shall be entertained against the order appealable under the Act. In terms of Section 56(1) of the Act, since remedy of appeal was provided under Section 47(A)(5) of the Act, revision would not have been maintainable. It appears that in these circumstances, appellants filed an application seeking conversion of the revision to an appeal which was dismissed on the ground that the provision of Section 47(A)(5) of the Act having been omitted, the revision could not be converted to an appeal.
14. Reference may be made to the Constitution Bench judgment of the Supreme Court in AIR 1957 SC 540 (Garikapati Veeraya vs. N. Subbiah Choudhary and others) which reads as under:
"23. From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.6
WA-1243-2024
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
15. The Supreme Court in the said judgment has held that right to appeal is a vested right which accrues to a party when litigation begins and is governed by the law in force at that time and not at the time of judgment or appeal.
16. In the present case, the right of appeal was existing in the Statute Book when the lis commenced with the order of the Collector dated 20.07.2015 and; thus, the appellant would have a right of appeal under Section 47(A)(5) of the Act.
17. Accordingly, it is held that right of appeal accrued to the appellants in terms of the provision as existing in the Statute Book as on 20.07.2015 with regard to filing an appeal would continue to apply to the case of the appellants even after its abolition.
18. Accordingly, the impugned order dated 06.02.2020 passed by the Board of Revenue dismissing the application of the appellants seeking conversion of their revision to an appeal is set aside. Consequently, the impugned order dated 12.03.2024 passed in W.P. No.5323/2021 as well as order dated 04.10.2017 passed by the Commissioner, Sagar Division, Sagar and the order dated 20.07.2015 passed by the Collector of Stamps, Sagar are set aside. The revision is directed to be treated as an appeal 7 WA-1243-2024 under Section 47(A)(5) of the Act subject to the period of limitation as provided under Section 47(A)(6) of the Act.
19. The appeal is accordingly disposed of in the above terms.
(SANJEEV SACHDEVA) (VINAY SARAF)
ACTING CHIEF JUSTICE JUDGE
YS
Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2024.08.14 14:56:29 +05'30'