Allahabad High Court
Malik Shahnawaz Wali Khan Alias Arvind ... vs State Of U.P. & Ors. on 9 August, 2010
Author: Pankaj Mithal
Bench: Pankaj Mithal
Court No. - 33 Reserved
A.F.R.
Case :- WRIT - C No. - 45701 of 2010
Petitioner :- Malik Shahnawaz Wali Khan Alias Arvind Malik
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- Ankur Sharma,Ravi Kiran Jain
Respondent Counsel :- C.S.C,V.K. Dixit
And
Case :- WRIT - C No. - 45699 of 2010
Petitioner :- Smt. Sheeba Zareen
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- Ankur Sharma,Ravi Kiran Jain
Respondent Counsel :- C.S.C,V.K. Dixit
Hon'ble Pankaj Mithal,J.
The petitioners by means of these writ petitions have challenged the validity of the two notices dated 3.4.2010 and the separate orders dated 25.6.2010 passed in consequence thereof by the Collector (Stamps), in exercise of powers under Section 47-A (3) of the Indian Stamp Act (hereinafter referred as Act). The said orders in respect of the sale deeds dated 16.11.06 and 1.8.07 (Document nos. 9756/06 and 6688/07) respectively determine the deficiency in stamp duty by Rs.3,88,840/- and Rs. 7,07,020/- and imposes penalty of Rs.1,000/- in each case. The deficiency has been directed to be paid with interest @ 1.5 % per month.
Against the aforesaid orders, petitioners have a statutory alternative remedy of filing an appeal or a revision as the case may be, under Section 56 of the Act. The petitioners without availing the alternative remedy have directly approached this Court under Article 226 of the Constitution of India.
Sri R.K. Jain, Senior counsel assisted by Sri Ankur Sharma, learned counsel for the petitioners relying upon various authorities has submitted that alternative remedy is not an absolute bar and that as the validity of the notices is being challenged, the writ petitions cannot be thrown out on the ground of alternate remedy. The impugned -2- notices are not only vague but are unworthy of being replied with as they are not in consonance with the provisions of the Act. He has further submitted that the notices as such have to be treated as without jurisdiction and the orders passed in consequence to the same as nullity.
The principles on which a writ petition can be entertained are well recognized. The power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision. However, such a remedy of writ is an absolute discretionary remedy and the High Court has always the discretion to refuse grant of any writ if it is satisfied that the party aggrieved can have an adequate or suitable relief elsewhere. The writ authority is not normally exercised unless substantial injustice ensue or is likely to ensue and the parties must be relegated to the courts of appeal or revision to set right errors of law. It has therefore, been propounded time and again that when an alternative or an equally efficacious remedy is open to a litigant he should be required to pursue alternative remedy and not to invoke the extraordinary jurisdiction of the High Court of issuing a prerogative writ. Thus, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is not exhausted it is a sound exercise of discretion to refuse interference in a petition under Article 226 of the Constitution of India. In other words, where statutory remedy is available the court must decline to interfere under Article 226 of the Constitution of India. In Kernel State Electricity Board and another vs. Kuriyan E. Klathil (2000) 6 SCC 293, while dealing with a similar issue the Apex Court held the writ petition should not be entertained unless the party has exhausted the alternative or statutory efficacious remedy. In A. Venkta Subramanyam Naydu vs. S. Chellapan and others (2000) 7 SCC 695, the Supreme Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The above aspects of the matter have time and again been reiterated by the Apex Court in a catena of decisions, such as City Industrial -3- Development Corporation Vs. Dosn Aardeshir Bhiwandiwala & others (2009) 1 SCC 168, Rajkumar Shivhare V. Asst. Director, Directorate of Enforcement & another (2010) 4 SCC 772, Modern Industrial Vs. Steel Authority of India Ltd. (2010) 5 SCC 44 and a very recent judgment in the case of United Bank of India Vs. Satyawati Tandon & others decided on 26.7.2010. Thus, the power of issuing writ has to be exercised with care and great circumspection and the court should not interfere in the matter lightly where alternative remedy is available. However, availability of alternative remedy does not operate as a complete bar and a writ petition can be entertained directly in at least three contingencies which have been spelled out in the case of (1998) 8 SCC 1 Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others i.e. (i) where the petition has been filed for enforcement of any fundamental right; (ii) where there is a violation of principle of natural justice; and (iii) where the order or the proceedings are wholly without jurisdiction or the virus of the Act is challenged.
In short High Court under Article 226 of the Constitution of India though is vested with very wide powers and there is no statutory restrain in exercise of wisdom by the High Court in issuing high prerogative writs but the court has placed self restrain on its aforesaid power not as a rule of law but as a rule of convenience and one of the principles is that where equally efficacious statutory remedy is available the court should not interfere in the matter and must relegate the party to avail the statutory remedy so available with the exceptions as carved out above.
In the instant case petitioners are not seeking enforcement of a fundamental right nor they are challenging the virus of any provision of the Act. They are merely complaining about indirect violation of the principle of natural justice and accordingly the proceedings to be without jurisdiction on the ground of illegality in the notices. The alleged notices dated 3.4.2010 are annexure-1 to the writ petitions. I have perused the said notices. In fact the alleged notices are not actually a notice. They are only letters by the Collector Stamp which -4- have been written to the Tehsildar directing him to inform the petitioners to appear personally or through pleader before the court of the Collector on 12.4.10 at 10.00 a.m. obviously in connection with the Stamp Case No.170/03/10 & 169/03/10 described in the heading of the letters itself. A careful reading of the impugned orders dated 25.6.10 would indicate that the sale deeds dated 16.11.06 and 1.8.07 were referred by the Sub-registrar vide his report dated 26.9.07 for determination of the market value of the property involved therein for the purposes of payment of stamp duty as the same were found to be even less than the prescribed circle rate as notified on 22.6.06. On said reference being made the matters were assigned to a committee of three Officers to submit a report which was submitted on 3.3.10. On the basis of the aforesaid report Stamp Case No.170/3 of 2010 and 169/03 of 2010 were registered and notices were directed to be issued to the petitioners. The notices which might have actually been issued by the office of the Collector have not been enclosed. It has been submitted that apart from the notices (annexure-1) no other notice was served upon the petitioners but to this effect no specific averment in the writ petitions has been made. In fact the alleged notices (annexure-1) which are letters as described earlier were not even endorsed to the petitioners. On the other hand, the orders state that after the proceedings were registered notices in accordance with law were issued and served upon the petitioners. In such a situation the vagueness in the alleged notices (annexure-1) which are not actually notices meant to be served upon the petitioners are of no consequence and any vagueness or illegality in the same would not be material and make any difference to entitle the petitioners to invoke the writ jurisdiction directly.
Notice in its legal sense is information concerning a fact. A person has notice of the fact if he knows about the fact and has reason to know about it. The fact envisaged herein is the fact of pendency of the proceedings under Section 47-A of the Act. Undisputedly, petitioners have acquired the knowledge/information of the said proceedings may be through any source or through the alleged notices -5- (annexure-1), thus, having a notice or atleast serving the purpose of the notice. Petitioners have even filed their comprehensive reply to the said notices on 17.5.2010 and submitted to the procedure and the jurisdiction of the authority concerned. It is on consideration of the above reply that the impugned orders were passed. In this view of the matter the illegality of the notices if any pales into insignificance. Now, what is material and relevant is the impugned orders which may be right or wrong. The correctness of the said orders or any error therein is subject to rectification in appeal or revision under Section 56 of the Act. The remedy so available to the petitioners cannot be said to be illusive or inefficacious. In case the writ petitions are not entertained at this stage it would not even render the petitioners remedyless.
In view of the aforesaid facts and circumstances and the legal position, I am not inclined to exercise my extraordinary discretionary jurisdiction in the matter at this stage when the petitioners have an efficacious statutory remedy under the statue itself.
The various authorities cited at the bar by the learned counsel does not cut any ice so as to alter the legal position as enumerated above and therefore, I do not consider even refer to them and to unnecessarily burden my judgment.
The merits of the petitions were also highlightened so as to dispose of the matter finally but I refrain myself in dealing the merits lest it may prejudice the petitioner as that would have the effect of closing the doors for hearing before the Appellate/Revisional authority also.
Accordingly, I refuse to exercise my discretionary jurisdiction in the matter on the ground of availability of alternative remedy of appeal/revision to the petitioner under Section 56 of the Act and the writ petitions are dismissed on the aforesaid ground.
No order as to costs.
Dated-9.8.2010 piyush