Rajasthan High Court - Jaipur
M/S Ajaymeru Housing Development Pvt. ... vs M/S Vrindavandham Buildev (India) Pvt. ... on 16 May, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 25614/2018
M/s Ajaymeru Housing Development Pvt. Ltd., Through Its
Director Shri Junaid Jia, Khachariyawas House, Gangapole,
Jaipur
----Petitioner
Versus
1. M/s Vrindavandham Buildev (India) Pvt. Ltd., C-4, New
Colony, Jaipur Through Shri Dinesh Kumar Sharma
2. Shri Rajendra Prasad Yadav Son Of Late Shri
Laxminarayan Yadav, 37-A, Taranagar, Sahajpura,
Jhotwara, Jaipur
3. State Of Rajasthan Through Sub-Registrar, Amer, Jaipur.
----Respondents
For Petitioner(s) : Mr. Nikhil Simlote, Adv.
Mr. Hitesh Mishra, Adv.
For Respondent(s) : Mr. KK Sharma, Sr. Adv. assisted by Ms. Alankrita Sharma, Adv.
Mr. Sunil Mathur, Adv.
Mr. N.A.Naqvi, Sr. Adv. assisted by Mr. Mukesh Kumar Meena, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment reserved on : 10.04.2019
Judgment pronounced on: 16.05.2019
1. The petitioner has assailed the order dated 22.10.2018 passed by the Rajasthan Tax Board in Civil Revision No.487/2018 whereby the revision has been allowed and the order dated 16.04.2018 passed by the Collector (Stamps) has been set aside.
2. Brief facts which required to be noted for consideration of the case are that on 2.7.2003 an agreement was executed between the petitioner- M/s. Ajaymeru Housing Development Pvt. Ltd. Company engaged in housing with one Rajendra Prasad (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (2 of 18) [CW-25614/2018] Yadav, respondent No.2 of the present petition. Firm purchased agriculture lands owned by him at Village Lavana, Tehsil Amer Distt. Jaipur ad-measuring 1,18,275 Sq. Yards. As per clause 2 therein the payment was to be paid by the petitioner within three years whereafter the respondent seller would allow the petitioner to make demarcation on the said land. Before completion of the three years period, respondent No.2 further sold the land by registered sale deed to one M/s. Vrindavandham Buildev (India) Pvt. Ltd.-respondent No.1 on 24.06.2006.
3. Petitioner thereafter filed a suit for specific performance and mandatory injunction for declaration of sale deed executed in favour of respondent No.1 as null and void before the civil Court on 29.03.2009. On 17.05.2013, respondents filed their reply and on 23.11.2013 trial Court framed in all 11 issues.
On an application moved by respondent No.1 before the trial Court, the document agreement dated 4.4.2016 said to have been exhibited between the petitioner and respondent No.2 was deleted and was not allowed to be marked as an Exhibit vide order dated 04.06.2016.
The petitioner preferred a writ petition before this Court bearing S.B.C.W.P.No.2607/2017 challenging the said order and the writ petition was allowed. The order dated 4.4.2016 was set aside with direction to the petitioner to submit an application before the Court below for removing the deficiency of stamp duty as contemplated under Sections 35, 36 and 37 of Rajasthan Stamp Act.
The petitioner thereafter submitted an application accordingly and the trial Court sent the matter to the Collector, (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (3 of 18) [CW-25614/2018] Stamps who vide his order dated 12.10.2017 held that the agreement is liable for stamp duty and assessed the market value and directed the petitioner to pay a sum of Rs.1,15,26,470/- towards stamp duty including surcharge and surcharge for conservation and propagation of cow. An application thereafter moved by the petitioner under Section 52, 52A of Rajasthan Stamp Act, 1989 alongwith Order 9 Rule 13 read with Section 151 CPC and 152 B of CPC alleging that the order was passed ex-parte and after hearing the petitioner the Collector, Stamps modified and corrected its earlier order vide its order dated 16.04.2018 and held that the petitioner is liable to deposit a sum of Rs.2,81,520/- as stamp duty in relation to the agreement. Accordingly, the petitioner deposited the said amount.
Against the order of the Collector dated 16.4.2018, respondent No.1 filed a revision before the Rajasthan Tax Board, Ajmer alleging that the Collector has wrongfully reduced the stamp duty and the Rajasthan Tax Board vide impugned order dated 22.10.2018 allowed the revision and set aside the order restoring earlier order of Collector, Stamps dated 12.10.2017 holding the petitioner liable to pay a stamp duty as assessed earlier of Rs. 1,15,26,470/-.
4. Feeling aggrieved, the petitioner has preferred this writ petition and inter alia Counsel for the petitioner submits that the petitioner had filed suit for specific performance and mandatory injunction with the purpose to get the agreement registered. It is his submission that the Rajasthan Tax Board has failed to appreciate that respondent No.1 has no locus with regard to the stamp duty liable to be paid on the agreement entered between (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (4 of 18) [CW-25614/2018] the petitioner and respondent No.2 and the revision at his behalf would not lie to the Rajasthan Tax Board. It is his submission that the Collector has inherent power to correct/rectify his mistakes in terms of Section 52 of the Act. It is further submitted that, if any, order of the Collector is erroneous or prejudicial, power is conferred with the Inspector General of Stamps to take cognizance and pass appropriate order and the Rajasthan Tax Board has no jurisdiction in the matter. Further, the petitioner has submitted written submissions after the case was reserved and the learned Counsel submits that the provisions of Section 52 and 52A of the Rajasthan Stamps Act are paramateria to that of Section 254(2) of the Income Tax Act, 1961 and wide powers are available to the Collector for rectification and amendment in his earlier order and the Tax Board exceeded its jurisdiction to hold that the matter falls under the provisions of Section 2(xi) of the Act of 1998. The question whether the possession of the entire land had been handed over to the petitioner, is still to be decided as an issue before the concerned Court and a finding can only be arrived at by leading evidence and the Tax Board was not required to give its verdict on the said aspect. From the perusal of the agreement dated 2.7.2003 learned Counsel submits that only permission was agreed to be given to the seller for Patthargarhi over the land as the possession of the entire land was not handed over to the petitioner and only amount of Rs.1,00,000/- had been paid against the total consideration of Rs.76,20,000/- in terms of the agreement dated 2.7.2003 and, therefore, a presumption could not be drawn that the petitioner had been brought into possession of the entire land by seller respondent No.2. The Tax (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (5 of 18) [CW-25614/2018] Board, therefore, has fallen in error in holding that the possession had been handed over to the entire land and thus, the stamp duty has to be assessed on the total value of the land. Learned Counsel submits that the very nature of suit for specific performance requires that the registration of the document which essentially finalized a sale deed was sought for by the petitioner as against respondent No.2 and a presumption contrary to the same could not have been arrived at by the Tax Board. It is also submitted that an FIR No.306/2018 was lodged by the petitioner wherein respondent No.1 has stated that the possession of the land is with them. It is submitted that earlier order dated 12.10.2017 was rightly modified, rectified by the Collector as the same was passed without giving notice to the petitioner. The conveyance deed has never been executed between the petitioner and respondent No.2. It is further submitted that the sale deed executed between respondent Nos.1 and 2 dated 24.06.2006 which the petitioner prays to declare void, ab initio indicates that the possession of the impugned land was handed over by respondent No.2 to respondent No.1. Alternatively, it is submitted that the petitioner could have been assessed only the basis of agreement dated 02.07.2003 and valuation as it existed in 2003 and not on the basis of value of the land as in 2017.
5. Learned Counsel for the petitioner has relied on judgments of Supreme Court reported in (2008) 14 SCC 171- Assistant Commissioner of Income Tax Rajkot Vs. Saurastra Kutch Stock Exchange Limited , (2003) 259 ITR (Raj.)- Commissioner of Income Tax. Vs. Rajasthan Electricity Board, (1998) 174 ITR 579 (Ker.) - Kil Kotagiri (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (6 of 18) [CW-25614/2018] Tea and Coffee Estates Co. Ltd., (2007) 295 ITR 466 (SC)- Honda Sell Power Products Ltd. Vs. Commissioner of Income Tax, (2006) 284 ITR 381 (Delhi) - Commissioner of Income Tax Vs. Siet Ltd. and (2017) 11 SCC 246- Selva Rani & Ors. Vs. R.Krishnammal & Ors.
6. Per contra, learned Sr. Counsel appearing for respondent No.1 has supported the order passed by the Tax Board and submits that the power contained under Section 52 and 52A with the Collector, Stamps is only for rectification. While exercising such a power, the Collector, stamps cannot review his own order and has to be treated as passed without any authority of law and the Sales Tax Board has, therefore, rightly set aside the order.
Learned Sr. Counsel further submits that the petitioner was handed over the property while entering into an agreement and has stated in his plaint for specific performance made such an averment. One of the issues framed by the trial Court is whether plaintiff was handed over the possession of the property as issue No.2 in terms of the agreement. In view thereof, the Rajasthan Tax Board has rightly held the petitioner to be liable to pay the entire stamp duty for the agreement which is treated as a conveyance deed.
7. Learned Counsel has relied on judgment of Supreme Court reported in (2008) 2 SCC 439- Deva Metal Powders (P) Ltd. Vs. Commissioner, Trade Tax, Uttar Pradesh, 2016(1) RLW 474 (Raj.)- Jal Mahal Resorts Pvt. Ltd. (M/s. ) Vs. State of Rajasthan & Ors, (2011) 4 SCC 750- Assistant Commercial Taxes Officer Vs. Makkad Plastic (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (7 of 18) [CW-25614/2018] Agenices & AIR 2013 Raj.76- Deepak Soni & Anr. Vs. kodar Mal & Anr..
8. Learned Senior Counsel appearing for respondent No.2 Mr. N.A.Naqvi has however submitted and supported the petitioner. It is his submission that admittedly an agreement was entered between the petitioner and respondent No.2 on 2.7.2003 on a non-judicial stamp paper of Rs.100/- for sale of 9.578 Hectares of land in Khasra No.1163 to 1179, 1211/2314 in village Lavana, Tehsil Amer. The agreement was notorized with condition that as the payment is received, the possession shall be handed over to the petitioner and a total payment was to be made within three years. However, only a sum of Rs. 1,00,000/- was received in advance, therefore, there was no occasion to handover the possession of the property to the petitioner by respondent No.2.
In fact respondent No.2 entered into a registered sale deed with respondent No.1 and handed over the possession to respondent No.1 and the total stamp duty as per the sale deed executed between the parties has already been paid. Learned Sr. Counsel, therefore, submits that the view taken by the Rajasthan Tax Board is erroneous and the order passed by the Collector, Stamps dated 16.4.2018 is, therefore, required to be restored.
9. I have considered the submissions and have gone to the facts of the case and find that the Rajasthan Tax Board vide order dated 22.10.2018 has set aside the order dated 16.4.2018 passed by the Collector, (Stamps) holding that the agreement entered between the petitioner dated 2.7.2003 and respondent No.2 was a conveyance deed and the possession was handed over at the time of agreement to the petitioner and resultantely in (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (8 of 18) [CW-25614/2018] terms of Section 35 of the Stamps Act. The stamp duty on the said agreement would be on the basis of the total value of the land and, therefore, the Rajasthan Tax Board proceeded to hold that the Collector (Stamps) could not have modified its earlier order and a stamp of Rs. 1,15,26,470/- was required to be paid by the petitioner.
10. So far as the question regarding the locus standi of respondent No.1 in filing revision before the Sales Tax Board is concerned, this Court is of the view that once respondent No.1 was heard and was a party before the Collector, learned Counsel had locus to file a revision before the Rajasthan Tax Board and the submission of the Counsel for the petitioner on this count falls.
11. Before giving findings on above, it would be appropriate to quote the various provisions of the Stamps Act:-
12. Section 51 of Rajasthan Stamps Act, 1998 provides for the Collector to conduct scrutiny and reached to the conclusion as to what stamp duty is required to be paid. The same reads as under:-
"51 - Instruments under valued, how to be valued (1) Notwithstanding anything contained in the Registration Act, 1908 (Act No. 16 of 1908) and the rules made thereunder as inforce 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 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 (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (9 of 18) [CW-25614/2018] 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). (3) On receipt of the instrument under sub-section (1) or (2) the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in the prescribed manner, determine the market Value and duty including the penalty not exceeding ten times the deficient stamp duty chargeable and surcharge, if any, payable thereon and if the amount of duty including penalty and surcharge, if any, so determined exceeds the amount of duty including penalty and surcharge, if already paid, the deficient amount shall be payable by the person liable to pay the duty including penalty and surcharge, if any. (4) Where it appears to a person having by law or consent of parties authority to receive evidence or a person incharge of a public office, during the course of inspection or otherwise, except an officer of a police, that an instrument is undervalued such person shall forthwith make a reference to the Collector in that matter. (5) The Collector may, suo motu or on a reference made under sub-section' (4) call for and examine any instrument not referred to him under sub- section (1) or (2), from any person referred to in sub- section (4) or the executant or any other person for the purpose of satisfying himself as to correctness of the market value of the property, and if after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine in accordance with the procedure provided in sub-section (3) the market value and the amount of stamp duty together with a penalty not exceeding ten times the deficient stamp duty chargeable on it, which shall be payable by the person liable to pay the stamp duty, and penalty. (6) Where for any reason the original document called for by the Collector under sub-section (5) is not produced or cannot be produced, the Collector may, after recording the reasons for its not production, call for a certified copy of the entries of the document from the registering officer concerned and exercise the powers conferred on him under sub-section (5). (7) For the purpose of inquiries under this section, the Collector shall have power to summon and enforce the attendance of witnesses, including the parties to the instrument or any of them, and to compel the production of documents by the same means, and so far as may be in the same manner, as is provided in the case of civil court under Code of Civil Procedure, 1908 (Act 5 of 1908).
(D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (10 of 18) [CW-25614/2018] Similarly Section 52 as well as Section 52A, 52B are very much clear and same are reproduced as under:-
"52- Rectification of mistakes:- With a view to rectifying any mistake apparent from the record, the Collector may amend any order made by him under this Act, within 1 (two years) of the date of order either on his own motion or on the mistake being brought to his notice by person affected by the order:
Provided that if any such amendment is likely to affect any person prejudicially, it shall not be made without giving to such person reasonable opportunity of being heard.
52-A. Reopening of ex parte orders- (1) Where an order has been passed by the Collector ex party under this Act, the aggrieved person may apply to the Collector for reopening of such order within thirty days from the date of communication of such order to him on the grounds that he did not receive the notice or summons issued to him in the matter or that he was prevented by sufficient cause from complying with any notice or summons issued to him.
(2) if the Collector is satisfied with the ground specified in the application made under sub-section (1), he shall reopen the ex parte order and after hearing the aggrieved person may pass such order as he may think proper in the circumstances of the matter within three months from the date of receipt of the application under sub-section (1).
52-B Revision by the Inspector General of Stamps:-(1) The Inspector General of Stamp may suo motu or otherwise, call for and examine the record of any proceeding under Chapter III, IV and V of this Act, and if he considers that any order passed therein by Collector is either erroneous or prejudicial to the interest of the State revenue, he may, after having made or after having caused to be made such enquiry as he considers necessary, and after having given to the party concerned a reasonable opportunity of being heard, pass such order or issue such direction as he deems proper under the circumstances of the case.
(2) No order or direction under sub-section (1) shall be passed or issued by the Inspector General of Stamp after expiry of period of five years from the date on which the order sought to be revised was passed."
Thus, in terms of above the Collector is competent to pass any order amending the earlier order or reopening the ex- parte order.
(D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (11 of 18) [CW-25614/2018]
13. In the present case, the Collector had earlier passed order on 12.10.2017 holding the stamp duty on the agreement to be on the basis of the full valuation of the property considering it as a conveyance and assessing the value of the land on the basis of market value. Respondent No.1 was provided hearing by the Collector and so far as the petitioner is concerned, they appeared through their Counsel and filed an affidavit stating that they had paid in advance a sum of Rs.1,00,000/- to the seller in view of the agreement for purchase of land at the rate of 2,00,000/- per bigha.
14. Counsel for respondent No.2 had pointed out before the Collector that the plaintiff-petitioner had submitted in his plant that he had taken possession of the land and, therefore, the agreement ought to be treated as a conveyance. Accordingly, the agreement was treated as a conveyance and stamp duty was assessed on the basis of the market value whereafter an application was moved under Section 52 and 52A readwith Order 9 Rule 13 CPC before the Collector Stamps was filed by the petitioner stating therein that petitioner was not given a fair opportunity of hearing and a decision was taken ex-parte. In the circumstances, the petitioner prayed that the order of ex-parte be recalled. It is stated that as per the order sheet the service on the petitioner had not been effected and no affidavit was filed on behalf of the petitioner and there was a wrongful mentioning of affidavit having been filed before the Court of Collector. The various order sheets were quoted in the application. Thus the Collector exercised his powers under Section 52 and 52A and revised his earlier order holding that the land had not gone into (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (12 of 18) [CW-25614/2018] possession in terms of Agreement and, therefore, stamp duty could not be assessed on the total market value of land.
It was submitted that an application was moved under Order 1 Rule 10 by M/s. Vrindavandham Buildev for impleadment who was treated as non-applicant No.3 by the Collector and the Collector proceeded to pass an order. It was further stated that only a sum of Rs. 1,00,000/- had been paid in advance and the issue whether the petitioner was put in possession of the entire property was still to be determined by the concerned civil Court.
A look at the issues framed by the civil Court show that the civil Court has framed 11 issues. Issue No.2 was whether the plaintiff-petitioner was handed over the possession of the agriculture land and had got land leveling, constructed road, installed electricity and pump set and was carrying on business of dairy? Issue No.10 has been framed whether the respondent No.1 (defendant No.2) in the suit was a bonafide purchaser and was in possession of the disputed property in terms of the sale deed executed in his favour dated 24.06.2006? Thus, the civil Court is yet to decide whether possession was handed over to petitioner in terms of the agreement.
15. Thus, in the opinion of this Court, the Rajasthan Tax Board could not have reached to the conclusion that the petitioner was in possession of the entire property. Therefore, a conclusion drawn that the agreement resulted in handing over the possession of the property to the petitioner and hence the Agreement was to be treated as a conveyance of property and complete valuation of property was to be assessed for assessing the stamp duty is found to be erroneous.
(D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (13 of 18) [CW-25614/2018] As regards the question whether the Collector was empowered to rectify or revised his earlier order, in light of what has been stated hereinabove, it is apparent that in terms of the power contained under Section 52 and 52A the Collector rightly corrected his earlier order dated 12.10.2017 and assessed the stamp duty to be paid on the agreement solely on the basis of treating it to be an agreement of sale wherein amount was assessed on the basis of the advance received.
16. In (2008) 14 SCC 171- Assistant Commissioner of Income Tax, Rajkot Vs. Surastra Kutch Stock Exchange Limited the Supreme Court was dealing with the power of rectification available with the Income Tax Authorities in terms of Section 254(2) of the Act and held as under:-
"9. We have heard learned counsel for the parties.
10. The learned counsel for the Revenue submitted that the Tribunal committed an error of law and of jurisdiction in exercising power under sub-section (2) of Section 254 of the Act and in recalling its earlier order passed in appeal. It was submitted that the Tribunal is a statutory authority (though not an `income tax authority' under Section 116) and is exercising power conferred by the Act. It has no `plenary' powers. It has no power to review its own decisions. Power under Section 254(2) can be exercised in case of any `mistake apparent from the record'. According to the counsel, even if the order passed by the Tribunal was incorrect or wrong in law, it would not fall within the connotation `mistake apparent on record'. If the assessee was aggrieved by the said order, it could have challenged the order by taking appropriate proceedings known to law. Miscellaneous Application under Section 254(2) of the Act was not maintainable. Again, the order passed under Section 254 by the Tribunal is final under sub-section (4) of the said section. By invoking the jurisdiction under sub-section (2) of the said section, the statutory `finality' cannot be destroyed or the provision cannot be made nugatory. The Tribunal, therefore, could not have allowed the application and recalled its earlier order as there was no error apparent on the record. The Revenue, therefore, challenged the said order. Unfortunately, however, the High Court committed the same error and dismissed the writ petition. The order passed by the High Court also suffers from (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (14 of 18) [CW-25614/2018] similar infirmity. Both the orders, therefore, are required to be quashed and set aside.
37. In our judgment, therefore, a patent, manifest and self- evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record."
In Syed Yakoob vs K.S. Radhakrishnan & Others - 1964 SCR (5) 64 Constitution Bench concluded as under: -
"36. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-inter-pretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari.In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (15 of 18) [CW-25614/2018] the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened".
Similar view has been taken in the judgments which has been cited by learned Counsel for the petitioner in (2017) 11 SCC 246- Selva Rani & Ors. Vs. R.Krishnammal & Ors. the Supreme Court held as under:-
"-----------------We will, therefore, find no fault with the order of the High Court in remanding the matter to the First Appellate Court for a de novo decision on the said question. Though it was contended on behalf of the Appellants-Defendants that the exercise of the review power in the present case was not justified, we disagree. Not only an error is apparent but we also find that the eventual conclusion of a High Court is be correct. The present would, therefore, not be a fit case for interference in exercise of our jurisdiction Under Article 136 of the Constitution. We, therefore, maintain the order of the High Court passed in the review application and dispose of the appeal upholding the order dated 03.08.2012 impugned in the present appeal."
Similarly in AIR 2013 Raj.76,- Deepak Soni & Anr. Vs. kodar Mal & Anr. the Supreme Court while considering the import of Section 35 and 39 of the Act of 1998 and clause 5(bb) of the Schedule held as under:-
"14. Upon perusal of clause 5(bb), it is revealed that if any agreement or memorandum of agreement relating to purchase of sale of an immovable property, when possession is neither given nor yet to be given, then, 3% of the total cost of the property is payable for stamp duty. After perusal of the aforesaid provision, I have perused Annex.1 agreement filed with the writ petition which is written on stamp of Rs.100/-. Para 9 of the said agreement is as follows:-
;g fd mDr fodz; jkf'k dh cdk;k jde oDr fof/kor fodz; i= fy[k iath;u djkrs oDr f}rh; i{kdkjku ls izFke i{kdkjku izkIr dj ysxk ,oa ekSds ij lHkh IykV ua- 370 ch, 387, 357, 348, 332, 352, 343 340, 354 o 339 dk dCtk fliwnZ dj nsxk! (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (16 of 18) [CW-25614/2018]
15. It is true that in this agreement there is no assertion that possession has been given to the petitioner but, at the same time, in para 9, it is specifically agreed that possession will be given at the time of registration of the sale-deed. In view of above, I am of the opinion that the trial Court has committed grave error while sending the agreement in question to the District Collector for determining the stamp duty and penalty which is not attracted in this case. "
17. Per contra, judgment cited by the learned Counsel for the respondent also required to be considered:-
In (2011) 4 SCC 750- Assistant Commercial Taxes Officer Vs. Makkad Plastic Agenices. the scope of review of rectification was examined by the Apex Court and it was held as under:-
"14.The scope and ambit of the power which could be exercised under Section 37 of the Act of 1994 is circumscribed and restricted within the ambit of the power vested by the said Section. Such a power is neither a power of review nor is akin to the power of revision but is only a power to rectify a mistake apparent on the face of the record. Rectification implies the correction of an error or a removal of defects or imperfections. It implies an error, mistake or defect which after rectification is made right."
In 2016(1) RLW 474 (Raj.)- Jal Mahal Resorts Pvt. Ltd. (M/s. ) Vs. State of Rajasthan & Ors. while examining the scope of Section 52 of the Act of 1998, the coordinate Bench of this Court held as under: -
"6. In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be appropriate to reproduce the relevant Section 52 as contained in the Act. Section 52 reads as under :-
"52 - Rectification of mistakes - With a view to rectifying any mistake apparent from the record, the Collector may amend any order made by him under this Act, within ninety days of the date of order either on his own motion or on the mistake being brought to his notice by person affected by the order : Provided that if any such amendment is likely to affect any person prejudicially, it shall not be made without giving to such person reasonable opportunity of being heard."
7. From the bare perusal of the said provision, it clearly transpires that the Collector could rectify any mistake apparent from the record and amend any order passed by him under the Act within 90 days of the said order, either on his own motion or on the (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (17 of 18) [CW-25614/2018] mistake having been brought to his notice by the person affected by the order. In the instant case, the respondent No.2 has sought to review or revise his earlier order dated 22/9/2014, at the instance of the respondent No.3 who had filed the rectification application before him under Section 52 of the said Act. Now, as transpiring from the impugned order , the respondent had not only reviewed his earlier order while exercising the powers under Section 52, but had gone into the merits of the case and passed the impugned order by giving reasons in detail. Such a course was not open to the respondent No.2, inasmuch as the respondent No.2 could have only amended the earlier order made by him by rectifying the mistakes apparent on the face of record under Section 52 of the said Act, and could not have reappreciated the documents afresh and passed the order afresh setting aside S.B. Civil Writ Petition No. 6419/2015 5 his earlier order. In the opinion of the Court the decision of the Apex Court in case of Deva Metal Powders (P) Ltd. vs. Commissioner, Trade Tax, Uttar Pradesh (supra)clinches the issue. It has been observed therein as under :-
"12. A bare look at Section 22 of the Act makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of Section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen; obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration."
13. In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of Section 22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the record. In order to bring an application under Section 22, the mistake must be "apparent" from the record. Section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from selfevident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by this Court in Master Construction Co. (P) Ltd. v. State of (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) (18 of 18) [CW-25614/2018] Orissa, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. "
18. It is to be noted that the learned Tax Board has not examined the scope available with the Collector in terms of Section 52A of the Act of 1998. As has been noticed from the order sheets which were mentioned in the application moved by the petitioner, before the Collector, it is apparent that the order passed earlier by the Collector was an ex-parte order. Thus, this Court is of the view that the power exercised by the Collector while revising his earlier order on 12.10.2017 he did not only exercise powers under Section 52 but also exercised powers under Section 52A. Power under Section 52A would be much wider than that of under Section 52 and the Collector would be entitled to go into the merits of the case. Appeal for rectifying mistakes is available under section 52. Thus viewed, the order passed by the Tax Board cannot be said to be sustainable in law as it is only examine the case in light of the power exercisable by the Collector in terms of Section 52 alone.
19. In view of the aforesaid findings the order passed by the Sales Tax dated 22.10.2018 is, therefore, set aside. Order of the Collector dated 16.4.2018 with regard to depositing stamp duty on the agreement is upheld.
20. The writ petition is accordingly allowed.
21. No costs.
(SANJEEV PRAKASH SHARMA),J NAVAL KISHOR /59 (D.B. SAW/790/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 29/06/2019 at 01:49:30 AM) Powered by TCPDF (www.tcpdf.org)