Madras High Court
M.Palanisamy vs The State Of Tamil Nadu on 8 June, 2009
Equivalent citations: AIR 2010 MADRAS 39, 2010 A I H C (NOC) 507 (MAD) (2009) 5 MAD LJ 1293, (2009) 5 MAD LJ 1293
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2009 CORAM THE HONOURABLE Mr. JUSTICE S.NAGAMUTHU Writ Petition Nos.13252 to 13256 of 1999 and W.M.P.Nos.19009 to 19013 of 1999 M.Palanisamy ... Petitioner in W.P.13252/99 V.Karuppannan ... Petitioner in W.P.13253/99 P.Ramasamy Gounder ... Petitioner in W.P.13254/99 M.Palaniappa Gounder ... Petitioner in W.P.13255/99 K.Ganesan ... Petitioner in W.P.13256/99 Vs.
1.The State of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Fort St. George, Chennai 600 004.
2.The Inspector General of Registration, Santhome High Road, Mylapore, Chennai 600 004.
3.The Joint Sub Registrar No.1, (In the Grade of District Registrar), Karur. ... Respondents in all W.Ps
Common Prayer :- Writ petitions have been filed under Article 226 of The Constitution of India to issue a Writ of certiorari calling for the records of the third respondent issued in Na.Ka.No.1442/99 dated 23.04.1999 with reference to the document Nos.2265, 2264, 2268, 2266 & 1217/92 and quash the same.
For Petitioner in all W.Ps : Mr.V.Sanjeevi For Respondents in all W.Ps : Mr.S.Sivashanmugam, Government Advocate COMMON ORDER
Whether the amendment to the proviso to Section 19-B(4) of the Indian Stamp Act, brought in by the Tamil Nadu amendment Act 39 of 1999 can be applied retrospectively is the question which has arisen in these writ petitions for consideration.
2.In all these writ petitions, the petitioners had purchased immovable properties, of which, some are situated in the State of Tamil Nadu and the rest in the State of Kerala, under common sale deeds and they were registered by the Sub Registrar concerned in the State of Kerala. Under Section 67 of the Registration Act, the Sub Registrar concerned, after the registration is over, is required to forward a copy of the sale deed to the jurisdictional Sub Registrar in the State of Tamil Nadu. Section 19-B was introduced in the Stamp Act making such purchaser to pay differential stamp duty in respect of the properties situated in the State of Tamil Nadu covered in such common sale deeds. However, the proviso to Sub Section 4 of Section 19-B of the Act, as it stood originally, provided that no such proceeding under Section 19-B(4) of the Act, shall be taken after a period of four years from the date of registration of the instruments. The said proviso reads as follows:-
"no action under this sub-section shall be taken after a period of four years from the date of registration of such instrument."
3.The said proviso was amended in the State of Tamil Nadu by means of Tamil Nadu Act 39 of 1999 w.e.f 22.02.2000 by which the expression "from the date of registration of such instrument" the expression "from the date of receipt of the copy of such instrument in the State of Tamil Nadu under the Registration Act of 1908 (Central Act XVI of 1908)" was substituted. Thus, as per the amended proviso, the crucial date is not the date of registration of the document but the date of receipt of copy of the instrument by the jurisdictional Sub Registrar in the State of Tamil Nadu under Section 67 of the Act.
4.In the cases on hand, the sale deeds in question were registered in the State of Kerala on 22.05.1992. And as per the un-amended proviso to Section 19-B(4) of the Act, proceedings under Section 19-B (4) of the Act for collecting the differential stamp duty should have been initiated on or before 21.05.1996. But, the respondent did not do so.
5.Admittedly, the jurisdictional Sub Registrar in the State of Tamil Nadu received copies of the instruments only on 23.12.1998. Within a period of four years thereafter, the third respondent issued the impugned notices under Section 19-B(4) of the Act, calling upon the petitioners herein to explain as to why differential stamp duty should not be collected. The said notices are under challenge in these writ petitions.
6.According to the petitioners, the crucial date for calculating the period of limitation for initiating proceedings under Section 19-B(4) of the Act, in respect of the documents in question would be only the date of registration and not the date of receipt of copy of the documents by the third respondent. In essence, it is their contention that the amendment brought in by means of Tamil Nadu Act 39 of 1999 will have only prospective operation whereas it is the contention of the respondents that the crucial date is only the date of receipt of copies of the documents by the third respondent and the amendment will have retrospective operation. It is further stated by the learned counsel for the respondents that though it is obligatory on the part of the Sub Registrar concerned in the State of Kerala to forward a copy of the document soon after the registration, in this case, it was not done so. Admittedly, the copies were received only on 23.12.1998. Therefore, according to the respondents, the impugned notices are not barred by limitation.
7.To appreciate the rival contentions, it would be worthwhile to analyse the law on the subject at the outset. It has been well settled in a catina of decisions of the Hon'ble Supreme Court as well as various High Courts that the correct mode of interpretation of applicability of an amendment to a statute would be that unless the terms of the statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure.
8.One of the earliest judgments, wherein law on this subject came to be analysed is Hoosein Kasam Dada (India) Ltd., v. State of Madhya Pradesh (AIR 1953 SC 221) wherein, the Hon'ble Supreme Court has held that "the right of appeal is a substantive right and not merely a matter of procedure, and this right becomes vested in a party when the proceedings are first initiated in, and before a decision is given by, the inferior Court, and such a right cannot be taken away except by express enactment or necessary intendment."
9.A close reading of the above judgment would make it abundantly clear that a vested right cannot be taken away while giving retrospective operation to an enactment or an amendment brought to an enactment unless such an intention is either expressly or implidely shown in the statute itself. In the said judgment, the Hon'ble Supreme Court had an occasion to analyse the judgment of this Court with approval in Mohamed Hussain Nachiar Ammal v. Commissioner of Income-tax Madras (AIR 1956 Mad.471) in which case this Court has held as follows:-
"In the accounting year ending 31.03.1942 the assessee received from her non-resident husband, sums of money amounting to Rs.9180/- which was remitted to India by bank-drafts obtained in the name of his agent. The agent paid the amounts return of these items for assessment Proceedings under S.34 of the Income-tax Act were initiated against her on 25.07.1949 after the expiry of 4 years. Under S.34 of the Income-tax Act, before it was amended in 1948, the period of limitation was 4 years for failure to submit a return. Therefore, the remedy was barred on 31.03.1947. The amendment came into operation on 30.03.1948. It was held that the amendment which enlarged the period of re-assessment could not be applied. The learned Judges relied on an earlier Division Bench decision, Ramanathan Chettiar v. Kandappa Goundan, (1950) 2 Mad LJ 624: (AIR 1951 Mad 314), where it was stated by the Division Bench as follows:
"It is well settled that the law of limitation being procedural law, its provisions operate retrospectively in the sense that they apply to causes of action which arose before their enactment. But it is equally well-established that if a right to issue has become barred by the provisions of the Act then in force on the date of coming into force of a new enactment, then such a barred right is not revived by the application of the new enactment".
10.In Govinddas v. I-T.Officer (AIR 1977 SC 552) in paragraph No.10, the Hon'ble Supreme Court has reiterated the above view as follows:-
"10.Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol.36 of the Laws of England (3rd Ed.) and reiterated in several decisions of this Court as well as English Courts is that "all statues other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective" and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability of obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only...."
11.Similar view has been taken by the Hon'ble Supreme Court in State of Punjab v. Bhajan Kaur (AIR 2008 SC 2276) wherein, it has been held that the amending Act 54 of 1994 amending Section 140 of the Motor Vehicles Act is only a prospective legislation.
12.In Kasi Prosad v. Moto Lall (AIR 1959 Calcutta 566), a Division Bench of the Kolkatta High Court has held as follows:-
"While considering the question of the retrospective operation of the statute, the nature of the right affected must first be considered. Where there is a vested right, an amendment will be considered as prospective so as not to effect the vested right. If the right is merely procedural then normally there is no vested right. Whether limitation is a substantive right or a procedural right, if at the time when a change in the law comes into operation, the right to proceed was already barred under the old Act, then it cannot be revived by virtue of the amendment unless there was an express enactment therein to that effect."
13.If one looks into these judgments carefully, there can be no doubt that as per the settled law, a claim which is barred by a specific provision in an enactment cannot be revived by means of an amendment to the said provision unless such intention has been shown, either expressly or implidely, in the statute itself. If such intention is neither expressed in the statute, nor could be inferred, necessarily, the legislation shall be applied only prospectively.
14.Applying the said settled principle of law, if the Tamil Nadu amendment Act 39 of 1999 amending the proviso to Section 19-B(4) of the Act is analysed, it would be crystal clear that the intention of the legislature is not to have it retrospectively. There can be no controversy that a bar on a claim crystalizes into a vested right of the beneficiary and it cannot be stated to be only procedural. Therefore, such a vested right cannot be taken away by giving retrospective effect to the amendment Act 39 of 1999. In the result, I hold that the Tamil Nadu Amendment Act 39 of 1999 is only a prospective legislation.
15.In the cases on hand, the period of four years limitation provided in the un-amended proviso to Section 19-B(4) of the Act expired as early as on 21.05.1996 itself. From that date it has become the vested right of the petitioners. Indisputably, the show cause notices impugned in these writ petitions were issued only after expiry of the period of four years from the date of registration of the sale deeds and so, surely, they are barred by limitation.
16.A feeble attempt has been made by the learned Government Advocate to convince this Court to dismiss the writ petitions on the ground that the impugned notices are after all only show cause notices and the petitioners have got an alternative remedy of making their submissions before the authority concerned and so the writ petitions are not maintainable. But, I am unable to agree with the said contention for the simple reason that mere availability of an alternative remedy would not be a bar to entertain writ petitions under Article 226 of the Constitution of India. When the impugned notices have been found to be barred by limitation, there would be no purpose served by directing the petitioners to go before the authorities concerned to offer their explanations as it would only be a wasteful exercise. Therefore, I have to reject the contention of the learned Government Advocate in this regard.
17.In the result, the writ petitions are allowed and the impugned show cause notices are quashed. No costs. Consequently, connected miscellaneous petitions are closed.
jbm To
1.The State of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Fort St. George, Chennai 600 004.
2.The Inspector General of Registration, Santhome High Road, Mylapore, Chennai 600 004.
3.The Joint Sub Registrar No.1, (In the Grade of District Registrar), Karur