Etthyammal v. The Sub Collector, Tindivanam — 1999 DIGILAW 496 (MAD)

Judgment :- 1. The prayer in the Writ Petition is for the issue of a writ of certiorari to call for the records on the file of the Sub Collector, Tindivanam the respondent herein in his proceedings A. 8/4704/92 dated 17.8.1993 and quash the proceedings thereon as illegal, incompetent, ultravires and without jurisdiction. 2. The affidavit filed in support of the Writ Petition alleges as follows: The writ petitioners have filed a suit in O.S. No. 1134 of 1987 against one Muthusamy Gounder and two others before the District Munsif, Tindivanam for declaration and injunction. In that suit they filed a partition deed entered into between the husband of the first petitioner and defendants 2 and 3. According to the petitioners, the said document would not attract the provisions of the Stamp Act as no fight under the document was created. The Sub Collector Tindivanam the respondent herein assumed that duty should be levied as per Article 15 of the Indian Stamp Act read with Article 45 and referred the matter to the Collector after impounding it as per the provisions of Sec. 35 of the Stamp Act. He called upon the first petitioner to appear before him on 16.8.1993 at 10 A.M. The first petitioner appeared before him and submitted her explanation to the notice contending that the document did not require any stamp duty and the same could be utilised for collateral purposes. She further represented that the valuation of the property for the purpose of stamp duty should if at all be recovered on the basis of the market value as on the date of the document namely 12.4.1959. The respondent not having considered her objection and passed an order on 17.8.1993 valuing the property at Rs. 1,46,969/- and fixed the stamp duty at Rs. 5,640/- and a penalty of Rs. 5/- under Sec. 40 (i) (b) of the Indian Stamp Act (hereinafter referred to as the Act), the present Writ Petition came to be filed. 3. A counter has been filed on behalf of the respondent contending inter alia as follows: The very reading of the document would show that rights were created under the document and possession had been handed over only under the document. On the basis of the valuation report furnished by the Tahsildar, Vanur, an enquiry was conducted on 16.8.1993. 3. A counter has been filed on behalf of the respondent contending inter alia as follows: The very reading of the document would show that rights were created under the document and possession had been handed over only under the document. On the basis of the valuation report furnished by the Tahsildar, Vanur, an enquiry was conducted on 16.8.1993. In that enquiry, petitioner admitted that the stamp duty fixed by the respondent was correct and also agreed to pay the stamp duty. She also gave a statement to that effect on the date of enquiry itself. Therefore, it was not proper to say that her objections were not considered. The respondent did not contravene any of the provisions of the Stamp Act and it was not open to the petitioners to contend that the provisions of Articles 45 or 16 of the Act were not attracted. The document in question is a deed of partition. The values of the separated shares were taken into consideration and stamp duty was levied on the largest share remaining after the property was partitioned. As regards the allegation that the market value as of the year 1959 should have been fixed, the respondent contended that the registers pertaining to the market value for the year 1959 was not available in the Sub-Registrars Office and therefore the property was valued as per the prevailing market rate. The respondent valued the property only on the basis of the report submitted by the Tahsildar, Vanur who in his turn obtained the particulars from the Sub-Registrars Office. 4. Mr. V. Raghavachari, learned counsel for the writ petitioners submitted that under the document no rights in praesenti were created and when the instrument of partition did not create any new right but only stated that the parties agreed to divide the said document could not attract the provisions of Article 45 or 16 of the Indian Stamp Act. Only in the event of any property being divided, the Collector had jurisdiction to require the petitioners to pay the stamp duty. He should also issue notice to all the parties to the suit and not to just one party and decide the matter in the absence of other parties. Only in the event of any property being divided, the Collector had jurisdiction to require the petitioners to pay the stamp duty. He should also issue notice to all the parties to the suit and not to just one party and decide the matter in the absence of other parties. Even conceding that the Sub-Collector had jurisdiction to levy stamp duty and penalty he ought to fix the stamp duty only on the basis of the value as on the date of the document and not on the date when he enquired into the matter. 5. The learned Government Pleader besides supporting the order on merits submitted that there was an alternative remedy provided under Sec. 56(1) of the Act before the Chief Controlling Revenue Authority and the Writ Petition would be incompetent. 6. The document is dated 12.4.1959. A reading of the document clearly shows that it was only under the document the parties had divided the properties. Rights were created only under this document and it is not open to the writ petitioners to contend that the document only acknowledged any pre-existing right. 7. The next question is regarding the value for which the stamp duty has to be paid. Admittedly, the document is of the year 1959. The order of the respondent states that the value of the property involved in the deed has been arrived at as Rs. 1,46,969/- and the stamp duty had to be fixed on the said amount. It is conceded that the value had been fixed as in the year 1993 and not as in the year 1959, which is the year of the document. The reason given by the respondent for not fixing the value as in the year 1959 is that the registers for 1959 were not available with the Sub-Registrar and therefore the value had been fixed as in the year 1993. This can hardly be an acceptable reason for fixing the value when the document is of the year 1959. Non-availability of the records cannot be a ground for fastening a larger liability on parties. It is not necessary to quote chapter and verse in this regard. It is the duty of respondent to have arrived at the market value for the property for the year 1959 on the basis of the market value obtaining in the years immediately following 1959. It is not necessary to quote chapter and verse in this regard. It is the duty of respondent to have arrived at the market value for the property for the year 1959 on the basis of the market value obtaining in the years immediately following 1959. He ought not to have burdened the petitioners with the stamp duty on the market value as in 1993. 8. The next question to be answered is regarding the maintainability of the Writ Petition in view of the availability of alternative remedy under Sec. 56 of the Act. It has been held in Thakar Das and others v. Crown (AIR 1932 Lahore 495) by a Special Bench of the Lahore High Court that Sub-Section (2) of Sec. 56 confers very wide controlling powers on the Chief Controlling Revenue Authority and there seems to be no good reason why the power should not be exercised even before the stamp duty is paid. 9. Several decisions have also been cited as to the procedure to be adopted by the Chief Revenue Authority while exercising powers under Sec. 56 of the Act. Time was when it was held that while exercising powers under Sec. 56 the authority need not give a personal hearing as long as he adverted to the grounds raised in the representation and considered them. ( V.S. Shanmuga Mudaliar (63 L.W. 829 = 1950 (2) MLJ 399) and N. Saradambal Ammal v. The Chief Controlling Revenue Authority, Board of Revenue, Chepauk (72 L.W. 531 = AIR 1960 Mad. 21 ). 10. However, after the decision of the Supreme Court in Board of Revenue v. Sardarni Vidyawati ( AIR 1962 SC 1217 = 1963 (1) SCJ 324) the concept changed and it came to be held that a proper compliance with the duties imposed by the statute on the Board of Revenue as the Chief Controlling Revenue Authority in such cases should be viewed as involving a duty to hear the petitioner in person especially when a large financial commitment would be imposed on him if his contentions were to be over ruled. ( Ama Stores v. The Collector of Madras and another ( AIR 1970 Mad. 148 = 1969 (1) MU 418)). ( Ama Stores v. The Collector of Madras and another ( AIR 1970 Mad. 148 = 1969 (1) MU 418)). The above decision would be relevant only if it is to be held that the petitioners have to go before the Authority under Sec. 56 for a review or reappraisal of the situation. 11. It has been held in Subramanian Chettiar v. Revenue Divisional Officer, Devakottah and another (69 L.W. 409 = AIR 1956 Mad. 454 ) while dealing with Sections 48, 56 and 58 of the Stamp Act and the powers under Article 226 of the Constitution, that mere existence of an alternative remedy would not be a bar for exercise of powers under Article 226 when the situation warranted such invocation. In the case before the Bench the question arose under the following circumstances:— Two documents were produced by one ‘P’ in his suit before the Subordinate Judge against one ‘S’ for recovery of moneys due under a document renewing the date under the two bonds which were labelled deposit letters. The Court-fee examiner put in a check-slip contending that the alleged deposit letters were really bonds and had not been duly stamped and suggesting that they should be impounded and sent to the Collector. When the matter was taken by the Court ‘P’ agreed to have the document impounded and sent to the Collector for levying the appropriate stamp duty. The Subordinate Judge impounded the document under Sec. 35 of the Stamp Act and sent them to the Collector (the R.D.O.). The R.D.O. received the documents, passed an order under Sec. 40 of the Stamp Act levying a duty of Rs. 135 find the penalty of Rs. 675 on the first document and a duty of Rs. 60/- and a penalty of Rs. 300/- on the second document and called upon ‘S’ to pay the amount of Rs. 1,170/-. ‘S’ moved the R.D.O. to reconsider the order stating that the documents under question were only deposit letters and not bonds. The petition was rejected by the R.D.O. and ‘S’ was asked to pay the amount within 10 days of the receipt of the order, failing which he was told that the amount would be realised from him as arrears of land revenue and steps would be taken to prosecute him under the provisions of the Stamp Act. He appealed to the Collector. He appealed to the Collector. The Collector reduced the penalty from five times the duty to three times the duty, but otherwise dismissed the appeal. As ‘S’ did not pay the amount, a warrant, was issued for the attachment of his properties for the recovery of the stamp duty and penalty. Under those circumstances, the Writ Petition came to be filed and it was contended that even if there was an alternative remedy open to the petitioner like taking the matter in appeal or revision to the Board of Revenue, that remedy was not equally convenient or beneficial or effective, since the petitioners properties were in imminent danger of being sold for recovering the stamp duty and penalty as arrears of land revenue. The Bench held that the High Court could exercise, at the instance of an aggrieved party, irrespective of any fundamental right being involved in the matter, such a power of issuing a writ of certiorari in suitable cases. Having regard to the facts of that case the Bench held that the alternative remedies in the opinion of the Court were not effective, speedy, adequate or sufficient and that the facts of each case had to be considered before deciding whether the alternative remedies were speedy, effective, adequate or sufficient. 12. It would be educative to extract a particular paragraph of the Judgment of the Bench and which is as follows: “It has never been doubted that this Court as the inheritor of the jurisdiction possessed by the original Supreme Court has power to quash the order of an inferior tribunal, quasi-judicial or administrative if that order was passed either without jurisdiction or in excess of jurisdiction or if there is an apparent error in the order. This power of entertaining a Writ Petition for certiorari existed long before the Constitution and has been enormously increased under Article 226 of the Constitution of India relating to fundamental rights. It is clear that this Court can exercise, at the instance of an aggrieved party, irrespective of any fundamental right being involved in the matter, such a power of issuing a writ of certiorari in suitable cases.” In the case before the Bench the Writ Petition was entertained as the alternative remedies were not speedy, effective, adequate or sufficient. 13. It is clear that this Court can exercise, at the instance of an aggrieved party, irrespective of any fundamental right being involved in the matter, such a power of issuing a writ of certiorari in suitable cases.” In the case before the Bench the Writ Petition was entertained as the alternative remedies were not speedy, effective, adequate or sufficient. 13. So far as the present case is concerned what has happened is that in the course of the proceedings before the Civil Court in the suit of the year 1987 the document came to be filed and the petitioners were directed to pay stamp duty as per the partition deed on the market value obtaining in 1993. It is more than 5 years since then and the matter has not come to an end. If the petitioners are directed to avail the alternative remedy provided under Sec. 56 of the Act, then it will be another eternity before a quietus can be given. In these circumstances, this Court in exercise of the powers under Article 226 of the Constitution can give suitable relief to the writ petitioners. 14. In L. Hirday Narain v. Income Tax Officer, Bareilly ( 1970 (2) SCC 355 = 1971 (1) SCR 683 = 78 ITR 26) the Supreme Court held that it is implicit in the nature of power and its entrustment to the authority invested with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. In the case before the Supreme Court a provision by way of revision against the order under Sec. 35 of the Income Tax Act was available. However, the aggrieved party moved a petition in the High Court of Allahabad and the High Court entertained the petition. Thereafter, the High Court dismissed the Writ Petition as not maintainable on the ground that under Sec. 35 of the Indian Income Tax Act, 1922 the jurisdiction of the Income Tax Officer was discretionary and therefore the Writ Petition was not maintainable. Thereafter, the High Court dismissed the Writ Petition as not maintainable on the ground that under Sec. 35 of the Indian Income Tax Act, 1922 the jurisdiction of the Income Tax Officer was discretionary and therefore the Writ Petition was not maintainable. The Supreme Court held that if the High Court had not entertained his petition the writ petitioner could have moved the Commissioner in revision because, on the date on which the petition was moved the period prescribed by Sec. 33-A of the Income Tax Act had not expired. Even then the High Court was not justified in dismissing the Writ Petition as not maintainable having entertained and heard the Writ Petition on merits. Thus, the right to entertain the Writ Petition cannot be underestimated. Consequently, Rule Nisi is made absolute. The order of the respondent is quashed, in so far as, he has fixed the stamp duty on the market value obtaining in the year] 993. A direction will issue to the respondent to quantify the stamp duty on the basis of the market value to be arrived at for the year 1959, when the document in question was executed. Consequently, W.M.P. Nos. 29581 and 29582 of 1993 and 3706 of 1994 are closed. No costs.