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2003 DIGILAW 864 (RAJ)

J. K. Udaipur Udyog Ltd. v. State of Raj.

2003-05-30

SUNIL KUMAR GARG

body2003
Honble GARG, J.–This writ petition under Article 226 of the Constitution of India has been filed by the petitioners on 1.5.2003 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order dated 20.3.2003 (Annex. 5) passed by the respondent no. 2 Collector (Stamps), Udaipur by which the application dated 21.9.2002 filed by the petitioners for staying the proceedings before the respondent no. 2 Collector (Stamps), Udaipur was rejected and another order dated 9.4.2003 (Annex. 7) passed by the respondent no. 2 Collector (Stamps), Udaipur by which second application of the petitioner for staying the proceedings was rejected, be quashed and set aside and the respondent no. 2 Collector (Stamps) Udaipur be restrained from taking any proceedings against the petitioners in State of Rajasthan vs. J.K. Udaipur Udyog Ltd. (1). (2). The case of the petitioners as put forward by them in this writ petition is as follows:- The petitioner no. 1 J.K. Udaipur Udyog Ltd. (for short ``the petitioner-Company) is a public limited company incorporated under the Companies Act, 1956 having its registered office and works at Shripatinagar C.F.A., District Udaipur and is engaged in the business of manufacturing and selling portland cement and clinker. The petitioner no. 2 is one of its director and shareholder. The Bajaj Hindustan Ltd. transferred its factory and other movable properties situated in district Udaipur in the year 1993 in favour of the petitioner-Company and pursuant to the said transaction, some documents, as mentioned in para no. 2 of the writ petition, were presented before the Sub-Registrar Mavli on 1.12.93 for registration, but the Registering Authorities declined to register the instruments on the ground that the High Power Committee did not permit to do so. Thereafter, the petitioners filed a writ petition being D.B. Civil Writ Petition No. 3359/94 before the Division Bench of this Court and the Division Bench of this Court through judgment dated 4.4.1997 Bajaj Hindustan Limited and Ors. vs. State of Rajasthan and Ors. (2), came to the conclusion that in the face of dispute between the parties, it will be proper to remand the matter to the Registering Authority for making correct valuation of property sought to be registered, with certain observations and directions. vs. State of Rajasthan and Ors. (2), came to the conclusion that in the face of dispute between the parties, it will be proper to remand the matter to the Registering Authority for making correct valuation of property sought to be registered, with certain observations and directions. The Division Bench directed with regard to the endorsement made on existing lease that there was no possibility of any ad-valorem stamp duty on mere assignment of lease deed. It was further directed that proper valuation should be made of what was really sought to be conveyed through the deeds and no fishing exploration was to be made as to what other articles were sought to be made as to what other articles were sought to be conveyed without there being any specific mention thereof in the documents. The Division Bench accordingly directed the registering authorities to apply their mind with regard to documents presented for registration and take decision afresh. (3). Feeling aggrieved by the aforesaid judgment of the Division Bench of this Court dated 4.4.1997, the State of Rajasthan and others went to Honble Supreme Court by filing civil appeal no. 4575/1997 and after hearing the parties, the Honble Supreme Court after setting aside the above Division Bench Judgment of this Court dated 4.4.1997 passed the following order on 28.11.2000 through judgment Annex. 1:- ``Learned counsel for the parties are agreed that the matter may be sent back to the Collector (Stamps) where they will have an opportunity to raise all the questions which are available to them under law. We accordingly, set aside the judgment under appeal and send the matter back to the Collector (Stamps) under section 47A of the Act where it will be open to the parties to raise objections regarding the valuation of the properties which may be available to them under law. The Collector (Stamps) shall, while deciding the matter, not be influenced by any observation made by the High Court in the impugned judgment. So far as the documents which have already been registered, they will remain intact and in case it is found that the respondents under law are required to pay additional stamp duty on those documents, the same would be recovered from the respondents. Since the matter is pretty old the Collector is directed to decide the matter, if possible, within six months. (4). Thereafter, the Collector (Stamps) Udaipur (respondent no. Since the matter is pretty old the Collector is directed to decide the matter, if possible, within six months. (4). Thereafter, the Collector (Stamps) Udaipur (respondent no. 2) registered the case no. 35/2001 under section 47A of the Indian Stamps Act, 1899 (hereinafter referred to as ``the Stamp Act) as adapted in Rajasthan by Rajasthan Stamps Law Adaptation Act, 1952 after the said remand by prima facie accepting the valuation of 160.43 crores approx. determined by the Sub Registrar vide order dated 15.4.96 in terms of the Rule 598 of Rajasthan Stamps Rules, 1955 (hereinafter referred to as ``the Rules of 1955) and called upon the parties to show cause as to why the said valuation should not be accepted and stamp duty and registration fee be not accordingly determined and demanded. (5). The petitioners submitted reply before the respondent no. 2 Collector (Stamps) Udaipur. (6). When the case of the petitioners was pending before the respondent no. 2 Collector (Stamps), Udaipur, in the meantime, the State Government through Notification dated 4th Sept. 2002 issued under section 3 of the Rajasthan Relief Undertaking (Special Provisions) Act, 1961 (hereinafter referred to as ``the Act of 1961), which was published in the Rajasthan gazette on 7th Sept. 2003, declared the petitioner-Company as relief undertaking company for a period of one year and a copy of the said Notification is marked as Annex. 2. (7).The further case of petitioners is that by virtue of clause (b) of sub-section (1) of Section 4 of the Act of 1961, no suit or other legal proceedings shall be instituted or commenced or if, pending, shall be proceeded with against any industrial undertaking during the period in which it remains a relief undertaking and since the petitioner-Company was declared a relief undertaking company, therefore, the respondent no. 2 Collector (Stamps), Udaipur was not competent to proceed further against the petitioner-Company. (8). The further case of the petitioners is that the petitioner- Company was also declared sick company under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ``the Act of 1985) and therefore, further proceedings cannot be entertained by the respondent no. 2 Collector (Stamps), Udaipur by virtue of Section 22 of the Act of 1985. (9). Thus, on the basis of the aforesaid Notification Annex. 2 Collector (Stamps), Udaipur by virtue of Section 22 of the Act of 1985. (9). Thus, on the basis of the aforesaid Notification Annex. 2 issued under section 3 of the Act of 1961, the petitioners moved an application before the respondent no. 2 Collector (Stamps), Udaipur on 21.9.2002 for stay of the proceedings and a copy of which is marked as Annex. 4. (10). The said application of the petitioners dated 21.9.2002 for stay of proceedings was rejected by the respondent no. 2 Collector (Stamps), Udaipur through order Annex. 5 dated 20.3.2003 inter-alia holding:- (i) That since the case has been remanded by the Honble Supreme Court with direction to decide the same within six months, therefore, he was bound to decide that case. (ii) That as per the opinion received from the higher authorities, the Notification Annex. 2 was not applicable on the proceedings under the Stamp Act. (11). The further case of the petitioners is that they move another application (Annex. 6) for stay of proceedings on 30.10.2002 before the respondent no. 2 Collector (Stamps), Udaipur, but the same was also rejected by the respondent no. 2 Collector, (Stamps) Udaipur through another impugned order Annex. 7 dated 9.4.2003. (12). In this petition both the impugned orders Annex. 5 dated 20.3.2003 and Annex. 7 dated 9.4.2003 passed by the respondent no. 2 Collector (Stamps), Udaipur have been challenged by the petitioners on various grounds and the main grounds are as follows:- (i) That since Section 4(1)(b) of the Act of 1961 bars institution and/or commencement and/or continuance of pending legal proceedings against an industrial undertaking during the period in which it remains a relief undertaking and the petitioner-company was declared a relief undertaking company through Notification Annex. 2, therefore, continuation of proceedings before the respondent no. 2 Collector (Stamps), Udaipur is per-se illegal and these proceedings should have been stayed by the respondent no. 2, by virtue of Section 4(1)(b) of the Act of 1961. (ii) That similarly, the two grounds, which have been assigned by the respondent no. 2 Collector, (Stamps), Udaipur while rejecting the application of the petitioner for stay of proceedings, are not sustainable in the eye of law. 2, by virtue of Section 4(1)(b) of the Act of 1961. (ii) That similarly, the two grounds, which have been assigned by the respondent no. 2 Collector, (Stamps), Udaipur while rejecting the application of the petitioner for stay of proceedings, are not sustainable in the eye of law. (iii) That apart from this, since the petitioner company was declared sick company under the provisions of the Act of 1985, therefore, by virtue of Section 22 of the Act of 1985, the proceedings should have been stayed by the respondent no. 2 Collector (Stamps), Udaipur. A reply to the writ petition was filed by the respondents and their case is that applications of the petitioners for stay of the proceedings were rightly rejected by the respondent no. 2 Collector (Stamps), Udaipur as the case was remanded to the respondent no. 2 Collector (Stamps), Udaipur by the Honble Supreme Court through judgment Annex. 1 dated 28.11.2000 with a direction to decide the same within six months and thus, the respondent no. 2 was bound to decide the case within that stipulated period. Hence, the writ petition filed by the petitioners be dismissed. (13). I have heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents and gone through the materials available on record. (14). There is no dispute on the point that through judgment Annex. 1 dated 28.11.2000, the Honble Supreme Court remanded the case to the respondent no. 2 Collector (Stamps), Udaipur with a direction to decide the same in accordance with law within a period of six months and the Honble Supreme Court further observed that all objections which the petitioners wanted to take, they may take before the respondent no. 2. (15). There is also no dispute on the point that in the same judgment Annex. 1, the Honble Supreme Court further observed that an aggrieved party is free to challenge the order of the Collector (respondent no. 2) by revision before the Board of Revenue and further reference to the High Court is also provided. 2. (15). There is also no dispute on the point that in the same judgment Annex. 1, the Honble Supreme Court further observed that an aggrieved party is free to challenge the order of the Collector (respondent no. 2) by revision before the Board of Revenue and further reference to the High Court is also provided. Thus, the Honble Supreme Court came to the conclusion that there is a complete code for adjudication of dispute regarding the duty payable by the petitioners and in such circumstances, the writ petition ought not to have been entertained and decided on merits and that is why, the Division Bench judgment of this Court dated 4.4.1997 was set aside by the Honble Supreme Court. (16). There is also no dispute on the point that after passing of the judgment Annex. 1 dated 28.11.2000 by the Honble Supreme Court, through Notification dated 4th Sept. 2002 (Annex. 2) issued under section 3 of the Act of 1961, the petitioner-company was declared a relief undertaking company for a period of one year from the date of issuance of that Notification Annex. 2. (17). There is also no dispute on the point that as per Section 4(1)(b) of the Act of 1961, no suit or other legal proceedings shall be instituted or commenced and if pending, the same shall not be proceeded with against any industrial undertaking during the period in which it remains a relief undertaking. (18). There is also no dispute on the point that the petitioner- company was declared sick company under the provisions of the Act of 1985. (19). The question for consideration in the above facts and circumstances of the case is whether applications of the petitioners for staying the proceedings were rightly rejected by the respondent no. 2 Collector (Stamps), Udaipur through impugned orders Annex. 5 dated 20.3.2003 and Annex. 7 dated 9.4.2003 or not. (20). In my considered opinion, since the matter before the respondent no. 2 Collector (Stamps), Udaipur was seized by the observations of the Honble Supreme Court or remand after setting aside the Division Bench Judgment of this Court dated 4.4.1997 in the case of Bajaj Hindustan Ltd. (supra) through judgment Annex. 1 dated 28.11.2000, therefore, the respondent no. (20). In my considered opinion, since the matter before the respondent no. 2 Collector (Stamps), Udaipur was seized by the observations of the Honble Supreme Court or remand after setting aside the Division Bench Judgment of this Court dated 4.4.1997 in the case of Bajaj Hindustan Ltd. (supra) through judgment Annex. 1 dated 28.11.2000, therefore, the respondent no. 2 Collector (Stamps) Udaipur was bound to decide the matter, as the matter was remanded by the Apex Court of the country with a direction to decide it within six months, if possible and if any subsequent developments had taken place, which come in the way of the proceedings pending before the respondent no. 2 for example in the present case, the petitioner-company was declared as relief undertaking company through Notification Annex. 2 dated 4.9.2002 and was also declared sick company under the provisions of the Act of 1985, the respondent no. 2 Collector, (Stamps), Udaipur could not stay the proceedings on the ground of such subsequent developments having been taken place and for that, the petitioners will have to first approach the Honble Supreme Court and clarify the position there, but so far as the respondent no. 2 Collector (Stamps), Udaipur is concerned, he was bound to obey and comply with the directions given by the Honble Supreme Court through judgment Annex. 1 dated 28.11.2000. (21). Thus, in these circumstances, if the applications of the petitioners for staying the proceedings were rejected by the respondent no. 2 Collector (Stamps), Udaipur through impugned orders Annex. 5 dated 20.3.2003 and Annex. 7 dated 9.4.2003, no illegality or irregularity has been committed by him in doing so. (22). Apart from this, this Court cannot sit as a court of appeal over the directions issued by the Honble Supreme Court and therefore, under Article 226 of the Constitution of India, this Court cannot issue such directions which make the order of the Honble Supreme Court nugatory. From this point of view also, it is not a fit case where the directions as sought for by the petitioners in this petition can be issued under Article 226 of the Constitution of India. (23). Not only this, the Honble Supreme Court in the judgment Annex. 1 dated 28.11.2000 has already observed that the Stamp Act is a compete code and the matter was remanded to the respondent no. (23). Not only this, the Honble Supreme Court in the judgment Annex. 1 dated 28.11.2000 has already observed that the Stamp Act is a compete code and the matter was remanded to the respondent no. 2 Collector (Stamps), Udaipur under section 47A of the Stamp Act and when there are provisions for revision before the Board of Revenue and reference to the High Court, therefore, from this point of view also, the present writ petition is not maintainable. (24). No doubt the impugned orders Annex. 5 and Annex. 7 are not appealable orders as they are not final orders, but Section 56 of the Stamp Act gives power to the Chief Controlling Revenue Authority, namely, Board of Revenue in Rajasthan to interfere with the orders of the Collector passed under Chapter IV and Chapter V and clause (a) of the first proviso to Section 26 and in view of this fact also, the petitioner should have first approached the Board of Revenue and thereafter, they should have come to this Court. From this point of view also, the petitioners are not entitled to relief sought for. (25). The learned counsel for the petitioners has placed reliance on the decisions in Modern Syntax (I) Ltd. vs. Debts Recovery Tribunal, Jaipur and Ors. (3), Rishab Agro Industries Ltd. vs. P.N.B. Capital Services Ltd. (4), M/s Jaysynth Dyechem and etc. etc. vs. Mewar Textile Mills Ltd. (5), and Real Value Appliances Ltd. vs. Canara Bank and Ors. (6), but they would not be helpful to the petitioners as in the present case, the respondent no. 2 Collector (Stamps), Udaipur was proceeding as per the directions of the Honble Supreme Court contained in judgment Annex. 1. Had there been no directions of the Honble Supreme Court, the argument of the petitioners would have been appreciated. (26). For the reasons stated above, there is no merit in this writ petition and the same is liable to be dismissed. (27). However, it may be stated here that if the petitioners want to take the benefit on the basis of Notification Annex. 2 dated 4.9.2002 issued under section 3 of the Act of 1961 and also benefit under the provisions of the Act of 1985, they must first approach the Honble Supreme Court and obtain directions from the Honble Supreme Court and in absence of that, proceedings against them pending before the respondent no. 2 dated 4.9.2002 issued under section 3 of the Act of 1961 and also benefit under the provisions of the Act of 1985, they must first approach the Honble Supreme Court and obtain directions from the Honble Supreme Court and in absence of that, proceedings against them pending before the respondent no. 2 Collector (Stamps), Udaipur cannot be stayed. Accordingly, this writ petition filed by the petitioners is dismissed. No order as to costs.