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Rajasthan High Court · body

2008 DIGILAW 2038 (RAJ)

Pushpa Jain v. The Sub

2008-09-01

MOHAMMAD RAFIQ, NARAYAN ROY

body2008
JUDGMENT 1. 1. This appeal has been filed against the judgment of the learned Single Judge dated 31.10.2006 whereby the writ petition of the appellant was dismissed.The appellant, in the writ petition, had challenged the order dated 11.08.2000 passed by the Sub Registrar impounding the document in question and making reference to the Additional Collector (Stamp), Jaipur under Section 47A of the Indian Stamp Act, 1899. 2. Shri Vimal Choudhary, learned counsel for the appellant has argued that the document dated. 26.06.2000 was simply a partition deed executed between all three daughters-in-law of late Pawan Kumar Jain in respect of plot No. 87, Gopal Bari, Jaipur. The Sub Registrar, instead of registering the partition deed, treated the document as conveyance deed and referred the same to the Additional Collector (Stamp) under Section 47A of the Indian Stamp Act. The appellant, in reply to the notice issued by the Additional Collector (Stamp), asserted that this was simply a deed of partition and it could be treated as sale. The Additional Collector (Stamp), however, by his order dated 29.11.2005 allowed the reference and accordingly the demand notice dated 29.11.2005 was issued thereby raising demand of Rs. 1,91,075/- as stamp duty, requiring the appellant to deposit the same within one month failing which he shall be liable to pay interest @ 18% per annum. It was argued that the Sub Registrar did not serve any notice prior to making of reference to the Additional Collector (Stamp) as required by Section 47D of the Act. The very order impounding the partition deed and making reference was illegal and without jurisdiction as the service of notice prior to making of such reference was a mandatory requirement of law. Learned counsel argued that the learned Single Judge also failed to consider this aspect of the matter and dismissed the writ petition merely on the ground that the petitioner has got efficacious remedy by way of revision petition before the Chief Controlling Revenue Authority under Section 65 of the Rajasthan Stamp Act. It was argued that when it is shown that the principles of natural justice have not been complied with, the validity of such order could be examined in the scope of writ jurisdiction even in the face of availability of alternative remedy. 3. It was argued that when it is shown that the principles of natural justice have not been complied with, the validity of such order could be examined in the scope of writ jurisdiction even in the face of availability of alternative remedy. 3. When the matter was last heard, the learned Additional Government Counsel referring to the affidavit filed by the Officer-in-charge before the learned Single Judge contended that notice under Section 47D was issued to the appellant prior to making of reference as it was in fact replied by the appellant which has been taken note of by the Additional Collector (Stamp) in his order dated 29.11.2005. The learned counsel for the appellant disputed this and argued that this reply was submitted to the notice given to the appellant by the Additional Collector (Stamp) himself and it was not the notice issued by the Sub Registrar prior to making of reference. Learned Additional Government Counsel, therefore, was directed to produce the original record for perusal of the Court. Record has been produced before us today, and it is now submitted by the Additional Government Counsel, which is also borne out from the record, that no such notice was issued/served by the Sub Registrar on the appellant prior to making of reference whereas Section 47D of the Indian Stamp Act, which required the Sub Registrar prior to making of reference to serve notice upon the party concerned. 4. We are, therefore, satisfied that requirement of Section 47D of the Act was not adhered to while making reference to the Additional Collector (Stamp).In view of the above, the order passed by the Sub Registrar dated 11.08.2000 and subsequent order passed by the Additional Collector (Stamp) dated 29.11.2005 based on the first order, cannot be sustained. 5. In the result, this appeal is allowed. The impugned order dated 11.08.2000 and 29.11.2005 passed by the Sub Registrar and Additional Collector (Stamp) are set aside. Consequently, the judgment of the learned Single Judge is also set aside. The writ petition is allowed in the terms aforesaid. It would be now open to the Sub-Registrar to pass fresh order in accordance with law.Appeal allowed. *******