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Madhya Pradesh High Court · body

2016 DIGILAW 796 (MP)

Dushyant Dixit v. State of M. P.

2016-09-08

ROHIT ARYA

body2016
ORDER 1. Petitioner while serving as Sub-Registrar in District Shivpuri in the year 2005 was incharge of registration of various nature of documents including mining leases and calculation of stamp duty under the provisions of Indian Stamp Act and Registration Act. Thirteen mining leases were registered under his orders. Upon scrutiny of instruments by the audit party during the course of audit, it was pointed out that substantially less stamp duty as well as registration fee has been charged on each instruments causing revenue loss to the extent of Rs.6,66,235/-. As a result, petitioner is served with the charge sheet under rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'the Rules of 1966'). The aforesaid conduct of the petitioner is found to be misconduct within the meaning of rules 3(1) (i) (ii) (iii) of the M.P. Civil Services (Conduct) Rules, 1965. The charge sheet is under challenge before this Court on the grounds that : (i) There is no malice attributed to the petitioner and, therefore, even if less stamp duty and registration fee has been charged, the same shall not tantamount to misconduct making petitioner liable for departmental enquiry under the present charge sheet in view of the judgment of the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India and others [ AIR 1999 SC 2881 ]. (ii) Even otherwise on merits also charge is framed on misconception of law as where rent is fixed in a mining lease, the stamp duty payable is only as per Article 35 (a) of the Indian Stamp Act, 1899 (hereinafter referred to as 'the Act of 1899') and, therefore, only annual rent could be the basis for stamp duty and registration fee. The allegation that the stamp duty and registration fee should have been charged on the entire value of the premium/rent is incorrect. (iii) Though similar charges were framed against one Mr. R.S. Shakya, but he has been let off with the penalty of withholding of one increment, whereas petitioner is subjected to charge sheet issued under Rule 14 of the Rules of 1966. (iii) Though similar charges were framed against one Mr. R.S. Shakya, but he has been let off with the penalty of withholding of one increment, whereas petitioner is subjected to charge sheet issued under Rule 14 of the Rules of 1966. In any case, persons aggrieved due to demand of additional stamp duty and registration fee on the instruments in question have already filed writ petitions before this Court and the writ petitions are pending consideration, though the amount has been recovered from most of those respective lessees. 2. Per contra, Shri Newaskar, learned Government Advocate, has taken a preliminary objection to the effect that undisputedly the charge sheet has been issued by a competent authority. Charges are specific in nature supported by imputation of charges and documents. Under these circumstances, as law is well settled, no writ petition lies seeking quashment of charge or show-cause notice for the reason that there is no infringement of right of the petitioner and the cause of action for imputing upon the allegations and action based thereupon arises only when penalty is imposed upon the delinquent or the proceedings otherwise affected future prospects of the petitioner by an order. Therefore, at this stage, petitioner cannot be said to be an aggrieved person. Learned counsel relies upon the judgment of the Hon'ble Supreme Court in the case of Union of India and another v. Kunisetty Satyanarayana [ (2006)12 SCC 28 ], to bolster his submission and further contended that this Court may invoke jurisdiction under Article 226 of the Constitution of India if the charge sheet issued is without jurisdiction or is ex facie illegal or does not constitute a charge, but such situation arises only in exceptional cases and not in routine manner. Learned counsel further submits that in the instant case thirteen mining leases have been registered with less stamp duty and registration fee. There is a loss of Rs.6,66,235/- to the State exchequer, as evident from the charge sheet. It is a case of dereliction of duty and negligence. Therefore, the charges, so framed, are required to be inquired into. In the enquiry, petitioner, who has already filed reply, shall be afforded full opportunity to examine the witnesses, file documents and cross-examine the witnesses. As such, issuance of charge sheet under these circumstances by a competent authority cannot be put to challenge under Article 226 of the Constitution of India. In the enquiry, petitioner, who has already filed reply, shall be afforded full opportunity to examine the witnesses, file documents and cross-examine the witnesses. As such, issuance of charge sheet under these circumstances by a competent authority cannot be put to challenge under Article 226 of the Constitution of India. Learned counsel also contends that in the matter of mining lease, the entire value of consideration is to be taken into consideration for the purpose of determining the stamp duty and registration fee and the stamp duty and registration fee cannot be restricted to annual premium of the mining lease. Such action is not supported by any provision of law. Learned counsel refers to the judgment of the Division Bench in the case of Steel Authority of India Ltd. Bhilai v. Collector of Stamps, Bilaspur and others [ 1986 JLJ 70 = 1986 MPLJ 200 ], to contend that in the case of mining lease the provision of section 26 and Article 35 (a) of the Act of 1899 are conjointly applicable for the purpose of determination of stamp duty and registration fee, i.e. the entire value of the instrument, be it a rent, premium or royalty, has to be taken into consideration for the aforesaid purpose. Learned counsel further contends that at this stage the argument related to quantum of punishment cannot be addressed, as enquiry is yet to be completed and thereafter the disciplinary authority shall determine the question of punishment taking into consideration number of factors. Therefore, at this stage, this Court may not preempt the authority or disciplinary authority for deciding the nature of penalty to be imposed on the petitioner, if any. 3. Heard counsel for the parties. 4. Law is well settled as regards the contours of jurisdiction of this Court under Article 226 of the Constitution of India in the matter of interference with the charge sheet or show-cause notice at the initial stage. The aforesaid proposition has been dealt with and settled in the cases of State of Uttar Pradesh v. Shri Brahm Datt Sharma and another [ AIR 1987 SC 943 ], Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others [ (1996)1 SCC 327 ], Ulagappa and others v. Divisional Commissioner, Mysore and others [ (2001)10 SCC 639 ] and Special Director and another v. Mohd. Ghulam Ghouse and another [ AIR 2004 SC 1467 ], recently followed in Union of India and another v. Kunisetty Satyanarayana [ (2006)12 SCC 28 ]. 5. There is no challenge to the jurisdiction and competence of the disciplinary authority under whose orders the charge sheet has been issued. As such, the charge sheet has been issued by the competent authority. A bare perusal of the charge sheet and imputation of charges, reflects substantive, vivid and unambiguous allegations made against the petitioner, therefore, ex facie it cannot be argued that the charges are vague, evasive or do not tantamount to any substantive allegation warranting enquiry under the Rules of 1966. This Court at this stage cannot address on the contention that there was no malice on the part of petitioner while he charged less stamp duty and registration fee. This Court cannot lose sight of the fact that thirteen instruments (mining leases) have been registered with less stamp duty and registration fee. Prima facie there is an allegation of loss of Rs.6,66,235/- to the State exchequer. Therefore, under these circumstances, the question of malice cannot be addressed on the mere assertion of the counsel for petitioner. That is essentially a question of fact and can be addressed by the disciplinary authority after evidence is led by the parties. Therefore, this contention is rejected. 6. The contention that the charges levied against the petitioner is contrary to law and, therefore, factually incorrect, as according to learned counsel as per Article 35(a) appended to the Act of 1899, only annual value of the rent was required to be taken into consideration for ascertainment of stamp duty and registration fee and not the entire value of the instrument, cannot be addressed at this stage and petitioner is set at liberty to raise the aforesaid contention before the authority, as the competent authority shall take a final decision bearing in mind the various provisions of the Act of 1899, Registration Act and the judgments of the Courts including the one cited by the counsel for respondents/State viz. Steel Authority of India (supra). 7. The last contention advanced relates to discrimination in the matter of punishment, as according to the petitioner, on similar charges one Mr. R.S. Shakya has been let off with the penalty of withholding of one increment, whereas petitioner is subjected to rule 14 of the Rules of 1966. Steel Authority of India (supra). 7. The last contention advanced relates to discrimination in the matter of punishment, as according to the petitioner, on similar charges one Mr. R.S. Shakya has been let off with the penalty of withholding of one increment, whereas petitioner is subjected to rule 14 of the Rules of 1966. In the opinion of this Court, the aforesaid argument is premature as authorities have yet to apply their mind upon completion of enquiry. The petitioner is set at liberty to raise such contention before the authority and this Court hopes and trusts that the same shall be addressed and dealt with in accordance with law. 8. With the aforesaid observations, the writ petition is dismissed. Vivek Jain for petitioner; Praveen Newaskar, Government Advocate for respondent/State.