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2017 DIGILAW 917 (CAL)

Visveshwaran Suresh Kumar v. State of West Bengal

2017-11-24

DEBANGSU BASAK

body2017
JUDGMENT : 1. Two writ petitions and a connected application with one of the two writ petitions are taken up for consideration analogously as they involve the same issues. 2. The writ petitioners assail an order passed by the Collector of Stamp Revenue, Kolkata dated August 30, 2017 on the ground that such order does not contain any reasons, was passed in breach of the principles of natural justice and stands vitiated due to non-application of mind. The impugned order dated August 30, 2017 is the result of a direction passed by the learned Arbitrator in an arbitration proceeding. The arbitration proceedings, inter alia, involve disputes relating an immovable property. A person claiming right in such immovable property has applied to be added as party to the writ petition being W.P. No. 23428 (W) of 2017 through CAN No. 9299 of 2017. 3. The application being CAN No. 9299 of 2017 was taken up on an earlier occasion and a view was expressed that, the application would be treated as allowed. The applicant would be treated as added as a respondent in W.P. No. 23428 (W) of 2017 and the parties should address the Court on the merits of the two writ petitions on the next date of hearing. The parties are heard on such basis. 4. In such circumstances, CAN 9299 of 2017 is allowed. The applicant therein is added as a respondent in W.P. No. 23428 (W) of 2017. The Advocate on record for the petitioners in W.P. No. 23428 (W) of 2017 is requested to make the formal amendments in the writ petition. A copy of the writ petition was already served upon the learned Advocate for the added respondent in Court. The applicant in CAN No. 9299 of 2017 is referred to as the added respondent for the sake of convenience. 5. Learned Senior Advocate appearing for the added respondent raises a point of maintainability of the two writ petitions. He submits that, the writ petitioner had abandoned its claim in view of the fact that, it had filed a writ petition being W.P. No. 23308 (W) of 2017 and had withdrawn the same on September 5, 2017 without obtaining leave to file afresh on the selfsame cause of action. The second writ petition being W.P. No. 23428 (W) of 2017 was filed without such leave. The second writ petition being W.P. No. 23428 (W) of 2017 was filed without such leave. Therefore, it is not maintainable in view of Order XXIII Rule 1 of the Code of Civil Procedure, 1908. Consequently, no relief can be granted in W.P. No. 27751 (W) of 2017 which also relates to the same impugned order. In support of the contention that, the second writ petition on the selfsame cause of action, if filed without obtaining leave while withdrawing the first writ petition is hit under the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 learned Senior Advocate for the added respondent relies upon All India Reporter 1987 Supreme Court page 88 (Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors.), All India Reporter 1999 Supreme Court page 509 (M/s. Upadhyay & Co. v. State of U.P. & Ors.), 2009 Volume 1 Calcutta Law Journal page 246 (Union of India & Ors. v. Pravash Dutta & Anr.), 2014 Volume 2 Calcutta Law Journal page 272 (Vivek Saraogi v. Chief Manger, Syndicate Bank & Anr.). 6. On the merits of the matter, learned Senior Advocate appearing for the added respondent submits that, the petitioner is not entitled to a hearing by the adjudicating authority in the facts of the present case. The Collector is required to assess the Stamp Duty payable and the market value of the property. No reasons are required to be given. He refers to Sections 35, 38 and 40 of the Indian Stamp Act, 1899. He submits that, the writ petitioner is guilty of suppression of materials fact. The writ petitioner did not state in the second writ petition that the earlier writ petition was withdrawn without any leave being granted to file the second writ petition on the selfsame cause of action. 7. Learned Senior Advocate appearing for the writ petitioners submits that, the writ petition is maintainable. He draws the attention of the Court to the fact that, W.P. No. 23428 (W) of 2017 which is referred to as the second writ petition was filed on September 4, 2017. The first writ petition being W.P. No. 23308 (W) of 2017 was withdrawn on September 5, 2017. Since the second writ petition was filed prior to the first writ petition being withdrawn, the rigours of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 are not attracted. The first writ petition being W.P. No. 23308 (W) of 2017 was withdrawn on September 5, 2017. Since the second writ petition was filed prior to the first writ petition being withdrawn, the rigours of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 are not attracted. He relies upon 2008 Volume 5 Supreme Court Cases page 58 (Vimlesh Kumari Kulshrestha v. Sambhajirao & Anr.) and 2016 Volume 14 Supreme Court Cases page 18 (Veerendra Kumar Goutam & Ors. v. Karuna Nidhan Upadhyay & Ors.) in support of such contentions. 8. On the merits of the matter, learned Senior Advocate for the petitioners submits that, the Collector had no jurisdiction to adjudicate on the value of an immovable property admittedly lying outside its territorial jurisdiction. Moreover, the Collector has to give due weightage to an endorsement made under Section 42 of the Indian Stamp Act, 1899. The impugned order of the Collector suffers from the vice of non-application of mind. The Collector did not take into consideration the aforesaid two facts. The Collector did not give any reasons as to the findings returned in the impugned order. The petitioners were not afforded any opportunity of hearing before the impugned order was passed. Therefore, there is breach of principles of natural justice in the conduct of the proceedings by the Collector resulting in the impugned order. 9. Learned Additional Advocate General appearing for the State submits that, the Collector had proceeded to find the actual stamp duty payable in respect of an immovable property, the basis for which calculation is known to the petitioner. Therefore, the impugned order need not give reasons as to why the amount of stamp duty as quantified in the impugned order is retuned. He submits that, the valuation was taken after consultation with the appropriate Collector within whose jurisdiction the immovable property lies. Moreover, he refers to the averments made in the writ petition and submits that, the writ petitioner is aware of the basis of such calculation. 10. The issue of maintainability of the writ petition is required to be decided first. 11. There are two writ petitions pending, namely, W.P No. 23428 (W) of 2017 and W.P. No. 27751 (W) of 2017. Both the writ petitions more or less are on the same issue. 10. The issue of maintainability of the writ petition is required to be decided first. 11. There are two writ petitions pending, namely, W.P No. 23428 (W) of 2017 and W.P. No. 27751 (W) of 2017. Both the writ petitions more or less are on the same issue. Apart from these two writ petitions, the petitioners had filed another writ petition being W.P. No. 23308 (W) of 2017. W.P. No. 23428 (W) of 2017 was filed on September 4, 2017. W.P. No. 23308 (W) of 2017 which was withdrawn on September 5, 2017. The Order dated September 5, 2017 passed in such writ petition is as follows:- “Learned advocate appearing for the petitioner seeks leave to withdraw the writ petition. W.P. No. 23308(W) of 2017 is dismissed as withdrawn. There shall, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.” 12. W.P. No. 23428 (W) of 2017 was withdrawn without obtaining leave to file afresh. Would such unconditional withdrawal invite rigors of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 in respect of the next two writ petitions is a question raised in the proceedings? Order XXIII Rule 1 particularly Sub-rules (3) and (4) thereof are as follows:- “R.1. Withdrawal of suit or abandonment of part of claim.- (1)………………………….. (2)………………………….. (3) Where the court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff,— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.” 13. Order XXIII Rule 1 allows a plaintiff to withdraw a suit or abandon a part of the claim in the suit. The abandonment or withdrawal may be for diverse reasons. However, should the plaintiff seek to retain the right to institute a fresh suit on the selfsame cause of action, he is required to obtain requisite leave to do so from the Court at the time of withdrawing or abandoning his claim. If he does not have such leave then, Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 precludes the plaintiff from instituting any fresh suit in respect of the subject-matter of the claim of the earlier suit. The applicability of Order XXIII Rule 1 in a fact scenario where there being two proceedings pending at a given point of time and one of the proceedings is withdrawn without retaining the right to file afresh was considered in Vimlesh Kumari Kulshrestha (supra). After noticing the fact that, the second suit was filed before the filing of the application of withdrawn of the first suit, the Hon’ble Supreme Court in Vimlesh Kumari Kulshrestha (supra) is of the view that, the provisions of Order XXIII Rule 1 of the Code of Civil Procedure, 1908 is not applicable in such a fact scenario. It holds as follows:- “9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the appellant in regard to payment of proper court fee. We, therefore, are of opinion that Order XXIII Rule 1 of the Code was not applicable to the facts and circumstances of the present case.” 14. In Veerendra Kumar Goutam & Ors. (supra) the Supreme Court expresses a similar view in the context of one of the writ petitioners withdrawing its claim. 15. In Sarguja Transport Service (supra) and M/s. Upadhyay & Co. (supra) the factual scenario were different. In Sarguja Transport Service (supra) the petitioner filed a fresh petition after withdrawing the earlier petition without obtaining the permission to institute a fresh petition. It is held that, a writ petitioner after withdrawing a writ petition filed without the permission to institute a fresh petition cannot file a fresh petition in respect of the same cause of action in the High Court under Article 226 of the Constitution of India. M/s. Upadhyay & Co. It is held that, a writ petitioner after withdrawing a writ petition filed without the permission to institute a fresh petition cannot file a fresh petition in respect of the same cause of action in the High Court under Article 226 of the Constitution of India. M/s. Upadhyay & Co. (supra) is of the view that, the ban of filing fresh petition is based on public policy and that, the provisions of Order XXIII Rule 1(3) applies to a proceeding under Article 226 of the Constitution of India. 16. Pravash Dutta & Anr. (supra) finds a writ petition barred under Order XXIII Rule 1 of the Code of Civil Procedure as the petitioners did not obtain leave to file a fresh writ petition on the selfsame subject-matter at the time of withdrawal of the first writ petition. 17. Vivek Saraogi (supra) is of the similar view. It is held therein that, dismissal of the earlier writ petition on identical relief without leave to file a fresh writ petition makes the second writ petition not maintainable. 18. Order XXIII Rule 1(3) precludes the institution of any fresh in respect of the subject-matter or claim which is the part of the earlier proceedings and when such earlier proceedings was withdrawn without leave to file afresh on the selfsame cause of action. Order XXIII Rule 1 contemplates a fresh institution of proceedings on the same cause of action as in respect of the earlier proceedings for it to be attracted and applied. In the event, the proceedings are already pending and no fresh proceeding is instituted then Order XXIII Rule 1 is not attracted and consequently would not apply. 19. In the facts of the present case, W.P. No. 23428 (W) of 2017 was already on record as it was filed on September 4, 2017 when W.P. No. 23308 (W) of 2017 was withdrawn on September 5, 2017 without leave to file afresh. On the strength of Vimlesh Kumari Kulshrestha (supra), W.P. No. 23428 (W) of 2017 cannot said to be not maintainable. 20. The order impugned in the writ petitions is of the Collector dated August 30, 2017. It assesses a stamp duty under Article 23 Schedule 1A of the Indian Stamp, 1899 to be at Rs.11,26,39,488/-. On a reverse calculation as to the market value of the immovable property concerned one can find out the market value of such property. 20. The order impugned in the writ petitions is of the Collector dated August 30, 2017. It assesses a stamp duty under Article 23 Schedule 1A of the Indian Stamp, 1899 to be at Rs.11,26,39,488/-. On a reverse calculation as to the market value of the immovable property concerned one can find out the market value of such property. However, the basis on which such a market value has been arrived at is not discussed in the impugned order. It does not take into account the contentions of the petitioner as to the effect of an endorsement under Section 42 of the Indian Stamp Act, 1899. There are materials on record to suggest that, the market value of the property concerned would be different amounts other than the one returned by the Collector in the impugned order. In fact, there are variances between the petitioner and the added respondents with regard to the market value of the same property involved. The third variance is that as in the order impugned. 21. An order affecting the rights of parties is required to be informed with reasons. In the present case, the impugned order is bereft of any reasons. In such circumstances, the impugned Order dated August 30, 2017 is set aside. The matter is remanded to the Collector for a decision fresh. The Collector will act in terms of the order passed by the learned Arbitrator. It is clarified that, this Court did not enter into the rival contentions of the parties raised in the arbitration proceedings. No observation made herein will prejudice any of the parties to the arbitration proceedings. This Court has not expressed any opinion as to the validity, sufficiency or legality with any order of the arbitral Tribunal in any manner whatsoever. 22. W.P. No. 23428 (W) of 2017 and W.P. No. 27751 (W) of 2017 are disposed of accordingly. CAN No. 9299 of 2017 stands allowed as noted above. No order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.