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2018 DIGILAW 705 (ALL)

PARSVNATH DEVELOPERS LTD. v. STATE OF U. P.

2018-03-23

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—The petitioner in the writ petition is seeking quashing of the orders dated 19.1.2004 and 17.6.2004 arising out of proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899). 2. Briefly stated the case of the petitioner is that the land in question being Khasra No. 144 (M) situated in the Mission Compound, Village Pathanpura, Saharanpur was sold through a sale-deed dated 10.1.1967 by the Board of Foreign Mission of Presbyterian Church, U.S.A. through their Attorney transferring and conveying all the piece and parcel of land and the premises and buildings and constructions situated thereon on land measuring 13228 sq. yds. situated in Saharanpur Municipal limits to M/s. Mahalakshmi Sugar Mills Co. Ltd., New Delhi. On 2.9.1998 M/s. Mahalakshmi Sugar Mills Co. Ltd., New Delhi agreed to sell, transfer and convey all their rights, title and interest in the land measuring 6000 sq. yds. for a total consideration of Rs. 4,50,00,000/- (Rupees Four Crores Fifty lacs only) in favour of M/s. Parsvnath Developers Limited (petitioner herein). Thereafter a letter of possession was granted to the petitioner on 1.4.1999. Two sale-deeds were executed by M/s. Mahalakshmi Sugar Mills Co. Ltd. in favour of the petitioner. One sale-deed was dated 28.2.2002 in respect of rear portion of the said property situated in Mission Compound abutting on Mission Road, Saharanpur, U.P. and the other sale-deed was dated 30.3.2002 in respect of front portion of the said property facing Court Road, Saharanpur, U.P. with depth upto 30 ft. approximately from the Court Road. On an assumption that there was deficiency of stamp duty both sale-deeds were referred by the Sub Registrar to the Collector (Stamp)/Additional District Magistrate (Finance and Revenue), for adjudication and thereafter proceedings under Section 47-A of the Act, 1899 were initiated against the petitioner. Thereafter the Collector (Stamp) by his order dated 19.3.2002 determined the deficiency of stamp duty and directed the sale-deed to be registered on making good the deficiency of stamp duty and payment of penalty. The sale-deed was thereafter duly registered on 21.3.2002. Similarly, the Collector (Stamp) by order dated 17.4.2002 assessed the deficiency of stamp duty and penalty in respect of the other sale-deed and thereafter the sale-deed was duly registered on 29.4.2002. 3. The sale-deed was thereafter duly registered on 21.3.2002. Similarly, the Collector (Stamp) by order dated 17.4.2002 assessed the deficiency of stamp duty and penalty in respect of the other sale-deed and thereafter the sale-deed was duly registered on 29.4.2002. 3. Aggrieved by the two orders the State Government preferred an appeal before the Chief Controlling Revenue Authority on 8.1.2004 invoking the provisions of Section 5 of the Indian Limitation Act, 1963 (hereinafter referred to as the Act, 1963) as there was a delay of more than 500 days in filing the appeal before the Chief Controlling Revenue Authority. Similar appeal was filed in respect of the other sale-deed against the order of the Collector (Stamp) dated 17.4.2002. The Chief Controlling Revenue Authority by his order dated 19.1.2004 condoned the delay. The petitioner filed its objection raising the plea that the delay in filing of the appeal had been condoned ex parte without giving any opportunity of hearing to the petitioner. The case of the petitioner was that provisions of Section 5 of the Act, 1963 had no application to proceedings under the Indian Stamp Act, 1899 and therefore the delay could not have been condoned. 4. The Chief Controlling Revenue Authority heard both the appeals together and held that there was merit in the submission of the respondent (petitioner herein) that Section 5 of the Act, 1963 had no application to proceeding under the Act, 1899 but there was glaring and unprecedented example of gross evasion of stamp duty and therefore, there was justification in admitting the case. 5. I have heard Sri T.P. Singh, learned Senior Counsel assisted by Sri Santosh Kumar Tripathi, counsel for the petitioner, learned Standing Counsel for the State-Respondents and perused the documents on record. 6. The principal thrust of the submission of Sri T.P. Singh, learned Senior Counsel is that the appeals were not maintainable being grossly barred by time and the provisions of Section 5 of the Act, 1963 had no application to proceedings under the Act, 1899 and once this finding had been upheld by the Chief Controlling Revenue Authority he should have dismissed the appeal instead of proceeding to decide the same on merit on a mere misconceived notion that there was glaring and unprecedented evasion of stamp duty. Reference has been made to the provisions of Section 56 of the Act, 1899 particularly sub-section 1 (A) thereof which provides a limitation of 60 days for filing of appeal from the date of receipt of the order of the Collector. Section 56 sub-section 1 (A) of the Act, 1899 reads as under: “56. Control of and statement of case to Chief Controlling Revenue Authority.—(1)The power exercisable by a Collector under Chapter IV and Chapter V and under clause (a) of the first proviso to Section 26 shall, in all cases, be subject to the control of the Chief Controlling Revenue-Authority. (1-A) Notwithstanding anything contained in any other provisions of this Act, any person including the Government aggrieved by an order of the Collector under Chapter IV, Chapter V or under clause (a) of the first proviso to Section 26 may within sixty days from the date of receipt of such order prefer an appeal against such order to the Chief Controlling Revenue Authority, who shall after giving the parties a reasonable opportunity of being heard consider the case and pass such order thereon as he thinks just and proper and the order so passed shall be final. Provided that no application for stay of recovery of any disputed amount of stamp duty including interest thereon or penalty shall be entertained unless the applicant has furnished satisfactory proof of the payment of not less than one third of such disputed amount. Provided further that where the Chief Controlling Revenue Authority passes an order for the stay of recovery of any stamp duty, interest thereon or penalty, or for the stay of the operation of any order appealed against, and such order results in the stay of recovery of any stamp duty, interest thereon, or penalty, such stay order shall not remain in force for more than thirty days unless the appellant furnishes adequate security to the satisfaction of the Collector concerned for the payment of the outstanding amount.” 7. Sub-section 1 (A) of Section 56 of the Act, 1899 clearly provides that any person including the Government, aggrieved by an order of the Collector under Chapter IV, Chapter V or under Clause (a) of the first proviso to Section 26 may, within 60 days from the date of receipt of such order, prefer an appeal against such order to the Chief Controlling Revenue Authority. Section 56 does not contain any provision whereby the Chief Controlling Revenue Authority may condoned the delay upon being satisfied and recording such satisfaction that the person preferring the appeal had good and sufficient cause to explain the delay in filing the appeal. The Indian Stamp Act, 1899 is a special act in the nature of a taxing statute enacted with an object to secure revenue for the State on certain classes of instrument as held by the Supreme Court in Dr. Chiranji Lal (D) By LRS. v. Hari Das (D) By LRS, 2005 (10) SCC 746. 8. Being a special act the Stamp Act contains its own special provisions, sections and clauses for preferring of an appeal before the Chief Controlling Revenue Authority by any person aggrieved including the Government and provides a specific time period for preferring such appeal which is 60 days from the date of receipt of the order. Therefore, if a person is aggrieved by an order of the Collector, including the State and wishes to file an appeal against the same, he must to do so within a period of 60 days. Section 56 or its sub-section do not provide for condonation of delay on any ground whatsoever. That being the statutory restraint Section 5 of the Limitation Act, 1963 would have no application to any proceeding of appeal preferred under sub-section (1) (A) of Section 56 of the Act, 1899. In Sakuru v. Tanaji, (1985) 3 SCC 590 , the Supreme Court while interpreting the provisions of Sections 90 and 93 of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 has held as under: “3. After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiah case is perfectly correct and sound. After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiah case is perfectly correct and sound. It is well-settled by the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and others, [1970] 1 SCR 51, Nityananda M. Joshi and others v. Life Insurance Corporation of India and others, [1970] 1 SCR 396 and Sushila Devi v. Ramanandan Prasad and others, [1976] 2 SCR 845, that the provisions of the Limitation Act, 1963 apply only to proceedings in “Courts” and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. Hence it becomes necessary to examine whether the Act contains any such provision entitling the Collector to invoke the provisions of Section 5 of the Limitation Act for condonation of the delay in the filing of the appeal. The only provision relied on by the appellant in this connection is Section 93 of the Act which, as it stood at the relevant time, was in the following terms : “93. The only provision relied on by the appellant in this connection is Section 93 of the Act which, as it stood at the relevant time, was in the following terms : “93. Limitation—Every appeal and every application for revision under this Act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of the Indian Limitation Act, 1908 shall apply for the purpose of the computation of the said period.” On a plain reading of the section it is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to ‘computation of the period of limitation. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with computation of the period of limitation. It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question of extension of the period under Section 5 can arise. We are, therefore, in complete agreement with the view expressed by the Division Bench of the High Court in Venkaiah’s case that Section 93 of the Act did not have the effect of rendering the provision of Section 5 of the Limitation Act, 1963 applicable to the proceedings before the Collector.” In Damodaran Pillai and others v. South Indian Bank Ltd., (2005) 7 SCC 300 , the Supreme has held as under: “12. We may notice that the period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the Limitation Act, 1963. 13. It is also not in dispute that the Kerala amendment providing for application of Section 5 of the Limitation Act in Order XXI, Rule 105 of the Code became inapplicable after coming into force of the Limitation Act, 1963, (Act LVI of 1964). 14. It is also trite that the Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power. 15. 14. It is also trite that the Civil Court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the Court cannot invoke its inherent power. 15. It is well-settled that when a power is to be exercised by a Civil Court under an express provision, the inherent power cannot be taken recourse to. 16. An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the mater, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the Court cannot be invoked.” In Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and another, (2008) 3 SCC 70 , the Supreme Court while interpreting the provisions of Section 35 of the Central Excise Act, 1944 has held as under: “8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.” In State of Jharkhand and others v. Shivam Coke Industries, Dhanbad and others, (2011) 8 SCC 656 , the Supreme Court while examining the revisional power of the Joint Commissioner under Section 46 sub-section 3 of the Bihar Finance Act, 1981 has held as under: “41. The next issue which now arises for our consideration is whether the aforesaid exercise of power of drawing up a revisional proceeding by exercising suo motu power was not exercised within the period of limitation or within a reasonable period of time. 42. We have also extracted the provision which clearly indicates that no period of limitation is prescribed for initiation of suo motu revisional proceeding by the Commissioner or the Joint Commissioner as the case may be, whereas a period of limitation is prescribed for filing a revision application by an aggrieved party for initiation of the revisional jurisdiction of the Commissioner which period is 90 days, as is stood at that relevant time. 43. The High Court has held that there cannot be an unlimited period of limitation even for exercising of suo motu revisional power for initiation of a proceeding by the Commissioner or the Joint Commissioner as the case may be and therefore provision of Article 137 of the Limitation Act was read into the Act laying down that at least within a period of three years from the date of accrual of the cause of action such a power of suo motu Revision should be exercised by the Joint Commissioner. 44. We are again unable to accept the aforesaid contention as the legislature has not stated in the provision at all regarding the applicability of Article 137 of the Limitation Act to Section 46(4) of the BFT Act. 44. We are again unable to accept the aforesaid contention as the legislature has not stated in the provision at all regarding the applicability of Article 137 of the Limitation Act to Section 46(4) of the BFT Act. If the legislature intended to provide for any period of limitation or intended to apply the said provision of Article 137 into Section 46(4), the legislature would have specifically said so in the Act itself. When the language of the legislature is clear and unambiguous, nothing could be read or added to the language, which is not stated specifically. Therefore, the High Court wrongly read application of Section 137 of the Limitation Act to Section 46(4) of the BFT Act. 45. It is a settled position of law that while interpreting a statute, nothing could be added or subtracted when the meaning of the section is clear and unambiguous. In this connection we may also refer to the decision of this Court in Sakuru v. Tanaji, (1985) 3 SCC 590 , wherein it was stated by this Court that the Limitation Act applies to Courts and not to quasi judicial authority. The aforesaid principle and settled position of law was totally ignored by the High Court while laying down that Article 137 of the Limitation Act would be applicable to the facts and circumstances of the present case” 9. Learned Standing Counsel, on the other hand, placed reliance on the judgment of the Supreme in the case of Union of India v. Ibrahim Uddin and another. Paragraph 38 of the said judgment is with reference to an application under Order 41 Rule 27 of the Code of Civil Procedure. 10. In my opinion, the said judgment has no application to the facts of the present case as here the issue for consideration is whether the delay in filing the appeal could be condoned by the Chief Controlling Revenue Authority under Section 5 of the Limitation Act, 1963 while exercising powers under Section 56 1 (A) of the Act, 1899. 11. The other judgment relied upon by the learned Standing Counsel in Rajiv Sahai and another v. WG.CDR. Ashok Kumar Sahai (Retd.), 2018(1) ADJ 453 , is also with regard to an application under Order 41 Rule 27 of the Code of Civil Procedure and has no application to the facts of the present case. 12. 11. The other judgment relied upon by the learned Standing Counsel in Rajiv Sahai and another v. WG.CDR. Ashok Kumar Sahai (Retd.), 2018(1) ADJ 453 , is also with regard to an application under Order 41 Rule 27 of the Code of Civil Procedure and has no application to the facts of the present case. 12. There is another peculiar aspect of the matter, namely, that the Chief Controlling Revenue Authority has himself in the impugned order held that Section 5 of the Act, 1963 has no application to proceedings under the Act, 1899. Once that finding was recorded by him there was no other option left for him but to dismiss the appeal out rightly instead he has invoked in his inherent power to condone the delay and entertained the two appeals on the ground that there was glaring and gross evasion of stamp duty. 13. In my opinion, such a finding is wholly illegal besides being perverse and did not empower the Chief Controlling Revenue Authority to invoke the appellate jurisdiction once the undisputed facts on record unambiguously demonstrated that the appeals were filed after almost 500 days i.e. beyond the statutory period of limitation of 60 days as provided in sub-section 1(A) of Section 56 of the Act, 1899. Therefore, for reasons aforesaid the impugned orders dated 19.1.2004 and 17.6.2004 are absolutely illegal arbitrary and without jurisdiction and contrary to the statutory provisions of Section 56 (1)(A) of the Act, 1899 and in view of the law laid down by the Supreme Court in the case of Sakuru (supra), Damodaran Pilai (supra), Singh Enterprises (supra) and Shivam Coke Industries, Dhanbad and others (supra) the same are accordingly quashed. 14. The writ petition stands allowed.