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2020 DIGILAW 1231 (MAD)

Rajendran Chingaravelu v. State of Tamil Nadu, Represented by its Secretary, Revenue Department, Chennai

2020-08-12

A.P.SAHI, SENTHILKUMAR RAMAMOORTHY

body2020
JUDGMENT : Senthilkumar Ramamoorthy, J. (Prayer: Writ Appeal is filed under Clause 15 of Letters Patent to set aside the order dated 19.06.2019 passed in W.P.No.16979 of 2019 and allow the Writ Petition as prayed for and consequentially direct the 4th Respondent to refund the sum of Rs.1,76,502/- (Rupees One Lakh Seventy Six Thousand Five Hundred and Two only) paid by the Appellant with interest at 12% per annum.) 1. The Appellant purchased a plot of land in Madipakkam Village under a sale deed dated 19.11.2015, which was registered as document No.7514/2015 by the Office of the Sub-Registrar (SRO), Velachery. The SRO refused to hand over the original registered sale deed to the Appellant and, instead, made a reference to the Collector under Section 47-A of the Indian Stamp Act, 1899 (the Stamp Act) for determination of the market value of the property. In those circumstances, the Appellant filed W.P. No.3039 of 2016 and this Court, by order dated 08.02.2016, directed the SRO to hand over the original registered sale deed with an endorsement thereon indicating that a reference had been made under Section 47-A. 2. Thereafter, a notice dated 15.03.2016 was issued by the District Revenue Officer under Form-I of the Tamil Nadu Stamps (Prevention of Under-valuation of Instrument) Rules, 1968 (the TN Stamps Undervaluation Rules), valuing the property at Rs.74,48,000/- based on the guideline value and demanding deficit duty of Rs.1,71,360/-. By reply dated 02.04.2016, the Appellant questioned the validity of the notice and by a subsequent representation dated 27.10.2017 requested that the endorsement on the sale deed be effaced. However, the District Revenue Officer issued a Form II Notice dated 03.05.2018 demanding the differential duty of Rs.1,71,360/-. At this juncture, W.P. No. 26695 of 2018 was filed for substantially the same relief as requested in the writ petition out of which this appeal arises. While the said writ petition was pending, the final order dated 21.02.2019 was passed by the third Respondent herein. Therefore, W.P. No.26695 of 2018 was disposed of by granting leave to the Appellant to challenge the final order before the appropriate forum in a manner known to law. While the said writ petition was pending, the final order dated 21.02.2019 was passed by the third Respondent herein. Therefore, W.P. No.26695 of 2018 was disposed of by granting leave to the Appellant to challenge the final order before the appropriate forum in a manner known to law. W.P. No.26695 of 2018 was filed in these facts and circumstances for a Writ of Mandamus directing the Respondents to cancel the endorsement on the Appellant's sale deed dated 19.11.2015 and to pay a sum of Rs.5,00,000/- as compensation for the legal injury and damage caused to the Appellant. The said writ petition was dismissed by order dated 19.06.2019 primarily on the ground that there is an effective alternative remedy under Section 47-A(5) of the Stamp Act. The said order is impugned in this appeal. 3. We heard Mr. Sai Sajith for M/s.Giridhar and Sai, the learned counsel for the Appellant. 4. The first contention of the learned counsel for the Appellant was that principles of natural justice had been violated in as much as the representations of the Appellant on 04.04.2016, 27.10.2016 and 09.03.2018 were not considered while issuing the Form II Notice dated 03.05.2018. The second contention was that Rule 4 of the TN Stamp Undervaluation Rules prescribes the procedure upon receipt of a reference under Section 47-A and that this procedure was not followed, in this case, including by not considering the representations of the Appellant. The third contention was that Rule 7 thereof prescribes that the Collector is required to pass an order within three months from the date of first notice, whereas the said limitation period of three months lapsed much before the issuance of the final order in the present case. The fourth contention was that the final order is invalid for several reasons, including that a proper enquiry was not conducted. By drawing specific reference to the representation dated 16.05.2018, the learned counsel pointed out that the final order is vitiated on account of: (i) the non-disclosure of the reasons for the reference under Section 47A in the Form I Notice; and (ii) the Form II Notice does not disclose the basis for the provisional assessment of the market value. By drawing specific reference to the representation dated 16.05.2018, the learned counsel pointed out that the final order is vitiated on account of: (i) the non-disclosure of the reasons for the reference under Section 47A in the Form I Notice; and (ii) the Form II Notice does not disclose the basis for the provisional assessment of the market value. By inviting the attention of the Court to the Form I and Form II Notices, the learned counsel pointed out that these are standard forms and have been used mechanically by the authorities without considering the representations of the Appellant. For the aforesaid reasons, the learned counsel concluded his submissions stating that the learned Judge in the Writ Court committed a patent error in rejecting the writ petition solely on the ground of the existence of an alternative remedy. 5. We considered the submissions of the learned counsel for the Appellant and examined the relevant documents. The writ petition was rejected largely on account of the existence of an alternative remedy. Therefore, we propose to first examine the relevant provision in that regard. 6. Section 47(A)(5) of the Stamp Act, as applicable in Tamil Nadu, reads as under: “(5) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3), may appeal to such authority as may be prescribed in this behalf. All such appeals shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed by rules made under this Act. Rule-9 of the TN Stamps Undervaluation Rules prescribes the procedure for filing of such appeal and the said provision, inter alia, is as under : “9. Appeals:-- (1) The appellate authority for the purpose of sub-section (5) of section 47-A shall be the Chief Controlling Revenue Authority (hereinafter referred to as appellate authority). Such an appeal shall be preferred within two months from the date of Collector's order determining the market value under sub-rule (1) of rule 7.” 7. On perusal of Section 47-A (5) and Rule 9, it is clear that an appeal is provided to the Chief Controlling Revenue Authority. Such appeal is required to be filed within two months from the date of the Collector's order. Thus, the final order dated 21.02.2019 of the District Revenue Officer is an appealable order, and this is stated in the said order too. Such appeal is required to be filed within two months from the date of the Collector's order. Thus, the final order dated 21.02.2019 of the District Revenue Officer is an appealable order, and this is stated in the said order too. The learned counsel for the Appellant was also unable to point out any reason as to why the said appellate remedy is not efficacious. On this issue, it is pertinent to note that the earlier W.P. No.26695 of 2018 was disposed of by this Court by granting leave to the Appellant to challenge the final order dated 21.02.2019 before the appropriate forum and, in spite of the said order, the present writ petition was filed. 8. The general principle that a Court would decline to exercise jurisdiction under Article 226 of the Constitution when there is an alternative remedy is well entrenched. It is sufficient to refer to the judgment of the Hon'ble Supreme Court in Thansingh Nathmal vs. Superintendent of Taxes ( AIR 1964 SC 1419 ), wherein, in paragraph-7, it was held as follows: “7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” 9. With regard to the contention that the principles of natural justice were violated or that a proper enquiry was not conducted before passing the final order dated 21.02.2019, we find that the order dated 21.02.2019 specifies that a notice was issued to the owner and an enquiry was conducted on the basis of the reply received. It further specifies that a site inspection was carried out and that the value of the property was fixed at Rs.3500/- per sq.ft. on the basis of the inspection report. Thus, we find that the contention that the principles of natural justice were not adhered to is not tenable. In any event, this contention – and the following contentions: that the Form II Notice is a standard form and was issued without considering the representations of the Appellant; and that the final order should have been passed within three months from the date of first notice, whereas it was passed after almost three years - are contentions that the Appellant should have raised before the appellate authority prescribed under the statute. In this case, it is evident that factual issues relating to the determination of the market value of the property are at issue. In this context, the filing of the writ petition out of which the present appeal arises cannot be countenanced and, in our opinion, there is no infirmity in the impugned order declining to exercise discretionary jurisdiction in the facts and circumstances. 10. For reasons set out above, we find that the impugned order in the writ petition refusing to exercise discretion is fully justified in the facts and circumstances of the case. Accordingly, this writ appeal is dismissed. No costs.