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2021 DIGILAW 664 (RAJ)

Deepak Madaan v. State Of Rajasthan

2021-03-23

PUSHPENDRA SINGH BHATI

body2021
JUDGMENT 1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court. 2. Since the issue involved in all these writ petitions is common, therefore, on the request of learned counsel for the petitioner, S.B. Civil Writ Petition No.319/2020 has been heard as a lead case and all these petitions are being decided by this common judgment. The prayer in the lead case is as follows: - "i) To issue any writ, order or direction more particularly in the nature of a writ of certiorari to quash and set aside the impugned order dated 09.10.2019 (Annex. 17) passed by the Deputy Inspector General: ii) To issue writ, order or direction to declare the inspection carried out by the Deputy Inspector General on 06.02.2019 as illegal and contrary to law, and to quash the inspection report pursuant to the said Inspection (Annexure-11); iii) To issue writ, order or direction more particularly in the nature of a writ of certiorari to declare the Notice dated 23.04.2019 under Section 54 issued by the Sub-Registrar as illegal and contrary to law (Annexure-12). iv) To issue writ, order or direction more particularly in the nature of a writ of certiorari to declare the reference darted 17.05.2019 made by the Sub-Registrar as illegal and contrary to law (Annexure-13). v) To issue writ, order or direction more particularly in the nature of a writ of certiorari to declare the Notice dated NIL under Section 51(5) r/w rule 65(2) issued by the Deputy Inspector General as illegal and contrary to law (Annexure-14). vi) To issue any writ, order or direction more particularly in the nature of a writ of certiorari to quash the recovery notice No. 782 dated 29.11.2019 (Annexure- 18); vii) To issue writ, order or direction more particularly in the nature of a writ of prohibition to prohibit the respondents from taking any action pursuant to the impugned proceedings; viii) To issue such other writ or order or direction as this Hon'ble Court may deem fit and proper in the interest of justice." 3. Learned counsel for the petitioner has demonstrated from the record, particularly Annex.7 that the property in question, as per the sale-deed, was owned by Gwar Construction Limited through authorized person, which is of-course the present petitioner. 4. Learned counsel for the petitioner has demonstrated from the record, particularly Annex.7 that the property in question, as per the sale-deed, was owned by Gwar Construction Limited through authorized person, which is of-course the present petitioner. 4. Learned counsel for the petitioner further submits that the Company is a legal entity independently holding its own rights and duties, and therefore, no individual whatsoever can be saddled with any kind of proceedings or liabilities without proper instructions from the Company. 5. Learned counsel for the petitioner has also taken this court to the Annex.17, which is the impugned order dated 09.10.2019, in which, the parties are the previous owners and the present petitioner, and admittedly the Company is not a party in the proceedings. 6. Learned counsel for the petitioner has drawn attention of this court towards the Rule 65 of the Rajasthan Stamp Rules, 2004, in which, the notice to the person liable to pay the duty is mandatory. 7. Learned counsel for the petitioner has also referred to Section 51 Sub-section 5 where the determination of market value by the Collector holding a quasi-judicial authority and the determination of the same in accordance with the procedure is reflected. Learned counsel for the petitioner has also referred to the definition of Section 2 Sub-section (xxiii), in which, the market value has been defined as a price which such property would have fetched or would fetch if sold in open market on the date of the execution of the property. 8. Learned counsel for the petitioner further submits that since the mandatory provisions of law have been violated by the respondents, as they have not given any opportunity of hearing to the Company and arrived at a conclusion, the same is vitiated in the eyes of law. 9. Learned Additional Advocate General however, has drawn attention of this Court towards the reply filed by the Company before the Collector Stamp in the respective case number, which was the proceedings under Section 51 Sub-section 5 of the Rajasthan Stamp Act, 1998 read with Rule 65(2) of the Rajasthan Stamp Rules, 2004. Learned AAG further submits that a detailed reply was filed by the Company through its authorized representative Hari Chand Girdhar, which has been kept into consideration by the learned authority, while passing the impugned order dated 09.10.2019. 10. Learned AAG further submits that a detailed reply was filed by the Company through its authorized representative Hari Chand Girdhar, which has been kept into consideration by the learned authority, while passing the impugned order dated 09.10.2019. 10. Learned Additional Advocate General further submits that if there is any grievances arising out of the impugned order then there is an alternative remedy provided under Section 65(1) of the Act of 1998 and that could have been availed. Learned AAG further submits that since the Company is not before this court and the individual petitioner is there before this Court, therefore, at best the Court may absolve him of his liability arising out of the order dated 09.10.2019 but since the Company has stepped into shoes of the petitioner while filing a reply, therefore, the Company may not be absolved. 11. Learned Additional Advocate General fairly submits that the recovery notice has to be against the Company and could not have been given to the present petitioner, who was for the particular proceedings not an authorized representative of the Company in question and was neither the Company itself. 12. Learned counsel for the petitioner, in his rejoinder submission, submitted that the petitioner is an individual and he does not have any instruction at this stage on behalf of the Company and thus, would not like to submit anything on the merits on behalf of the Company, though he submitted that the proceedings were vitiated from the root because the initial notice itself created a jurisdictional error in contravention of the rules and thus, the whole proceedings ought to be discontinued. 13. Learned counsel for the petitioner also submitted that in reply which was submitted by the Company has stated that the proceedings are illegal. It is also contended that there is no acquiescence on the part of the Company. 14. This Court, after hearing learned counsel for the parties at length and perusing the record of the case as well as the statutes shown, is of the considered opinion that since the petitioner is only an individual before this Court and admittedly as per the sale-deed, he has no ownership of the property in question, therefore, any proceedings against him by the respondents cannot be sustained. Learned Additional Advocate General has been fair enough to admit that the petitioner is an individual and recovery notice cannot be given to him rather the same has to be given to the Company. 15. Thus, while allowing these writ petitions, this Court directs the respondents to take all necessary steps provided in law to carry on the recovery of the stamp duty strictly in accordance with law against the Company and not the present petitioner. Since the Company is not represented before this court today, therefore, this Court gives liberty to the Company to take all legal recourse available to them against the proceedings of imposition of stamp duty as well as the recovery. This order shall not prejudice the rights of the Company to assail the impugned order dated 09.10.2019 or any other proceedings thereafter. Any payment made in lieu of the demand by the petitioner shall be reduced from the original liability. 16. Stay petition as well as all pending applications stand disposed of accordingly.