Babe Ke Edu. Charitable Society Thru. Manag. Pritam Singh v. State Of U. P. Thru. Prin. Secy. Deptt. Of Revenue Vidhan Sabha Marg, Lko.
2022-03-16
DEVENDRA KUMAR UPADHYAYA, IRSHAD ALI
body2022
DigiLaw.ai
JUDGMENT : Devendra Kumar Upadhyaya, J. 1. Questioning the validity of the judgment and order dated 25.02.2022 passed by learned Single Judge in Writ-C No.1132 of 2022, this intra-court appeal has been filed under Chapter VIII, Rule 5 of the Rules of the Court. 2. Before learned Single Judge, challenge was made to an order dated 30.12.2021 passed by the Collector Stamp/District Magistrate, District Lakhimpur Kheri under Section 47-A of the Indian Stamp Act (hereinafter referred to as the 'Act') whereby deficiency of stamp duty to the tune of Rs.82,53,800/-was determined and was ordered to be recovered from the appellant-petitioner and simultaneously penalty was also imposed to the tune of Rs.82,538/-. The Collector Stamp also ordered that interest at the rate of 1.5% per month be also recovered from the appellant-petitioner from the date of execution of the Gift Deed till the amount to be recovered from the appellant-petitioner is deposited. 3. Learned Single Judge, however, dismissed the writ petition as not maintainable on the ground of non-exhaustion of statutory alternative remedy available to the appellant-petitioner under Section 56 of the Act before the Chief Controlling Revenue Authority. 4. To meet the objection regarding maintainability of the writ petition reliance was placed by the appellant-petitioner before learned Single Judge upon the judgment of Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trademark; (1998) (8) SCC 1 and it was argued that availability of alternative remedy is no bar for this Court to entertain a petition under Article 226 of the Constitution of India in case order under challenge is without jurisdiction or has been passed without following the principles of natural justice. 5. The submission before learned Single Judge made on behalf of the appellant-petitioner was that the order passed by the Collector Stamp was without jurisdiction for the reason that the proceedings under Section 47-A of the Act were not attracted in this case as the document which is said to have been deficiently stamped is a Gift Deed which in terms of the provisions of Entry 33 of Schedule 1-B of the Act, is chargeable for stamp duty not on the basis of "market value of the property" but on the basis of "value of the property". 6.
6. Certain judgments of this Court were also cited on behalf of the appellant-petitioner before the learned Single Judge including the judgments in the case of Sumit Gupta vs State of U.P. & others, AIR (2011) (Allahabad) 135; {2011 (3) ALJ 732}, Jagadguru Kripalu Parishat vs. State of U.P & others, AIR 2013 (Allahabad) 196 and Smt Raj Goyal vs. A.D.M. (Finance & Revenue) Unnao, Writ Petition No.3923 (M/S) of 2008. 7. However, argument based on these judgments did not find favour with the learned Single Judge who opined that none of these judgments refer to a constitution Bench judgment of the Apex Court in the case of N.P. Ponnuswami vs. Returning Officer, 1952 SCR 218 which deals of the issue relating to maintainability of a writ petition in the wake of availability of "statutory remedy" whereas Whirlpool Corporation (supra) deals with a situation where there is an "alternative remedy". The learned Single Judge thus observed that there is a difference between "alternative remedy" and "statutory remedy" and held that in case of availability of "statutory remedy", writ petition would not be maintainable. 8. When we consider the aforesaid ground taken by learned Single Judge to hold that the writ petition was not maintainable, we find ourselves unable to be in agreement with the view taken by learned Single Judge. 9. It is trite in law that rule of exclusion of jurisdiction of this Court under Article 226 of the Constitution of India in the wake of availability of an alternative remedy, be it statutory or otherwise, is not absolute. Article 226 of the Constitution of India is couched in the widest possible term and unless there is an express bar to its jurisdiction, its power under this Article can be exercised when there is any act which is against any provision of law or is violative of constitutional provisions. Reference may be had in this regard to the judgment of Hon'ble Supreme Court in the case of K. Venkatachalam Vs. A. Swamickan; (1999) 4 SCC 526 . 10. It is however equally well settled that though powers of High Court under Article 226 of Constitution of India are discretionary and no limits can be placed upon such discretion, nonetheless this jurisdiction must be exercised along recognized lines and not arbitrarily. Such jurisdiction is subject to certain self imposed restrictions.
A. Swamickan; (1999) 4 SCC 526 . 10. It is however equally well settled that though powers of High Court under Article 226 of Constitution of India are discretionary and no limits can be placed upon such discretion, nonetheless this jurisdiction must be exercised along recognized lines and not arbitrarily. Such jurisdiction is subject to certain self imposed restrictions. Thus, in appropriate cases jurisdiction under Article 226 of the Constitution of India is exercisable even in the wake of availability of alternative remedy, statutory or non-statutory. 11. The fine distinction sought to be drawn by learned Single Judge between these two expressions, with utmost respect we may say, was unnecessary. Remedy in legal parlance is a mechanism available to an aggrieved person to take recourse to for getting some wrong undone. State, for redressal of grievances of its citizenry provides various such mechanisms/remedies. Sometimes a remedy may be provided by way of legislation which will be a statutory mechanism and sometimes remedy may be provided by State without framing any legislation or statute, that is, by providing simple administrative or executive mechanism. Therefore, in our considered opinion, there does not lie any distinction between "statutory" or "non-statutory" or "alternative" remedies when these remedies are referred to in the context of exercising the discretionary jurisdiction under Article 226 of the Constitution of India by the High Court. Every "statutory remedy" may be an alternative remedy and similarly every "non-statutory" or "executive" or "administrative" remedy can also be an alternative remedy, that is to say a remedy which is alternate to the remedy under Article 226 of the Constitution of India. 12. Learned Single Judge appears to have ignored the binding precedents. In the case of Sumit Gupta (supra), a Division Bench of this Court considered the provisions of Article 33 of Schedule I-B of the Act vis-a-vis Section 47-A and has held that Section 47-A comes into play only where the market value of the property in the instrument or the document is disclosed to be lessor than that determined in accordance with the Rules.
It is in this background that submission on behalf of appellant-petitioner was made that the order under challenge in the writ petition was without jurisdiction and hence the dictum of Whirlpool Corporation (supra) will apply and as such availability of remedy under Section 56 of the Act will not bar jurisdiction of this Court to entertain the petition under Article 226 of the Constitution of India. 13. We may also refer to another Division Bench judgment of this Court in the case of Smt. Vijaya Jain Vs. State of U.P. and others; 2016 (3) ALJ 278. In this case writ petition was held to be maintainable against an order of Collector (Stamp) notwithstanding availability of "statutory remedy", under Section 56 of the Act. We also note that in this case as well, learned Single Judge had refused to entertain the writ petition on the ground of availability of remedy under Section 56 of the Act, however the Division Bench upturned the judgment of learned Single Judge and held the writ petition to be maintainable. 14. It is needless to say that Division Bench judgment was binding upon learned Single Judge in the instant case as well. 15. Accordingly, the judgment and order dated 25.02.2022, passed by learned Single Judge in Writ-C No.1132 of 2022 is set aside and the appeal is allowed. Writ petition shall thus stand restored and shall be decided afresh. 16. We request the learned Single Judge to expedite the proceedings of the writ petition and decide the same as early as possible. If any application for interim relief is moved/has been moved in the writ petition, it shall also be decided with expedition. 17. There shall be no order as to cost.