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Judgment
Instant intra-court appeals have been filed against order of The ld. Single Judge dt. 15.10.2013 dismissing writ petitions on the premise that the appellant has an alternative and efficacious remedy by way of revision provided u/Sec. 65 of the Rajasthan Stamp Act, 1998 before the Rajasthan Tax Board and was not inclined to exercise its extra-ordinary jurisdiction u/Art. 226 of the Constitution.
The brief facts which are relevant to dispose of the instant special appeals recapitulated are as under:-
The appellant-Company is a private limited company registered under the Companies Act, 1956 and as alleged, the appellant-company has been formed as a result of joint venture agreement between Amtek Auto Limited and American Railcar Industries formed for the purpose of setting up a wagon manufacturing unit (steel casting plant) at village Mahuwa, Tehsil and District Alwar. The appellant-company applied for exemption of 50% stamp duty and/or conversion charge under the Rajasthan Investment Promotion Scheme, 2003 for the proposed project requiring 91.55 acres of land in village Mahuwa, Tehsil and District Alwar which came to be considered by the office of Commissioner of Industries, Government of Rajasthan vide letter dt. 24.09.2008 issuing provisional entitlement certificate in Form-5 giving 50% exemption of stamp duty and/or 50% exemption of the Government portion of Conversion charges vide Provisional Entitlement Certificate dt. 24.09.2008 under Rajasthan Investment Promotion Scheme, 2003 with a note appended thereto that this certificate is valid for a period of one year from the date of issue.
It appears from the record that appellant-company needed 91.55 acres of land in village Mahuwa, Tehsil and District Alwar to set up the steel casting plant and obviously the land was to be acquired from the concerned farmers/khatedars and proceedings were initiated by the State Government for acquisition under the provisions of Land Acquisition Act, 1894 and has tried to justify that land for good reasons for setting up industry could not be acquired.
At this stage, the Collector (Stamps) was prima facie of the view that the appellant is not entitled to any exemption and there was a violation of terms and conditions for which exemption can be claimed in terms of the certificate dt. 24.09.2008 and since there were different instruments which were submitted by the appellant for different parcel of lands, which are 41 + 34 in both the special appeals, separate show cause notices were issued from the office of the Collector (Stamps) u/Sec. 51 and 51(2) of the Rajasthan Stamp Act, 1998 dt. 20.12.2011 calling upon the appellant to deposit the balance amount of stamp duty and interest as he was not entitled for exemption and called upon to appear on 13.01.2012. After service of notice on 13.01.2012, the matter was adjourned for 06.02.2012 and on the said date, an application was submitted by the appellant seeking indulgence of submitting reply and their defence and the matter was adjourned for 14.02.2012. On the said date i.e. 14.02.2012 the Collector (Stamps) passed ex-parte orders holding that the date was already informed to the appellant of 14.02.2012 on which he has failed to appear and no reply has been filed, as such, the Collector (Stamps) proceeded ex-parte against the appellant and passed orders dt. 14.02.2012 for depositing deficit stamp duty along with interest. It is informed to this court that since there were different parcel of lands i.e. 41 + 34, the appellant was served with separate show cause notices dt. 20.12.2011 and separate orders were passed by the Collector (Stamps) dt. 14.02.2012 in (41 + 34) relating to separate instruments which were submitted by the appellant.
The orders passed by the Collector (Stamps) dt. 14.02.2012 came to be challenged by the appellant by filing of two separate writ petitions before the ld. Single Judge of this court and objection was raised by preliminary objection was raised by the respondent that orders passed by the Collector (Stamps) dt. 14.02.2012 are revisable u/Sec. 65 of the Rajasthan Stamp Act before the Rajasthan Tax Board and once effective and efficacious remedy is available and there is no lack of jurisdiction exercised by the Collector (Stamps), this court may not like to exercise its extra-ordinary jurisdiction u/Art. 226 of the Constitution. However, the preliminary objection prevailed upon the ld. Single Judge and the writ petitions, preferred by the appellants, came to be dismissed under order impugned dt. 15.10.2013 on the premise of availability of alternative remedy under the Rajasthan Stamp Act.
There is an objection raised by the appellant regarding jurisdiction of the Collector (Stamps) in issuance of notice u/Sec. 51 and 51(2) of the Act but apart from it, his objection before the court is that opportunity of hearing has not been afforded to him before the Collector (Stamps) passed the order impugned dt. 14.02.2012 and unless fair and reasonable opportunity of hearing is being afforded and reply was taken on record by the authorities, the remedy of revision available to him, may not be an effective remedy, as prayed for as the defence of appellant is not on record and submits that opportunity of hearing is otherwise a sine-qua-non for passing the order which adversely affects the right and interest of the parties in absence whereof the impugned order of the Collector (Stamps) is not legally sustainable in the eye of law.
It is further contended that on 06.02.2012 opportunity was afforded to the appellant to file reply to the notice dt. 20.12.2011 and the matter was fixed for 14.02.2012. The appellant came with a specific case before the ld. Single Judge and pleaded in the writ petitions as well that authorized representative of the appellant appeared in the office of the Collector (Stamps), Alwar on 14.02.2012 along with reply to the notice but by the time he reached, it is informed that ex-parte proceedings were initiated and orders impugned have been passed dt. 14.02.2012 and after the order causing adverse consequences came to be passed, obviously he has no other remedy available than to approach this court by filing of the writ petition.
Mr. Rajendra Prasad, Additional Advocate General appearing on behalf of the State submits that 41 + 34 separate notices u/Sec. 51 and 51(2) of the Act were issued from the office of the Collector (Stamps) for different parcel of lands in reference to the instruments submitted by the appellant before the registering authority and adequate opportunity of hearing was afforded to the appellant but still if the appellant failed to submit their reply in defence thereof, no error has been committed by the Collector (Stamps) in passing of the order impugned dt. 14.02.2012 and further submits that once the Collector (Stamps) afforded opportunity of hearing to the appellant, it is open for the person aggrieved to avail opportunity and come with his defence, which opportunity and come with was afforded to the appellant in the instant case and in these facts and circumstances, the ld. Single Judge has not committed any error in dismissing the writ petitions on availability of alternative remedy and according to the counsel, indisputably, the orders which are impugned in the instant proceedings are revisable u/Sec. 65 of the Act before the Rajasthan Tax Board and needs no interference in the intra-court appeal.
Counsel further submits that the remedy of revision provided u/Sec. 65 of the Act is an effective and efficacious remedy and this court ordinarily may not like to exercise its extra-ordinary jurisdiction when effective remedy is provided under the law to the person aggrieved by the order passed by the Collector (Stamps).
We find substance in the submissions made by counsel for the respondents that order of the Collector (Stamps) dt. 14.02.2012 is certainly revisable u/Sec. 65 of the Act before the Rajasthan Tax Board and ordinarily the person aggrieved by the order of the Collector (Stamps) is supposed to prefer revision u/Sec. 65 of the Act before the Rajasthan Tax Board but in the instant case, we find that fair and reasonable opportunity of hearing which is a sine-qua-non has not been afforded to the present appellant, in absence whereof directing the appellant to avail remedy of revision provided u/Sec. 65 of the Act may not be useful and going to serve any purpose since defence of the appellant has not come on record for proper appreciation by the authority who has served notices u/Sec. 51 and 51(2) of the Act dt. 20.12.2011.
It reveals from the record that notices u/Sec. 51 and 51(2) of the Act were issued on 20.12.2011 and the date for appearance was 13.01.2012. On the said date, the matter was fixed for 06.02.2012 and on 06.02.2012 the appellant filed application to grant time for submitting reply and defence in support thereof and the next date fixed by the Collector (Stamps) was 14.02.2012. The specific case of the appellant and in the pleadings is that on 14.02.2012, their authorized representative appeared in the office of the Collector (Stamps), Alwar along with reply but by the time he reached, it was informed that ex-parte proceeding were initiated and the orders impugned have been separately passed by the Collector (Stamps) dt. 14.02.2012.
Taking note of the submissions made at least the fact remains that a reasonable opportunity of filing reply and defence in support thereof was not afforded to the appellant and initiation of ex-parte proceedings on 14.02.2012 and passing the order impugned by the Collector (Stamps) dt. 14.02.2012, in our considered view, cannot be said to be in compliance of the principles of natural justice and we are of the view that a reasonable opportunity which is expected to be afforded to a person before any adverse order is being passed against him has not been afforded in absence thereof the remedy of filing revision u/Sec. 65 of the Act remains an empty formality as their defence has not come on record.
In our considered view, order passed by the ld. Single Judge dt. 14.02.2012 in dismissing the writ petitions on the ground of availability of alternative remedy u/Sec. 65 of the Act before the Rajasthan Tax Board, in the instant case, cannot be said to be legally sustainable in law and deserves to be set aside.
Consequently, both the appeal succeeds and the orders passed by the ld. Single Judge dt. 15.10.2013 in both the appeals and all the orders passed by the Collector (Stamps), Alwar dt. 14.02.2012 are hereby quashed and set aside and the matter is remitted to the Collector (Stamps), Alwar to afford fair and reasonable opportunity of hearing to the appellant and pass orders afresh in accordance with law. However, it will not preclude the appellant from raising objections which are available to him under the law.
Let the parties may appear before the Collector (Stamps), Alwar on 25.05.2015 at 11:00 AM and on the said date, the appellant shall submit their reply, pursuant to the notices u/Sec. 51 and 51(2) of the Act dt. 20.12.2011 issued from office of the Collector (Stamps), Alwar and it is expected from the Collector (Stamps) to decide the matter within one month of their appearance. However, the parties are at liberty to avail remedy against the order to be passed by the Collector (Stamps) available under the law.