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Judgment
M. Jaichandren, J.—Heard Mr. C. Ramakrishna, the learned Counsel for Mr. K. Viswanath, appearing for the petitioner and Mr. V.
Manoharan, the learned Government Advocate, appearing for the respondents.
The petitioner has preferred the present writ petition praying for a writ of Certiorarified Mandamus, invoking Article 226 of the Constitution of
India, seeking to quash the notice, dated 18.8.1997, issued by the third respondent in Ref. No. I No. 20/B1/97, calling upon the petitioner to pay
a penalty of 10 times the deficit stamp duty, u/s 40(1)(b) of The Indian Stamp Act, 1899, as amended by The Tamil Nadu Amendment Act 24 of
1975, (hereinafter referred to as ''the Act'') and to direct the third respondent to register the sale deed presented, on 29.3.1996 and to return the
same after the completion of the necessary formalities.
One of the main contentions raised on behalf of the petitioner is that the third respondent had imposed the penalty of 10 times the deficit stamp
duty, by a letter, dated 18.8.1997, without giving the petitioner an opportunity to pay the deficit stamp duty and without adhering to the principles
of natural justice. It has also been submitted that the notice, dated 18.8.1997, issued by the third respondent was received by the petitioner, on
28.8.1997. By the said notice issued by the third respondent, the petitioner was directed to pay the deficit stamp duty, along with the penalty,
within a period of one week from the date of receipt of the notice. Subsequently, the efforts taken by the petitioner to pay the deficit stamp duty for
the return of the document have been unsuccessful. According to the impugned notice of the third respondent, dated 18.8.1997, the petitioner was
to pay the deficit stamp duty of Rs. 33,589/-, together with a penalty of Rs. 3,85,890/-, being 10 times the deficit stamp duty, amounting to a total
sum of Rs. 3,69,479/-.
It is stated by the learned Counsel appearing for the petitioner that when an instrument is produced before the authority concerned, he could
impound the same if it appears to the said authority that such instrument is not duly stamped, invoking the powers vested in him, u/s 33-A of the
Act. If it is found, after registration, that the proper stamp duty has not been paid for registering the said instrument, the duty or the deficit to be
paid could be recovered as arrears of land revenue, based on the necessary certificate issued by the concerned authority.
It has been further stated that Section 40 of the Act would not be applicable to the present case. Clause 2 of Section 47-A of the Act specifies
that the market value of the property and the duty payable thereon ought to be determined only after the parties concerned are given a reasonable
opportunity of being heard and after holding an enquiry in such manner as may be prescribed by the rules made under the Act. After such
determination, the persons concerned would be given an opportunity to pay the difference in the amount of duty liable to be paid, prescribing a
specific period for the payment of the amount. Any person aggrieved by such an order may appeal to such authority as may be prescribed for the
hearing of such appeal. By issuing the impugned proceedings, u/s 40(1)(b) of the Act, the third respondent has circumvented the procedures
established by law. Thus, the petitioner has been adversely affected due to the irreparable monetary loss and mental agony caused to him. The
third respondent has fixed the penalty amount without hearing the petitioner and without giving proper reasons for fixing the amount liable to be
paid by the petitioner. When there are no guidelines prescribed for the third respondent to follow, while exercising the discretionary powers vested
in him, to decide the penalty payable u/s 40(1)(b) of the Act, such a provision cannot be valid as it is arbitrary and ultra vires the constitution of
India, being contrary to the principles enshrined in Article 14 of the Indian Constitution. Without following the principles of natural justice, the third
respondent had concluded that the petitioner had under valued the instrument and had paid the deficit stamp duty with the malafide intention of
gaining unlawfully.
It is further stated that the petitioner has no alternative remedy as it is clear that the provisions of Section 56 of the Act would not be applicable
to the case of the petitioner. The Collector or the designated authority ought to have applied the provisions of Section 47-A of the Act by
conducting an enquiry, giving the petitioner a reasonable opportunity of being heard and by prescribing a specific period for the deficit stamp duty
to be paid by the petitioner, if any. Since no such enquiry was conducted before the impugned order had been passed by the third respondent, it is
without jurisdiction and therefore, it is illegal and invalid in the eye of law.
Mr. C. Ramakrishna, the learned Counsel appearing for the petitioner had placed the following decisions before this Court in support of his
contentions.
7.1. The learned senior Counsel had placed reliance on the decision of the Supreme Court in A.N. Parasuraman v. State of T.N. (1989) 4 SCC
683 to show that the determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be
delegated. The delegated authority can only be left with the task of implementing the object of a statute after the legislature lays down adequate
guidelines for the exercise of the powers enshrined therein. Relying on the said decision, the learned Counsel had submitted that the impugned
order cannot be held to be valid as the third respondent had no delegated power to pass the impugned proceedings and there are no guidelines
prescribed for the exercise of such power.
7.2. The decision of the Supreme Court in Krishna Mohan (P) LTD. v. MCD 2003 L.W. SCC. 7, had been relied on to state that delegation of
unguided and uncanalised legislative powers is invalid.
7.3. It was pointed out that the Supreme Court in Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., had held that access to justice by
way of public law remedy would not be denied when a lis involves public law character or involves a question arising out of public law functioning
on the part of the respondent and when the forum chosen by the parties would not be in a position to grant appropriate relief.
7.4. The decision of the Supreme Court in State of H.P. v. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499 had also been relied on to state that
the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience
and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction of discretion of this Court to grant
the relief, under Article 226 of the Constitution of India.
Thus, the learned Counsel appearing for the petitioner had submitted that it would be a futile exercise for the petitioner to seek his remedy against
the impugned order of the third respondent by invoking the alternative remedy alleged to be available under the law.
Per contra, Mr. V. Manoharan, the learned Government Advocate appearing for the respondents, had submitted that the impugned proceedings
is only a show cause notice asking the petitioner to submit an explanation, if any, within the period specified therein. Even otherwise the petitioner
could have availed the alternative remedy u/s 56 of the Indian Stamp Act, 1899, while challenging the impugned proceedings of the third
respondent.
The learned Government Advocate appearing for the respondents had relied on the decision of the Division Bench of this Court in Jt. Sub
Registrar-I Vs. Prasanth Chandran, , in support of his contentions. In the said case, the Division Bench of this Court had held that by a
Government Order in G.O.Ms. No. 736, Revenue, dated 15.3.1971, it was notified that all registrars and sub-registrars appointed under The
Indian Registration Act have also been notified to exercise the powers for the purpose of the various Sections of the Indian Stamp Act, 1899, as
mentioned in the said order. It has also been held that it was open to the aggrieved person to challenge the proceedings issued u/s 40(1)(b) of The
Indian Stamp Act, 1899, by approaching the Chief Controlling Revenue Authority, u/s 56 of the Act, by placing reliance on an order passed by
this Court in Tamil Nadu State Transport Corporation (Villupuram Division II) Ltd. v. C. Durai and Anr. 2005 WLR 136 wherein it was held that
even if there was a violation of natural justice, the writ petition could still be dismissed if there was an alternative remedy. The Division Bench had
also relied on the decision of the Supreme Court in U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam Karmchari Sangh 1998 (4)
SCC 268 wherein the Supreme Court had held that if there was a specific remedy available under a statute, the writ petition should not be
entertained.
The learned Government Advocate appearing for the respondents had also pointed out that in many writ petitions, which had arisen under
similar facts and circumstances, this Court had directed the authorities concerned to register the document in question and to return the same on
payment of the amount, as per the original demand. It was also held that the authorities concerned would have the liberty to challenge the order
passed by the registering authority before the appropriate forum in an appropriate manner.
It was pointed out that in the present case, the Registrar concerned had been directed to register and return the document by way of an interim
order passed by this Court following the decision of the First Bench of this Court, dated 16.12.1997, made in W.A. Nos. 1114 to 1124 of 1997.
Pursuant to the said order, the document presented by the petitioner had been registered and returned to the petitioner.
The learned Counsel appearing for the petitioner, while reiterating his contentions, had attempted to distinguish the present case from the cases
cited by the learned Government Advocate appearing for the respondents. The learned Counsel appearing for the petitioner had submitted that
there is no lis existing for the petitioner to agitate and there is no provision for an alternative remedy as contemplated by the decisions of this Court
or as stated by the learned Government Advocate appearing for the respondents. Once it is found that the third respondent has no authority or
jurisdiction to issue the impugned proceedings, and that too without following the principles of natural justice, the impugned proceedings ought to
be declared to be illegal and void and not binding on the petitioner.
Considering the submissions made by the learned Counsels appearing for the parties concerned, this Court is of the considered view that the
issues involved in the present case have been decided by the various order of this Court. The order passed by the First Bench of this Court in
W.A. Nos. 1114 to 1124 of 1997 and the order passed by the Division Bench of this Court in Jt. Sub Registrar-I Vs. Prasanth Chandran, would
be applicable to the present case as well. Even though the concept of alternative remedy has been considered to be a rule of self-imposed
limitation and it may essentially be a rule of policy, convenience and discretion and never a rule of law, once a Division Bench of this Court had
held in similar circumstances, that the aggrieved person ought to avail the alternative remedy provided by the statute, it is not open to this Court to
take a different view. In such circumstances, it is held that the writ petitioner has not shown sufficient cause or reason to interfere with the impugned
proceedings. Hence, the writ petition stands dismissed. No costs.