IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.3.2010
CORAM
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT PETITION NO.4233 OF 2010
AND
M.P.NOS.1 AND 2 OF 2010
Nirmala Kumari ... Petitioner
Vs.
1. The Special Deputy Collector (Stamps)
Collector Office
Vellore 9.
2. The Sub Registrar
Sub Registrar Office
Arakkonam
Vellore District.
3. The Tahsildar
Arakkonam Taluk
Vellore District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari calling for the records of the third respondent in his notice Na.Ka.C4/61/2004, dated 9.7.2004 and quash the same.
For Petitioner : Mr. G. Jeremiah
for Mr. J.Malik Jalal
For Respondents : Mr. R. Neelakandan, G.A.
O R D E R
The prayer in the writ petition is to quash the notice dated 9.7.2004, which is a notice issued under the Revenue Recovery Act , directing the petitioner to pay a sum of Rs.1,06,486/- as additional stamp duty, which was fixed under Section 47-A(1) of the Indian Stamp Act, 1899, in respect of Document No.491/1996, on the file of the Sub Registrar Office, Arakkonam.
2. The learned counsel for the petitioner submits that the petitioner was not served with any order passed under Section 47-A(1) of the Indian Stamp Act, 1899 fixing the additional stamp duty as Rs.1,06,486/-. It is stated in the notice that the notice is issued under the Revenue Recovery Act based on the order passed under Section 47-A(1) of the Indian Stamp Act, 1899.
3. When such a specific plea is made by the learned counsel for the petitioner about the non service of the order passed under Section 47-A(1) of the Indian Stamp Act, 1899, the learned Government Advocate was directed to take notice on behalf of the respondents and directed to get instructions. Today, the learned Government Advocate produced the instructions given by the first respondent, wherein it is stated that the said notice was issued under the Revenue Recovery Act based on the order passed by the first respondent dated 14.6.2002 and insofar as the service of the order, it is stated that the order has been despatched on 14.6.2002 to the petitioner giving a direction to the petitioner to file appeal within 60 days to the Inspector General of Registration, Chennai as per Rule 9 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968, if the petitioner is aggrieved. The copy of the order passed on 14.6.2002 is also produced before me, wherein there is a rubber stamp stating that “the order was despatched on 14.6.2002”. There is neither acknowledgment of the receipt of the order dated 14.6.2002 is mentioned, nor any postal acknowledgment is produced before me. Rule 15 deals with service of orders to the parties.
” 15. Manner of service of notice and orders to the parties.- Any notice under rule 4 or order under rule 4 or 7 shall be served in the following manner, namely:-
(a) in the case of any company, society or association of individuals, whether incorporated or not, be served-
(i) on the secretary or any director or other principal officer of the company, society or association of individuals, as the case may be; or
(ii) by leaving it or sending it by registered post acknowledgment due addressed to the company, society or association of individuals as the case may be at the registered office, or if there is no registered office, then at the place where the company, society or association of individuals as the case may be, carries on business.
(b) in the case of any firm, be served-
(i) upon any one or more of the partners; or
(ii) at the principal place at which the partnership business is carried on, upon any person having control or management of the partnership business at the time of service.
(c) in the case of a family, be served upon the person in management of such family or of the property of such family, in the manner specified in clause (d).
(d) in the case of an individual person, be served-
(i) by delivering or tendering the notice or order to the person concerned or his Counsel or authorised agent; or
(ii) by delivering or tendering the notice or order to some adult member of the family; or
(iii) by sending the notice or order to the person concerned by registered post acknowledgment due; or
(iv) if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence or business of the person concerned.”
4. In view of the said Rule, service of the order, has to be proved. The respondents are having only a proof of sending the order dated 14.6.2002 and not having the proof of receiving the order by the petitioner. In such circumstances, the petitioner was justified in not filing the appeal against the order dated 14.6.2002 before the Inspector General of Registration, Chennai. Rule 9 of the said Rule says the aggrieved person can file appeal before the Inspector General of Registration only on receipt of the order passed by the Special Deputy Collector, Stamps. Rule 9 reads as follows:-
” 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:
Provided that in so far as an order passed by the Collector between the commencement of the Indian Stamp (Tamil Nadu Amendment) Act, 1998 (Tamil Nadu Act 1 of 2000) and ending with the 9th March, 2001 is concerned the said period of two months shall be reckoned from the 9th March, 2001.”
As there is no proof available to establish the service of the order, impugned order is set aside granting liberty to the first respondent to serve a copy of the order dated 14.6.2002 to the petitioner by registered post with acknowledgment due so that the petitioner can avail the remedy of filing appeal against the said order within 50 days before the Inspector General of Registration. The first respondent is directed to send a copy of the order dated 14.6.2002 to the petitioner by registered post within two weeks from the date of receipt of a copy of this order.
5. The learned counsel for the petitioner prayed for return of the document, which is in the custody of the second respondent bearing Document No.491/1996 registered on 9.4.1996. Since the petitioner is aggrieved against the order passed by the first respondent dated 14.6.2002, and the petitioner is willing to file an appeal against the said order before the Inspector General of Registration within the stipulated time on receipt of the order dated 14.6.2002, the second respondent is directed to release the document on the following conditions, which are usually imposed by this Court in similar matters.
“i) The Registering Authority while releasing the documents shall make necessary endorsement on the original document to the effect that the proceedings under section 47-A of the Act are pending.
ii) The Registering Authority shall make necessary entries in the register maintained regarding the pendency of 47-A proceedings in respect of the documents subject matter of the
registration so as to reflect the same in the Encumbrance Certificate for the benefit of the purchasers.
iii) Pending, final decision in respect of the valuation under Section 47-A(i), as per Section 47-A(4) there shall be a charge over the properties in favour of the Government in respect of the unpaid value of the stamp duty.
iv) After the entire proceedings under section 47-A are completed, on production of the original documents by the petitioner, the Registering Authority shall make necessary endorsement removing the earlier endorsement clearly stating that the entire amount of stamp duty under the documents have been paid in full and return the same.
v) After such endorsement, the Registering Authority shall make necessary entry of the completion of 47-A proceedings in the register maintained by them so as to reflect the same in the Encumbrance Certificate.”
It is open to the Inspector General of Registration to pass final orders in the appeal to be filed by the petitioner as expeditiously as possible N. PAUL VASANTHAKUMAR, J.
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and thereafter, the respondents are at liberty to proceed further based on the final orders to be passed in the appeal. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes 17.3.2010
Website : Yes
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To
1. The Special Deputy Collector (Stamps)
Collector Office
Vellore 9.
2. The Sub Registrar
Sub Registrar Office
Arakkonam
Vellore District.
3. The Tahsildar
Arakkonam Taluk
Vellore District.
W.P.No.4233 of 2010