JUDGMENT
D. Murugesan, J.
1. The short question that arises for consideration in this appeal is as to whether the Special Deputy Collector (Stamps), before determining the market value of the property covered under a sale deed, should give an opportunity to the person presenting the instrument for registration and conduct an enquiry?
2. The appellant had purchased Nanja land measuring about 1.49 acres comprised in R.S. No. 31/5B at Avaniyapuram in Madurai District. The sale deed was registered in the office of the Sub Registrar (Madurai-IV), Madurai on 27.11.2002 in Document No. 5412/2002. As the second respondent, the registering authority, had reason to believe that the market value of the property of which is the subject matter of the sale has not been truly set forth in the instrument, referred the said instrument to the Collector for determination of the market value of such property and the proper duty payable thereon. On receipt of the said reference, the first respondent, the Special Deputy Collector (Stamps), Madurai passed the impugned order on 25.10.2004 fixing the market value at Rs. 28,55,794/- and directed the appellant to pay the difference of stamp duty of Rs. 3,32,254/-.
3. The appellant questioned the said order in the writ petition on the ground that he was not afforded any opportunity before the market value was determined and correspondingly the fixation of the duty payable thereon. The learned single Judge dismissed the writ petition on the ground that the appellant had not availed the appeal remedy provided under Section 47-A(5) of the Indian Stamp Act, 1899 and therefore the writ petition is not maintainable. The said order in the writ petition is questioned in this appeal.
4. We have heard the learned Counsel appearing for the appellant and the learned Special Government Pleader appearing for the respondents.
5. At the outset, we would like to point out that it is a general rule that the discretionary remedy of writ jurisdiction will not be exercised when there is a statutory remedy of appeal, as has been held by the Apex Court in Karnataka Chemical Industries v. Union of India . However, there are certain exceptions to the said general rule. For example, if the proceedings are ultra vires of the Constitution or such proceedings are issued by an officer who is incompetent to issue such proceedings or the orders are passed with a foreclosed mind by pre-judging the issue and for violation of the principles of natural justice, the writ petitions can be entertained and disposed of irrespective of the existence of alternative remedy. (See Baburam Prakash Chandra Maheswari v. Zilla Parishad, Muzzafarnagar , Pizzeria Fast Foods Restaurant P.Ltd. v. Commissioner of Commercial Taxes, Chennai 2005 Writ L.R.234 (DB), Digivision Electronics Ltd. v. Indian Bank and Ors., Chennai 2005 (3) L.W. 269 (DB).
6. Sub-section (1) of Section 47-A of the Indian Stamp Act contemplates that when the registering authority entertains any doubt as to the value given in the document, after registering the document, he may refer the matter to the District Collector for determination of the market value of the property and the proper duty payable thereon. On receipt of such reference, as per Sub-section (2) of Section 47-A, the Deputy Collector (Stamps) shall first afford an opportunity to the person who presented the document and thereafter hold an enquiry in such manner as may be prescribed by the rules. The procedures are contemplated under the provisions of the Tamil Nadu Stamp (Prevention of Under Valuation of Instruments) Rules, 1968. Sub Rule (1) of Rule 4 of the said Rules contemplates that on receipt of a reference under Sub-section (1) of Section 47-A from a registering officer, the Collector shall issue a notice in Form I to every person by whom and to every person in whose favour the instrument has been executed informing him of the receipt of the reference and asking him to submit his representation, if any, in writing to show that the market value of the property has been truly set forth in the instrument and also to produce all evidence that he has in support of his representation within 21 days from the date of service of the notice. Sub-rule (3) of Rule 4 contemplates that the Collector may for the purpose of his enquiry call for any information or record from any public office, officer or authority under the Government or the local authority, as well can inspect the property after due notice to the parties concerned. Sub-rule (4) of Rule 4 contemplates that after considering the representation, if any, received from the person to whom notice under Sub-sule (1) has been issued, and after examining the records and evidence before him, the Collector shall pass an order in writing provisionally determining the market value of the properties and the duty payable by indicating clearly in the order the basis on which the provisional market value was arrived at.
7. Rule 5 also contemplates the principles for determination of the market value and Rule 6 contemplates the procedure after arriving at provisional market value and thereafter, as per Rule 7, he should pass final order determining the market value. In fact, Rule 8 empowers any party to an instrument to appear either in person or through an advocate or an authorised agent. Only after the above procedures are followed, the final order determining the market value shall be made and in the event any person is aggrieved by such order, he may prefer an appeal under Sub-section (5) of Section 47-A read with Rule 9 of the Rules. The procedures enumerated under the above Rules are not an empty formality, as the procedures were prescribed in terms of Sub-section (2) of Section 47-A, which mandates that for the purpose of disposal of the reference, an enquiry is a pre-condition and for the said purpose, an opportunity of being heard to the person who has presented the instrument is also a necessity. In the event the said procedure was not followed and the person who has presented the instrument was not given any notice of hearing, then the determination of the market value cannot be considered to be one made after following the provisions of Sub-section (2) of Section 47-A as well as the Rules, which we have referred to above. In such event, the order determining the market value of the proper duty payable is liable to be set aside.
8. Coming to the facts of this case, as it was argued by the learned Counsel for appellant that no opportunity of being heard was given and no enquiry was conducted as contemplated under Sub-section (2) of Section 47-A, we directed the learned Special Government Pleader to produce the records. Accordingly, the learned Special Government pleader produced the records and we find in the original order of the first respondent dated 25.10.2004 stating that the said order was communicated on 25.10.2004. Except the said endorsement, there is nothing to indicate in the file as to whether the appellant was served with the notice as per Sub-section (2) of Section 47-A of the Act. In the absence of the same, the contention of the learned Counsel for the appellant that the appellant was not heard and no opportunity was given must necessarily be accepted. That apart, from the file, we do not find any enquiry as contemplated under Sub-section (2)of Section 47-A read with Rules 4 to 8 of the Rules was conducted. Failure to follow the above would vitiate the order of the Special Deputy Collector (Stamps).
9. In that view of the matter, we find every merit in the contention of the learned Counsel for appellant. Accordingly, the writ appeal is allowed and the order dated 25.10.2004 passed by the first respondent is set aside. The matter is remitted back to the first respondent for fresh disposal in accordance with the provisions of Sub-section (2) of Section 47-A of the Indian Stamp Act. It is made clear that the appellant is entitled to an opportunity of hearing and the first respondent shall also conduct an enquiry as required under the said section before any order is passed determining the market value and fixing the stamp duty payable. No costs. Consequently, M.P.(MD) No. 2 of 2006 is closed.