BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/12/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.(MD)No.11987 of 2008 S.Sundharalingam ... Petitioner Vs. 1.The Tamil Nadu Chief Controlling Revenue Authority cum Inspector General, Registration Department, Santhome High Road, Chennai-28. 2.The Special Deputy Collector, [Stamp Duty] Tiruchirappalli. 3.The Sub Registrar, Office of the Sub Registrar, Aranthangi, Pudukkottai District ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the 1st respondent in his proceedings in Muu.Mu.No.42160/N4/07 dated 27.09.2008 and quash the same and to direct the 1st respondent to entertain and decide the Appeal on merits and in accordance with law. !For Petitioner ... Mr.K.Balasundharam ^For Respondents ... Mr.R.Janakiramulu Special Government Advocate :ORDER
This writ petition has been filed to call for the records relating to the
impugned order of the 1st respondent in his proceedings in Muu.Mu.No.42160/N4/07
dated 27.09.2008 and quash the same and to direct the first respondent to
entertain and decide the Appeal on merits and in accordance with law.
2. Heard Mr.K.Balasundharam, learned counsel for the petitioner and also
Mr.R.Janakiramulu, learned Special Government Pleader, who took notice on behalf
of the respondents.
3. The grievance of the petitioner as aired by the learned counsel for the
petitioner placing reliance on the averments in the affidavit accompanying the
writ petition, is to the effect the petitioner filed appeal before the appellate
authority viz., the first respondent as against the order of the second
respondent, challenging the quantum of stamp duty fixed by the second
respondent; however the first respondent rejected the appeal on the ground that
there is no provision for condoning the delay under the Tamil Nadu Prevention of
Undervaluation of Instrumental Rules. Hence, this writ petition.
4. The learned counsel for the petitioner by placing reliance on the
decision of this Court in S.Ramachandran v. Special Commissioner and
Commissioner for Land Administration, Chennai and Another reported in (2007)7
MLJ 409 would develop his arguments to the effect that in matters like this,
interlocutary application could be filed for getting the delay condoned, by
placing reliance on Section 5 of Limitation Act. An excerpt from the said
decision would run thus:
“4. In this context, it will be worthwhile to refer to the decision of the
Supreme Court reported in P.Sarathy v. State Bank of India 2000(3) CTC 552. In
that case, the suit came to be filed after the prescribed period of limitation
and the appellant therein took a stand that the period during which he was
agitating before the appellate authority constituted under the provisions of the
Tamil Nadu Shops and Establishments Act, should be excluded while working out
the period of limitation. The Supreme Court accepted the claim of the
appellant. The Supreme Court, while construing Section 14(1) of the Limitation
Act, where the expression “Court” has been used, held that the said expression
would take within its fold all those quasi-judicial authorities who have all the
trappings of the Court. Paragraph 13 of the said judgment of the Supreme Court
is relevant for our present purpose, which reads as under:
“13. In Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-op. Bank Ltd.
AIR 1967 SC 1494 : 1967 Crl.LJ 1380 this Court, while considering the question
under the Contempt of Courts Act, held that the Registrar under the Bihar and
Orissa Cooperative Societies Act was a court. It was held that the Registrar
had not merely the trappings of a court but in many respects he was given the
same powers as was given to an ordinary civil court by the Code of Civil
Procedure including the powers to summon and examine witnesses on oath, the
power to order inspection of documents and to hear the parties. The Court
referred to the earlier decisions in Bharat Bank Ltd. v. Employees, AIR 1950 SC
188 : 1950 SCR 459; Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 : 1953
SCR 730 and Brajnandan Sinha vs. Jyoti Narain, AIR 1956 SC 66 : 1955 (2) SCR
955. The Court approved the rule laid down in these cases that in order to
constitute a court in the strict sense of the term, an essential condition is
that the court should have, apart from having some of the trappings of a
judicial tribunal, power to give a decision or a definitive judgment which has
Finality and Authoritativeness which are the essential tests of a judicial
pronouncement”.
5. If the principles set out in the said paragraph are applied to the
facts of this case, it can be safely held that the jurisdiction exercisable by
the first respondent as a revisional authority would satisfy all the
requirements that have been set out in the above referred to decision of the
Supreme Court. Even under Section 5 of the Limitation Act, the expression used
is only “Court” and not a “Civil Court”. Therefore, it can be safely held that
there is every jurisdiction vested in the first respondent to condone the delay
involved in preferring the revision petition by invoking Section 5 of the
Limitation Act.
6. Having regard to the said legal position, it is just and proper that
the petitioner is permitted to move the first respondent by way of an
application under Section 5 of the Limitation Act seeking for condonation of the
delay in filing the revision petition by adducing the reasons which prevented
the petitioner from filing the revision within the prescribed period of 30 days.
Accordingly, while setting aside the order impugned in this writ petition, and
permitting the petitioner to file appropriate application for condonation of
delay, along with the revision petition, the first respondent is directed to
dispose of the petitioner’s application for condonation of delay, in accordance
with law and pass appropriate orders before entertaining the petitioner’s
revision petition and to decide the same on merits. The petitioner shall re-
present the revision petition along with the application for condonation of
delay within two weeks from the date of receipt of a copy of this order”.
5. No contrary opinion is forthcoming from the learned Government Advocate
and there is also nothing to show that any appeal was filed by the Government as
against the precedent cited supra by the petitioner. Hence, I am of the
considered opinion that the first respondent has to consider the interlocutary
application on merits, by invoking Section 5 of the Limitation Act.
Accordingly, the matter is remitted back to the first respondent to consider the
application for condoning the delay on merits.
6. The learned counsel for the petitioner would make a further submission
to the effect that pending such appeal, the original sale deed may be ordered to
be returned after making necessary endorsements as contemplated in the decisions
of this Court. An excerpt of the decision of this Court in B.Rajappa and
another v. The Special Deputy Collector (Stamps), Madras and others reported in
2002(3) CTC 544, is extracted here under for ready reference:
“While appreciating the anxiety expressed on behalf of the State by the
learned Advocate General, this Court directs that:-
i) It is open to the Registering Authority to affix a seal, while
releasing the original deed or conveyance or any other document indicating that
a reference is pending under Section 47-A with respect to under-valuation and
assessment of Stamp Duty payable, as and when the proceedings reach finality,
the same shall be intimated to the person who is liable to pay stamp duty
demanding payment of deficit Stamp Duty payable on the instrument.
ii) The Registrar to make corresponding entries under Sections 54, 55 of
the Registration Act, 1908, in the Register of indexes as to pendency of
proceedings under Section 47-a.
iii) On completion of adjudication as to the under-valuation by the
competent authority as well as appeal or revision, if any, thereof, and
depending upon the ultimate decision, the said authorities to recover deficit
stamp duty according to law.
iv) Till such proceeding reaches finality and deficit is paid, there will
be a charge for the deficit stamp duty, which is the subject matter of transfer
or conveyance.
v) On payment of deficit stamp duty, if any payable, the Registrar may
once again, on production of the original deed of transfer, make appropriate
entry and recording the additional stamp duty paid and release of charge and
also make consequential entries in the registers/indexes maintained under
Sections 54, 55, etc., of the Registration Act”.
1.Accordingly I further direct that in the event of appeal being numbered, the
original document shall be released after making necessary endorsements.
2.
8. With the above directions, this Writ Petition is disposed of. No
costs.
dp/smn
To
1.The Tamil Nadu Chief Controlling
Revenue Authority cum Inspector General,
Registration Department,
Santhome High Road,
Chennai-28.
2.The Special Deputy Collector,
[Stamp Duty]
Tiruchirappalli.
3.The Sub Registrar,
Office of the Sub Registrar,
Aranthangi,
Pudukkottai District