IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 03.09.2009
Coram
The Honourable Mr. Justice P. JYOTHIMANI
W.P. Nos.17951 and 17952 of 2009
and
M.P. Nos.1 + 1 of 2009
T.D. Rajasekaran ... Petitioner in both W.Ps.
..Vs..
1. The Inspector General,
Department of Registration,
Chennai.
2. The District Collector,
Thiruvallur.
3. The District Revenue Officer
(Stamp Duty),
O/o. The District Collector,
Chennai 1.
4. The Tahsildar,
Poonamallee Taluk,
Thiruvallur District.
5. The Sub Registrar,
O/o. the Sub Registrar,
Poonamallee Taluk,
Thiruvallur District. ... Respondents in both W.Ps.
Writ Petitions under Article 226 of The Constitution of India, praying to issue a writ of certiorari, to call for the records on the file of the third respondent herein in Na.Ka.Si.Pa.Nos.305 and 4863/95 dated 30.10.2001 and subsequently confirmed by the first respondent herein in Mu.Mu.Nos.1650 and 16489/N1/09 dated 28.5.2009 and quash the same.
For Petitioner : Mr. G. Karthikeyan
For Respondents : Mr. V. Arun,
Additional Government Pleader
O R D E R
In respect of the sale deeds executed on 23.3.1994 and 15.3.1995 respectively by which the petitioner purchased the lands for a sale consideration of Rs.25,000/- each, the proceedings under Section 47(A) of the Indian Stamp Act (hereinafter referred to as “the Act”) was initiated by the Registering Authority, 5th respondent herein on the ground that there was a suspicion about under-valuation of the property, by referring the same to the third respondent/District Revenue Officer (Stamp Duty).
2. It appears that the third respondent has passed an order on 30.10.2001 under Section 47(A)(1) of the Act, directing the petitioner to pay the deficit stamp duty of Rs.66,024/- and Rs.94,440/- respectively. The grievance of the petitioner was that no notice was served on the petitioner in Form No.1 before the third respondent proceeded with the enquiry under Section 47(A)(1) of the Act and a copy of the order dated 30.10.2001 passed by the third respondent was also not communicated to him.
3. However, sometimes, in the year 2003, there was a distraint proceedings initiated by the Tahsildar. As against the said distraint notice dated 23.10.2003, the petitioner has moved this Court by way of filing W.P. Nos.35247 and 35248 of 2003 and thereafter, it was informed that the aforesaid order under Section 47A of the Act came to be passed on 30.10.2001 itself. In those circumstances, this Court, while disposing of the said writ petitions by an order dated 11.2.2008, set aside the distraint proceedings and directed the respondents to communicate the order passed by the third respondent under Section 47A of the Act and thereafter giving liberty to the petitioner to challenge the said order in the manner known to law.
4. After the said order was passed by this Court, the petitioner, by a notice dated 3.4.2008, addressed to the District Revenue Officer (Stamp Duty), has requested the third respondent to communicate the copy of the order. It is stated that the order copy was ultimately communicated by the third respondent on 7.2.2009, that is evidenced by a covering letter of the third respondent, District Revenue Officer (Stamp Duty) addressed to the petitioner on 30.1.2009, enclosing a copy of the notice dated 30.10.2001.
5. After receipt of the said notice, the petitioner has filed an appeal before the first respondent, who is the Chief Controlling Revenue Authority, under Section 47A of the Act on 26.3.2009 and that the said appeal has been filed within two months from the date of communication of the order of the third respondent dated 30.1.2009.
6. The first respondent, being the Appellate Authority, passed the impugned order, rejecting the appeal on two grounds viz. the appeal has been filed seven years after the original order was passed by the third respondent and that the appeal has not been filed in the proper form as required under Rule 9 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968 (hereinafter referred to as “the Rules”) in the sense that the original or certified copy of the order appealed against has not been enclosed and the appeal has not been filed in the format prescribed in the Rules.
7. On a reference to the appeal stated to have been filed by the petitioner, it is seen that in the appeal, while the petitioner has raised all the points on merit in respect of the alleged under-valuation, the fact remains that the appeal has not been filed in the proper form. Rule 9(2) and (3) of the Rules contemplates the particulars to be furnished in the appeal, which are as follows:-
” 9(2) An appeal shall be made in duplicate and shall contain the following particulars namely:-
(a) full name, father’s name or husband’s name, occupation and address of the appellant:
(b) full name, father’s name or husband’s name, occupation and address of every person executing the instrument;
(c) full name, father’s name or husband’s name, occupation and address of every person claiming under the instrument;
(d) date and nature of the instrument;
(e) registration number, date of registration and name of office where the instrument was registered;
(f) name of town or village in which the property is situated together with the name of the taluk and the registration sub-districts;
(g) number and date of the Collector’s order which is appealed against;
(h) market value of the property as set forth in the instrument;
(i) market value of the property as determined by the Collector.
(3) Every appeal shall be accompanied by:–
(a) the original or certified copy of the order appealed against;
(b) the original or a certified copy of the instrument; and
(c) memo of grounds of appeal.”
8. The first reason given by the first respondent in the impugned order that the appeal has been filed seven years after the order passed by the third respondent is liable to be rejected on the face of it. It is the complaint of the petitioner that even under Section 47A(1) enquiry at the instance of the fifth respondent, there was no notice served on him and ultimately, though an order came to be passed by the third respondent on 30.10.2001, the same has not been communicated to him.
9. Rule 15 of the Rules contemplates that any notice or orders passed by the Authorities under the Act are to be served on the party concerned and the manner of service is also stated in the said Rule. It is stated that in cases where the party is individual or individual persons, the service is to be effected either by delivery or tendering the notice or order to the person concerned or his counsel or authorised agent or to some adult member of the family or to the person concerned by registered post acknowledgement due or 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.
10. But, there is nothing on record to show that the third respondent, while passing the earlier order dated 30.10.2001 under Section 47A(1) of the Act, has followed anyone of the procedure in serving the said order. It was only after the distraint notice was passed by the Tahsildar for recovery of amount under the Revenue Recovery Act on 23.10.2003, the petitioner appears to have known about the order of the third respondent dated 30.10.2001 and he has approached this Court by way of filing writ petitions in W.P. Nos.35247 and 35248 of 2003 and the same have been taken nearly five years for final decision and ultimately, by an order dated 11.2.2008, this Court has allowed the writ petitions by setting aside the distraint order with a direction to the Revenue Authorities to communicate the copy of the order dated 30.10.2001. In spite of the said order of this Court, the order of the third respondent came to be communicated to the petitioner only on 7.2.2009 and thereafter, the appeal was filed before the first respondent within sixty days i.e. on 26.3.2009. In such view of the matter, the first reason given in the impugned order that the appeal is filed after seven years is to be rejected.
11. The second reason given in the impugned order is that Rule 9(2) of the Rules has not been followed. It is true that the contents of the 9(2) of the Rules are to be followed, by filing the appeal in proper form. But, the fact remains that the purpose of the appeal under Section 47A of the Act by empowering the Chief Controlling Authority is to decide as to whether there has been any under-valuation in respect of the property or not. When that is the basic objection, because the appeal is not filed in the proper form, that itself cannot be a ground for rejecting the appeal totally.
12. On the facts and circumstances of the case, the delay having been caused not due to the conduct of the petitioner, but due to the conduct of the Authorities, who have not followed the conditions prescribed under the Act, I am of the considered view that the reasons assigned by the first respondent in the impugned order cannot be sustained and the technicality cannot stand in the way of granting substantial justice to the party.
13. In such view of the matter, the impugned order passed by the first respondent dated 28.5.2009 is set aside and the matter is remanded back to the first respondent to consider the appeal filed by the petitioner on 26.3.2009 and pass appropriate orders on merit and in accordance with law. It is made clear that the petitioner shall enclose the particulars as required under Rule 9(2) and (3) of the Rules and send to the first respondent-Appellate authority in addition to the representation, which has already been sent to him on 26.3.2009 within a period of one week from the date of receipt of a copy of this order and thereafter, the first respondent is directed to pass orders on merits and
in accordance with law expeditiously in any event within a period of twelve weeks thereafter. The writ petitions are allowed. Consequently, the connected M.Ps. are closed. No costs.
03.09.2009
Index:- Yes.
Internet:- Yes.
Office Note:-
Issue on 7.9.2009.
Office is directed to return the
original order of the third
respondent passed on
30.10.2001.
ssa.
To
1. The Inspector General,
Department of Registration,
Chennai.
2. The District Collector,
Thiruvallur.
3. The District Revenue Officer
(Stamp Duty),
O/o. The District Collector,
Chennai 1.
4. The Tahsildar,
Poonamallee Taluk,
Thiruvallur District.
5. The Sub Registrar,
O/o. the Sub Registrar,
Poonamallee Taluk,
Thiruvallur District.
P. JYOTHIMANI, J.
ssa.
W.P. Nos.17951 and
17952 of 2009 and
connected M.Ps.
03.09.2009