Subhash Chand vs State Of U.P. & Others
2017 Latest Caselaw 3571 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 6
 
Case :- WRIT - C No. - 17468 of 2003
 
Petitioner :- Subhash Chand
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- M.A. Haseen,M.L.Rai,S.K.Upadhyay,V.K. Upadhyaya
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Rejoinder affidavit filed today is taken on record.

Heard Sri M.L. Rai, learned counsel for the petitioner and the learned Standing Counsel for the State-Respondents.

The petitioner in the writ petition is seeking quashing of the order dated 10.02.1998 and 08.05.2002 passed in proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899).

The petitioner purchased the property in dispute through a registered sale deed dated 22.07.1995 for a consideration of Rs.22,00,000/- on which stamp duty of Rs.3,19,000/- was paid. On an allegation that there was deficiency of stamp duty, proceedings under the Act, 1899 were initiated. The petitioner filed his objections. The Stamp Authority by his order dated 10.02.1998 has calculated the deficiency of stamp duty of Rs.91,785/-. Aggrieved by the order of the Stamp Authority dated 10.02.1998 the petitioner filed Revision No.831 of 1998-99 which has also been rejected by the Chief Controlling Revenue Authority by his order dated 08.05.2002.

The first submission of the learned counsel for the petitioner is that the Sub-Registrar made a reference of deficiency of stamp duty in exercise of powers under Section 47-A (4) of the Act, 1899 even though Section 47-A (4) does not contemplate any such provision, therefore, the entire proceedings are null and void and bad in law. The second submission of the learned counsel for the petitioner is that the construction of the house property was very old which has not been considered by the Stamp Authority. The third submission of the learned counsel for the petitioner is that the market value has not been correctly applied.

So far as the first submission of the learned counsel for the petitioner is concerned, the same must necessarily be rejected because proceedings can be initiated at the behest of anybody who brings to the notice of the Collector about deficiency of stamp duty as stated in sub-section 3 of section 47-A of the Act, 1899. Mere quoting of a wrong provisions of law will not render the proceedings null and void if exercise of power and the proceedings initiated are otherwise in accordance with law. The law in this regard is well settled in the case of P. Balakotaiah v. Union of India and Others, AIR 1958 SC 232. Para 10 of the judgment reads as extracted hereunder:

"10. It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form. ....................."

In (1974) 4 SCC 396 (H.L.Mehra v. Union of India and Others) the Supreme Court in paragraph 8 has followed its earlier judgment in P. Balakotaiah (supra).

In 1993 Supp (1) SCC 583 (Union of India v. Khazan Singh) the Supreme Court in para 6 has held as under:

"6. We have heard learned counsel for the parties. Rule 25(1)(e) read with Rule 25(1)(f) of the rules gives very wide powers to the Appellate Authority. It has the power to remit the case to the disciplinary authority for further inquiry and pass such other orders as it may consider proper or deem fit in the circumstances of the case. The Appellate Authority did not mention in its order as to under which Sub-rule of Rule 25(1) the appeal was being disposed of. The tribunal while noticing Rule 25(1)(e) of the rules and conceding that the Appellate Authority could remand the case to the disciplinary authority for further inquiry under the said sub-rule, grossly erred in setting aside the order on the concession of the learned Counsel to the effect that the Appellate Authority had passed the order under Rule 25(1)(d) of the Rules. It is settled proposition of law that when the exercise of power can be justified under any provision of law then non-mention of the said provision in the order cannot invalidate the same. We are of the view that the appellate authority validly exercised its powers under Rules 23(1)(e) and 25(1)(f) of the rules. Mr. K.R. Nagaraja learned Counsel appearing for the respondent Khazan Singh stated that Rule 23(1)(e) would only be attracted if departmental inquiry was held by the disciplinary authority and since in this case no inquiry was held the Appellate Authority had no power under the said rule to remand the case. We do not agree. The powers under the rules are very wide enabling the Appellate Authority to do justice in a given case. No prejudice has been caused to Khazan Singh because the defence setup by him can only be examined in a regular enquiry."

In (1994) 2 SCC 558 (State of Karnataka v. Krishnaji Srinivas Kulkarni and Others) the Supreme Court in paragraph 6 has held as under:

"6. As seen, admittedly the respondents as on March 1, 1974 did not have possession of the lands. The company lessee continued to hold the land. By operation of Section 6 though its lease had expired by efflux of time, the lease did not stand terminated. In other words, his possession remains juridical possession under the Act. Therefore, on its being prohibited to remain in possession, the company was enjoined under Section 79-B (2) to furnish declaration and accordingly he did furnish to the Tehsildar, though mistakenly done by quoting Section 66 (1). Quotation of a wrong provision does not take away the jurisdiction of the authorities to inquire under Section 79-B (3) of the Act. The Tribunals, therefore, had jurisdiction to inquire into and publish the declaration as enjoined under Section 79-B (3) of the Act. The demised 600 acres land held by the company stood vested in the State free of encumbrances."

In (2003) 9 SCC 336 (State of Uttaranchal and Others v. Sidharth Srivastava and Others) the Supreme Court in paragraph 20 has held as under:

"20. It is evident from the above order that the consideration was made in regard to the action to be taken on the basis of the recommendations of the Public Service Commission, U.P., for appointments in various departments. It is also stated therein that after the constitution of the State of Uttaranchal, the reservation policy has been changed and there will be various miscellaneous legal difficulties in giving appointments to the candidates, list of which has been sent by the Government of Uttar Pradesh in accordance with the recommendations of UPPSC. In conclusion, it is said that after thorough consideration, it has been decided that the candidates recommended by the Uttar Pradesh Public Service Commission may not be appointed in various Department of the Government of Uttaranchal. it is true that there is no express reference to Section 78 (4) of the Act in the aforementioned order. But reading the order as a whole, it gives an impression that after the Constitution of the State of Uttaranchal, there has been change in the reservation policy; there were various miscellaneous and legal difficulties in giving appointments to the candidates selected by the UPPSC as forwarded by the Government of Uttar Pradesh and that after thorough consideration, a decision was taken not to appoint the candidates recommended by the UPPSC in various departments of the Government of Uttaranchal. This being the position, it appears to us that while passing the order, the provision of Section 78 (4) and other provisions of the Act and the relevant constitutional provisions were kept in mind when there was thorough consideration before taking a decision as stated in the order. Mere non-reference or omission to mention of Section 78 (4) in the order, does not take away its legal effect. The appellants have only elaborated the reasons to support the said order. It is not possible to agree that the appellants tried to justify the aforementioned order by subsequent fresh reasons. The High Court committed an error in holding that the reasons cited by the State Government of Uttaranchal in the order dated 29.8.2001 were not valid relying on the decision of this Court in Asha Kaul v. State of Jammu & Kashmir and Ors. [(1993) 2 SCC 573], in the light of the facts of the present case and in view of what is stated above. This apart, in view of the discussion made above and having regard to clear constitutional and legal position that the selections made by UPPSC are not binding on the State of Uttaranchal on the basis of the facts that are not in dispute, the argument advanced on behalf of the respondents being devoid of merit is rejected.

In (2004) 2 SCC 267 (M.T. Khan and Others v. Government of A.P. And Others) the Supreme Court in paragraph 16 has held as under:

"16.We are, however, unable to agree with the submission of Mr. Har Dev Singh to the effect that the appointments of Additional Advocate Generals cannot be traced to the source of the State's power under Article 162 of the Constitution of India. It is now well-settled principle of law that non-mentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power therefor exists."

Therefore, the first submission of the learned counsel for the petitioner is rejected.

So far as the second submission of the learned counsel for the petitioner that the construction of the house property was very old which has not been considered by the Stamp Authority is concerned, the same must necessarily be rejected for the reason that the petitioner himself does not disclose as to how old the said construction was nor has he lead any documentary evidence in that regard. The order of the Deputy Commissioner/Stamp Authority discloses that on spot inspection it is noticed that the house property was found to be about 8-10 years old. In this view of the matter, in the absence of any documentary evidence to the contrary the finding of the Stamp Authority cannot be ignored.

So far as the third submission of the learned counsel for the petitioner that market value has not been correctly applied, it is noticed that in the impugned order the Stamp Authority has clearly held that at the relevant point of time the circle rate prevalent in the area as determined by the District Magistrate as on 07.06.1995 was Rs.2,000/- per sq.m. according to which the valuation of the house property would come to Rs.16,94,000/- and the value of the constructed portion would come to Rs.11,38,870/-. The value of the property as disclosed in the sale deed has been computed in the Valuer Report treating the rate of land to be Rs.1,000/- per sq.m. This is below the circle rate determined by the District Magistrate. Here also nothing has been shown to the Court that the petitioner had lead any evidence to disapprove the circle rate as determined by the District Magistrate on 07.06.1995. Since the sale deed is itself dated 22.07.1995, therefore, the circle rate as determined by the District Magistrate, in my opinion, was correctly applied by the Stamp Authority. In the sale deed the petitioner has himself calculated the value of the property to be about Rs.22,00,000/- whereas the value on the basis of the circle rate comes to Rs.28,32,870/- on which the stamp duty payable is Rs.4,10,785/-. Since the petitioner has already paid Rs.3,19,000/- as stamp duty, the deficiency of stamp duty has been determined at Rs.91,785/-.

These findings have been upheld by the Chief Controlling Revenue Authority. Therefore, on a conspectus of facts and the law laid down by the Supreme Court, I do not find any illegality or infirmity in the impugned orders.

The writ petition lacks merit and is accordingly dismissed.

Order Date :- 24.8.2017

N Tiwari