Calcutta High Court (Appellete Side)
Others vs State Of West Bengal And Others on 1 September, 2023
D/L. 25.
September 1, 2023
MNS.
WPA No. 20581 of 2022
+
CAN 1 of 2022
Millennium Projects Private Limited and
others
Vs.
State of West Bengal and others
Mr. Rudraman Bhattacharyya,
Mr. Shuvashish Sengupta,
Ms. Amrita panja Moulick
... for the applicant.
Mr. Debdut Mukherjee,
Ms. Nairanjana Ghosh,
Mr. Anurag Modi,
Ms. Sayani Chatterjee
...for the writ petitioners/opposite parties.
Re: CAN 1 of 2022 (addition of party).
1. Learned counsel for the applicant contends
that the applicant is the owner of the property,
the assessment of stamp duty regarding
which has been assailed in the main writ
petition and, as such, a necessary party.
2. It is argued that the document-in-question is a
purported agreement for sale, against the
assessment of stamp duty of which the
present writ petition has been preferred.
Learned counsel, by placing reliance on
certain annexures to the application for
2
addition of party, argues that the writ
petitioners have suppressed several relevant
facts regarding to the subject matter of dispute
before the Collector.
3. It is contended that the document was sent for
impoundment in connection with an arbitral
proceeding.
4. Before the Collector, at the time of
assessment, an impression was given by the
writ petitioners that the property was bounded
by a 4 feet wide passage, whereas it is
actually butted by 40 feet wide passage. That
apart, several other suppressions of materials
fact have been perpetrated by the writ
petitioners, it is argued.
5. In any event, apart from being the owner of
the property, it is argued that the present
applicant has a right to be impleaded as a
respondent in the present writ petition, since
the contentions of the applicant in the arbitral
proceeding have a direct nexus with the
subject matter of the present writ petition. It is
contended that the crux of the dispute before
the Arbitrator is the valuation of the property,
of which the assessment of stamp duty is an
essential component.
6. It is argued that the outcome of the writ
petition, either way, will directly affect the
applicant and, as such, the applicant is a
necessary party.
7. Controverting such arguments, learned
counsel for the writ petitioners cites a
judgment of a learned co-ordinate Bench of
this Court in the case of Narayan Chandra
Garai and others Versus Matri Bhandar Pvt.
Ltd. and another reported at AIR 1974
Calcutta 358, where the learned Single Judge
expounded the propositions of law with regard
to necessary and proper parties, vis-à-vis
Order 1 Rule 10 of the Code of Civil
Procedure.
8. Learned counsel for the writ petitioners further
contends that the present applicant is neither
a necessary nor a proper party for the
purpose of the present writ petition.
9. Insofar as the appeal under Section 47A of
the Indian Stamp Act, 1899 (in short "the Act
of 1899) (as amended in West Bengal) is
concerned, it is argued that it is premature to
apply the said provision, since the same
arises only where the document is presented
for registration.
10. Learned counsel appearing for the applicant,
in reply, contends that the applicant is a
'concerned person' within the contemplation of
Section 47B of the said Act of 1899. Hence, in
the event the writ petition is allowed, the
applicant shall have no forum to ventilate her
grievance, since there is no further appellate
authority, if the order of the Collector is
reversed by this Court.
11. In any event, it is contended that an appeal
lay under Section 47A of the Act of 1899 for
the petitioners, which debars the
maintainability of the writ petition itself.
12. Upon hearing learned counsel for the parties,
the essential consideration is whether the
applicant is a necessary or proper party
herein. The proposition as laid down in
Narayan Chandra Garai (supra) is well settled,
insofar as the fact that a person may be
eventually affected by the judgment or in the
execution is not a sufficient ground for
impleading him as a party. As held in the said
judgement, the eventual interest of a party in
the fruits of litigation cannot be held to be a
true test of impleading parties according to the
Code of Civil Procedure. A compulsion other
than one based on positive rule of law upon
the plaintiff to litigate against a person not of
this own choice must be unfair.
13. There is no quarrel with the proposition as laid
down in the said judgment. The question is
whether the same tests are satisfied by the
present applicant.
14. It is well-settled that the assessment of stamp
duty is a matter of revenue between the
authorities and the person who deposits the
stamp duty.
15. No third party has any right of being heard in
such assessment procedure.
16. Although learned counsel for the applicant has
placed reliance on Sections 47A and 47B of
the Act of 1899, learned counsel for the writ
petitioners is justified in arguing that the said
stage has not yet come. There is a clear
distinction between an appeal under Section
47A and the stage of assessment under
Sections 33 and 35 of the Act of 1899.
17. Section 47A clearly stipulates that where the
registering officer appointed under the
Registration Act, 1908, has, while registering
any instrument, as specified therein, reason to
believe that the market value of the property
has not been truly set forth in the instrument,
the entire provision comes into play. Section
47B, again, refers back to an adjudication
under Section 47A, thereby connecting the
right of appeal to an assessment under
Section 47A, which arises only upon the
registering officer being in bona fide doubt,
within the contemplation of the Registration
Act, 1908.
18. However, as opposed to the said stage, the
present adjudication is within the
contemplation of Section 33 of the Act of
1899. Nothing in Section 33 of the Act of
1899 confers any right on a third person to be
heard before such assessment is made. The
clear language of Section 33 of the Act of
1899 elucidates that every person having by
law or consent of parties authority to receive
evidence etc, before whom any instrument,
chargeable, in his opinion, with duty, is
produced or comes in the performance of his
function, shall, if it appears to him that such
instrument is not duly stamped, impound the
same.
19. Going a bit back, Section 31 of the Act of
1899 contemplates adjudication of proper
stamp duty and provides that when any
instrument, whether executed or not and
whether previously stamped or not, is brought
to the Collector, and the person bringing it
applies to have the opinion of that officer as to
the duty with which it is chargeable in
compliance of formalities, the Collector shall
determine the duty, if any, with which, in his
judgement, the instrument is chargeable. For
such purpose, the Collector may require to be
furnished with an abstract of the instrument
and other documents, as indicated in Section
31(2) of the Act of 1899.
20. Thereafter, the Collector shall issue a
certificate under Section 32 of the Act of 1899.
21. On the other hand, Section 35 provides that
no instrument chargeable with duty shall be
admitted in evidence for any purpose, without
having been duly stamped.
22. Section 38 of the Act of 1899, provides that
when the person impounding an instrument
under Section 33 has by law or consent of
parities authority to receive evidence and
admits such instrument in evidence upon
payment of penalties provided by Section 35
or of duty as provided by Section 37, he shall
send such instrument together with a
certificate in writing, stating the amount of duty
and and penalty levied in respect thereof and
shall sent such amount to the Collector or to
such person as he may appoint in his behalf.
In every other case, in sub-section (2) of
Section 38, the person so impounding an
instrument shall send it in original to the
Collector. The Collector also has a power to
refund the penalty paid under Section 38
within the contemplation of Section 39 of the
Act of 1899.
23. Thus, on a conjunctive reading of the entire
provisions pertaining to assessment of stamp
duty by the Collector, it is clearly seen that
there is no scope of giving any hearing to any
third party at any stage.
24. The present writ petition concerns the
assessment of stamp duty upon a document
being impounded and, as such, does not
leave any scope of any third party interference
at this stage.
25. Although the applicant herein may be
incidentally affected by the stamp duty being
assessed either way, since the evidentiary
value of the documents depends on being
properly impounded, nothing in the
assessment shall prevent the applicant herein
from raising the question of admissibility or
evidentiary value of the document before the
Arbitral Tribunal.
26. Be that as it may, whatever may be the rights
of the applicant herein, she is neither a
necessary nor a proper party in the present
writ petition, since the same constitutes
merely a challenge to the assessment of
stamp duty, which is a matter of revenue
between the authorities and the person who
deposits the stamp duty.
27. In such view of the matter, there is no reason,
scope or occasion to add the applicant as a
party to the writ petition.
28. Accordingly, CAN 1 of 2022, for addition of
party filed in connection with the writ petition,
is dismissed on contest.
29. There will be no order as to costs.
30. Urgent photostat certified copies of this order,
if applied for, be made available to the parties
upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)
