Sri Malchira C Nanaiah vs State Of Karnataka
2021 Latest Caselaw 6200 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 15TH DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

    WRIT PETITION NO.15511 OF 2021(GM-ST/RN)
BETWEEN:

1. SRI. MALCHIRA C NANAIAH,
   S/O ALTE SRI. MALACHIRA CHITIAPPA,
   AGED ABOUT 70 YEARS,

2. SMT. M N NEELAMMA,
   W/O SRI. MALCHIRA C NANAIAH,
   AGED ABOUT 65 YEARS,

  BOTH ARE R/AT NITOOR VILLAGE
  AND POST VIA BALELE,
  SOUTH KODAGU - 571 219.
  SENIOR CITIZEN BENEFIT NOT CLAIMED.
                                         ...PETITIONERS
(BY SMT. RUPA RON, ADVOCATE FOR
    SRI. KIRAN V RON, ADVOCATE)

AND:

1. STATE OF KARNATAKA,
   DEPARTMENT OF REVENUE,
   REPRESENTED BY PRINCIPAL SECRETARY,
   M S BUILDING, DR. B.R. AMBEDKAR VEEDHI,
   BANGALORE - 560 001.

2. DISTRICT REGISTRAR AND
   DEPUTY COMMISSIONER OF STAMPS,
   NO.580/2A, C H -44/2A, 1ST FLOOR,
   DEEWANS ROAD, LAKSHMIPURAM,
   CHAMRAJA MOHALLA,
   MYSORE - 570 004.
                                        ... RESPONDENTS
(BY SRI. B V KRISHNA, AGA)

    THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 09.11.2020 PASSED BY THE R2 AT
ANNEXURE-A AND ETC,
                               2

    THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

                          ORDER

The short grievance of the petitioners is against the

alleged levy of excess penalty under Chapter IV of the

Karnataka Stamp Act, 1957, on the instruments in

question. Learned counsel for the petitioner vehemently

submits that in terms of Section 39 of the Act, the penalty

levying authority ought to have exercised the discretion

judiciously and this having not been made, the impugned

order is vulnerable for challenge.

2. Learned Additional Government Advocate

appearing for the respondent opposes the writ petition

contending that orders made in discretion are not

amenable to challenge in writ jurisdiction constitutionally

vested in this Court; he also submits that the impugned

order reflects the reasons for the decision and therefore,

indulgence of the Writ Court is not warranted.

3. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

is inclined to grant indulgence in the matter for the

following reasons:

a) The provisions of Sections 38 & 39 are cognate in

nature and therefore, they have to be construed in the light

of each other; text & context of these two provisions vest

abundant discretion in the authorities in the matter of

imposition of penalty where the instrument is not duly

stamped; discretion contemplated under these provisions

is not of "muhgal discretion"; it only means according to

the rules of reason & justice; the impugned order is not

animated with this approach and therefore, is liable to be

voided.

b) The vehement contention of learned AGA that the

mistake lies with the petitioners themselves in occasioning

the passing of impugned order and therefore, they cannot

turn around and lay a challenge thereto, does not impress

this Court; in the matter of imposition of stamp duty, law

leaves no discretion, is true; however, in a Welfare State,

the power to impose penalty lies on a different footing and

a host of elements enter discretionary decision making

process.

In the above circumstances, this writ petition

succeeds; a Writ of Certiorari issues quashing the

impugned order; matter is remitted for fresh consideration

in accordance with law after notice to the parties. All

contentions are kept open.

Time for deciding the remand is eight weeks from the

date a copy of this judgment is handed to the answering

respondent and if delay is brooked, he may be required to

pay penal costs after an appropriate application being

moved in this regard.

Now, no costs.

Sd/-

JUDGE

Bsv