Madhya Pradesh High Court
Mukesh Kumar Jain vs Krishna Builders And Developers on 20 May, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 20 th OF MAY, 2024
REVIEW PETITION No. 551 of 2024
BETWEEN:-
MUKESH KUMAR JAIN S/O LATE SHRI S C JAIN, AGED
ABOUT 62 YEARS, R/O FLAT NO.709, MUSKAN PLAZA,
SHATAVDIPURAM, MR 4 ROAD, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMITABH GUPTA - ADVOCATE)
AND
1. KRISHNA BUILDERS AND DEVELOPERS
THROUGH PARTNER SHRI SHANKAR
MANCHHANI S/O LATE MOHANDAS
MANCHHANI, AGED ABOUT 49 YEARS, R/O
RAJENDRA MARG, OPPOSITE RAILWAY STATION,
BESIDES STATE BANK OF INDIA, JABALPUR
(MADHYA PRADESH)
2. COLLECTOR OF STAMPS, COLLECTOR OFFICE,
JABALPUR (MADHYA PRADESH)
3. JABALPUR DEVELOPMENT AUTHORITY,
JABAPUR THROUGH ITS CEO, CIVIC CENTRE,
MARHATAL, JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE
WITH SHRI ANUJ AGRAWAL - ADVOCATE)
(RESPONDENTS NO.2 AND 3/ STATE BY SHRI GIRISH KEKRE -
GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
At the outset, raising an objection in respect of locus of petitioner,
learned senior counsel for respondent No.1 has submitted that the petitioner has
no locus to file this review petition challenging the final order dated 23.01.2023
passed in W.P. No.15281 of 2021 for the reason that the petitioner was neither
a necessary nor a proper party to challenge the final order passed by this Court
in said petition preferred by the petitioner (respondent No.1 herein). He has also
submitted that the petitioner, in any manner, cannot be said to be an aggrieved
person in respect of an order which was the subject-matter of W.P. No.15281
of 2021 passed on 23.01.2023. Thus, considering the submissions made by
learned senior counsel for respondent No.1, this review petition is being heard
only on the count of locus of the petitioner to file this review petition.
2. This is a review petition filed under Order 47 Rule 1 and Section 114 of
the Code of Civil Procedure [hereinafter referred to as 'C.P.C.']. As per the
averments made in the petition, on the basis of a complaint made by the review
petitioner that an agreement not duly stamped was executed between
respondents No.1 and 3 on 18.03.2011, the competent authority i.e. respondent
No.2 passed an order on 18.05.2021 directing respondent No.1 to deposit the
sum of Rs.93,23,334/- within a period of thirty days. The said order was
assailed by respondent No.1 herein by filing a petition before this Court i.e.
W.P. No.15281 of 2021 pointing-out that the order passed by the authority is
contrary to law as Section 48 of the Indian Stamp Act, 1899 [hereinafter
referred to as 'the Act, 1899'], and the respective provision i.e. Section 48-B,
proviso appended thereto provide that no action under Section 48-B of the Act,
1899, shall be taken after a period of five years from the date of execution of
the instrument and also taking aid of Section 40 of the Act, 1899, which got
amended in the year 2017. This Court has finally observed that the authority
acted arbitrarily and not followed the provisions of Sections 40 and 48-B of the
Act, 1899 and passed an order in violation of principles of natural justice. It was
also pointed-out that the instrument does not fall within the ambit of Section
5(d) of Schedule I-A, as such, the writ petition was allowed.
3. The review petitioner is seeking recall of final order passed in the writ
petition saying that in the petition preferred by respondent No.1, the review
petitioner was not made party although he was a necessary party as the
authority acted upon his complaint in respect of payment of deficit stamp duty,
therefore, he should be considered to be an aggrieved person and without
making him party, the petition that has been allowed by this Court, suffers from
non-joinder of necessary party, as such, he has filed this review petition seeking
recall of the order and also an opportunity to be heard.
4. Learned counsel for the petitioner has tried to substantiate that the
provisions of Sections 48-B and 33 of the Act, 1899, if read in consonance,
then it makes the picture clear that proviso appended with Section 48-B does
not provide any such limitation from the date of execution of instrument, but it
is from the date of knowledge. However, this Court is not inclined to enter into
the said area of submissions made by learned counsel for the petitioner because
the Court is first adjudicating the objection raised by respondent No.1 about the
locus of the petitioner.
5. Learned counsel for the petitioner has submitted that as per the provisions
of Order 47 Rule 1 of C.P.C., it is clear that any person considering himself to
be aggrieved with an order, can file review petition. According to learned
counsel for the petitioner, since complaint was made by the review petitioner
and the authority passed an order on his complaint, therefore, in a petition
challenging the said order of authority, the petitioner was a necessary party and
if he has not been impleaded so, the petitioner can be considered to be an
aggrieved person for challenging the order passed in writ petition because
ultimately the amount considered to be deficit stamp duty, which was directed
to be deposited by respondent No.1, is otherwise public money, and as such,
the petitioner has locus to file this review petition.
6. On the other hand, learned senior counsel for respondent No.1 has placed
reliance upon the judgment of the Supreme Court in the case of Union of India
& Another Vs. Azadi Bachao Andolan & Another reported in (2004) 10
SCC 1, wherein the order of High Court was subject-matter before the
Supreme Court in which the High Court has quashed the circular issued by the
Central Board of Direct Taxes issuing some instructions to the Chief
Commissioners/Director General of Income Tax, and was challenged by the
petitioner in a Public Interest Litigation. The Supreme Court has observed as
under:-
"61. The High Court seems to have heavily relied on an assessment order made by
the assessing officer in the case of Cox and Kings Ltd., drawing inspiration therefrom. We
are afraid that it was impermissible for the High Court to do so. An assessment made in the
case of a particular assessee is liable to be challenged by the Revenue or by the assessee by
the procedure available under the Act. In a public interest litigation it would be most unfair to
comment on the correctness of the assessment order made in the case of a particular
assessee, especially when the assessee is not a party before the High Court. Any
observation made by the Court would result in prejudice to one or the other party to the
litigation. For this reason, we refrain from making any observations about the correctness or
otherwise of the assessment order made in Cox and Kings Ltd. Needless to say, we
decline to draw inspiration therefrom, for our inspiration is drawn from principles of law as
gathered from statutes and precedents."
7. Learned senior counsel for respondent No.1 has further submitted that as
per the observation made by the Supreme Court, once an order of assessment
is passed, the same can be challenged either by the petitioner or by the revenue
or assessing authority. He has also relied upon the decision passed by the
Culcutta High Court in WPA No.20581 of 2022 parties being Millennium
Projects Private Limited & Others Vs. State of West Bengal & Others , wherein
the Court has observed as under:-
"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."
8. In the case at hand, the petitioner made a complaint that an agreement
dated 18.03.2011 executed between respondent No.1 and Jabalpur
Development Authority was not duly stamped and suffers from deficit stamp
duty. The Collector of Stamps, Jabalpur, passed an ex parte order on
18.05.2021 giving reference of Section 40 of the Act, 1899 and also giving
reference of Section 5(d) of Schedule I-A saying that the document falls under
Clause-5(d) of Schedule I-A, and as such, 2% stamp duty of the market value
of the land is required to be paid, which came to Rs.46,61,667/- and also
penalty over the same. The said order was assailed in the writ petition, which
was allowed by this Court.
9. So far as the contention of learned senior counsel for respondent No.1
that once an order of assessment is passed, the same can be challenged either
by the petitioner or by the revenue or assessing authority, is concerned,
Division Bench of this Court at Indore in Writ Petition No.20397 of 2023
[Narayan Singh & Another Vs. State of Madhya Pradesh & Others]
decided on 14.09.2023, has determined the question of locus following the view
taken by the Division Bench in W.P. No.18387 of 2020 [M.P. Karmacharai
Congress Vs. State of M.P. & Others]. However, the view taken in W.P.
No.18387 of 2020 has also been affirmed by the Division Bench in Writ
Appeal No.64 of 2021 observing as under:-
"It is settled proposition of law that only a person who has suffered or suffers
from legal injury can challenge the act/action/order etc. in a Court of law. There is no
dispute that the rights under Article 226 of the Constitution of India can be enforced
only by an aggrieved person, except in the case where the writ prayed for is for
Habeas Corpus or quo warranto.
Another exception in the general rule is the filing of a writ petition in public
interest. Who can said to be a person aggrieved, has been considered by the Supreme
Court in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra and
others (2013) 4 SCC 465, wherein the Supreme Court has observed :-
9. It is a settled legal proposition that a stranger cannot be permitted
to meddle in any proceeding, unless he satisfies the Authority/Court, that he
falls within the category of aggrieved persons. Only a person who has suffered,
or suffers from legal injury can challenge the act/action/order etc. in a court of
law. A writ petition under Article 226 of the Constitution is maintainable either
for the purpose of enforcing a statutory or legal right, or when there is a
complaint by the appellant that there has been a breach of statutory duty on the
part of the Authorities. Therefore, there must be a judicially enforceable right
available for enforcement, on the basis of which writ jurisdiction is resorted to.
The Court can of course, enforce the performance of a statutory duty by a
public body, using its writ jurisdiction at the behest of a person, provided that
such person satisfies the Court that he has a legal right to insist on such
performance. The existence of such right is a condition precedent for invoking
the writ jurisdiction of the courts. It is implicit in the exercise of such
extraordinary jurisdiction that, the relief prayed for must be one to enforce a
legal right.
Infact, the existence of such right, is the foundation of the exercise of the said
jurisdiction by the Court. The legal right that can be enforced must ordinarily be the
right of the appellant himself, who complains of infraction of such right and
approaches the Court for relief as regards the same. (Vide : State of Orissa v. Madan
Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC
728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR
1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR 1996 SC 2736; and
Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors.,
(2009) 2 SCC 784).
10. A legal right, means an entitlement arising out of legal rules. Thus, it
may be defined as an advantage, or a benefit conferred upon a person by the
rule of law. The expression, person aggrieved does not include a person who
suffers from a psychological or an imaginary injury; a person aggrieved must
therefore, necessarily be one, whose right or interest has been adversely
affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co.
of New York, AIR 1974 SC 1719; and State of Rajasthan & Ors. v. Union of
India & Ors., AIR 1977 SC 1361).
The status of the petitioner in the present case is that of complainant, thus at
the most, he could have led the evidence as witness, but he cannot claim the
possession of adversarial litigant. The complainant cannot be the party to the lis.
Further, the petitioner/Union cannot be permitted to meddle in the administrative
matter to dictate the transfer order, which does not affect him. A legal right is an
averment of entitlement arising out of law. Thus a person who raises a grievance must
show that he has suffered some legal injury [vide (2012) 4 SCC 407 Ravi Yashwant
Bhoir Vs. District Collector, Raigad and others].
In the present case, apart from stating that he was the complainant, the
petitioner has not shown that any of his statutory or legal right has been affected.
In view of the aforestated legal position, the petitioner has no locus to file this
petition. The right to avail a remedy under the law is the right of every citizen but
such right cannot extend to misuse the judicial process."
[Emphasis supplied]
10. Thus, I am also of the opinion that in the present case, the petitioner can
neither be considered to be a necessary party nor a proper party. Once a
complaint is made to a particular authority against any illegal action or conduct
and if cognizance is taken by the said authority and any order is passed, then
that order cannot be assailed by the complainant saying that he is a necessary
party and he should be also impleaded. Once the authority has acted upon the
complaint made by the complainant and took action, then that action can be
assailed only by an aggrieved person. The Division Bench of this Court in the
case of Narayan Singh (supra) has very categorically observed as to who could
be considered to be an aggrieved person. It is very categorically observed that
the expression 'person aggrieved' does not include a person who suffers from a
psychological or an imaginary injury, but on the other hand, it is observed that a
person aggrieved must, therefore, necessarily be one whose right or interest has
been adversely affected or jeopardized.
11. Here in this case, the order of assessment was set-aside in view of the
requirement of Section 48-B of the Act, 1899. Once the authority has taken
cognizance upon a complaint and passed any order, then complainant's role and
his grievance is ended as the authority has already taken an action upon his
complaint, therefore, filing a petition before the High Court by an aggrieved
person i.e. assessee making assessing authority as a party, fulfills the
requirement of law and as such, the present petitioner being a complainant
cannot be considered to be an aggrieved person, as such, in my opinion, the
petitioner has no locus to challenge the order passed by this Court in W.P.
No.15281 of 2021 only on the ground that he being a complainant ought to have
been made a party and should have been heard by the writ Court.
12. In view of the above, this review petition is dismissed on the ground of
locus of the petitioner.
(SANJAY DWIVEDI)
JUDGE
PKP
