Madras High Court
C.Shanmugasundaram vs The Chief Revenue Controlling ... on 15 July, 2021
W.P.No.13747 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 15..07..2021
CORAM
THE HON'BLE MR.JUSTICE V.BHARATHIDASAN
Writ Petition No.13747 of 2021
and
W.M.P.No.14585 of 2021
C.Shanmugasundaram
... Petitioner
-Versus-
1.The Chief Revenue Controlling Officer
cum Inspector of General of Registration,
100, Santhome High Road,
Chennai 600 028.
2.The District Revenue Officer (Stamps),
Collectorate,
Coimbatore 641 018.
3.The Sub Registrar,
Bhavani SRO,
Erode District.
... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying
to issue a Writ of Certiorarified Mandamus calling for the records relating to the
impugned order made in Mu.Mu.No.25636/N2/2020 dated 15.10.2020 by the 1st
respondent and to quash the same and for a consequential direction to the 1st
respondent to decide the petitioner's appeal petition dated 28.08.2021 on merits.
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For Petitioner : Mr.N.Manokaran
For Respondent(s) : Mr.K.M.D.Muhilan,
Government Advocate
for RR1 and 2
ORDER
[This matter has been heard through video conference]\
This writ petition challenges the order dated 15.10.2020 passed by the 1st
respondent rejecting the appeal dated 28.08.2020 filed by the petitioner as
against the order of the 2nd respondent directing the petitioner to pay the deficit
stamp duty of Rs.5,10,000/- on the sale deed dated 02.11.2015 registered as
Doc.No.6134/2015 executed in favour of the petitioner by Tmt.Gomathi and
others.
2. The case of the petitioner is that he had purchased a landed property
measuring an extent of 2 acres and 10 1/2 cents situated in R.S.No.113/2, Old
S.No.52/3 of Nallagoundanpalayam Village, Erode Taluk and District under a
sale deed dated 02.11.20215 (registered as Doc.No.6134 of 2015) from one
V.Gomathi and others. Alleging that the property was undervalued, the matter
had been referred by the 3rd respondent to the Collector (Stamps) under Section
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W.P.No.13747 of 2021
47-A(3) of The Stamp Act. The Collector (Stamps), in turn, after holding an
enquiry passed an order directing the petitioner to pay the deficit stamp duty of
Rs.5,10,000/- by order dated 13.02.2017. Challenging the same, the petitioner
fled an appeal to the 1st respondent and the 1st respondent, by order dated
15.10.2020, rejected the same solely on the ground that appeal ought to have
been filed within a period of two months from the date of order of the 2nd
respondent and whereas the appeal was filed with a delay of more than 3 years
and as such the appeal was barred by limitation. Hence, the present appeal.
3. The learned counsel for the petitioner submitted that after the order
passed by the 2nd respondent, the petitioner fell ill and therefore, he could not
prefer appeal in time and there had occurred delay. But, without considering the
cause for the delay, the 1st respondent has simply rejected the appeal.
4. The learned Government Advocate appearing for the respondents on the
other hand submitted that under Rule 9 of The Tamil Nadu Stamp (Prevention of
Under Valuation of Instruments) Rules, 1968, an appeal should have been filed
within a period of two months, but, in the instant case, the appeal was filed after
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three years and that too, without an application seeking to condone the delay in
filing the appeal. Therefore, the 1st respondent was right in rejecting the appeal
on the ground of delay.
5. The learned Government Advocate further submitted that as against the
order passed by the 1st respondent, the petitioner ought to have filed an appeal
under Section 47-A(10) of the Stamps Act to the High Court and he cannot
exercise the writ jurisdiction of this court.
6. Admittedly, the appeal was filed with inordinate delay. The Collector
(Stamps) had passed an order on 13.02.2017 directing the petitioner to pay the
deficit stamp duty. As rightly putforth by the learned Government Advocate, as
per Rule 9 of The Tamil Nadu Stamp (Prevention of Under Valuation of
Instruments) Rules, 1968, an appeal should have been filed within two months.
However, it is the settled law that Section 5 of the Limitation Act is not excluded
in matters relating to filing of appeal under Section 47-A(5) of the Stamp Act.
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7. A Division Bench of this court in Indira Devi v. Inspector General of
Registration, 2005 (1) CTC 733 has held as follows:-
"5.There is no dispute that as per Rule 9(5)(a) of the
said Rules, an appeal under Section (10) of Section 47-A
shall be preferred within two months from the date of final
order passed under Sub-section (5) or Sub-section (6) of
Section 47-A. Though the relevant rule says that an appeal
has to be preferred within two months from the date of final
order passed, in the absence of specific exclusion regarding
application of Section 5 of the Limitation Act, the learned
counsel appearing for the petitioner drawing our attention
to the decision of a Division Bench of this Court (Principal
Seat) dated 31.3.2004 made in C.M.A. (NPD) Nos. 896 and
897 of 2004 would submit that the appeal filed by the
appellant before the first respondent is well within time. In
the said decision, the Division Bench had occasion to
consider the similar claim under the very same provision
i.e. Rule 9(5)(a) of the Rules referred to above. After
referring to a judgment of the Supreme Court dealt with in
a similar circumstance, the Division Bench has concluded
thus:
"We, therefore, hold that the date of the order
under Section 47-A for the purpose of deciding the
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limitation for filing appeals should be construed to
mean the date of the service of the order. Hence, the
date of order under Rule 9 of the said Rules shall be
construed to mean the date of service of the order for
the purpose, of determining the time limit to prefer the
appeals."
8. This was followed by another Division Bench in M.Kaliammal v. The
Special Deputy Collector (Stamps) Salem-Namakkal-Dharmapuri and
Krishnagiri at Salem and another, [2005 (3) CTC 529].
9. It is the contention of the learned counsel for the petitioner that even
though a period of limitation of two months has been prescribed under the Rule,
1968, an there is no specific exclusion of provision of Section 5 of The
Limitation Act to the matters relating to filing of an appeal under Section 47-
A(5) of the Stamp Act and as such Section 5 of the Limitation Act gets attracted.
In those circumstances, the 1st respondent ought to have given an opportunity to
the petitioner to file an appeal seeking to condone the delay in filing the appeal
along with an affidavit explaining the delay. However, without considering the
legal position in this regard, the 1st respondent has simply rejected the appeal by
way of non speaking order.
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10. On a careful perusal of the available records, it could be seen that the
petitioner filed an appeal without an application seeking to condone the delay in
filing the appeal. However, in the affidavit filed in support of the writ petition it
has been stated by the petitioner that he was ill and bed ridden for a long time
and as such he was not able to file appeal in time.
11. Considering the fact that provision of Limitation Act has not not
excluded in matters relating to filing of appeal under Section 47-A(5) of The
Stamp Act, this court is of the considered opinion that an application to condone
the delay can very well be entertained by the appellate authority and in order to
secure the ends of justice, the 1st respondent ought to have given an opportunity
to the petitioner for filing an application seeking to condone the delay explaining
the cause for the delay. Therefore, this court is of the view that the order
impugned in the writ is liable to be set aside and the matter is required to be
remitted to the 1st respondent for fresh consideration.
In the result, this writ petition is allowed in the following terms:
(i) the petitioner is directed to file an application seeking condonation of
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delay in filing the appeal along with an affidavit explaining the cause for the
delay within a period of two weeks from the date of receipt of a copy of this
order;
(ii) on filing such application, the 1st respondent is directed to consider the
same on merits and in accordance with law and dispose of the same within a
period of four weeks thereafter and proceed with further in accordance with law
depending upon the out come of the delay condonation application;
(iii) No costs. Consequently, connected WMP is closed. No costs.
Index : yes / no 15..07..2021
Internet : yes / no
Speaking / Non Speaking Order
kmk
To
1.The Chief Revenue Controlling Officer cum Inspector of General of
Registration, 100, Santhome High Road, Chennai 600 028.
2.The District Revenue Officer (Stamps), Collectorate, Coimbatore 641 018.
3.The Sub Registrar, Bhavani SRO, Erode District.
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V.BHARATHIDASAN.J.,
kmk
Writ Petition No.13747 of 2021
15..07..2021
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