Writ petition challenging refusal to initiate prosecution for stamp duty evasion. Court held petitioner lacks locus standi as transaction complete and no intent to evade duty found, dismissing petition.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 234 OF 2009
Sudhakar Pandit Patil
...Petitioner
VERSUS
The State of Maharashtra & others
...Respondents
Shri B.R.Warma, advocate for the petitioner Shri S.D.Kaldate, A.P.P.for respondent nos. 1 and 2 S/Shri M.G.Mustafa & A.G.Ansari, advocates for resp.nos. 3 & 5. Shri M.G.Mustafa, advocate for respondent no.4
CORAM : NARESH H. PATIL AND
SHRIHARI P.DAVARE, JJ.
DATE OF RESERVING THE ORDER : 30.07.2009 DATE OF PRONOUNCING THE ORDER : 05 .08.2009
ORAL ORDER : (Per Shrihari P. Davare, J.)
1 Perused.
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2 The petitioner has filed the present Writ Petition praying that the impugned communication/reply, dated 20/24.11.2008 (Exh.’C’), issued by respondent no.2, may be set aside and respondent no.2 be directed to institute prosecution against the parties to the gift deed annexed herewith at Exh. ‘A’ in respect of Plot Nos. 23 and 24 of Survey No. 147 of Sillod town under Section 59 of the Bombay Stamp Act, 1958 for evasion of stamp duty.
3 It is the contention of the petitioner that respondent no.4 herein minor through natural guardian mother respondent no.5 executed an unregistered gift deed in favour of donee, namely, Shaikh Akeel Shaikh Yasin i.e. respondent no.3 herein in respect of Plot Nos. 23 and 24 out of Survey No. 147 of Sillod town on 26.11.2007 on stamp paper of Rs.50/- only allegedly with a view to evade the stamp duty. Even on the basis of the said gift deed necessary mutation entries have taken place in the records of the Municipal Council. It is the contention of the petitioner that the gift deed requires registration as per Section 17(1)(a) of the Registration Act, 1908 and Section 59 of the Bombay Stamp Act, 1958 attracts penalty for execution of instrument not duly stamped. Hence, the petitioner contends that on noticing the said illegality and evasion of stamp duty, the petitioner made representation dated 26.9.2008 to respondent no.2 for initiation
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of criminal action under Section 59 of the Bombay Stamp Act against the parties to the said gift deed. However, respondent no. 2 replied to the said representation by reply dated 20/24.11.2008 and stated that since the said document is not registered with the Registration Officer, no action can be initiated, and accordingly, respondent no.2 refused to take action as per Section 59 of the Bombay Stamp Act, 1958.
4 Being aggrieved by the said impugned communication/reply dated 20/24.11.2008 issued by respondent no.2, the petitioner herein has preferred the present Writ Petition praying to quash and set aside the said communication/reply and also for issuance of directions to respondent no.2 to initiate prosecution against the party to the said gift deed under Section 59 of the Bombay Stamp Act, 1958 for evasion of stamp duty.
5 Learned counsel Shri Mustafa appearing for respondent no.4 contended that as per Section 147 of theMulla’s Principles of Mahomedan Law, writing is not essential to the validity of a gift either of movable or immovable property and as per Section 149 of the Mulla’s Principles of Mahomedan Law, three ingredients are essential for valid gift, namely, (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject
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of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete.
6 Learned counsel took us to the gift deed in question at page 11 of the present compilation and pointed out that there is declaration of the gift by donor to the donee regarding the gift plot Nos. 23 and 24 which was accepted by the donee and possession of the gift plots was already handed over by donor to the donee and, therefore, the said gift is complete as per Sections 149 and 150 of the Mulla’s Principles of Mahomedan Law.
7 Moreover, the learned counsel for respondent no.4 also pointed out that the language of the said gift deed nowhere reflects the intention of the parties to evade the stamp duty and, therefore, it is submitted that the provisions of Section 59 of the Bombay Stamp Act would not be attracted in the instant case.
8 It is further submitted by the learned counsel for respondent no.4 that the said gift deed has already been acted upon and the said gift plot nos. 23 and 24 have been transferred in the name of donee in the records of Municipal Council and, therefore, the communication/reply sent by respondent no.2 dated 20/24.11.2008 has been issued rightly and there is no question of issuance of directions as prayed for by the petitioner.
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Besides, the learned counsel for respondent no.4 also submitted that the petitioner is neither concerned nor his interests are affected by the alleged transaction of gift deed and, therefore, he has no locus standi to file the present petition.
9 Heard the learned respective counsel for the parties.
10 Considering the rival submissions, at the out set, apparently there is substance in the contention of the respondent in respect of locus of the petitioner, since neither his interest is affected nor he is concerned with the execution of the gift deed by donor in favour of donee in respect of plot nos. 23 and 24 out of Survey No. 147 of Sillod town as described herein above.
11 In the said context, reliance can be very well placed on the following observations made by the Honourable Apex Court in the case reported at 2006 ALL MR (Cri) 2930 (S.C.), Rajiv Ranjan Singh ‘Lalan’ & Anr. Vs Union of India and ors. [K.G.Balakrishnan, Dr. A.R.Lakshmanan & S.H.Kapadia, JJ.] :-
“ Public interest litigation meant for the benefit of the lost and lonely and it is meant for the benefit of those whose social backwardness is the reason for no access to the Court. PILs are not meant to advance the political gain and
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also settle their scores under the guise of a public interest litigation and to fight a legal battle. The liberty of an accused cannot be taken away except in accordance with the established procedure of law under the Constitution, criminal procedure and other cognate statutes. PIL is totally foreign to pending criminal proceedings. “
12 Moreover, admittedly gift deed in question is between muslim persons and apparently the ingredients of Sections 149 and 150 of the Mulla’s Principles of Mahomedan Law, as described herein above, appear to have been complied with and the contents of the gift deed reflect that the possession of the gift deed has been already handed over by donor to donee. Moreover, the said gift deed also appears to have been already acted upon since the name of donee has been entered into the records of Municipal Council.
13 So also, apparently it cannot be said from the contents of the said gift deed that the parties to the gift deed had intention to evade the stamp duty, which is the primary ingredient of Section 59 of the Bombay Stamp Act, 1958.
14 In the circumstances, we are of the considered view
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that this is not a fit case to exercise the powers of extra ordinary jurisdiction under Article 226 of the Constitution of India to entertain the present Writ Petition, and hence, present Writ Petition stands disposed of as dismissed.
(SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.)
dbm/crwp234.09
3 issues framed by the court
Whether the petitioner has locus standi to file a public interest litigation regarding an unregistered gift deed between Muslim parties.
Whether there is evidence of intention to evade stamp duty under Section 59 of the Bombay Stamp Act, 1958 in the instant case.
Whether this Court can exercise extraordinary jurisdiction under Article 226 of the Constitution of India to direct initiation of prosecution.
Colour shows how this judgement treated each authority
Rajiv Ranjan Singh 'Lalan' & Anr Vs Union of India and ors.Referred¶32
2006 ALL MR (Cri) 2930
3 provisions across 3 enactments
Sudhakar Pandit Patil
The State of Maharashtra
Shrihari P.Davare
NARESH H. PATIL
SHRIHARI P.DAVARE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court