Allowed

Indiraraje Bhairavsinh Ghorpade v. the Deputy Inspector General of Registration and Dy. Controller of Stamps and Ors.

Bombay HC27 Aug 2014WP/3078/2009

Case brief

AI extract

What is this about?

The court held that there was a violation of natural justice as the appellate authority passed an order dismissing the appeal six months after the hearing without affording a fresh opportunity. The writ petition was allowed subject to the petitioner depositing Rs. 60 Lakhs, upon which the impugned order will be set aside and the matter remanded for rehearing.

What did the court decide?

Impugned order dated 21 November 2008 set aside; petitioner to deposit Rs. 60 Lakhs; appeal remanded to respondent for decision within four months.

Indiraraje Bhairavsinh Ghorpade Vs the Deputy Inspector… — Cheque Dishonour | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3078 OF 2009

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Smt. Indiraraje Bhairavsinh Ghorpade ..Petitioner

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versus

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The Deputy Inspector General of Registration and Dy.Controller of Stamps, Pune Division, Pune & ors. ..Respondents

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Mr. G.S. Godbole i/b Manjiri S. Parasnis for the Petitioner. Ms P.S. Cardozo, AGP for the Respondents.

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CORAM : M. S. SONAK, J.

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Judgment reserved on : 21 August 2014 Judgment pronounced on : 27 August 2014.

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JUDGMENT :-

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1] Heard Mr. G.S. Godbole , learned counsel for the petitioner and Ms P.S. Cardozo, learned AGP for the respondents.

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2] For the order which I propose to make, it is not necessary to advert to the facts, in any greater details.

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3] Suffice to state that the present petition impugns the following

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orders:

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(a) The judgment and order dated 4 August 2007 made by the Joint District Registrar Class-I and Collector of Stamps, Pune City, which requires the petitioner to pay deficit stamp duty of Rs.1,80,15,150/- together with penalty of 2% per month from the date of execution of the documents in question, i.e., 23 April 1999 till the date of payment;

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(b) The judgment and order dated 21 November 2008 made by the Deputy Inspector General of Registration and Deputy Controller of Stamps, Pune Division, dismissing appeal against aforesaid order dated 4 August 2007 ; enhancing deficit stamp duty to Rs.2,10,43,156/- together with penalty as aforesaid.

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4] Mr.Godbole , learned counsel for the petitioner, at the outset submitted that on 26 May 2008, when the matter was fixed for hearing before respondent No.1, i.e., appellate authority, advocate for the petitioner was present, but had to leave on account of a bout of diarrhea. Without afford of any opportunity to the said advocate, the impugned judgment and order dated 21 November 2008 came to be passed almost six months later. Mr. Godbole submitted that it is practice before the appellate authority that the dates of hearing are intimated to the parties or their advocates by way of notice. Since no notice was received by the petitioner or his advocate, after he had to leave on 26 may 2008, the petitioner and her advocate were under bonafide impression that further date of hearing was yet to be scheduled and would be intimated. Accordingly, the petitioner was surprised at the receipt of judgment and order dated 21 November 2008, by which the petitioner's appeal was dismissed and further even the amount of deficit stamp duty was enhanced. This according to the petitioner constitutes gross violation of the principles of natural justice and fair play.

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5] Mr. Godbole, by placing reliance upon remission Notification dated 31 October 2003 contended that no stamp duty was payable upon Sale deed dated 23 April 1999 by which the petitioner transferred her property to the Pune Municipal Corporation (PMC) in consideration of

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PMC allotting Transferable Development Rights (TDR) to the petitioner. Mr. Godbole contended that remission Notifications are always retrospective in operation, which position is made clear by certain executive instructions issued by the appropriate authorities.

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6] Mr. Godbole, invited my attention to the third proviso to Section 32A(4) of the Maharashtra Stamp Act 1958 (said Act) to contend that in no case the amount of penalty shall exceed double the deficit portion of the stamp duty. In the present case, the impugned orders dated 4 August 2007 and 21 November 2008, have clearly lost sight of this statutorily imposed ceiling.

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7] Mr. Godbole finally contended that the appellate authority, in the appeal preferred by the petitioner, acted wholly without jurisdiction in enhancing the deficit stamp duty from Rs.1,80,15,150/- to Rs.2,10,43,156/-.

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8] In my judgment, it is really not necessary to advert to each of the aforesaid contentions, particularly because I am satisfied that there is indeed some violation of the principles of natural justice, in the matter of appellate authority passing the impugned judgment and order dated 21 November 2008.

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9] In paragraph (2V) of the petition, the petitioner has clearly averred about the presence of her advocate before the appellate authority on 26 May 2008 and the circumstances in which he was constrained to leave the hearing. There is no serious challenge to such averment in paragraph 26 of the affidavit-in-reply filed by the appellate authority except to state as follows:

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26] …...................I state that with malafide intention to prolong hearing of Appeal No.5 of 2007, application for adjournment on false and frivolous ground was given and the Petitioner was tried each time to prolong matter.”

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10] The roznamas, which have been produced on record also suggest that the advocate for the petitioner was indeed present before the appellate authority on 26 May 2008 and that a request was made for adjournment. Besides, even if it is to be assumed that some hearing took place on 26 May 2008, admittedly the impugned order dismissing the appeal came to be passed after a period of almost six months, i.e., 21 November 2008. In the aforesaid circumstances, it is only proper that the petitioner or her advocate ought to have been furnished an effective opportunity to put forth their case before the appellate authority, particularly as several contentious issues arise in the matter.

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11] Ms Cardozo, learned AGP for the respondents, however submitted that the impugned order dated 21 November 2008 itself records that opportunity of hearing was offered to the petitioner on 10 December 2007, 14 January 2008 and finally on 26 May 2008. Ms Cardozo submitted that this matter which concerns the revenue of the State and therefore, it is in public interest that such matters are disposed of with utmost despatch. Instead, from the record, it appears that the petitioner was attempting to prolong the hearing by citing one reason after another.

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12] True, the matter concerns the revenue of the State. However, that by itself is no reason to deny parties effective opportunity to avoid a right of appeal conferred upon them by the statute itself. The reason cited by the advocate for the petitioner on 26 May 2008, cannot be styled as

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either malafide or frivolous. The entries in the roznama are not very clear on the aspect of hearings on previous dates. There is some substance though, in the contention of Ms Cardozo that the petitioner or her advocate ought not to have presumed that adjournment had been granted or failed to even make enquiries with the appellate authority as to the status of the appeal. Taking this into consideration and in order to safeguard the interest of the revenue, it is appropriate that the petitioner is put to some terms, so that there is no delay on the part of the petitioner in prosecuting her appeal with due diligence. Accordingly, opportunity was furnished to the learned counsel for the parties to suggest suitable terms, to which the petitioner could be put to.

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13] Mr. Godbole, learned counsel for the petitioner, upon taking instructions, made a statement that the petitioner would be willing to deposit an amount of Rs.60 Lacs with respondent No.1 (appellate authority), should this Court set aside the impugned appellate order dated 21 November 2008 and remand the appeal for fresh consideration. The offer, in the circumstances, is quite reasonable and can be accepted.

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14] Before, I pass this order, reference is required to be made to the circumstance that respondent No.1-appellate authority, which is undoubtedly a quasi judicial authority has chosen to file a detailed affidavit in this Court in order to justify its own order. Except where any personal allegations like bias or malafides have been made against the quasi judicial authority, it is neither necessary nor proper that such quasi judicial authorities files affidavits in order to support or justify their own orders. The orders made by such authorities must speak for themselves and there is no question of supporting the same by supplementing reasons or otherwise by means of affidavits. In case of Syed Yakoob v. K.S.

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Radhakrishnan & ors. - AIR 1964 SC 477 (1) , the Supreme Court made the following observations which are quite apposite in this context.

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“19. Mr. Ranganadham Chetty who appears for respondents 2 and 3 has asked for his costs. We do not think this request can be accepted. It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the authorities to be represented by lawyers in Court. In ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they are not interested in the merits of the dispute in any sense, and so, their representation by lawyers in such proceedings in wholly unnecessary and even inappropriate. That is why we direct that respondents 2 and 3 should bear their own costs.”

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(emphasis supplied)

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15] The reason why filing of affidavits by quasi judicial authorities to justify their own orders, can prove counter productive, is illustrated in this case itself. Mr. Godbole, urged that that the petitioner cannot expect fair treatment from the appellate authority and the affidavit tendered is indicative of closed mind. Fortunately, the apprehension expressed, may not be justified in the instant case since the officer who has made the impugned order is reported to have long since retired. The deponent of the affidavit dated 5 March 2009, is the Town Planner in the office of respondent No.1 (appellate authority), who is not actually involved in the adjudication proceedings. In any case, it is made clear that such deponent should not associate himself with the hearing of the petitioner's appeal, consequent upon remand.

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16] The impugned appellate order dated 21 November 2008, is liable to be set aside on the limited ground that there has been failure of natural justice. No opinion is expressed upon the contentions of the

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parties, which are kept open to be adjudicated by the appellate authority, in accordance with law.

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17] In the result, I make the following order :

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(a) The petitioner, as undertaken by her, shall deposit with the Deputy Inspector General of Registration and Dy.Controller of Stamps, Pune Division (respondent No.1) an amount of Rs.60 Lacs, in the following manner :

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(i) Rs.30 Lacs within a period of two weeks from today;

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(ii) The balance amount of Rs.30 Lacs within a period of four weeks from the date of first deposit as aforesaid.

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(b) Upon deposit of the entire amount of Rs.60 Lacs as aforesaid within stipulated period, the impugned appellate order dated 21 November 2008 shall stand set aside and the Deputy Inspector General of Registration and Dy.Controller of Stamps, Pune Division shall rehear and decide in accordance with law, the petitioner's appeal against the order dated 4 August 2007 made by the Joint District Registrar Class-I and Collector of Stamps, Pune City;

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(c) The Deputy Inspector General of Registration and Dy.Controller of Stamps, Pune Division shall hear and decide the appeal as aforesaid, as expeditiously as possible and in any case within a period of four months from the date of deposit of Rs.60 Lacs by the petitioner;

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(d) The Deputy Inspector General of Registration and Dy.Controller of Stamps, Pune Division shall ensure that the amount of Rs.60 Lacs once deposited, is invested in a Nationalised Bank and such deposit shall abide by the final orders to be made in the appeal;

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(e) In case the appellate authority decides against the petitioner, the order so made, shall not be given effect to, for a period of six weeks from the date of communication thereof to the petitioner or her advocate. The petitioner, to clearly furnish the name and address of her advocate for the service of the order;

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(f) All contentions of the parties are expressly kept open for adjudication by the appellate authority, in accordance with law;

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(g) The appellate authority to decide the appeal within the period prescribed, uninfluenced by the order dated 21 November 2008 as also the averments in the affidavit made by Mr. V.N. Mavchi, Town Planner, who is not to associate himself with the appeal proceedings;

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(h) Rule is made absolute to the aforesaid extent.

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(i) There shall be no order as to costs.

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dinesh

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Indiraraje Bhairavsinh Ghorpade v. the Deputy Inspector General of Registration and Dy. Controller of Stamps and Ors.

Case brief

What is this about?

What did the court decide?

Indiraraje Bhairavsinh Ghorpade v. the Deputy Inspector General of Registration and Dy. Controller of Stamps and Ors.

Case brief

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What did the court decide?

What the court decided

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