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State of Rajasthan Vs. Dr. Karni Singh and ors., Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 59, 103, 122, 123, 129 and 150 of 1984
Judge
Reported inAIR1986Raj84
ActsStamp Act, 1899 - Sections 47A; Rajasthan (Amendment) Act, 1982
AppellantState of Rajasthan
RespondentDr. Karni Singh and ors., Etc.
Appellant Advocate L.S. Udawat, Asst. Govt. Adv.
Respondent Advocate J.L. Purohit and; M.S. Acharya, Advs.
DispositionRevisions dismissed
Cases ReferredVitthalbhai v. Commr. Sales Tax
Excerpt:
- - the orders passed by the district judge, bikanerare, therefore, clearly without jurisdiction. in either case there is an 'interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested. an intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication......he may, after registering such instrument, send it, in original, to the collector to determine the value or consideration and to assess and charge the duty in conformity with such determination. (2) on receipt of the instrument under sub-section (1), the collector, shall after giving the partiesa reasonable opportunity of being heard and after holding an inquiry in the prescribed manner, determine the value or consideration and the duty payable thereon as if that werethe value of consideration set forth in the instrument; and if the amount of duty so determined exceeds the amount of duty already paid, the deficient amount shall be payable by the person liable to pay the duty. (3) any person aggrieved by an order of the collector under sub-section (2) may within 30 days from the date of.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. These six revisions involve identical questions. They were heard together and it will be convenient to dispose them of by a common order.

2. The facts giving rise to these revisions are identical and it would suffice here to mention the facts in State of Rajasthan v. Bikaner Hotels Private Limited, Bikaner and another (S. B. Civil Revision No. 103 of 1984).

3. Non-petitioner No. 2 Dr. Kami Singh executed a sale deed in favour of non-petitioner No. 1 M/s Bikaner Hotels Private Limited, Bikaner on March 31, 1972 in respect of the land which was sold for the consideration mentioned therein and, thereafter, presented it for registry on March 31, 1972 before the Sub-Registrar, Bikaner. The Sub-Registrar, Bikaner submitted an application under Section 47A of the Rajasthan Stamp Law (Adaptation) Act, 1952 (No. VII of 1952) (for short 'the Act') to the Collector, Bikaner stating that the consideration which has been mentioned inthe sale deed has not been truly set forth in it and it has been mentioned less in order to save the stamp duty. It was further slated that the correct valuation or consideration may be determined and in conformity with that, an order for realisation of adequate stamp duty may be passed. The enquiry was held and the Additional Collector, Bikaner by his order dated December 31, 1982 determined the valuation on the basis of the market value of the land covered by various sale deeds and on that valuation, ordered for the payment of deficit stamp duty and penalty. It was directed that a note as required by Section 42 of the Act may be made after deposit of the deficit stamp duty and penalty and in case, the required deposit is not made, the District Revenue Accountant be asked to realise it.

4. Aggrieved by the order passed under Section 47-A of the Act, appeals were filed before the District Judge, Bikaner. The learned District Judge, Bikaner by the common order dated October 11, 1983 accepted the appeals and set aside the orders of the Additional Collector directing the recovery of the deficit stamp duty and registration fee. He also set aside the order imposing penalty. Hence, the petitioner (State of Rajasthan) has filed these revisions.

5. In S. B. Civil Revision Petition No. 59 of 1984, it was ordered that that revision may be listed for orders along with the identical cases on that date. Learned counsel for the parties submitted that while considering the stay applications, the revision petitions may also be finally disposed of at the orders stage. This is how the aforesaid six revision petitions are for disposal.

6. I have heard Mr. L.S. Udawat, learned Assistant Government Advocate appearing for the petitioner and Mr. N.S. Acharya for the non-petitioners.

7. The contentions were raised by the learned Assistant Government Advocate, which are: --

(1) that the District Judge had no jurisdiction to entertain or hear the appeals as the Additional Collector had passed the order under the amended provisions of S. 47-A of the Act and against which, revision petitions could only be preferred before the Board of Revenue. The orders passed by the District Judge, Bikanerare, therefore, clearly without jurisdiction.

1.2) that the District Judge has committed an error in setting aside the order of the Collector remanding the case with a direction to re-hear the matter in regard to the consideration mentioned in the various sale deeds and not on the basis of the market value of the lands so sold.

The only question that, therefore, arises for determination in these revisions is whether Section 47-A of the Act as amended by the Rajasthan Stamp Law (Adaptation) (Amendment) Act', 1982 (No. X of 1982) (hereinafter referred to as 'the Amendment Act of 1982') is retrospective or not?

8. The Rajasthan Stamp Law (Adaptation) Act, 1952 (No. VII of 1952) received the assent of the President on February 16, 1952. The, Rajasthan Stamp Law (Adaptation) Act, 1966 (No. XVI of 1966) (the Amendment Act herein) received the assent of the President on June 3; 1966 and it was published in the Rajasthan Gazette (Extraordinary) dated June 13, 1966. This Amendment Act was to amend the Act. By this Amendment Act, Section 3 of the Act was amended. By virtue of Clause (c) of Section 2 of this Amendment Act, after Clause (xv), the following new clause was inserted, namely : --

'(xv-a) after Section 47 of the Indian Act, the following new section shall be inserted,namely : --

'47A. Instruments undervalued, how to be valued:-- (1) Where, in the case of any instrument relating to any immovable properly charegable with an ad valorem duty on the value of the property, or the consideration, as set forth in the instrument, the registering officer has, while registering the instrument, reasons to believe that the value of the properly or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, send it, in original, to the Collector to determine the value or consideration and to assess and charge the duty in conformity with such determination.

(2) On receipt of the instrument under Sub-section (1), the Collector, shall after giving the partiesa reasonable opportunity of being heard and after holding an inquiry in the prescribed manner, determine the value or consideration and the duty payable thereon as if that werethe value of consideration set forth in the instrument; and if the amount of duty so determined exceeds the amount of duty already paid, the deficient amount shall be payable by the person liable to pay the duty.

(3) Any person aggrieved by an order of the Collector under Sub-section (2) may within 30 days from the date of the order prefer an appeal before the Court and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this Act.

(4) For the purposes of enquiries under this section, the Collector shall have power to summon and enforce the attendance of witnesses, including the parties to the instrument or any of them and to compel the production of documents by the same means and (so far as may be) in the same manner as is provided in the case of Civil Court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908);

Explanation:-- For the purpose of Sub-section (3), 'Court' means a principal Civil Court of original jurisdiction, and includes a Court which the State Government may, by notification in the Official Gazettee, appoint within any specified local limits to perform the functions of the Court under that subsection'.'

By Section 2 of the Amendment Act of 1982, Section 3 of the Act was further amended. By Sub-section 2(a) of Section 2 of the Amendment Act of 1982, Section 47 A of the Act as inserted by Clause (xv-ae) of Section 3 of the Act was substituted by the following, namely : --

'47-A. Instruments undervalued, how to be valued: -- (1) Notwithstanding anything contained in the Registration Act, 1908 (Central Act XVI of 1908) and the rules made thereunder as in force in Rajasthan, where, in the case of any instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument, the registering officer has, while registering the instrument reasons to believe that the market value of the property has not been truly set forth in the instrument, he may, after registering the instrument, send it in original to the Collector for determination of the market value and to assess and charge the duty in conformity with such determinationtogether with a penalty not exceeding ten times the deficient stamp duty chargeable and surcharge, if any, payable on such instrument.

(2) On receipt of the instrument under Sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in the prescribed manner, determine the market value and the duty including the penalty and surcharge, if any, payable thereon; and if the amount of duty including penalty and surcharge, if any already paid, the deficient amount shall be payable by the person liable to pay the duty including penalty and surcharge, if any.

(3) The Collector may, suo motu, call for and examine any instrument not referred to him under Sub-section (1), for the purpose of satisfying himself as to the correctness of the market value of the property, and if after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine in accordance with the procedure provided in Sub-section (2), the market value and the amount of stamp duty and surcharge leviable, if any, together with a penalty not exceeding ten times the deficient stamp duty chargeable on it, which shall be payable by the person liable to pay the stamp duty, surcharge and panalty.

(4) Where for any reason the original document called for by the Collector under Sub-section (3) is not produced or cannot be produced, the Collector may, after recording the reasons for its non-production, call for a certified copy of the entries of the document from the registering officer concerned and exercise the powers conferred on him under Sub-section (3).

(5) For the purpose of enquiries under this section, the Collector shall have power to summon and enforce the attendance of witnesses, including the parties to the instrument or any of them, and to compel the production of documents by the same means, and so far as may be in the same manner, as is provided in the case of Civil Court under Code of Civil Procedure, 1908 (Central Act V of 1908).'

When the sale deeds were presented for registration and the applications were filed under Section 47-A of the Act, Section 47-A of the Act asinserted by the Amendment Act of 1966 was in force. When the Additional Collector had passed the order, Section 47-A of the Act as substituted by the Amendment Act of 1982 was in force. It is clear that according to Section 47 A of the Act, which was in force at the time when the sale deeds were presented for registration and the applications under Section 47 A of the Act were filed by the Sub-Registrar to the Collector, right of appeal was available to the person aggrieved by an order of the Collector within 30 days from the date of the order. The appeals could be filed in the Court and the Court for the purpose of Sub-section (3) of Section 47-A of the Act was the principal Civil Court of original jurisdiction. However, when the Additional Collector passed the order, Section 47-A as amende by Amendment Act of 1982 was in force am under that, only revisions could be filed before the Board of Revenue. In these circumstance the first question that arises is whether the right of appeal that was available to the person aggrieved at the time of the initiation of proceedings under Section 47-A of the Act which was in force at the time when the sale deeds were presented for registration and the applications were filed under Section 47-A of the Act could be availed of after the amendment of Section 47-A of the Act by the Amendment Act of 1982.

9. In Colonial Sugar Refining Co, v. Irving, (1905) AC 369 (PC), the question arose whether the Judiciary Act, 1903, was retrospective so as to take away the right of appeal to the Privy Council in an action brought before the coming into force of that Act. In sustaining the right of appeal, Lord Macnaghten observed:

'To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right, is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an ' interference with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

This principle has been accepted by the Supreme Court in Garikappati v. Subbiah Choudhry, AIR 1957 SC 540 where, on a review of earlier authorities, S. R. Das, C.J, deduced the following five propositions:

(i)The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding;

(ii) The right of appeal is not a mere matter of procedure but is a substantive right;

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit;

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law t'lat prevails at the date of its decision or at the date of filing of appeal;

(v) This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.'

Earlier also, in H.K. Dada (India) Ltd. v. Slate of M.P., AIR 1953 SC 221 it was held that the right of appeal is not a matter of procedure but it is a matter of substantive right. It was observed as under:

'This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.'

This decision was considered in Vitthalbhai v. Commr. Sales Tax, Nagpur, AIR 1967 SC 344 wherein H.K. Dada (India) Ltd.'s case was explained and it was observed as under:

'The decision in Hoosein Kasam Dada's 1953 SCR 987 : AIR 1953 SC 221 proceeded on the ground that when a lis commences, all rights get crystallised and no clog upon a likely appeal can be put, unless the law was made retrospective, expressly or by clear implication. From the record of this case, we cannot saywhen the lis commenced, and unless it can be proved conclusively that it was before the amendment of law, the rule in Hoosein Kasam Dada's case 1953 SCR 987 : AIR 1953 SC 221 cannot apply. There is no averment that right of appeal had vested, and has been wrongly taken away.

In the case on hand, it is not in dispute that when the sale deeds were presented for registration and the applications were filed under Section 47-A of the Act by the Sub-Registrar to the Collector, the provisions of Section 47-A of the Act as inserted by the Amendment Act were in force, where the Additional Collector passed the orders, substituted Section 47-A was in force. Section 47-A of the Act had come into force on June 3, 1982. The non-petitioner had a vested right of appeal and it could not be taken away. According to Sub-section (3) of Section 47-A of the Act as inserted by the Amendment Act appeals against the order of the Collector/Additional Collector lay to the District Judge and the District Judge had jurisdiction to entertain and hear the appeals. According to the provisions of Section 47-A of the Act which were in force at the time the instruments were executed if the registering officer had while registering the instrument reasons to believe that the value of the property or the consideration, as the case may be, had not been truly set forth in the instrument, he could after registering such instrument send it, in original, to the Collector to determine the value or consideration and to assess and charge the duty in conformity with such determination. It is thus, clear that when the sale deeds were executed, the scope of enquiry under Section 47-A was in respect of the valuation of the property or the consideration as set forth in the sale deeds being not true. When the Additional Collector had passed the order, the amended provisions of Section 47-A of the Act as amended by the Amendment Act of 1982 had come into force and according to that, the market value of the property is to be taken into consideration. It is a cardinal principle of construction dial every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. By the Amendment Act of 1982, Section 47-A was substituted in place of the inserted Section 47-A by the Amendment Act of 1966. The words used are: 'the registering officer has, while registering the instrument,reasons to believe that the market value of the property has not been truly set forth in the instrument..........'

This shows that Section 47-A of the Act as substituted by the Amendment Act of 1982 applies to those instruments which are registered by the registering authority after it has come into force. It cannot be made applicable to the instruments which 'lad been presented for registration in 1972 and in respect of which, proceedings, were initiated in 1972. The proceedings were initiated under Section 47-A of the Act as inserted by the Amendment Act of 1966, which has been reproduced hereinabove.

10. The result of the foregoing discussion that Section 47-A of the Act as substituted by theamendment Act of 1982 is not retrospective. It follows: that both the contentions raised bybe learned Assistant Government Advocate are devoid of force.

11. The result is that the revision petitions have no force and they are, accordingly, dismissed. The parties are left to bear their own costs of the revision petitions.


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