Hon'ble Shashi Kant,J.
Heard Sri Manu Khare, learned counsel for the petitioner and the learned Standing Counsel for the State.
The prayer made in this writ petition is to quash the order dated 05.01.2006 of the Assistant Commissioner (Stamp), Ghaziabad and consequential recovery whereby a deficiency of Rs.19.87 crores has been found in payment of stamp duty in a deed of assignment in favour of the petitioner and further a penalty of Rs.1 lakh has been levied.
Several issues have been raised in this writ petition including the issue that the pre-condition of deposit of one third of the amount for challenging the matter before the appellate authority is an impediment as the amount sought to be imposed on the petitioner as deficiency is huge. It has further been submitted that this was an assignment for the realization from the secured assets of the defaulters where the purpose is a speedy and expeditious realization of defaulted amount, whereas the imposition of such a condition on the assignment deed restrains the petitioner from proceeding to recover the amount thereby defeating the purpose of the SARFAESI Act, 2002.
A legal submission has also been raised to the effect that such imposition could not have been made keeping in view the fact that there is a statutory bar in invoking of any such proceedings beyond a period of four years and consequently the impugned order deserves to be quashed. Further a notification exists in the State of U.P. By virtue whereof the stamp duty is sufficient. The prayer is also to quash the consequential citation of recovery issued by the respondents.
We have heard the learned Standing Counsel and we are of the view that the petitioner has a remedy of either filing an appeal or a revision keeping in view the provisions of the Stamp Act as applicable in the State of U.P. The question as to whether the extent of pre-deposit is onerous or not came to be examined by the Apex Court in the case of Har Devi Asnani Vs. State of Rajasthan and others, (2011) 14 SCC, 160 where it has been held that fifty percent of pre-deposit as required in the State of Rajasthan for filing an appeal is constitutionally and legally valid. The issue as to whether a pre-deposit is compulsory or not came to be examined by a Full Bench of this Court in the case of Gaurav Aseem Avtej Vs. Chief Controlling Revenue Authority, U.P. Allahabad and others, (2013) 1 ADJ, 442 where the question referred was answered also holding that any such pre-deposit is constitutionally valid but at the same time it was clarified that the proviso of Sub-section 1-A of Section 56 of the Stamp Act will apply only in cases where an appeal is preferred under Sub-section (1-A) of Section 56 of the Stamp Act and its scope is restricted to the appeal only. It was further held that if a revision is preferred under Sub-section (1) of Section 56 of the Stamp Act, then there is no requirement of the deposit of one third of the disputed amount of deficient stamp duty including interest or penalty if any while filing an application for grant of interim relief.
The law having been clarified we find no reason for this writ petition to be entertained in the extra ordinary jurisdiction of Article 226 of the Constitution of India when the aforesaid speedy and efficacious remedies are available to the petitioner and that have been held to be valid by this Court.
The petitioner is not put to any prejudice if the statutory remedies under the Stamp Act are available. All the questions that have been raised in the present writ petition can be conveniently raised and suitable orders can always be passed by the competent authority. There is nothing exceptional in the present case so as to avoid the said remedies.
Learned counsel for the petitioner then urged that if the writ petition has been entertained and the counter affidavit has been filed by the respondents to which a rejoinder affidavit has been filed, the writ petition should not at this stage be dismissed on the ground of alternative remedy.
The interim order in the present case was granted on 19.05.2016. The order sheet indicates that the case was adjourned on one count or the other but the fact remains that the writ petition is of a very recent past and it is not understood as to why the Full Bench decision in the case of Gaurav Aseem Avtej Vs. Chief Controlling Revenue Authority, U.P. Allahabad and others (Supra) was not brought to the notice of the Division Bench when it entertained the writ petition on 19.05.2016. The law stood clarified long back and having not noticed the same the issue of alternative remedy does not appear to have been even considered or noticed while passing the interim order.
Learned counsel for the petitioner has cited the following decisions to contend that the bar of alternative remedy should not be entertained at this stage when the affidavits have been exchanged in the writ petition :
1. Durga Enterprises (P) Ltd. And another Vs. Principal Secretary, Govt. of U.P. And others, (2004) 13 SCC, 665.
2. Parmarth Steels & Alloys (Pvt) Ltd & another Vs. U.P. Power Corporation Ltd. (Transco) & Others in Writ C No.4544 of 2008 decided on 03.12.2013.
3. Dhani Ram Vs. Chief Engineer Raj Ghat Project Betwa River Board, Nandanpura, Jhansi and others, (2013) 5 ADJ, 691.
4. Roshan Lal Vs. State of U.P. and others, 2009 (9) ADJ, 670 (DB).
5. Diwakar Dutt Bhatt Vs. Life Insurance Corporation of India and another, (1998) 2 UPLBEC, 1154.
6. Indra Narain Tripathi Vs. Union of India and others, 2006 (10), UPLBEC, 1012.
We have perused the judgments relied on by the learned counsel for the petitioner and we find that in the case of Durga Enterprises (P) Ltd. And another Vs. Principal Secretary, Govt. of U.P. And others (Supra) the writ petition had been pending for thirteen years. In the case of Parmarth Steels & Alloys (Pvt) Ltd & another Vs. U.P. Power Corporation Ltd. (Transco) & Others (Supra) the writ petition had remained pending for five years. The judgment however notices that the Court generally does not entertain the writ petition when statutory remedies are available. In the decision of Dhani Ram Vs. Chief Engineer Raj Ghat Project Betwa River Board, Nandanpura, Jhansi and others (Supra) the Division Bench in paragraph no.22 thereof did observe that if there is stage prior to this Court then that is to be certainly exhausted and availed of. However on the facts of that case which was a service matter the Division Bench was hearing an appeal arising out of a writ petition that was filed in the year 2000. Thus almost twelve years had passed by in the said case. Similar was the position in the case of Roshan Lal Vs. State of U.P. and others (Supra) where the Division Bench found that the writ petition had been filed in the year 2000 and therefore to relegate the petitioner to the alternative remedy after nine years in the appeal would not be appropriate. The fourth decision in the case of Diwakar Dutt Bhatt Vs. Life Insurance Corporation of India and another (Supra) which is also by a Division Bench categorically notes in paragraph no.13 of the judgment that the petitioner therein had been litigating since 1970 for the correction of his date of birth and the writ petition was decided in 1998. It is after this extra ordinary period of time that had lapsed that the Division Bench refused to relegate the matter to an alternative remedy. In the case of Indra Narain Tripathi Vs. Union of India and others, 2006 (Supra) also more than four years had passed by and the writ petition had arisen out of a decision in a disciplinary matter where the termination order and the appeal filed against the same had been dismissed whereafter a revision lay before the higher authority. The Court refused to send the matter back on the ground of alternative remedy at that stage.
Thus all the cases that have been relied upon clearly demonstrate that it was on account of passage of time and the exchange of pleadings where the time lapsed was five years and above that the Court did not dismiss the writ petition on the ground of alternative remedy apart from other consideration.
On the present facts the writ petition is of a very recent past. The remedy is a statutory and efficacious remedy as already held above. There is nothing peculiar or special about this case so as to allow circumvention of the remedies available.
The writ petition is therefore dismissed on the ground of availability of alternative remedy. The interim order dated 19.05.2016 is discharged.
Order Date :- 28.5.2018 R./