1. At the outset, it is necessary to mention that present petition is preferred at notice stage, i.e. against the notice issued by Stamp Valuation Authority under provisions of Gujarat Stamp Act, 1958 (hereinafter referred to as 'the Act') asking the petitioner to show cause why deficient stamp duty – mentioned in the notice – should not be recovered. 2 In present petition, the petitioner has prayed that:
“18(A) Your Lordships may pleased to issue writ of Certiorari and/or any other appropriate writ, direction or order quashing and setting aside the impugned show cause notice dated 2/11-April 2012 and be further pleased to quash and set aside the proceedings initiated by the Respondent No.2 under Section-39(1)(b) of the Act;
18(B) Your Lordships be pleased to issue a writ of prohibition and/or any other appropriate writ, direction or order restraining the Respondent No.2 from taking any further proceedings pursuant to the show cause notice dated 2/11-April 2012, and adjudicating the same;”
3. So as to support and justify the reliefs prayed for in present petition, the petitioner has stated certain relevant facts and details involved in and leading to the present petition. The petitioner has stated that it is a private limited company
company named M/s. Indian Electro Chemicals Ltd. had availed loan facility from Union Bank of India against hypothecation and equitable mortgage of its properties. It is also claimed that the said other company, i.e. M/s. Indian Electro Chemicals Ltd. committed defaults in making payments of the installments of loan availed by it and that, therefore, the creditor bank initiated proceedings against the said company M/s. Indian Electro Chemicals Ltd. The proceedings were registered in the Debts Recovery Tribunal, Ahmedabad and the learned Tribunal passed order in favour of the creditor bank and subsequently at the request of the creditor bank, recovery certificate dated 17.9.2001 was issued. On the strength of the said recovery certificate, the creditor bank initiated recovery proceedings. The learned Tribunal appointed recovery officer who conducted auction proceedings of the mortgaged properties. The petitioner has claimed that the petitioner participated in public auction of the properties of the said other company, which was held on 29.3.2004 and included the property in question, i.e. parcels of vacant land bearing Survey Nos. 36, 37, 38, 39, 40, 41 and 42 (part), situate at Odhav and land bearing Survey Nos.74, 75/1, 75/2, 79/1, 79/2 and 80 of village Nikol, taluka city Ahmedabad. The petitioner has claimed that the petitioner emerged as the highest bidder in the said public auction and that, therefore, the recovery officer declared the petitioner as successful auction purchaser. The auction sale was finalised for an amount of Rs.4,98,21,606/- for the aforesaid parcels of land. Consequently, the recovery officer, Debts Recovery Tribunal, issued two certificates, certifying that the sale had become final absolute on 29.11.2004. Accordingly, the title of the properties in question stood transferred in favour of the petitioner on 29.11.2004 by virtue of the said certificate issued by the recovery officer, Debts Recovery Tribunal. The petitioner has claimed that subsequently, some disputes were raised by the workmen in view of which the union filed appeal before the Appellate Tribunal being Appeal Nos.42/05 and 62/05. According to the petitioner, the said appeals came to be dismissed by the Appellate Tribunal vide oder dated 22.3.2004. Thereafter, the petitioner requested the Debts Recovery Tribunal to hand over the possession of the properties in question and to direct the bank to execute sale deed in its favour. The petitioner has claimed that vide order dated 7.7.2005, the learned Tribunal authorised the court receiver to execute necessary sale deed and permitted the petitioner to approach revenue authority for mutation of entry and its name in the revenue record. Subsequently, the possession of the properties in question came to be handed over to the petitioner on 22.3.2005.
4. The petitioner has claimed that the petitioner got prepared the development plans of the said properties after dividing the property in four different blocks. It is also claimed that after prescribed procedure was completed, AUDA sanctioned the plans. The petitioner has claimed that after the plans were sanctioned, the petitioner launched a scheme for selling sub-plots for industrial and commercial purposes. It is claimed that almost 80% of the total plots have been sold.
5. It is also claimed that after the Debts Recovery Tribunal passed the order directing the recovery officer to execute the sale deed, the petitioner submitted an application dated 28.2.2008. The said application was submitted under Section 31 of the Bombay Stamp Act whereby the authority was requested for adjudication and pre-determination of the value of the properties (purchased in public auction held on 29.3.2004). It is necessary to mention, at this stage, that according to the petitioner, it was on account of intervening proceedings, i.e. objections by the workmen/union and subsequently by GIDC, that almost 4 years passed before the Debts Recovery Tribunal directed the recovery officer, vide order dated 11.4.2008 to execute sale deed in favour of the petitioner.
6. The petitioner has claimed that Stamp Duty Valuation Cell, Division-1, issued certificate dated 1.3.2008 conveying that the market value of the land in question would be Rs.5,49,00,500/- and not Rs.4,51,00,000/- (as mentioned in the sale certificate issued by the learned Tribunal/Recovery Officer).
7. The petitioner has claimed that it accepted the pre-determination of market value as per the order passed by the authority under Section 31 of the Act and made the payment towards stamp duty at Rs.26,90,300/- treating the market value of the property at Rs.5,49,00,500/- as determined under Section 31 of the Act. It is claimed that the registration charge of Rs.4,98,400/- was also paid by the petitioner and thereafter the sale deed was lodged for registration with Sub Registrar. The petitioner has claimed that the registering authority registered the document on 15.4.2008 at Registration No.5033.
8. The petitioner has claimed that after the above-referred formalities and procedure were completed, suddenly after four years, i.e. in April 2012, the petitioner received a show cause notice dated 2/11.4.2012 purportedly issued under Section 39(1)(b) of the Act, asking the petitioner to remain present for hearing before the authority on 1.5.2012 and also to show cause as to why deficit stamp duty in the sum of Rs.3,67,84,590/- should not be recovered. According to the said notice, requisite stamp duty would be Rs.3,67,84,590/-. The petitioner is aggrieved by the said Notice dated 2/11.4.2012.
9. The petitioner has claimed that the competent authority, i.e. Deputy Collector also intimated the petitioner vide said notice dated 2/11.4.2012 that the authority proposes to recover the duty at rate of 10 times of the deficit amount (which, according to the petitioner, would be about Rs.36 crore, in light of the amount demanded towards deficient stamp duty). The petitioner is, therefore, aggrieved by the said notice dated 2/11.4.2012.
10. However, instead of approaching the authority, in response to the notice, with appropriate reply and relevant documents, as called for by the authority under the said notice dated 2/11.4.2012 and satisfying the authority that any amount as proposed vide the said notice is not payable and/or recoverable; and instead of remaining present for hearing before the authority in response to the said notice, the petitioner has approached this Court vide present petition challenging the said notice dated 2/11.4.2012.
11. Thus, the petition is preferred at Notice stage, i.e. against a show cause notice.
12. Mr.Hava, learned advocate has appeared for the petitioner and Mr.Yagnik, learned AGP has appeared for the respondent authorities on advance service of copy of present petition.
13. Mr.Hava, learned advocate for the petitioner has raised diverse contentions against the legality and maintainability of the impugned notice dated 2/11.4.2012.
13.1 Mr.Hava, learned advocate for the petitioner, inter-alia, submitted that the impugned notice is without jurisdiction, besides being arbitrary and unjustified. It is claimed that the impugned notice overlooks the provisions under Section 31 of the Act. It is also claimed that the notice is issued on misconception and on wrong application of provisions of Sections 32 and 39 of the Act. Mr. Hava, learned advocate for the petitioner also submitted that after having passed the order of pre-determination of the value of the property under Section 31 of the Act, respondent No.2 does not have any authority in law and any jurisdiction to initiate any proceedings under Section 39(1)(b) of the Act read with Section 32A of the Act. It has also contended that the authority has overlooked and/or misconstrued the provisions under Sections 32 and 32A of the Act. He submitted that actually when the property in question is purchased in public auction conducted by the Debts Recovery Tribunal, then the value of the property determined by virtue of the public auction has to be taken as final value. Carrying the said contention further, he submitted that despite such being the position of law, the petitioner had, by way of abundant caution, preferred application under Section 31 of the Act and requested the authority for pre-determination of the market value of the property in question and the said authority passed order under section 31 declaring the value of the property and that, therefore, now the authority cannot demand deficient duty when the petitioner has paid the duty at the rate determined by the authority in response to the application under section 31 of the Act.
14. Mr. Hava, learned advocate for the petitioner has relied on below mentioned decisions to support his submissions:
(i) Amarsinhji Stationery Industries vs. The State of Gujarat, reported in 2009 (21) GHJ 22;
(ii) V.N. Devadoss vs. Chief Revenue Control Officer-cum- Inspector (2009) 7 SCC 438;
(iii) Diwan Kalusha vs. Collector of Kaira, reported in 1970 GLR 1009;
(iv) E.I. Dupot India Pvt. Ltd. vs. State of Gujarat in SCA No.18319/2007.
15. Mr. Yagnik, learned AGP has submitted that the petition may not be entertained because the petitioner has preferred the petition at show cause notice stage. He also submitted that under the notice dated 2/11.4.2012, the petitioner has been asked to remain present for hearing before the competent authority with relevant document and that, therefore, the petitioner will be afforded opportunity of hearing when the petitioner can raise contentions which are available in law.
16. On the said limited ground, the learned AGP has opposed the petition. He, of course, submitted that according to the notice, the document in question has been withheld/retained which amounts to impounding of the document and that, therefore, the petitioner's contention that any proceedings cannot be initiated and any order cannot be passed unless and until the document is impounded, does not survive.
17. I have heard Mr. Hava, learned advocate for the petitioner at length and also heard Mr. Yagnik, learned AGP.
18. It is true that the petitioner has challenged the impugned notice on the ground that the said notice has been issued without authority in law. Thus, the proposed proceedings are challenged by the petitioner on the ground of lack of jurisdiction. What is relevant is the fact that the said contention is raised on the premise of the observations in the decision in SCA No.18319/2007 (and cognate matters) that “impounding of document is the pre-requisite to exercise power under section 39(1)(b) but in present case the said requirement is not complied and that, therefore, the action/notice is without jurisdiction”.
18.1 However, in present case, the impugned notice recites that the document is impounded/withheld by the authority.
18.2 Even the decision (i.e. judgment dated 23.2.2010 in SCA No.18319/2007 and cognate matters) on which reliance is placed, is based on undisputed position in those cases viz. the said pre-requite was not complied in the said cases. Thus, the facts of present case are different from that perspective.
18.3 The assertion in the notice not only distinguishes facts of present case from facts of the cited case but, and more importantly, the said assertion gives rise to disputed question/issues of facts.
18.4 The petitioner has alleged and claimed that the document is not impounded and powers are exercised without impounding the document, whereas the notice recites and thereby it asserts that the document is withheld/impounded.
18.5 Thus, the said assertions and conflicting claims and allegations bring on record opposite and disputed factual aspects.
18.6 The facts involved in the petition are in realm of disputed fact and that, therefore, the petition does not deserve to be entertained. This is another reason for not entertaining this petition.
18.7 Thus, even if the contention that notice is without jurisdiction is taken into account, then also when the said contention is coupled with the fact that the petition involves and raises disputed issues of facts whether the document in question is withheld/impounded or not, is also in realm of disputed facts and in that view of the matter, the Court is not inclined to entertain the petition.
18.8 Though it is true that in present petition, the petitioner has claimed that before submitting the document for registration, the petitioner had, by way of abundant caution, preferred an application under Section 31 of the Act and requested the authority for pre-determination of the document and that, therefore, now the authority is not justified in issuing notice, and the subsequent notice under Section 39(1)(b) is unsustainable.
18.9 However, fact remains that the petitioner has taken out present petition at show cause notice stage and instead of approaching the authority with its reply in response to the said notice and filing necessary objections, he has preferred present petition.
19. It is, now, settled by catena of decisions that prerogative and discretionary jurisdiction may not be exercised by the Court at show cause notice stage, i.e. when the authority has issued notice calling for explanation from the petitioning litigant and also offered opportunity of hearing.
19.1 Mr.Hava, learned advocate for the petitioner submitted that an exception to the said general rule has been recognised viz. if the proceedings which are initiated are without jurisdiction. So as to support the said submission, learned advocate for the petitioner relied on the decision by the Apex court in case of Whirlpool Corporation vs. Registrar of Trade Marks. He submitted that in the said decision, the Apex Court has observed in paragraph 15 that the writ petition may be entertained inspite of alternative remedy if the proceedings are wholly without jurisdiction.
19.2 In support of his said contention, learned advocate for the petitioner also relied on the above referred common decision dated 23.2.2010 in group of petitions being SCA No.18319/2007 and allowed the matters.
19.3 It is contended by the learned advocate for the petitioner that in the said case, the petitioner had approached the Court against show cause notice issued by the Deputy Collector, Stamp Valuation.
19.4 However, in present case, there is fundamental distinction in facts of present case and the facts in said group of petitions inasmuch as the pre-requisite (viz. impounding the document) was complied in the said group of petitions whereas, in present case, the said aspect is in realm of disputed facts in view of the details mentioned in the notice/assertions made in the notice.
20. At this stage, it is also relevant to mention that this Court has, recently in decision dated 21.9.2012 in SCA No.10385/2012, while declining to entertain writ petition, preferred by the petitioner against the order passed by the Deputy Collector in proceedings initiated pursuant to the notice issued under Section 39(1)(b), observed that the Court would not be inclined to exercise prerogative and discretionary jurisdiction when statutory remedy is available to the petitioner. In the said decision, the Court has observed, inter-alia, that:
7. Re: Alternative Remedy :-
7.1 The order which is impugned in present petition is passed by the first adjudicating authority and against the order by the first authority, a remedy and forum are provided under the Act. Therefore, instead of invoking prerogative and discretionary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner should approach the statutory forum-authority.
7.2 The legislature has provided remedy under Section 53 of the Act, and constituted higher authority before whom the proceedings against the order of the first adjudicating authority can be maintained and the order can be challenged.
7.3 However, instead of approaching the statutory remedy - authority, the petitioner has preferred present petition against the order of first adjudicating authority and the petitioner has claimed and asserted that the forum constituted and remedy provided by the Act is illusory and is not efficacious and therefore, petition deserves to be entertained and the petitioner need not go before the authority under Section 53 of the Act.
7.4 In view of the objections and submissions on behalf of the petitioner, it is relevant to take into account the provisions under Section 53 of the Act. Section 53 reads thus:-
“53. Control of and statement of case to Chief Controlling Revenue Authority : (1) The powers exercisable by a Collector under [Chapter III [except sub section (3) of section 32A] Chapter IV and Chapter V] and under clause (a) of the first proviso to section 27 shall in all cases be subject to the control of the Chief Controlling Revenue Authority.
[Provided that the Chief Controlling Revenue Authority shall not entertain an application made by a person under sub- section (1) unless
(a) such application is presented [within a period of ninty days] from the date of order of the Collector.
(b) such person deposits twenty-five per cent of the amount of duty or as the case may be, amount of difference of duty payable by him in respect of subject matter of the instrument for which application has been made.
Provided further that where in any particular case the Chief Controlling Authority is of the opinion that the deposit of the amount by the applicant may cause undue hardship to him, the authority may in its discretion, either unconditionally or subject to such conditions as it may think fit to impose, dispense with a part of the amount deposited so however that the part of the amount so dispensed with shall not exceed fifty per cent of the amount deposited or required to be deposited.]
(2) If any Collector, acting under Section 31 [Section 32A] section 39 or section 40, feels doubt as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue Authority.
(3) Such authority shall consider the case and send a copy of its decision to the Collector, who shall proceed to assess and charge the duty (if any) in conformity with such decision.”
7.5 The writ proceedings are discretionary remedy and when the relevant Act itself provides a remedy and forum where the order of first adjudicating authority can be challenged i.e. when statutory remedy is made available, the Court exercising prerogative and discretionary writ jurisdiction would be loath to entertain a writ petition and would be reluctant or extremely slow in deviating from the accepted principle and the wisdom to not entertain a writ petition and the Court would not render the statutory remedy otiose.
The petition, for the foregoing reasons, does not deserve to be entertained at this stage and the Court would rather relegate the petitioner to the remedy/forum prescribed and constituted under the Act.
15.9 The petitioner has not made out any case for hardship. Any relevant and necessary details, data and facts have not been pleaded and/or placed on record to establish a case for hardship.
16.1 In present case, the petitioner wants to avoid and circumvent the remedy - forum prescribed and constituted by the Act. However, as mentioned above, the petitioner has not established, any facts and details to demonstrate and establish that the prescribed pre-condition would cause hardships to it if the remedy prescribed by the Act were to be availed.
17. As regards other aspects which the petitioner has raised against the decision of the first adjudicating authority, the Court would not, at this stage offer any observation or remark about the said contentions lest it may affect, in any manner, the case of the contesting parties and/or the proceedings before the competent authority under Section 53 of the Act and/or the view and decision of the competent authority.
24. It emerges from the judicial pronouncements and precedents that when statutory remedy is available the writ Court would relegate the petitioning litigant to the statutory remedy. The writ Court would exercise strict control and highest degree of restrain and would decline to entertain petition when statutory remedy is available.
For the foregoing discussion and reasons, I am not inclined to exercise discretion so as to entertain the petition when statutory alternative remedy is available to the petitioners. In the facts and circumstances of the case, it has clearly emerged that against the order of first adjudicating authority (which is impugned in present petition) statutory remedy is available and that the said remedy or provision are not onerous or inefficacious or illusory and that there is no basis or justification to by- pass or short-circuit the statutory remedy. The petitioner has failed to make out any strong exception to entertain the petition. Any case to entertain the petition instead of requiring the petitioner to approach statutory authority is not made out and petitioner deserves to be relegated to statutory remedy.
The petition is accordingly not accepted and it stands disposed of. No costs.”
21. In present case, it appears that determination of the market value of the property in question would also raise disputed questions of fact.
21.2 It appears, on perusal of the notice, that the authority has, upon examining the sale deed finally executed by the parties, formed a tentative and preliminary opinion that according to the market value of the property in question, requisite stamp duty would come to Rs.3,94,74,990/- and not Rs.26,90,300/-. At this sage, it appears that the said view is diametrically opposite than the view in the order under section 31 of the Act wherein the said authority opined that Rs.5,49,00,500/- would be market value of the property in question.
21.3 It also appears from the notice which is impugned in present petition, that the authority has not mentioned market value of the property in question which is taken into account by the authority while issuing the notice (on the premise that the requisite stamp duty would come to Rs.3,94,74,990/-). Unless the said aspect is available and evaluated in light of the relevant facts and circumstances – which are essentially issues of facts – it cannot be said at this stage that the notice is baseless. It would be premature.
21.4 In that view of the matter, at this stage, it would not be possible for this Court to ascertain, without entering into the disputed issues related to the market value of the property in question, as to whether the authority is justified in demanding additional stamp duty from the petitioner, or not.
21.5 Having regard to the facts and circumstances of present case, it also appears that in prsent case, issue about determination of the market value of the property in question in accordance with the provisions contained under the Act and particularly Rule 8 of the Rules is involved and also for the reasons that in view of the decisions of the Apex Court that ordinarily, the petition at show cause notice stage ought not be entertained and since this Court has recently in the decision dated 21.9.2012 in SCA No.10385/2012, declined to entertain the writ petition challenging the order passed by the Deputy Collector, Stamp Valuation under Section 39 of the Act on the ground of statutory remedy, I am not inclined and not convinced to entertain present petition, by exercising prerogative writ petition in this case, which is taken out at show cause notice stage.
22. On this count, it would be appropriate to take into account observations made by the Apex Court in the cases where writ petitions were preferred against the show cause notice / at notice stage and the Hon'ble Apex Court has voiced concern and sounded caution against entertaining wit petitions under Article 226 or Article 227 at show cause notice stage / against show cause notice, except in rare cases where strong and exceptional circumstances are established.
22.1 In the case of Chanan Singh vs. Registrar, Co.-op. Societies, Punjab [AIR 1976 SC 1821], the Apex Court has, in paragraphs 4 to 6, observed that:
“4. The first point raised in objection by the second respondent is that the writ petition is premature since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration. It is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum.
5. Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature. No punitive action has yet been taken. It is difficult to state, apart from speculation, what the outcome of the proceedings will be. In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us. at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration.
6. We are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court. After all, even the question of jurisdiction to re- open what is claimed to be a closed enquiry will, and must, be considered by the Managing Director. On this score, we dismiss the appeal but, in the circumstances, without costs.” (Emphasis supplied) In present case also proceedings are pending and any final order is not passed. What will be the order is, at this stage, matter of guess work. The petition, thus, is not tenable at this stage.
22.2 Subsequently in 1996, in case of Hindustan Lever Ltd. vs. Ashok Vishnu Kate [AIR 1996 SC 285(1)], the above decision in case of Chanan Singh vs. Registrar, Co.-op. Societies, Punjab [AIR 1976 SC 1821] referred to and relied upon in different context. While considering the said submission passed on the said judgment, the Apex Court [i.e. AIR 1996 SC 285(1)] has, in paragraph 43, observed that:
43. Before concluding this discussion, we may refer to the judgment of this Court in Chanan Singh's case (AIR 1976 SC 1821) (supra) on which strong reliance was placed by the learned counsel for the appellant. Sh.Pai submitted that when merely a show cause notice is issued for taking action against an employee, if it is challenged in the Court, it would be a premature challenge. We fail to appreciate how the aforesaid decision can be pressed in service by the learned counsel for interpreting the relevant provisions of Item 1 of Schedule IV of the Maharashtra Act. In the aforesaid decision, this Court held that when a show cause notice is issued against punishment, a writ petition under Articles 226 and 227 would be premature as there would be no grievance of punitive action which can be ventilated in the Court. This decision was based on the general principle that against mere show cause notice, writ petition would be premature. The ratio of that decision cannot be of any assistance for interpreting the express language of Item 1 of Schedule IV of the Maharashtra Act read with its other relevant provisions, which are meant to prevent the commission of unfair labour practice by arming the appropriate Courts with jurisdiction to look into such complaints. For all these reasons, therefore, it must be held that the Division Bench of the High Court was perfectly justified in taking the view that a contemplated action for dismissal or discharge of an employee on any of the grounds mentioned in Item 1 of Schedule IV of the Maharashtra Act could be made the subject matter of complaint before the Labour Court under Section 28(1) of the Maharashtra Act. ”
(Emphasis supplied)
22.3 In the case of Executive Engineer, Bihar State Housing Board vs. Ramesh Kumar Singh [AIR 1996 SC 691], the Apex Court has, in paragraphs 10 and 11, observed that:
“10. We are concerned in this case, with the entertainment of the writ petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a "nullity" or totally "without jurisdiction" in the traditional sense of that expression- that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case , for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision,as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India.
11. On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act. 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court committed a grave error in entertaining the writ petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, constrained to set aside the judgment of the High Court of Patna in C.W.J.C. No. 82/93 dated 10-2-1993. We hereby do so. the appeal is allowed with costs.” (Emphasis supplied) In present case also the dispute is not about breach of fundamental right. The petition also does not assail vires of any statutory provision. The authority which has issued notice is constituted for deciding matters related to stamp valuation and that, therefore, though as per the petitioner's allegation, the issuance of notice may be irregular or arbitrary exercise of power but it is difficult to hold that the notice is “nullity” or “wholly” without jurisdiction and the authority “inherently lacks” jurisdiction. It is trite that there is world of difference in action being result of irregular and/or arbitrary exercise of jurisdiction and the action inherently lacking jurisdiction or completely without jurisdiction.
The observations by the Apex Court not only fortifies the view in in present decision but also brings out the position that writ petition should not be entertained for mere asking or as a matter of routine and the petitioner should be directed to respond to the show cause notice.
In this view of the matter, this Court is not convinced to and not inclined to entertain present petition which is preferred at not show cause notice / against notice and that too even without submitting any reply / explanation in response to the show cause notice.
22.4 In the case of T.N. Godavarman Thirumulpad vs. Union of India [(2000) 10 SCC 494], the Apex Court has observed, in paragraph 8 of the judgment, that:
“8. We have heard leaned counsel for the parties in these applications. The applicants were served with a notice dated 13-1-1997 by the Forest Range Officer calling upon them to remove their encroachments within 24 hours of the receipt of the notice, as it was found that they had unlawfully trespassed into the forest land. Instead of showing cause to the Forest Range Officer, the applicants rushed to the High Court of Gujarat through various special civil applications. By an order dated 9-7-1997 the Division Bench of the High Court dismissed the special civil applications with the observation that they did not find any good ground to entertain those petitions “at this stage”. Since the applicants had rushed to the High Court against the issuance of notice by the Forest Range Officer without having given any response to the notice, the High Court rightly dismissed their special civil applications. We find no fault with the order of the High Court dated 9- 7-1997.”
In the said case, the petitioner had preferred writ proceedings without giving response to the notice issued by the authority. In present case also, the petitioner has, even after forwarding communication-application dated 9.4.2011 / 24.7.2012, not filed its reply before the authority and without giving any response, preferred present petition.
22.5 In the case of Special Director vs. Mohd. Ghulam Ghouse [AIR 2004 SC 1467(1)], the Apex Court has, in paragraphs 5 and 6, observed that:
“5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted.
6. In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which has weighed with it in granting such an extra ordinary relief in the form of an interim protection. This admittedly has not been done in the case at hand.” (Emphasis supplied) The Apex Court has observed and emphasized that writ petitions should not be entertained for mere asking and as a matter of routine, and the writ petitioner should invariably be directed to response to the show cause notice and take all stands highlighted in the writ petition.
The Hon'ble Apex Court has also clarified that even objection that the show cause notice was not founded on legal premise, can be urged by the recipient of the notice before the authority and it can be adjudicated by the authority, before the aggrieved by the party should approach the Court.
Hence, in present case also, the contentions sought to be raised by the petitioner are such which can be raised and urged before the concerned statutory authority.
22.6 In the case of Union of India vs. Kunisetty Satyanarayana [AIR 2007 SC 906(1)], the Apex Court has, in paragraphs 13 and 14, observed that:
“13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge- sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.”
22.7 In the case Union of India vs. Vicco Laboratories [(2007) 13 SCC 270], the Apex Court has observed that “the interference at the show-cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.” Thus, in cases where there are issues related to facts and/or where there are disputed issues, then merely because the petitioner has claimed that the notice has been issued without jurisdiction or the notice amounts to abuse of process of law, such submission by the petitioner alone would not be good and sufficient reason to entertain writ petition at show cause notice stage / against show cause notice and the petitioner ought to be relegated to the statutory remedy. In the said decision, the Apex Court has also observed that “abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule.” The Apex Court has observed that “parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the noticee.” The Apex Court has also observed that “normally the writ court should not interfere at the stage issuance of show- cause notice by the authorities.”
23. In present case, it is necessary to recall that according to the application dated 9.4.2012 / 24.7.2012 submitted by the petitioner before the competent authority, the petitioner itself had, at one stage, in its said application dated 9.4.2012 / 24.7.2012, informed the authority, while asking for certain details, that after the said details were supplied, it would tender its explanation to the notice.
24. Thus, there is no justification to not file reply to the notice and appear before the authority and raise all contentions which will be considered by the adjudicating authority in accordance with law and that, therefore also, the Court is not inclined to exercise discretionary jurisdiction at this stage and would rather relegate the petitioner to a statutory authority-remedy.
25. At this stage, it is necessary to clarify that during the hearing, the Court had suggested that the petitioner may first approach the competent authority and file its reply in response to the show cause notice and let the order be passed by the competent authority which can be placed on record of the petition and the Court will examine the order which may be passed pursuant to the notice, and thereafter, i.e. after examining authority's order, the Court will pass appropriate order as may be considered just and proper.
26. However, the learned advocate for the petitioner submitted that since (according to the petitioner) the impugned notice and proceedings are without jurisdiction, the petitioner is not inclined to approach and appear before the authority and/or to file reply.
27. Thus, on overall consideration of the facts and circumstances of the case, the Court, instead of entering into the contentions raised by the petitioner in light of the provisions contained under Sections 32, 32A, 34 and 39 and/or in light of the decision on which reliance is placed by the petitioner, would rather relegate the petitioner to the statutory authority since the Court is not inclined to entertain the petition at the notice stage/against show cause notice.
27.1 For the foregoing discussion and reasons, the petition is not entertained at this stage, i.e. at notice stage/against show cause notice.
27.2 It is clarified that the Court has not entered into and not examined the merits of the diverse contentions raised by the petitioner in light of the scope and effect of the provisions under the Act lest it may affect views of the authority and/or interest of the parties to dispute.
With the aforesaid clarification, the petition is dismissed.
(K.M. Thaker, J.) Bharat*