Court No.39
Case :- WRIT - C No. - 16072 of 2018 Petitioner :- Imran Ahmad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Nisheeth Yadav Counsel for Respondent :- C.S.C.
Hon'ble Siddhartha Varma, J.
This writ petition has been filed against the orders dated 28.11.2014 and 4.5.2016 passed by respondent no.3-Additional District Magistrate (Finance & Revenue), Ghaziabad.
There is a delay in filing of the instant writ petition which has been explained in paragraph 23 of the writ petition as it has been stated that the order dated 4.5.2016 by which the Recall Application, for recalling of the order dated 28.11.2014, was rejected came to the knowledge of the petitioner only when the plot of the petitioner was put up for auction.
Learned counsel for the petitioner submits that the petitioner is a well to do person and he would have never allowed the order dated 4.5.2016 to have gone unchallenged had he the knowledge about it.
The cause shown for filing the writ petition belatedly is thus sufficient and it is being deemed that the writ petition was filed without any laches.
The petitioner had purchased an agricultural land in village Noor Nagar, Pargana Loni, District Ghaziabad measuring 0.4779 hectare for a consideration of Rs.4,77,90,000/- by a registered sale deed dated 11.7.2014. The stamp was paid on the registration of the sale deed. Thereafter when suddenly the petitioner gained knowledge about te order dated 28.11.2014 which was passed by the Additional District Magistrate (Finance & Revenue), Ghaziabad, he filed an application for recalling the order. When this application was rejected on 4.5.2016 without hearing the petitioner, the instant writ petition was filed.
The contention of the learned counsel for the petitioner is that the orders impugned in the instant writ petition were without notice and a perusal of them would make it apparent that they were passed without hearing the petitioner. Learned counsel submitted that when initially the order dated 28.11.2014 was passed, it had made a mention of the fact that the petitioner had not appeared despite notice. Why the petitioner did not appear before the order dated 28.11.2014 was passed was very well stated in the Recall Application which he had filed on 19.2.2015. Further more, learned counsel for the petitioner has submitted that after the order dated 28.11.2014 was passed, he had looked into the notice dated 22.9.2014 and had found that it was in absolute contravention of Rule 7(1) of the U.P. Stamp (Valuation of Property) Rules, 1997 (hereinafter referred to as the '1997 Rules') and submits that as per Rule 7(1), a notice under section 33/47-A of the Indian Stamp Act, 1899 had to be issued in such a manner that it provided 30 days' time to the recipient of the notice to give a reply from the date of the receipt of the notice. Learned counsel has submitted that if the notice dated 22.9.2014 is perused, it becomes apparent that it was issued on 22.9.2014 and the petitioner was required to appear on 4.10.2014 and, therefore, the notice was definitely not in consonance with the provisions of Rule 7(1) of the 1997 Rules.
Learned counsel has further submitted that after the petitioner had filed the Recall/Restoration Application for the recalling of the order dated 28.11.2014, the Additional District Magistrate, (Finance & Revenue), Ghaziabad, for reasons best known, fixed no date for almost a year and suddenly on 4.5.2016 the application for recalling the order dated 28.11.2014 was rejected. Learned counsel submits that upon inspection of records, he actually found that on 4.5.2016 there was a strike of the Advocates. He further submits that if after a very long time, Executive Authorities pass orders, then notices should be issued to the parties because lawyers do not normally attend the office of the executive officials on a regular basis. He, therefore, submits that the order dated 4.5.2016 was also passed without hearing the petitioner. He submits that if the order dated 4.5.2016 is perused, then also it would be clear that it was passed ex-parte.
Learned counsel thereafter submitted that if orders are passed in violation of principles of natural justice, then the person against whom the order is passed, need not file an appeal and can directly approach this Court, as has been held in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors.
reported in (1998) 8 SCC 1. Further he submitted that the Chief Controlling Revenue Authority, which is the Appellate Authority, is not a Court and it had no power to condone the delay and if an Appeal was filed, it would definitely be barred by limitation.
Learned counsel for the petitioner relying upon Smt. Vijaya Jain Vs. State of U.P. & Ors. reported in 2016 (3) ALJ 278 submitted that if it was clear from the records that notice was not served upon the petitioner and orders were passed in violation of the principles of natural justice then the petitioner could definitely knock the doors of this Court.
Learned Standing Counsel submitted that since the only question which the learned counsel for the petitioner had raised was that there was violation of the principles of natural justice, he would only make oral submissions and would not file any counter affidavit. He very vehemently urged that notice was there and because of the fact that the petitioner did not appear, there was no other option with the authorities but to pass orders. Learned Standing Counsel further submitted that an alternative remedy which the petitioner had, of filing an appeal, was also an efficacious alternative remedy and the petitioner should have availed the same and should not have come directly to the High Court.
Having heard learned counsel for the petitioner and the learned Standing Counsel, I am of the definite view that when principles of natural justice were violated, this writ petition could have very well been entertained and it can be seen as to whether the petitioner was heard by the authority or not.
Firstly, I find that the notice which was issued on 22.9.2014 by which the petitioner was required to be present on 4.10.2014, was not in conformity with Rule 7(1) of the 1997 Rules. Secondly, I find that there was no reason for the petitioner to have not appeared despite the fact that notice had been there. When the authority was presuming service of notice on the petitioner as they were sent by Speed-Post, then it should have given a finding of service only after getting a definite report from the Post-Office. Simple presumption of notice should be avoided. The Court below should have seen as to whether notices were refused/avoided or they had simply not being served. In the absence of such a finding, the irresistible conclusion is that the authority did not give any finding as to whether the notices were served on the petitioner. Further more, I find that when the application for recalling of the order dated 28.11.2014 was filed, it was taken up almost after one year of its filing and that too on a date when the lawyers were on a strike. Executive authorities which are not regular Courts are normally not attended by lawyers everyday. Lawyers do not note dates fixed by them. These authorities should notify the litigants by written notices. This is exactly what is done in the office of the Chief Controlling Revenue Authority, which is the Appellate Authority under the Stamp Act. When the Appellate Authority i.e. the Chief Controlling Revenue Authority (Board of Revenue) sends written notices to parties of the next date fixed, then the executive authorities, where matters are taken up after long intervals of time, should definitely send notices in writing, to be served upon the litigants. Still further, I find that the petitioner did not stand to gain anything by not attending the Court or by allowing orders to be passed ex-parte and, therefore, no malafide intention could be attached to the petitioner's non-appearance before the Courts below.
Under such circumstances, I hold that the orders dated 28.11.2014 and 4.5.2016 were ex-parte and they were passed in violation of the Principles of Natural Justice. The orders dated 28.11.2014 and 4.5.2016 passed by the Additional District Magistrate (Finance & Revenue), Ghaziabad are, thus, quashed. The matter is remitted back to the respondent no.3, who shall now, after putting the petitioner to proper notice, decide the case. The reasons given for finding the deficiency in stamp in the order dated 28.11.2014 shall not weigh on the mind of the Additional District Magistrate while deciding the matter afresh.
The writ petition is, accordingly, allowed.
Order Date :- 27.10.2018 GS (Siddhartha Varma, J.)