Court No. - 19
Reserved on 20.09.2021 Delivered on 23.09.2021
Case :- WRIT - C No. - 23304 of 2021 Petitioner :- M/S Ma Durga Rice Udyog And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjai Kumar Singh,Awadhesh Prasad Counsel for Respondent :- C.S.C.,Krishna Mohan Asthana
Hon'ble Saurabh Shyam Shamshery,J.
1. By this order the issue of maintainability of this writ petition, which is filed against impugned order dated 26.07.2021 passed by Assistant Commissioner (Stamp), Chandauli under Section 47-A of Indian Stamp Act, 1899 (hereinafter referred to as “Act, 1899”) without availing alternative remedy of challenging the same before Chief Controlling Revenue Authority, as provided under Section 56 of Act, 1899, is decided.
2. In para 37 of the writ petition, petitioners have declared that there is no alternative efficacious remedy available to them except to approach this Court under Article 226 of the Constitution of India. Petitioners have not disclosed the details of alternative remedy available to them under Act, 1899. The contents of writ petition is also silent, as to the grounds on which this writ petition has been filed directly before this Court, without availing the alternative remedy.
3. Sri Sanjai Kumar Singh, learned counsel for petitioners, has not disputed about the availability of alternative remedy. He, however, has relied on a judgment passed by Division Bench of this Court in Shri Sumati Nath Jain vs. State of U.P. and another, 2016 2 AWC 2168 and contended that petitioners before this Court are not liable to be relegated to avail alternative remedy as a matter of rule and if in the facts of a particular case it is established that principles of natural justice have been violated or that the order has been rendered without jurisdiction or if it is disclosed to the Court that grave injustice has been caused to petitioner and if it is found that his relegation to the alternative remedy would perpetuate injustice and cause prejudice, it is always open to High Court to exercise its prerogative constitutional powers and to issue an appropriate writ striking at the offending action.
4. Learned counsel for petitioners has read out the impugned order passed under Section 47-A of Act, 1899 and submitted that it was passed in violation of principle of natural justice, the relevant documents were not considered, even the contents of instrument were not appreciated in its correct perspective and a wrong finding was given that the instrument in question was a mortgage deed and not a security bond.
5. Per contra, learned Standing Counsel appearing for State-Respondents and Sri K.M. Asthana, learned counsel appearing for Respondent-Bank, have opposed the submissions advanced by learned counsel for petitioners. It is submitted that a notice was served to petitioners and a reply was also filed. However, though the matter remained pending from 2008 to 2016, the petitioners did not appear and taken adjournments on number of dates to prolong the proceedings. A specific finding in that regard is recorded in the impugned order, which has not been denied specifically in the writ petition, except a bald allegation that the proceedings were ex parte. They further submitted that the proceedings were transferred to Assistant Commissioner (Stamp) and the impugned order was passed under Section 47-A of Act, 1899, as such there was no jurisdictional error. The impugned judgment is passed on merit and in case petitioners are aggrieved, they can avail alternative remedy before the appropriate authority. The judgment relied by learned counsel for petitioners in Shri Sumati Nath Jain (supra) is distinguishable on facts.
6. Heard learned counsel for parties and perused the material available on record.
7. Petitioners have not disclosed about the availability of alternative remedy in the contents of writ petition. Even the declaration made in writ petition is factually incorrect, therefore, petitioners have not come before this Court with clean hands. In a case where alternative remedy is available, the constitutional remedy available under Article 226 cannot be allowed in a routine manner as held in Shri Sumati Nath Jain (supra). A specific case has to be made out that principle of natural justice are violated or impugned order was passed clearly without jurisdiction and due to that grave injustice is caused.
8. There is a specific finding in the impugned order that petitioners though appeared before the authority, however on number of dates, they sought adjournment only to prolong the litigation. The aforesaid finding is not specifically denied in the writ petition. For reference the relevant finding is reproduced hereunder:
"पत्रावली में उपलब्ध अभि,लेख एंव साक्ष्यों से स्पष्ट है कि: प्रश्नगत वाद वर्ष$ 2008 से न्यायालय जि'लाधिध:ारी चन्दौली, न्यायालय उप जि'लाधिध:ारी चन्दौली :े उपरान्त न्यायालय सहाय: आयक्त स्टाम्प चन्दौली :े न्यायालय में लम्बिम्2त चला आ रहा है। प्रधितपक्षी अपना पक्ष प्रस्तुत :रने हेतु पया$प्त अवसर प्रदान कि:या गया। प्रधितपक्षी द्वारा 'ान2ूझ:र वाद किनस्तारण में :ोई रूधिच नहीं ली 'ा रही है। जि'ससे न्यायालय में लम्बिम्2त वादो में स2से पुराना वाद प्रचलिलत है। प्रधितपक्षी द्वारा अने:ो वार मा० अधिधवक्ता :ा परिरवत$न एंव अनकिगनत तारीखो पर उपम्बिस्Bत हो:र अकिCम धितभिB लेने में रूधिच किदखाई 'ाती रही है। अस्तु पत्रावली में उपलब्ध साक्ष्यों :े आधार पर शास:ीय एंव रा'स्व किहत में किनस्तारण आवश्य: है।"
9. In view of above, the contention of learned counsel for petitioners that entire proceedings were conducted ex parte is factually incorrect.
10. So far as issue of jurisdiction is concerned, the case was instituted on the basis of an audit report and later on transferred to the authority, who has passed the impugned order under Section 47-A of Act, 1899. Therefore, there is no jurisdictional error. At this juncture it is relevant to note that in Shri Sumati Nath Jain (supra) the case was instituted on the basis of a note for consideration before Sub-Registrar, whereas in the present case it was instituted on the basis of a proper inquiry and due procedure was undertaken.
11. The last issue is, whether the petitioners have suffered grave injustice due to the impugned order.
12. I have gone through the contents of impugned order. It is passed on merit after considering the factual and legal aspect of the matter and it cannot be said that impugned order is unreasoned and in case the petitioners are aggrieved from the merit of impugned order, they can avail alternative remedy. Therefore, it cannot be said that grave injustice was caused to petitioners by means of impugned order.
13. It is pertinent to quote relevant part of para 11 of a recent judgement of Apex Court in The Assistant Commissioner of State Tax and others vs. M/ s Commercial Steel Limited (Civil Appeal No 5121 of 2021), decided on 03rd September, 2021:
“11. …..The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation.”
14. In view of above, the facts of the present case are distinguishable from the case of Shri Sumati Nath Jain (supra) and, as described above, none of the exceptional circumstances, referred in The Assistant Commissioner of Sales Tax (supra), is available with the petitioners, therefore, the issue of maintainability is decided against the petitioners.
15. Accordingly, the writ petition is dismissed as not maintainable.
16. However, it is made clear that any observations made hereinabove will not come in the way of petitioners in case they avail alternative remedy available to them.
Order Date :- 23.09.2021 AK