IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITON No.22570 OF 2019 (GM-CPC) BETWEEN:
SRI R.B.BALANI S/O.LATE P.J.BALANI AGED ABOUT 42 YEARS R/AT NO.375, 3RD CROSS OPP. H.L.R.C.WHITEFIELD BENGALURU-560 066 REP. BY HIS POA HOLDER SRI R.JAYAPRAKASH S/O.RAMDASAPPA AGED ABOUT 53 YEARS R/AT NO.108 KANNAMANGALA VILLAGE BENGALURU-560 067 … PETITIONER (BY SRI JANARDHANA G., ADVOCATE) AND:
1. SMT.MADHU BALANI W/O.LATE P.J.BALANI AGED ABOUT 73 YEARS 2. SRI KAMLESH BALANI S/O.LATE P.J.BALANI AGED ABOUT 40 YEARS 3. SRI HARESH BALANI S/O.LATE P.J.BALANI AGED ABOUT 38 YEARS R1 TO R3 ARE R/AT NO.323 GROUND FLOOR, 8TH MAIN HAL 3RD STAGE, INDIRANAGAR BENGALURU-560 038 4. SMT. NEETA ISRANI D/O.LATE J.H.BALANI AGED ABOUT 84 YEARS 5. SRI TARUN ISRANI S/O.SMT.NEETA ISRANI AGED ABOUT 60 YEARS R4 & R5 ARE R/AT NO.303 SHAILAJA APARTMENTS NO.5, PALI HILL, BANDRA MUMBAI-400 050 R1 & R3 TO R5 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER SRI KAMLESH BALANI-R2 AGED ABOUT 40 YEARS S/O.LATE P.J.BALANI … RESPONDENTS (BY SRI D.SRINIVASA MURTHY, ADVOCATE FOR C/R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 03.01.2019 (ANNEXURE-F) PASSED BY THE COURT OF IV ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE IN MISC.NO.25109/2011 ON IA.NO.V/2018.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the opponent in Miscellaneous No. 25109/2011 arising from his P & SE 25012/2007 is knocking at the doors of Writ Court for laying a challenge to the order dated 03.01.2019, a copy whereof is at Annexure-F, whereby the learned IV Additional City Civil Judge, Mayo Hall Unit, Bengaluru, having favoured respondents’ application in IA No.V/2018 filed under Sec. 33 & 34 of Karnataka Stamp Act, 1957 has impounded the GPA dated 07.11.2006 with a direction to collect the deficit stamp duty and penalty quantified at Rs.95,89,525/-. After service of notice, respondents having entered appearance through their counsel resist the writ petition.
2. Learned counsel for the petitioner argues that admittedly the subject document i.e., General Power of Attorney is dated 07.11.2006, in relation to the land in question measuring 7 acres 30 guntas; the impounding of the document and the direction for payment of alleged deficit stamp duty along with the penalty is founded on an erroneous assumption of law that Article 41(e) of the Schedule to the Karnataka Stamp Act, 1957 prescribing stamp duty on par with conveyances i.e., in terms of Article 20(1) is applicable, when clause (e) of Article 41 was introduced long after the subject document came into existence; he further argues that the same constitutes a grave error of law apparent on the face of the record to the huge prejudice of the petitioner warranting indulgence of this Court for remedying the same. The learned counsel for the contesting respondents makes submission in justification of the impugned order.
3. Having heard the learned counsel for the parties and having perused the petition papers and also the statute book, petitioner deserves relief at the hands of this court because:
(i) clause (e) of Article 41 in the Schedule to the Karnataka Stamp Act, 1957 is loaded to the statute book by way of amendment vide Karnataka Act No. 9 of 2009 w.e.f. 01.04.2009; thus the subject instrument dated 07.11.2006 is anterior to this amendment; and, (ii) there is nothing express or by implication to suggest that the said amendment is with retrospective effect, the strong presumption in re fiscal legislations being prospective; thus the amendment is not applicable to petitioner’s subject document at all.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught; court to process the matter accordingly.
No costs.
Sd/- JUDGE KTY