V.Chockalingam vs The District Revenue Officer ...

on 16 November, 2010

Madras High Court Madras High Court V.Chockalingam vs The District Revenue Officer ... on 16 November, 2010 DATED: 16.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.3699 of 2003 V.Chockalingam ..Petitioner -vs1. The District Revenue Officer (Stamps) Singaravelar Maligai Rajaji Salai Chennai 1 2. The Sub-Registrar of Registration Sembium Chennai 11 3. The Inspector General of Registration 120, Santhome High Road Chennai 28 ..Respondents Petition under Article 226 of the Constitution of India for the issuance of a writ of Certiorarified Mandamus calling for the records of the 1st respondent order in Na.Ka.C.P.No.162 of 2002 dated 27.1.2003 and quash the same and consequently directing the 3rd respondent to refer the 47(A)(1) proceedings with respect to the petitioner's document No.4089/2002 on the file of the 2nd respondent to another competent authority other than the present 1st respondent for disposal on merits and in accordance with law. For petitioner : Ms.Chitra Sampath For respondents : Mr.N.Senthil Kumar, AGP ORDER In respect of a sale deed obtained by the petitioner on 13.6.2002, which was registered under the 2nd respondent Sub Registrar, the document was withheld on alleged under valuation of stamp duty. On filing of a Writ Petition in W.P.No.29348 of 2002 by the petitioner, as per the order dated 26.12.2002, the document was released in January 2003. Thereafter, the impugned Notice dated 27.1.2003 in Form II under the Indian Stamp
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V.Chockalingam vs The District Revenue Officer ... on 16 November, 2010

Act has been issued to the petitioner. This Court by an order dated 6.2.2003 has granted order of Stay. The said Form II is challenged by the petitioner in this Writ Petition on various grounds including that the Form II has not been preceded with mandatory requirement of Form I and as held by this Court in 2008-3-Law Weekly 286, Tata Coffee Limited vs. The State of Tamilnadu by the Secretary to Government, Commercial Taxes and Registration, Government of Tamil Nadu and others, the entire procedure followed is null and void. 2. In the counter affidavit filed by the respondents, it is stated that Form I Notice has in fact been served by ordinary post. The learned Additional Government Pleader has produced the entire files and this Court also perused the same. The learned Additional Government Pleader would submit that Form I is said to have been sent and it is not known under what mode the same was sent. 3. Rule 15 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules 1968 contemplates the manner of service of Notice under the Act, in which Rule 15(d) speaks about the service of Notice in respect of the individual persons and it reads as follows: "15. Member of service of notice and orders to the parties: Any notice under Rule 4 or Order under Rule 4 or 7 shall be served in the following manner, namely: ...... d) in the case of an individual person, be served i) by delivering or tendering the Notice or order to the person concerned or his counsel or authorised agent, or ii) by delivering or tendering the notice or order to some adult member of the family or iii) by sending the notice or order to the person concerned by registered post acknowledgment due or iv) if none of the aforesaid modes of service is practicable, by affixing the notice or orders in some conspicuous part of the last known place of residence or business of the person concerned." The Notice has to be served to the person concerned or to the adult members of the family if the person concerned is not available or to the person concerned by registered post and in the absence of any of the said three modes, the Notice has to be served by affixture. 4. Therefore, it is clear that as per the Rules, merely by sending a Notice by ordinary post is not sufficient, on the basis of which the Form I Notice, even though is stated to have been sent to the petitioner, since the same has not been served in the manner known to the regulation, it cannot be considered a proper service of notice. 5. I had an occasion to consider the mandatory requirement of Form I in Tata Coffee Limited vs. The State of Tamilnadu by the Secretary to Government, Commercial Taxes and Registration, Government of Tamil Nadu and others reported in 2008-3-Law Weekly 286, wherein after elaborately considering the implication of Section 47-A of the Stamp Act in respect of the mandatory requirement of the various Forms to be followed, it was held as follows: "23 ). The question is not as to whether the petitioners in the said writ petitions can be directed to file appeal to the appellate authority under section 47-A(5) of the Act, but the question is as to whether any final order can be said to have been passed under section 47-A(2) of the Act on the factual situation of these cases. As it has been narrated earlier, the final order which can be passed by the Collector under section 47-A(4) of the Act can be deemed to be a final order only if the order is passed by the District Collector after complying with the provisions of section 47-A(2) of the Act which are mandatory in nature. At the first instance, the Collector, immediately after receiving reference from the registering authority, must serve notice in Form-I in the manner enumerated in Rule 15 and give opportunity of being heard to the parties by holding an enquiry. Therefore, the law mandates an enquiry to be conducted by the Collector after giving a reasonable opportunity of being heard to the parties which can be possible only after notice is given to the parties in the manner prescribed in the Rule. In the absence of such notice having been given in Form No.1, which is the starting point of enquiry under section 47-A(2) by the Collectorm, the question of giving reasonable opportunity and conducting enquriy which are all follow-up actions to Form No.I notice, does not arise. Therefore, when on facts, it is clear in these cases that there is no proof showing that notice in Form-I
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V.Chockalingam vs The District Revenue Officer ... on 16 November, 2010

was issued to all the petitioners, it cannot be held as if the petitioners were given reasonable opportunity or the Collector has conducted enquiry in the manner known to law, especially under section 47-A(2) of the Act." 6. Inasmuch as the mandatory requirement of sending of Form I in the manner known to law has not been effected in this case, the impugned order is liable to be set aside and accordingly the impugned Notice is set aside. It is now stated that during the pendency of the Writ Petition, the respondents have passed the final order on 10.2.2003. Inasmuch as Form I itself has not been issued in the manner known to law, any subsequent order will not have any legal bearing. In such view of the matter, the subsequent order, which is stated to have been issued after the Form I Notice, becomes invalid. Hence, the Writ Petition stands allowed. No costs. 16.11.2010 Index:Yes Internet:Yes ajr To 1. The District Revenue Officer (Stamps) Singaravelar Maligai Rajaji Salai Chennai 1 2. The Sub-Registrar of Registration Sembium Chennai 11 3. The Inspector General of Registration 120, Santhome High Road Chennai 28 P.JYOTHIMANI,J. Ajr W.P.No.3699 of 2003 16.11.2010

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