# Babe Ke Edu. Charitable Society v. Harikesh Singh

- **Citation:** (2022) 3 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-16
- **Case number:** Special Appeal No. 96 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babe-ke-edu-charitable-society-v-harikesh-singh-48218
- **Pages:** 4

## Headnote

A. Civil Law - Alternative remedy - Indian
Stamp Act: Section 47-A, 56; Indian
Stamp Act: Entry 33 of Schedule 1-B -
Availability of alternative remedy is no bar
for this Court to entertain a petition u/Art.
226 of the Constitution of India in case
order
under
challenge
is
without
jurisdiction or has been passed without
following the principles of natural justice.
(Para 4)

Learned Single Judge dismissed the writ petition
as not maintainable on the ground of nonexhaustion of statutory alternative remedy
available to the appellant-petitioner u/s 56 of
the Act before the Chief Controlling Revenue
Authority. (Para 3)

The order passed by the Collector Stamp was
without jurisdiction for the reason that the
proceedings u/s 47A of the Act were not
attracted in this case as the document which is
said to have been deficiently stamped is a Gift
Deed which in terms of the provisions of Entry
33 of Schedule 1-B of the Act, is chargeable for
stamp duty not on the basis of "market value of
the property" but on the basis of "value of the
property". S. 47-A comes into play only where
the market value of the property in the
instrument or the document is disclosed to be
lesser than that determined in accordance with
the Rules. Hence, the remedy u/s 56 of the Act
will not bar jurisdiction of this Court to entertain
the petition u/Art. 226 of the Constitution of
India. (Para 5, 11)

It is trite in law that rule of exclusion of
jurisdiction of this Court u/Art. 226 of the
Constitution of India in the wake of
availability of an alternative remedy, be it
statutory or otherwise, is not absolute. Art.
226 is couched in the widest possible term and
unless there is an express bar to its jurisdiction,
its power under this Article can be exercised
when there is any act which is against any
provision of law or is violative of constitutional
provisions. (Para 8)

B. Though powers of High Court u/Art.
226
of
Constitution
of
India
are
discretionary and no limits can be placed
upon such discretion, nonetheless this
jurisdiction
must
be
exercised
along
recognized lines and not arbitrarily. Such
jurisdiction is subject to certain self imposed
restrictions.
Thus,
in
appropriate
cases
jurisdiction u/Art. 226 of the Constitution of
India is exercisable even in the wake of
availability of alternative remedy, statutory or
non-statutory. (Para 9)

C. There does not lie any distinction
between "statutory" or "non-statutory"
or "alternative" remedies when these
remedies are referred to in the context
of
exercising
the
discretionary
jurisdiction
u/Art.
226
of
the
Constitution of India by the High Court.
Every
"statutory
remedy"
may
be
an
alternative remedy and similarly every "nonstatutory" or "executive" or "administrative"
remedy can also be an alternative remedy,
that is to say a remedy which is alternate to
the remedy u/Art. 226 of the Constitution of
India. (Para 6, 10)

Special appeal allowed. (E-4)

Precedent followed:
3 All. Babe Ke Edu. Charitable Society Vs. Harikesh Singh
7

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)03ILR A6
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE IRSHAD ALI, J.

Special Appeal No. 96 of 2022

Babe Ke Edu. Charitable Society
 ...Appellant
Versus
Harikesh Singh ...Respondent

Counsel for the Appellants:
Shishir Singh Chauhan, Apoorva Tewari

Counsel for the Respondent:
C.S.C.

A. Civil Law - Alternative remedy - Indian
Stamp Act: Section 47-A, 56; Indian
Stamp Act: Entry 33 of Schedule 1-B -
Availability of alternative remedy is no bar
for this Court to entertain a petition u/Art.
226 of the Constitution of India in case
order
under
challenge
is
without
jurisdiction or has been passed without
following the principles of natural justice.
(Para 4)

Learned Single Judge dismissed the writ petition
as not maintainable on the ground of nonexhaustion of statutory alternative remedy
available to the appellant-petitioner u/s 56 of
the Act before the Chief Controlling Revenue
Authority. (Para 3)

The order passed by the Collector Stamp was
without jurisdiction for the reason that the
proceedings u/s 47A of the Act were not
attracted in this case as the document which is
said to have been deficiently stamped is a Gift
Deed which in terms of the provisions of Entry
33 of Schedule 1-B of the Act, is chargeable for
stamp duty not on the basis of "market value of
the property" but on the basis of "value of the
property". S. 47-A comes into play only where
the market value of the property in the
instrument or the document is disclosed to be
lesser than that determined in accordance with
the Rules. Hence, the remedy u/s 56 of the Act
will not bar jurisdiction of this Court to entertain
the petition u/Art. 226 of the Constitution of
India. (Para 5, 11)

It is trite in law that rule of exclusion of
jurisdiction of this Court u/Art. 226 of the
Constitution of India in the wake of
availability of an alternative remedy, be it
statutory or otherwise, is not absolute. Art.
226 is couched in the widest possible term and
unless there is an express bar to its jurisdiction,
its power under this Article can be exercised
when there is any act which is against any
provision of law or is violative of constitutional
provisions. (Para 8)

B. Though powers of High Court u/Art.
226
of
Constitution
of
India
are
discretionary and no limits can be placed
upon such discretion, nonetheless this
jurisdiction
must
be
exercised
along
recognized lines and not arbitrarily. Such
jurisdiction is subject to certain self imposed
restrictions.
Thus,
in
appropriate
cases
jurisdiction u/Art. 226 of the Constitution of
India is exercisable even in the wake of
availability of alternative remedy, statutory or
non-statutory. (Para 9)

C. There does not lie any distinction
between "statutory" or "non-statutory"
or "alternative" remedies when these
remedies are referred to in the context
of
exercising
the
discretionary
jurisdiction
u/Art.
226
of
the
Constitution of India by the High Court.
Every
"statutory
remedy"
may
be
an
alternative remedy and similarly every "nonstatutory" or "executive" or "administrative"
remedy can also be an alternative remedy,
that is to say a remedy which is alternate to
the remedy u/Art. 226 of the Constitution of
India. (Para 6, 10)

Special appeal allowed. (E-4)

Precedent followed:
3 All. Babe Ke Edu. Charitable Society Vs. Harikesh Singh
7
1. Whirlpool Corporation Vs Registrar of
Trademark, (1998) (8) SCC 1 (Para 4)

2. Sumit Gupta Vs State of U.P. & ors., AIR
(2011) (Allahabad) 135; {2011 (3) ALJ 732}
(Para 6)

3. K. Venkatachalam Vs A. Swamickan, (1999) 4
SCC 526 (Para 8)

4. Smt. Vijaya Jain Vs St. of U.P. & ors., 2016
(3) ALJ 278 (Para 12)

Precedent cited:

1. Jagadguru Kripalu Parishat Vs State of U.P &
others, AIR 2013 (Allahabad) 196 (Para 6)

2. Smt. Raj Goyal Vs A.D.M. (Finance &
Revenue) Unnao, Writ Petition No.3923 (M/S) of
2008 (Para 6)

Precedent Single Bench referred to:

1. N.P. Ponnuswami Vs Returning Officer, 1952
SCR 218 (Para 6)

Present appeal challenges the validity of
the judgment and order dated 25.02.2022,
passed by learned Single Judge.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Questioning the validity of the
judgment and order dated 25.02.2022
passed by learned Single Judge in Writ-C
No.1132 of 2022, this intra-court appeal
has been filed under Chapter VIII, Rule 5
of the Rules of the Court.

2. Before learned Single Judge,
challenge was made to an order dated
30.12.2021
passed
by
the
Collector
Stamp/District
Magistrate,
District
Lakhimpur Kheri under Section 47-A of the
Indian Stamp Act (hereinafter referred to as
the 'Act') whereby deficiency of stamp duty
to
the
tune
of
Rs.82,53,800/-
was
determined
and
was
ordered
to
be
recovered from the appellant-petitioner and
simultaneously penalty was also imposed to
the tune of Rs.82,538/-. The Collector
Stamp also ordered that interest at the rate
of 1.5% per month be also recovered from
the appellant-petitioner from the date of
execution of the Gift Deed till the amount
to be recovered from the appellantpetitioner is deposited.

3. Learned Single Judge, however,
dismissed
the
writ
petition
as
not
maintainable on the ground of nonexhaustion of statutory alternative remedy
available to the appellant-petitioner under
Section 56 of the Act before the Chief
Controlling Revenue Authority.

4. To meet the objection regarding
maintainability of the writ petition reliance
was placed by the appellant-petitioner
before learned Single Judge upon the
judgment of Hon'ble Supreme Court in the
case
of
Whirlpool
Corporation
vs.
Registrar of Trademark; (1998) (8) SCC 1
and it was argued that availability of
alternative remedy is no bar for this Court
to entertain a petition under Article 226 of
the Constitution of India in case order
under challenge is without jurisdiction or
has been passed without following the
principles of natural justice.

5. The submission before learned
Single Judge made on behalf of the
appellant-petitioner was that the order
passed by the Collector Stamp was without
jurisdiction
for
the
reason
that
the
proceedings under Section 47-A of the Act
were not attracted in this case as the
document which is said to have been
deficiently stamped is a Gift Deed which in
terms of the provisions of Entry 33 of
Schedule 1-B of the Act, is chargeable for
8 INDIAN LAW REPORTS ALLAHABAD SERIES
stamp duty not on the basis of "market
value of the property" but on the basis of
"value of the property".

6. Certain judgments of this Court
were also cited on behalf of the appellantpetitioner before the learned Single Judge
including the judgments in the case of
Sumit Gupta vs State of U.P. & others,
AIR (2011) (Allahabad) 135; {2011 (3)
ALJ 732}, Jagadguru Kripalu Parishat vs.
State of U.P & others, AIR 2013
(Allahabad) 196 and Smt Raj Goyal vs.
A.D.M. (Finance & Revenue) Unnao, Writ
Petition No.3923 (M/S) of 2008. However,
argument based on these judgments did not
find favour with the learned Single Judge
who opined that none of these judgments
refer to a constitution Bench judgment of
the Apex Court in the case of N.P.
Ponnuswami vs. Returning Officer, 1952
SCR 218 which deals of the issue relating
to maintainability of a writ petition in the
wake of availability of "statutory remedy"
whereas Whirlpool Corporation (supra)
deals with a situation where there is an
"alternative remedy". The learned Single
Judge thus observed that there is a
difference between "alternative remedy"
and "statutory remedy" and held that in
case of availability of "statutory remedy",
writ petition would not be maintainable.

7. When we consider the aforesaid
ground taken by learned Single Judge to
hold that the writ petition was not
maintainable, we find ourselves unable to
be in agreement with the view taken by
learned Single Judge.

8. It is trite in law that rule of
exclusion of jurisdiction of this Court under
Article 226 of the Constitution of India in
the wake of availability of an alternative
remedy, be it statutory or otherwise, is not
absolute. Article 226 of the Constitution of
India is couched in the widest possible term
and unless there is an express bar to its
jurisdiction, its power under this Article can
be exercised when there is any act which is
against any provision of law or is violative
of constitutional provisions. Reference may
be had in this regard to the judgment of
Hon'ble Supreme Court in the case of K.
Venkatachalam Vs. A. Swamickan; (1999)
4 SCC 526.

9. It is however equally well settled
that though powers of High Court under
Article 226 of Constitution of India are
discretionary and no limits can be placed
upon such discretion, nonetheless this
jurisdiction must be exercised along
recognized lines and not arbitrarily. Such
jurisdiction is subject to certain self
imposed restrictions. Thus, in appropriate
cases jurisdiction under Article 226 of the
Constitution of India is exercisable even in
the wake of availability of alternative
remedy, statutory or non-statutory.

10. The fine distinction sought to be
drawn by learned Single Judge between
these two expressions, with utmost respect
we may say, was unnecessary. Remedy in
legal parlance is a mechanism available to
an aggrieved person to take recourse to for
getting some wrong undone. State, for
redressal of grievances of its citizenry
provides
various
such
mechanisms/remedies.
Sometimes
a
remedy may be provided by way of
legislation which will be a statutory
mechanism and sometimes remedy may be
provided by State without framing any
legislation or statute, that is, by providing
simple
administrative
or
executive
mechanism. Therefore, in our considered
opinion, there does not lie any distinction
between "statutory" or "non-statutory" or
3 All. Smt. Sarita Singh Vs. State of U.P.
9
"alternative" remedies when these remedies
are referred to in the context of exercising
the discretionary jurisdiction under Article
226 of the Constitution of India by the
High Court. Every "statutory remedy" may
be an alternative remedy and similarly
every "non-statutory" or "executive" or
"administrative" remedy can also be an
alternative remedy, that is to say a remedy
which is alternate to the remedy under
Article 226 of the Constitution of India.

11. Learned Single Judge appears to
have ignored the binding precedents. In the
case of Sumit Gupta (supra), a Division
Bench of this Court considered the
provisions of Article 33 of Schedule I-B of
the Act vis-a-vis Section 47-A and has held
that Section 47-A comes into play only
where the market value of the property in
the instrument or the document is disclosed
to be lessor than that determined in
accordance with the Rules. It is in this
background that submission on behalf of
appellant-petitioner was made that the
order under challenge in the writ petition
was without jurisdiction and hence the
dictum of Whirlpool Corporation (supra)
will apply and as such availability of
remedy under Section 56 of the Act will not
bar jurisdiction of this Court to entertain
the petition under Article 226 of the
Constitution of India.

12. We may also refer to another
Division Bench judgment of this Court in
the case of Smt. Vijaya Jain Vs. State of
U.P. and others; 2016 (3) ALJ 278. In this
case writ petition was held to be
maintainable against an order of Collector
(Stamp) notwithstanding availability of
"statutory remedy", under Section 56 of the
Act. We also note that in this case as well,
learned Single Judge had refused to
entertain the writ petition on the ground of
availability of remedy under Section 56 of
the Act, however the Division Bench
upturned the judgment of learned Single
Judge and held the writ petition to be
maintainable.

13. It is needless to say that Division
Bench judgment was binding upon learned
Single Judge in the instant case as well.

14. Accordingly, the judgment and
order dated 25.02.2022, passed by learned
Single Judge in Writ-C No.1132 of 2022 is
set aside and the appeal is allowed. Writ
petition shall thus stand restored and shall
be decided afresh.

15. We request the learned Single
Judge to expedite the proceedings of the
writ petition and decide the same as early
as possible. If any application for interim
relief is moved/has been moved in the writ
petition, it shall also be decided with
expedition.

16. There shall be no order as to cost.
----------
(2022)03ILR A9
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 5186 of 2001

Smt. Sarita Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
S.K.
Mehrotra,
Abdul
Shahid,
Girish
Chandra Verma, Jagroopan Nishad, Lalit
Shukla, Mahendra Singh Rathore, Onkar
Singh Kushwaha, Rakesh Kumar Yadav