# M/s Vishwaleela Steel Tube Industries, Ghaziabad v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023
- **Case number:** Writ-C No. 62905 of 2014
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-vishwaleela-steel-tube-industries-ghaziabad-v-state-of-u-p-ors-45144
- **Pages:** 16

## Headnote

Civil Law - Deficiency of stamp duty as
well as penalty and also interest @ 1.5%
per annum- Indian Stamp Act,1899 -
Section 47-A - as applicable in the St. of
U.P.-grievance of the petitioners-denial of
benefit of GOS granting exemption from
payment of stamp duty- special statute-
effective alternative remedy under Section
Section 56 (1) A of the Indian Stamp Act-
both the principles of natural justice and
questions of law can be considered-
petitioners
relegated
to
alternative
remedy of appeal-Petition disposed of.
(Paras 10, 18, 19, 26, 29, 31, 33, 34 and
35)

HELD:
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1941
Thus, the remedy of appeal in the stamp cases
under the Indian Stamp Act, 1899 not only
takes full care of the appellate authority
deciding the matter in consonance with the
principles of natural justice but also empowers
the authority to stay the amount of recovery
subject to deposit of 1/3rd amount directed to
be recovered. The provision as is worded under
the Section and gives power to the appellate
authority clearly spells out the intendment of
the legislature that remedy of appeal is a
substantive remedy provided under the Act
against
the
order
passed
by
the
Chief
Controlling Revenue Authority and any factual
and legal error is liable to be cured / remedied
in appeal by the appellate authority. (Para 18)

Thus, the argument if any, with regard to nonavailability of efficacious remedy is certainly
misplaced and further the argument that since a
question of law is involved such a remedy can
be bypassed, in my considered opinion, that is
neither the intendment of the legislature nor,
the propriety demands for this Court to
entertain a writ petition in a routine manner
only because a question of law is involved. The
forum of appeal is not only in respect of the
factual dispute but is also an appropriate and
competent forum to deal with legal issues
involved in a case. The law as has emerged
through authorities of Apex Court and this Court
till now, is that there is no absolute rule for the
High Court to either refused to entertain a
petition under Article 226 of the Constitution of
India or necessarily entertain a petition and
decide the same in spite of there being a
statutory remedy of appeal. It is all a self
imposed limitation with which the High Court
has clothed itself and except for exceptional
cases a litigant should as a rule be asked to first
pursue the alternative remedy, especially the
statutory appeal. So the general rule is that one
should
first
exhaust
available
alternative
statutory remedy before approaching the high
court under Article 226 of the Constitution of
India. The Apex Court has drawn exception to
this general rule in certain cases from time to
time. (Para 19)

Thus, from the above decisions, I do not find
that the principles laid down in the judgment of
the Constitution Bench of Apex Court and in
subsequent judgments, referred to above, have
not been in any manner diluted and, therefore,
the said judgment still holds the field. It is worth
mentioning that neither in the case of Dr. Bal
Krishna Agrawal nor, in the case of Dhani Ram,
cited by learned counsel for the petitioner, the
said judgment was even referred to. (Para 26)

 The issue in the present case relates to the
definition of allottee to avail the benefit of
exemption from Stamp duty in the cases of
industrial leases and once the authority acting
under Section 47-A had decided the matter
against the petitioner, he could have preferred the
appeal easily to raise his grievance and could have
equally obtained stay order by merely depositing
1/3rd of the disputed amount. In the legislation
governing the field of taxes, the Court should
honour the spirit behind the fiscal measures taken
and a decision is arrived at after due adjudication,
unless there are cases of infringement of
fundamental rights which are guaranteed under
the Constitution and the Constitutional Courts are
guardian

## Text

_Characters 0–39,936 of 53,925. This is a partial read: ask again with offset=39936 for what follows._

1940 INDIAN LAW REPORTS ALLAHABAD SERIES
State's foremost duty is to provide these
basic rights to each citizen. The success of
a Criminal Justice System can only be
measured by how successful it is in
ensuring these rights in word and spirit.
The extent to which these rights are
successfully protected, will be reflected in
the confidence of the public in the system.
The organized crime should be treated
differently
from
traditional
individual
criminality. Conspiracy is an integral aspect
of organized crime. There cannot be a
direct evidence of conspiracy in such cases
and the law has to deal with organized
crime on a footing different from that of
individual
or
conventional
crime,
as
regards admissibility and appreciation of
the evidence.

44. The discussion aforesaid certainly
goes to show that the nature of offence and
amount of culpability is serious, heinous,
shocking and unprecedented.

45. In view of the above discussion,
the serious and heinous nature of the
offence,
complicity
of
the
accusedapplicant in the conspiracy and taking into
consideration overall circumstances of the
case, I do not find any reason sufficient to
allow the bail application. Hence, the bail
application of accused-applicant Jay Bajpai
@ Jay Kant Bajpai is hereby, rejected.

46. However, it is directed that the
trial of the aforesaid case pending before
the concerned court below be concluded
expeditiously, preferably within one year in
accordance with Section 309 Cr.P.C. and in
view of principle as has been laid down in
the recent judgment of Hon'ble Apex Court
in the case of Vinod Kumar v. State of
Punjab reported in 2015 (3) SCC 220 and
Hussain and Another v. Union of India;
2017 (5) SCC 702, if there is no legal
impediment.

47. It is also made clear that no
observation of this Court in this order will
have any binding effect on the trial court
and the case shall be decided on the basis
of evidence adduced during trial.
----------
(2023) 5 ILRA 1940
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2019

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 62905 of 2014
Connected with other cases

M/s Vishwaleela Steel Tube Industries,
Ghaziabad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mayank Agarwal

Counsel for the Respondents:
C.S.C.

Civil Law - Deficiency of stamp duty as
well as penalty and also interest @ 1.5%
per annum- Indian Stamp Act,1899 -
Section 47-A - as applicable in the St. of
U.P.-grievance of the petitioners-denial of
benefit of GOS granting exemption from
payment of stamp duty- special statute-
effective alternative remedy under Section
Section 56 (1) A of the Indian Stamp Act-
both the principles of natural justice and
questions of law can be considered-
petitioners
relegated
to
alternative
remedy of appeal-Petition disposed of.
(Paras 10, 18, 19, 26, 29, 31, 33, 34 and
35)

HELD:
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1941
Thus, the remedy of appeal in the stamp cases
under the Indian Stamp Act, 1899 not only
takes full care of the appellate authority
deciding the matter in consonance with the
principles of natural justice but also empowers
the authority to stay the amount of recovery
subject to deposit of 1/3rd amount directed to
be recovered. The provision as is worded under
the Section and gives power to the appellate
authority clearly spells out the intendment of
the legislature that remedy of appeal is a
substantive remedy provided under the Act
against
the
order
passed
by
the
Chief
Controlling Revenue Authority and any factual
and legal error is liable to be cured / remedied
in appeal by the appellate authority. (Para 18)

Thus, the argument if any, with regard to nonavailability of efficacious remedy is certainly
misplaced and further the argument that since a
question of law is involved such a remedy can
be bypassed, in my considered opinion, that is
neither the intendment of the legislature nor,
the propriety demands for this Court to
entertain a writ petition in a routine manner
only because a question of law is involved. The
forum of appeal is not only in respect of the
factual dispute but is also an appropriate and
competent forum to deal with legal issues
involved in a case. The law as has emerged
through authorities of Apex Court and this Court
till now, is that there is no absolute rule for the
High Court to either refused to entertain a
petition under Article 226 of the Constitution of
India or necessarily entertain a petition and
decide the same in spite of there being a
statutory remedy of appeal. It is all a self
imposed limitation with which the High Court
has clothed itself and except for exceptional
cases a litigant should as a rule be asked to first
pursue the alternative remedy, especially the
statutory appeal. So the general rule is that one
should
first
exhaust
available
alternative
statutory remedy before approaching the high
court under Article 226 of the Constitution of
India. The Apex Court has drawn exception to
this general rule in certain cases from time to
time. (Para 19)

Thus, from the above decisions, I do not find
that the principles laid down in the judgment of
the Constitution Bench of Apex Court and in
subsequent judgments, referred to above, have
not been in any manner diluted and, therefore,
the said judgment still holds the field. It is worth
mentioning that neither in the case of Dr. Bal
Krishna Agrawal nor, in the case of Dhani Ram,
cited by learned counsel for the petitioner, the
said judgment was even referred to. (Para 26)

 The issue in the present case relates to the
definition of allottee to avail the benefit of
exemption from Stamp duty in the cases of
industrial leases and once the authority acting
under Section 47-A had decided the matter
against the petitioner, he could have preferred the
appeal easily to raise his grievance and could have
equally obtained stay order by merely depositing
1/3rd of the disputed amount. In the legislation
governing the field of taxes, the Court should
honour the spirit behind the fiscal measures taken
and a decision is arrived at after due adjudication,
unless there are cases of infringement of
fundamental rights which are guaranteed under
the Constitution and the Constitutional Courts are
guardian to protect such rights. The disputed
questions involving adjudication on the issue
arising out of such measures adopted and availing
benefits thereunder, should always be left open for
the forum created under such statute to adjudicate
upon. (Para 33)

Petition disposed of. (E-14)

List of Cases cited:

1. Dhani Ram Vs Chief Engineer & ors. (2013) 6
AWC 5705

2. Dr. Bal Krishna Agrawal Vs St. of U.P. & ors.
(1995) 1 SCC 614

3. Surya Dev Rai Vs Ram Chander Rai &
ors.(2003) 6 SCC 675

4. Government of Andhra Pradesh & ors.Vs P.
Laxmi Devi (Smt) (2008) 4 SCC 720

5. Cicily Kallarackal Vs Vehicle Factory (2012) 8
SCC 524

6. Union of India & ors.Vs M/s. Cottage Arts
Emporium & ors.1991 Supp (2) SCC 723

7. Thansingh Nathmal & ors. Vs Superintendent
of Taxes, Dhubri & ors. AIR 1964 SC 1419
1942 INDIAN LAW REPORTS ALLAHABAD SERIES
8. M. Naina Mohammed Vs K.A. Natarajan &
ors.(1975) 2 SCC 352

9. Ghan Shyam Das Gupta & anr. Vs Anant
Kumar Sinha & ors. (1991) 4 SCC 379

10. St. of U.P. & anr.Vs Labh Chand (1993) 2
SCC 495

11. Union of India & ors.Vs M/s. Cottage Arts
Emporium & Ors, 1991 Supp (2) SCC 723

12. Cicily Kallarackal Vs Vehicle Factory (2012) 8
SCC 524

13. Mohd. Swalleh Vs Addl. District Judge,
Meerut (1988) 1 SCC 40 : AIR 1980 SC 94

14. Himmatlal Harilal Mehta Vs St. of M. P. &
ors.AIR 1954 SC 403

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Mayank Agrawal,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents.

2. In this bunch of writ petitions, the
petitioners of the respective writ petitions
are aggrieved against the order passed by
the
Assistant
Commissioner
(Stamp),
Ghaziabad in purported exercise of power
under Section 47-A of the Indian Stamp
Act as applicable in the State of Uttar
Pradesh, whereby, deficiency has been
imposed along with penalty and also
interest @ 1.5% per annum and that has
been directed to be recovered. The
deficiency and the penalty vary in these
writ petitions but in every case it is more
than Rs. 10 lacs as deficiency in stamp Rs.
50,000/- as penalty.

3. The grievance raised by the
petitioners is that they have been illegally
denied the benefit of Government Orders/
Notifications dated 12.06.2009, 26.10.2009
and 30.09.2010, whereunder, exemption
has been prayed for from payment of stamp
duty on the amount of duty chargeable on
the consideration as set forth in each such
instrument of lease. The petitioners are
lease holders and second transferee from
the original allottees and by the U.P. State
Industrial
Development
Corporation
Limited as well.

4. While the writ petition was
entertained by the order of the high court
dated 24.11.2014 in spite of the fact that
the petitioner had not availed of statutory
remedy of appeal under Section 56-A of the
Indian Stamp Act as applicable in the State
of U.P., the Court did not admit the petition
but entertained it subject to the directions
that petitioner shall deposit the entire
amount of deficient stamp duty within
four weeks from the date the order was
passed by the Court i.e. 24.11.2014 and
26.11.2014 in respectively petitions. Orders
passed on two different dates are identical.
The order dated 24.11.2014 is reproduced
hereunder:

"Three weeks' time is granted to
the respondents to file counter affidavit.
Rejoinder affidavit, if any, may be filed
within two weeks thereafter.

List thereafter.

The petitioner has approached
this Court challenging the order dated
27.09.2014 passed by the respondent no. 2,
Assistant Commissioner (Stamp), District
Ghaziabad in Stamp Case No. 40 of 201314.

The
petitioner
has
not
approached the Chief Controlling Revenue
Authority under Section 56 of the Indian
Stamp Act and the notifications relied upon
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1943
have been wrongly interpreted and the case
is covered under the notification. There is
no disputed question of fact.

In support of his submission,
learned counsel for the petitioner has
relied
upon
Government
of
Andhra
Pradesh and another Versus P. Laxmi
Devi, 2008(4) SCC 720 and judgment dated
21.02.2014 passed in Writ Petition No.
17213 of 2013, Krishna Pal Verma Versus
State of U.P. and others.

Submission
requires
consideration.

Subject
to
the
petitioner
depositing entire amount of the deficient
stamp duty within four weeks from today,
the effect and operation of the impugned
order dated 27.09.2014 passed by the
respondent no. 2, Assistant Commissioner
(Stamp), District Ghaziabad in Stamp
Case No. 40 of 2013-14, shall remain
stayed till the next date of listing. Any
amount already deposited by the petitioner
towards deficient stamp duty shall be
adjusted.

It is made clear that in case of
default,
the
interim
order
shall
automatically stand vacated."

(Emphasis supplied)

5. Nothing transpires from the record
that the aforesaid order of this Court dated
24.11.2014 was ever complied with and
instead, a Misc. Application was moved on
10.12.2014 bearing no. 408394 of 2014
wherein the following prayer was made:

"It is, therefore, most humbly
prayed that this Hon'ble Court may very
kindly be pleased direct the registry to list
the matter/ aforesaid/ instant writ petition
on a particular date so that applying the
doctrine of non-traverse, the writ may be
heard on merits and the petitioner may not be
tormented by the condition of pre-deposit as
per the interim order dated 24.12.14 and / or
pass such other and further orders as this
Hon'ble Court may deem fit in the facts and
circumstances of the case."

6. This above application dated
10.12.2014 was directed to be listed with
previous papers at an early date by this
Court
vide
order
dated
12.12.2014.
Thereafter, the matter was listed on
12.01.2015 directing the State to file
counter affidavit to the writ petition and the
interim order was extended and then on
09.02.2016 petitioner was granted three
weeks' time to file rejoinder affidavit and
the matter was directed to be listed on
02.03.2016 and further interim order was
extended till then.

7. On 24.05.2019 this Bunch of writ
petitions was listed along with leading case
bearing Writ Petition No. 62910 of 2014. In
leading case on preliminary objection being
raised by the learned Standing Counsel
regarding
availability
of
efficacious
alternative remedy of appeal, the learned
counsel for the petitioner who had instruction
in the said case, did not dispute the same and
conceded to the argument and accordingly
this Court proceeded to pass the following
order and this bunch of writ petitions was
segregated on the request of learned counsel
for the petitioner and directed to be listed on
27.05.2019 passing separate order in the
present writ petition no. 62905 of 2014. The
order passed in Writ - C no. 62910 of 2014 is
reproduced hereunder:

"Sri Mayank Agrawal, learned
counsel for the petitioner states that he has
no instruction in the matter.
1944 INDIAN LAW REPORTS ALLAHABAD SERIES

Heard Sri Sumit Daga, learned
counsel for the petitioner.

This writ petition is directed
against the order dated 27.09.2014 under
Section 47-A of the Indian Stamp Act.

Learned Standing Counsel has
raised preliminary objection that there is
an efficacious remedy of appeal provided
under Section 56 of the Indian Stamp Act
and the petitioner having approached this
Court directly in spite of availability of
statutory remedy of appeal, he should be
relegated to the remedy of appeal only.

To
the
above
preliminary
objection in the present case, learned
counsel for the petitioner does not dispute.

In view of the above, the writ
petition at this stage is not entertained on
the ground of efficacious alternative
remedy available under the Indian Stamp
Act against the order impugned dated
27.09.2014.

It is made clear that since the
writ petition is pending since long over
here, in case if the appeal is preferred
within a period of four weeks from today,
the same shall be considered and decided
on merits of the case as expeditiously as
possible preferably within a period of three
months from the date of presentation of
appeal along with the certified copy of this
order before it.

The writ petition thus stands
disposed of."

8. The order sheet in all the connected
matters, herein this bunch, contains similar
directions
of
counter
and
rejoinder
affidavits and at no point of time the misc.
application filed by the petitioner for
granting exemption from deposit of the
deficient stamp duty, was allowed.

9. Thus, the petitioner having not
complied
with
the
directions
dated
24.11.2014,
the
interim
order
dated
24.11.2014 has stood vacated in terms of
the operative portion of the order dated
24.11.2014 quoted herein above.

10. The remedy under Article 226 of
the Constitution is equitable remedy. One
who knocks the door for this extraordinary
relief bypassing statutory remedy, must
show his bonafides in the first instance, and
then must demonstrate that the remedy of
statutory appeal provided under the Act is
not the efficacious one. Learned counsel for
the petitioner has argued that in view of the
legal point involved in the present case and
there being no disputed question of fact,
this Court may not relegate the petitioner to
alternative remedy of appeal in the light of
judgment of Division Bench in the case of
Dhani Ram v. Chief Engineer and Ors
(2013) 6 AWC 5705 and of the Apex Court
in the case of Dr. Bal Krishna Agrawal v.
State of U.P. and others (1995) 1 SCC
614.

11. According to the petitioner, once
the writ petition has been entertained and
counter and rejoinder affidavits have been
exchanged, the petition should be decided
on merits and any direction for relegating
to the alternative remedy of appeal would
seriously prejudice the petitioner's right to
approach this Court where any point of law
is involved.

12. Per contra, learned Standing
Counsel relied upon the judgment of Apex
Court in Surya Dev Rai v. Ram Chander
Rai
&
Ors
(2003)
6
SCC
675;
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1945
Government of Andhra Pradesh & Ors
v. P. Laxmi Devi (Smt) (2008) 4 SCC
720;
Cicily
Kallarackal
v.
Vehicle
Factory (2012) 8 SCC 524; and also
Union of India & Ors v. M/s. Cottage
Arts Emporium & Ors 1991 Supp (2)
SCC 723. Learned Standing Counsel has
argued that statutory remedy of appeal by
way of U.P. Amendment 56(1)A is not an
empty formality and the issues claimed /
raised by the petitioner could have been
agitated before the authority. The learned
Standing counsel has further argued that
the petitioner had directly approached this
Court only because he was required to
make statutory deposit for seeking remedy
of stay in appeal under the first proviso to
Section 56(1)A but since this Court also
directed for the deposit of the amount of
deficient stamp duty under the order
impugned,
the
petitioner
instead
of
complying with this order, after getting
stay,
moved
an
application
seeking
exemption from deposit and then merely on
the basis of such misc. application he
lingered on the matter and avoided to file
rejoinder affidavit and ultimately when a
cost was imposed in one such connected
matter in Writ - C No. 62909 of 2014 that
rejoinder affidavit was filed. He therefore,
argues that the petitioner's intention is not
to get the issues resolved but the intention
was always to avoid payment of proper
stamp duty and therefore, he did not
approach this Court with clean hands and
bypassed the remedy of appeal only to get
stay order to avoid making statutory
deposit.

13. Having heard learned counsels for
the parties and their arguments advanced
across the bar and having carefully gone
through the pleadings raised by respective
parties as well as the order impugned, I find
it necessary to refer to the relevant
provisions of Indian Stamp Act, 1899 with
reference to the State Amendment of the
Uttar Pradesh (For short 'U.P.') , in order to
deal with the arguments on the point of
availability of alternative remedy and the
discretion to be exercised by this Court
when a petitioner approaches this Court
bypassing such a remedy.

14. In the present case after inviting
objection from the lessees the Assistant
Commissioner (Stamp), Ghaziabad passed
the order holding that there is deficiency in
stamp duty paid and accordingly directed
for payment of the deficient amount and the
penalty has also been imposed along with
simple rate of interest @ 1.5% per annum.
This power has been exercised by the
officer concerned under Section 47-A
inserted under the U.P. Amendment vide
U.P.
Act
No.
22
of
1998
(w.e.f.
01.09.1998) and runs as under:

"47-A. Under-Valuation of the
instrument.--[(1) (a) If the market value of
any property which is subject of any
instrument, on which duty is chargeable on
the market value of the property as set forth
in such instrument is less than even the
minimum value determined in accordance
with the rules made under this Act, the
registering officer appointed under the
Registration
Act,
1908,
shall,
notwithstanding anything contained in the
said Act, immediately after presentation of
such instrument, and before accepting it for
registration and taking any action under
Section 52, of the said Act, require the
person liable to pay stamp duty under
Section 29, to pay the deficit stamp duty as
computed on the basis of the minimum
value determined in accordance with the
said rules and return the instrument for
presenting again in its accordance with
Section 23 of the Registration Act, 1908.
1946 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) When the deficit stamp duty
required to be paid under clause (a), is
paid in respect of any instrument and the
instrument
is
presented
again
for
registration, the registering officer shall
certify by endorsement thereon, that the
deficit stamp duty has been paid in respect
thereof and the name and the residence of
the person paying them and register the
same.

(c)
Notwithstanding
anything
contained in any other provisions of this
Act, the deficit stamp duty may be paid
under clause (a) in the form of impressed
stamps containing such declaration as may
be prescribed.

(d) If any person does not make
the payment of deficit stamp duty after
receiving the order referred to in clause (a)
and presents the instrument again for
registration, the registering officer shall,
before registering the instrument refer the
same to the Collector for determination of
market value of the property and the proper
duty payable thereon.

(2) On receipt of reference under
sub-section (1), the Collector shall, after
giving the parties a reasonable opportunity
of being heard, and after holding an
inquiry in such manner as may be
prescribed by rules made under this Act,
determine the market value of the property
which is the subject of such instrument, and
the proper duty payable thereon.

(3) The Collector may, suo motu,
or on a reference from any Court or from
the Commissioner of Stamps or an
Additional Commissioner of Stamps or a
Deputy Commissioner of Stamps or an
Assistant Commissioner of Stamps or any
officer authorised by the State Government
on that behalf, within four years from the
date of registration of that instrument on
which duty is chargeable on the market
value of the property not already referred
to him under Sub-Section (1), call and
examine the instrument for the purpose of
satisfying himself as to the correctness of
the market value of the property, which is
the subject of such instrument and the duty
payable
thereon,
and
if
after
such
examination he has reason to believe that
the market value of such property has not
been truly set forth in such instrument, he
may determine the market value of such
property and the duty payable thereon:

Provided that with the prior
permission of the State Government an
action under this sub-section may be taken
after a period of four years but before a
period of eight years from the date of
registration of the instrument on which
duty is chargeable on the market value of
the property.

Explanation - The payment of the
deficit stamp duty by any person under any
order of the registering officer under subsection(1) shall not prevent the Collector
from
initiating
proceedings
on
any
instrument under sub-section(3).

(4) If on enquiry under subsection(2) and examination under subsection(3), the Collector finds the market
value of the property -

(i) truly set forth and instrument
duly
stamped,
he
shall
certify
the
endorsement that it is duly stamped and
return it to the person who made the
reference:

(ii) not truly set forth and
instrument not duly stamped, he shall
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1947
require the payment of proper duty or the
amount required to make up the deficiency
in the same, together with a penalty of the
amount not exceeding four times the
amount of the proper duty or the deficient
portion thereof.

(4-A) The Collector shall also
require along with the deficit stamp duty or
penalty required to be paid under clause(ii)
of Sub-Section(4), the payment of a simple
interest at the rate of one and half percent
per mensem on the amount of deficit stamp
duty calculated from the date of execution
of the instrument till the date of actual
payment.

Provided that the amount of
interest under this sub-section shall be
recalculated if the amount of deficit stamp
duty is varied on appeal or revision or any
order of a competent court or authority.

(4-B) The amount of interest
payable under sub-section (4-A) shall be
added to the amount due and be also
deemed for all purposed to be part of the
amount required to be paid.

(4-C) Where realisation of the
deficit stamp duty remained stayed by any
order of any court of authority and such
order of stay is subsequently vacated, the
interest referred to in sub-section (4-A)
shall be payable also for any period during
which such order of stay remained in
operation.

(4-D)
Any
amount
paid
or
deposited by or recovered from, or
refundable to, a person under the provision
of this Act, shall first be adjusted towards
the
deficit
stamp
duty
or
penalty
outstanding against him and the excess if
any, shall then be adjusted towards the
interest, if any due from him.

(5) The instrument produced
before the collector under sub-Section(2)
or under sub-Section(3) shall be deemed to
have come before him in the performance
of his functions.

(6) In case the instrument is not
produced within the period specified by the
Collector, he may require payment of
deficit stamp duty, if any, together with
penalty on the copy of the instrument in
accordance with the procedure laid down
in sub-section(2) and (4)]."

15. Section 48 of the Act provides for
recovery of duties and penalties which runs
as under:

"48.--Recovery of duties and
penalties.--All duties, penalties and other
sums required to be paid under this
Chapter may be recovered by the Collector
by distress and sale of the movable
property of the person from whom the same
are due, or by any other process for the
time being in force for the recovery of
arrears of land-revenue."

16. Section 56 of the Central Act prior
to the U.P. Act No. 38 of 2001 only
provided for reference in revision but with
the insertion of Sub-Section 1(A) to section
56 of the Central Act under the U.P.
Amendment there seems to be provision of
statutory remedy of appeal against an order
passed by the Collector under Chapter IV
and V of the Stamp Act. Section 47-A false
under Chapter IV which deals with the
instrument not duly stamped, whereas,
Chapter V deals with allowances of stamp
in certain cases. Section 56 of the Stamp
1948 INDIAN LAW REPORTS ALLAHABAD SERIES
Act after the U.P. Amendment vide U.P.
Act No. 38 runs as under:

56. Control of, and statement of
case
to
Chief
Controlling
Revenue
Authority - (1) The powers exercisable by a
Collector under Chapter IV and Chapter V
and under clause (a) of the first proviso to
Section 26 shall in all cases be subject to
the control of the Chief Controlling
Revenue Authority.

(1-A) Notwithstanding anything
contained in any other provisions of this
Act, any person including the Government
aggrieved by an order of the collector
under Chapter IV, Chapter V or under
clause (a) of the first proviso to section 26
may, within sixty days from the date of
receipt of such order, prefer an appeal
against
such
order
to
the
Chief
Controlling Revenue Authority, who shall,
after giving the parties a reasonable
opportunity of being heard consider the
case and pass such order thereon as he
thinks just and proper and the order so
passed shall be final.

Provided that no application for
stay of recovery of any disputed amount of
stamp duty including interest thereon or
penalty shall be entertained unless the
applicant has furnished satisfactory proof
of the payment of not less than one third
of such disputed amount.

Provided further that where the
Chief
Controlling
Revenue
Authority
passes an order for the stay of recovery of
any stamp duty, interest thereon or penalty,
or for the stay of the operation of any order
appealed against, and such order results in
the stay of recovery of any stamp duty,
interest thereon, or penalty, such stay order
shall not remain in force for more than
thirty days unless the appellant furnishes
adequate security to the satisfaction of the
Collector concerned for the payment of the
outstanding amount.

(2) If any Collector, acting under
Section 31, Section 40 or Section 41, feels
doubt as to the amount of duty with which
any instrument is chargeable, he may draw
up a Statement of the case, and refer it,
with his own opinion thereon, for the
decision of the Chief Controlling Revenue
Authority.

(3) Such authority shall consider
the case and a copy of its decision to the
Collector who shall proceed to assess and
charge the duty (if any) in conformity with
such decision."

(Emphasis added)

17. A bare reading of the provisions
quoted herein above, makes it quite explicit
that the appellate authority shall consider
the case in appeal and shall pass such order
as it thinks just and proper and that too
after giving for that purpose a reasonable
opportunity of being heard. The only rider
by the proviso is where a party insists for
stay of the order passed by the controlling
revenue authority as in the present case the
Assistant
Commissioner
(Stamp),
and
wants stay of the recovery of the disputed
amount, such person is required to make a
deposit 1/3rd of the disputed amount.

18. Thus, the remedy of appeal in the
stamp cases under the Indian Stamp Act,
1899 not only takes full care of the
appellate authority deciding the matter in
consonance with the principles of natural
justice but also empowers the authority to
stay the amount of recovery subject to
deposit of 1/3rd amount directed to be
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1949
recovered. The provision as is worded
under the Section and gives power to the
appellate authority clearly spells out the
intendment of the legislature that remedy of
appeal is a substantive remedy provided
under the Act against the order passed by
the Chief Controlling Revenue Authority
and any factual and legal error is liable to
be cured / remedied in appeal by the
appellate authority

19. Thus, the argument if any, with
regard to non availability of efficacious
remedy is certainly misplaced and further
the argument that since a question of law is
involved such a remedy can be bypassed, in
my considered opinion, that is neither the
intendment of the legislature nor, the
propriety demands for this Court to
entertain a writ petition in a routine manner
only because a question of law is involved.
The forum of appeal is not only in respect
of the factual dispute but is also an
appropriate and competent forum to deal
with legal issues involved in a case. The
law as has emerged through authorities of
Apex Court and this Court till now, is that
there is no absolute rule for the High Court
to either refused to entertain a petition
under Article 226 of the Constitution of
India or necessarily entertain a petition and
decide the same in spite of there being a
statutory remedy of appeal. It is all a self
imposed limitation with which the High
Court has clothed itself and except for
exceptional cases a litigant should as a rule
be asked to first pursue the alternative
remedy, especially the statutory appeal. So
the general rule is that one should first
exhaust
available
alternative
statutory
remedy before approaching the high court
under Article 226 of the Constitution of
India. The Apex Court has drawn exception
to this general rule in certain cases from
time to time.

20. Constitution Bench of the Apex
Court in the case of Thansingh Nathmal
& Others v. Superintendent of Taxes,
Dhubri & others AIR 1964 SC 1419 has
held that High Court under Article 226 of
the Constitution does not sit in appeal and
that being so, ordinarily if there is an
alternative remedy under the statute created
by the legislature, the litigant should be
asked to first exhaust the same. Vide para 7
of the judgment, the Court held thus:

"7. Against the order of the
Commissioner an order for reference could
have been claimed if the appellants
satisfied the Commissioner or the High
Court that a question of law arose out of
the order. But the procedure provided by
the Act to invoke the jurisdiction of the
High Court was bypassed, the appellants
moved the High Court challenging the
competence of the Provincial Legislature to
extend the concept of sale, and invoked the
extraordinary jurisdiction of the High
Court under Article 226 and sought to
reopen
the
decision
of
the
taxing
authorities on questions of fact. The
jurisdiction of the High Court under Article
226 of the Constitution is couched in wide
terms and the exercise thereof is not subject
to any restrictions except the territorial
restrictions which are expressly provided in
the Article. But the exercise of the
jurisdiction is discretionary; it is not
exercised merely because it is lawful to do
so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised
subject to certain self-imposed limitations.
Resort to that jurisdiction is not intended as
an alternative remedy for relief which may
be obtained in a suit or other mode
prescribed by statute. Ordinarily the Court
will not entertain a petition for a writ under
Article 226, where the petitioner has an
alternative remedy which, without being
1950 INDIAN LAW REPORTS ALLAHABAD SERIES
unduly onerous, provides an equally
efficacious remedy. Again the High Court
does
not
generally
enter
upon
a
determination of questions which demand
an elaborate examination of evidence to
establish the right to enforce which the writ
is claimed. The High Court does not
therefore act as a court of appeal against
the decision of a court or tribunal, to
correct errors of fact, and does not by
assuming jurisdiction under Article 226
trench
upon
an
alternative
remedy
provided by statute for obtaining relief.
Where it is open to the aggrieved petitioner
to move another tribunal, or even itself in
another jurisdiction for obtaining redress
in the manner provided by a statute, the
High Court normally will not permit, by
entertaining a petition under Article 226 of
the Constitution, the machinery created
under the statute to be by-passed, and will
leave the party applying to it to seek resort
to the machinery so set up."

21. The Constitution Bench of the
Apex court in the case of M. Naina
Mohammed v. K.A. Natarajan & Ors
(1975) 2 SCC 352 vide para 2 of the said
judgment clearly and quite unequivocally
held as under:

"2. The boundaries of the High
Court's jurisdiction under Article 226 are
clearly and strongly built and cannot be
breached without risking jurisprudential
confusion [Sir Rama Vilas Service (P) Ltd.
v. C. Chandrasekaran, (1964) 5 SCR 869 :
AIR 1965 SC 107. The power is supervisory
in nature, although the Judges at both the
tiers, in the instant case, have unwittingly
slipped into the subtle, but fatal error of
exercising a kind of appellate review."

22 . Further in the case of Ghan
Shyam Das Gupta and another v. Anant
Kumar Sinha and others (1991) 4 SCC
379, two judges Bench of the Apex Court
vide para 8 held thus:

"8. The principle as to when the
High Court should exercise its special
jurisdiction under Article 226 and when to
refuse to do so on the ground of availability
of an alternative remedy has been settled
by a long line of cases. The remedy
provided under Article 226 is not intended
to supersede the modes of obtaining relief
before a civil court or to deny defences
legitimately open in such actions. As was
observed in State of Andhra Pradesh v.
Chitra Venkata Rao [1976] 1 SCR 521 the
jurisdiction to issue a writ of certiorari is
supervisory in nature and is not meant for
correcting errors like an appellate court."

23. Again in the case of State of U.P.
& another v. Labh Chand (1993) 2 SCC
495, the Apex Court held that when a
statutory forum or Tribunal is specially
created by statute for the redressal of
specified grievances of persons on certain
matters, the High Court should not
normally permit such persons to ventilate
their specified grievances before it by
entertaining petitions under Article 226 of
the Constitution is a legal position which is
too well settled. The Apex Court in the said
judgment had also relied the earlier
judgment of the larger Bench in the case of
Thansingh Nathmal (supra) and vide para
16 of the judgment held thus:

"16. The respondent had since
filed, in the High Court of Judicature at
Allahabad, his first Writ Petition, W.P. No.
1980 of 1990, challenging the validity of
the Order of the State Government by
which he had been compulsorily retired
from Government service and claimed
several relief thereto against the State
5 All. M/s Vishwaleela Steel Tube Industries, Ghaziabad Vs. State of U.P. & Ors.
1951
Government, we have to find whether the
U.P. Public Service Tribunal if had been
approached by the respondent here, could
not have, if warranted, invalidated the
Order challenged in the Writ Petition and
given the reliefs sought for therein. If we
have regard to the high status of the
members
constituting
the
Tribunal,
expertise possessed by such members to
consider the claims of employees in matters
of their employment, vast powers invested
in them to hold exhaustive enquiries and to
grant full reliefs in matters relating to their
employment, we cannot but hold that that
Tribunal is the highest forum created by the
Act to give full and complete relief to
public
servants
in
matters
of
their
employment, that too, with expedition. The
claims in the Writ Petition since related
purely to matters relating to employment of
the
respondent
under
the
State
Government, the Division Bench of the
High Court refused to entertain the Writ
Petition on its view that it had been filed by
the respondent here bye-passing the U.P.
Public
Services
Tribunal.
When
the
Division Bench had refused to entertain the
Writ Petition of the respondent, in exercise
of its discretionary jurisdiction under
Article 226 of the Constitution on its view
that the respondent could not have invoked
its extraordinary jurisdiction under Article
226 of the Constitution for the redressal of
his grievances, bye- passing the special
forum created specifically by a statute for
redressal of such grievances, efficaciously
and adequately, it is not possible for us to
think that such exercise of discretion was
unwarranted, particularly when we have
due regard to the settled legal position
governing such matters, to which we have
already adverted."

24. Again in the case of Union of
India & Ors v. M/s. Cottage Arts
Emporium & Ors, 1991 Supp (2) SCC
723, a three judges Bench of the Apex
Court has held that where an order arises
out of adjudication proceedings and their
lies statutory appeal, then the writ remedy
would be inappropriate one and the party
aggrieved must avail the remedy of appeal.
Vide para 4 of the order, the Apex Court
has held thus:

"4. In the meanwhile, pursuant to
certain interlocutory directions made by
this Court during the pendency of the
special
leave
petition,
the
Statutory
Authority has concluded the adjudication
proceedings and has passed an order of
confiscation, penalty etc., on 5-10-1990.
Appellants
submit
that
after
this
adjudication the main writ-petition before
the High Court does not survive as
respondents have their statutory remedies
by way of appeal against the adjudication.
Respondents say that it is doubtful whether,
in the facts found in the adjudication
proceedings, respondents have such a right
and that at all events it may not be an
equally efficacious remedy in the facts of
the present case. Appellants do not dispute
that if respondents consider themselves
aggrieved by the result of the adjudication
they are entitled to prefer an appeal
against that adjudication. In view of these
developments, we think that the remedy by
way of writ petition must be held to have
now become inappropriate."

25. In a yet another judgment of two
judges Bench of Apex Court in the case of
Cicily Kallarackal v. Vehicle Factory
(2012) 8 SCC 524 has been observed that
where the legislature has provided for
statutory appeal, the High court cannot
bypass such statutory appeal.