Sbpl Infrastructure vs State Of West Bengal & Ors.

RajasekharMantha, J.

By an application affirmed on the 3rdof June, 2018 the impugned order dated 8th May, 2018 passed by the Collector-in-Charge of Stamp Revenue,

Kolkata has been sought to be challenged. Leave has been sought in the said application to add further grounds to the writ petition. A supplementary

affidavit dated 18th June, 2018 has also been filed to bring additional documents on record.

The impugned order is examined in view of its causal connection with the proceedings leading to the impugned order, challenged in the writ

application.

The facts of the case are inter alia that by an agreement dated 5th December, 2005 entitled “Nomination Agreement†(said agreement)

executed in Kolkata between the private respondent No.11 and the writ petitioner, a property known as ‘Indian Express Building’ at Gagan

Mahal Village, Musheerabad Taluka, Himayat Nagar Mandal, Hyderabad District, measuring about 23466 sq. ft. was proposed to be transferred to

the writ petitioner.

A Non-Judicial Stamp of Rs.10/- was paid on such agreement under the Indian Stamp Act, 1899.

Upon payment of deficit stamp duty of Rs.50,000/- and penalty of Rs.1,000/-, the Collector, District Registrar Hyderabad made an endorsement

under Section 42 of the said Act of 1899 in respect of the said document on 04.06.2014.

Disputes and differences under the said agreement arose between the writ petitioner and the respondent No.11 that were taken to Arbitration.

Upon production of the said agreement in course of Arbitration in support of the counter claim of the writ petitioner, it was found that Stamp Duty

under Section 3 of the Stamp Act 1899, was not paid at the place of execution of the document. The said agreement came to be impounded at the

request of the petitioner before the Arbitral Tribunal and came to be lodged with the office of the Collector, Stamp Revenue, Kolkata for assessment

of Stamp Revenue. The said process of impounding was ordered at a belated stage of the Arbitration proceeding.

The process of assessment was taken up and the said nomination agreement (document) was assessed to Stamp Duty on the 30th of August, 2017

for a sum of Rs.11,26,39,488/- under Section 35 of the Act of 1899. Such assessment order dated 30th August, 2017 came to be challenged in two

several writ petitions being W.P.2342(W) of 2017 and W.P.27751(W) of 2017. By an order dated 24th November, 2017 the said assessment order

passed by the Collector, Stamp Revenue, Kolkata was set aside by a Coordinate Bench of this Court. The matter was remanded back to the Collector

for assessment afresh.

A fresh hearing was undertaken and concluded on the 4th December, 2017. Since no orders were passed even until February, 2018, a second writ

petition came to be filed by the writ petitioner herein that was numbered W.P.3078(W) of 2018. By an order dated 12th February, 2018 the said writ

petition was disposed of directing the Collector, to pass orders within a period of fortnight. The said order is set out hereinbelow.

“The petitioners seek a direction upon the authorities to pass the final order of adjudication in terms of the judgment and order dated November 24,

2017 passed in WP No.23428(W) of 2017. Affidavit-of-service filed in Court today be kept with the record. In spite of service, none appears for the

State. The private respondent is represented. The Court is informed that, pursuant to the judgment and order dated November 24, 2017, the authority

has taken a hearing. The hearing was concluded on December 4, 2017. The final order is yet to be passed. The Court is also informed that, the person

who has taken the hearing is likely to retire very shortly. In such circumstances, it would be appropriate to direct the authority taking the hearing on

December 4, 2017 to pass a reasoned order within a period of fortnight from date or before his retirement whichever is earlier. W.P. No.3078(W) of

2018 is disposed of. It is expected that, the petitioners inform the concerned authority about this order expeditiously.â€​

The concerned Collector, Stamp Revenue, Kolkata namely one Don Bosco Lepcha who actually heard the matter on 4th December, 2017 retired

upon reaching the age of superannuation, within a short time after the order dated 12.02.2018.

Collector, Don Bosco Lepcha did not pass final orders on the reference. One Manas Barman, Assistant Treasury Officer, who was designated

Collector â€"in-Charge, was appointed Collector Stamp Revenue, Kolkata, in place of Lepcha is stated to have passed final orders on the reference

on 8th May, 2018. The petitioner claims that the order came to its knowledge only on 22nd of May, 2018.

The Learned Advocate General had at the outset urged, on behalf of the State, a point of demurrer as regards maintainability of the writ petition.

He submitted that the writ petitioner in essence has asked this Court to interfere with the Arbitration Proceedings. He has placed in great detail the

pleadings of the writ petitioner to support his argument.

Mr. Saktinath Mukherjee, Learned Senior Counsel appearing for the 11th Respondent supported the contention of the Advocate General. He

relied upon the decision of the Hon’ble Supreme Court in the case of S.B.P. Vs. Patel Engineering reported in (2005) 8 SCC 618. At paragraph

45 it was held that Arbitral Proceedings cannot be interfered with under Article 226 of the Constitution of India. Paragraph 45 is set out hereinbelow.

It is seen that some High Courts have proceeded on the basis that any order passed by an Arbitral Tribunal during arbitration, would be capable of

being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the

Arbitral Tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating its grievances against the award including any in-

between orders that might have been passed by the Arbitral Tribunal acting under Section 16 of the Act. The party aggrieved by any order of the

Arbitral Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the

scheme of the Act. The Arbitral Tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the

occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the Arbitral

Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that

any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an

intervention by the High Courts is not permissible.

It is indeed true that most of the pleadings refer to proceeding of Arbitration. Prayers have also been made for stay of such Arbitration. However

there are some pleadings and prayers made in the writ application challenging the proceedings that has led to the impugned order. There are also some

prayers made in that regard. Hence the writ petition is taken up for consideration in view of prayers a to f. Any prayer seeking restraint on Arbitration

proceeding cannot and shall not be entertained by this Court.

The said impugned order has been challenged on various grounds. The principal ground being that when a Coordinate Bench of this Court in its

order dated 12th February, 2018 directed a particular authority to hear out the matter hence no other person can pass orders thereon. The same

according to the petitioner, apart from being contumacious is ex facie illegal and renders the order void ab initio. In support of the argument the

petitioner firstly relied upon the case of Anirudhsinhji Jadeja & Anr. Vs. State of Gujarat reported in (1995) 5 SCC 302 at Paragraph 13, to the effect

that power conferred on one authority cannot be exercised at the dictation of another.

It has been stated by Wade and Forsyth in Administrative Law, 7th Edn. at pp. 358-59 under the heading “Surrender, Abdication, Dictationâ€

and sub-heading “Power in the wrong handsâ€​ as below:

“Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority

is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by

declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is

exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that

they condemn some administrative arrangements which must seem quite natural and proper to those who make them…. Ministers and their

departments have several times fallen foul of the same rule, no doubt equally to their surprise….†In the instant case I find that the power conferred

on the Collector was in fact exercised by his successor in office i.e. by another Collector. There is no evidence of the same having been exercised by

any other authority.

The petitioner next relied upon Joint Action Committee Vs. D.G.Civil Aviation and Ors. reported in (2011)5 SCC 435. In the said decision at

Paragraphs 26 & 27, it was held that no person, other than the Authority on whom power is conferred by Statute can exercise such authority. Even a

Superior/ Higher Authority cannot interfere with the functioning of such Statutory Authority. Paragraph 26 and 27 are set out hereinbelow.

The contention was raised before the High Court that the Circular dated 29-5-2008 has been issued by the authority having no competence, thus

cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass

the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours,

persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to

carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who

has no statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd. v. Cane Commr. of Bihar [(1969) 1 SCC 308 : AIR 1970

SC 1896] , Chandrika Jha v. State of Bihar [(1984) 2 SCC 41 : AIR 1984 SC 322] , Tarlochan Dev Sharma v. State of Punjab [(2001) 6 SCC 260 :

AIR 2001 SC 2524] and Manohar Lal v. Ugrasen[(2010) 11 SCC 557 : (2010) 4 SCC (Civ) 524 : AIR 2010 SC 2210] .)

Similar view has been reiterated by this Court in Commr. Of Police v. Gordhandas Bhanji [AIR 1952 SC 16] , Bahadursinh Lakhubhai Gohil v.

Jagdishbhai M. Kamalia [(2004) 2 SCC 65 : AIR 2004 SC 1159] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117 : AIR 2008 SC 1888]

observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed

therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates

the constitutional scheme. As already noted in this case, the impugned order was passed by a person who held the very same post, i.e of a Collector.

Even in Hussein Ghadially Vs. State of Gujarat reported in (2014) 8 SCC 425, cited by Mr Kapoor, at Paragraphs 21.1 and 22.2, it was held that

when a particular authority designated under Statute, to exercise certain powers, only such Authority can exercise power. Paragraph 21 is set out here

21.1. We say so firstly because the statute vests the grant of approval in an authority specifically designated for the purpose. That being so, no one

except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to

the authority designated by the statute will have the effect of rewriting the provision and defeating the legislative purpose behind the sameâ€"a course

that is legally impermissible. In Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435] this Court

declared that even senior officials cannot provide any guidelines or direction to the authority under the statute to act in a particular manner. In the

instant case again Mr. Manas Barman was the person who succeeded Mr. Don Bosco Lepcha in the same post. It is the same authority under statute

therefore that passed the impugned order.

The writ petitioner next relied in the case of Rangku Dutta vs. Stateof Assam reported in (2011) 6 SCC 358. In Paragraph 20 and 21 referring to a

decision of the Privy Council, the Supreme Court reiterated the same proposition as referred to in the casesreferred to hereinabove. Paragraph 21 is

set out hereunder:-

Whether the Deputy Superintendent of Police is a District Superintendent of Police or not is a different question which we need not decide in this

case. But one thing is clear that the requirement of approval must be made at the initial stage of recording the information. If there is absence of

approval at the stage of recording the information, the same cannot be cured by subsequent carrying on of the investigation by the DSP. Reference in

this connection is made to the principles laid down by Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin Leonard

MacFoy v. United Africa Co. Ltd. [1962 AC 152 : (1961) 3 WLR 1405 : (1961) 3 All ER 1169 (PC)] Lord Denning, speaking for the unanimous

Bench, pointed out the effect of an act which is void so succinctly that I better quote him: (AC p. 160)

“… If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is

automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is

founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.†(emphasis in original)

We are in respectful agreement with the aforesaid view. Therefore, the evidence of PW 4 and PW 6 do not come to any aid of the State counsel in

the facts of the present case.

The petitioner thereafter relied upon a Single Bench decision dated 23rd February, 2004 in W.P. No.1977(W) of 1999 in the case of Ruby General

Hospital Vs. RBI and Ors. The facts in that case were that by an order passed in a writ petition before this Court, the 3rd Respondent therein namely

the General Manager of RBI was directed to consider and dispose of a representation. The representation was heard and disposed of by a higher

authority, namely the Executive Director. The Single Bench of the High Court held that only the General Manager could have disposed of the

proceedings and not the Executive Director.In the instant case, this Court on 12th February, 2018 directed the Collector to dispose of the writ petition.

Per Contra Mr Mukherjee relied upon a decision of the Supreme Court in Ossein and Gelatine Manufacturers' Assn. v. Modi Alkalies and

Chemicals Ltd., (1989) 4 SCC 264 at page 268 6. There was some discussion before us on a larger question as to whether the requirements of natural

justice can be said to have been complied with where the objections of parties are heard by one officer but the order is passed by another. Shri Salve,

referring to certain passages in Local Government Board v. Alridge [1915 AC 120 : 84 LJKB 72] , Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER

66 : (1963) 2 WLR 3] , Regina v. Race Relations Board, Ex parte Selvarajan [(1975) 1 WLR 1686] and in de Smith's Judicial Review of

Administrative Action (4th Edn., pp. 219-220) submitted that this was not necessarily so and that the contents of natural justice will vary with the

nature of the enquiry, the object of the proceeding and whether the decision involved is an “institutional†decision or one taken by an officer

specially empowered to do it. Shri Divan, on the other hand, pointed out that the majority judgment in Gullappalli Nageswara Rao v. APSRTC [AIR

1959 SC 308 : 1959 Supp 1 SCR 319] has disapproved of Alridge case [1915 AC 120 : 84 LJKB 72] and that natural justice demands that the hearing

and order should be by the same officer. This is a very interesting question and Alridge case [1915 AC 120 : 84 LJKB 72] has been dealt with by

Wade [Administrative Law, 6th Edn., p. 507 et seq] . We are of opinion that it is unnecessary to enter into a decision (sic discussion) of this issue for

the purposes of the present case. Here the issue is one of grant of approval by the Government and not any particular officer statutorily designated. It

is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners. We

are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case.

In the instant case this Court’s order dated 12th February 2018 cannot be understood to have been directed against any particular individual

but to the post and warranted an institutional decision. The ratio in each of the cases cited by Mr Kapoor, is that only the post holder can exercise the

power conferred on the post and none else. The post of collector in the said order of the coordinate bench cannot mean any particular individual or

particular person. An order of Court cannot be interpreted so as to lead to an illegality. No court can be deemed to have intended any illegality. An

order of Court must be held in the highest pedestal and seen in complete Solemnity. There is therefore need to understand an order of Court in

complete legality and in harmony with law. If the petitioner in fact thought that the Court had intended that only Mr Lepcha had to pass orders then it

could have approached the said Judge for contempt of his order. It has not chosen to do so.

Itherefore find that Mr. Manas Barman as Collector-in-Charge didhave authority in terms of the order dated 12th February, 2018 to pass the order

in question.

Mr. Kapoor also argued that since the matter was heard by an earlier Collector, the new incumbent should have given him an opportunity to hear

afresh after the concerned person demitted office. There may be some substance in this argument. It however appears from the decision making

process that notes of arguments were duly filed by the parties. It cannot be said that the writ petitioner was not aware of the proceedings. The same

is evident from the instant 3rd writ petition. The 2nd writ petition, complained of Mr. Lepcha, last incumbent in the order prior to Mr. Burman, not

passing orders despite a hearing. While it is true that he demitted office before doing so, the writ petitionerhad knowledge of Barman, Lepcha’s

successorin-office, being seized of the matter. This is so as the instant writ petition affirmed on 23rd March, 2018 challenged the process of

adjudication being taken up by Mr. Manas Barman. The petitioner thus had knowledge of the proceedings before Barman. The petitioner could easily

have asked for personal hearing before Mr. Manas Barman. Not having done so despite knowledge of proceedings must be deemed to have waived

such right of personal hearing. The said process cannot otherwise be faulted in view of the Apex Court’s decision inOssein and Gelatine

Manufacturerscase (Supra) referred to herein above.

On the question of the two stages of payment of duty, as submitted by Mr. Saktinath Mukherjee, it is a settled proposition as held by the

Hon’ble Supreme Court in the case of New Central Jute Mills Vs. State of West Bengal and Other States reported in AIR 1963 SCC 1307 that

Stamp Duty is payable on an instrument first at the place of execution and secondly again if the instrument is presented for registration in a State

different from the state in which it was executed. Paragraph 20 and 21 are set out here

The result of this will be that if an instrument after becoming liable to duty in oneState on execution there becomes liable to duty also in another

State on receipt there, it must first be stamped in accordance with the law of the first State and it will not require to be further stamped in accordance

with the law of the second State when the rate of that second State is the same or lower; and where the rate of the second State is higher, it will

require to be stamped only with the excess amount and that in accordance with the law and the rules in force in the second State.

The mortgage deed which is the subject-matter of the present petition wasexecuted in Uttar Pradesh, though it related to property situated in West

Bengal and was received in that State for registration. The first dutiable event was the execution, which took place in U.P.; the second dutiable event

was the receipt in West Bengal. When it came before the officers of Uttar Pradesh for decision whether it was duly stamped or not, the officers of

Uttar Pradesh were bound to holdâ€"for the reasons we have discussed earlierâ€"that the instrument was not duly stamped as it did not bear Uttar

Pradesh stamps. The fact that the instrument had been stamped in accordance with the law of West Bengal could not justify a conclusion that it had

been stamped in accordance with the law in force in India. The Officers of the State of U.P. therefore rightly held that the original mortgage deed

was not duly stamped. Hence, the liability of the petitioner to pay Stamp Duty in Kolkata cannot be denied. The argument of Mr. Kapoor on Section

42 of the Stamp Act 1899 is also answered accordingly. The endorsement made by the Collector at Hyderabad is relevant to the presentation of the

document in the State of Telangana. The only question that remains is the quantum of Stamp Duty.

The next argument of the petitioner was on the merits of the impugned order. It was submitted that the order is perverse inasmuch as extraneous

materials not produced by the parties have been relied upon by the Collector-in-Charge.Ithowever appears to me that the method of assessment by

reference to the valuation of the property as published by the Government of Telangana as on 2013 and the back calculation and the method adopted

as also the quantum of Stamp Duty therefore needs to be looked into afresh. It is desirable that a higher authority in the Collectorate takes up the

matter in appeal and re-examines the same.

It is true that the matter was fixed for consideration of interim reliefs. However in view of the extensive arguments made by the parties over 2

days, and in view of the observations made herein there is little left to be decided by this Court in the writ application.

Hence it is ordered that the impugned order dated 8th May 2018 be referred to the Chief Controlling Revenue Authority, Kolkata, under Section

56 of the Indian Stamp Act, 1899 for taking a decision of all claims of the petitioner, in accordance with law. The said Chief Controlling Authority shall

hear and dispose of the appeal after giving a personal hearing to the writ petitioner or its legal representative and upon consideration of all material

placed by the Writ Petitioner and Collector Stamp Revenue , Kolkata.

As a condition precedent for considerationof the Reference by the Chief Controlling Revenue Authority and for using the document in evidence

before any forum and for the impugned order being kept in abeyance the petitioner shall deposit 75 % of the sum of Rs.7,43,60,494/- , being the sum

adjudicated in the impugned order, with the Collector of Stamp Revenue, Kolkata. The payment of the amount indicated hereinabove, shall be without

prejudice to the petitioner’s rights and contentions under the Law.

The said sum must be kept by the Collector in an separate interest bearing Fixed Deposit Account, in the name of his office, with any Nationalised

Bank and the same shall abide by the result of the order of the Chief Controlling Revenue as aforesaid.

The proceedings before the Chief Controller shall be decided expeditiously not later than a period of 3 months from the date of receipt of a formal

representation in writing by the writ petitioner, along with a copy of this order.

It is made clear that this Court has not interfered in any way with the pending Arbitration between the writ petitioner and the Respondent No.11.

Since no affidavits have been called for from the respondents none of the allegations in the writ application shall be deemed to be admitted.

With the aforesaid directions W.P.No.4475 (w) of 2018 is disposed of.

There shall be no orders as to costs.

Urgent xerox certified server copy of this judgment, if applied for, be supplied to the parties on urgent basis.

Later :

After this judgment is delivered, learned Counsel for the petitioner prays for stay of operation of this order. Such prayer is considered and refused.