IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.06.2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.20040 of 2007 A.Barakath Ali .. Petitioner -vs- 1.The Joint Sub Registrar, Chidambaram, Cuddalore District 2.The Collector (Stamps) cum- Assistant Collector Chidambaram, Cuddalore District. 3.The Special Tahsildar Stamps – Cuddalore. .. Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari to call for the records in connection with the order of the 2nd respondent dt. 08.01.2004 in C.Pa.No.5443/01-02 and quash the same. For Petitioner : Mr.R.Srinivas For Respondents: Mr.V.R.Thangavelu, AGP O R D E R With the consent of the learned counsel appearing on either side, the Writ Petition itself has been taken up for consideration. 2. A Challenge has been made to an order passed by the second respondent in C.Pa.No.5443/01-02 dated 8.01.2004, in and by which the petitioner's property has been valued and a deficit Stamp Duty of Rs.1,86,862/- has been ordered to pay. 3. According to the petitioner, he is the native of Chidambaram and he is also an NRI doing business in Saudi Arabia. He purchased a property situated at Survey No. 302 and 301 and Door No.98-A, East Car Street, Chidambaram, with old building throughs a registered Sale Deed dated 29.6.2001, registered as Document No.2820 of 2001, in the office of the first respondent. The said document was not released and it was with held. It is his further case that https://hcservices.ecourts.gov.in/hcservices/ the second respondent has without knowledge conducted an enquiry into the market value of the property and determined the stamp duty payable thereon. According to the petitioner, he did not receive any notice or summon for any enquiry from any of the respondents and also did not receive any notice in Form I or Form II or any final orders; none of the notices contemplated in law were sent to the petitioner; the petitioner was not given any opportunity to demonstrate the correctness of the description and value of the proprty shown in the document and the stamp duty paid by him and he was not summoned for any inspection. 4. It is also his further case that on 21.5.2007, he received an order dated 15.5.2007, passed by the third respondent holding that an amount of Rs.3,28,906/- was due from him as Stamp Duty and he has to appear before the third respondent regarding the same on 31.5.2007. Accordingly the petitioner appeared before the third respondent on 31.5.2007 and he was also informed that a final order has been passed by the respondent on the Stamp Duty payable by him and therefore he has to pay the same. The petitioner requested the third respondent for a xerox copy of the said final order dated 8.1.2004 and only then he perused the order. 5. The petitioner claims that the second respondent has not fixed the market value himself and it was fixed relying on some report of the first respondent, which was never served on the petitioner. Therefore, the conclusion of the second respondent is illegal and the order suffers from legal infirmity, primarily on the aspect of lack of opportunity to the petitioner, as it was passed without notice or information, without affording an opportunity to defend himself, without following the procedure contemplated under the law and with non-application of mind. Hence, the above Writ Petition has been filed. 6. The respondent has filed a counter affidavit on on his behalf and on behalf of the other respondents and it is stated that the writ petition is not maintainable in law. It is stated that on proper intimation to the petitioner, the Joint-I Sub Registrar, Chidambaram had sent a report enclosing a original document No.2820 dated 29.11.2001 and relevant records to the Special Deputy Collector (Stamps), Cuddalore, requesting to take action under section 47A(1) of the Indian Stamps act, 1899 (hereinafter referred to as the Act). Thereafter it was registered in the M.R. Register as M.R.No.5443/01- 02 and then Form 1 Notice bearing No.C.Pa.5443/01-02 dated 28.3.2002 was sent to the writ petitioner by post calling for his representation, if any objection against the valuation of the registered property within 21 days. The petitioner has submitted his explanation subsequently with reference to Rule 6 of the said Tamil Nadu Stamp Rules 1968 (hereinafter referred as the Rules), an order of estimated value of the property and the deficit stamp duty to be https://hcservices.ecourts.gov.in/hcservices/ remitted thereon along with Form II notice calling upon him to lodge his objections, if any to such determination of the market value on 26.6.2002 at Taluk Office, Chidambaram before the third respondent. The said notice was sent to the petitioner in his Office Ref.C.Pa.No.5443/01-02 dated 13.6.2002 by post. However, he did not lodge any objection and appear before the Special Deputy Collector (Stamps) on that day. Therefore, on sending prior notice dated 20.9.2002 by post, the third respondent inspected the alleged property on 25.9.2002 along with the staff and made an enquiry about the present valuation of the property and reported the facts before the Special Deputy Collector (Stamps) Cuddalore. Meanwhile, the said Joint-I Sub Registrar, Chidambaram had also sent a notice in Ref.No.2039/2002 dated 30.9.2002 under the 'Samathan Scheme' informing the Government concession for settlement on payment of 60% of the deficit stamp duty and its registration fees to the writ petitioner. But he did not come forward to avail the said Government concession. Thereafter on the strength of the report of the third respondent, the Collector (Stamps) and Assistant Collector, Chidambaram, had issued a final order in Proceedings No. Cpa. No.5443/01-02 dated 08.01.2004 under section 47A(4) of the Act and also with reference to Rule 7(1) of the Rules and it was sent to the petitioner immediately by post. Accordingly the petitioner was given opportunities by sending Form-I and Form-II Notices which were sent to his postal address, but he did not avail the opportunities and thereafter on sending intimation by post, the third respondent along with Sub-Inspector of Survey and the Village Administrative Officer, Chidambaram, had inspected the alleged property and made an enquiry in public. The respondent claims that the petitioner is N.R.I. and he would have been going on abroad frequently, he had not disclosed his foreign address anywhere and hence, the Officers are not responsible for his ignorance. Therefore, the order of the second respondent is in accordance with the Act and the Rules and also it is made under the Tamil Nadu Stamp (Prevention of Under Valuation of Instruments) Rules, 1968. As the respondents have followed the procedure contemplated, issued notices in Form I and Form II and afforded opportunities and therefore the respondent has proceeded with further proceedings. In the above said contention, the respondents submits that the Writ Petition is not maintainable and therefore they prayed for dismissal of the same. 7. Heard Mr.R.Srinivas,learned counsel appearing for the petitioner and Mr.V.R.Thangavelu,learned Additional Government Pleader appearing on behalf of the respondents. 8. A primary contention was raised by the learned counsel for the petitioner that the petitioner is a NRI having a permanent address in his native place in Chidambaram and the property purchased has been registered as document No.2820 and therefore, the respondents have to follow the procedure under section 15 of the Rules in serving the notices either by tendering the notice or order https://hcservices.ecourts.gov.in/hcservices/ to the person concerned or his counsel or authorised agent; or to some adult member of the family; or to the person concerned by registered post acknowledgment due; or in the above of any modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence of business of the person concerned. Since the respondents have not followed the Rules, the petitioner has been deprived of availing of the opportunities and therefore, the impugned order suffers from legal infirmities. 9. On the other hand, the learned Additional Government Pleader controverting the submissions made by the petitioner submits that the petitioner has attended the enquiry and availed opportunities. He would also contend that the respondents have inspected the properties in the presence of the public and found that there is an under valuation and therefore the impugned order has been. 10. I have heard the submissions made by the learned counsel appearing on either side, perused the materials annexed in this Writ Petition. I have also perused the connected relevant records produced as per the direction of this Court. 11. A perusal of the documents and the records produced before this Court would reveal that the petitioner purchased the property situated in at Survey No. 302 and 301 and Door No.98-A, East Car Street, Chidambaram, with old building through a registered Sale Deed dated 29.6.2001, registered as Document No.2820 of 2001, in the office of the first respondent. It is also seen that certain proceedings have been initiated thereafter. From the averments of the respondent, it is seen that a report has been prepared and along with the original document it has been sent to the Special Deputy Collector (Stamps), Cuddalore, requesting to take action under section 47-A(1) of the Act and thereafter they claim that Form I notice bearing No.C.pa.5443/01-02 dated 28.3.2002 was sent to the petitioner, calling upon his representation, if any objection against the valuation of the registered property within 21 days and there was no explanation submitted by the petitioner. Thereafter Form II notice intimating that the deficit stamp duty has to be paid by the petitioner and calling upon the petitioner to file the objection if any to such determination of the market value and the deficit stamp duty. The respondent claims that the notice dated 13.6.2002 was sent by post and thereafter the petitioner did not lodge any objection and appear before the Special Deputy Collector (Stamps) on that date. The respondents appearred to have inspected the property and conducted an enquiry and again a notice dated 30.9.2002 was sent to the petitioner intimating that there is a 'Samadhan Scheme' for settlement on payment of 60% of the deficit stamp duty and its registration fees and the petitioner may avail the scheme. Even then the petitioner has not come forward to avail the said concession. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the respondents passed the final roder on 8.1.2004. 12. A perusal of the records would also reveal that the final order dated 8.1.2004 was despatched from the Office and to examine whether it was sent to the petitioner as per Rules contemplated that in case of an individual person, the final order to be served by delivering or tendering the notice or order to the person concerned or his counsel or authorised agent; or by delivering or tendering the notice or order to some adult member of the family; or by sending the notice or order to the person concerned by registered post acknowledgment due; or if none of the aforesaid modes of service is practicable, by affixing the notice or order in some conspicuous part of the last known place of residence of business of the person concerned. 13. It is seen from the records that none of the above procedures have been followed by the respondents in despatching the above orders. Therefore, the orders suffer from the legal infirmity as it was not served to the petitioner as per Rule 15 of the Act, which provides for mode of service of notice and orders to the parties. As the procedure contemplated under the relevant Rules has not been followed by the respondents and notices appear to have not been served and therefore the petitioner has not availed the opportunities. If the notices would have been served as prescribed under law, the opportunity of hearing and availing concession of the Government, could have been followed by the petitioner and contested the matter in the manner known to law. It is also seen from the averments of the respondents' counter that the enquiry conducted and the procedure followed in conducting the enquiry are not done in the presence of the petitioner. Therefore, that the procedure contemplated for conduct of enquiry in the presence of the petitioner would be an appropriate manner and in the absence of such an enquiry, the action of the respondents appear to be against the procedure contemplated. Therefore in that count also the order suffers from legal infirmity. 14. In the light of the above procedural irregularity as there was non service of notice to the petitioner in the manner known to law and also in violation of Principles of Natural Justice as there is no opportunity of hearing and threfore, the impugned order suffers from legal infirmity and it is unsustainable. Accordingly, the impugned order of the second respondent dated 08.01.2004 passed in C.Pa.No.5443/01-02, set aside and the matter is remitted to the second respondent for fresh consideration following the procedure contemplated under the law and after affording an opportunity of hearing and then pass appropriate orders, within a period of eight weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 15. The Writ Petition is allowed on the above terms. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar rpa To 1.The Joint Sub Registrar, Chidambaram, Cuddalore District 2.The Collector (Stamps) cum- Assistant Collector Chidambaram, Cuddalore District. 3.The Special Tahsildar Stamps – Cuddalore. 1 cc To The Government Pleader, SR.24095 1 cc To Mr.R.Srinivas, Advocate, SR.24044 W.P.No.20040 of 2007 RSY(CO) SRA 7/7/2009 https://hcservices.ecourts.gov.in/hcservices/