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.
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 2013-14.
The petitioner has not approached the Chief Controlling Revenue Authority under Section 56 of the Indian Stamp Act and the notifications relied upon 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."
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.
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; 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.
(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 sub-section(1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section(3).
(4) If on enquiry under sub-section(2) and examination under sub-section(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 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 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."
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 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 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  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 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. In the said judgment the Court considered the earlier judgment of the Apex Court in the case of Mohd. Swalleh v. Addl. District Judge, Meerut (1988) 1 SCC 40 : AIR 1980 SC 94, wherein the Court held that the High court is justified in setting aside an invalid and improper order, where there was no appeal against the decision of the Prescribed Authority to the District Judge and therefore, the Court observed that it was not always necessary to set aside an order if it is found to have been passed that an authority or Court having no jurisdiction. Vide paras 3 & 4 the Apex Court has held thus:
"3. So far as the issue of jurisdiction is concerned, the learned counsel for the petitioner is right that the High Court had no jurisdiction to deal with the matter against the order of the Commission. However, while dealing with a similar issue this Court in Mohammad Swalleh & Ors. v. IIIrd All. District Judge, Meerut & Anr., AIR 1988 SC 94, observed:
"7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. (sic no appeal lay)... On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Art. 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art. 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken."
In view of the above, it is not always necessary to set aside an order if found to have been passed by an authority/court having no jurisdiction.
4. Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds."
26. 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.
27. In the case of Dr. Bal Krishna Agrawal, a pure legal issue was to the effect that as to whether a Professor directly recruited would be treated as appointed directly, or under promotion rules, though the promotion rules had not come into force at the time he faced Selection Committee for direct recruitment and recommendation of the Selection Committee was approved by the Executive Council. The issue was raised that the name of that petitioner in the said case was also under consideration under promotion rules. The Court observed that the promotion rules since had not come into force at the time when the petitioner faced selection and was appointed, he would be deemed to have been appointed under direct recruitment of selection facing the selection committee. So virtually at the end of University there was no adjudication as such.
28. In the case of Dhani Ram (supra), the question again was whether one should be relegated to the remedy of labour laws or the Court exercising power under Article 226 of the Constitution of India could consider the grievance of the employee. It was a case where adjudication had yet not taken place.
29. One must bear in mind that in the matters where adjudication takes place by virtue of a proceeding instituted under a special statute and a forum of appeal is provided for, the first course should be that the party aggrieved against the adjudication should prefer appeal. It is only when the case is such that a serious miscarriage of justice would occur because of the want of authority in adjudication that a recourse to the remedy of Article 226 of the Constitution should be permitted.
30. In a case where a person has to initiate a fresh proceeding under the labour laws and if he has already applied for a writ, such a case is quite distinguishable from the cases where proceedings are instituted at a first forum whose order is appelable like here under the Stamp Act, 1899.
31. However, while holding that the petitioner has an efficacious alternative remedy of appeal vide U.P. Amendment in the Stamp Act, 1899, I would be failing in my duty if I do not refer to the judgment of the another Constitution Bench in Himmatlal Harilal Mehta v. State of Madhya Pradesh & Ors AIR 1954 SC 403 which is a case quite close to the one in hand, however, the only distinguishable feature on facts is, that in the said case the Court held the alternative remedy to be onerous and burdensome on the ground it required deposit of entire amount of tax sought for availing the alternative remedy and then the Court observed that such a provision would hardly be described as adequate alternative remedy. Hear in the present case, the party who has been held to have paid deficient stamp duty, is not required to pay the entire amount for availing the remedy of appeal and only in the event if such party seeks stay over the order by which he has been asked to make good the stamp duty, a disputed amount, it is required to deposit only 1/3rd of the amount as condition.
32. In the case of Himmatlal Harilal Mehta (supra), the Court had observed that the only exception to the general rule of availing alternative statutory remedy, is whe
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re the allegation has been made of violation of fundamental rights. The court quite unequivocally held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226 of the Constitution. 33. 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 physical 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. 34. In the present case, while I hold that the petitioners in the respective writ petitions have efficacious alternative remedy of appeal, I have one more reason to relegate them for this remedy because the petitioners would have in ordinary course deposited 1/3rd of the amount while availing the remedy of appeal. In the present case, while entertaining the writ petition on 24.11.2014, the Court had directed them to deposit the entire amount paid towards the deficiency of stamp under the orders impugned in the respective petitions, but there is nothing on record to show that the said order has been complied with nor, any affidavit has been filed. There is yet another reason to relegate the petitioners to alternative remedy and that is that the leading writ petition being Writ - C No. 62910 of 2014, with which all these writ petitions were tagged, has already been disposed off with a direction to the petitioner therein to prefer the appeal under the Stamp Act vide order dated 24.05.2019 and further direction has been issued to dispose off the same within a period of three months. The legal issues and the issues of fact involved in all these petitions including the one which has already been disposed off, are common and therefore, the appellate authority can pass orders in these cases also if the direction is issued. 35. In view of the above, therefore, I decline to interfere in the matter on merits of the case on the ground of availability of efficacious alternative remedy of appeal to the petitioners under Section 56(1-A) of the Stamp Act, 1899 vide U.P. Amendment. It is further provided that in case the appeal is preferred within three weeks from the date of this order, the same shall be considered and disposed off by the appellate authority on merits, of course, strictly in accordance with law within a further period of three months from the date of production of certified copy of this order. 36. It is further provided that since the impugned orders were stayed initially by this Court on 24.11.2014 and 26.11.2014 in respective writ petitions and stay orders were subject to the condition that the petitioners shall deposit the entire amount ordered to be paid thereunder, but there is nothing on record to demonstrate whether the said deposits have been made or not, it is hereby provided that in the event petitioners have not deposited under the order of this Court initially passed and the petitioners want interim stay on the order passed by the Stamp Authority during pendency of appeal, they may deposit 1/3rd of the disputed amount as provided for under the provisions and in the event they deposit the said amount within a period of four weeks from the date of this order, appropriate order on their stay application shall be passed by the appellate authority within a further period of two weeks. 37. With the aforesaid observations and directions all the writ petitions are disposed of.