Court No. - 5 Case :- WRIT - C No. - 1132 of 2022
Petitioner :- Babe Ke Educational Charitable Society,Lakhimpur Kheri Thru. Manager Sri Pritam Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue,Lucknow And 4 Others
Counsel for Petitioner :- Shishir Singh Chauhan,Adarsh Pratap Singh,Rohit Jaiswal
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioner.
2. This petition has been filed challenging the order dated 30.12.2021 passed by the respondent No. 3 in Case No. 1015 of 2020 State of U. P. vs. Baba Ke Educational Charitable Society', under Section 47-A of the Indian Stamp Act, 1899.
3. Learned Standing Counsel for the State has raised preliminary objection regarding the maintainability of the petition in view of the statutory remedy being available to the petitioner under Section 56 of the Indian Stamp Act.
4. Learned counsel for the petitioner says that in view of the law settled by the Hon'ble Supreme Court in the Case of
Whirlpool Corporation vs. Registrar of Trademark (1998) 8 SCC 1 availability of alternative remedy may not be a bar if three conditions are satisfied including the condition of the order/proceeding or being without jurisdiction, or being passed without following the principles of natural justice.
5. Learned counsel for the petitioner has also placed reliance upon an order passed by the Co-ordinate Bench of this Court in Writ Petition No. 3423(M/S) of 2008, "Smt. Raj Goyal vs. A. D. M. (Finance & Revenue) Unnao" wherein this Court was considering a challenge to an order passed by the A.D.M.
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(Finance & Revenue) Unnao under Section 47 (A) of the Indian Stamp Act whereby the deficiency in stamp duty was found and penalty was imposed. The Court rejected the preliminary objections raised by the Standing Counsel regarding alternative remedy of filing an appeal or revision being available to the petitioner. This Court entertained the petition by observing that the writ petition was filed in the year 2008 that was long years ago. Pleadings had been exchanged. There was no necessity to relegate the petitioner to alternative remedy in 2020 after twelve years and the controversy raised in the writ petition was purely legal in nature which could be decided by the High Court itself without there being much dispute about facts.
6. This Court had relied upon the judgements in Sumit Gupta vs. State of U. P. & Others (2011) AIR (Allahabad) 135 in Writ C No. 66621 of 2010 in respect of a gift deed wherein it was held that the value mentioned in the gift deed is final and conclusive and that the market value is not material as in Article 33 of Schedule 1(B) of the Act in respect of a gift, the words used are "value of the property" and not "market value". The Court had allowed the petition by its order dated 29.01.2020.
7. It has been submitted by the learned counsel for the petitioner that in this case also the property in question was gifted to the petitioner and market value of the same would not be relevant.
8. Learned counsel for the petitioner has placed reliance upon another judgement of this Court in the Case of Jagadguru Kripalu Parishat vs. State of U. P. & Others (2013) AIR (Allahabad) 196, which is to the same effect where this Court observed that in so far as the gift deed is concerned the value mentioned in the instrument of gift shall be considered to be final and not the market value of the property in question.
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9. This Court having considered the Co-ordinate Bench decisions in the case of "Smt. Raj Goyal vs. A. D. M. (Finance & Revenue) Unnao, Sumit Gupta vs. State of U. P. & Others and Jagadguru Kripalu Parishat vs. State of U. P. & Others
finds that in none of the said judgements there is any reference of a Constitution Bench Decision of the Hon'ble Supreme Court in the Case of N. P. Ponnuswami vs. Returning Officer 1952 SCR 218. The Constitution Bench decision specifically deals with "statutory remedy" whereas the decision in Whirlpool Corporation vs. Registrar of Trademark deals with question of
"alternative remedy". There is a big difference between the statutory remedy and the alternative remedy.
10. Therefore, this Court being bound by the law settled by the Constitution Bench of the Hon'ble Supreme Court in the case of
N. P. Ponnuswami(Supra) cannot entertain this petition which is at the stage of fresh for admission. When rights and liabilities are created under a Statute and remedy in the Statute itself is provided, that remedy should first be availed of before filing a petition under extraordinary writ jurisdiction under Article 226 of the Constitution.
11. This petition is dismissed as not maintainable.
Order Date :- 25.2.2022 Darpan Sharma
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