Neutral Citation No.

- 2019:AHC:127999

A.F.R.

In Chamber

Case :- WRIT - C No. - 62905 of 2014

Petitioner :- M/S Vishwaleela Steel Tube Industries
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 62909 of 2014
Petitioner :- M/S Saudagar Engineering Pvt. Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63512 of 2014
Petitioner :- M/S Vansh Ispat Pvt. Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63514 of 2014
Petitioner :- M/S Nirmal Industrial Corporation
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63515 of 2014
Petitioner :- M/S Vardan Alloys And Pigments
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63516 of 2014
Petitioner :- M/S Eppcon Lubricants India Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
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Case :- WRIT - C No. - 63517 of 2014

Petitioner :- M/S J.M.A. Food Products Pvt. Ltd.
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63534 of 2014
Petitioner :- Sri Anurag Agarwal
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63537 of 2014
Petitioner :- M/S Jain Iron Private Limited
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.
With
Case :- WRIT - C No. - 63540 of 2014
Petitioner :- M/S Lakshmi Steel Traders
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mayank Agrawal
Counsel for Respondent :- C.S.C.

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

 3

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.
 4

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 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.”

(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
 5

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:
 6

“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

 7

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

 8

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
 9

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
 10

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:
 11

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
 12

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:
 13

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

 14

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

 15

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,

 16

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
 17

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
 18

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
 19

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

 20

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.”

(Emphasis added)

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
 21

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

 22

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,

 23

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 where 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.
 24

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
 25

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

 26

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.

Order Date :- 29.7.2019

IrfanUddin