Paramjit Kaur W/O Harnek Singh and anr. Vs. State of Punjab and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. bakhshish kaur, j.1. this judgment is against the order dated 16.2.2000 passed by the learned additional district judge, faridkot, whereby the appeal preferred by the petitioner against the order dated 26.7.1996 passed by the collector, district faridkot under section 47 of the stamps act, was dismissed.2. the fact giving rise to the present revision are that a sale deed dated jan. 20, 1995 was held to be under-stamped to be extent of rs. 3,38, 437. thus, a notice was issued for the recovery of the balance amount of stamp fee of rs. 42,334/- proceedings under section 47a of the stamps act were taken against the vendees and the vendors. 3. paramjit kaur ard karamjit kaur, the vendees in the sale deed appeared before the collector. however, none appeared on behalf of the vendors. therefore exparte proceedings were taken against them. the collector vide order dated july 26, 1996 after assessing the merits of the case besides general inspection of the site was of the opinion that the respondents i.e. the vendors and the vendees had cheated the government by getting the sale deed stamped at low rates. therefore an order for recovery of the deficiency in the stamp duty was passed whereby naib tehsildar was ordered to take action under section 48a of the stamps act (in short 'the act').4. aggrieved by the order, paramjit kaur and karamjit kaur (hereinafter referred to as the vendees) preferred appeal which was also dismissed by the learned additional district judge, faridkot, by observing that when seller himself had told the collector at the time of his inspection at the spot about the rate of land for which it was agreed to be sold, it stands proved that the sale deed was not executed at correct price prevalent there. in such circumstances, the deficiency of rs. 42.30/- under the stamp act has been validly assessed by the collector.5. the grievance of the petitioner is that the collector had taken suo motu notice of the under-value of the sale deed. in fact, no notice was served upon the petitioner. the price of the land cannot be fixed on the basis of estimate on the spot. in fact, the requirement of section 47a of the act is that the value of the property would be fixed by determining the price which the property would have fetched if sold in the open market on the date of execution of the sale deed. the procedure prescribed in the act was not followed, therefore, the court below have erred in ordering the petitioners to make deficiency in the stamp duty.6. as is apparent from the impugned orders, the vendees on the receipt of the notice, had appeared before the collector. this fact alone is not a deciding factor for the purpose of determining the value of the land as envisaged under section 47a of the stamp act. it is also made out from the record that the vendors at the time of inspection had told the collector about the rate of the land for which it was agreed to be sold. conced-edly, the statement of vendor lias not been recorded nor any other evidence had been collected or recorded on the spot. the value of the land can be determined by leading evidence by the parties. the explanation to section 47a provides as under:-'that the value shall be fixed by determining the price for which the propertywould have fetched if sold in the open market on the date of execution of the saledeed and it cannot be fixed on estimate basis.'7. it is also pertinent to note that the sale deed was executed on 20.1.1995 whereas the proceedings under section 47a of the act were initiated on 10.6.1996. thus, the reference regarding the recovery of deficiency in stamp duty could be made only after the registration of documents or in the course of registration of documents, not after such a long time, as held in abhinav kumar v. state of haryana and ors. 2001(2) icc 484.8. in view of the aforesaid, as the procedure provided under section 47a of thestamps act was not observed while passing the impugned order, this revision is accepted. the impugned order is set aside.