Research › Browse › Judgment

Allahabad High Court · body

1991 DIGILAW 662 (ALL)

Jaibhagwan Das v. State of U. P

1991-04-24

D.S.SINHA, S.K.DHAON

body1991
JUDGMENT S.K. Dhaon, J. - The Muzaffarnagar Co-operative Housing Colony Society Limited (hereinafter referred to as the Society) purchased certain plots on different dates under registered sale deeds. Separate notices were sent by the Additional District Magistrate/ District Stamp Officer, Muzaffarnagar, to the members of the Society to show cause as to why the alleged deficiency in the payment of the stamp duty and also the additional duty payable under Section 62 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the Adhiniyam) may not be recovered from them. Separate objections were filed by the members of the society. All the cases were consolidated and registered as Stamp Case No. 109/76-77. On 31.1.78 the Additional District Magistrate passed an order that the sale deeds executed in favour of the members of the Society were exempt from stamp duty thereon. However, he took the view that the members of the Society were liable to pay stamp duty at the rate of two percent on the considerations of their respective sale deeds under Section 62 of the Adhiniyam. The petitioner preferred a revision application, purporting to be under Section 56 of the Stamp Act (hereinafter referred to as the Act). On 5.5.78, the Chief Controlling Revenue Authority dismissed the revision application as not maintainable. This order is being impugned in the present petition. 2. Section 2(14) of the Art provides that an "instrument" includes every document by which any right or liability is, or purports to be, created, transferred, limited extended extinguished or recorded. Section 3, inter alia, enumerates the instruments which shall be chargeable with duty of the amount indicated in Schedule-I as the proper duty therefor. The sale deeds in question undoubtedly are instruments within the meaning of the Act and are chargeable with a duty under Section 3. Section 29, inter alia, provides that the expenses of providing a proper stamp duty shall be borne, in the case of conveyance, by the grantee. Therefore, under the Act the stamp duty was payable by the members of the Society. Sections 33, 38 and 40 fall in Chapter IV of the Act. The first provision provides for examination and impounding of instruments. The second provision provides the manner in which an instrument impounded has to be dealt with. Therefore, under the Act the stamp duty was payable by the members of the Society. Sections 33, 38 and 40 fall in Chapter IV of the Act. The first provision provides for examination and impounding of instruments. The second provision provides the manner in which an instrument impounded has to be dealt with. The last provision empowers the Collector to direct the payment of the proper stamp duty or the amount required to make up the proper duty together with penalty, etc. 3. Sub-section (1) of Section 62 of the Adhiniyam enjoins that the duty imposed by the Act, on any deed of transfer of immovable property shall, in the case of immovable property situated within the area in which the Act is in force be increased by two percent on the amount or the value of the consideration with reference to which duty is calculated under the Act. Sub-Section(2) provides that all collections resulting from the increase referred to in sub-section (1) shall, after deduction of incidential expenses, if any, be allocated and paid by the State Government to the Board. (U.P. Avas Evam Vikas Parisnad). Sub Section (3) lays down that for the purposes of Section 62, Section 27 of the Act shall be read as if it specifically requires the particulars referred to therein to be separately set forth in respect of the property situate within the area where the Act is in force and the property situate outside such area. In sub-section (4) it is provided that for the purposes of Section 62, Section 64 of the Act shall be so read and construed as if it referred to the Board as well as the State Government. 4. Section 62 of the Adhiniyam envisages an increase by two percent on the duty imposed under the Act. The question of levy of the additional stamp duty or an increased stamp duty can only arise if and when a deed of transfer of immovable property is subject to the imposition of duty under the Act. Sub-section (2) clarifies that the collection of the stamp duty as a whole, which would include amount assessed as duty under the Act as well as increased duty under Section 62, shall take place by or on behalf of the State Government under the Act. Sub-section (2) clarifies that the collection of the stamp duty as a whole, which would include amount assessed as duty under the Act as well as increased duty under Section 62, shall take place by or on behalf of the State Government under the Act. Thereafter, the amount collected as a result of the increased stamp duty shall be allocated and paid by the State Government to the Board. Thus, the provisions of sub-section (1) and sub-section (2) of Section 62 leave no room to speculate as to whether the additional duty or the increased duty, referred to in Section 62, is a part and parcel of the duty imposed under the Act. The only conclusion possible is that the realisation of the increased or additional duty really takes place under the Act although the authority to levy the increased or additional duty flows from Section 62. 5. The modification of Section 27 of the Act in sub-section (3) of Section 62 reinforces the intention of the Legislature manifested in sub-sections (1) and (2). Section 64 of the Act, inter alia, provides that any person who, with an intent to defraud the Government, executes any instrument in which all the facts and circumstances required by Section 27 to be set forth in such instrument are not fully and truly set forth, shall be punishable with fine which may extend to five thousand rupees. Sub-section (4) of Section 62 of the Adhiniyam modifies Section 64 of the Act to the extent that any intention or act to defraud the Board has also been made punishable. Thus, a combined reading of the relevant provisions of the Act referred to above and the provisions as contained in Section 62 of the Adhiniyam, clearly indicates that the machinery as constituted under the provisions of the Act applies whole hog to realisation of the additional or increased duty as contemplated under Section 62 of the Adhiniyam. 6. Sub-section (1) of 56 of the Act, inter alia, provides that the power exercisable by a Collector under Chapter IIV shall in all cases be subject to the control of the Chief Controlling Authority. We have already indicated that the Additional Collector while passing the order dated 30.1.78, purported to exercise powers under Chapter IV of the Act. Therefore, the exercise of such power was and is subject to the control of the Chief Controlling Revenue Authority. We have already indicated that the Additional Collector while passing the order dated 30.1.78, purported to exercise powers under Chapter IV of the Act. Therefore, the exercise of such power was and is subject to the control of the Chief Controlling Revenue Authority. For conferring revisional jurisdiction in sub-section (1) of Section 56, the key word is "Control". Since any action taken under Chapter IV is subject to or conditional upon the control of the Chief Controlling Revenue Authority, any power exercised by the Collector under Chapter IV shall be subject to the revisional or supervisory jurisdiction of the Chief Controlling Revenue Authority. In Trideshwar Dayal and another v. Maheshwar Dayal and others, AIR 1990 SC 485 , it has been held that under section 56 the Chief Controlling Revenue Authority has full powers to interfere with the Collector's order, provided it is found to be erroneous. 7. The Chief Controlling Revenue Authority, in the instant case, has taken the view that since the imposition of the additional or increased duty has not taken place under the provisions of the Act the adjudication of the Additional Collector did not pertain to the matters falling under the Act but under the Adhiniyam, therefore, he had no jurisdiction to entertain matters pertaining to the levy of the duty under the Adhiniyam. In view of the above discussion, the view taken by the Chief Controlling Revenue Authority is untenable. He, therefore, failed to exercise the jurisdiction vested in him by law. 8. The petition succeeds and is allowed in part. The order dated 5.5.78, passed by the Chief Controlling Revenue Authority is quashed. The said authority is directed to admit Revision No. 1415 (S) of 1977-78, Jai Bhagwan Das v. The Additional District Magistrate and another and dispose of the same on merits and in accordance with law as expeditiously as possible. 9. There shall" be no order as to costs.