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2007 DIGILAW 199 (ALL)

AMBRISH TANDON v. STATE OF UTTAR PRADESH

2007-01-25

S.K.JAIN, U.K.DHAON

body2007
JUDGMENT By the Court.—Heard Sri N.K. Seth, learned counsel for the petitioners and Sri Vinod Kumar Singh, learned Additional Advocate General assisted by the learned Standing Counsel. 2. The petitioners have approached this Court against the impugned order dated 27.9.2004 passed by the Additional District Magistrate (Finance & Revenue), Lucknow and the demand notice dated 20.1.2005. The petitioners have alleged that through a registered sale deed dated 16.4.2003, they have purchased house No. 17/1, Ashok Marg, Lucknow for a total sale consideration of Rs. 1.55 crore on which a stamp duty of Rs. 15.53 Lakh was paid. The petitioners have further alleged that the opposite party No. 3 has issued a notice under Section 47-A/33 of the Indian Stamp Act read with Rule 350 to the petitioner No. 1 asking him to show cause and appear on 30.8.2003 as there is deficiency of the stamp duty. The petitioner No. 1 after the receipt of the notice submitted the detailed objection dated 29.8.2003 stating, inter alia, that in the lease deed executed by the Nazool Officer in favour of Sri Har Charan Singh, the plot area is mentioned as 11029 Sq. Ft. which is the same as mentioned in the sale deed dated 16.4.2003. It was also stated that the property purchased through the sale deed is not a corner property and the house constructed over the plot is at a distance of more than 20 meters from the centers of Ashok Marg, Lucknow and the stamp duty paid by the petitioners on the sale deed was proper. 3. Learned counsel for the petitioners submitted that before passing the impugned order dated 27.9.2004 the A.D.M. (Finance & Revenue), Lucknow has not afforded any opportunity to the petitioners and the impugned order was passed in a most arbitrary and illegal manner ignoring the objection preferred by the petitioner. He further submitted that at the time of sale deed the house was a residential property, however, in order to avoid unnecessary harassment at the hands of the opposite parties, the petitioners for the purpose of the stamp duty and registration had valued the said property at the rate fixed by the Collector, Lucknow for the commercial land i.e. at the rate of 11,300/- per Sq. Mtr. Mtr. and since it is situated on road more than 9 meter wide, consequently, for the purpose of the stamp duty and registration additional 10% was added to the value and for the purpose of stamp duty and registration construction of the house was valued considering it to be a residential house which was being used for residential purposes and although the petitioners were entitled to a depreciation of approx. 30% on the constructed portion of the house but no deduction towards the depreciation while calculating the value of the said house for the purpose of stamp duty and registration was made. He further submitted that the area of the plot over which the house of the petitioners exists is 11029 Sq.Ft. for which, a freehold deed was also executed by the Nazool Officer and the plot is not a corner plot as alleged by the Additional District Magistrate (Finance & Revenue). He further submitted that 11.5.2004 was a local holiday at Lucknow on account of Mahabirji-Ka-Mela and 25.7.2004 was Sunday but the Order sheet -shows that the case was taken up by the A.D.M. (Finance & Revenue) on those dates also and orders were passed. He further submitted that the impugned order dated 27.9.2004 and the demand notice dated 20.1.2005 deserve to be quashed by this Hon’ble Court. 4. Sri Vinod Kumar Singh, learned Additional Advocate General appearing on behalf of the opposite parties submitted that there is no illegality in the impugned order dated 27.9.2004 passed by the Additional District Magistrate (Finance & Revenue), Lucknow. He further submitted that the disputed question of fact cannot be decided in writ jurisdiction and the petitioners have a remedy of appeal against the impugned order. He further submitted that Sri Har Charan Singh, who was the owner of the property applied for converting the land use for commercial purposes and thereafter freehold deed of the leased Nazool land dated 17.10.2001 was executed for commercial purposes. He further submitted that after providing due opportunity of hearing to the petitioners, the A.D.M. (Finance & Revenue) passed the impugned order dated 27.9.2004 and directed the petitioners to make good the stamp duty and also imposed a penalty. 5. We have considered the submissions made by the learned counsel for the parties and gone through the record. 6. He further submitted that after providing due opportunity of hearing to the petitioners, the A.D.M. (Finance & Revenue) passed the impugned order dated 27.9.2004 and directed the petitioners to make good the stamp duty and also imposed a penalty. 5. We have considered the submissions made by the learned counsel for the parties and gone through the record. 6. The Hon’ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, A.I.R. 1999 S.C. 22, Harbanslal Sahnia and another v. Indian Oil Corpn, Ltd. and others, (2003) 2 S.C.C. 107 has held that mere availability of alternative remedy will not bar the jurisdiction of the Court. The Rule of alternative remedy does not oust the jurisdiction of this Court under Article 226 of the Constitution of India, if it is found necessary for promotion of justice and prevention of injustice. 7. The petitioners have alleged that through a sale deed dated 16.4.2003 they have purchased house No. 17/1, Ashok Marg, Lucknow for a total sale consideration of Rs. 1.55 crore on which a stamp duty of Rs. 15.53 Lakh was paid. The petitioners along with the writ petition have filed several documents including the sale deed dated 16.4.2003 executed by Sri Har Charan Singh in favour of the petitioners, the freehold deed executed by the Nazool Officer dated 17.10.2001 in respect to Nazool land No. 17/1, Outram Road, Lucknow, now known as 17/1, Ashok Marg, Lucknow site plan of the plot and the copy of the objection dated 29.8.2003 to the notice dated 16.8.2003. Sri Har Charan Singh S/o. Late Sri Mehar Singh was the owner of the property in dispute on 17.10.2001 when the Nazool Officer executed the free-hold deed in favour of Sri Har Charan Singh, the area of the plot is mentioned as 11029 Sq. Ft. in the free-hold deed. The same area mentioned in the sale deed dated 16.4.2003 executed by Sri Har Charan Singh in favour of the petitioners. The boundaries of Plot No. 17/1, Outram Road, now Ashok Marg, Lucknow as mentioned in the free hold deed is as follows : North - Plot No. 2. South - Lawrence Terrace East - Outram Road now Ashok Marg, West - Plot No. 9. 8. The same boundaries are mentioned in the sale deed dated 16.4.2003, which was executed by the Vendor in favour of the petitioners. South - Lawrence Terrace East - Outram Road now Ashok Marg, West - Plot No. 9. 8. The same boundaries are mentioned in the sale deed dated 16.4.2003, which was executed by the Vendor in favour of the petitioners. From the documents, which are on record, it is evident that Plot No. 17/1, Outram Road (Ashok Marg), Lucknow is not a corner plot. The area of the said plot as per the sale deed and as per the free hold deed executed by the Nazool Officer is 11029 Sq.Ft. The documents, which the petitioners have annexed along with the writ petition reveals that the area of the plot is 11029 Sq. Ft. and it is not a corner plot. The Additional District Magistrate (Finance & Revenue) has wrongly mentioned the area of the plot as 12099 Sq. Ft. and in the impugned order dated 27.9.2004 the A.D.M. (Finance & Revenue) has also wrongly mentioned that the plot is a corner plot. The petitioners have paid the stamp duty of the land at the commercial rate, which was prevailing at the relevant time. The building was a residential house. In the objection dated 29.8.2003, the petitioners have specifically stated that the house was built in the year 1969 which was thereafter renovated as per the sanctioned plan approved by the Lucknow Development Authority. 9. The order sheet of Case No. 653/Stamp/2003 under Section 47-A/33 Stamps Act of the A.D.M. (Finance & Revenue), Lucknow, a copy of which has been annexed as Annexure-19 to the writ petition from 30.8.2003 to 22.9.2004 reveals that the case was fixed for 11.5.2004 when it was adjourned for 25.7.2004 and thereafter the same was adjourned on 25.7.2004 for 24.8.2004. On 11.5.2004 was a local holiday at Lucknow on account of Mahabirji-Ka-Mela and 25.7.2004 was a Sunday but even then the case was taken up by the Additional District Magistrate (Finance & Revenue) on those dates also and orders were passed as evident from the order sheet. 10. In the impugned order the Additional District Magistrate (Finance & Revenue) has wrongly mentioned the area of the plot as 12099 Sq. Ft. as in the sale deed as well as in the freehold deed executed by the Nazool Officer, the area of the plot is mentioned as 11029 Sq.Ft. 10. In the impugned order the Additional District Magistrate (Finance & Revenue) has wrongly mentioned the area of the plot as 12099 Sq. Ft. as in the sale deed as well as in the freehold deed executed by the Nazool Officer, the area of the plot is mentioned as 11029 Sq.Ft. The plot is also not a corner plot as alleged in the impugned order as boundaries of the plot mentioned in the freehold deed executed by the Nazool Officer and in the sale deed dated 16.4.2003 only on one side there is road. This fact is not disputed that at the time of execution of sale deed the house was used for residential purposes and accordingly the stamp duty was paid. The impugned order dated 27.9.2004 passed by the Additional District Magistrate (Finance & Revenue) is legally not sustainable. 11. In the result, the writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 27.9.2004 passed by the Additional District Magistrate (Finance & Revenue), Lucknow and the demand notice dated 20.1.2005, the copies of which have been annexed as Annexures 20 and 18 to the writ petition. 12. In these circumstances, there shall be no order as to costs. ————