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2013 DIGILAW 2242 (ALL)

SIMPLAST INDIA PVT. LTD. v. STATE OF U. P.

2013-09-06

ARUN TANDON

body2013
JUDGMENT Hon’ble Arun Tandon, J.—The petitioner before this Court seeks quashing of the recovery proceedings initiated by the respondents dated 15.3.2013 with reference to the order of the Assistant Commissioner Stamp’s, Gautam Budh Nagar dated 29.4.2009 and 30.5.2006 passed in Stamp Case No. 61/1280 of 2007-08 and Case No. 517/2005-06 respectively. Petitioner has further prayed that the respondents may be restrained from taking any coercive action against the petitioners and its properties in terms of the said recovery proceedings. 2. Facts in short leading to present writ petition are as follows: Subject-matter of dispute in the present writ petition is plot No. C-14, Phase-II, Noida, District-Gautambudh Nagar. On 18.11.2002 M/s Parag Agrotech Pvt. Ltd. executed a Lease-deed of the said plot in favour of M/s P.R.Packaging Ltd. This document was subject-matter of proceedings under Section 33/47-A of the Indian Stamp Act culminating in an order dated 30.5.2006 wherein the document was found to be deficiently stamped to the tune of Rs. 2,11,920/-. Penalty to the tune of Rs. 2,13,080/- was also imposed. What proceedings were taken against the said order, is not known. According to the petitioner, the order stands on record as on date as recovery in terms thereof are being taken. According to the petitioner under a sale-deed M/s KTL Industries Pvt. Ltd. became the owner of the said plot. This M/s KTL Industries Pvt Ltd. is stated to have executed a fresh lease on 1.5.2004 in favour of one M/s Fine Chemtech Pvt. Ltd of the plot. This lease-deed was also the subject-matter of proceedings under Section 33/47-A of the Indian Stamp Act culminating in order dated 29.4.2009, wherein it was found that the document was deficiently stamped to the tune of Rs. 5,48,380/-, penalty of Rs. 10,96,760/- was also imposed. What has happened thereafter in respect of the said proceedings, is also not known. According to the petitioner this order also stands on record as per his information. Subsequently one M/s KOA Tools India Ltd has sold the same plot C-14 to the petitioner on 15.6.2007. On 25.3.2013 the Revenue Authorities of District-Gautambudh Nagar have initiated recovery proceedings under the provisions of U.P.Z.A & L.R Act against the plot for recovery of the stamp duty and the penalty levied under orders dated 30.5.2006 and 29.4.2009. Hence, this petition. 3. On 25.3.2013 the Revenue Authorities of District-Gautambudh Nagar have initiated recovery proceedings under the provisions of U.P.Z.A & L.R Act against the plot for recovery of the stamp duty and the penalty levied under orders dated 30.5.2006 and 29.4.2009. Hence, this petition. 3. According to petitioner, he was not a party to the proceedings culminating in the order dated 30.5.2006 or in the proceedings culminating in the order dated 29.4.2009 and therefore, no recovery can be affected against the plot, which has been purchased by the petitioner on 15.6.2007. According to the petitioner, he was given to understand that the plot was not encumbered and that a good valid title has been passed under the sale-deed. It is further pointed out by the petitioner that in view of Section 48 read with Section 29 of the Indian Stamp Act, the liability of payment of the stamp duty in the matter of lease is upon the lessee and therefore, if there is, any deficiency in payment of stamp duty on the lease-deeds executed in 2002 and in 2004, then coercive action can be taken against the lessees of the two deeds namely M/s P.R.Packaging Ltd and M/s Fine Chemtech India Pvt. Ltd. alone. It is his case that plot No. C-14 could not be put to distress for recovery of the stamp duty in terms of the orders dated 8.3.2006 and 29.4.2009. In support of his case learned counsel for the petitioner has also placed reliance upon the judgment of the Division Bench of this Court in the case of Kunwar Pal Sharma and others v. State of U.P and others. He has also relied upon the judgment of Jiley Singh v. State of U.P and others, AIR 2003 All 7 . 4. Standing Counsel in reply, disputes the correctness of the contentions raised by the petitioner. In reply it is stated that the petition suffers from vice of statement of half facts only. The allegation that the property in question is being attached and is being put to sale only with reference to the orders passed on 8.3.2006 and 29.4.2009 are based on some information received by the petitioner, which is not substantiated by any documentary evidence. The allegation that the property in question is being attached and is being put to sale only with reference to the orders passed on 8.3.2006 and 29.4.2009 are based on some information received by the petitioner, which is not substantiated by any documentary evidence. It is submitted that unless the petitioner brings on record the recovery certificates on the basis whereof the recovery proceedings are being initiated, it cannot be ascertained as in respect of which order of the Stamp authorities consequential recovery is being taken. He submits that in absence of any challenge to the main orders passed under the Indian Stamp Act dated 30.5.2006 and dated 29.4.2009, the consequential recovery cannot be subjected to challenge. He lastly points out that if, it is the case of the petitioner that for recovery of the stamp duty and penalty due, against a third person, the petitioner’s property is being put to auction the remedy lies under the U.P.Z.A. & L.R. Act and the rules framed thereunder, it is always open to the petitioner to bring to the notice of the Collector that his property cannot be put to sale for recovery as arrears of land revenue of money due against a third person. Therefore, according to the Standing Counsel this writ petition deserves to be dismissed. 5. I have heard the learned counsels for the parties and perused the records of the present writ petition. 6. From the facts which have been stated above it is apparently clear that there are two orders of the statutory authorities dated 8.3.2006 and 22.4.2009 fixing the liability of payment of deficient amount of stamp duty and penalty in respect of transfer of the plot in question. These statutory orders have to be enforced. The petitioner was not a party to these proceedings has he challenged these orders. The statutory orders cast a duty upon the Collector to recover the amount mentioned therein in accordance with the procedure prescribed and for that purpose Section 48 of the Indian Stamp Act authorizes the Collector to recover the dues and the penalty as well as other sums under the Indian Stamp Act by adopting the procedure applicable in the matter of recovery of arrears of land revenue. Therefore, this Court has no hesitation to record that the proceedings taken by the Collector and the Sub-Ordinate Revenue Authorities for recovery of the money in terms of the order dated 30.5.2006 and 29.4.2009, as arrears of land revenue cannot be faulted. 7. Counsel for the petitioner had vehemently contended that under the lease-deed the liability of payment of the stamp duty and penalty is upon the lessee and for that purpose he has referred to Section 29 of the Indian Stamp Act as well as the judgments in the case of Kunwar Pal Sharma & Jiley Singh (supra). 8. So far as the reported judgments are concerned, there can be no dispute with regard to the legal proposition laid down therein. However, this Court may notice that Section 29 of the Indian Stamp Act fixes the liability in the matter of payment of stamp duty and other dues on the persons mentioned in the section subject to an agreement to the contrary, in as much as, the Section 29 itself starts with the following words : “29. Duties by whom payable.—In the absence of an agreement to the contrary, the expenses of providing the proper stamps shall be borne...............” 9. It is, therefore, clear that there can be an agreement between the lessor and the lessee that the stamp duty may be borne by the lessor himself. This is only by way of explanation, in as much as, in absence of material facts having been brought on record, no clear finding on this issue need be retruned, more so, when the lessor of the two lease-deeds are not before the Court. Even otherwise, the Court will not enter into any such issue, in as much as, it is not in dispute that the plot, subject-matter of the two lease has exchanged hands so many times in a short duration of six years. 10. This Court may also taken note of the fact that there is absolutely no averment as to whether any proceedings under Section 33/47-A of the Indian Stamp Act were taken in respect of the sale-deeds, which had been executed in favour of KTL Industries Ltd and in favour of KOA Tools Pvt Ltd or not. 10. This Court may also taken note of the fact that there is absolutely no averment as to whether any proceedings under Section 33/47-A of the Indian Stamp Act were taken in respect of the sale-deeds, which had been executed in favour of KTL Industries Ltd and in favour of KOA Tools Pvt Ltd or not. The entire writ petition is silent about the proceedings, if any, and the orders which have been passed in respect of any deficiency in stamp duty and levy of penalty on the sale-deeds of the same plot. The Standing Counsel appears to be justified in contending that the writ petition discloses only half facts and proceeds on a presumption that the recovery proceedings are being taken only with reference to the orders, which were passed on 30.5.2006 and 29.4.2009 in the two lease-deeds. 11. In my opinion, if there are no other assets available it is always open to the Revenue Authorities to proceed against the property, which is subject-matter of the transaction concerned for recovery of statutory dues. 12. Even otherwise, if it is the case of the petitioner that the property purchased by him had not been encumbered in any manner because of the orders of the authorities under the Indian Stamp Act in respect of the transactions entered earlier between different parties, it is always open to the petitioner to approach the Collector and to inform him that the property, which now belongs to the petitioner cannot be put to sale for recovery of the dues against a third person and it is for the Collector to examine all aspects of the matter before proceeding for sale of the property by public auction. Even if, any such application has already been filed and is been pending, the Collector is requested to take appropriate decision at the earliest, preferably within six weeks from the date of production of the certified copy of this order. 13. With these observations this writ petition stands disposed of. —————