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2013 DIGILAW 2439 (ALL)

SARITA GOYAL v. STATE OF U. P.

2013-09-27

ARUN TANDON

body2013
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner before this Court seeks quashing of the orders dated 26.10.2010 and dated 1.2.2013 passed by the Assistant Commissioner of Stamp, Ghaziabad in proceeding under Section 33/47 A of the Indian Stamp act as also of the order of the Chief Controlling Revenue Authority/Board of Revenue dated 4.3.2013 passed in Appeal No. 24/25 of 2013-13 (Annexures 6, 8 and 10 to the present petition). 2. Facts in short leading to the present petition are as follows : 3. Lease rights in respect of Plot No. C-77/2-3 B. S. Road Industrial Area, Site-1, Ghaziabad was granted in favour of one Rajendra Kumar on 27.2.73 for 90 years. It appears that a transfer application was made by Sri Rajendra Kumar and one Maharaja Steels qua the plot in question. The application of transfer was granted and the plot was leased in favour of Maharaja Steels. The deed thereof was registered on 21.8.2003. Maharaja Steels in turn made a surrender/transfer application alonwith the petitioner. On that basis the plot in question was leased out in favour of the petitioner under a deed which was executed by U.P.S.I.D.C., Ghaziabad on 27.12.2008. A copy of the deed has been enclosed as Annexure 1. At page 26 of the paper book there is a specific mention of the lease of the same plot in favour of M/s Maharaja Steels duly registered on 21.8.2003. 4. It is, therefore, admitted on record that the lease of the plot in question was not the first transfer of the said plot in favour of the petitioner by the U.P.S.I.D.C. This lease-deed was registered on 29.12.2008. Although, the petitioner was not entitled to any exemption from stamp duty under the Government Order dated 9.7.2008 as the lease in his favour was not the first lease of the plot in question, he claimed such exemption, which was allowed and the deed was got registered aftr payment of reduced stamp duty, based on exemption in terms of Government Order dated 9.7.2008. 5. On correct facts being brought to the notice of Collector, Ghaziabad proceeding under Section 33/47 A of the Indian Stamp Act were initiated against the petitioner by issuance of a notice by registered post at the address disclosed in the deed. 6. Petitioner did not respond to the proceedings initiated under the notice. 5. On correct facts being brought to the notice of Collector, Ghaziabad proceeding under Section 33/47 A of the Indian Stamp Act were initiated against the petitioner by issuance of a notice by registered post at the address disclosed in the deed. 6. Petitioner did not respond to the proceedings initiated under the notice. The Collector treating the service to be sufficient, passed an order on 26.10.2010 holding therein that the petitioner was not entitled to the benefit of Government Order dated 9.7.2008 and, therefore, he was not entitled to any exemption from stamp duty on the deed in question. The deficient amount of stamp duty, because of wrong exemption claimed and granted in favour of the petitioner to the tune of Rs. 12,54,390/- was determined. The petitioner was asked to pay the said amount alonwith the interest @ 1.5 %. 7. The petitioner after a period of two years made an application for recall of the said order alonwith an application under Section 5 of the Limitation Act before the Collector. These applications were filed by the petitioner on 27.11.2012 and in the application it was stated that the notice of the proceedings had not been served upon the petitioner as she had started residing at different place vis-a-vis the one disclosed in the registered deed. The recall application was rejected by the Stamp Collector, Ghaziabad vide order dated 1.2.2013 after recording that the notice was sent by registered post at the address disclosed by the petitioner in the deed, which was sufficient service in terms of U.P. Stam (Valuation of Properties) Rules 1997. 8. Not being satisfied, the petitioner filed an appeal under Section 56 of the Indian Stamp Act challenging both the orders dated 26.10.2010 and 1.2.2013. The appeal has been dismissed under order dated 4.3.2013. 9. These orders are under challenge before this Court. It is submitted by the learned counsel for the petitioner that although the petitioner may not have been entitled to the benefits of the Government Order dated 9.7.2008 but in view of subsequent Government Order dated 30.9.2010, which extended the benefit of the earlier Government Order dt.9.7.2008 petitioner is entitled to the exemption from duty as was provided earlier. It is submitted by the learned counsel for the petitioner that although the petitioner may not have been entitled to the benefits of the Government Order dated 9.7.2008 but in view of subsequent Government Order dated 30.9.2010, which extended the benefit of the earlier Government Order dt.9.7.2008 petitioner is entitled to the exemption from duty as was provided earlier. Counsel for the petitioner submitted that on the date he had purchased the property there were no standing constructions and it was her case in the application made alonwith recall application in the shape of objections. This aspect of the matter has been completely ignored and, therefore, the orders are bad. 10. I have heard counsel for the parties and have examined the records. 11. Plea of the petitioner that there were no standing constructions on the date of execution of the lease-deed has to be rejected on two grounds. (a) the petitioner himself has brought on record, a copy of the certificate issued by the Regional Manager, U.P.S.I.D.C dated 11.12.2012 alonwith his affidavit, which specifically mentions that from the report of the Junior Engineer dated 22.12.2009 as well as from the memo of possession dated 6.10.2010, the boundary wall and a temporary shed, were standing over the plot on the date the deed was executed. (b) the petitioner did not bring on record any such certificate before the Appellate Authority or before the Assistant Commissioner, Stamp while filing her objections alonwith recall application, which fact is apparent from the date of the certificate, which the petitioner now relies. The date of certificate is 11.12.2012, which is much after the date on which she had filed the recall application alonwith her objections. 12. From the memo of appeal filed under Section 56 of the Stamp Act, it is apparent that it nowhere mention of any certificate being brought on record. Be that it may, the Government order dated 30.9.2010 requires is that there has to be a certificate in categorical terms from the concerned authority to the effect that there were no standing constructions on the plot in question on the date of second or subsequent lease or else there has to be a separate transfer deed of the standing constructions for the purposes of claiming benefit of the Government Order dated 30.9.2010. 13. 13. Admittedly, the petitioner does not satisfy the requirements of the said Government order neither she has brought on record any certificate from the competent authority stating in categorical terms that there were no constructions standing on the date of the deed of lease was executed in her favour nor she has brought on record any sale-deed in respect of the standing constructions separately. 14. An attempt was made by the counsel for the petitioner to read a part of the certificate referred to above, which mentions that as per the records there is no information of any constructions with the U. P. S.I.D.C. on the date of transfer and further that constructions could not have been raised without the permission of U.P.S.I.D.C. on the plot. The contention has not substance, in as much as, in the same certificate of Regional Manager, reference has been made to report of Junior Engineer as well as to the possession memo, which record categorically that boundary wall and temporary shed were standing on the date of lease in favour the the petitioner. 15. In the entirety of the facts on record, this Court finds no good reason to interfere with the orders impugned. It is held that the petitioner was not entitled to the exemption from stamp duty under Government order dated 9.7.2008 as the lease-deed of the plot in question in her favour by U.P.S.I.D.C was not the first transfer. This was the Government order holding field on the date lease-deed was got executed/registered. So far as the Government order dated 30.9.2010 is concerned, the same had not seen the light of the date on the relevant date and even otherwise, the condition for claiming exemption from stamp duty under the said Government order dated 30.9.2010 were not satisfied by the petitioner. 16. Writ petition is accordingly, dismissed. 17. Interim order, if any, stands discharged.