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2014 DIGILAW 2977 (ALL)

Faisal Khan v. State of U. P.

2014-09-23

SURYA PRAKASH KESARWANI

body2014
JUDGMENT Surya Prakash Kesarwani, J. 1. Heard Sri Shobhit Pathak, learned Counsel for the petitioner and Sri Nimai Das, learned Sanding Counsel for the respondents. Briefly stated facts of the present case are that an instrument No. 11166/2003 in respect of plot area, 502.66 square meter of Village Manoharpur, Tehsil Moradabad was executed on 18th December, 2003. The case of the petitioner is that immediately after purchase of plot, he started construction work. It is alleged by the respondents that on 20th December, 2003, the plot in question was inspected by the Sub-Registrar-II, Moradabad ana an ex-parte inspection report dated 20th December, 2003 was filed. In the report the Sub-Registrar has mentioned that at the time of inspection, construction work was going on. There is no mention in this report that what was the nature of construction and extent of construction found over the plot in question at the time of inspection. 2. Proceeding was initiated by ADM (F/R), Moradabad against the petitioner under section 33/40/47 of the Indian Stamp Act, 1899 (hereinafter referred to the "Act"). Merely on the basis of the report of Sub-Registrar, ADM (F/R), Moradabad passed an order dated 1st April, 2005 in Stamp Case No. 1823 of 2004 determining the deficiency of stamp duty of  Rs. 1,76,000/- as suggested by the Sub-Registrar and also imposed penalty of equal amount 3. Aggrieved with this order, the petitioner filed an Appeal No. 58 of 2004-05 before the Commissioner Moradabad Division, Moradabad, who merely reiterated the findings recorded by the ADM(F/R) and thus dismissed the appeal vide order dated 28th December, 2005. Aggrieved with this order, the petitioner has filed the present writ petition. 4. Learned Counsel for the petitioner submits that immediately after purchase of plot in question, the petitioner started construction. The report of Sub-Registrar is ex parte and in fact no inspection was done. He submits, even if it is assumed that any inspection was made by the Sub-Registrar still there is not whisper in the report of the Sub-Registrar that what construction was found over the land in question at the time of the alleged inspection. ADM (F/R) as well as Commissioner have also failed to record any finding as to the extent of construction over the plot in question at the time of alleged inspection by the Sub-Registrar. He, therefore, submits that the impugned order are based on no evidence. ADM (F/R) as well as Commissioner have also failed to record any finding as to the extent of construction over the plot in question at the time of alleged inspection by the Sub-Registrar. He, therefore, submits that the impugned order are based on no evidence. The deficiency of stamp duty has been determined merely on the basis of surmises and presumption. 5. Learned Standing Counsel submits that a spot inspection was conducted by the Sub-Registrar immediately after two days of the date of execution of the deed, in which construction activity was found over the land in question and as such ADM (F/R) has lawfully passed the impugner order determining the deficiency of stamp duty. 6. I have carefully considered the submissions of learned Counsels for the parties. 7. It is not in dispute that the sale-deed was executed on 18th December, 2003. It is also not in dispute that the report of Sub-Registrar is ex parte. Even in the alleged report dated 20th December, 2003, the Sub-Registrar has not mentioned that what type of construction activity was going on over the land in question and what was the construction found by him. Once, it is not in dispute that instrument in question was executed on 18th December, 2003 and the nature and extent of alleged construction allegedly found by the Sub-Registrar on 20th December, 2003 is unknown, there was no occasion for the ADM (F/R)/Moradabad to determine the valuation as suggested by the Sub-Registrar in his report and to demand stamp duty on that basis. No effort was made by the ADM (F/R) to bring on record any material to establish that there was construction over the vended property as on the date of execution of the sale-deed. 8. The Appellate Authority has also completely failed to consider these aspects of the matter. The Appellate Authority merely reiterated the observations recorded by the ADM (F/R). The increased valuation of the vended property and demand of deficit stamp duty by the impugned orders are not based on any evidence on record. Under the circumstances, the impugned orders cannot be sustained. In result, writ petition succeeds and is hereby allowed. The Appellate Authority merely reiterated the observations recorded by the ADM (F/R). The increased valuation of the vended property and demand of deficit stamp duty by the impugned orders are not based on any evidence on record. Under the circumstances, the impugned orders cannot be sustained. In result, writ petition succeeds and is hereby allowed. The impugned orders dated 1st April, 2005 passed by ADM (F/R), Moradabad in Stamp Case No. 1823 of 2004 in respect of instrument No. 11166 of 2003 and the order dated 28th December, 2005 passed by the Commissioner Moradabad Division, Moradabad in Appeal No. 58 of 2004-05 are hereby set aside. It is directed that any amount deposited in excess by the petitioner shall be refunded to him by the respondents within one month from today alongwith simple interest @ 8 per cent from the date of deposit till date of actual payment