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Allahabad High Court · body

2017 DIGILAW 1982 (ALL)

Shakib-Ur-Rahman v. State of U. P.

2017-08-25

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri S.R. Verma, learned counsel for the petitioner and Sri R.K. Shukla, learned Standing Counsel for the respondents-State. 2. The petitioner is seeking quashing of inspection report dated 02.08.2003 of respondent no. 4, ex-parte order of Stamp Authority dated 29.05.2004 as well as order of Commissioner, Meerut Division, Meerut dated 17.07.2005 passed in proceedings arising under section 47A of the Indian Stamp Act, 1899 (the Act, 1899) for deficiency of stamp duty. 3. Briefly stated the facts of the case are that the petitioner and respondent no. 5 are stated to be good friends. In para 8 of the writ petition, it is stated that when the petitioner came to know that Flat No. 506, Vindhya Chal Tower, Kaushambi, District Ghaziabad was about to be sold, he got the same purchased for his friend, namely, Dr. Binay Prasad, i.e., respondent no. 5. The sale deed was executed by Smt. Manju Verma on 03.06.2003 and deed was registered with the Sub-Registrar, Ghaziabad on the same date. Stamp Duty was also paid by the petitioner. 4. On an allegation that there is deficiency of stamp duty, proceedings were initiated under Section 47A of Act, 1899 vide order dated 29.05.2004 passed by Stamp Authority/Assistant Commissioner (Stamp), Ghaziabad. It has come on record that respondent no. 5 had executed a general power of attorney in favour of the petitioner, copy of which is Annexure No. 2 to the writ petition and in the general power of attorney following powers were conferred upon the petitioner:- "1. To look after, supervise, manage and control the affairs of my above mentioned flat in any manner as the said general attorney deems fit and proper. 2. To have the physical possession of the said property and to represent me before GDA and in concerned office of Local Govt/Central Govt./State Govts. and other concerned authority to make any statement, application, affidavit, undertaking etc. in any respect of the said property. 3. To get water, sewer, electric power and telephone connections and other services in the said property. 4. To let out the said flat in full or in part to any intending tenant(s), to receive rent in her own name(s) and appropriate the same as she may deem fit and issue receipt thereof, under her own signature and deal with the tenant(s) in any lawful manner. 5. 4. To let out the said flat in full or in part to any intending tenant(s), to receive rent in her own name(s) and appropriate the same as she may deem fit and issue receipt thereof, under her own signature and deal with the tenant(s) in any lawful manner. 5. To get the property assessed for tax, to pay the same and get the refund thereof, if paid in excess. 6. To negotiate, to sell, agree to sell in accordance with law, to any person, whosoever, and to sign any documents/deeds agreement with the intending purchaser(s), and to receive earnest money and full and final sale consideration amount. 7. To file/defend any suit in any court of law in any matter concerning said flat or any matter connected therewith of incidental thereto and for the purpose to appoint any advocate, pleader, vakil, attorney etc., and to make any statement application, affidavit, undertaking etc. 8. To execute, sign, affirm, verify and present all kinds of suits, writs, complaints, petitions, revision, written statements, appeal, applications affidavits in court of law i.e. civil, criminal or revenue and/or Tribunal and to proceed in all proceedings before arbitration on or any other authority on my behalf in any matter concerning the said flat or any matter incident. 9. To execute a ratification deed of any deed(s) executed in respect of the said flat and to get the same registered in the office of the Sub Registrar, Ghaziabad or any other authority as may be required. 10. To do all other acts, deeds and things regarding the said flat as may be necessary from time to time which have not been mentioned in this attorney. This G.P.A. is revocable." 5. There was a spot inspection conducted on 01.09.2003 in which the property has been described and it has been noted that the petitioner was a holder of general power of attorney and he was in possession of Flat No. 506, Vindhya Chal Tower, Kaushambi, District Ghaziabad. Stamp Authority computed the deficiency of stamp duty at Rs. 1,41,500/- with a penalty of Rs. 100/-, total Rs. 1,41,600/- with interest @ 1.5% per mensem. Aggrieved, the petitioner preferred a Stamp Appeal before the Commissioner, Meerut Division, Meerut who has upheld the order of the Stamp Authority vide order dated 17.07.2005. 6. Stamp Authority computed the deficiency of stamp duty at Rs. 1,41,500/- with a penalty of Rs. 100/-, total Rs. 1,41,600/- with interest @ 1.5% per mensem. Aggrieved, the petitioner preferred a Stamp Appeal before the Commissioner, Meerut Division, Meerut who has upheld the order of the Stamp Authority vide order dated 17.07.2005. 6. The contention of the petitioner is that he had no concern with the flat and he was only looking after the same for his friend respondent no. 5. However, he could not dispute that a general power of attorney had been executed in his favour on 03.06.2003 but he took the stand that the same has been cancelled by respondent no. 5 on 24.09.2004. His further submission is that notice of proceedings was never served upon the petitioner and, therefore, the same was ex-parte. 7. I have heard learned counsel for the parties and have also gone through the documents on record. 8. So far as service of notice is concerned, earlier a finding has been recorded by the Stamp Authority that notices were sent to the petitioner by registered post but the petitioner neither appeared in the proceedings nor filed his objections. 9. In this view of the matter, when the notices were sent by registered post, there will be a presumption that service is deemed to be effected in view of the provisions of section 27 of General Clauses Act, 1897 (the Act, 1897). The second submission of the learned counsel for the petitioner is that the petitioner had nothing to do with the property and that there was a general power of attorney in his favour which too had been cancelled on 24.09.2004. It is not disputed that a general power of attorney was executed in favour of the petitioner on 03.06.2003 and was cancelled only on 24.09.2004 whereas proceedings in the present case had been initiated in 2003 itself and, therefore, subsequent cancellation of the general power of attorney would not have any effect on the proceedings. 10. In so far as deficiency of stamp duty is concerned, the contention of the petitioner is that he had nothing to do with the flat in question and he was merely looking after the same on behalf of respondent no. 10. In so far as deficiency of stamp duty is concerned, the contention of the petitioner is that he had nothing to do with the flat in question and he was merely looking after the same on behalf of respondent no. 5 also must be rejected particularly having regard to the various powers which were conferred upon him in the general power of attorney which have already been enumerated here in above. 11. The petitioner was not only in physical possession of the property but was also having water, sewer, electric power and telephone connections and other services in the property. He was also conferred power to let out the said flat in full or in part to any intending tenant(s), to receive rent in his own name and appropriate the same as he may deem fit and issue receipt thereof under his own signature and deal with the tenant(s) in any lawful manner. He was conferred power to negotiate, to sell, agree to sell in accordance with the law to any person and to receive earnest money and full and final sale consideration amount. He had the power to execute ratification deed of any deed(s) executed in respect of the said flat and to get the same registered in the office of Sub Registrar, Ghaziabad or in any other authority as may be required. These are the terms and conditions of the general power of attorney issued in favour of the petitioner. Thus the petitioner had absolute right not only with regard to the possession of the flat but also enjoyment of the same and also the right to sell or enter into an agreement to sell the same and also to receive earnest money and full and final sale consideration of the same. 12. Considering all these facts, I do not find any illegality or infirmity in the impugned orders dated 29.05.2004 and 17.07.2005 or in the inspection report dated 01.09.2003 (Annexure No. 4 to the writ petition). 13. The writ petition lacks merit and it is, accordingly, dismissed.