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2017 DIGILAW 2231 (ALL)

Brij Bhushan Dutta v. State of Uttar Pradesh

2017-09-20

B.AMIT STHALEKAR

body2017
JUDGMENT : B. AMIT STHALEKAR, J. 1. Heard Sri Ajay Rajendra, learned counsel for the petitioner and Sri R.K. Shukla, learned Standing Counsel for the State respondents. The petitioner is seeking quashing of the orders dated 03.09.2002 and 20.01.2004 passed in proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act 1899') for determining the deficiency of stamp duty. 2. Briefly stated, the facts of the case are that the petitioner purchased a piece of land measuring 375 sq. yards (313.55 sq. meter) of house no. 6 (old no. 4) situated in mohalla Saraswti Mandir, Meerut through a registered sale deed dated 17.08.2001 from one Sri Prem Nath Sharma, for a sale consideration of Rs. 6,37,500/-. However, in order to avoid future complication, the petitioner paid stamp duty on a valuation of the property amounting to Rs. 9,41,000/-. On an allegation that there was deficiency of stamp duty proceedings under Section 47(A) of the Act were initiated against the petitioner. The petitioner filed his objections and contested the matter stating that he had only purchased the land whereas the building standing on the land has previously been given by one Shiv Nath Sharma to Tej Bahadur Singh on rent for a period of 30 years through a registered deed and it was provided that the said Tej Bahadur Singh would make construction on the land which shall also be recorded in the Nagar Palika in the name of Tej Bahadur Singh as the owner of the building. The categorical case of the petitioner was that he had never purchased the building. The Collector Stamp however, by the impugned order dated 03.09.2002, determined the valuation of the building at Rs. 18,04,000/- and the deficiency of stamp duty was determined at Rs. 86,300/- plus penalty of same amount total Rs. 1,89,428/-. 3. Aggrieved by the order of the Deputy Commissioner, Stamp/Collector Stamp dated 03.09.2002, the petitioner preferred a Stamp Appeal which has also been dismissed by the Commissioner, Meerut Division on 20.01.2004 upholding the findings of fact recorded by the Collector Stamp. 4. The contention of Sri Ajay Rajendra, learned counsel for the petitioner is that the petitioner had purchased only the land and not the malba (construction thereof) and the Collector Stamp has fallen in error in determining stamp duty taking the valuation of the constructed portion also. 5. 4. The contention of Sri Ajay Rajendra, learned counsel for the petitioner is that the petitioner had purchased only the land and not the malba (construction thereof) and the Collector Stamp has fallen in error in determining stamp duty taking the valuation of the constructed portion also. 5. Learned Standing Counsel, on the other hand, sought to justify the impugned orders by stating that if the petitioner had purchased the land, it would be presumed that he has also purchased the building/construction standing on it. 6. From a perusal of the order of the Collector Stamp as well as the appellate order of the Commissioner, it is noticed that neither of the authorities have considered the fact that the petitioner had only purchased the land and not the construction/malba standing on it. The constructed part had already been given to somebody else on rent for a period of 30 years with the right to make construction and that the petitioner was not the owner of the constructed portion. Neither of the authorities have considered this objection of the petitioner and in fact there is no discussion in this regard in the impugned orders. 7. In this view of the matter both the impugned orders cannot be said to be speaking orders and are accordingly set aside. The writ petition is allowed. 8. The matter is remitted to the Deputy Commissioner Stamp/Collector Stamp-respondent No. 3 to re-examine the matter in the light of the observations made above and pass an appropriate order after giving the parties an opportunity of being heard within a period of four months from the date of receipt of the certified copy of this order.