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2018 DIGILAW 1076 (ALL)

NARENDRA SINGH v. STATE OF U. P.

2018-05-02

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—For getting a grant for opening a school the petitioner had mortgaged his property on 21.6.2005 in village-Majuri Bujurg, Nyay Panchayat - Puraini, Block - Salempur, District - Deoria, and had, in lieu thereof, been granted a financial assistant. This was done in pursuance of a policy of the State of U.P. promulgated by it for the development of education for girls. On the basis of a report of the Additional District Magistrate (Finance and Revenue) a case being Case No. 104 of 2005 under Section 33 of the Indian Stamp Act, 1899, was instituted against the District Inspector of School (hereinafter referred to as ‘the DIOS’), Sri V.P. Singh and a deficiency in stamp duty of Rs. 69,900/- was found. A fine of Rs. 100/- was also imposed and it was provided that a simple interest of 1.5% per month would also have to be paid till the date of actual payment. This order was passed on 16.2.2006. Thereafter Sri V.P. Singh, the DIOS, who was a signatory in the mortgage deed on behalf of the Governor of the State of U.P. wrote to the manager of the institution i.e. the petitioner on 20.9.2008 directing him to deposit the amount which had been found due from him. He also gave an option to the petitioner to file an appeal. Being pressurized by the DIOS, the petitioner filed an application before the respondent No. 3, the Additional District Magistrate (Finance and Revenue) on 29.1.2009 for the setting aside of the order dated 16.2.2006. However, this application came to be dismissed on 4.2.2009. Thereafter, Sri V.P. Singh, the DIOS, himself filed two appeals. One was against the order rejecting the application of the petitioner on 4.2.2009 and the other was against the original order dated 16.2.2006. Both the appeals were allowed on 5.2.2011. On 28.5.2013, upon remand, the Additional District Magistrate (Finance and Revenue) passed an order on the application of the State of U.P. that the petitioner be impleaded as an opposite party in the case as he was the person who was actually liable for paying the stamp duty as per the Stamp Act. Upon coming to know of the order dated 28.5.2013, the petitioner filed an appeal which was dismissed saying that a revision was in fact maintainable. Thereafter, a revision was filed by him which came to be dismissed on 30.7.2016. 2. Upon coming to know of the order dated 28.5.2013, the petitioner filed an appeal which was dismissed saying that a revision was in fact maintainable. Thereafter, a revision was filed by him which came to be dismissed on 30.7.2016. 2. This writ petition has been filed against the orders dated 28.5.2013 and 30.7.2016. 3. Learned counsel for the petitioner has submitted that as per the Government Order dated 26.10.2005 no stamp duty over and above Rs. 100/- was payable in cases where property was mortgaged for the opening of schools for girls. He further submitted that the order dated 28.5.2013 could not have been passed in the teeth of the provisions of Section 47-A(3) of the Indian Stamp Act, 1899, as the provisions in the Section are very clear that action could be initiated within four years from the date of the execution of the document on which duty was chargeable. As the learned counsel placed reliance on Section 47A(3) of the Act, the same is being reproduced here as under : “47A(3). The Collector may, suo motu, or on a reference from any Court or from the Commissioner of Stamps or an Additional Commissioner of Stamps or a Deputy Commissioner of Stamps or an Assistant Commissioner of Stamps or any officer authorized by the State Government in that behalf, within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property, not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of the market value, of the property which is the subject for such instrument, and the duty payable thereon, and if after such examination he has reason to believe that the market value of such property has not been truly set forth in such instrument, he may determine the market value of such property and the duty payable thereon: Provided that, with the prior permission of the State Government, an action under this sub-section may be taken after a period of four years but before a period of eight years from the date of registration of the instrument on which duty is chargeable on the market value of the property. [Explanation—The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under sub-section (3)]” 4. He, therefore, submits that the case against the petitioner could not have been initiated after four years of the execution of the document and if any proceeding had to be initiated beyond the period stipulated, then prior permission had to be taken from the State Government. Learned counsel submits that as he had not received any notice within four years of the execution of the document, no action could be taken against him. The proceedings, were, therefore, void ab initio vis-a-vis the petitioners. 5. Learned counsel for the petitioner further submits that the order dated 28.5.2013 also could not have been passed as the passing of it meant that the petitioner would be deemed to have been contesting the case from the very date when the case was instituted. This the petitioner submits could not have been done. It was in violation of the settled proposition of law that no impleadment could be allowed after the period of limitation provided by law to proceed against an individual had lapsed. Learned counsel further relied upon Section 21 of the Limitation Act and submitted that the case would be deemed to have been initiated against him on 28.5.2013, the date when he was impleaded as a party. 6. Learned counsel relied on Section 21 of the Limitation Act and so the same is being reproduced here as under : ... “21. Effect of substituting or adding new plaintiff or defendant : (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.” 7. To bolster his submissions, he relied upon a decision in Radhika Devi v. Bajrangi Singh and others, 1996 (2) AWC 724 and submitted that when amendment of a plaint could not be done after a party had acquired a right by bar of limitation then definitely a party could not be impleaded after a period of time when the period to bring action had expired. 8. In reply, learned Standing Counsel, however, submitted that the order dated 28.5.2013 was an innocuous order. By the order, the petitioner had only been impleaded and now he could contest the case to the hilt. It was not in any manner prejudicial to him. The petitioner should, therefore, contest the case which was registered under the provisions of the Indian Stamp Act, 1899. 9. Having heard the learned counsel for the parties and after having gone through the record of the case, I am of the view that the orders impugned cannot be sustained. The order dated 28.5.2013 was an order by which an impleadment was being done and the petitioner was now to be included in the lis after the expiry of the statutory period of four years as was provided by Section 47A(3) of the Act within which action could have been brought against him. An impleadment could not be done of a person by which he would become a party to a litigation which could never be proceeded against him. As per Section 21 of the Limitation Act the case would be deemed to have been filed against the petitioner on 28.5.2013 and on 28.5.2013 no case could be brought against the petitioner as per Section 47A(3) of the Stamp Act. This being the case, the petitioner now cannot be made to contest the case in the year 2013. As per Section 21 of the Limitation Act the case would be deemed to have been filed against the petitioner on 28.5.2013 and on 28.5.2013 no case could be brought against the petitioner as per Section 47A(3) of the Stamp Act. This being the case, the petitioner now cannot be made to contest the case in the year 2013. In the case which was filed in the year 2005 it was always known to the respondents that that the petitioner was the mortgager and if they had felt that the burden to pay the stamp duty was of the petitioner then they should have included the petitioner in the litigation well within four years of the execution of the deed as had been provided for in the Indian Stamp Act. Since the petitioner was not included in the litigation within the period prescribed by the Indian Stamp Act under Section 47A (3), the impleadment application should not have been allowed. 10. The petitioner had raised the issue of limitation before the Revisional Court but it had also not addressed to the submission of the petitioner at all and had only observed that since the initiation of the case was well within the time prescribed the petitioner could, after being impleaded, contest the case. Since both the orders were virtually forcing the petitioner to contest a case which could never have been instituted against him after four years of the execution of the deed on 26.10.2005, I find that the impleadment had wrongly been allowed on 28.5.2013.The orders impugned dated 28.5.2013 and 30.7.2016, therefore, are quashed The writ petition is allowed.