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2018 DIGILAW 2025 (ALL)

Mohd. Aarif v. State of U. P.

2018-09-19

SALIL KUMAR RAI

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JUDGMENT : SALIL KUMAR RAI, J. 1. Heard Sri Udit Chandra, Advocate holding brief of Sri Subodh Kumar, counsel for the petitioner as well as the Standing Counsel representing respondent nos. 1 to 3. 2. A sale deed dated 7.12.1995 for 0.210 hect. was executed in favour of the petitioner and the stamp duty on the said sale deed was paid by the petitioner representing the plot to be an agricultural plot. Subsequently, the Sub-Registrar submitted his report dated 12.12.1995 wherein he reported that a rice mill existed on 0.63 hect. of the said plot and the rest of the plot was vacant but was being used for the purposes of rice mill. On the aforesaid report of the Sub-Registrar, Case No. 25 of 1996-97 was registered under Section 47-A (2) of the Indian Stamp Act, 1899 (hereinafter referred to as, 'Act, 1899') in the court of Additional Collector (Finance & Revenue), District Bareilly i.e. respondent no. 3 and in the said case, a show cause notice dated 12.7.1996 was issued to the petitioner. During the pendency of the proceedings, respondent no. 3 also got the plot inspected by the Tehsildar who submitted a report dated 14.8.1996 confirming the report of the Sub-Registrar. The petitioner filed his objections dated 23.9.1996 wherein he denied the correctness of the report submitted by the Tehsildar and also denied the correctness of the charges made in the show cause notice issued to him. However, it appears from the order passed by respondent no. 3 that the petitioner did not appear in the case after 8.9.1998. The respondent no. 3 vide his order dated 22.9.1998, relying on the report of the Tehsildar, held that there was a deficiency of Rs.2,01,250/-in payment of stamp duty on the sale deed dated 7.12.1995 and consequently directed that the aforesaid amount along with a penalty of Rs.2,01,250/-be recovered from the petitioner. Aggrieved by the order dated 22.9.1998, the petitioner filed Appeal No. 875/23/2002 under Section 56 of the Act, 1899 before the Commissioner, Bareilly Division, Bareilly i.e. respondent no. 2 who dismissed the appeal vide his order dated 29.9.2004. The orders dated 29.9.2004 passed by respondent no. 2 and 22.9.1998 passed by respondent no. 3 have been challenged in the present writ petition. 3. 2 who dismissed the appeal vide his order dated 29.9.2004. The orders dated 29.9.2004 passed by respondent no. 2 and 22.9.1998 passed by respondent no. 3 have been challenged in the present writ petition. 3. It has been argued by the counsel for the petitioner that the orders dated 22.9.1998 and 29.9.2004 passed by the respondents are contrary to law in as much as the aforesaid orders have been passed by respondent nos. 2 and 3 relying on the report of the Tehsildar which was an ex-parte report and the inspection of the plot was done by the Tehsildar without any notice to the petitioner. It has also been argued by the counsel for the petitioner that the order dated 22.9.1998 passed by respondent no. 3, so far as it imposes penalty on the petitioner, was without jurisdiction in view of the fact that the proceedings under Section 47-A of the Act, 1899 were instituted against the petitioner through notice dated 12.7.1996 and on the said date, the Collector did not have the power to impose penalty in case of deficiency in payment of stamp duty. It has been argued that the power to impose penalty was conferred on the Collector through U.P. Act No. 22 of 1998 which was operative w.e.f. 1.9.1998 and the said power cannot be exercised retrospectively i.e. on proceedings registered under Section 47-A of the Act, 1899 before 1.9.1998. In support of his argument, the counsel for the petitioner has relied on the Full Bench judgment of this Court in Girjesh Kumar Srivastava vs State of Uttar Pradesh 1998 (1) AWC 403. 4. I have considered the submissions of the counsel for the petitioner and perused the records. It is evident from the records annexed with the writ petition that in his reply, the petitioner had admitted that a rice mill existed on other part of Plot No. 390 purchased by him. However, as would be evident from the order dated 29.9.2004 passed by respondent no. 2, the petitioner was not able to prove that the ownership of the rice mill vested in some other person. It is further evident from the order dated 22.9.1998 passed by respondent no. 3 that the petitioner did not appear before respondent no. 3 after 8.9.1998. In the aforesaid view of the matter, the orders dated 22.9.1998 and 29.9.2004 passed by respondent nos. It is further evident from the order dated 22.9.1998 passed by respondent no. 3 that the petitioner did not appear before respondent no. 3 after 8.9.1998. In the aforesaid view of the matter, the orders dated 22.9.1998 and 29.9.2004 passed by respondent nos. 3 and 2 respectively are based on evidence available on record and are supported by reasons. The findings recorded by the aforesaid authorities are findings of fact and not subject to examination by this Court under Article 226 of the Constitution of India. In view of the aforesaid, the challenge to orders dated 22.9.1998 and 29.9.2004 passed by respondent nos. 3 and 2 respectively, so far as they hold that there was a deficiency in payment of stamp duty on sale deed dated 7.12.1995 and direct for a recovery of the same, has no merits and is liable to be dismissed. 5. However, the contention of the counsel for the petitioner regarding the power of the Collector to impose penalty on the petitioner has merits. While dealing with the powers of the Collector under Section 47-A of the Act, 1899, as it stood previous to the amendments incorporated vide U.P. Act No. 22 of 1998, this Court in Paragraph no. 15 of Girjesh Kumar Srivastava (supra), observed as follows: "15. Our answers to the questions referred are as follows : (1) While exercising power under sub-section (4) of Section 47A, the Collector can determine the market value of the property and the duty payable on the instrument as a result of such determination but he has no power to impose penalty. (2) The period of limitation of four years in sub-section (4) of Section 47A applies to the action which may be initiated by the Collector and not to a reference from any Court or other authorities enumerated in the sub-section." 6. The power conferred on the Collector to impose penalty under Section 47-A(4)(ii) of the Act, 1899 cannot be exercised retrospectively i.e. on cases registered before U.P. Act No. 22 of 1998 came in force. In view of the aforesaid, the orders dated 22.9.1998 and 29.9.2004 passed by respondent nos. 3 and 2 respectively so far as the impose penalty of Rs.2,01,250/-on the petitioner are without jurisdiction and are, hereby, set-aside. 7. With the aforesaid directions, the writ petition is disposed of.