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2018 DIGILAW 69 (ALL)

Ijabul Nisha v. State of U. P.

2018-01-08

ATTAU RAHMAN MASOODI

body2018
JUDGMENT & ORDER : ATTAU RAHMAN MASOODI, J. 1. Heard Sri Arunendra Pratap Singh, learned counsel for the petitioner and learned Standing Counsel for the State. 2. By means of this writ petition, the petitioner has impugned the orders passed by the A. D. M. Finance and Revenue on 18.12.2013 as well as the order passed by Deputy Commissioner Stamp, Faizabad on 25. 10. 2017 whereby the imposition of stamp duty to the tune of Rs. 1,90,590/- in addition to the registration charges of Rs. 2,720 coupled with the penalty of Rs. 10,000/- has been imposed and affirmed by the revisional authority. 3. The petitioner assailing the correctness of impugned orders has argued that the Additional District Magistrate, Finance and Revenue before passing the impugned order dated 18.12.2013 did not issue any notice to the petitioner and that apart the A.D.M. Finance and Revenue has proceeded on the basis of report submitted by Sub Registrar, Sadar, Sultanpur without seeking any participation of the petitioner. 4. The record reveals that the petitioner had filed an application for recall of the ex-parte order dated 18.12.2013 which was rejected on 21.01.2016 and the second application for the same purpose was rejected on 12.05.2016 as well as the third application being held as non maintainable was rejected on 19.08.2016. Although, the revision was preferred for recall of an ex-parte order dated 18.12.2017 but the fact remains that the orders rejecting the applications for recall of orders were not specifically assailed before the revisional authority. 5. Essentially, the petitioner being aggrieved against the order dated 18.12.2013 filed a revision under Section 56(1) of Indian Stamp Act, 1899 and the revision so filed has been considered and decided on merit. 6. Learned counsel for the petitioner placing reliance upon the decisions reported in 2014 (107) ALR 814 and 2014 (107) ALR 495 has argued that the ex-parte report of the Sub Registrar has been held not to be legally tenable for assessing the stamp duty against an aggrieved person unless he was afforded an opportunity to contest the same. 7. A perusal of the order passed by the revisional authority also indicates that opportunity before passing the impugned order was not afforded to the petitioner and the subsequent verification report after passing of the impugned order on 18.12.2013 would also not cure the inherent defect of an ex-parte action. 7. A perusal of the order passed by the revisional authority also indicates that opportunity before passing the impugned order was not afforded to the petitioner and the subsequent verification report after passing of the impugned order on 18.12.2013 would also not cure the inherent defect of an ex-parte action. The opportunity to a person against whom an order having civil consequences is passed, is a fundamental rule and this proposition cannot be diluted on any technical basis whatsoever. The order passed on 18.12.2013 once established to be without any notice to the petitioner shall not have its legs to stand and thus any assessment made against the petitioner would only be legally tenable on affording opportunity to him in accordance with law. 8. The revisional authority having though found such a discrepancy in the order dated 18.12.2013 has nevertheless affirmed the same, which as per the settled view of this Court is erroneous so long as due opportunity is not afforded to the petitioner. 9. In the circumstances of the case, the submission put-forth by learned counsel for the petitioner insofar as the conclusion of proceedings on 18.12.2013 ex-parte is concerned, the ground urged is made out and thus the impugned order passed by the A.D.M. Finance and Revenue on the basis of a complaint as well as the revisional order call for an interference under Article 226 of the constitution of India. 10. Accordingly, the impugned orders are hereby set aside and the matter is remitted back to the Additional District Magistrate, Finance and Revenue for fresh consideration of the matter. The petitioner undertakes to file his objections within a period of one month from today and the objections filed within the aforesaid period along with a certified copy of this order shall be decided not later than a period of three months. The petitioner undertakes to co-operate with the proceedings and shall not take any undue adjournment. 11. The writ petition is disposed of accordingly.