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2019 DIGILAW 419 (ALL)

Kanta Bakshi v. State Of U. P.

2019-02-15

B.AMIT STHALEKAR, PIYUSH AGRAWAL

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JUDGMENT : B. Amit Sthalekar, J. 1. Heard Sri Vibhu Rai, learned counsel for the petitioner and Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the respondents. 2. The petitioner in the writ petition is seeking a direction to the respondents not to take any coercive steps against the petitioner in pursuance of the recovery proceedings against the respondent no.4. 3. The brief facts of the case as emerging from the writ petition are that the respondent no.4-Smt. Ritu Chauhan acquired a commercial Plot No.162, Block-B, Sector 16, NOIDA, District Gautam Budh Nagar on lease from New Okhala Industrial Development Authority (NOIDA) through a registered sale deed dated 05.12.2000. The deed was registered in the office of the Sub-Registrar-III, NOIDA as deed no.3462 of 2000. The respondent no.4-Smt. Ritu Chauhan took possession of the said plot of which the petitioner purchased the lease hold rights having an area of 19.80 sq. meter through a registered transfer deed dated 03.05.2001 for a sale consideration of Rs.7,92,000/- executed by Smt. Ritu Chauhan. The transfer deed was registered with the Sub-Registrar-I, NOIDA on 03.05.2001. 4. The specific case of the petitioner is that the plot taken by the respondent no.4-Smt. Ritu Chauhan from NOIDA Authorities was a vacant plot and he also acquired the same plot from the respondent no.4 in a vacant condition and at that time there was no construction on the said plot. The case of the petitioner further is that after he purchased the lease hold rights of the plot from the respondent no.4-Smt. Ritu Chauhan he constructed a liquor shop thereon. It is stated that proceedings under Section 47-A/33 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899) were initiated against the respondent no.4-Smt. Ritu Chauhan in respect of the said transfer arising out of an audit objection raised by the Accountant General, U.P. The report of the Tehsildar, Dadri stated that the rent of the shop was Rs.2,500/-per month and therefore, the property should be valued according to the rent and premium of the lease. He accordingly valued the property at Rs.14,84,580/-and determined the stamp duty at Rs.1,48,500/-whereas Rs.73,520/-had already been paid as stamp duty. 5. He accordingly valued the property at Rs.14,84,580/-and determined the stamp duty at Rs.1,48,500/-whereas Rs.73,520/-had already been paid as stamp duty. 5. The petitioner's contention with regard to the order of the S.D.M., Dadri dated 21.01.2003 is that the same is enforceable only against the respondent no.4 and even otherwise the proceedings have been initiated against the respondent no.4 and therefore no coercive measures be taken against the petitioner's shop. 6. A counter affidavit has been filed by the respondents. An objection has also been raised by the learned Additional Chief Standing Counsel that the petitioner has approached the Court straightaway without exhausting his remedy of appeal under Section 56 of the Act, 1899 and therefore, the writ petition is not maintainable and all the objections that have been raised by the petitioner in the present writ petition can be raised by him in his appeal before the Commissioner. 7. We have heard the learned counsel for the parties. 8. We find that proceedings in the present case have been initiated against the respondent no.4-Smt. Ritu Chauhan and not against the petitioner. No doubt Section 56 of the Act, 1899 provides a remedy to the petitioner by way of appeal as well as revision but considering the facts of the present case that the proceedings herein have been initiated against the respondent no.4-Smt. Ritu Chauhan and not against the petitioner and also considering the fact that the writ petition is of the year 2007 it would not be appropriate at this distance of time to relegate the petitioner to avail the remedy of appeal. We are therefore, proceeding to decide the matter on its merit and therefore, we reject the preliminary objection of the learned counsel for the respondents. 9. We have perused the impugned order dated 21.01.2003. The order records that notices were issued to the respondent no.4-Smt. Ritu Chauhan but she never responded nor participated in the proceedings. 10. Stamp duty is chargeable on an instrument. The Indian Stamp Act, 1899 is a taxing statute and therefore, in view of the law relating to a taxing statute each word used therein must be interpreted strictly. The order records that notices were issued to the respondent no.4-Smt. Ritu Chauhan but she never responded nor participated in the proceedings. 10. Stamp duty is chargeable on an instrument. The Indian Stamp Act, 1899 is a taxing statute and therefore, in view of the law relating to a taxing statute each word used therein must be interpreted strictly. The word 'chargeable' has been defined in Section-2 sub-section (6) of the Act, 1899 and mentions that when applied to an instrument executed or first executed after the commencement of the Act means chargeable under the Act and where such instrument is executed or where several persons executed the instrument at different times means first executed; Section-2 sub-section 6 of the Act, 1899 reads as under:- “2 (6) “Chargeable” means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in [India] when such instrument was executed or, where several persons executed the instrument at different times, first executed;” 11. Thus, what emerges from the definition of the word chargeable is that where several persons have executed the instrument at different times, stamp duty becomes chargeable to the instrument when it was first executed. 12. Section 29 of the Act, 1899 describes the person who is liable to pay stamp duty and sub-section (f) states that in the case of a certificate of sale stamp duty is payable by the purchaser of the property to which such certificate relates. Section 29 (f) of the Act, 1899 reads as under: “29. Duties by whom payable.- (c) in the case of a conveyance (including a reconveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease-by the lessee or intended lessee; (f) in the case of a certificate of sale-by the purchaser of the property to which such certificate relates; 13. Section 48 of the Act, 1899 provides for recovery of duties and penalties and mentions that all duties, penalties and other sums required to be paid under this Chapter may be recovered by the Collector by distress and sale of the immovable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land revenue. Section 48 of the Act, 1899 reads as under: “48. Recovery of duties and penalties.-All duties, penalties and other sums required to be paid under this Chapter may be recovered by the Collector by distress and sale of the immovable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land revenue.” 14. Therefore, a conjoint reading of the provisions of Section 29 sub-sections (c) and (f) and Section 48 of the Act, 1899 leaves absolutely no doubt that in the case of a conveyance under clause (c) or sale under clause (f) stamp duty is to be paid by the lessee/grantee/purchaser or vendee of the property, as the case may be, to which such certificate relates and it is against him in the event of any deficiency of stamp duty or recovery, as the case may be, the Collector shall proceed. We are fortified in the view we have taken by the opinion of another Division Bench of this Court in Civil Misc. Writ Petition No.8792 of 2001 (Kunwar Pal Sharma and Another Vs. State of U.P. and Others) dated 04.09.2002. AIR 2003 All 7 . 15. In the present case the State-respondents have rightly proceeded to recover the stamp duty from the respondent no.4-Smt. Ritu Chauhan. The petitioner is nowhere in the picture nor have any proceedings being initiated against him. The respondent no.4-Smt. Ritu Chauhan was issued notice but never participated in the proceedings resulting in an ex-parte order against her. If this ex parte order has to be enforced by the Collector in exercise of power under Section 48 of the Act it has to be against the respondent no.4-Smt. Ritu Chauhan through the means as prescribed in Section 48 of the Act, 1899 itself, i.e. by distress and sale of the movable property or by any other process for the time being in force for the recovery of arrears of land-revenue. Section 48 is wide enough in its ambit and the first process is against the movable property of the respondent no.4-Smt. Ritu Chauhan and then against her immovable property. Therefore, we are of the view that recovery of arrears of stamp duty if any against the respondent no.4 has to be recovered first and foremost from the respondent no.4-Smt. Ritu Chauhan itself. 16. Therefore, we are of the view that recovery of arrears of stamp duty if any against the respondent no.4 has to be recovered first and foremost from the respondent no.4-Smt. Ritu Chauhan itself. 16. We may also refer to the provisions of Section 44 of the Act, 1899 which provides that when any duty or penalty has been paid under section 35, section 37, section 40 or section 41 of the Act, 1899, by any person in respect of an instrument, and, by agreement or under the provisions of section 29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expenses of providing the proper stamp duty for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid. Section 44 of the Act, 1899 reads as under: “44. Persons paying duty or penalty may recover same in certain cases.-(1) when any duty or penalty has been paid under section 35, section 37, section 40 or section 41, by any person in respect of an instrument, and, by agreement or under the provisions of section 29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expenses of providing the proper stamp duty for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid.” 17. We are, therefore, of the view that has already held by us the Collector has to first proceed against the respondent no.4-Smt Ritu Chauhan for recovery of stamp duty as per the procedure laid down in Section 48 of the Act, 1899 and if after all the modes laid down therein are exhausted and the stamp duty cannot be recovered, it is only in those circumstances that the respondents authorities can proceed to recover the stamp duty against the property, which is the subject matter of the instrument. In such a situation the petitioner would be liable for payment of stamp duty but he would have the right to recover the same from the respondent no.4-Smt Ritu Chauhan in terms of the provisions of Section 44 of the Act, 1899. 18. We, therefore direct accordingly and dispose of the writ petition.