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2021 DIGILAW 729 (ALL)

Saurabh Shukla v. State Of U. P.

2021-07-26

ROHIT RANJAN AGARWAL

body2021
JUDGMENT : Rohit Ranjan Agarwal, J. 1. Heard Sri Piyush Shukla, learned counsel for the petitioner and learned Standing Counsel for the respondents-State. 2. This writ petition has been filed assailing the orders dated 13.01.2020 and 01.06.2021 passed by respondents No.3 and 2 respectively. 3. The facts in nutshell are that petitioner and one Tarun Tiwari had jointly entered into an unregistered agreement with one builder for purchasing five flats on 21.03.2013 and an advance of Rs.30 lakhs was paid and balance amount was to be given at the time of handing over possession of flat. The mother of the petitioner Smt. Saroj Shukla had also entered into an unregistered agreement with the same builder for purchase of one flat and had given an advance amount of Rs.15 lakhs on same terms and conditions that balance amount was to be given at the time of execution of sale deed. It transpires that the builder had entered into an unregistered agreement with one Vaibhav Gupta on 21.3.2013 and one Saurabh Mishra on 22.01.2016 for sale of flats for which the builder had already entered into an agreement with the petitioner. Feeling cheated, the petitioner filed a Civil Suit No.1084 of 2016 before the Civil Judge (Senior Division), Kanpur Nagar for permanent injunction against the builder for not transferring the said flats to the subsequent alleged buyers. It further transpires that during this period, one Rishi Gupta made a complaint to the Revenue Authorities, wherein proceedings in regard to deficiency of stamp duty were initiated and notice was issued on 30.07.2018 to the petitioner as well as Vaibhav Gupta and Saurabh Mishra. On 28.09.2018, the Additional District Magistrate (Finance and Revenue), Kanpur Nagar discharged the notice issued under Section 47-A of the Indian Stamp Act, 1899 against Vaibhav Gupta and Saurabh Mishra. Copies of the orders have been collectively brought on record as Annexure-2 to the writ petition. The petitioner filed a detailed representation before respondent No. 3 stating therein that a Civil Suit No. 1084 of 2016 initiated by him against the builder is pending and relying upon the said suit, Vaibhav Gupta and Saurabh Mishra have been granted relief by the Court of Additional District Magistrate (Finance and Revenue) on 28.09.2018, thus, the petitioner was also entitled for the same relief. 4. Respondent no. 4. Respondent no. 3 vide order dated 13.01.2020, without considering the specific objection as regard to the discharge of notice in favour of Vaibhav Gupta and Saurabh Mishra, a deficiency of stamp duty of Rs.4,29,700/-was imposed along with penalty of Rs.50,000/-. Aggrieved by the said order, an appeal under Section 56(1-A) of the Indian Stamp Act, 1899 was preferred before respondent No. 2 taking specific objection to the said fact but the Appellate Authority i.e. respondent No. 2 without taking note of the said fact, on 01.06.2021, rejected the appeal of the petitioner. Hence this writ petition has been filed. 5. It is contended by learned counsel for the petitioner that once the notice which was issued on 30.07.2018 not only to the petitioner but also to Saurabh Mishra and Vaibhav Gupta was discharged on 28.09.2018 on the basis of civil suit pending before Civil Judge (Senior Division) Kanpur Nagar, respondent no. 3 could not have proceeded and hold deficiency of stamp duty against the petitioner. 6. Learned Standing Counsel while opposing the writ petition vehemently submitted that the document in question was impoundable under Section 33 read with Section 47-A(3) of the Indian Stamp Act, 1899 as the same was not registered and the petitioner has tried to evade stamp duty and thus the authorities had rightly proceeded to hold the deficiency. 7. Having heard learned counsel for the parties and from perusal of the record, it transpires that it is an admitted case to both the parties that show-cause notice under Section 47-A of the Indian Stamp Act was issued on 30.07.2018 not only to the petitioner but also to the other subsequent alleged purchasers of the flat who had entered into an agreement of sale with the builder. On the objections of Vaibhav Gupta and Saurabh Mishra, the Additional District Magistrate (Finance and Revenue) Kanpur Nagar discharged the notice for deficiency of stamp duty on the basis of civil suit preferred by the petitioner as Suit No. 1084 of 2016, but despite specific objection filed by the petitioner that notices having been discharged against the said two persons, the same treatment should have been meted with the petitioner, but the Stamp Authority without disclosing the said fact had unilaterally imposed deficiency of stamp duty. Both the respondent no. 3 as well as Appellate Authority i.e. respondent no. Both the respondent no. 3 as well as Appellate Authority i.e. respondent no. 2 despite specific ground being taken by the petitioner deliberately overlooked the fact that notice against Vaibhav Gupta and Saurabh Misha have been discharged on the ground of pendency of civil suit while the person who had filed the civil suit, the same benefit was not extended and Revenue Authority arbitrarily and illegality imposed deficiency of stamp duty upon the petitioner. 8. In view of the above, the orders dated 13.01.2020 and 01.06.2021 passed by respondent nos. 3 and 2 respectively are unsustainable in the eyes of law and are hereby quashed. The matter is remanded back to respondent no. 3 to decide the matter afresh in the light of the decision dated 28.09.2018 passed by Additional District Magistrate (Finance and Revenue) Kanpur Nagar in the matter of Vaibhav Gupta and Saurbh Mishra. 9. The writ petition stands partly allowed.