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2023 DIGILAW 298 (ALL)

Devendra Bahadur Singh v. State of U. P.

2023-01-30

UMESH CHANDRA SHARMA

body2023
JUDGMENT : [Umesh Chandra Sharma, J.] 1. Heard Sri Pradeep Kumar, learned counsel for the petitioner, Sri Satish Mohan Tiwari, learned Standing Counsel for the State and perused the material available on record. 2. This writ petition has been filed by the petitioner to issue a writ order or direction in the nature of certiorari quashing the impugned order dated 20.07.2004, passed by the Collector, Etawah and order dated 27.12.2004 passed by Revisional Court (C.C.R.A). 3. In brief facts of the case are that the U.P.F.C under Section 29 of the U.P. Financial Corporation Act 29 of the State Financial Corporation Act has taken the possession of one Cold Storage situated in Village Lakhana known as Durga Cold Storage in recovery action of its loan. It was lying for about decay in the custody of U.P. Financial Corporation and it has come almost in the junked shape when the advertisement has been made by U.P. F.C to sell it in the year 2002. 4. The petitioner's highest bid was accepted for the sale of Cold Storage by the U.P.F.C on a sum of Rs.15,00,000/-(fifteen lacs), which has been registered later on before the Sub Registrar Bharthana, District Etawah on 14.06.2002. 5. The Collector, Etawah has issued the notice and impounded the sale-deed on the ground that the sale consideration amount is less to the actual price etc. The petitioner submitted the reply to the Collector, Etawah against the notice issued under Section 47-A of Indian Stamp Act, which was registered as Case No. 04 of 2003-04 – (State Vs. Devendra Bahadur Singh).The petitioner in his objection has categorically stated that the sale consideration amount, which has been paid by him, was the actual price of the dilapidated Cold Storage Building, where there was no plant and machinery and it was not in working condition. The offer was made by the petitioner on the advertisement issued by the U.P.F.C and the highest offer of the petitioner was accepted by the U.P.F.C for a sum of Rs. 15,00,000/-on which the stamp duty was paid by the petitioner. The Principal Secretary has issued the departmental order dated 26.11.2001. The amount is the actual market value of the property, no less stamp has been paid by the petitioner. The said order passed by the Principal Secretary is appended as Annexure No. 1. 6. 15,00,000/-on which the stamp duty was paid by the petitioner. The Principal Secretary has issued the departmental order dated 26.11.2001. The amount is the actual market value of the property, no less stamp has been paid by the petitioner. The said order passed by the Principal Secretary is appended as Annexure No. 1. 6. Earlier the State Government had issued an order 31.05.2001, whereby the State Government had taken the decision that if any corporation has sold the attached property then the consideration amount, which has been paid, be treated to be the actual consideration amount and the registration shall be made on the sale consideration amount. The said G.O has been appended as Annexure No. 2. 7. The State Government has again issued direction on 30th June, 2001, which is appended as Annexure No. 3. Recently on 01.07.2004, the State Government has again issued a notification under Section 9 (1) (A) of the Act that transfer to be made on the consideration amount offered for any auction proceeding, which is appended as Annexure No. 4. (In this G.O. for the first time the U.P.F.C has been included with other corporations). 8. The Collector, Etawah has illegally passed an order dated 20.07.2004 whereby he assessed the value of the land of the cold storage as Rs. 53,86,500.00/-of 7695 square meters land and the value of plant, machinery and premises has calculated Rs.15,00,000/-on which Rs.5,50,960 was calculated as a deficient stamp duty. The paid amount of Rs.1,20,000/-has been reduced and he determined Rs. 4,30,960.00/-as balance stamp duty alongwith the imposed penalty of Rs.1,75,040.00, which is appended as Annexure No. 5. 9. Feeling aggrieved, the petitioner preferred a revision under Section 56 (I) of Indian Stamp Act before the Chief Controller Revenue Authority U.P. at Allahabad-cum-Board of Revenue. The said revision has been marked as Revision No. 35 of 2004-05-Etawah (Devendra Bahadur Singh Vs. State of U.P.), which is appended as Annexure No. 6. 10. The petitioner has specifically taken the ground that he purchased the junked cold storage, which was in the custody of U.P. Financial Corporation about in a decayed condition and he offered the highest price in the auction for a sum of Rs. State of U.P.), which is appended as Annexure No. 6. 10. The petitioner has specifically taken the ground that he purchased the junked cold storage, which was in the custody of U.P. Financial Corporation about in a decayed condition and he offered the highest price in the auction for a sum of Rs. 15,00,000/-which was accepted by the U.P.F.C. The sale-deed has been executed in his favour, the petitioner did not make any concealment of fact, the sale-deed has been accepted without any objection, therefore the imposition of stamp duty and penalty under Section 47-A of the Act is illegal. The Revisional Court, after hearing the matter, has dismissed the revision videits judgment and order dated 27.12.2004 mainly on the ground that the petitioner is not entitled to get any benefit of Government Order dated 01.07.2004 on the ground that prior to that the U.P. Financial Corporation was not included in the list of exempted Departments, he did not consider the matter on other aspects and he passed an erroneous order and bad in law. The impugned order of the Revisional Court dated 27.12.2004 is appended as Annexure No. 07 to this writ petition. 11. The authorities below have committed manifest error in deciding the dispute and they have wrongly imposed stamp duty sum of Rs. 4,30,960.00/-as well as penalty of Rs. 1,75,040.00/-without any basis. The State Government has given exemption to the property auctioned by the U.P.F.C. 12. The Government Orders and Departmental orders, which have been issued from time to time, have categorically stated that the stamp duty would be paid on the actual consideration amount, which has been accepted by the U.P.F.C in auction proceedings. Therefore, the order is perverse and is liable to be set-aside. In the orders cogent findings have not been recorded and neither the circle rate has been determined by the Collector, Etawah nor report of the Tehsildar, that the price of the property in question was not less than Rs. 15,00,000/-. On this aspect, the Collector, Etawah and Revenue Authorities have not given any finding and they have passed the erroneous orders without any basis. 13. On the aforesaid ground, the petitioner has prayed to quash the aforesaid impugned orders. 14. 15,00,000/-. On this aspect, the Collector, Etawah and Revenue Authorities have not given any finding and they have passed the erroneous orders without any basis. 13. On the aforesaid ground, the petitioner has prayed to quash the aforesaid impugned orders. 14. The respondents have filed counter affidavit on 09.05.2005 alleging that it is true that the petitioner had purchased a cold storage alongwith the building and machinery standing thereon and the deed was registered on 14.06.2002, but the proper stamp duty was not paid by the petitioner in accordance with circle rate floated by the Collector and also on the valuation of the property, building standing thereon, therefore notices were issued to the petitioner. 15. The petitioner filed an objection and has claimed for exemption of the stamp duty in accordance with the Government Order dated 31st may, 2021, which has already been cancelled by the subsequent G.O. dated 23.06.2021, thereafter on 26.11.2021 the State Government has further issued Government Order providing therein that no exemption can be granted on the deeds, which are being executed by the U.P. State Financial Corporation. This fact has been further clarified vide Government Order dated 07.12.2002. It is clarified that the G.O, which is annexed as Annexure No. 3 to the writ petition was issued on 23rd June, 2001 and not on 30.06.2001 as referred by the petitioner in para no. 07 in the writ petition. 16. The Government Order issued on 01st July, 2004 has no retrospective application because the exemption granted by the G.O. dated 01.07.2004 can not be applied retrospectively to the sale deed which was executed on 14th June, 2002, because at the time of presentation of sale-deed by the U.P.F.C no such exemption was available to the petitioner. 17. The order passed by the Collector on 20th July, 2004 was passed after affording full opportunity to the petitioner after taking into account the objection of the petitioner. The order dated 20th July, 2004 is self explanatory wherein it is directed that the Collector has taken a very appropriate steps by not imposing the deficiency of stamp duty at commercial rate and as the property situated in village area therefore residential rate has been taken into account by the Collector in order to determine the correct value of the property. The Collector has applied right formula and has taken into account the rate floated by him in exercise of power conferred under the provisions of U.P. Stamp (Valuation of Property) Rules, 1997 and very concurrent findings of facts have been recorded that the total valuation comes to the tune of Rs. 53,86,500/-and the building and cold storage standing therein has been further valued to the tune of Rs.1,50,000/-and thus the total valuation has been arrived to the tune of Rs. 68,86,500/-and on the aforesaid amount the total stamp duty was payable to the tune of Rs. 5,50,960/-, but the petitioner deliberately and knowingly only in order to evade, the stamp duty has paid to the tune of Rs.1,20,000/- and thus deficiency of stamp duty has rightly been charged to the tune of Rs.4,30,960/-. The order passed by the Collector dated 20th July, 2004 is self explanatory. However, the Naib Tehsildarhas submitted the report on 23.10.2002 that the property in question was commercial one. 18. The grounds taken in the writ petition are totally misconceived. The C.C.R.A has rightly affirmed and confirmed the order passed by the Collector taking into account the situation of the cold storage and its building, potentiality and machinery plant standing thereon. Since in the G.O. dated 26.11.2001 and 07.12.2002, the exemption claimed by the petitioner is not available to him, therefore, the authorities have rightly not granted any benefit of exemption to the petitioner. Two authorities have recorded concurrent finding of fact, therefore the writ petition is totally misconceived and is liable to be dismissed. 19. The petitioner has filed rejoinder affidavit on 19th January, 2006 and has denied the averments of the counter affidavit and has alleged that the dilapidated condition of the building of cold storage and non-functional machinery laying inside the building was purchased by the petitioner from U.P.F.C in auction/negotiation and the U.P.F.C has executed the sale-deed, which was registered on 14.06.2002. 20. It is wrong to say that the G.O. dated 01st July, 2004 is not applicable in present controversy. The previous G.O. dated 31.05.2001 was also issue to provide relaxation in stamp duty to the purchaser, if any unit would be purchased from U.P.F.C and the Stamp Duty would be paid on actual consideration amount in light of the said G.O. dated 31.01.2001 and 23.5.2001, the subsequent G.O. dated 01st July, 2004 has again being issued by the State Government. 21. The order dated 20th July, 2004 passed by the Collector is wholly illegal and it has been passed without considering the complete facts and circumstances of the case and he has wrongly assessed the value of the land building and junked machinery much more to the price on which the petitioner has purchased the cold storage. The amount of tenancy and penalty imposed by the respondent is wholly arbitrary manner. The cold storage is situated out side the urban area in front of agriculture land. The building was almost in a junked condition and as per report of the In-Charge Tehsildar dated 23.10.2002, it is proved that the cold storage was damaged by fire in the month of February, 2002. The fire brigade unit came there for rescue. Both the authorities have not considered this facts of the case and has wrongly assessed the valuation. Therefore, the order dated 20th July, 2004 and 27.12.2004 are patiently illegal and liable to be quashed. The conditional order dated 28th January, 2005 has been complied with by the petitioner and he has deposited the amount of Rs.43,000/-in compliance of the order passed by this Hon’ble Court on 28th January, 2015, therefore, the petition be allowed and the impugned orders be quashed. 22. The findings of this case are as under: In the sale-deed the consideration amount was Rs.15,00,000/-. The cold storage was ceased by the U.P.F.C in recovery proceedings under Section 29. It is incorrect to say that the said value was not paid by the petitioner. The circle rate was assessed by the respondent in access and the Sub Registrar, referred the matter to the Stamp Authority, where the petitioner filed an objection. The G.O. applicable was produced in support of the case and it was said that the respondents authorities have illegally decided the petition ignoring the Government Order and the facts of the case. 23. The penalty was also illegally imposed as Rs. 1,75,040.00/-, the revision was also dismissed by the C.C.R.A. 24. In this case the property in question was purchased by the petitioner from the U.P.F.C on the basis of highest bid on 04.06.2002, which was registered before the Sub Registrar, Bharthana, District Etawah. Before the said date following G.Os were issued in respect of payment of stamp duty, which are as under: 1. G.O dated 31.05.2001, 2. In this case the property in question was purchased by the petitioner from the U.P.F.C on the basis of highest bid on 04.06.2002, which was registered before the Sub Registrar, Bharthana, District Etawah. Before the said date following G.Os were issued in respect of payment of stamp duty, which are as under: 1. G.O dated 31.05.2001, 2. G.O. dated 23.06.2001, by which the Government order dated 31.05.2001 was repealed. 25. On 26.11.2001, a D.O. letter was issued by Sri T. George Jokhan, I.A.S, Member Secretary (Tax & Registration Department), U.P. Government, Lucknow, to consider U.P.F.C also in view of the letter dated 08th November, 2001 sent by Additional Secretary, Board of Revenue, Allahabad for issuance of circular. 26. On 01st July, 2004, a Government Notification was issued specially in respect of U.P. Finance Corporation that, in case, any occasion is held and any instruction is executed between the bidders and U.P.F.C, the stamp duty would be payable in accordance with schedule 1-B of Article 23 Clause ‘A of U.P.F.C Act, 1951 and the stamp duty would be payable on the auctioned value and rest market value excluding the market value. 27. Learned counsel for the petitioner contends that the benefits of ordinance dated 01st July, 2004, was available to the petitioner. Contrary to that arguments of the respondents is that since the auction and registration of the deed had taken place since before the issuance of date of ordinance and at the tine of auction and execution of sale deed, the U.P.F.C was not given privilege, therefore, the benefits provided by the ordinance dated 01st July, 2004 was not available to the petitioner. On 04.06.2002 only the G.O. dated 30th June, 2001, was available, by which the notification dated 31st May, 2001 was repealed. The learned counsel for the petitioner could not place any law, which provides the benefits of ordinance dated 01st July, 2004 to the petitioner. In this ordinance it is no where mentioned that it has any retrospective effect, therefore though the auction had been finalised between the petitioner and U.P.F.C for a sum of Rs.15,00,000/-(fifteen lac) even then the stamp duty was payable on the circle rate as per the Article 23 (a) Schedule 1 (B) of the Indian Stamp Act. 28. In this ordinance it is no where mentioned that it has any retrospective effect, therefore though the auction had been finalised between the petitioner and U.P.F.C for a sum of Rs.15,00,000/-(fifteen lac) even then the stamp duty was payable on the circle rate as per the Article 23 (a) Schedule 1 (B) of the Indian Stamp Act. 28. From the perusal of the impugned orders, it is very much clear that since the property in question was situated in a rural area, therefore the Collector ought not have been valued the property at commercial rate. Since the property in question was in the rural area out side the Town Bakewar, therefore he assessed the property in question at the rate of Rs.7,00/-per square meter and multiplied the area into Rs.700/- i.e. 7,695x700, and he came to the conclusion that the valuation of land is Rs.53, 86, 500/-. 29. Contrary to that no evidence could be placed by the petitioner at the time of auction and execution proceeding of sale-deed, the rate of land of the cold storage was less than Rs.7,00/- per square meter. 30. So far as the valuation of cold storage building, plant and machinery are concerned, it is apparent on the face of record that the learned Collector estimated it at Rs.15,00,000/-without any basis and in an imaginary way. The price of cold storage and building plant and machinery should have been valued properly, considering the condition and also after deducting the depreciation value. 31. Thus, it is found that so far as the value of the cold storage building, plant and machinery are concerned, the Collector and C.C.R.A have not properly appreciated the evidence and in imaginary way, they fixed the price of the same as Rs.15,00,000/-and adding this amount of Rs.15,00,000/- in the amount of Rs.53, 86, 500/- have fixed the stamp duty and the penalty treating short fall of stamp duty. 32. On the basis of the aforesaid discussions, this Court is of the considered view that so far as the valuation of the cold storage building and machinery is concerned, the same is not properly valued, therefore, the order of Collector and the C.C.R.A are bad in the eyes of law in the facts of the case. 32. On the basis of the aforesaid discussions, this Court is of the considered view that so far as the valuation of the cold storage building and machinery is concerned, the same is not properly valued, therefore, the order of Collector and the C.C.R.A are bad in the eyes of law in the facts of the case. Therefore, the case is liable to be remanded back to the District Magistrate, Etawah, for a fresh decision particularly regarding the valuation of the building of the cold storage, plant and machinery in accordance with law. ORDER With the aforesaid observation, the writ petition is accordingly partly allowed and the Collector, Etawah, is directed to value the case properly afresh. For this, the Collector may also take help of P.W.D Department, regarding correct assessment of the plant machinery and building of the cold storage. It is directed that the Collector, Etawah shall decide the case after affording full opportunity of hearing to the petitioner within a period of six months from the date of production/receiving certified copy of this order. A copy of this order be also sent to the Collector, Etawah, for compliance through the Registrar (Compliance). The writ petition is accordingly disposed of.