Allahabad High Court
M/S S.J.P Infracon Limited vs State Of U.P. And 5 Others on 1 December, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- WRIT - C No. - 17744 of 2020 Petitioner :- M/S S.J.P Infracon Limited Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Shreya Gupta,Ravi Anand Agarwal Counsel for Respondent :- C.S.C.,Anjali Upadhya,Ramendra Pratap Singh Hon'ble Ashwani Kumar Mishra,J.
This Court on 09.11.2020 passed a detailed order requiring the Principal Secretary of the department concerned to revisit the issue in light of the observations made in the aforesaid order, which is reproduced hereinafter:-
"Facts giving rise to the dispute herein has already been noticed by this Court in an earlier judgment delivered in Writ Petition No. 16639 of 2018, which stood decided on 28.5.2018 vide following orders:-
''The petitioner had, under the scheme for allotment of Large Group Housing/Builders' Residential Plots Scheme bearing Code No.BRS-03/2010, which was floated by the Greater NOIDA Industrial Development Authority, applied for being allotted Plot No.GH-05 in Sector 16-B, Greater Noida measuring 198135.62 sq. meters. After the allotment, a registered lease deed was also executed and a Stamp Duty amounting to Rs.12,70,64,900/- was paid on the registration of the lease deed.
However, when by a judgment and order dated 12.5.2011 the High Court quashed the land acquisition proceedings with respect to village Shahberi and other adjoining villages, the petitioner relinquished that portion of the plot which stood reverted to the tenure holders because of the High Court's order. Thereafter, the petitioner requested the authorities to return such Stamp Duty which was paid by it for the execution of the lease of such land, the acquisition of which had been quashed. In this regard, the petitioner made several representations to the State Government. When they were not being decided, Writ Petition No.3183 of 2018 (M/s. S.J.P. Infracon Limited Vs. State of U.P. & Ors.) was filed and an order was passed on 24.1.2018 directing the State-respondents to decide the representation of the petitioner. Thereafter, the petitioner was informed, by a letter dated 8.2.2018, that the representation of the petitioner had already been rejected on 14.8.2017. Hence the instant writ petition.
Learned counsel for the petitioner has submitted that the reason as had been given in the impugned order dated 14.8.2017 could not be sustained in the eyes of law as it had stated that the petitioner's case was not covered by the provisions of section 49(1), (2) and (5) of the Indian Stamp Act, 1899. Learned counsel further submits that when the lease deed, as was executed between the petitioner and the Greater Noida, had been rendered void owing to the fact that the land in regard to which the lease deed was executed, itself no longer belonged to the Greater Noida because of the acquisition having been set aside by the High Court, the petitioner was not to be put to a loss and, the Stamp Duty which it had paid, be returned to it.
Learned counsel for the petitioner has relied upon a judgment reported in (2015) 16 SCC 31, The Committee-GFIL Vs. Libra Buildtech Private Ltd. & Ors. and has specifically read out paragraph 25 of it and submitted that when the lease deed itself had been rendered null and void because of the acquisition having been set aside, the Stamp Duty had to be returned.
Learned Standing Counsel and Sri Ramendra Pratap Singh, learned counsel for the Greater Noida, however, submitted that unless a case was covered under section 49 of the Indian Stamp Act, 1899, the question of return of Stamp Duty could not be considered at all.
Having heard learned counsel for the parties, I am of the view that the orders dated 14.8.2017 and 8.2.2018 cannot be sustained, thus, are quashed. The matter is remitted back to the Joint Secretary, Government of Uttar Pradesh, Lucknow for re-adjudication of the matter, who shall now decide as to whether the Stamp Duty paid by the petitioner had to be returned in view of the law laid down in (2015) 16 SCC 31.
The writ petition is partly allowed."
Petitioner appears to have approached the authorities of the State and an order came to be passed by the State Government on 28.2.2019 accepting petitioner's claim for refund of stamp duty with a direction upon the Inspector General, Registration to refund the requisite amount after deducting 10% in terms of the statutory scheme. This order dated 28.2.2019 is not shown to have been set aside or interfered with by a higher forum. Notwithstanding with the above the Principal Secretary of the Department concerned has passed a fresh order on 28.5.2019, even without referring to the previous order dated 28.2.2019, directing the petitioner to approach the Greater Noida Authority for refund of such amount. It is this subsequent order which is assailed in this petition.
Learned counsel for the petitioner states the stamp duty was actually paid to the State Government and once the authorities have found petitioner's claim for refund to be recovered under Section 49 of the Indian Stamp Act, 1899 the consequential action of refund of the stamp duty would be warranted at the level of the State Government and not at the level of the Greater Noida Authority. Submission is that merely on account of shifting of responsibilities on different Officers the claim of petitioner is not being addressed. It is also urged that the action of the authorities in subjecting the petitioner to repeated approaches before the different authorities is clearly an arbitrary exercise of power.
From a prima facie perusal of the materials placed before this Court it is apparent that the acquisition proceedings have already been quashed as the notification under Section 4 of the Land Acquisition Act itself was held to be void. Any transfer of such land pursuant to acquisition therefore, would have to be treated as void. The State Government has already determined the issue by accepting petitioner's claim for refund of amount in terms of Section 49 of the Act. Such order has not been challenged before anyone. The Court is at a loss to understand as to how a subsequent order is being passed by the State Government taking a contrary view and directing the authority to refund the amount. It is not in issue that the amount received against stamp duty is credited to the account of State and the claim for refund would, therefore, be required to be addressed by the state and not by the Development authority. The order of the State Government dated 28.5.2019 is prima facie not found to be in accordance with law. Before proceeding any further it will be appropriate to direct the Principal Secretary of the Department concerned to revisit the issue in light of the above observation and to file his personal affidavit justifying his order by the next date fixed.
List this case in the additional cause list on 1.12.2020. It shall be open for all other respondents also to file a counter affidavit, in the meantime."
Principal Secretary of the department concerned has consequently filed her personal affidavit which is taken on record.
In para 8 of the affidavit it is stated that the provision contained under section 49 of the Indian Stamp Act, 1899 is not attracted in the facts of the present case as lease deed in question is still valid and effective and the petitioner continues to hold lease right over the land in question. It is also stated that the Greater Noida Industrial Development Authority is in default for not providing entire lease land to the petitioner in terms of the lease deed executed in favour of the petitioner. In para 9 it is stated that stamp papers have been used by the petitioner and were not produced for cancellation in original and in absence thereof the same cannot be declared spoiled stamp and endorsement of cancellation of stamp cannot be made to invoke provisions contained in rules 230 to 243 of the U.P. Stamp Rules.
A counter affidavit has also been filed on behalf of the Greater Noida Industrial Development Authority.
Learned counsel for the petitioner, on the other hand, submits that the lease deed in favour of petitioner was executed on 16.11.2010 in respect of 1,98,135.62 sq. mtr. The leased land was acquired by the development authority concerned. Part of the acquisition proceedings were declared illegal in judicial proceedings, and therefore the area of lease, previously executed came to be reduced to 1,26,302 sq. mtr. Prayer for refund of stamp duty accordingly came to be made in respect of reduced area of land. A ratification deed has been executed on 7.2.2013 which reads as under:-
"This supplementary/correction deed made on the 7th Day of February, 2013 between Greater Noida Industrial Development Authority, a body corporate constituted under Section 3 read with Section 2(d) of the Uttar Pradesh Industrial Area Development Act, 1976 (U.P. Act No.6 of 1976) (hereinafter called the 'Lessor' which expression shall, unless the context does not so admit include its successors and assigns) of the One Part and M/s. SJP Infracon Limited having its registered office 111 Shri Jamuna Dham, Governdhan Road, Mathura- 281004, U.P. through its GM (Admn) Mr. D. K. Mahle S/o Late Shri Sukhbir Mahle R/o. R-5/107, Raj Nagar, Ghaziabad-201001 duly authorized by Board of Resolution dated 30.10.2010 (hereinafter called the 'Lessee' which expression shall unless the context does not so admit, include its executors, successors.
The Remaining total area of the plot is 126302 sq. mtr. (leased Area 198135.62 Sqm. less area 71833.62 Sqm. Balance Clear Area 126302 Sqm.).
Except as hereinafter varied/modified the original lease deed dated 15.11.2010 which was duly registered in the office of Sub Registrar, Gautam Budh Nagar, registered on 16.11.2010 Bahi No.1, Jild No.7558, Page No.77 to 110 on Sl. No.23383 shall continue to have full force and effect. Plot number, location and boundaries are same. Consequently, credibility of stamp duty remains unaffected.
In office, administrators, representatives and permitted assigns) of the other Part.
Through this supplementary/correction deed owing to the quashing of acquisition of land of by Supreme Court order dated 12.05.2011 the parties hereto agree to modify the original lease deed dated 15.11.2010 registered on Bahi No.1 Jild No.7558 Page No.77 to 110 on Sl. No.23383 on 16.11.2010 between the same parties in which Lease Deed of Builders/Group Housing Plot No.GH-05, Sector-16B, Greater Noida area measuring 198135.62 sq. m. was executed and registered with Sub Registrar, Gautam Budh Nagar, Greater Noida.
In witness whereof, the parties hereto have signed this supplementary/correction deed on the day year first mentioned above."
Accordingly, stamp duty has been realized from the petitioner in respect of leased land measuring 1,98,135.62 sq. mtr. However, on account of subsequent ratification deed dated 07.02.2013 the lease area stands reduced by 71,833.62 sq. mtr. This Court had already observed that charging of stamp duty in respect of 71,833.62 sq. mtr. was legally impermissible as the acquisition proceedings, to the extent, stood nullified under orders of the Court.
Section 49 of the Act of 1899 contains provision relating to allowance of spoiled stamp. Section 49(d)(1)&(2) of the Act is relevant for the present purposes and reads as under:-
"49. Allowance for spoiled: - Subject to such rules as may be made by 81 [the 82 [State Government]] as to the evidence to be required or, the enquiry to be made, the Collector may, on application made with the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:?
(d) the stamp used for an instrument executed by any party thereto which?
(1) has been afterwards found to be absolutely void in law from the beginning;
(2) has been afterwards found unfit, by reason of any error or mistake therein, for the purpose originally intended;"
Once the acquisition proceedings to the extent of 71,833.62 sq. mtr. land stood quashed under the judicial orders, which have attained finality, the stamp to the extent of above allotted specified area of land i.e. 71,833.62 sq. mtr. will have to be treated as absolutely void by virtue of section 49(d)(1). In law such stamp would have to be treated as spoiled stamp.
The Principal Secretary of the department has referred to the provision contained in rules 230 to 240 of the Rules in order to contend that unless the stamp is physically presented and an endorsement is made for it to be treated as spoiled stamp there would be no occasion to refund the amount in question.
Such affidavit clearly shows lack of understanding on part of the Principal Secretary concerned. The stamp duty paid on land measuring 71,833.62 sq. mtr. on account of reasons enumerated above would clearly fall within the definition of spoiled stamp in law as lease deed to such extent has been rendered void, and order for refund will have to be passed even without insisting for physical surrendering of the deed itself.
In the facts of the present case physical surrendering otherwise would not feasible as in respect of balance area of land leased out to petitioner i.e. 1,26,302 sq. mtr. the transfer would be regulated by the lease deed itself and the terms of contract would continue to operate in respect of such reduced area by virtue of correction deed. It is only that the area and value of property stands reduced and the stamp duty previously realized in respect of 71,833.62 sq. mtr. will have to be treated in law as having been spoiled for the purposes of refund of the amount.
Records otherwise reveal that no such stand was ever taken by the State authorities in the past although the petitioner has been litigating in that regard for the last several years. Repeated orders have been passed by this Court. The State Government itself has accepted petitioner's claim for refund of stamp duty vide Govt. Order dated 28.2.2019. This order has not been set aside by any higher forum. The then Principal Secretary, therefore, could not have passed the impugned order as it amounts to passing of contrary orders in the same matter. It was for this reason that this Court had given an opportunity to the Principal Secretary of the State to revisit the issue but it is unfortunate that the officer concerned has still not cared to examine the issue in light of the above facts.
Once this Court directed the authority concerned to revisit the issue it was expected that there would be due application of mind on part of the authority concerned before the affidavit itself gets filed, which in the facts itself is found wanting. It is worth reiterating that once the State Government had already passed an order on 28.2.2019 in compliance of the previous directions issued by this Court on 28.5.2018 there was otherwise no scope for any review at the level of the State itself.
In that view of the matter, the writ petition succeeds and is allowed. Subsequent order of the State Government dated 28.5.2019 directing the petitioner to approach the authority stands quashed. The State Government is directed to implement its own order dated 28.2.2019 within a period of six weeks from the date of presentation of a copy of this order. In the event such refund is not allowed within the period specified the petitioner would also be entitled to interest at the rate of 8% p.a. and it shall be open for the State Government to recover such amount from the salary of the officer who is found responsible for not complying with the above directions. Petitioner is also entitled to cost quantified at Rs.25,000/-.
The concerned authority/official shall verify the authenticity of computerized copy of this order from the official website of High Court, Allahabad and shall act accordingly without waiting for submission of the certified copy of this order.
Order Date :- 1.12.2020 Ashok Kr.