Allahabad High Court
Sanwal Dass vs State Of U.P. Thru Collector Sultanpur ... on 23 August, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 8 Case :- WRIT - C No. - 1003958 of 2002 Petitioner :- Sanwal Dass Respondent :- State Of U.P. Thru Collector Sultanpur And 2 Ors. Counsel for Petitioner :- Ram Lagan Misra,Ram Lagan Misra Counsel for Respondent :- C.S.C. Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1 to 3.
2. The instant petition has been filed praying for the following main reliefs:
"(i) issue a writ, order or directions in the nature of a writ of certiorari quashing the order dated 30.09.2002 passed by Additional Commissioner (Judicial) Faizabad Division, Faizabad (respondent no. 2) as contained in annexure no. 7 and order dated 10.01.2022 passed by the Upper Zila Adhikari (Finance and Revenue) Sultanpur (respondent no. 3) as contained in annexure no. 4 to this writ petition.
(ii) issue a writ, order or directions in the nature of mandamus commanding the respondent authorities not to adopt any coercive measures against the petitioner in realisation of illegal deficit amount of stamp duty and penalty imposed much after the execution of the sale deed and raising of construction meanwhile."
3. The case set forth by the petitioner is that a piece of land had been purchased by Shri Sanwal Dass on 09.04.1999 through a registered sale deed, a copy of which is annexure 1 to the petition. The sale deed indicated that over the said land there existed a Madha constructed of unburnt bricks. The petitioner claims to have built two rooms over the land in dispute after the sale deed has been executed. The Tehsildar submitted a report dated 06.11.1999, a copy of which is annexure 2 to the petition, whereby it was indicated that two rooms are situated over the land in dispute and thus it was indicated that the actual market value of the said plot (comprising of the aforesaid two rooms) is more than what has been disclosed by the petitioner. On the basis of the said report the proceedings were initiated under Section 47 A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act 1899). The petitioner claims to have filed objections dated 17.11.2000, a copy of which is annexure 3 to the petition, whereby it was indicated that after the petitioner had purchased the aforesaid land he had raised constructions over the land. In support thereof the receipts of bricks purchase dated 15.07.1999 and cement purchase dated 10.07.1999 were also annexed. The authority concerned, vide impugned order dated 10.01.2002, without considering the objections as raised by the petitioner of he having raised the constructions subsequent to having purchased the land, passed impugned order date 10.01.2002, a copy of which is annexure 4 to the petition. By means of the said order the authority has imposed stamp duty, penalty and interest upon the petitioner for having got executed the sale deed by annexing less stamp duty than what was actually payable. Being aggrieved the petitioner filed an appeal which has been rejected vide the impugned order dated 30.09.2002, a copy of which is annexure 7 to the petition whereby the order of the authority concerned has been reiterated. Being aggrieved the instant petition has been filed.
4. Raising a challenge to both the orders learned counsel for the petitioner argues that after the execution of sale deed on 09.04.1999 he had purchased bricks and cement in July 1999 and thereafter had raised constructions over the land in dispute. The inspection had been carried out by the Tehsildar on 06.11.1999 and by that time the constructions had already been raised. Upon initiation of proceedings against the petitioner, he filed his objections duly indicating to the competent authority the aforesaid facts of he having raised constructions subsequent to he having purchased the land but the authority concerned failed to consider the said objections and has proceeded to pass a cryptic order simply on the basis of a report submitted by the Tehsildar and thus on this ground alone the impugned order merits to be quashed.
5. He also contends that this aspect of the matter had also been indicated in the appeal filed by the petitioner of the constructions having been raised subsequent to he having purchased the said land but the appellate authority has simply reiterated the order passed by the competent authority and rejected the appeal and thus the appellate order also merits to be quashed on this ground.
6. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that the report of the Tehsildar would indicate the existence of construction over the land in dispute and as such it was apparent that the petitioner had paid less stamp duty than what was actually payable and in this view of the matter, competent authority has correctly proceeded to pass the impugned order and the appellate authority has also considered all aspects of the matter and has rejected the appeal and hence the writ petition deserves to be dismissed.
7. Having heard learned counsel for the parties and having perused the record what emerges is that the sale deed was executed over the land in dispute on 09.04.1999. The report of the Tehsildar had been submitted on 06.11.1999 i.e. after almost seven months. In the interregnum period, the petitioner claims to have raised constructions over the land in dispute. Upon initiation of proceedings under Section 47A of the Act 1899 the petitioner filed his objections duly indicating of having raised constructions subsequent to purchase of the said land and prior to the report of the Tehsildar dated 06.11.1999 in as much as the receipts, as have been indicated in the objections filed by the petitioner pertaining to purchase of bricks and cement, are dated 15.07.1999 and 10.07.1999. Thus, it is apparent that the objections and explanation pertaining to the constructions were duly given before the authority concerned. However the authority concerned has failed to consider the objections, as were filed by the petitioner in this regard, rather has proceeded to accept the report of the Tehsildar of the constructions being in existence over the land in dispute and treated the report of the Tehsildar to be gospel truth without going through the objections as were filed and thereafter proceeded to impose additional stamp duty, interest and penalty upon the petitioner. Upon an appeal being filed by the petitioner again these aspects of the matter were not considered and the appeal has been cursorily rejected.
8. A perusal of the objections, as have been filed by the petitioner and which have been annexed alongwith the writ petition and which incidentally have not been disputed by the respondents in the counter affidavit filed by the them, would indicate that the objections were taken by the petitioner of construction having been raised subsequent to he having purchased the land. The receipts of bricks and cement purchased in July 1999 were also indicated and filed. The report of the Tehsildar is of 06.11.1999 meaning thereby that the construction material for construction of the rooms, as finds place in the report of the Tehsildar dated 06.11.1999, are of a date anterior to the report itself. However all these aspects of the matter have not been considered by the competent authority as well as the appellate authority in their orders.
9. Considering the aforesaid, it is apparent that there has been patent non-application of mind on the part of the competent authority in not considering the objections that have been raised by the petitioner pertaining to the construction having been raised prior to the report of the Tehsildar and subsequent to he having purchased the land. Accordingly the impugned orders dated 10.01.2002 and 30.09.2002, having not considered the aforesaid aspect of the matter, are legally unsustainable in the eyes of law.
10. Considering the aforesaid the writ petition is allowed. A writ of certiorary is issued quashing the orders dated 10.01.2002 and 30.09.2002, copies of which are annexures 4 and 7 to the petition.
11. Consequences to follow.
Order Date :- 23.8.2022 J.K. Dinkar