Allahabad High Court
M/S S.J.P Infracon Limited vs State Of U.P. And 5 Others on 9 November, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 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.
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.
Order Date :- 9.11.2020 Abhishek Singh