Allahabad High Court
Rahul Kumar Gupta vs State Of U.P. And 2 Others on 3 September, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:142458 Court No. - 2 Case :- WRIT - C No. - 51735 of 2017 Petitioner :- Rahul Kumar Gupta Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Pankaj Agarwal Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard Sri Pankaj Agarwal, learned counsel for the petitioner and Sri Rishi Kumar, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of instant writ petition, the petitioner has assailed the order dated 07.09.2017 passed by respondent no.2 in Stamp Appeal No.50 of 2012-13 and the order dated 26.10.2012 passed by respondent no.3 in Case No.171/2012-13 as well as order of attachment dated 30.04.2014.
3. Learned counsel for the petitioner submits that the Allahabad Bank published auction notices with respect to the property in question in newspapers namely; Hindustan and Amar Ujala having vide circulation on 09.04.2009, 13.02.2009 & 24.01.2009 respectively, fixing the reserved price of Rs. 65 lacs. The petitioner being the highest bidder succeeded in the bid at Rs.65,05,000/- and after due process, sale certificate was issued to the petitioner on 20.05.2009. In the sale certificate, only land and superstructure of the property in question was sold, which was specifically mentioned in the sale certificate, copy of which has been annexed as Annexure No.2 to the writ petition. Further, in the sale certificate, at internal page no.41, description of property has been given; wherein the part and parcel of the factory land and building situated at Khasra No.243, Village- Nangla Ganga, measuring 4640 Sq. meters (0.4640 Hectare) has been mentioned.
4. He further submits that on the basis of an ex-parte report dated 14.05.2012, the proceedings u/S 33/47-A of the Indian Stamp Act were initiated on the ground that the value of the plant and machinery was not taken into consideraton, which was embedded/installed in the factory and therefore, reference was made to which a notice was issued to the petitioner to which objection/reply was submitted, clearly stating therein that only the land and building was purchased after making due payment of stamp duty, but not being satisfied from the said objection/reply, impugned order dated 26.10.2012 was passed against which, revision was preferred, which was also met the same fate vide order dated 07.09.2017. Counsel for the petitioner further submits that the property in question has been attached vide order dated 30.04.2014. He prays that the same may be released forthwith.
5. He further submits that the petitioner, being the highest bidder, against reserved price i.e. Rs 65 lacs, it is not correct on the part of the respondents to state that the true value was not disclosed. He submits that neither auction proceedings have been challenged before the competent court nor any proceedings for cancellation of sale certificate was initiated before the competent court, nor any cogent material has been brought on record, showing that at the time of execution of the sale certificate, the plant and machinery existed in the factory. Only on the basis of an ex-parte report and the statement given by the Ex-director, the impugned orders have been passed. Further, no material, whatsoever, has been brought on record to support the allegation made in the impugned orders. He further submits that once the reserved price has been fixed and property has been purchased, as mentioned in the auction notice, above the reserved price, it cannot be said that the property in question has been under valued.
6. In support of his submission, he has placed reliance upon the judgment of Hon'ble Apex Court passed in the case of V.N. Devadoss Vs. Chief Revenue Control Officer-cum-Ins. and Ors., 2009 (76) ALR 730 as well as of this Court passed in the case of Shree Ram Agarwal and Ors. Vs. Chief Controlling Revenue Authority and Ors., 2007 (68) ALR 896.
7. Per contra, Sri Rishi Kumar, learned Additional Chief Standing Counsel supports the impugned orders and reiterates the findings mentioned in the impugned orders. He submits that the plant and machinery was there at the time of execution of sale certificate and therefore, the proceedings are justified.
8. After hearing the parties, the Court has perused the record.
9. It is not in dispute that the petitioner purchased the property in question through auction. It is also not in dispute that the reserved price for the sale of the property in question, as details given in the auction notice, was fixed as Rs. 65 lacs. Further, neither any material has been brought on record to show that the auction proceedings or sale certificate were challenged before the competent court nor the said auction has been reversed by the competent court. Once the property in auction has been sold above the reserved price, the same cannot be disputed on the ground that it has been under valued or some immovable assets were not shown in it. Furthermore, the property in question has been auctioned by the Nationalized Bank i.e. Allahabad Bank, but no material has been brought on record by to show that under valuation of the property in question has been made, except on the basis of an ex parte report and the statement of the ex-Director.
10. This Court in the case of V.N. Devadoss (supra) in para no. 10 has held as under:-
"10. Market value is a changing concept. The explanation to sub-Rule (5) makes the position clear that value would be such as would have fetched or would fetch if sold in the open market on the date of execution of the instrument of conveyance. Here, the property was offered for sale in the open market and bids were invited. That being so, there is no question of any intention to defraud the revenue or non disclosure of the correct price. The factual scenario as indicated above goes to show that the properties were disposed of by the orders of BIFR and AIFR and that too on the basis of value fixed by ASG. The view expressed by the Assets Sales Committee which consisted of members such as representatives of IDBI, Debenture Holders, Government of West Bengal and Special Director of BIFR. That being so, there is no possibility of any under valuation and, therefore, Section 47-A of the Act has no application. It is not correct as observed by the High Court that BIFR was only a mediator."
11. This Court in the case of Shree Ram Agarwal (supra) in para no. 5 has held as under:-
"5. In the sale deed, the sold property was described as Bhumidhan land having an area of 15.12 acres alongwith dilapidated buildings of M/s Sri Durga Ice and Cold Storage. Most of the vendors were partners in M/s Sri Durga Ice and Cold Storage."
12. Once the property in question, which was purchased above the price reserved, without any cogent material on record, deficiency of stamp duty cannot be determined.
13. This Court in the case of Shree Ram Agarwal (supra), has specifically held that if in the sale-deed, machinery and tank is not mentioned, the same will not pass on and stamp duty cannot be charged. In the case in hand, neither in the sale certificate nor in the auction notice, the immovable property i.e. plant and machinery has been mentioned. Once the said fact has not been mentioned in either of the said documents, the ownership of the same will not be pass on and therefore, the deficiency of stamp duty cannot legally be charged.
14. In view of the above facts as stated as well as law laid down in the aforesaid judgments, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.
15. Accordingly, the writ petition is allowed.
16. A Mandamus is issued to the authority concerned to release the property forthwith, attached pursuant to the attachment order dated 30.04.2014, on the production of certified copy of this order.
17. Any amount deposited by the petitioner either pursuant to the impugned orders or by the order of this Court, shall be refunded to him along with interest @ 4% per annum from the date of execution of sale certificate to the date of refund, within a month from today from the date of production of certified copy of this order.
Order Date :- 3.9.2024 Pravesh Mishra