# Ajay Bahadur v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Writ-C No. 39355 of 2015
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-bahadur-v-state-of-u-p-ors-50836
- **Pages:** 6

## Headnote

Civil Law - Stamp Act, 1899 - Section
33/47-A & 56 - U.P. Stamp (Valuation of
Property) Rules, 1997 - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Sale
deed
of
agricultural
land
with
existing rooms - No declaration under
Section 143 of U.P.Z.A. & L.R. Act - Audit
9 All. Ajay Bahadur Vs. State of U.P. & Ors.
517
objection formed basis for proceedings -
Order imposing deficiency of stamp duty
and
penalty
passed
without
spot
inspection
-
Held:
In
absence
of
declaration
under
Section
143,
land
retains
agricultural
character
-
Spot
inspection mandatory under Rule 7(3)(c) -
Burden lies on St. to prove concealment or
change in user - Mens rea absent - Penalty
unsustainable - Remand rejected as sale
deed
executed
in
2010
-
Present
inspection irrelevant - Orders set aside -
Amount deposited to be refunded with
6% interest.

Held: Non-declaration under Section 143 of
U.P.Z.A. & L.R. Act makes it evident that the
land retained its agricultural character on the
date of sale deed. Mere construction of six
rooms does not alter its nature. Authorities
acted solely on ex parte audit report without
mandatory spot inspection. Burden of proof lies
on the St. to establish concealment or fraud,
which is lacking. Imposition of penalty without
mens rea is illegal. Remand would serve no
purpose as chargeability is determined on the
date of execution of the instrument.

Petition Allowed.

Case Laws Discussed:

## Text

516 INDIAN LAW REPORTS ALLAHABAD SERIES
That which is clearly implied is as much a
part of a law as that which is expressed."

35. It would also be apt to refer to
Domat's Civil Law9 wherein it has been
observed as follows:-

"It is the duty of the judges to apply
the laws, not only to what appears to be
regulated by their express dispositions but
to all the cases where a just application of
them may be made, and which appear to be
comprehended
either
within
the
consequences that may be gathered from
it."

36. Maxwell on Interpretation of
Statutes10, also contains a statement that
"where an act confers a jurisdiction, it
impliedly also grants the power of doing all
such acts, or employing such means, as are
essentially necessary to its execution. Cui
jurisdictio data est, ea quoqe concessa esse
vindentur, sine quibus jurisdictio explicari
non potuit."

37. A necessary conclusion which
flows from the foregoing discussion would
be that against ex parte order passed in a
proceeding under Section 24 of U.P.
Revenue Code, 2006, a recall application
cannot be held to be not maintainable,
particularly when the recall is being sought
by a person, who as per the scheme of the
Act and the Rules made thereunder, would
be a necessary party to the proceeding. This
would be more so in a case where an ex
parte order has been made non-appealable
by virtue of the bar contained under clause
(h) of Section 209 of the Code, 2006.

38. The private respondents in the
instant case being tenure holders of
adjoining contiguous plots and, therefore,
necessary parties as per Rule 22 of Rules
2016, and the order in proceedings under
Section 24 having been passed ex parte
against them, the said respondents cannot
therefore be precluded from invoking the
inherent power of the court concerned to
seek recall of the order passed in
proceeding under Section 24 of Code,
2006.

39. The challenge, which is sought to
be raised against the order passed by the
respondent no.2 upon the recall application
filed by the private respondents on the
ground that the application seeking recall
was not maintainable, thus, cannot be
sustained.

40. The writ petition, therefore, fails
and is accordingly dismissed.
----------
(2023) 9 ILRA 516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No. 39355 of 2015

Ajay Bahadur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramandna Gupta, Sri Ram Kishore Pandey,
Sri Rama Nand Gupta

Counsel for the Respondents:
C.S.C.

Civil Law - Stamp Act, 1899 - Section
33/47-A & 56 - U.P. Stamp (Valuation of
Property) Rules, 1997 - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Sale
deed
of
agricultural
land
with
existing rooms - No declaration under
Section 143 of U.P.Z.A. & L.R. Act - Audit
9 All. Ajay Bahadur Vs. State of U.P. & Ors.
517
objection formed basis for proceedings -
Order imposing deficiency of stamp duty
and
penalty
passed
without
spot
inspection
-
Held:
In
absence
of
declaration
under
Section
143,
land
retains
agricultural
character
-
Spot
inspection mandatory under Rule 7(3)(c) -
Burden lies on St. to prove concealment or
change in user - Mens rea absent - Penalty
unsustainable - Remand rejected as sale
deed
executed
in
2010
-
Present
inspection irrelevant - Orders set aside -
Amount deposited to be refunded with
6% interest.

Held: Non-declaration under Section 143 of
U.P.Z.A. & L.R. Act makes it evident that the
land retained its agricultural character on the
date of sale deed. Mere construction of six
rooms does not alter its nature. Authorities
acted solely on ex parte audit report without
mandatory spot inspection. Burden of proof lies
on the St. to establish concealment or fraud,
which is lacking. Imposition of penalty without
mens rea is illegal. Remand would serve no
purpose as chargeability is determined on the
date of execution of the instrument.

Petition Allowed.

Case Laws Discussed:

1. Aniruddha Kumar & Ashwini Kumar Vs Chief
Controlling Revenue Authority, 2000 (3) AWC
2587

2. Smt. Sushila Verma Vs St. of U.P., 2006 (2)
AWC 1492

3. Sudama Vs Chief Controlling Authority, 2013
(4) AWC 3571

4. Ajay Agarwal Vs Commissioner, 2023 (2) ADJ
561 (LB)

5. Ram Khelawan @ Bachcha Vs St. of U.P.,
2005 (2) AWC 1087

6. Smt. Asha Kapoor Vs Addl. Collector (F&R),
2008 (72) ALR 125

7. Shahid Ali Vs Commissioner Bareilly, 2013 (6)
ADJ 425
8. Har Charan Lal Ice & Cold Storage Pvt. Ltd.
Vs St. of U.P., 2013 (2) AWC 1731

9. Raj Kumar Vs St. of U.P., Writ-C No. 19644 of
2016, decided on 13.04.2023

(Delivered by Hon'ble Prakash Padia, J.)

1. The petitioner has preferred the
present
petition
inter
alia
with
the
following prayer:-

"i- issue a writ order or direction in
the nature of certiorari calling the records
of the case and quash the orders dated 2905-2015
passed
by
Chief
Revenue
Controlling Authority, Allahabad passed in
Stamp Appeal No. 46 of 2012-13 and order
dated 31-10-2012 passed in case no.
45/2012-13 State Vs. Shri Ajay Bahadur
Prasad by learned Additional Collector
finance and revenue/stamp collector Jhansi
District- Jhansi (Annexed as Annexure no.
1 & 2 to the writ petition)."

2. The facts of the present case are
that by means of the registered sale deed
dated
02.06.2010,
the
petitioner
has
purchased a land, having total area 2.492
hectare (equivalent to 24290 sq.meters) of
plot
no.
537/5(MIN)
of
khata
no.
00065,00190,00011, situated at village Pali,
Pahari block Babina, Dstrict- Jhansi. On
the said land, a construction was existing
i.e. six rooms. The total covered area was
95-62 sq meters. The plots in dispute were
recorded as agricultural land and no
declaration u/s 143 of the U.P. Z.A. & L.R.
Act have been made.

3. An audit objection was made by the
Accountant General Uttar Pradesh on
30.11.2010, copy of the audit report dated
30.11.2010 had not been served upon the
petitioner.
518 INDIAN LAW REPORTS ALLAHABAD SERIES

4. In pursuance of the audit objection,
a notice was issued to the petitioner on
27.04.2011 for initiating the proceeding u/s
33/47-A of the Indian Stamp Act 1899, of
which the petitioner has filed his objection
dated 22.06.2011 with the copy of khasra
mention therein that the land in dispute is
agricultural land.

5. The respondent no.2- Additional
Collector Finance and Revenue, Jhansi
passed an order dated 31.10.2012 imposing
the deficiency of the stamp duty of Rs.
17,84,500/- and penalty of Rs. 17,84,500/-
along with 1.5% of simple interest from the
execution of the sale deed.

6. Aggrieved by the order dated
31.10.2012 passed by the respondent no.2-
Additional Collector Finance and Revenue,
Jhansi, the appellant/petitioner decided to
prefer stamp appeal u/s 56 of the Indian
Stamp Act, 1899 before the court of Chief
Controlling Authority, Board of Revenue
U.P. at Allahabad (respondent no. 3). The
same was numbered as Stamp Appeal No.
46/2012-13. While filing the appeal 1/3rd
amount i.e.Rs. 14,57,342/-, was deposited
by the petitioner as per mandatory
provisions of the Act.

7. The said appeal has been dismissed
by the appellate authority by the order
dated 29.05.2015. Aggrieved against the
aforesaid, the petitioner has preferred the
present petition.

8. It is argued by learned counsel for
the petitioner that the land in dispute was
recorded as agricultural holding on the date
of execution of sale-deed, which is clear
from khasra as well as sale-deed dated
2.6.2010 annexed as Annexure No. (1) to
the supplementary affidavit. It is further
argued that the declaration under Section
143 of U.P. Z.A. & L.R. Act was not made
on the date of execution of the sale-deed
and the land was recorded as agricultural
land, therefore, the stamp duty only be
charged according to rate applicable for
agricultural holdings. It is next argued that
it is mentioned in the sale-deed itself that
separate stamp duty for the construction
existing over the plot in dispute has been
paid for executing the sale-deed. It is also
argued that no spot inspection has been
made by the authorities and the entire
judgment is based on ex parte audit report.
It is further argued that wholly illegally,
without
giving
any
specific
reason,
excessive amount of penalty has been
imposed upon the petitioner. Learned
counsel for the petitioner has placed
reliance upon several judgments of this
Court.

9. On the other hand, learned
Standing counsel appearing on behalf of
the State submits that the impugned orders
passed by the concerned authorities are
absolutely perfect and valid orders, the
provisions
of
Section
143
of
U.P.
Zamindari Abolition & Land Reforms Act,
1950 are irrelevant for the purposes of
deciding the chargeability of stamp duty at
this point of time. Learned Standing
Counsel, therefore, submits that the orders
impugned do not require any interference.

10. Heard Sri Ram Kishore Pandey,
learned counsel for the petitioner, Sri Vijay
Shankar, learned Chief Standing counsel
appearing on behalf of the State, I find that
non-declaration of land as Abadi under
Section 143 of U.P. Zamindari Abolition &
Land Reforms Act, 1950 is an admitted
fact. The contention of the State to the
effect that the said non-declaration is not
relevant in the proceedings under the
Indian Stamp Act cannot be accepted for
9 All. Ajay Bahadur Vs. State of U.P. & Ors.
519
the reason that in exercise of statutory
powers under the Indian Stamp Act, as
applicable in the State of U.P., Uttar
Pradesh Stamp (Valuation of Property)
Rules, 1997 have been framed. Rule 3(1)(a)
of the Rules, provide as follows:

"Facts
to
be
set
forth
in
an
instrument.-In case of an instrument
relating to immovable property chargeable
with an ad valorem duty, the following
particulars shall also be fully and truly
stated in the instrument in addition to the
market value of the property-

(1) In case of land-

(a) included in the holding of a tenureholder, as defined in the law relating to
land tenures-

(i) the Khasra number and area of
each plot forming part of the subject-matter
of the instrument;

(ii) whether irrigated or unirrigated
and if irrigated, the source of irrigation;

(iii) if under cultivation whether dofasali or otherwise;

(iv) land revenue or rent whether
exempted or not and payable by such
tenure-holder;

(v) classification of soil, supported in
case of instruments exceeding twenty
thousand rupees in value, by the certified
copies, or extracts from the relevant
revenue records issued in accordance with
law;

(vi) location (whether lies in an urban
area, semi-urban area, or countryside);
and

(vii) minimum value fixed by the
Collector of the district."

11. Admittedly, on the date of
execution of the sale-deed, the provisions
of U.P. Zamindari Abolition & Land
Reforms Act, 1950 were applicable. The
definition of "land" as contained under
section 3(14) of the U.P. Zamindari
Abolition & Land Reforms Act, 1950,
reads as follows:

(14) "Land"[except in Sections 109, 143
and 144 and Chapter VII] means land held
or occupied for purposes connected with
agriculture,
hoticulture
or
animal
husbandry which includes pisciculture and
poultry farming;

12. In view of the definition of land
contained in the law relating to land
tenures, i.e. U.P. Zamindari Abolition &
Land Reforms Act, 1950, the fact that the
land was not declared as Abadi under
Section 143 of U.P. Zamindari Abolition &
Land Reforms Act, 1950 as explained
under Section 3(14) of the said Act, is itself
becomes a relevant factor for determining
the nature of land that was subject matter of
instrument.
This
Court
in
various
authorities has held that when the land is
purchased for agricultural purposes and
declaration under section 143 of the U.P.
Z.A. & L.R.Act, 1950 has not been made
and
merely
because
there
is
some
construction i.e. six rooms over the land,
the same would not loose its character as
the agricultural land for the purposes of
levy of stamp duty. Reference can be made
to few authorities of this Court in the case
of Aniruddha Kumar and Ashwini Kumar
vs Chief Controlling Revenue Authority,
U.P. Allahabad and another, reported in
2000 (3) AWC 2587; Smt. Sushila Verma
vs State of U.P. and others reported in
2006 (2) AWC 1492 and Sudama vs Chief
Controlling Authority and others, reported
in 2013 (4) AWC 3571.

13. Moreover, had the allegation of
the State been to the effect that though the
land
was
purchased
for
agricultural
520 INDIAN LAW REPORTS ALLAHABAD SERIES
purposes, but its user was immediately
changed and on the date of sale deed, it was
being used for any other purpose like,
industrial, commercial or even residential,
the situation would have been different.
Even in those situations, spot inspection at
the relevant point of time was a necessity,
but, admittedly, in the present case, no spot
inspection has been carried out. Necessity
of spot inspection and its mandatory nature,
with reference to Rule 7 (3) (c) of the
aforesaid
Rules
of
1997,
has
been
reiterated, time and again by this Court in
various authorities including Ajay Agarwal
and others vs Commissioner Lucknow and
others, reported in 2023 (2) ADJ 561 (LB),
and Ram Khelawan alias Bachcha vs State
of U.P. and another, reported in 2005 (2)
AWC 1087.

14.

The
observations/findings
recorded in the orders impugned are also
contrary to principles of burden of proof
particularly, in a case where proceedings
arise out of a fiscal statute. Once the State
was proceeding to impose deficient stamp
duty upon the petitioner, the entire burden
lay upon the State to establish beyond
reasonable doubt that the petitioner made
some concealment at the time of getting the
sale-deed executed in his favour or that
within a close proximity of dates, the user
of the land in dispute was changed so as to
levy additional stamp duty. Nothing to this
effect has been brought on record, rather,
not only the findings recorded in the orders
impugned are contrary to the provisions of
the Indian Stamp Act, 1899, as applicable
in the State of U.P. as well as U.P. Stamp
(Valuation of Property) Rules, 1997, but
certainly contrary to the law consistently
laid down by this Court.

15. Insofar as the imposing one time
penalty is concerned, it is well settled that
unless "mens rea" is established on the part
of the purchaser, no penalty can be
imposed, even if the provision of penalty is
a creation of statute. Regarding imposition
of penalty, reference can be made to a
judgment of this Court in the case of Smt.
Asha Kapoor vs Additional Collector
(Finance & Revenue), Ghaziabad and
others, reported in 2008 (72) ALR 125,
where this Court has held that penalty can
be imposed if there is an attempt to evade
the stamp duty and penalty presupposes
culpability and an intention to conceal or to
play fraud with the authorities. I do not find
any finding on record, whereunder any
opinion
has
been
formed
by
the
respondent-Authorities that the petitioner
defrauded the Government having mens rea
at the time of getting the sale-deed
executed. Even the annexures of the writ
petition disclosing the nature of land have
not been disputed by the State in the
counter affidavit. I also find that the saledeed in question conforms to the statutory
requirements of disclosure of necessary
particulars as per rule 3(1)(a) of the Rules
of 1997. Therefore, imposition of penalty is
also contrary to law of the land.

16.

Learned
Standing
Counsel
submits that in case, non-conduct of the
spot inspection is treated as an illegality
behind passing of the orders impugned, the
matter may be remanded to the authorities
for conducting or getting conducted spot
inspection and then pass a fresh order.

17. However I find that no fruitful
purpose would be served in remanding the
matter to the Authorities and infact remand
in this case would be a futile exercise for
the reason that the instrument in question
was executed on 02.06.2010 and it is well
settled that chargeability of the stamp duty
has to be examined with reference to the
9 All. M/S Anjali Exim Pvt. Ltd. Vs. State of U.P. & Ors.
521
date
of
execution
of
instrument.
Proposition
to
this
effect
has
been
consistently laid down by this Court in
various authorities including Shahid Ali vs
Commissioner Bareilly Division Bareilly
and others, reported in 2013 (6) ADJ 425
and Har Charan Lal Ice & Cold Storage
Pvt. Ltd. Vs State of U.P. and others,
reported in 2013 (2) AWC 1731. Therefore,
the insistence of learned Standing Counsel
regarding remand is liable to be rejected,
also for the reason that if inspection is
carried out today, i.e. in the year 2023 that
would be wholly irrelevant for the purposes
of determination of stamp duty on the date
of execution of sale deed i.e. 2010.
Therefore, such spot inspection would
neither be of any significance nor relevant
for the purposes of deciding the matter.

18. The same view was also taken by
the co-ordinate Bench of this Court in its
judgment and order 13.4.2023 in Writ-C
No. 19644of 2016 (Raj Kumar vs. State Of
U.P. and 2 Others).

19. In view of above, the writ petition
succeeds and is allowed.

20. The order dated 29.5.2015 passed
by
respondent
No.3-
Chief
Revenue
Controlling Authority, Prayagraj in Stamp
Appeal No.46 of 2012-13 and order dated
31.10.2012 passed by respondent no.2-
Additional
Collector
Finance
and
Revenue/Stamp
Collector,
Jhansi
are
hereby quashed by issuing a writ of
Certiorari.

21. A writ of Mandamus is also issued
to the effect that any amount deposited by
the petitioner either prior to filing of this
writ petition or in pursuance of any interim
order passed in the present case, shall be
refunded to the petitioner along with simple
interest at the rate of 6% per anum from the
date of its deposit till the date of actual
payment, within a period of three months,
on moving appropriate application by the
petitioner along with certified copy of this
order before the authority concerned.
----------
(2023) 9 ILRA 521
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 1001865 of 2013

M/S Anjali Exim Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Phool Chandra Mishra, Sachin Garg

Counsel for the Respondents:
C.S.C.

Civil Law - Stamp Act, 1899 - Sections 9 &
47-A - Stamp-duty exemption granted
under Govt. Notification dt. 19.01.2005 for
setting up Agro/Food Park - Sale-deed
registered on 20.06.2006 pursuant to
exemption
-
Industrial
unit
not
established by petitioner - Proceedings
initiated under Section 47-A after lapse of
6 years - Held: Demand for stamp-duty
based on subsequent Govt. policy (G.O. dt.
21.08.2009) unsustainable - Duty payable
to be determined with reference to law as
on date of execution - No infirmity in
exemption - Invocation of Section 47-A
illegal and de hors the Act - Impugned
order quashed.

Held: Stamp duty liability is determined on date
of execution of instrument; subsequent change
in policy cannot retrospectively revoke a valid
exemption granted under Section 9 of the Act -
No authority under Section 47-A to reopen
exemption-based registrations.