# Anil Kumar Agrawal v. Commissioner Faizabad & Anr

- **Citation:** (2023) 2 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-17
- **Case number:** Writ C No. 1002014 of 2003
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-agrawal-v-commissioner-faizabad-anr-49641
- **Pages:** 4

## Headnote

(A) Civil Law - The Indian Stamp Act, 1899
- Section 47-A - Under-Valuation of the
instrument , Section 56 - Appeal - stamp
duty is leviable only on the area indicated
in
the
instrument
of
transfer
since
petitioner would not derive any title or
ownership over any property beyond the
area indicated in the instrument. (Para -
3,6,7)

Proceedings under section 47-A of the Act were
initiated - on basis of spot inspection report -
Additional stamp duty along with penalty
imposed upon petitioner - ground - possession
of excess area than is indicated over plot in
question in the sale deed. (Para -1 to 6)

HELD:-Petitioner may be a trespasser or in
illegal occupation over area in excess of the
sale deed, but stamp duty is levied only on
the area indicated in the instrument of
transfer. Impugned orders and appellate
order not in consonance with judgments
pronounced by this Court and the Supreme
Court, hence set aside. Petitioner granted
liberty to claim a refund of the amount
deposited with the authorities, which will be
refunded within three months and with
interest @ 6% per annum.(Para -6 to 8)

Writ Petition allowed. (E-7)

List of Cases cited:-

## Text

210 INDIAN LAW REPORTS ALLAHABAD SERIES

20. ििुपरान्त याची ने इस न्यायालय में
यादचका प्रस्तुि दकया दजसे सुनवाई के उपरान्त
दिनाांक 05.09.2013 को गुण-िोर् पर दनरस्त कर
दिया गया िथा प्रश्नगि आिेशोां को उदचि एवां वैध
माना गया। याची ने उि एकल न्यायाधीश के आिेश
के दवरुद्ध अन्य कोई उपचार प्राप्त करने के बजाय
लगभग सवा साि वर्ष के उपरान्त पुनदवषलोकन
यादचका प्रस्तुि दकया है। िोनोां अधीनस्थ न्यायालयोां
द्वारा िथा इस न्यायालय द्वारा पूवष में याची को सुनवाई
का पूणष अवसर प्रिान दकया जा चुका है। घटना वर्ष
2007 की है. िथा उस समय दवद्यमान दनयम एवां
दवदध के अनुसार याची को सम्यक सुनवाई का
अवसर प्रिान दकया गया था। अिएव प्रश्नगि आिेशोां
को पाररि करिे समय मूल उप-दजलादधकारी द्वारा
एवां अपीलीय न्यायालय द्वारा ित्समय दवद्यमान
दनयमोां के अनुसार आिेश पाररि दकये गए थे। याची
मात्र एक अनुज्ञस्प्तधारी है परन्तु वह अदधकार के
रूप में अनन्तकाल िक अनुज्ञस्प्तधारी के रूप में
अदधकारपूवषक
सस्ते
गल्ले
की
िुकान
का
अनुज्ञस्प्तधारी बना रहना चाहिा है।

21. उपरोि िशाओां में इस न्यायालय का यह
अदभमि है दक यह पुनदवषलोकन प्राथषना पत्र एवां
यादचका दनराधार है एवां दनरस्त दकये जाने योग्य है।

आदेि

22. यह पुनदवषलोकन प्राथषना पत्र एवां यादचका
उपरोिानुसार दनरस्त की जािी है।
----------
(2023) 2 ILRA 210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1002014 of 2003

Anil Kumar Agrawal ...Petitioner
Versus
Commissioner Faizabad & Anr.
 ...Respondents

Counsel for the Petitioner:
Rakesh Pathak, I.D. Shukla, S.K. Mehrotra

Counsel for the Respondents:
C.S.C.

(A) Civil Law - The Indian Stamp Act, 1899
- Section 47-A - Under-Valuation of the
instrument , Section 56 - Appeal - stamp
duty is leviable only on the area indicated
in
the
instrument
of
transfer
since
petitioner would not derive any title or
ownership over any property beyond the
area indicated in the instrument. (Para -
3,6,7)

Proceedings under section 47-A of the Act were
initiated - on basis of spot inspection report -
Additional stamp duty along with penalty
imposed upon petitioner - ground - possession
of excess area than is indicated over plot in
question in the sale deed. (Para -1 to 6)

HELD:-Petitioner may be a trespasser or in
illegal occupation over area in excess of the
sale deed, but stamp duty is levied only on
the area indicated in the instrument of
transfer. Impugned orders and appellate
order not in consonance with judgments
pronounced by this Court and the Supreme
Court, hence set aside. Petitioner granted
liberty to claim a refund of the amount
deposited with the authorities, which will be
refunded within three months and with
interest @ 6% per annum.(Para -6 to 8)

Writ Petition allowed. (E-7)

List of Cases cited:-

1. Mohd. Mustafa Ali Khan Vs Raj Rajeshwari
Devi , 1959 A.I.R. Allahabad 583

2. Smt. Bindu Singh Vs St. of U.P. & ors. , 2008
(26) Lucknow Civil Decisions 1158

3. The Madras Refineries Ltd. Vs The C.C.R. A.,
B.O.R, Madras , (1977) 2 SCC 308

(Delivered by Hon'ble Manish Mathur, J.)
2 All. Anil Kumar Agrawal Vs. Commissioner Faizabad & Anr.
211

1.

Heard
learned
counsel
for
petitioner and learned State Counsel
appearing on behalf of opposite parties.

2. Petition has been filed assailing
order dated 23rd August, 2002 passed
under Section 47-A of Indian Stamp Act
1899 as well as appellate order dated 12th
June, 2003 passed in Appeal under Section
56 of the Act whereunder additional stamp
duty along with penalty has been imposed
upon petitioner primarily on the ground
that he is in possession of excess area than
is indicated over plot in question in the sale
deed dated 25th June, 2002.

3. Learned counsel for petitioner
submits that by means of instrument of
transfer dated 25th June, 2002, he had
purchased a portion of gata No. 438 situate
in village Janora, Paragana Haveli Awadh,
Tehsil and District Faizabad whereafter on
the basis of an ex parte spot inspection
conducted by Tehsildar dated 28th July,
2002, proceedings under Section 47-A of
the Act were initiated against petitioner. It
is submitted that petitioner had filed his
objections to the spot inspection report
which however were not considered and
the order has been passed by the assessing
authority primarily on the spot inspection
report
on
the
ground
that
as
per
measurement of the property purchased,
excess land is in possession of the
petitioner than is indicated in the sale deed.
The aforesaid finding has thereafter been
affirmed by appellate authority under
Section 56 of the Act without considering
the aspect that stamp duty is leviable only
on the area indicated in the instrument of
transfer since petitioner would not derive
any title or ownership over any property
beyond the area indicated in the instrument.
As such it is submitted that authorities fell
in error in allowing reference under Section
47-A of the Act. Learned counsel further
submits that even otherwise the spot
inspection report was ex parte and no prior
notice thereto was ever provided to
petitioner. He has also placed reliance on
the judgment of this Court rendered in the
case of Mohd. Mustafa Ali Khan versus Raj
Rajeshwari Devi reported in 1959 A.I.R.
Allahabad 583 and Smt. Bindu Singh
versus State of U.P. and others reported in
2008 (26) Lucknow Civil Decisions 1158
to buttress his submissions.

4. Learned State Counsel has refuted
submissions advanced by learned counsel
for petitioner with submission that a
perusal of the spot inspection report will
reveal that measurement of the actual area
purchased by the petitioner was done by
Naib Tehsildar and the petitioner was found
to be in possession of excess area that is
indicated in the sale deed. It is submitted
that there was major discrepancy in the area
indicated in the sale deed and actual
measurement of the area purchased by the
petitioner.

5. Considering submissions advanced
by learned counsel for parties and upon
perusal of material on record, it appears
that proceedings under section 47-A of the
Act were initiated on the basis of spot
inspection report which indicated excess
area of the property at the time of
measurement in the spot inspection than is
indicated in the sale deed. It is on that
basis that order under section 47-A has
also been passed as also on the basis of
objection filed by petitioner that he would
demolish the existing shops and would
execute a sale deed with regard to
remaining area of the property purchased.
The same reasoning has been adopted by
appellate authority in proceedings under
Section 56 of the Act.
212 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Upon perusal of aforesaid orders, it
is apparent that they are based on the spot
inspection report dated 28th July, 2002
indicating petitioner to be in possession of
over excess area than is indicated in the
instrument of transfer. It is quite apparent
that petitioner would not derive title or
ownership over area which is not included
in the sale deed. At best it can be safely
inferred that petitioner may be a trespasser
or in illegal occupation over area which is
in excess of the sale deed but the Act does
not provide for imposition of stamp duty as
per actual possession over the property
sought to be purchased but is instead
leviable only on the area indicated in the
instrument of transfer.

7. Aforesaid view is also buttressed
by the Full Bench decision of this court in
the case of Mohd. Mustafa Ali Khan and
Smt. Bindu Singh(supra) as well as by
judgment rendered by Hon'ble Supreme
Court in the case of The Madras Refineries
Ltd. Versus The Chief Controlling Revenue
Authority, Board of revenue, Madras
reported in (1977) 2 Supreme Court Cases
308 in which it has been clearly held that
stamp duty is leviable only in accordance
with contents of the instrument of transfer
to the following effect:-

Mohd. Mustafa Ali Khan (supra)

"4. The stamp duty on any
instrument is to be determined with
reference to the terms of the instrument. In
Gatty v. Fry, (1877) 2 Ex D 265, the
question was whether a post dated cheque
payable to bearer and stamped as a bill of
exchange
payable
on
demand
was
admissible in evidence after the date of the
cheque.
Cleasby,
B.,
delivering
the
judgment of the Court said :

"The
question
therefore
is
whether, if upon the face of the instrument
the stamp is sufficient, as was the case
here, since the cheque, at the time of the
trial, was payable on demand, it cannot be
used in evidence, because, in fact, when it
was given, being post dated, it was not then
payable. We think this case is concluded by
authority, and that in considering whether
the stamp is sufficient we must look at the
instrument itself alone. The authorities are
Williams v. Jarett, (1833) 5-B and Ad 32;
Whistler v. Forester, (1863) 14 CB (N. S.)
248; Austin v. Bunyard, (1865) 6 B and
Section 687,

.....What the Act requires is that a
particular instrument which means the
paper with certain things written upon it,
shall have a particular stamp applicable to
that instrument, not to that instrument
coupled with other circumstances." (1877)
2 Ex D 265 was approved by the Court of
Appeal in Royal Bank or Scotland v.
Tottenham, (1894) 2 QB 715, and the law
so laid down has been consistently followed
in India : See Ramen Chetty v. Mahomed
Ghouse, ILR 16 Cal 432; Sakharam
Shankar v. Ramchandra Babu, ILR 27 Bom
279; In re C R. M. M. L. A. Chettiar Firm,
ILR 13 Rang 613 : (AIR 1935 Rang 243)
(SB).

Smt. Bindu Singh(supra)

Under law, the stamp duty is
leviable only for value of the portion for
which the deed is executed. If any
additional area is occupied, legally or
illegally by the petitioner, the concerned
authority or person may take appropriate
action for getting back possession of such
portion which has not been purchased by
the petitioner. However, the stamp duty on
such
portion,
which
has
not
been
purchased by the petitioner. However, the
stamp duty on such portion, which has not
been purchased by the petitioner through
the sale deed, can not be levied. The
petitioner, having paid the stamp duty on
2 All. State of U.P. & Ors. Vs. Chief Controlling Revenue Authority U.P. & Anr.
213
the sale deed for the area which had been
purchased by him, cannot now be subjected
to additional stamp duty for any such area
which has neither been purchased by him
nor any deed having been executed for such
area in his favour. As such the orders
passed by the authorities below imposing
additional stamp duty, penalty and interest
on the petitioner for allegedly making
illegal constructions beyond the area of
land purchased by him, deserves to be
quashed."

Madras Refineries Ltd.(supra)

" 5. In Limmer Asphalte Paving
Co. v. IRC [(1872) LR 7 Exch. 211] it was
stated:

"In order to determine whether
any, and if any, what stamp duty is
chargeable upon an instrument the legal
rule is that the real and true meaning of the
instrument is to be ascertained; that the
description of it given in the instrument
itself by the parties is immaterial, even
although they may have believed that its
effect and operation was to create a
security mentioned in the Stamp Act, and
they so declared."

xxx

xxx

xx

11. ........It is the real and true
meaning of the Deed of Trust and Mortgage
and the Guarantee Agreement which has to
be ascertained, and this leaves no room for
doubt that the view taken by the High Court
in this respect is correct and does not call
for interference. Mr Ram Reddy relied on
some decisions to support his argument
that the guarantee Agreement was the
security for the loan and was the principal
or the primary document, but these cases
were decided on different facts and have no
real bearing on the controversy before us."

8. In view of the fact that impugned
orders dated 23rd August, 2002 passed by
opposite party No.2 as well as appellate
order dated 12th June, 2003 passed by
opposite party No.1 are not in consonance
with judgments pronounced by this Court
as well as the Supreme Court, are being
erroneous
are
therefore
set
aside.
Consequently the writ petition succeeds
and is allowed. Parties to bear their own
costs.

9. Learned counsel for petitioner
submits that in pursuance to impugned
orders, the petitioner has already deposited
certain amount with the authorities. Liberty
is granted to petitioner to claim refund of
the aforesaid amount which shall be
refunded within a period of three months
from the date an application along with a
copy of this order is submitted before the
concerned authority along with interest @
6% per annum from date of deposit till date
of actual payment.
----------
(2023) 2 ILRA 213
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1003352 of 2006

State of U.P. & Ors. ...Petitioners
Versus
Chief Controlling Revenue Authority U.P. &
Anr. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Anoop Kumar, Ramji Das

(A) Civil Law - The Indian Stamp Act, 1899
- Section 47 A - Assessment - Section 47A
(3) - reference - Section 56 - Appeal , The
Uttar Pradesh (Valuation of Property)