# Hari Narain Shukla v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 440
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-08
- **Case number:** Writ C No. 1000609 of 2003
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-narain-shukla-v-state-of-u-p-ors-49846
- **Pages:** 12

## Headnote

A. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), and Proviso to Clause
(5) - Proceeding initiated after four years
- Maintainability - Instrument of Saledeed
was
impounded
u/s
33(1)
-
Applicability
of
limitation
period
-
Distinction between proceeding of S.
33(1) and 33(4) - Effect - Held, in cases
where an instrument is produced as
evidence which is not duly stamped and is
impounded u/s 33(1) of the Act of 1899,
the provision required to be followed is
only under Section 38 and not under
Sections 33(4) & (5) of the Act of 1899. As
such, the limitation period provided under
Section 33(5) of the Act would not be
applicable in case proceedings are drawn
under Section 33(1) of the Act and would
be available only if proceedings are drawn
by Collector under Section 33(4) of the Act
of 1899. (Para 16)

B. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), (5) and Proviso to
Clause (5) - Limitation period of four
years - Date of its applicability - Held,
where an instrument of transfer is not
produced before any designated court or
authority as envisioned under Sections 33
or 47-A of the Act of 1899, the aforesaid
period of limitation would run from the
date
when
such
an
unregistered
instrument of transfer is first produced
before any such designated authority -
Further held, limitation can only run from
the date when a person becomes aware of
any proceedings against such a person
and not from the date of such proceedings
or instrument. (Para 18 and 20)

C. Civil Law - Indian Stamp Act, 1899 -
Ss. 33, 40 and 47A - Proceeding -
Maintainability - No benefit was derived
by
petitioner
from
the
unregistered
instrument - Effect - Held, there is no
provision under the Act of 1899 that
proceedings under Section 33/40/47A can
be initiated only in case a person derives
benefit from an unstamped or undervalued
instrument
of
transfer
-
Proceedings under Section 33/40/47A of
the Act of 1899 are maintainable even if
no benefit has been derived from the
unregistered instrument of transfer. {Para
23 and 29(iii)}

D. Civil Law - Indian Stamp Act, 1899 - S.
33
-
Calculation
of
deficiency
-
Appropriate date, on which calculation can
be drawn - Held, valuation of undervalued or unstamped instrument and
deficiency thereof is to be calculated as on
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
441
the date of execution of the deed and not
from the date when it is impounded or
presented. {Para 27 and 29(iv)}

Writ petition partly allowed . (E-1)

List of Cases cited :-

## Text

_Characters 0–39,968 of 40,689. This is a partial read: ask again with offset=39968 for what follows._

440 INDIAN LAW REPORTS ALLAHABAD SERIES

25. Therefore, the interest part of the
award dated 04.11.2011 is held to be
unsustainable.

26. In view of the above, while I
decline to interfere with the award dated
04.11.2011
passed
by
the
Industrial
Tribunal directing for reinstatement of the
respondent-workman with backwages, I set
aside the award in so far as it directs for
payment of interest upon the back wages.

27. The cost part of the award is also
not interfered with.

28. Thus, writ petition stands partly
allowed as above with no order as to cost.
----------
(2023) 3 ILRA 440
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1000609 of 2003

Hari Narain Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
G.M. Kamil

Counsel for the Respondents:
C.S.C., Pt. S. Chandra

A. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), and Proviso to Clause
(5) - Proceeding initiated after four years
- Maintainability - Instrument of Saledeed
was
impounded
u/s
33(1)
-
Applicability
of
limitation
period
-
Distinction between proceeding of S.
33(1) and 33(4) - Effect - Held, in cases
where an instrument is produced as
evidence which is not duly stamped and is
impounded u/s 33(1) of the Act of 1899,
the provision required to be followed is
only under Section 38 and not under
Sections 33(4) & (5) of the Act of 1899. As
such, the limitation period provided under
Section 33(5) of the Act would not be
applicable in case proceedings are drawn
under Section 33(1) of the Act and would
be available only if proceedings are drawn
by Collector under Section 33(4) of the Act
of 1899. (Para 16)

B. Civil Law - Indian Stamp Act, 1899 -
Section 33 (1), (4), (5) and Proviso to
Clause (5) - Limitation period of four
years - Date of its applicability - Held,
where an instrument of transfer is not
produced before any designated court or
authority as envisioned under Sections 33
or 47-A of the Act of 1899, the aforesaid
period of limitation would run from the
date
when
such
an
unregistered
instrument of transfer is first produced
before any such designated authority -
Further held, limitation can only run from
the date when a person becomes aware of
any proceedings against such a person
and not from the date of such proceedings
or instrument. (Para 18 and 20)

C. Civil Law - Indian Stamp Act, 1899 -
Ss. 33, 40 and 47A - Proceeding -
Maintainability - No benefit was derived
by
petitioner
from
the
unregistered
instrument - Effect - Held, there is no
provision under the Act of 1899 that
proceedings under Section 33/40/47A can
be initiated only in case a person derives
benefit from an unstamped or undervalued
instrument
of
transfer
-
Proceedings under Section 33/40/47A of
the Act of 1899 are maintainable even if
no benefit has been derived from the
unregistered instrument of transfer. {Para
23 and 29(iii)}

D. Civil Law - Indian Stamp Act, 1899 - S.
33
-
Calculation
of
deficiency
-
Appropriate date, on which calculation can
be drawn - Held, valuation of undervalued or unstamped instrument and
deficiency thereof is to be calculated as on
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
441
the date of execution of the deed and not
from the date when it is impounded or
presented. {Para 27 and 29(iv)}

Writ petition partly allowed . (E-1)

List of Cases cited :-

1. Saibabba Vs Bar Council of India & anr.;
(2003) 6 SCC 186

2. Rajendra Prasad Garg Vs Chief Controlling
Revenue Authority & ors.; (2002) 93 RD 198

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. G.M. Kamil, learned
counsel for petitioner and Mr. Devendra
Mohan Shukla as well as Mr. Ajay Kumar
Singh, learned State Counsel on behalf of
opposite parties.

2. Petition has been filed challenging
order dated 09.08.2002 impounding sale
deed dated 12.08.1985 executed in favour
of petitioner, under Section 33 of the Indian
Stamp Act,1899 (hereinafter referred to as
the Act of 1899). Also under challenge is
order
dated
17.02.2003
rejecting
petitioner's
preliminary
objections
regarding maintainability of proceedings
under the Act of 1899. Further prayer for
quashing entire proceedings initiated under
Sections 33/40 of the Act of 1899 has also
been sought.

3. Learned counsel for petitioner
submits that a sale deed was executed in
favour of petitioner by means of an
unregistered instrument of transfer dated
12.08.1985.
It
is
submitted
that
subsequently a suit for declaration under
Section 229-B of U.P. Zamindari Abolition
and Land Reforms Act, 1950 (herein after
referred to as the Act of 1950) was filed by
petitioner and registered as Case No.87. It
is submitted that aforesaid suit was decreed
vide judgment and order dated 17.05.2002
whereafter an application for recall was
filed and by means of order dated
20.08.2002, the initial judgment and order
dated 17.05.2002 was recalled. It is
submitted
that
proceedings
thereafter
ensued in aforesaid declaration suit but he
does not have any instructions with regard
to its current status.

4. It has been submitted that in the
meantime since judgment and decree dated
17.05.2002 was passed on the basis of an
unregistered sale deed dated 12.08.1985,
the same was impounded under Section 33
of the Act of 1899 and an authenticated
copy of the same was forwarded to the
authority concerned by means of reference
order
dated
09.08.2002
whereafter
proceedings under Section 47-A read with
Sections 33 and 40 of the Act were
instituted against petitioner numbered as
Case No.318/343/2002. It is submitted that
a preliminary objection was filed by
petitioner with regard to maintainability of
aforesaid proceedings primarily on the
ground that such proceedings cannot be
initiated after a period of four years from
the date of execution of the deed as
provided in proviso to Section 33 (5) of Act
of 1899. Second ground taken in the
objections was that since the petitioner did
not derive any benefit from aforesaid deed,
stamp duty even otherwise was not
payable. Third objection taken was that in
referal
order
dated
09.08.2002,
the
deficiency of stamp duty has been wrongly
indicated since valuation as per year 2002
was recorded instead of valuation as on the
date of execution of the instrument.

5. It is submitted that aforesaid
submissions as raised by petitioner has
been rejected by means of impugned order
dated 17.02.2003 primarily on the ground
442 INDIAN LAW REPORTS ALLAHABAD SERIES
that limitation of four years for initiation of
proceedings from the date of execution of
the instrument would not be applicable in
the present case since the instrument after
execution was never presented before any
authority and was kept hidden by petitioner
and as such limitation would be applicable
only from the date of presentation of
document. The order also states that since
the document was produced only in year
2002, there is no error in the valuation
recorded taking year 2002 as the year for
indicating deficiency in stamp duty.

6. Learned counsel for petitioner
submits that in passing impugned order, the
authority concerned has come to an
erroneous conclusion particularly with
regard to applicability of limitation period
since such a limitation has been clearly
indicated in Section 33 of the Act under
which the document itself was impounded
and therefore no cogent reason has been
indicated
in
impugned
order
for
inapplicability of limitation period. It is
also submitted that no reason at all has
been indicated for taking the valuation of
deed with effect from the year 2002 and not
from the date of its execution in August,
1985. The authority has also not adverted to
the fact that no benefit has been derived by
petitioner from the aforesaid deed.

7. Mr. Devendra Mohan Shukla,
learned State Counsel appearing on behalf of
opposite parties while refuting submissions
advanced by learned counsel for petitioner
has submitted that limitation period of four
years as provided in the proviso to Section
33(5) of the Act of 1899 would be
inapplicable in the present case since
impounding has taken place in terms of
Section 33(1) of the Act of 1899 and
therefore the procedure as indicated in
Section 38 of the Act of 1899 would be
applicable instead of the procedure indicated
in Section 33(4) of the Act of 1899. Since
Section 38 of the Act of 1899 does not
provide for any limitation period, no error has
been committed by authority concerned in
rejecting the said submission of petitioner. It
is submitted that even otherwise, once a
document for transfer of immovable property
has been executed and is not presented either
for registration or before any public authority,
no knowledge with regard to such execution
can be obtained by revenue authorities and
therefore in the alternative, the provision of
limitation of four years should be made
applicable from the date of knowledge of the
document and not from the date of its
execution.

8. It has been further submitted that
once petitioner had filed a suit for declaration
and the same was decreed on the basis of an
unregistered sale deed dated 12.08.1985,
clearly the petitioner has already derived
benefit from aforesaid instrument and as such
also submissions of learned counsel for
petitioner on that account were rightly
rejected. It is also submitted that petitioner
has also admitted in paragraph-4 of writ
petition that petitioner is deriving title and
possession over the property in question on
the basis of the said sale deed dated
12.08.1985. It has also been submitted that
since the deed was kept hidden from
authorities for seventeen years and was
produced in declaratory proceedings only in
year 2002, no error has been committed in
taking valuation from year 2002 instead of
year 1985.

9. For the proper adjudication of the
present dispute, the following questions
would require adjudication:-

(i) Whether the limitation period
of four years as prescribed in the Proviso to
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
443
Section 33(5) of the Act of 1899 would be
applicable in cases where document is
impounded under Section 33(1) of the Act
of 1899?

(ii) Whether in case limitation
period as provided under Section 33(5) of
the Act of 1899 would be applicable, it
would be applicable from the date of
execution of an instrument of transfer or
from the date when it is produced in
proceedings as indicated under Section
33(1) or 33(4) of the Act of 1899?

(iii) Whether proceedings against
an assessee can be initiated in terms of
Section 33/40/47A of the Act of 1899 when
he has not derived any benefit from an
unregistered instrument of transfer?

(iv)
Whether
valuation
of
instrument of transfer and deficiency of
stamp duty thereon is to be assessed as on
date of execution of instrument or when it
is impounded?

10.

Upon
consideration
of
submissions advanced by learned counsel
for the parties, it is evident and admitted
that a sale deed was executed in favour of
petitioner pertaining to immovable property
on 12.08.1985. The aforesaid document
was never produced for registration or even
in any other proceedings before any public
authority prior
to
its
production
in
declaratory proceedings in year 2002
whereupon the court concerned finding it to
be unstamped, impounded the same under
Section 33(1) of the Act of 1899 and made
a Reference vide order dated 09.08.2002 to
the Prescribed Authority for proceedings
under Sections 40 & 47A of the Act of
1899. A perusal of order dated 09.08.2002
indicates that valuation of the deed has
been taken as on 17.05.2002 and deficiency
of stamp duty has been indicated in the
referal order whereafter an authenticated
copy of instrument of transfer has been sent
to the Prescribed Authority for initiating
proceedings
against
petitioner
under
relevant provisions of the Act.

Question
(i):
Whether
the
limitation period of four years as
prescribed in the Proviso to Section 33(5)
of the Act of 1899 would be applicable in
cases where document is impounded
under Section 33(1) of the Act of 1899?.

11. For the aforesaid purpose, it is
relevant to advert to Sections 33, 38 and
47A of the Act of 1899 which are as
follows:-

"33.
Examination
and
impounding of instruments - (1) Every
person having by law or consent of parties
authority to receive evidence, and every
person in charge of a public office, except
an officer of police, before whom any
instrument chargeable, in his opinion, with
duty, is produced or comes in the
performance of his functions, shall, if it
appears to him that such instrument is not
duly stamped, impound the same.

(2) For that purpose every such
person shall examine every instrument so
chargeable and so produced or coming
before him, in order to ascertain whether it
is stamped with a stamp of the value and
description required by the law in force in
India when such instrument was executed
or first executed :

Provided that--

(a) nothing herein contained shall
be deemed to require any Magistrate or
Judge of a criminal Court to examine or
impound, if he does not think fit so to do,
any instrument coming before him in the
course of any proceeding other than a
proceeding under Section 125 to 128 and
sections 145 to 148 of the Code of Criminal
Procedure, 1898 (5 of 1898)12;
444 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) in the case of a Judge of a
High Court, the duty of examining and
impounding any instrument under this
section may be delegated to such officer as
the Court appoints in this behalf.

(3) For the purposes of this
section, the State Government may, in cases
of doubt, determine what offices shall be
deemed to be public offices and who shall
be deemed to be persons-in-charge of
public offices.

(4) Where deficiency in stamp
duty paid is noticed from the copy of any
instrument, the Collector may suo motu
or on a reference from any Court or from
the Commissioner of Stamps or an
Additional Commissioner of Stamps or a
Deputy Commissioner of Stamps or an
Assistant commissioner of Stamps or any
officer authorised by the Board of
Revenue in that behalf, call for the
original instrument for the purpose of
satisfying himself as to the adequacy of
the duty paid thereon, and the instrument
so produced before the collector shall be
deemed to have been produced or come
before him in the performance of his
functions.

(5) In case the instrument is not
produced within the period specified by
the Collector, he may require payment of
deficit stamp duty, if any together with
penalty under Section 40 on the copy of
the instrument.

Provided that no action under
sub-section (4) or sub-section (5) shall be
taken after a period of four year from the
date of executionn of the instrument

Provided further that with the
prior permission of the State Government
an action under sub-section (4) or subsection (5) may be taken after a period of
four years but before a period of eight
years from the date of execution of the
instrument. "

"38.
Instruments
impounded,
how dealt with -(1) When the person
impounding an instrument under section 33
has by law or consent of parties, authority
to receive evidence and admits such
instrument in evidence upon payment of a
penalty as provided by section 35 or of duty
as provided by section 37, he shall send to
the Collector an authenticated copy of such
instrument, together with a certificate in
writing, stating the amount of duty and
penalty levied in respect thereof, and shall
send such amount to the Collector, or to
such person as he may appoint in this
behalf.

(2) In every other case, the
person so impounding an instrument shall
send it in original to the Collector."

"47A. Under-valuation of the
instrument - (1) (a) If the market value of
any property which is the subject of any
instrument, on which duty is chargeable on
the market value of the property as set forth
in such instrument, is less than even the
minimum value determined in accordance
with the rules made under this Act, the
registering officer appointed under the
Registration
Act,
1908
shall,
notwithstanding anything contained in the
said Act, immediately after presentation of
such instrument and before accepting it for
registration and taking any action under
Section 52 of the said Act require the
person liable to pay stamp duty under
Section 29, to pay the deficit stamp duty as
computed on the basis of the minimum
value determined in accordance with the
said rules and return the instrument for
presenting again in accordance with
Section 23 of the Registration Act, 1908.

(b) When the deficit stamp duty
required to be paid under clause (a), is
paid in respect of any instrument and the
instrument
is
presented
again
for
registration, the registering officer shall
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
445
certify by endorsement thereon, that the
deficit stamp duty has been paid in respect
thereof and the name and the residence of
the person paying them and register the
same.

(c)
Notwithstanding
anything
contained in any other provisions of this
Act, the deficit stamp duty may be paid
under clause (a) in the form of impressed
stamps containing such declaration as may
be prescribed.

(d) If any person does not make
the payment of deficit stamp duty after
receiving the order referred to in clause (a)
and presents the instrument again for
registration, the registering officer shall,
before registering the instrument, refer the
same to the Collector, for determination of
the market value of the property and the
proper duty payable thereon.

(2) On receipt of a reference
under sub-section (1) the Collector shall,
after giving the parties a reasonable
opportunity of being heard and after
holding an inquiry in such manner as many
be prescribed by rules made under this Act,
determine the market value of the property
which is the subject of such instrument and
the proper duty payable thereon.

(3) The Collector may, suo
motu, or on a reference from any court or
from the Commissioner of Stamps or an
Additional Commissioner of Stamps or a
Deputy Commissioner of Stamps or an
Assistant Commissioner of Stamps or any
officer
authorized
by
the
State
Government in that behalf, within four
years from the date of registration of any
instrument on which duty is chargeable
on the market value of the property not
already referred to him under sub-section
(1) call for and examine the instrument
for the purpose of satisfying himself as to
the correctness of the market value of the
property which is the subject for of such
instrument, and the duty payable thereon
and if after such examination he has
reason to believe that market value of
such property has not been truly set forth
in such instrument, he may determine the
market value of such property and the
duty payable thereon :

Provided that, with the prior
permission of the State Government, an
action under this sub-section may be
taken after a period of four years but
before a period of eight years from the
date of registration of the instrument on
which duty is chargeable on the market
value of the property.

Explanation : The payment of
deficit stamp duty by any person under
any order of registering officer under
sub-section (1) shall not prevent the
Collector from initiating proceedings on
any instrument under sub-section (3).

(4) If on enquiry under subsection (2) and examination under subsection (3) the Collector finds the market
value of the property :

(i) truly set forth and the
instrument duly Stamped, he shall certify
by endorsement that it is duly stamped
and return it to the person who made the
reference ;

(ii) not truly set forth and the
instrument not duly stamped, he shall
require the payment of proper duty or the
amount required to make up the deficiency
in the same, together with a penalty of an
amount not exceeding four times the
amount of the proper duty or the deficient
portion thereof.

(4-A) The Collector shall also
require along with the deficit stamp duty or
penalty required to be paid under clause
(ii) of sub-section (4), the payment of a
simple interest at the rate of one and a half
per cent per mensem on the amount of
deficit stamp duty calculated from the date
446 INDIAN LAW REPORTS ALLAHABAD SERIES
of the execution of the instrument till the
date of actual payment;

Provided that the amount of
interest under this sub-Section shall be
recalculated if the amount of deficit stamp
duty is varied on appeal or revision or by
any order of a competent court or
authority.

(4-B) The amount of interest
payable under sub section (4-A) shall be
added to the amount due and be also
deemed for all purposes to be part of the
amount required to be paid.

(4-C) Where realization of the
deficit stamp duty remained stayed by any
order of any court or authority and such
order of stay is subsequently vacated, the
interest referred to in sub-section (4-A)
shall be payable also for any period during
which such order of stay remained in
operation.

(4-D)
Any
amount
paid
or
deposited by or recovered from, or
refundable to, a person under the provision
of this Act, shall first be adjusted towards
the
deficit
stamp
duty
or
penalty
outstanding against him and the excess if
any, shall then be adjusted towards the
interest, if any, due from him."

(5) The instrument produced
before the Collector under sub-section (2)
or under sub-section (3) shall be deemed to
have come before him in the performance
of his functions.

(6) In case the instrument is not
produced within the period specified by the
Collector, he may require payment of deficit
stamp duty, if any, together with penalty on
the copy of the instrument in accordance
with the procedure laid down in subsections (2) and (4)."

12. A reading of Section 33(1) of the
Act indicates certain authorities who have
been granted the power to impound an
instrument which is produced before them
or comes in the performance of their
functions and is not duly stamped. The
procedure
prior
to
its
reference
to
Prescribed Authority is indicated in Section
33(2) of the Act while Sub-section (3)
indicates the power of State Government to
determine which offices would be deemed
to be public offices.

13. A conjoint reading of Section
33(1) and Section 33(4) clearly brings out
the distinction between aforesaid two
provisions. While in Section 33(1), certain
authorities have been granted the power to
impound an instrument which is produced
as evidence and is not duly stamped, subsection (4) of Section 33 indicates the
power of Collector where deficiency in
stamp duty paid is noticed from a copy of
instrument and where a Reference is made
from court or authorities indicated therein.
It is relevant that the provisions of Section
33(4) of the Ac of 1899 is only for the
purpose of satisfaction of Collector with
regard to adequacy of duty paid on
instrument so produced and for that
purpose only, the Collector has the power
to call for original document. In case of
applicability of Section 33(1) of the Act of
1899, the said satisfaction regarding
adequacy of stamp duty is required to be
seen by authorities indicated in the said
sub-section itself and upon a conclusion
that the instrument is not duly stamped,
power to impound the same has been given.
As such, the clear distinction between
Subsections (1) and (4) of Section 33 of the
Act of 1899 is that in sub-section (1), the
authority
before
whom
document
is
produced has been given the power to
impound the same upon coming to
satisfaction regarding inadequacy of stamp
duty whereas under sub-section (4), the
power to determine inadequacy of stamp
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
447
duty has been conferred only upon the
Collector without any power to impound
the document.

The distinction between Section
33(1) and 33(4) read with Section 47-A(3)
of the Act of 1899 also brings out
distinction between the said provisions
where Section 33(1) primarily pertains to
an unstamped or under-valued instrument
being produced as evidence. Even the
period of limitation for initiation of
proceedings under Section 33 and Section
47A(3) is quite distinct with Section 33(5)
initiating limitation from the date of
execution of instrument while Section 47A(3) initiates the limitation period with
effect from the date of registration of
instrument.

14. The aforesaid distinction would be
clearer upon a perusal of Sections 38 which
clearly indicates the provision regarding
procedure to be followed once instruments
not duly stamped are impounded. Section
38(1) clearly indicates that in case the
inadequacy of stamp duty is found by
authority concerned, the said inadequacy of
stamp duty is to be indicated by the said
authority whereafter an authenticated copy of
instrument is to be sent to Collector. Under
Section 38(2) of the Act of 1899, in every
other case, the instrument is to be sent in
original to Collector. The distinguishing
feature under Sub-sections (1) and (2) of
Section 38 appear to be that an authenticated
copy of instrument is required to be sent in
terms of sub-section (1) where the deficiency
of stamp duty has been calculated and where
it has not been so calculated, the original
instrument is required to be sent to Collector
for further proceedings.

15. The distinction between Section
33(1) and Section 33(4) & (5) is also
evident from a reading of Section 47A of
the Act of 1899 which does not make any
reference whatsoever to documents which
have been impounded by designated
authorities and only indicates the procedure
to be followed by Collector himself under
Section 47-A(2) & (3) of the Act of 1899.

16. Even otherwise, if it is held that
Section 33(4) and (5) follow Section 33(1)
of the Act of 1899, the same will render the
provisions of Section 38 of the Act of 1899
otiose, which cannot be the intention of
Legislature while enacting the particular
provisions of the Act. As such it is evident
that in cases where an instrument is
produced as evidence which is not duly
stamped and is impounded under Section
33(1) of the Act of 1899, the provision
required to be followed is only under
Section 38 and not under Sections 33(4) &
(5) of the Act of 1899. As such, the
limitation period provided under Section
33(5) of the Act would not be applicable in
case proceedings are drawn under Section
33(1) of the Act and would be available
only if proceedings are drawn by Collector
under Section 33(4) of the Act of 1899.

17. In view of discussions made herein
above, it being evident that the limitation
period was not available to petitioner since
his document had been impounded under
Section 33(1) of the Act of 1899, the
Question no.(i) is answered negatively
against petitioner.

Question no.(ii): Whether in case
limitation period as provided under Section
33(5) of the Act of 1899 would be applicable,
it would be applicable from the date of
execution of an instrument of transfer or
from the date when it is produced in
proceedings as indicated under Section 33(1)
or 33(4) of the Act of 1899?
448 INDIAN LAW REPORTS ALLAHABAD SERIES

18. With regard to aforesaid aspect, it
is evident that the proviso to Section 33(5)
of the Act makes a specific stipulation that
no action under Sub-sections (4) or (5) of
the Act can be taken after a period of four
years from the date of execution of the
instrument.
However,
although
the
aforesaid provision is couched in negative
terms, there may be a scenario as
envisioned in the present case where a
document is executed between the parties
and is kept with them for a period of more
than four years without its production
before any of the designated authorities
either under Section 33 or even under
Section 47-A of the Act of 1899. The
proviso does not take any such scenario
into account but in the present case, it is
clearly evident and admitted that although
the instrument of transfer was executed on
12.08.1985, it was produced in declaratory
proceedings for the first time in year 2002.
In such circumstances, it cannot be said
that revenue authorities would have any
knowledge with regard to execution of any
such unregistered and therefore unstamped
instrument of transfer. Naturally, authorities
cannot
derive
any
such
information
regarding
execution
of
unregistered
documents between private individuals
particularly in case where such documents
are kept in safe custody of the executor or
the beneficiary of the instrument without its
production before any designated authority.
In such circumstances, it cannot be said
that the limitation period of four years
under Proviso to Section 33(5) of the Act
would be applicable from the date of
execution of the instrument. In the
considered opinion of this Court, in such
cases where an instrument of transfer is not
produced before any designated court or
authority as envisioned under Sections 33
or 47-A of the Act of 1899, the aforesaid
period of limitation would run from the
date when such an unregistered instrument
of transfer is first produced before any such
designated authority.

19. Hon?ble the Supreme Court in
Saibabba v. Bar Council of India and
another reported in (2003) 6 SCC 186 has
read down such strict provisions in
following manner:-

"9. So far as the commencement
of the period of limitation for filing the
review petition is concerned we are clearly
of the opinion that the expression ?the date
of that order? as occurring in Section 48AA has to be construed as meaning the date
of communication or knowledge of the
order to the review petitioner. Where the
law provides a remedy to a person, the
provision has to be so construed in case of
ambiguity as to make the availing of the
remedy practical and the exercise of power
conferred on the authority meaningful and
effective. A construction which would
render the provision nugatory ought to be
avoided. True, the process of interpretation
cannot be utilized for implanting a heart
into a dead provision; however, the power
to construe a provision of law can always
be so exercised as to give throb to a sinking
heart."

"10. An identical point came up
for the consideration of this Court inRaja
Harish Chandra Raj Singhv.Dy. Land
Acquisition Officer[AIR 1961 SC 1500 :
(1962) 1 SCR 676] . Section 18 of the Land
Acquisition Act, 1894 contemplates an
application seeking reference to the court
being filed within six months from the date
of the Collector's award. It was held that
?the date of the award? cannot be
determined solely by reference to the time
when the award is signed by the Collector
or delivered by him in his office. It must
involve the consideration of the question as
3 All. Hari Narain Shukla Vs. State of U.P. & Ors.
449
to when it was known to the party
concerned either actually or constructively.
If that be the true position, then placing a
literal and mechanical construction on the
words ?the date of the award? occurring in
the
relevant
section
would
not
be
appropriate. It is fair and just that a
decision is communicated to the party
whose rights will ultimately be affected or
who will be affected by the decision. The
knowledge, either actual or constructive, of
the party affected by such a decision, is an
essential element which must be satisfied
before the decision can be brought into
force. Thus construed, the making of the
award cannot consist merely of the physical
act of writing an award or signing it or
even filing it in the office of the Collector;
it must involve the communication of the
said award to the party concerned either
actually or constructively. A literal or
mechanical way of construing the words
?from the date of the Collector's award?
was held to be unreasonable. The Court
assigned a practical meaning to the
expression by holding it as meaning the
date
when
the
award
is
either
communicated to the party or is known by
him either actually or constructively."

"14. How can a person concerned
or a person aggrieved be expected to
exercise the right of review conferred by the
provision unless the order is communicated
to or is known to him either actually or
constructively? The words ?the date of that
order?, therefore, mean and must be
construed
as
meaning
the
date
of
communication or knowledge, actual or
constructive, of the order sought to be
reviewed."

20. Upon applicability of aforesaid
judgment to the question framed, it is
evident that limitation can only run from
the date when a person becomes aware of
any proceedings against such a person and
not from the date of such proceedings or
instrument as in the present one from its
initiation or execution.

It is trite that revenue authorities
cannot know about execution of any
document which is not produced either as
evidence in proceedings under Section 33
of the Act of 1899 or even for presentation
under Section 47A of the Act of 1899 since
they are not expected to know about
execution of such document which after
execution remain with either of the parties
who may very well await passing of four
years in order to avail themselves of the
limitation period on a malafide basis.

21. In view of aforesaid discussion,
no benefit can be derived by petitioner with
regard to aforesaid limitation and Question
no.(ii) as such is answered negatively
against petitioner.

Question
No.(iii):
Whether
proceedings against an assessee can be
initiated in terms of Section 33/40/47A of
the Act of 1899 when he has not derived
any
benefit
from
an
unregistered
instrument of transfer?

22. With regard to aforesaid question,
learned
counsel
for
petitioner
has
specifically submitted that although the sale
deed was executed in favour of petitioner
on 12.08.1985 but the suit for declaration
under Section 229-B of the Act of 1950
initially decreed in favour of petitioner vide
judgment and order dated 17.05.2002, did
not bring any benefit to petitioner since
aforesaid
judgment
and
order
was
thereafter
recalled
vide
order
dated
20.08.2002. The submission as such is that
when benefit of such an unregistered
instrument
was
never
provided
to
450 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, there was no occasion to have
initiated such proceedings.

23.
Considering
submissions
advanced, it is evident from material on
record that suit for declaration under
Section 229-B of the Act of 1950 was filed
primarily on the basis of sale deed dated
12.08.1985. The said proceedings also
culminated in passing of a decree in favour
of petitioner on 17.05.2002. As such, it can
not be said that no benefit was derived by
petitioner from the sale deed dated
12.08.1985. Even otherwise, there is no
provision under the Act of 1899 that
proceedings under Section 33/40/47A can
be initiated only in case a person derives
benefit from an unstamped or under-valued
instrument of transfer. As such, the
submissions
of
learned
counsel
for
petitioner are clearly misconceived and
therefore rejected.

24. Question no.(iii) as such is
answered negatively against petitioner.

Question
no.(iv):
Whether
valuation of instrument of transfer and
deficiency of stamp duty thereon is to be
assessed as on date of execution of
instrument or when it is impounded?

25. Petitioner in his preliminary
objection has clearly taken a plea that since
the document was executed in August,
1985, the referral authority has erred in
taking valuation of the instrument as of
2002. Learned counsel for petitioner has
submitted that in case of proceedings being
initiated under Section 33 or under Section
47A of the Act, deficiency in stamp duty is
to be seen as per valuation of the
instrument as on the date of execution
thereof and not on the date it is presented or
impounded.

26.
With
regard
to
aforesaid
submission, it is evident that Section 33(2)
of the Act stipulates that in order to
ascertain adequate stamp duty having been
paid, it is the date when the said instrument
was executed or first executed, which
would be relevant. Similarly, Section
47A(1)(a) prescribes that duty chargeable
on the market value of a property is to be
set forth in accordance with the rules made
under the Act with Section 47A(4-A) also
stipulating simple interest imposeable upon
deficiency from the date of execution of the
instrument, which is also in consonance
with Section 40 of the Act of 1899. There
does not appear to be any provision under
the Act of 1899 where valuation or
deficiency of stamp duty thereupon is
required to be calculated from the date of
presentation
or
impounding
of
the
document.

27. In view of specific provisions of
Section 33 of the Act of 1899 as indicated
herein above, it is the considered opinion of
this court that valuation of such undervalued or unstamped instrument and
deficiency thereof is to be calculated as on
the date of execution of the deed and not
from the date when it is impounded or
presented.

The said aspect has already been
considered by a coordinate Bench of this
court in Rajendra Prasad Garg v. Chief
Controlling
Revenue Authority
and
others reported in (2002) 93 RD 198 in the
following manner:-

"6. Section 3 of the Indian Stamp
Act provides for instrument which are
chargeable with duty. Section 3 of the Act
came to be considered and interpreted in
the case of Sri Kirti Ram reported in AIR
1954 HP 51. In the said case, after
3 All. Baba Guru Saran Das Chela Baba Guru Charan Das Vs. State of U.P. & Ors.
451
perusing the relevant provisions of the Act,
it was ruled as under:

"Now, the certificate of enrolment
being an instrument falling under Article 30 of
Schedule I, it is compulsorily chargeable with
stamp duty under Section 3 of the Act. And
since "chargeable" means, under Section 2(6)
of the Act, chargeable when the instrument in
question is executed, it is clear that the crucial
date which determines the law in force is the
date of the execution of instrument."

7. Sub-section (6) of Section 2 which
defines the term chargeable, no amendment has
been made by the State of Uttar Pradesh,
therefore, the decision in the case of Sri Kirti
Ram, (supra) is fully applicable to the facts of
the present case. Similar view was taken by a
Full Bench of Madras High Court in the case in
ILR (5) Mad Series 394 (FB), wherein it was
observed that duty should be calculated with
reference to the requirement of law at the time
of execution of the document."

28. Question no.(iv) as such is answered
affirmatively in favour of petitioner.

29. In view of aforesaid, the answers to the
questions are as follows:-

(i) limitation period of four years as
prescribed in the Proviso to Section 33(5) of the
Act, 1899 would be inapplicable where a
document is impounded under Section 33(1) of
the Act of 1899.

(ii) evidently, limitation as envisaged
under Section 33(5) of the Act would be
applicable only from the date when an
instrument/document
is
produced
in
proceedings as indicated under Section 33(1) or
33(4) of the Act, 1899 and not from the date of
its execution.

(iii) Proceedings under Section
33/40/47A of the Act of 1899 are maintainable
even if no benefit has been derived from the
unregistered instrument of transfer.

(iv) Valuation of the instrument of
transfer/document and deficiency of stamp duty
thereupon is to be assessed as on the date of
execution of such instrument and not from the
date when proceedings are initiated under the
Act of 1899.

30. In view of the answers to aforesaid
questions,
particularly
regarding
question
no.(iv), it is evident that the authorities have
erred in determining valuation of the instrument
of transfer and deficiency thereupon from the
date when it was impounded while it should
have actually been taken from the date of its
execution on 12.08.1985.

31. Considering aforesaid, the petition
succeeds to aforesaid extent.