# Lalta Prasad v. The Addl. Commissioner (Admin) Devi Patan Mandal Gonda

- **Citation:** (2021) 7 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-19
- **Case number:** Misc. Single No. 170 of 2003
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-prasad-v-the-addl-commissioner-admin-devi-patan-mandal-gonda-47151
- **Pages:** 5

## Headnote

Stamp Act,1899 - Section 47 - Petitioner
purchased land and paid stamp duty as per
circle ratee-petitioner name also recorded in
revenue records-later Ameen approached him
for depositing some amount for deficiency in
stamp duty and penalty-section 47 providescollector/additional District Magistrate does not
have power to impose penalty in such
proceedings.

W.P. allowed. (E-7)

List of Cases cited:

## Text

7 All. Lalta Prasad Vs. The Addl. Commissioner (Admin) Devi Patan Mandal Gonda
93
Court Allahabad and shall make a
declaration
of
such
verification
in
writing.
----------
(2021)07ILR A93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 170 of 2003

Lalta Prasad ...Petitioner
Versus
The Addl. Commissioner (Admin) Devi
Patan Mandal Gonda ...Respondent

Counsel for the Petitioner:
Mohan Singh

Counsel for the Respondents:
C.S.C.

Stamp Act,1899 - Section 47 - Petitioner
purchased land and paid stamp duty as per
circle ratee-petitioner name also recorded in
revenue records-later Ameen approached him
for depositing some amount for deficiency in
stamp duty and penalty-section 47 providescollector/additional District Magistrate does not
have power to impose penalty in such
proceedings.

W.P. allowed. (E-7)

List of Cases cited:

1. Girjesh Kumar Srivastava & 6 anr.Vs St.of U.P.
& ors., reported in 1998 (Supp) RD 523

2. Ram Khelawan @ Bachcha Vs St. of U.P. &
ors.; 2005 (23) LCD 1681

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Mohan Singh, learned
counsel for the petitioner and Sri V.P. Nag,
learned Standing Counsel for the State
Respondent.

2. The petitioner has challenged the
order dated 19.07.1999 passed by the
Assistant
Collector,
Ist
Class/
SubDivisional
Magistrate,
Kaiserganj,
Baharich
and
also
the
order
dated
26.11.2001 passed by the Additional
Commissioner
(Administration),
Devi
Patan Mandal, Gonda, rejecting his Appeal.

3. It is the case of the petitioner that
he had purchased land of Gata No.522 admeasuring 0.02 dec. situated in village
Chakpihani, Pargana Hisampur, Tehsil
Kaiserganj, District Bahraich, through a
registered sale deed on 01.07.1995 and paid
stamp duty @ Rs.15/- per sq. feet as per the
circle rate of the area concerned. The sale
deed was duly stamped and registered in
the office of the Sub-Registrar Kaiserganj
and the petitioner's name was also recorded
in the revenue records. In the month of
November, 1999, the Ameen of Kaiserganj
Tehsil approached him for depositing an
amount of Rs.24,691/- towards deficiency
in stamp duty and penalty in pursuance of
the order dated 19.07.1999 passed by the
Sub Divisional Magistrate, Kaiserganj
under the Stamp Act.

4. The petitioner inspected the file
and after getting a certified copy of the
order dated 19.07.1999, he preferred a
Revision under Section 56 of the Stamp Act
before the Additional Commissioner on the
ground that the respondent no.2 has passed
the ex parte order and at the time of spot
inspection, the respondent no.2 has not
given any information or notice to the
94 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner nor any spot inspection report or
memo was made available on record. The
petitioner disputed the findings recorded by
the respondent no.2 that the land in
question was siutated 800 mtrs. from
Hanuman Mandir Tiraha on Kaiserganj
Huzoorpur road.

5. It is the case of the petitioner that
as per the P.W.D. Map, the land was
situated 1.6 kms. away from Hanuman
Mandir Tiraha on Kaiserganj Huzoorpur
road and stamp duty was paid according to
the circle rate of the area in question.

6. It was submitted that under Section
47-A of the Stamp Act, if the Collector
after determination of the market value of
the property, comes to the conclusion that
its value has not been correctly set forth, he
could only direct payment of deficiency in
the amount of duty as a result of such
determination, but he cannot impose any
penalty on account of deficiency in Stamp
Duty.

7. It has been submitted that
respondent
no.2
has
determined
the
deficiency in stamp duty and has also
imposed penalty equivalent to the amount
of
deficiency
in
Stamp
Duty
i.e.
Rs.12,310.15/-. The deficiency in Stamp
Duty + Penalty together amounted to
Rs.24,691/-

8. It has been submitted by Sri Mohan
Singh, learned counsel for the petitioner,
that in the Appeal filed before the
Additional Commissioner all such grounds
were taken but they were not considered
and his Revision has been arbitrarily
rejected only on the ground that the
procedure prescribed under the Act has
been followed by the Assessing Authority
and as per the rate of the area in question in
respect of Rs.15/- per sq. feet., a duty of
Rs.130/- per sq. feet was paid.

9. In pursuance of the orders
impugned, the Tehsil Authorities had
initiated recovery proceedings against the
petitioner including taking steps to arrest
him and also to auction the property in
question. However, this Court as an interim
measure had initially stayed the arrest of
the petitioner and later on also stayed the
recovery proceedings.

10. It has been submitted by learned
counsel for the petitioner on the basis of the
content of annexure-2 that there is specific
statement made therein that the purchaser
was informed, but he failed to appear and
that on-spot inspection was done of the
property in question and it was found that
agricultural activities were going on on the
plot and that it was situated only 800 mtrs.
away from Hanuman Mandir Tiraha on
Kaiserganj Huzoorpur road. The respondent
no.2 has imposed the liability to pay Stamp
Duty only on the basis of the circle rate and
according to him any property which was
situated within 1k.m. range of Hanuman
Mandir Tiraha on Kaiserganj Huzoorpur
road would be liable to stamp duty @
Rs.130/-
per
sq.
foot.
Accordingly,
deficiency found in stamp duty was
determined as Rs.12,310.50/- and a penalty
equivalent
to
same
amount
as
the
deficiency was directed to be paid by the
petitioner.

11. Learned counsel for the petitioner
has pointed out three grounds to challenge
to the orders impugned. According to him,
specific averment has been made in
paragraphs-5, 8 and 9 to the writ petition
that the property in question is situated at a
distance of 1.6 kms. and not at a distance of
800 mtrs. from Hanuman Mandir Tiraha on
7 All. Lalta Prasad Vs. The Addl. Commissioner (Admin) Devi Patan Mandal Gonda
95
Kaiserganj Huzoorpur road. Also, no
penalty could have been imposed and only
demand that the Assessment Authority
could have made was with regard to
payment of deficiency, if any, found in the
stamp duty as the sale deed in question was
entered into on 01.07.1995 and the power
to impose penalty came into effect through
the Government Order dated 28.07.2000,
only on such conveyance deeds that were
registered after 01.09.1998. The other
ground raised in the writ petition is with
regard to the question that no notice was
served upon the petitioner before the spot
inspection was made by the Assessing
Authority and also that after the on spot
inspection, a memo had to be prepared
including the map of the area in question,
which was not done.

12. Learned counsel for the petitioner
has pointed out from the pleadings in the
counter affidavit filed by the State
Respondent that there is no specific reply
of paragraphs-5, 8 and 9 to the writ
petition.

13. Learned counsel for the petitioner
has referred to the supplementary affidavit
filed by him on 15.09.2003 bringing on
record
the
Government
Order
dated
28.07.2000 wherein after referring to the
provisions of Section 47-A sub-Clause 4,
the discretion is cast upon the Collector to
ask for proper stamp duty to be paid and
also to impose penalty on a person failing
to do so. It was in this Government Order
that for the first time after referring to the
provisions
of
Section
47-A,
the
Government had made a provision for
imposition of penalty also. It was clarified
that since the provision of penalty under
Section 47-A, sub Clause 1, became
effective
from
01.01.1998,
any
instrument which was registered before that
day and was found deficient in payment of
Stamp Duty would not be liable for
payment of penalty thereon.

14. Learned counsel for the petitioner
to buttress his argument has placed reliance
upon a Full Bench judgment of this Court
in Girjesh Kumar Srivastava and another
Vs. State of U.P. and others, reported in
1998 (Supp) RD 523, wherein this Court
was considering two questions:-

"(i)
Whether
in
proceedings
under sub-section (4) of Section 47-A of the
Act, penalty can also be imposed if the
Collector holds that the market value of the
property has not been truly set forth in the
instrument and consequently there is
deficiency in stamps duty?

(ii) Whether the limitation of four
years as provided in sub-section (4) of
Section 47-A of the Act is for making a
reference by a Court or any one of the
authorities enumerated in the sub-section
or it is for intimation of proceedings by the
Collector?"

15. In response to the first question,
the Full Bench had observed that the
language of Section 47 sub Section 4 is
clear that the Collector/ Additional District
Magistrate (Finance & Revenue) does not
have any power to impose penalty in such
proceedings. Under this provision only
power vested in the Collector was to
determine the market value of the property
and if he finds that the duty paid on the
instrument in question is less than that
payable on the correct market value of the
property, he may order that the difference
may be realized from the party to the
96 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument. The Court observed that law
regarding such matters is well settled. The
power to impose penalty must be conferred
by the Statute itself. The language of
Section 47-A alone can be seen and such a
power cannot be inferred by implication or
by reference to some general words
contained in the Rules. In the absence of a
specific provision to that effect, the
Collector is not empowered to impose
penalty.

16. The learned counsel for the
petitioner has also placed reliance upon the
judgment rendered by Co-ordinate Bench
of this Court in Ram Khelawan @ Bachcha
Vs. State of U.P. and others; 2005 (23)
LCD 1681, wherein this Court has
observed in paragraph-24 thus:-

"24. It has been found in several
cases like the present one that the entire
basis of determination of market value for
the purpose of stamp duty is ex parte report
of Tehsildar or other Officer. Ex parte
inspection report may be relevant for
initiating the proceedings under Section 47A of Stamp Act. However, for deciding the
case no reliance can be placed upon the
said report. After initiation of the case
inspection is to be made by the Collector or
authority hearing the case after due notice
to the parties to the instrument as provided
under Rule 7(3) (c) of the Rules of 1997.
Moreover in the inspection report distance
of the property from other residential or
commercial properties and road must be
shown and wherever possible sketch map
must; also be annexed alongwith the report
so
that
correct
valuation
may
be
ascertained with reasonable certainty."

17. This Court finds from the
pleadings on record that no specific reply
has been given by the State Respondents in
their counter affidavit to the grounds raised
for challenge in paragraphs-5, 8 and 9 of
the writ petition, nor has any dispute been
raised regarding the applicability of the
Government Order dated 28.07.2000 in so
far as it clarifies the position regarding the
power to impose penalty along with power
to recover deficiency in stamp duty.

18. This Court has also perused the
orders impugned and finds from the order
dated 19.07.1999 that only a bald statement
has been made therein that notice was
issued and despite service, the vendee had
failed to file any explanation and therefore
proceedings were taken ex parte against
him. If the findings of fact recorded by the
Assessing Authority regarding the property
in question to be situated within 800 mtrs.
of Hanuman Mandir Tiraha on Kaiserganj
Huzoorpur road taken on its face value, is
to be taken as correct, at least spot
inspection memo and a rough sketch map
ought to have been appended to and
referred in the order itself. Neither there is
any reference of on spot inspection report
or sketch map in the order impugned, nor
the same has been filed in the counter
affidavit by the respondents to refute the
allegation made by the petitioner in the writ
petition.

19. This Court also finds from the
order passed in the Revision that only the
statement
made
by
the
Assessing
Authority's order has been rephrased
although in a different language. There is
no application of mind by the Revisional
Authority as to whether the procedure
prescribed for determination of deficiency
and for imposition of penalty had been
followed by the Assessing Authority.
Consequently,
both
the
orders
dated
19.07.1999 and 26.11.2001 are liable to be
set aside and are therefore set aside.
7 All. Mahanth Chaturbhuj Das @ Chanda Vs. State of U.P. & Ors.
97

20. The writ petition stands allowed.
Consequences to follow.
----------
(2021)07ILR A97
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 14768 of 2021

Mahanth Chaturbhuj Das @ Chanda
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajeev Narayan Pandey

Counsel for the Respondents:
C.S.C.

Order rejecting mutation challenged-Remedy is
under Rule 5A (4) of Nazul rules-civil or
revenuecourt
have
jurisdiction-Writ
not
maintainable being a summary proceeding.

W.P. dismissed. (E-7)

List of Cases cited:

1.
Naveen
Chandra
Seth
&
ors.
Vs
Commissioner, Allahabad & ors., 1999 (3) A.W.C.
2444

2.Writ Petition No.5147 (M/S) of 2015:Smt.
Hadisul Nisha Vs Additional Commissioner
(Judicial) Faizabad& ors.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard learned counsel for the
petitioner and Sri V.P. Nag, learned
standing counsel appearing for the State
Respondent.

2. The petitioner is aggrieved by the
order dated 03.03.2021 passed by the
Commissioner,
Ayodhya
Division,
Ayodhya,
and
also
the
order dated
22.05.2017 passed by the Additional
District Magistrate (Finance & Revenue)/
Nazul Officer, Faizabad (now Ayodhya)
and prays for a mandamus directing the
respondent to allow mutation application
dated 10.12.2013 filed under Rule 5A of
the Nazul Manual in respect of Khasra
No.51 ad-measuring 3 Bigha 10 Biswa 12
Biswansi 12 Kachwansi situated in Mohalla
Guptarghat, Pargana Haveli Avadh, Tehsil
Sadar, District Faizabad.

3. It is the case of the petitioner that
he is the successor of Mahant Gopal Das,
who was spiritual brother/ Gurubhai of
Mahant Maha Tyagi Mohan Das Mauni
Baba chela Mahanth Ram Bharosey Das. A
nazul lease deed for 90 years with renewal
due after every 30 years had been executed
between the Secretary of State of Indian
Dominion and Baba Janki Das Maharaj
Phalahari Chela Sri Ram Sevak Das Ji with
respect to the aforesaid Khasra No.51 on
26.07.1927. The same was registered
before the Registrar, Faizabad. The lease
agreement was renewed by the Competent
Authority on an application made by the
Mahanth Baba Ram Prasad Das chela Baba
Janki
Das
Maharaj
on
04.06.1958.
Thereafter,
the
lease
agreement
was
renewed on an application of Mahanth
Mohan Das Mauni Baba on 30.07.1997
with effect from 1987, which was also a
registered agreement. Mahanth Mohan Das
executed a Will in favour of Mahanth
Gopal Das and after death of Mahanth