# M/s G.T.M. Builders & Promoters Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1969
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Writ-C No. 24535 of 2010
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-g-t-m-builders-promoters-pvt-ltd-v-state-of-u-p-ors-45678
- **Pages:** 7

## Headnote

A. Indian Stamp Act, 1899 - Section 17,
33 - Petitioner entered into an Agreement
to
purchase
land
-agreement
was
executed-possession was not deliveredphotocopy of deed submitted for levy of
stamp duty-Petitioner failed to produce
original agreement-duty imposed with
penalty for late payment-rightly made-as
soon as agreement executed-section 17
comes into picture-agreement to be duly
stamped-proceedings duly initiated.

Held, as soon as the petitioner accepted the
execution of the agreement, section 17 of the
Indian Stamp Act comes into picture and is
pressed to service for getting the agreement
duly stamped. It is immaterial as to whether,
on
the
basis
of
the
agreement
dated
19.01.2006, the performance, as contemplated
therein, was done or not done. Once, there is
no denied of the execution of the agreement,
at any stage, then the liability of stamp duty
does arise. (Para 20)

In the case in hand, the original agreement was directed to
be produced by the petitioner vide notice dated 17.06.2007
and the petitioner failed to produce the same. Therefore,
the proceedings under section 33(4) & (5) were rightly
initiated. (Para 24)
Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

1970 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 1969
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE PIYUSH AGRAWAL, J.

Writ-C No. 24535 of 2010

M/s G.T.M. Builders & Promoters Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders, Sri Rahul Sripat, Sri
Vipin Sinha, Sri Ishir Sripat

Counsel for the Respondents:
C.S.C.

A. Indian Stamp Act, 1899 - Section 17,
33 - Petitioner entered into an Agreement
to
purchase
land
-agreement
was
executed-possession was not deliveredphotocopy of deed submitted for levy of
stamp duty-Petitioner failed to produce
original agreement-duty imposed with
penalty for late payment-rightly made-as
soon as agreement executed-section 17
comes into picture-agreement to be duly
stamped-proceedings duly initiated.

Held, as soon as the petitioner accepted the
execution of the agreement, section 17 of the
Indian Stamp Act comes into picture and is
pressed to service for getting the agreement
duly stamped. It is immaterial as to whether,
on
the
basis
of
the
agreement
dated
19.01.2006, the performance, as contemplated
therein, was done or not done. Once, there is
no denied of the execution of the agreement,
at any stage, then the liability of stamp duty
does arise. (Para 20)

In the case in hand, the original agreement was directed to
be produced by the petitioner vide notice dated 17.06.2007
and the petitioner failed to produce the same. Therefore,
the proceedings under section 33(4) & (5) were rightly
initiated. (Para 24)
Writ Petition dismissed. (E-9)

List of cases cited: -

1. Hariom Agrawal Vs. Prakash Chand Malviya
reported
in
2007
(6)
ALD
105
(SC)
(distinguished)

2. Som Dutt Builders Limited Vs. State of U.P.
& Others (distinguished)

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Shri Rahul Sripat, learned
Senior Counsel, assisted by Shri Ishir
Sripat, learned counsel for the petitioner
and Ms. Archana Tyagi, learned standing
counsel for the State - respondents.

2. The present writ petition has been
filed for the following, amongst other,
relief:-

"i) issue a writ, order or
direction in the nature of certiorari
quashing the order dated 28.01.2010
passed by Chief Controlling Revenue
Authority, U.P., Allahabad (Circuit Court
at Meerut) in Stamp Appeal No. 09 of
2007-08;
M/s
G.T.M.
Builders
&
Promoters (P) Ltd. Versus State of U.P.
(Annexure No. 8)."

3. It is averred in the writ petition
that M/s Modipon Fibres Company (a
division of Modipon Limited) claimed to
have held land measuring 201 bighas, 6
biswas situated in Village - Bishokher,
Aurangabad, Gadana and Begumabad
Gadana in the District - Ghaziabad. The
said land was alleged to have been
transferred
to
M/s
Modipon
Fibres
Company by the State Government vide
transfer deed dated 01.08.1994. The
petitioner entered into an agreement dated
19.01.2006 to purchase the land in
1 All. M/s G.T.M. Builders & Promoters Pvt. Ltd. Vs. State of U.P. & Ors.
1971
question
from
M/s
Modipon Fibres
Company. M/s Modipon Fibres Company
was permitted to sell the land vide order
dated
10.08.2001
by
the
State
Government. It is further averred that
some dispute arose between the parties and
the possession of the land was never
delivered to the petitioner. It is further
averred that a photocopy of the deed dated
19.01.2006 was submitted by the Assistant
Commissioner of Stamps to the Collector,
Ghaziabad on 21.04.2006 for levy of
stamp duty. Consequently, the Collector
registered a case under section 33 of the
Indian Stamp Act, 1899 (registered as
Case No. 17 of 2006-07) and was
transferred to the Assistant Commissioner
of Stamps, Ghaziabad vide order dated
03.06.2007.

4. It is further stated that on
16.06.2006, a notice under sections 17, 27,
33, 40, 47-A & 64 of the Indian Stamp Act
read with rules 7, 8, 9 & 10 of the U.P.
Stamp (Valuation of Property) Rules, 1997
was issued by the Assistant Commissioner
of Stamps to the petitioner. Pursuant to the
notice,
the
petitioner
submitted
its
reply/objection.

5 The Assistant Commissioner of
Stamps, vide order dated 27.09.2007, held
that the petitioner is liable to pay the stamp
duty in accordance with the Schedule I-B
at Serial No. 5 of the Indian Stamp Act
and also imposed penalty. Aggrieved by
the order of the Assistant Commissioner of
Stamps, the petitioner preferred Stamp
Appeal No. 9 of 2007 before the Chief
Controlling
Revenue
Authority,
U.P.
(CCRA) under section 56(I-A) of the
Indian Stamp Act. During the pendency of
the
appeal,
recovery
citation
dated
20.11.2007
was
issued
against
the
petitioner. Aggrieved petitioner, filed Writ
Petition No. 483 of 2008 before this Court,
which was disposed of vide order dated
05.11.2009
directing
the
appellate
authority to decide the stamp appeal within
three months.

6. Pursuant to the order of this Court,
the appellate authority has passed an order
dated 28.01.2010 dismissing the stamp
appeal of the petitioner. Hence, this writ
petition.

7. Learned counsel for the petitioner
submits that the petitioner entered into
Memorandum of Understanding with M/s
Modipon Fibres Company, which was
never acted upon as M/s Modipon Fibres
Company was not vested with the right to
transfer
the
property.
It
is
further
submitted that against M/s Modipon Fibres
Company, Original Suit No. 150 of 2001
was pending before the Debt Recovery
Tribunal and therefore, the Company
cannot sell the land without the permission
of the Debt Recovery Tribunal, Delhi. It is
further submitted that within 15 days from
the
date
of
Memorandum
of
Understanding
dated
19.01.2006,
the
petitioner
and
M/s
Modipon
Fibres
Company were to jointly measure the land
and
required
to
record
the
exact
measurements in the Memorandum to be
signed by them.

8. Learned counsel for the petitioner
further submits that the notice, which has
been issued on 17.06.2007, never called
for the original deed, failing which section
33 of the Indian Stamp Act cannot be
pressed into service as no original deed
was with M/s Modipon Fibres Company
and therefore, it cannot be said that there is
any deficiency of stamp duty. It is further
submitted that the authorities below have
failed to consider the fact as to whether
1972 INDIAN LAW REPORTS ALLAHABAD SERIES
photocopy,
in
absence
of
original
instrument, can be subjected to the
proceedings for imposition of deficiency
in stamp duty. It is further submitted that
the entire proceedings are wholly illegal
and in contravention with the provisions of
the Indian Stamp Act as the proceedings
were initiated on the basis of the
photocopy of the deed dated 19.01.2006.

9. Learned counsel for the petitioner
has placed reliance upon the judgement of
the apex Court in the case of Hariom
Agrawal Vs. Prakash Chand Malviya
reported in 2007 (6) ALD 105 (SC)
(paragraph nos. 5 & 13) as well as the
judgement of this Court in Som Dutt
Builders Limited Vs. State of U.P. &
Others reported in AIR 2005 (Alld) 234
(paragraph nos. 8 & 9).

10. Per contra, learned standing
counsel submits that the petitioner has
never
denied
the
execution of
the
Memorandum
of
Understanding.
He
further submits that the notices were
issued directing the petitioner to submit
the original deed, but the petitioner never
submitted the original deed and therefore,
the proceedings under section 33 of the
Indian Stamp Act were rightly initiated
against the petitioner. Learned standing
counsel
further
submits
that
the
instrument, as per section 17 of the Indian
Stamp Act, is chargeable to stamp duty as
soon as the same is executed by the
person. It is immaterial as to whether the
conditions of the agreement were fulfilled
or not, as as soon as the agreement is
executed, the liability for payment of
stamp duty arises. It is further submitted
that in the case in hand, part payment was
made by the petitioner to M/s Modipon
Fibres Company, which itself shows
execution of the agreement and part
performance thereof. Learned standing
counsel
further
submits
that
the
judgements cited by the petitioner are not
applicable in the facts and circumstances
of the present case. He further submits that
the orders passed by the authorities below
are in accordance with law and do not call
for any interference by this Court.

11. The Court has perused the record.

12. On the basis of the submissions
made by the learned counsel for the
parties, the issue, which arises for
consideration by this Court, is as to
whether on the basis of photocopy of the
instruction, i.e., the agreement dated
19.01.2006, can the deficiency of stamp
duty be imposed upon the petitioner
without calling for the original instrument
for the purpose of satisfying with regard to
adequacy of the stamp duty paid thereon.

13.

For
appreciation
of
the
controversy involved in this case, sections
2(12), 2(14), 17, 33(1), (4) & (5) of the
Indian Stamp Act are relevant, which are
quoted below:-

Section 2(12): "Executed" and
"Execution". "Executed" and "Execution"
used with reference to instruments, mean
signed and signature;

Section
2(14):
Instrument.
"Instrument" includes every document by
which any right or liability is, or purports
to
be,
created,
transferred,
limited,
extended, extinguished or recorded;

Section
17:
All
instruments
chargeable with duty and executed by any
person in India shall be stamped before or
at the time of execution.

Section 33 (1): Every person
having by law or consent of parties
authority to receive evidence, and every
1 All. M/s G.T.M. Builders & Promoters Pvt. Ltd. Vs. State of U.P. & Ors.
1973
person in charge of a pubic 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.

Section 33 (4): 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
10 on the copy of the instrument:

Provided that no action under
sub-section (3) or sub-section (4) shall be
taken after a period of four years from the
date of execution of the instrument.

Section 33 (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 years from the
date of execution 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."

14. From the perusal of the aforesaid
provisions of the Indian Stamp Act, it is
evident that section 2(12) provides that
"Executed" and "Execution" is used with
reference to instruments, mean signed and
signature;
section
2(4)
provide
that
"Instrument" includes every document by
which any right or liability is, or purports
to
be,
created,
transferred,
limited,
extended,
extinguished
or
recorded;
section 17 provides that all instruments
chargeable with duty and executed by any
person in India shall be stamped before or
at the time of execution.

15. Section 33 of the Indian Stamp
Act empowers the authority to examine
and impound the instruments before whom
any instrument, chargeable, in his opinion,
with duty, is produced or comes in the
performance of his functions. Sub-section
(4) thereof provides that 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
10 on the copy of the instrument. Subsection (5) empowers the authority that 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.

16. Learned counsel for the petitioner
has vehemently argued that the notice
dated 17.06.2007 was issued without
calling for the original agreement dated
19.01.2006, which has been rebutted by
the learned standing counsel.

17. This Court has perused the notice
dated 17.06.2007. The relevant part of the
notice is quoted below:-

"आप कृपया बदनाोंक 30/6/2006
को प्रातः 10:30 बजे उपरोक्त सन्दभष में
इस
न्यायालय
में
बवचाराधीन
मूल
अबभलेख सबहत उपरोक्त पते पर ...
आना सुबनबश्चत करे, मूल अबभलेख इस
न्यायालय में दाम्मखल करे तथा पत्रावली के
अध्ययन के उपराोंत अपना पक्ष एवों
उसके
समथषन
में
साक्ष्य/
साक्षी/
1974 INDIAN LAW REPORTS ALLAHABAD SERIES
अबभलेख, इस न्यायालय के आदेश के
अनुसार बनधाषररत बतबथ में प्रस्तुत करना
चाहें। "

18. The notice under section 33 of
the Indian Stamp Act, as aforesaid, itself is
very clear directing the petitioner to
produce the original agreement on or
before 30.06.2006, but in spite of service
of notice, the original instrument was not
produced by the petitioner.

19. It is not the case of the petitioner
that he tried to submit the original
instrument as per the notice dated
17.06.2007, the same was not accepted by
the authorities below. Once, by notice
dated 17.06.2007, when the original
documents were sought to be produced
and the petitioner failed to do so, the
proceedings initiated under sub-sections
(4) & (5) of section 33 of the Stamp Act
are wholly justified. Further, the record
shows that no where, either in the grounds
of appeal or before this Court, the
petitioner submitted that the agreement
dated 19.01.2006 was not executed, but it
has been only argued that after execution
of the agreement dated 19.01.2006, it was
never acted upon.

20. As soon as the petitioner accepted the
execution of the agreement, section 17 of the
Indian Stamp Act comes into picture and is
pressed to service for getting the agreement duly
stamped. It is immaterial as to whether, on the
basis of the agreement dated 19.01.2006, the
performance, as contemplated therein, was done
or not done. Once, there is no denied of the
execution of the agreement, at any stage, then the
liability of stamp duty does arise.

21. The reliance placed by the
petitioner upon the Hariom Agrawal
(supra) and Som Dutt Builders Limited
(supra) would be of no help to the
petitioner, as in that case, the authorities
never call upon for submission of original
instrument. But in the present case, vide
notice dated 17.06.2007, the petitioner was
directed to produce the original agreement,
but he failed to submit the same.

22. Another judgement in Som Dutt
Builders Limited (supra) relied upon by
the learned counsel for the petitioner is
also of no help to the petitioner. Relevant
paragraph nos. 8 & 9 of the aforesaid
judgement is quoted below:-

"8. As regards the first issue,
although the agreement had been executed
on 11.6.1987, action was first sought to be
initiated only on 31.10.1994, which was
after a lapse of more than 7 years.
Admittedly the said action was initiated on
the basis of a photo copy of the document
dated 11.6.1987, by summoning the
original document. The first proviso
toSection 33of the Act makes it clear that
no action can be taken underSection
33(4)of the Act (which deals with the cases
where copy of the document is produced
and the original instrument is called for)
after a period of four years from the date
of execution of the instrument. Since
admittedly action was being taken on the
basis of a document executed on 11.6.1987
and more than four years had elapsed, the
provision ofSection 33(4)of the Act could
not be attracted. The second proviso
toSection 33of the Act having been
inserted only w.e.f. 1.9.1998 would not be
attracted in this case.

9. As regards the second issue
that the Additional District Magistrate had
no jurisdiction to initiate proceedings on a
photo copy of the document by summoning
the original document for the purposes of
1 All. M/s G.T.M. Builders & Promoters Pvt. Ltd. Vs. State of U.P. & Ors.
1975
ascertaining the liability of stamp duty
under the Act, even if the notice dated
31.10.1994 and the action taken by the
respondents in pursuance thereof could be
said to be covered underSection 33(1)of
the Act (although the petitioner disputes
the same), still the said action would also
be illegal and without jurisdiction. In
response to the letter dated 31.10.1994
written
by
the
Additional
District
Magistrate to the Kanpur Development
Authority,
the
Kanpur
Development
Authority on 1.11.1994 is said to have sent
the
document
in
question
to
the
Respondent No. 3. According to the
petitioner the document so sent was only a
copy of the original and not the original,
which was and still remains in the
possession of the petitioner. Specific
assertion to that effect has been made in
paragraph 31 of the writ petition that the
original agreement is with the petitioner
and the same has not been denied by
Kanpur Development Authority or the
State of U.P. in their counter affidavits.
The learned Standing Counsel had also
placed the original records of the case
before me and the original agreement was
not found there. The learned Standing
Counsel could also not justify as to on
what basis it has been claimed by him that
the original document had been placed
before the Additional District Magistrate
on which action has been taken. At the
time of hearing, the original document was
actually placed before me by the learned
counsel for the petitioner to show that the
same was and still is in the possession of
the petitioner. As perSection 33(1)of the
Act, once the document or instrument
appears to be under-stamped, the officer
concerned shall impound the same, In the
present case, the original document had
never been impounded. The procedure for
impounding a document has been laid
down insection 40of the Act and it is no
one's case that the same had been followed
in the present case. Further, the said
document was never produced nor came
before the Additional District Magistrate
in the performance of his official functions
and hence the provisions ofSection 33(1)of
the Act could not have been attracted. In
the case of R.A. Remington v. Deputy
Commissioner & Collector, Pithoragarh
1966 A.L.J. 514 the Apex Court has held
that the authorities have no power
underSection 33(1)of the Act to summon
the document for the purposes of finding
out whether it had been properly stamped
or not. Thus the submission of the
petitioner, that the case of the respondents
for imposing penalty on the document
would also not be covered under the
provisions ofSection 33(1)of the Act, has
force."

23. In the said case, the proceedings
were initiated after a lapse of more than seven
years; whereas, section 33 of the Act very
clearly provides the limitation of four years. In
the case in hand, the proceedings have been
initiated within a period of 13 months. Further,
section 33 of the Act has been inserted with
effect from 01.09.1998; whereas, in the
aforesaid case, the agreement was executed on
11.06.1987 and for the first time, proceedings
were initiated on 31.10.1994. Therefore, the
Court was of the opinion that the initiation of
proceedings was without jurisdiction. But, in
the case in hand, the agreement has been
executed on 30.06.2006 and the notice was
issued on 17.06.2007, i.e., within a period of
13 months, which is well within the period of
limitation as prescribed under the Act.

24. In the case in hand, the original
agreement was directed to be produced by
the petitioner vide notice dated 17.06.2007
and the petitioner failed to produce the
1976 INDIAN LAW REPORTS ALLAHABAD SERIES
same. Therefore, the proceedings under
section 33(4) & (5) were rightly initiated.

25. In view of the aforesaid facts and
circumstances of the case, the impugned
order does not call for any interference by
this Court. The question, framed above, is
answered, accordingly, in favour of the
State and against the petitioner.

26. The writ petition fails and it is
hereby dismissed.

27. No order as to costs.
----------
(2020)1ILR 1975

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ-C No. 25389 of 2019

Sudhir Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Ravikant, Sri Imran Syed

Counsel for the Respondents:
C.S.C., Sri Rajendra Singh Chauhan, Sri
Sushil Kumar Rao, Sri Kunal Shah

A. Administrative law - principles of
natural justice - administrative exercise
of power - the authority exercising power
has to not only render due application of
mind but also to follow the procedure
which would not render the entire action
arbitrary - whatever is arbitrary, is hit by
Article 14 of the Constitution of India -
held - In the present case only the
procedure that was followed by the
respondents in taking impugned action
was not only quite ex parte but also
under the executive fiats of the Special
Secretary of the Government which was
quite uncalled for - Merely because the
orders have come from the higher
echelons
of
the
Government
functionaries, a Corporation which is an
autonomous
body
would
not
mechanically act in compliance thereof
and
then
administrative
authority,
therefore, is required to render due
application of mind. (Para 21)

Order impugned is basically based on the
enquiry report prepared by the Managing
Director himself and that the enquiry was
conducted in the ex parte manner and the
Managing
Director
failed
to
offer
any
opportunity of hearing to the petitioner before
passing the order impugned which has the
effect of terminating the agreement for no
justifiable reason to hold that the petitioner
was at fault at any point of time - Element of
bias therefore, under the circumstances at the
end of Managing Director, cannot be ruled out
- The order impugned, therefore, terminating
the agreement dated 26.7.2019 cannot be
sustained in law. (Para 35)

Held: - The petitioner was entitled to an
opportunity of hearing before the order was
passed and since the petitioner has not been
issued any show cause notice, order cannot
sustain in law. The enquiry report submitted by
the Managing Director as well as the order
passed by the Special Secretary quashed. (Para
27 & 36)

Writ Petition allowed. (E-7)

List of cases cited: -

1. JV v. Central Organization, 2018 (5) AWC
4772

2. Employees State Insurance Corporation and
Anr v. Jadain, (2006) 6 SCC 581

3. M/s. Ambe Couriers v. State of U.P. & 3 Ors.,
(Writ-C No. 45762 of 2014

4. U.P. State Warehousing Corporation vs. Sunil
,2013 (3) ADJ 745