# M/s Somdutt Builders Ltd v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-02-02
- **Case number:** Civil Misc. Writ Petition No. 5738 of 1995
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-somdutt-builders-ltd-v-state-of-u-p-and-others-40434
- **Pages:** 9

## Headnote

(A) Indian Stamp Act 1899-S. 33 Nature
of
the
Document-petitioner
being
highest bidder-Nazul Plot No. 10 Block
15-area 6910 Sq. Meters-Settled for Rs.
6.10 Crores-agreement executed on Rs.
7/- Stamp-whether such document can
be termed as agreement to sale and the
stamp duty is payable?-held--No title or
ownership
transferred-except
the
possession-hence is deed of license.

Held: Para 10

It is true that the document in question
was titled as "agreement to lease" but
since no proprietary rights had been
transferred in favour of the petitioner
and only the possession had been
handed over to the petitioner with
permission to raise construction along
with a large number of stipulations and
conditions as well as contingencies on
the occurrence of which, even the
agreement itself could be terminated,
and also the fact that a further provision
had
been
made
in
the
said
document/agreement for execution of
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INDIAN LAW REPORTS ALLAHABAD SERIES
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lease deed on a future date, as such in
my view the same could not have been
treated in law as an agreement to lease
but merely as a license.
Case law discussed:
AIR 1959 SC 1264
J.T. 1999 (8) 233

(B) Indian Stamp Act 1899-Section 33
(1)-Imposition of Penality-whether the
authorities have power to summon the
Original document from the petitioner to
assessed the stamp duty and to empose
the Penality? Held-No.

Held: Para 9

the authorities have no power under
section 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 of section 33 (1) of
the Act, has force.
Case law discussed:
1966 ALJ 514

(C) Indian Stamp Act 1899-S. 33-
penalty- the authorities for the first time
assessed the stamp duty by order dated
6.2.95
and
22.2.95-petitioner
after
receiving
the
notices
had
already
deposited Rs. 60 lacs. In the 14.94 itselfbonafide conduct of the petitioner can
not be doubted-held -Penality could not
have been imposed.

Held: Para 13 & 14

Thus the penalty could not be levied
prior to the assessment of the stamp
duty on the document, which was
finalised only after the passing of the
impugned orders. The bonafide of the
petitioner, thus, cannot be doubted and
the stamp duty amount when called for
from the petitioner had been paid by him
partially in 1994, and thereafter finally
when the lease deed was executed.

As such in my view, in the facts and
circumstances of this case, and in view
of the discussion here in above, under
law, the penalty could not have been
imposed on the petitioner.

## Text

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M/s Somdutt Builders Ltd. V. State of U.P. and others
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11. From the facts narrated above
and deducible from the contention of the
parties, the net result is that the election
dated 7.10.2000 alleged to have been held
by petitioner no. 3 has been held to be
illegal by the Assistant Registrar. There is
neither any other election nor even any
allegation of any election of any other
body. The renewal of the Society has been
granted by the Assistant Registrar on the
basis of annual list of the officers which
apparently is illegal. Thus, the Society has
become unregistered society within the
meaning of sub-section (5) of Section 3-A
and the only remedy now available is of
holding a fresh election of the Society.

12. Sub-section (2) of Section 25 of
the Act provides that where any election
of office bearers of the Society has not
been held within the time specified, i.e.,
within 5 years, the Registrar may call
meeting of general body of the Society for
electing the office bearers.

13. In view of the facts and
circumstances of the case, the impugned
order dated 26.2.2001 deserves to be set
aside and it is expedient in the interest of
justice that the Registrar may be directed
to hold election of the Society in
accordance with law in exercise of powers
under sub-section (2) of Section 25 of the
Act.

14. For the reasons stated above, the
writ petition is allowed and the impugned
order is set aside/quashed. The Registrar
is directed to hold fresh election of the
Society within a period of two months
from the date of production of a certified
copy of this order before it by the
petitioners.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 5738 of 1995

M/s Somdutt Builders Ltd. ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.N. Tripathi
Sri V.K. Singh
Sri S.P. Gupta

Counsel for the Respondents:
Sri Lal Ji Sinha
Sri Sanjay Goswami
C.S.C.

(A) Indian Stamp Act 1899-S. 33 Nature
of
the
Document-petitioner
being
highest bidder-Nazul Plot No. 10 Block
15-area 6910 Sq. Meters-Settled for Rs.
6.10 Crores-agreement executed on Rs.
7/- Stamp-whether such document can
be termed as agreement to sale and the
stamp duty is payable?-held--No title or
ownership
transferred-except
the
possession-hence is deed of license.

Held: Para 10

It is true that the document in question
was titled as "agreement to lease" but
since no proprietary rights had been
transferred in favour of the petitioner
and only the possession had been
handed over to the petitioner with
permission to raise construction along
with a large number of stipulations and
conditions as well as contingencies on
the occurrence of which, even the
agreement itself could be terminated,
and also the fact that a further provision
had
been
made
in
the
said
document/agreement for execution of
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 244
lease deed on a future date, as such in
my view the same could not have been
treated in law as an agreement to lease
but merely as a license.
Case law discussed:
AIR 1959 SC 1264
J.T. 1999 (8) 233

(B) Indian Stamp Act 1899-Section 33
(1)-Imposition of Penality-whether the
authorities have power to summon the
Original document from the petitioner to
assessed the stamp duty and to empose
the Penality? Held-No.

Held: Para 9

the authorities have no power under
section 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 of section 33 (1) of
the Act, has force.
Case law discussed:
1966 ALJ 514

(C) Indian Stamp Act 1899-S. 33-
penalty- the authorities for the first time
assessed the stamp duty by order dated
6.2.95
and
22.2.95-petitioner
after
receiving
the
notices
had
already
deposited Rs. 60 lacs. In the 14.94 itselfbonafide conduct of the petitioner can
not be doubted-held -Penality could not
have been imposed.

Held: Para 13 & 14

Thus the penalty could not be levied
prior to the assessment of the stamp
duty on the document, which was
finalised only after the passing of the
impugned orders. The bonafide of the
petitioner, thus, cannot be doubted and
the stamp duty amount when called for
from the petitioner had been paid by him
partially in 1994, and thereafter finally
when the lease deed was executed.

As such in my view, in the facts and
circumstances of this case, and in view
of the discussion here in above, under
law, the penalty could not have been
imposed on the petitioner.

(Delivered by Hon'ble Vineet Saran, J.)

1. A Nazul plot no. 10, Block 15,
Civil Lines, Kanpur measuring 6910 Sq.
meters had been put to auction by the
Kanpur
Development
Authority
on
28.4.1987. The bid of the petitioner for
Rs.6.10 Crores was highest and had been
accepted. Thereafter an agreement was
executed between the petitioner and
Kanpur
Development
Authority
on
11.6.1987. The said document was
executed on a stamp paper of Rs.7/- only.
After seven years, in October, 1994
Kanpur Development Authority sent a
complaint
to
Additional
District
Magistrate (Finance & Revenue), Kanpur
Nagar (A.D.M. (F & R)) Respondent
no.3, along with a photo copy of the
agreement dated 11.6.1987 stating that the
said document had been under-stamped
and proceedings may be initiated against
the petitioner under the provisions of
Indian Stamps Act for not paying
appropriate stamp duty. In response, on
31.10.1994 the Respondent no.3 A.D.M.
(F
&
R)
wrote
to
the
Kanpur
Development Authority and summoned
the original agreement dated 11.6.1987.
On 1.11.1994 the Vice Chairman, Kanpur
Development
Authority
supplied
the
agreement to the Respondent no.3, which,
the petitioner contends, was not the
original but merely a photocopy of the
original. A show cause notice dated
14.11.1994 was thereafter issued to the
petitioner by the Respondent no. 3, to
which a reply was filed by the petitioner
on 29.11.1994. In its reply, the petitioner
raised three objections, namely, that the
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document did not attract any stamp duty;
that the proceedings could not be initiated
against the petitioner as the same were
barred by limitation; and that the A.D.M.
(F & R) had no authority or power to
summon the document to initiate the
proceedings. After filing of the reply, the
petitioner on 28.12.1994 deposited a sum
of Rs.60 lacs towards the estimated stamp
duty on the document and thereafter again
filed
detailed objections before the
Respondent no.3 on 1.2.1995. By his
order dated 6.2.1995, the Respondent no.3
determined the stamp duty payable by the
petitioner to be Rs. 72,25,450/- and
further
imposed
a
penalty
of
Rs.50,57,815/-. Being aggrieved by the
said order, the petitioner challenged the
same by filing a revision before the Chief
Controlling Revenue Authority (CCRA),
Respondent no.2, on 16.2.1995 along with
an application for stay. On the same date
the CCRA passed an order of status quo
and fixed 6.3.1995 for filing of objections
by the opposite parties and hearing.
However, since despite the stay order
granted by the CCRA the Respondent
no.3 was proceeding to execute the order
dated 6.2.1995 by putting seals on certain
rooms and halls of the petitioner's
property,
the
petitioner
filed
an
application on 18.2.1995 with a prayer for
a direction to the Respondent no.3 to
remove the said seals on the rooms of
their property. Another application was
filed on 22.2.1995 with similar prayer,
which was directed to be taken up on
25.2.1995. On 25.2.1995 when, according
to the petitioner, only arguments were
heard in respect of the applications of the
petitioner, the CCRA, to the utter surprise
of the petitioner, passed the order finally
deciding the revision itself stating that an
oral request for reviewing the order dated
16.2.1995
had
been
made
by
the
Respondent-State,
although
in
fact
6.3.1995 had been fixed for the hearing of
the revision. By the said order dated
25.2.1995 the penalty was reduced to Rs.
42,45,368.75 paise since admittedly the
area of the land had been found to be
reduced from 6910 sq. meters to 5974 sq.
meters. Aggrieved by the aforesaid order
dated 6.2.1995 passed by Respondent
no.3 and the order dated 25.2.1995 passed
by Respondent no.2, the petitioner has
filed this writ petition.

2. I have heard Sri V.K.Singh,
learned counsel for the petitioner and Sri
Sanjay
Goswami,
learned
Standing
Counsel
appearing
for
the
Staterespondents at length and have perused
the record.

3. Sri V.K. Singh, learned counsel
for the petitioner submitted that by the
agreement dated 11.6.1987, no rights had
been
transferred
in
favour
of
the
petitioner. The petitioner had merely been
authorized to be in possession, and mere
permission had been granted to the
petitioner to raise construction. Although
the same had been termed as an
'agreement to lease', it was actually
nothing but only a license and thus no
stamp duty would be payable on the same.
Learned counsel has further submitted
that the dispute had arisen for the first
time on 31.10.1994 after a lapse of more
than 7 years and that too on a complaint
of the Kanpur Development Authority
which was itself a signatory to the said
agreement, and as such no cognizance
could have been taken by the respondents
on the said complaint.

4. After hearing learned counsel for
the parties the issues to be determined by
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this Court could be summarized in the
following manner :-
(i) In view of the first proviso to
Section 33 of the Indian Stamp
Act, 1899 (hereinafter referred
to as the Act), the A.D.M. (F &
R), Respondent no.3, could not
have initiated action under
section 33(4) of the Act after
expiry of four years.
(ii) The A.D.M. (F & R) had no
right and jurisdiction to initiate
proceedings on a photocopy of
the document dated 11.6.1987
by summoning the original
document for the purposes of
ascertaining the liability of
stamp duty under the Act.
(iii) The document dated 11.6.1987
would not be chargeable with
stamp
duty
as
no
rights
pertaining
to
the
land
in
question had been transferred
in favour of the petitioner.
(iv) No penalty could be imposed as
the lease deed had not been
executed and the petitioner was
always ready and willing to pay
the determined stamp duty on
the document to be executed,
and it could not be said that the
petitioner ever intended to
evade any stamp duty.

5. For proper appraisal of the
submissions and determination of the
questions raised, a perusal of section 33 of
the Act would be necessary and thus the
same is reproduced below:-
"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 Sections 125 to
128 and Sections 145 to 148 of the
Code of Criminal procedure, 1973;
(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
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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 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 years from the date of
execution of the instrument :

Provided further that with the
prior
permission
of
the
State
Government an action under subsection (4) or sub-section (5) maybe
taken after a period of four years
but before a period of eight years
from the date of execution of the
instrument."
(Emphasis supplied)
(Note: The last proviso has been
inserted w.e.f.1.9.1998)

 6.

The
dispute
between
the
petitioner and the Kanpur Development
Authority with regard to the area for
which lease had to be granted in favour of
the
petitioner
remained
pending.
Although the auction had been for an area
of 6910 sq. meter but the dispute was
finally resolved only on 22.11.1995
(which was even after the passing of the
impugned order by the CCRA) and it was
only in pursuance thereof that on
31.1.1996
the
Kanpur
Development
Authority wrote to the A.D.M.(F & R),
Respondent no.3, that the lease deed
between the petitioner and the Kanpur
Development Authority would now be
executed for a reduced area and for a
reduced amount of approximately Rs. 5.5
Crores on which stamp duty may be
determined. Such position has not been
denied in the pleadings or by the learned
Standing
Counsel
at
the
time
of
arguments. It has also not been disputed
that in pursuance of the aforesaid letter a
lease deed has now been finally executed
on 5.2.2003 for an area which is
substantially lesser than the original area
shown in the agreement dated 11.6.1987
for which auction had been granted in
favour of the petitioner. On the total
amount paid by the petitioner for the said
area (which included the interest paid to
the Kanpur Development Authority) the
stamp duty determined by the Respondent
no.3 came to about Rs. 84 lacs and has
already been paid.

 7. In the backdrop of the aforesaid
facts I now proceed to decide the issues as
summarized by me above.

 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 to section 33 of the Act
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makes it clear that no action can be taken
under section 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 of section 33(4) of the Act
could not be attracted. The second proviso
to section 33 of 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 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 under
section 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 per
section 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 in section 40 of 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 of section 33(1) of the Act
could not have been attracted. In the case
of
R.
A.
Remington
vs.
Deputy
Commissioner & Collector, Pithoragarh
1966 A.L.J. 514 the Apex Court has held
that the authorities have no power under
section 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
of section 33 (1) of the Act, has force.
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 10. For deciding the third issue that
the document dated 11.6.1987 would not
be chargeable with stamp duty as no
rights pertaining to the land in question
had been transferred in favour of the
petitioner, what is to be considered for
determining the nature of the document is
not the title of the document, but its
contents. It is true that the document in
question was titled as "agreement to
lease" but since no proprietary rights had
been transferred in favour of the petitioner
and only the possession had been handed
over to the petitioner with permission to
raise construction along with a large
number of stipulations and conditions as
well as contingencies on the occurrence of
which, even the agreement itself could be
terminated, and also the fact that a further
provision had been made in the said
document/agreement for execution of
lease deed on a future date, as such in my
view the same could not have been treated
in law as an agreement to lease but merely
as a license. The Apex Court in the case
of Associated Hotels of India Ltd. vs.
R.N.Kapoor A.I.R.1959 SC 1264 has held
that "it is not the form but substance of
the document has to be seen to gather the
intention of the parties for determining
whether the document/transaction is a
lease or licence." For determining the
same, what was held to be considered
was:
 "(1) To
ascertain
whether
a
document creates a licence or lease, the
substance of the document must be
preferred to the form;
 (2) the real test is the intention of
the parties whether they intended to create
a lease or a licence;
 (3) if the document creates an
interest in the property, it is a lease; but, if
it only permits another to make use of the
property, of which the legal possession
continues with the owner, it is a licence;
and
 (4) if under the document a party
gets exclusive possession of the property,
prima-facie, he is considered to be a
tenant;
but
circumstances
may
be
established which negative the intention
to create a lease."

 11. In the case of ICICI vs. State of
Maharashtra JT 1999(8) 233, while
dealing with a case of an agreement to
create a lease in future and the person
having been given an authority only to
enter upon the land for the purposes of
erecting a building or buildings for the
purposes of housing its offices and no
other purpose and until the grant of a
lease, and the document gave only a right
to use the property in a particular way or
under certain terms, while it remains in
possession and control of the owner, it
was held that such document would be a
licence.

12. In the present case also, the
document in question refers to creation of
lease in future. The possession had been
handed over on stipulation of a large
number of conditions and contingencies
mentioned
in
the
agreement.
No
proprietary right had been transferred and
no interest on the land had been conveyed
when the petitioner was put in possession
and
was
allowed
only
to
make
constructions. The terms and conditions
show that the land remained in the
ownership of the Kanpur Development
Authority. As such in my view, the
document dated 11.6.1987 could not be
taken to be a lease and no such stamp
duty could be chargeable as no right
pertaining to the land in question had
been
transferred
in
favour
of
the
petitioner.
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 13. Now we come to the last
question with regard to the imposition of
penalty. Learned counsel for the petitioner
has urged that the petitioner was always
ready and willing to pay stamp duty as
and when the same was determined or
called for from the petitioner. The
document dated 11.6.1987 was executed
between the petitioner and the Kanpur
Development Authority. It was only in
October,
1994
that
the
Kanpur
Development Authority itself made a
complaint to the District Magistrate that
the agreement (which was signed by them
also) had been under-stamped. It was on
such
complaint
that
the
Additional
District Magistrate summoned the original
document from the Kanpur Development
Authority. On receipt of the notice dated
14.11.1994 and immediately after giving
a reply on 29.11.1994, the petitioner made
a provisional deposit of Rs. 60 lacs on
28.12.1994. As such the submission of the
petitioner has force, that had the petitioner
been informed earlier that any stamp duty
is to be paid on the agreement executed
on 11.6.1987, the petitioner would have
paid
the
same.
According
to
the
petitioner, they were not liable to pay any
stamp duty till the lease deed was
executed in their favour, still a deposit of
Rs.60 lacs had been made by them and
thereafter in pursuance of an interim order
granted by this Court, they have deposited
a further amount of Rs. 6 lacs towards
stamp duty, which has not been denied by
the learned Standing Counsel. As already
stated above, the dispute between the
petitioner and the Kanpur Development
Authority with regard to the area of land
to be transferred and the final price
remained pending besides the suit relating
to the said land which was pending before
the Civil Courts at Kanpur. All such
disputes were resolved only in November,
1995 and it was only then that in 1996
that the Kanpur Development Authority
for the first time, wrote to the Additional
District Magistrate that the lease deed
between the petitioner and the Kanpur
Development Authority could now be
executed for a certain reduced area and
for a reduced amount than that shown in
the
agreement
in
question
dated
11.6.1987. Thus it cannot be said that any
finality regarding the execution of the
lease deed had been arrived at the time
when the impugned order dated 6.2.1995
had been passed by Additional District
Magistrate (F&R), Respondent no.3, or
when the order dated 25.2.1995 had been
passed by CCRA, Respondent no.2. By
order dated 6.2.1995 the Additional
District Magistrate had imposed a penalty
of Rs.50 lacs and odd which had been
reduced by the CCRA, Respondent no. 2,
to about Rs. 42 lacs and odd, after taking
into consideration that the area of which
possession had been delivered to the
petitioner, had been substantially reduced
from 6910 sq. meters to 5974 sq. meters.
It was itself stated in the impugned order
dated 25.2.1995, that the penalty amount
would be subject to the final outcome of
the decision of the Civil Court or under
the arbitration clause, and the penalty
amount and stamp duty paid would
accordingly be adjusted in the background
of the final decision. Thus, in the
circumstances, when the lease deed had
not even been executed and the final
decision with regard to the price and area
of the land for which lease deed was to be
executed, had been taken as late as in
November, 1995, and even prior to that
date, the petitioner had immediately at the
first instance of having received the notice
in 1994 itself deposited a provisional
amount of Rs. 60 lacs and thereafter
http://www.allahabadhighcourt.nic.in
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Ram Saran V. Smt. Khazani
251
another sum of Rs. 6 lacs, the bonafide of
the petitioner cannot be doubted. The
penalty amount, which is in question in
the present writ petition, itself could not
be finalized even by the impugned order
dated 25.2.1995 and was left subject to
the decision of the Civil Court as well as
final decision as per the arbitration clause.
When the respondents themselves could
not finalize the amount of stamp duty
which was payable, the petitioner cannot
be said to be at fault for not paying the
same. However, now during the pendency
of this writ petition the lease deed has
been executed on an amount received by
the Kanpur Development Authority that
included the principal amount and the
interest paid thereon. Accordingly, the
stamp duty of about Rs. 84 lacs has
already been paid, which is more than the
stamp duty assessed by the impugned
orders dated 6.2.1995 and 25.2.1995. As
such the dispute relating to payment of
stamp duty has now been resolved only
during the pendency of this writ petition.
Thus the penalty could not be levied prior
to the assessment of the stamp duty on the
document, which was finalised only after
the passing of the impugned orders. The
bonafide of the petitioner, thus, cannot be
doubted and the stamp duty amount when
called for from the petitioner had been
paid by him partially in 1994, and
thereafter finally when the lease deed was
executed.

14. As such in my view, in the facts
and circumstances of this case, and in
view of the discussion here in above,
under law, the penalty could not have
been imposed on the petitioner. The
impugned orders dated 6.2.1995 and
25.2.1995 passed by Respondent nos. 3
and 2 respectively thus deserve to be
quashed.

15.

The
petitioner
has
also
challenged the impugned order dated
25.2.1995 on the ground that the same
could not have been passed on a date prior
to 6.3.1995 fixed for hearing of the case
(as 25.2.1995 was fixed only for deciding
the stay matter); and that the date had
been proponed without notice, merely on
an oral request made by the respondents.
But this argument of the petitioner is not
being gone into in view of the fact that I
have heard and decided the issues
involved in this writ petition on merits
itself.

16. The writ petition is, accordingly,
allowed. The order dated 6.2.1995 passed
by Respondent no.3 and the order dated
25.2.1995 passed by Respondent no.2 are
thus quashed. No order as to cost.
Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2005

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Second Appeal No. 1057 of 2004

Ram Saran
... Defendant-Appellant
Versus
Smt. Khazani. ...Plaintiff-Respondent

Counsel for the Appellant:
Sri Dhan Prakash

Counsel for the Respondent:
Sri Pankaj Mithal

(A) Code of Civil Procedure-S.-149-'Date
of the institution of suit' what is ? either
the date on which plaint presented on
the day on which the court issued
summons-held-in
view
of
amended
provision
the
date
of
issuance
of