# Moradabad Bareilly Expressway Ltd v. State of U.P. & Ors

- **Citation:** (2025) 4 ILRA 537
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-28
- **Case number:** Writ C No. 41272 of 2024
- **Bench:** Piyush Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moradabad-bareilly-expressway-ltd-v-state-of-u-p-ors-53160
- **Pages:** 6

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - Indian Stamp Act, 1899 -
Sections 3, 19(a), 33, 33(4) & 33(5) - Writ
Petition - challenging the impugned order by
which collector rejected the objection of
limitation in a stamp deficiency case - a
concession agreement (instrument) executed
between the petitioner and the NHAI, in year
2010, for maintenance of NH-24 - Proceeding
initiated by the St. authorities for deficiency of
stamp duty - case was registered, in 2020 -
order passed in 2022, determining deficiency in
stamp duty payable by the petitioner -
petitioner filed a recall application - rejected -
writ petition - matter was remanded to the
Collector for fresh adjudication, with liberty
granted to the petitioner to raise plea of
limitation and jurisdiction - impugned order
passed - rejecting the petitioner's contention
regarding limitation - present writ petition -
court finds that, the legislature had not
538 INDIAN LAW REPORTS ALLAHABAD SERIES
extended limitation beyond 8 years from the
date
of
execution
of
the
instrument
-
agreement executed in 2010, - permission and
issuance of notice done in 2020 which was
beyond the statutory period of limitation - held,
proceedings were without jurisdiction - writ
petition allowed - direction issued to the St.
authorities to refund the excess amount
deposited by the petitioner along with interest
@ 4% within four weeks.

Writ Petition Allowed. (E-11)

List of referred Cases: -

## Text

4 All. Moradabad Bareilly Expressway Ltd. Vs. State of U.P. & Ors.
537

12. In view of the above, without
examining the merits of the claim of the
petitioner as Bhumidhar with transferable
rights, it is held that Sub Divisional Officer
has no jurisdiction to grant such a
declaration
on
administrative
side,
however, he is certainly competent to grant
such a declaration in appropriate statutory
proceedings under Section 144 of the Code,
2006.

MANDAMUS
CANNOT
BE
ISSUED:-

13. As far as writ of mandamus is
concerned,
In
Oriental
Bank
of
Commerce Vs. Sunder Lal Jain and
another (2008) 2 SCC 280, the Apex
Court,
after
referring
to
its
earlier
judgments in Bihar Eastern Gangetic
Fisherman Cooperative Society Ltd. Vs.
Sipahi Singh (1977) 4 SCC 145; Lekhraj
Sathramdas Lalvani Vs. N.M. Shah, AIR
1966 SC 334 and Dr. Uma Kant Saran
Vs. State of Bihar 1993(1) SCC 485,
observed that a writ of mandamus can be
granted only in a case where there is a
statutory duty imposed upon the officer
concerned and there is a failure on the part
of that officer to discharge the statutory
obligation."

14. The above exposition of law
makes it clear that writ of mandamus
cannot be issued on mere asking unless the
pre-conditions are satisfied. Such welldefined conditions are not satisfied in the
present case.

15. Since it has been found that the
Sub Divisional Officer has no statutory
competence to grant a declaration of
Bhumidhari rights on administrative side,
no writ of mandamus, as prayed for, can be
issued. However, the petitioner is always at
liberty to institute statutory proceedings
under Section 144 of the U.P. Revenue
Code, 2006.

16. The writ petition is, accordingly,
disposed of with the aforesaid liberty.
----------
(2025) 4 ILRA 537
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2025

BEFORE

THE HON'BLE PIYUSH AGARWAL, J.

Writ C No. 41272 of 2024

Moradabad Bareilly Expressway Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant Mishra, Tarun Agrawal

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 - Indian Stamp Act, 1899 -
Sections 3, 19(a), 33, 33(4) & 33(5) - Writ
Petition - challenging the impugned order by
which collector rejected the objection of
limitation in a stamp deficiency case - a
concession agreement (instrument) executed
between the petitioner and the NHAI, in year
2010, for maintenance of NH-24 - Proceeding
initiated by the St. authorities for deficiency of
stamp duty - case was registered, in 2020 -
order passed in 2022, determining deficiency in
stamp duty payable by the petitioner -
petitioner filed a recall application - rejected -
writ petition - matter was remanded to the
Collector for fresh adjudication, with liberty
granted to the petitioner to raise plea of
limitation and jurisdiction - impugned order
passed - rejecting the petitioner's contention
regarding limitation - present writ petition -
court finds that, the legislature had not
538 INDIAN LAW REPORTS ALLAHABAD SERIES
extended limitation beyond 8 years from the
date
of
execution
of
the
instrument
-
agreement executed in 2010, - permission and
issuance of notice done in 2020 which was
beyond the statutory period of limitation - held,
proceedings were without jurisdiction - writ
petition allowed - direction issued to the St.
authorities to refund the excess amount
deposited by the petitioner along with interest
@ 4% within four weeks.

Writ Petition Allowed. (E-11)

List of referred Cases: -

1. Som Dutt Builders Limited Vs The St. of UP &
ors.- 2005 (3) ESC 1939 (All.),

2.
Harbhajan
Singh
Vs
Commissioner,
Moradabad Division, Moradabad & ors.- 2022(5)
ADJ 71,

3. M/S Rewa Tollway Pvt. Ltd. Vs The St. of
M.P. & ors.-

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

1. Heard Shri Tarun Agrawal,
learned counsel for the petitioner and Shri
A.C. Mishra, learned ACSC for the State -
respondents.

2. The instant writ petition has been
filed against the impugned order dated
16.10.2024
passed
by
the
Collector,
Moradabad.

3. Learned counsel for the petitioner
submits that a concession agreement was
executed between the petitioner and the
National Highway Authority of India
(NHAI) on 19.02.2010 for design, build,
finance, operate and transfer (DBFOT) for
maintenance and management of NH - 24,
from kms. 148 to kms. 262 (approximately
114 kms.) on Moradabad - Bareilly
section. In the year, proceedings under
section 33 of the Indian Stamp Act, 1899
(hereinafter referred to as, 'the Act') were
initiated against the petitioner after getting
the permission from the State Government
and a case was registered against the
petitioner. Thereafter, on 17.08.2022, the
respondent
no.
3
passed
the
order
determining the deficiency of stamp duty
on the petitioner. He further submits that on
18.07.2023, the petitioner filed a recall
application for recall of the order dated
17.08.2022
before
the
Collector,
Moradabad, but the same was rejected vide
order dated 27.07.2023. The said orders
dated 17.08.2022 was assailed before this
Court by filing Writ C No. 45484/2023,
which was allowed by this Court vide order
dated 08.05.2024 and the matter was
remanded to the Collector to decide the
issue afresh and giving liberty to the
petitioner to raise the issue of limitation
and jurisdiction before the Collector. He
further submits that pursuant to the order
dated 08.05.2024 passed by this Court, the
impugned order dated 16.10.2024 has been
passed by the respondent no. 3 rejecting the
ground taken by the petitioner with regard
to limitation.

4. Learned counsel for the petitioner
further
submits
that
admittedly,
the
concession agreement was entered on
19.02.2010 and the proceedings ought to
have been completed within a period of 8
years from the date of execution, i.e.,
18.02.2018. In support of his submission,
he has relied on sub-sections (4) & (5) of
section 33 of the Act and the proviso
attached thereto. He further submits that the
limitation
prescribed
under
the
Act
contemplates
the
proceedings
to
be
concluded within 8 years after getting the
prior sanction from the State Government
from the date of execution. He further
submits that the permission itself was
granted beyond the period of 8 years and
4 All. Moradabad Bareilly Expressway Ltd. Vs. State of U.P. & Ors.
539
therefore, the proceedings are without
jurisdiction. In support of his submissions,
he has placed reliance on the judgements of
this Court in Som Dutt Builders Limited
Vs. The State of U.P. & Others [2005 (3)
ESC 1939 (All.)] and Harbhajan Singh
Vs. Commissioner, Moradabad Division,
Moradabad & Others [2022 (5) ADJ 71].

5. Per contra, learned ACSC supports
the impugned order and submits the issue
in hand is covered by the judgement of the
Apex Court in the case of M/S Rewa
Tollway Private Limited Vs. The State Of
Madhya Pradesh & Others and therefore,
no equity is in favour of the petitioner. He
further submits that it is admitted case of
the petitioner that they are liable for
payment of legitimate stamp duty, but with
ulterior motives, the petitioner has not paid
the same. He further relies upon section 19
(a) of the Act, which contemplates payment
of duty on certain instrument liable to be
increased duty in the U.P. under clause 66
of section 3. He further submits that the
petitioner is duty-bound to pay the
legitimate stamp duty to the State, but
instead of paying the stamp duty, the
petitioner is trying to avoid the same.
He further submits that it is admitted
that the agreement was executed outside
the State of U.P. and therefore, from the
date
of
knowledge
of
the
said
agreement, the limitation shall start
from the said date, instead of from the
date of execution of the instrument.

6. After hearing learned counsel for
the parties, the Court has perused the
record.

7. The only argument raised by the
learned counsel for the petitioner is
with regard to jurisdiction to initiate the
proceedings as well as limitation for
initiating the proceedings. In the case in
hand,
admittedly,
the
concession
agreement, which is the subject matter
of the present proceeding, was executed
on 19.02.2010. The permission was
sought vide letter dated 05.03.2016 and
admittedly, the permission was granted
vide
letter
dated
31.12.2019
and
thereafter, case was registered as Case
No. 00563/2020 and notice was issued
for the first time on 20.02.2020.

8. For better appreciation of the
controversy involved in the instant case,
sub-sections (4) & (5) of section 33,
along with its proviso, are quoted
below:-

"Section 33. Examination and
impounding of instruments.:

(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 Stamp
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 hiself 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:
540 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

9. Bare reading of sub-section (4) of
section 33 of the Act contemplates that
where deficiency in stamp duty paid is
noticed from any instrument, the Collector
may suo motu or on reference from any
other authorities as contemplated under the
Act on behalf of the State call for the
original instrument for the purpose of
satisfying as to the adequacy of the duty
paid thereof. In the event of failure to
produce the original document, sub-section
(5) contemplates that the Collector may
require payment of deficit stamp duty, if
any, together with penalty under section 40
on the copy of the instrument. Further, a
rider has been imposed 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, but in
the event for taking proceedings after four
years, prior permission of the State
Government is required, but before a period
of eight years from the date of execution of
the instrument.

10. In other words, the Legislature, in
its wisdom, has put a rider of prior
permission of the State Government to
make the deficiency of stamp duty on any
instrument within a period of 8 years from
the date of its execution. The proviso
attached to the said section contemplates
that with the prior permission of the State
Government, an action under sub-section
(4) or sub-section (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.

11. In the case in hand, the permission
was granted by the State Government on
31.12.2019 and thereafter, the proceedings
were initiated for the first time by issuing
notice to the petitioner on 20.02.2020.

12. Learned ACSC has tried to cover
the limitation on the basis of the letter
(Annexure No. CA - 1 to the counter
affidavit) that the permission was sought
within
the
time
vide
letter
dated
05.03.2016, the limitation for grant of
permission is within 8 years and therefore,
the action is within the limitation and the
order is within jurisdiction.

13. The said argument appears to be
attractive, but on close scrutiny of subsections (4) & (5) of section 33 of the Act
as well as the proviso attached thereto
clearly shows that the proceedings can be
initiated only with prior permission and the
permission itself was granted after 8 years,
i.e., on 31.12.2019.

14. Sub-sections (4) & (5) of section
33 of the Act as well as the proviso
attached thereto are clear that no action
beyond the period of 4 years or if the action
is to be taken after 4 years from the date of
execution
of
the
instrument,
prior
permission has to be taken, but before 8
years. The intent of the Legislature is clear
that after four years of limitation, if any
action is required to be taken, the same can
only be taken with the prior permission of
the State Government, but before 8 years.
The limitation, at best, can be said to be
4 All. Moradabad Bareilly Expressway Ltd. Vs. State of U.P. & Ors.
541
initiated by issuance of notice within four
or eight years and for any action beyond
the said period, the limitation can not be
extended and if taken, such action is to be
treated as per se illegal and without
jurisdiction.

15. Admittedly, in the case in hand,
the permission was sought on 05.03.2016,
but after getting permission from the State
Government, at least, a notice has to be
issued within the period prescribed from
the date of execution of the instrument, i.e.,
8 years, but in the case in hand, admittedly,
both the permission dated 31.12.2019 as
well as issuance of notice dated 20.02.2020
was beyond the prescribed period of 8
years.

16. Therefore, by any stretch of
imagination, it can be said to be the intent
of the Legislature extending the period
beyond 8 years from the date of execution
of the instrument in question as the
concession agreement was executed on
19.02.2010.

17. The argument of learned ACSC
that from the date of knowledge of the
instrument,
the
limitation
should
be
counted, cannot be accepted as such there
is no provision under the Stamp Act.
Further, if such an argument is accepted,
that will lead to open a flood gate of
litigations as well as uncertainty of
proceeding, which is never the intention
of the Government.

18. This Court, in Som Dutt
Builders Limited (supra) has held as
under:-

"6. 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 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."

19.
The
record
shows
that
permission was granted on 31.12.2019
and thereafter, the case was registered
and for the first time, notice dated
20.02.2020 was issued to the petitioner
and as such, both grant of permission
and notice were issued after the period
of eight years as provided in 2nd
Proviso to sub-section (5) of section 33,
which
are
beyond
the
period
of
limitation.
Therefore,
the
present
proceeding
is
wholly
without
jurisdiction.

20. In view of the aforesaid facts &
circumstances of the case, as also the
law laid down by this Court in the cases
cited above, the impugned order dated
16.10.2024 passed by the Collector,
Moradabad cannot be sustained in the
542 INDIAN LAW REPORTS ALLAHABAD SERIES
eyes of law. The same is hereby
quashed accordingly.

21. The writ petition succeeds and is
allowed.

22.
The
authority
concerned
is
directed to refund any excess amount
deposited by the petitioner along with
interest @ 4% per annum from the date of
its deposit till the date of refund, within a
period of four weeks from the date of
production of a certified copy of this order.
----------
(2025) 4 ILRA 542
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ - A No. 1540 of 2005

Ashok Kumar Seth ...Petitioner
Versus
U.P. Cooperative Federation Ltd. & Ors.
 ...Respondents

Counsel for the Petitioner:
Virendra Misra

Counsel for the Respondents:
R. Siddiqui, Kapil Dev, Shireesh Kumar

A. Service Law - UP Cooperative Societies
Employees Service Regulations, 1975 -
Reg. 85 (i) - Punishment - Disciplinary
proceeding - Principle of natural justice -
Enquiry was not completed by fixing date,
time and place - Enquiry Officer did not
prove the documents available on record
after summoning the same from the office
concerned - Effect - Held, the enquiry
officer did not call upon the witnesses to
prove the documents and at one place, he
has mentioned that photocopy of the
documents are available with him. Thus,
the enquiry report cannot be made the
basis for punishment because the enquiry
officer did not follow the principles of
natural justice by adducing evidence on
record as per Regulation 85(i) of the
Regulations,
1975
-
The
impugned
punishment order cannot be sustained in
the eyes of law as there is complete
departure of procedure prescribed under
Regulations 85(i) and 85(i)(c) of the
Regulations, 1975 by the enquiry officer.
(Para 25, 26 and 27)

Writ petition allowed. (E-1)

List of Cases cited:-

1. St. of UP & ors. Vs Saroj Kumar Sinha; (2010)
2 SCC 772

2.
Chamoli
Distt.
Cooperative
Bank
Vs
Raghunath Singh Ram; (2016) 12 SCC 204

3. Shiv Raj Singh Vs St. of U.P. & ors.; 2018 (5)
ADJ 679 (DB)

4. Roop Narain Pandey Vs U.P. Cooperative
Institutional Service Board & ors.; 2019 (37)
LCD 978

5. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570

6. Smt. Aamina Vs Nagar Palika Parishad,
Pratapgarh & ors.; 2012 (30) LCD 1671

7. Dev Prakash Tewari Vs UP Cooperative
Institutional Service Board, Lucknow & ors.;
(2014) 7 SCC 260

8. Brahmanand Tyagi Vs St. of U.P. & ors.; 2022
(8) ADJ 624

9. St. Bank of India & ors. Vs Narendra Kumar
Pandey; 2013 (2) SCC 740

10. PEPSU Road Transport Corporation Vs Rawel
Singh; 2008 (4) SCC 42

11. Nirmala J Jhala Vs St. of Gujarat and
another;
(2013)
4
SCC
301