# Rais Ahmad v. The Commissioner Allahabad Division, Allahabad and others

- **Citation:** (2006) 2 ILRA 886
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-24
- **Case number:** Civil Misc. Writ Petition No.10944 of 2002
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rais-ahmad-v-the-commissioner-allahabad-division-allahabad-and-others-40612
- **Pages:** 5

## Headnote

Indian Stamp Act 1998-S. 47-A-(9)-
Limitation for taking action-four years-if
the collector takes suo-moto collector
bounds to give finding about market
value circle rate fixed under the Act held
prima facie evidence of market valueOrder based on audit report-subsequent
to impugned order-passed in violation of
principle of Natural justice-illegal.

Held: Para 9 & 10

Under Section 47-A of the Stamp Act as
amended by Act No. 22 of 1998 the
Collector was bound to make enquiry
2 All] Rais Ahmad V. The Commissioner Allahabad Division, Allahabad and others
887
and also to give a finding on the market
value of the property. He has merely
referred to the audit objection in his
order, which is no evidence of market
value and has not applied his mind in
determining
market
value
of
the
property. The circle rate fixed under the
Stamp Act is prima-facie evidence of
market value of the area where the
property is situated.

The mention in the impugned order that
notice had been sent to the petitioner
but no objection was filed appears to be
incorrect.
No
notice
or
opportunity
appears to have been given to the
petitioner and the Collector has based
his judgment on the audit report which
was filed subsequently, as such the
impugned
orders
dated
29.4.2002,
10.9.2001 and the order of reference
passed in violation of the principles of
natural justice are liable to be set aside.
Case law discussed:
1998 (1) U.P.L.B.E.C.-437

## Text

886 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Committee. No explanation was furnished
regarding the non availability of the
original cross-list on record by the
appellant. Therefore, the authenticity of
the Photostat copy of the cross-list
produced by the appellant was also
doubted. The original cross-list could
have given a clue for arriving at a
conclusion as to whether interpolation in
the marks of the selected candidates had
been done subsequent to the preparation
of the original cross-list or not and as to
what were the original marks awarded to
the selected candidates. Shri Gajendra
Pratap Singh was not in a position to rebut
the statement made by the Member of the
Selection Committee that the entire record
of the examinations including the answer
sheets was kept at the residence of the
appellant
from
the
date
of
the
examinations nor could he furnish any
explanation as to who had examined the
copies and why the original cross-list was
not available. The aforesaid facts not only
raise a clear presumption against the
appellant but also establish that the
appellant has failed to dislodge the same
and as such the only inference that can be
drawn is that the findings recorded by the
learned Single Judge cannot be doubted
and deserve to be affirmed. Considering
the magnitude of the malpractice in this
case, there can be no justification for any
indulgence, whatsoever, in this appeal.
The learned Single Judge has been lenient
while dealing with the appellant as we are
of the considered opinion that it was a fit
case for issuing directions for his criminal
prosecution. At this juncture, Shri Verma
suggested that this Court may even issue
such directions. Considering the facts and
circumstances of the case and taking into
account the subsequent developments that
the appellant has already been put under
suspension
and
the
disciplinary
proceedings have been initiated against
him, we are not inclined to issue direction
for his criminal prosecution. However, it
will be open for the High Court on the
administrative side to take recourse to
such proceedings.

60. In view of the above, we do not
find any force in these Special Appeals.
They are accordingly dismissed. Interim
order passed in Special Appeal No. 640 of
2006, staying the recovery of the cost
stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.10944 of 2002

Rais Ahmad

...Petitioner
Versus
The Commissioner Allahabad Division,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri Haider Hussain

Counsel for the Respondents:
C.S.C.

Indian Stamp Act 1998-S. 47-A-(9)-
Limitation for taking action-four years-if
the collector takes suo-moto collector
bounds to give finding about market
value circle rate fixed under the Act held
prima facie evidence of market valueOrder based on audit report-subsequent
to impugned order-passed in violation of
principle of Natural justice-illegal.

Held: Para 9 & 10

Under Section 47-A of the Stamp Act as
amended by Act No. 22 of 1998 the
Collector was bound to make enquiry
2 All] Rais Ahmad V. The Commissioner Allahabad Division, Allahabad and others
887
and also to give a finding on the market
value of the property. He has merely
referred to the audit objection in his
order, which is no evidence of market
value and has not applied his mind in
determining
market
value
of
the
property. The circle rate fixed under the
Stamp Act is prima-facie evidence of
market value of the area where the
property is situated.

The mention in the impugned order that
notice had been sent to the petitioner
but no objection was filed appears to be
incorrect.
No
notice
or
opportunity
appears to have been given to the
petitioner and the Collector has based
his judgment on the audit report which
was filed subsequently, as such the
impugned
orders
dated
29.4.2002,
10.9.2001 and the order of reference
passed in violation of the principles of
natural justice are liable to be set aside.
Case law discussed:
1998 (1) U.P.L.B.E.C.-437

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties.
This writ petition is preferred against
the order of reference dated 22.11.1999
made by the Sub-Registrar I, Chail,
Allahabad and orders dated 29.4.2000 and
10.9.2001 passed by the Additional
Collector, Sadar, Allahabad and the
Commissioner
Allahabad
Division,
Allahabad
respectively
appended
as
Annexures 2, 3 and 5 respectively to the
writ petition.

2. The case of the petitioner is that
one Hira Lal resident of Mundera Bazar,
Allahabad was the owner of House No. 8
(New No. 12), Bara situate in the New
Market, Bamrauli, Pargana & Tehsil
Chail,
Allahabad.
He
executed
a
registered sale-deed on 28.11.1994 in
favour of the petitioner Rais Ahmad for a
sale consideration of Rs. 3,60,000/- and
paid Rs. 66,000/- as stamp duty on the
valuation of Rs. 4,55,000/-. The sale-deed
executed was in respect of a construction
said to be 45 to 50 years old consisting of
4 Kotharies 8 feet X 8 feet; one thatched
(Khaprail) verandah 10 feet X 15 feet; 2
thatched (Khaprail) Kotharis 10 feet X 15
feet; and Latrine, Bathroom and Sehan.
The annual assessment of the construction
was Rs. 1320/-.

3. The Collector, Allahabad had
fixed the market value at circle rate of the
said property for the purposes of stamp
duty and valuation of the property itself
according to the rates given in Annexure
1 to the writ petition. According to the
aforesaid
notification
appended
as
Annexure 1 to the writ petition though the
value of the property at the circle rate of
Rs.600/- per square meter comes to Rs.4
Lacs but the petitioner paid stamp duty on
the valuation of Rs.4,55,000/- in order to
avoid any complication. The stamp duty
paid on the valuation of Rs.4,55,000/-was
Rs.66,000/-.

4. It is submitted by the learned
counsel for the petitioner that after the
sale-deed was executed the name of the
petitioner was recorded in the revenue
records in accordance with law after due
publication
in
newspapers
but
no
objection whatsoever was raised by the
authority concerned. The Sub-Registrar,
however, made a Reference to the
Collector for enquiry on 22.11.1999 after
a gap of more than 4 years of the
execution
of
sale-deed
on
wholly
incorrect facts alleging that there was
deficiency of Rs. 96,947.50p in the stamp
duty without showing the valuation of the
property and the stamp duty paid thereon
showing a deficiency of Rs. 96,947.50p. It
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
is urged that the Additional Collector,
Sadar, Allahabad without issuing any
notice to the petitioner and without
inviting any objection or hearing the
petitioner, approved the report of the SubRegistrar
on
wholly
irrelevant
consideration without making any inquiry
as required under Rules 340 (3), 341, 346,
347, 348, 349 and 350 of the Stamp Act
and incorrectly mentioned in the order
that notice was sent to the petitioner but
he has not filed any objection. The
petitioner has vehemently denied the
allegations as wholly incorrect.

5. Aggrieved by the aforesaid order
the petitioner filed a revision under
Section 56 of the Stamp Act before the
Commissioner,
Allahabad
Division,
Allahabad wherein specific ground taken
was that the sale-deed was executed on
28.11.1994 but the Reference was made
on 28.11.1999, i.e., after a gap of more
than 4 years. It was also a ground taken
by the petitioner in the revision that no
notice whatsoever was served upon him
and the order was passed by the Collector
without jurisdiction and without giving
any opportunity of hearing to the
petitioner. The petitioner also took a
ground
regarding
valuation
of
the
property at the circle rate of market value.
The learned counsel for the petitioner has
relied upon Section 47-A of the Stamp
Act as applicable in the State of U.P.,
which provides as under: -

"The Collector may also, suo muto,
or on a reference from any Court or from
the Chief Inspector of Stamps Uttar
Pradesh or any officer of the Stamp
Department of the Board of Revenue
within four years from the date of
registration of any instrument mentioned
in Rule 340, call for and examine the
instrument for the purpose of satisfying
himself as to the correctness of the market
value of the property forming the subjectmatter thereof and shall follow the same
procedure as laid down in Rules, 347,
349, 350 and 351 and, after taking such
action as may be necessary, return the
instrument to the authority from which it
was received."

6. On the basis of the aforesaid
provisions of Section 47-A as amended by
Act No. 22 of 1998 w.e.f. 1.9.1998 it is
urged that the Collector has failed to
make any enquiry as required under the
law. By amendment in Section 47-A a
proviso has been added as under: -

"Provided
that
with
the
prior
permission of the State Government and
action under this sub-section may be
taken after a period of 4 years from the
date of registration of the instrument on
which duty is chargeable on the market
value of the property."

7. It is further submitted by the
learned counsel for the petitioner that in
the instant case the Collector on the
reference of the Sub-Registrar took
cognizance after four years of the
execution of the sale-deed but without
obtaining any permission from the
State Government and thus the reference
as well as the order of the Collector is
wholly illegal and without jurisdiction.
Reliance in this regard has been placed on
a Full Bench decision of this Court
rendered in Girjesh Kumar Srivastava &
another Vs State of U.P. & Others,
(1998) 1 U.P.L.B.E.C. 437, wherein it is
held that the limitation of four years
contained in Section 47-A (4) applies to
action
which may be initiated by
Collector and not to reference from any
2 All] Rais Ahmad V. The Commissioner Allahabad Division, Allahabad and others
889
Court or authorities enumerated therein.
Starting point of limitation is registration
of instrument and Rule 346 cannot be
read in isolation but has to be read with
Rule 352. Rule 346 cannot change the
meaning of Section 47-A (4).

This point is dealt with in Paragraph
10 of the decision as under: -

"10. There is no dispute from either
side that the starting point of limitation is
the date of registration of the instrument
and the period of limitation is four years.
According to learned Chief Standing
Counsel if a reference from any Court or
Commissioner
of
Stamps
or
Addl.
Commissioner of Stamps or a Dy.
Commissioner of Stamps or any officer
authorized by the Board of Revenue in
that behalf is made within four years from
the date of registration of the instrument,
whether any action is taken by the Court
or not, the proceedings would be within
limitation. Shri Rajiv Joshi, learned
counsel for the applicants has, on the
other hand, contended that the limitation
of four years is for the Collector to initiate
action and the date on which a reference
is made by a Court or authorities
enumerated in the opening part of subsection (4) of Section 47-A is irrelevant.
The
question
which
arises
for
consideration is whether the period of
four years qualifies the action of the
Collector or the making of reference.
Under Sub-section (1) of Section 47-A the
registering officer is required to make a
reference to Collector before registering
the instrument, while under sub-section
(2) a discretion has been given to him to
register the instrument and then make a
reference
to
the
Collector
for
determination of market value. In normal
course of events this reference would be
made immediately after registering the
instrument and, therefore, the enquiry
under
sub-section
(3)
is
likely
to
commence soon as the persons in whose
favour the instrument has been executed
would forthwith come to know about the
reference and would be interested to get
the matter concluded. In the first case the
instrument would remain unregistered and
in the second case he will not get back the
instrument after registration on account of
it having been referred to the Collector.
Therefore, in cases covered by subsection (1) and sub-section (2) at least the
factum
of
reference
would
be
immediately known to the person in
whose
favour
instrument
has
been
executed and he is bound to take all
proceedings expeditiously in order to
secure his title or get the benefits of the
instrument. Under Sub-section (4) power
has been conferred on the Collector to call
for and examine the instrument after it has
been registered for the purpose of
satisfying himself as to the correctness of
the market value of the property which is
subject of such instrument and the duty
payable thereon. The action can be taken
either suo motu or on a reference from
any Court or any one of the authorities
enumerated in the sub-section. In our
opinion, the language of the sub-section
shows that the period of four years
qualified the action which may be taken
by the Collector. If the interpretation
suggested by learned Chief Standing
Counsel was correct, the sub-section
would have read like this:

"The Collector may, suo motu or on
a reference from any Court or from the
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
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
that behalf made within four years from
the date of registration of any instrument."

8. The learned Standing Counsel has
denied the assertions made by the learned
counsel for the petitioner and states that
there has been an amendment in the Act
by which the limitation is now eight years
instead of four years and that the
Collector has rightly accepted the auditors
report for the purpose of market value.
The provisions of Stamp Act do not
empower auditors to determine market
value or stamp duty payable under the
Stamp Act.

CONCLUSIONS

9. Under Section 47-A of the Stamp
Act as amended by Act No. 22 of 1998
the Collector was bound to make enquiry
and also to give a finding on the market
value of the property. He has merely
referred to the audit objection in his order,
which is no evidence of market value and
has not applied his mind in determining
market value of the property. The circle
rate fixed under the Stamp Act is primafacie evidence of market value of the area
where the property is situated. No reasons
have been given in the impugned order
for holding market value above the circle
rate. From the language of the Subsection it is not possible to hold that the
period
of four years qualifies the
reference made by the authorities of the
Stamp Department and this question has
been decided in the Full Bench decision
in Girjesh Kumar Srivastava (Supra).

10. The mention in the impugned
order that notice had been sent to the
petitioner but no objection was filed
appears to be incorrect. No notice or
opportunity appears to have been given to
the petitioner and the Collector has based
his judgment on the audit report which
was filed subsequently, as such the
impugned
orders
dated
29.4.2002,
10.9.2001 and the order of reference
passed in violation of the principles of
natural justice are liable to be set aside.

11. For these reasons the petition is
allowed and the impugned orders are
quashed. No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 1678 of
2006

Pradeep Kumar & others
...Applicants
Versus
The State of U.P. and another

 ...Opposite Parties

Counsel for the Applicants:
Sri Ram Babu Sharma

Counsel for the Opposite Parties:
Sri Tahabin Islam
Sri M.K. Gupta
A.G.A.

Code
of
Criminal
Procedure-S-204Summoning order-Power of Magistrateoffence
under
section
147/148/149/323/504/506
IPCdisclosed from statement, under section
200 and 202-held Magistrate can not
travel beyond that independent witness
not examined have no any substance
unless
prejudice
caused
to
the
accused/applicant.

Held: Para 10