# Ramesh Chandra Verma v. Collector Barabanki & Ors

- **Citation:** (2023) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Writ C No. 1003201 of 2011
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-verma-v-collector-barabanki-ors-49601
- **Pages:** 4

## Headnote

A. Civil Law - Indian Stamp Act, 1899 -
Instrument
Not
Duly
Stamped
-
Limitation, S. 33 (5) Proviso - as per
proviso to Section 33 (5) of the Act, no
action under sub section (4) or sub section
(5) can be taken by the authorities after a
period of four years from the date of
execution of the instrument - only saving
in the second proviso to section 33(5)
(Para 8)

B. Civil Law - Indian Stamp Act, 1899 -
Lease executed on 26.09.2002 - notice
dated 01.01.2010 issued in terms of S. 47A r/w Ss 33/40 of Indian Stamp Act -
objections taken by petitioner pertaining
to limitation - objections pertaining to
limitation rejected primarily on the ground
that the document in question being a
lease under Section 2(16) would amount
to an instrument as defined under Section
2(14) of the Act and would therefore be
chargeable to duty in terms of section
2(6) and section 3 of the Act particularly
since instrument was executed in India in
terms of section 17 of the Act - Held -
notice has been issued after a period of
ten years from the date of execution of
instrument of transfer and would be
barred
under
aforesaid
provisions
-
opposite parties have not taken any such
ground that any prior permission from the
State Government has been taken before
1 All. Ramesh Chandra Verma Vs. Collector Barabanki & Ors.
165
issuance of the notice dated Ist January,
2010 in terms of 2nd proviso to Section
33(5) of the Act - since initial notice itself
was
incompetent,
no
other
issue
is
required to be adjudicated (Para 9, 10)

Allowed. (E-5)

List of Cases cited:

Som Dutt Builders Ltd. Vs St.of U.P. & ors.
reported in 2005(23) Lucknow Civil Decisions
1030

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Having heard the learned counsel
for the petitioner, Sri H.R. Misra, learned
Senior Advocate assisted by Sri K.M.
Misra and Sri Swatantra Pratap Singh,
learned counsel for the petitioners and the
learned Standing Counsel, the Court is
definitely of the view that when the
Tehsildar had already earlier issued a
certificate and was only issuing a fresh
certificate "On-line" then he could not
enter into the merits of the matter. The
jurisdiction to verify the Caste Certificate
and as to whether it should be validated
or in-validated lay with the Caste
Scrutiny
Committee
under
the
Government Order dated 28.02.2011. The
authority i.e. the Tehsildar, which had
earlier issued the Caste Certificate had no
jurisdiction to cancel the same except
when the Caste Certificate had been
obtained
by
playing
fraud
or
by
concealing any relevant fact. In the
instant case when the Tehsildar had
cancelled the Caste Certificate issued by
him on 27.11.2014, there was no finding
in the impugned order that the earlier
certificate was obtained by the petitioner
by playing fraud on any authority. As a
result,
the
impugned
order
dated
26.02.2021, so far as its relates to the
petitioner is quashed and is set aside.

8. With these observations the writ
petition stands allowed.

9. The Tehsildar shall issue the
"Online" Certificate forthwith. If, however,
the Tehsildar doubts the caste or the tribe of
the petitioner he may refer the matter to the
District Level Caste Scrutiny Committee,
Maharajganj.
----------
(2023) 1 ILRA 164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.01.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 1003201 of 2011

Ramesh Chandra Verma ...Petitioner
Versus
Collector Barabanki & Ors. ...Respondents

Counsel for the Petitioner:
Adnan Ahmad

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Instrument
Not
Duly
Stamped
-
Limitation, S. 33 (5) Proviso - as per
proviso to Section 33 (5) of the Act, no
action under sub section (4) or sub section
(5) can be taken by the authorities after a
period of four years from the date of
execution of the instrument - only saving
in the second proviso to section 33(5)
(Para 8)

B. Civil Law - Indian Stamp Act, 1899 -
Lease executed on 26.09.2002 - notice
dated 01.01.2010 issued in terms of S. 47A r/w Ss 33/40 of Indian Stamp Act -
objections taken by petitioner pertaining
to limitation - objections pertaining to
limitation rejected primarily on the ground
that the document in question being a
lease under Section 2(16) would amount
to an instrument as defined under Section
2(14) of the Act and would therefore be
chargeable to duty in terms of section
2(6) and section 3 of the Act particularly
since instrument was executed in India in
terms of section 17 of the Act - Held -
notice has been issued after a period of
ten years from the date of execution of
instrument of transfer and would be
barred
under
aforesaid
provisions
-
opposite parties have not taken any such
ground that any prior permission from the
State Government has been taken before
1 All. Ramesh Chandra Verma Vs. Collector Barabanki & Ors.
165
issuance of the notice dated Ist January,
2010 in terms of 2nd proviso to Section
33(5) of the Act - since initial notice itself
was
incompetent,
no
other
issue
is
required to be adjudicated (Para 9, 10)

Allowed. (E-5)

List of Cases cited:

Som Dutt Builders Ltd. Vs St.of U.P. & ors.
reported in 2005(23) Lucknow Civil Decisions
1030

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner and learned State Counsel
appearing on behalf of opposite parties.

2. Petition has been filed assailing
notice dated Ist January, 2010 issued under
Sections 33/40 of the Indian Stamp Act
1899, order dated 31st August, 2010 passed
under section 47-A/33 and order dated 30th
April, 2011 passed in appeal under Section
56 of the Act.

3. Learned counsel for petitioner
submits that petitioner was lessee of a shop
No.2, the lessor of which was Zila
Panchayat, Barabanki on monthly rent of
Rs. 187.50 per month for a period of three
years. It is submitted that lease agreement
was executed between the parties on 26th
September, 2002 and quite belatedly
thereafter notice dated Ist January, 2010
was issued to the petitioner under Section
47-A read with sections 33/40 of the Act
requiring petitioner to show cause why
proceedings may not initiated against him
for evading stamp duty.

4. Learned counsel for petitioner
submits that upon receipt of notice,
objection thereto was filed by petitioner
specifically taking a plea that proceedings
were barred by limitation and further that
even if stamp duty was applicable, the
same could have been determined only on
the basis of annual rental value of the
property and not the area of property in
question. It has been submitted that
aforesaid objections are clearly indicated in
the order passed under Section 47-A and
while the second objection has been clearly
ignored by the assessing authority, the first
issue has also been decided against
petitioner on the ground that instrument in
question being an instrument as envisaged
under Section 2(14) of the Act would be
chargeable in terms of Section 2(6) of the
Act since it is a document of lease in terms
of section 2(16) of the Act and therefore no
time frame has been indicated in the Act for
initiating the proceedings.

5. Learned counsel for petitioner
submits that orders impugned have been
passed on a wrong appreciation of the
provisions of Act particularly in view of
proviso to section 33(5) of the Act which
specifically provides that no action under
Sub Section (4) or sub Section (5) of
Section 33 can be taken after a period of
four years from the date of execution of
instrument. It is submitted that only saving
clause is under the second proviso where
action is permissible after prior permission
of the State Government after a period of
four years but the said proceedings are also
required to be initiated before a period of
eight years from the date of execution of
instrument. It is thus submitted that the
authorities have completely ignored the
provisions of Section 33(4) and (5) of the
Act and the proviso thereunder to hold that
proceedings were within limitation.

6. Learned State Counsel has refuted
submissions advanced by learned counsel
for
petitioner
with
submission
that
166 INDIAN LAW REPORTS ALLAHABAD SERIES
document in question amounted to an
instrument of lease as defined under
Section 2(16) of the Act and would
therefore be an instrument which is
chargeable to duty in terms of Sections
2(14) and (6) of the Act. It is further
submitted that since there is nothing to the
contrary in the instrument of lease, stamp
duty has been rightly imposed upon the
petitioner being a lessee in terms of section
29(C) of the Act.

7. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, it is admitted
fact that instrument in question is that of
lease executed on 26th September, 2002 on
the basis of which notice dated Ist January,
2010 was issued in terms of section 47-A
read with sections 33/40 of Indian Stamp
Act. The order impugned under Section 47A also records the objections taken by
petitioner before the authority concerned in
which objection pertaining to limitation
also finds a mention. By means of
impugned order dated 31st August, 2010,
the objections pertaining to limitation have
been rejected primarily on the ground that
the document in question being a lease
under Section 2(16) would amount to an
instrument as defined under Section 2(14)
of the Act and would therefore be
chargeable to duty in terms of section 2(6)
and section 3 of the Act particularly since
instrument was executed in India in terms
of section 17 of the Act. It is evident from a
perusal impugned order that it has not at all
adverted to section 33(4) and (5) of the Act
as inserted by U.P. amendment vide
U.P.Act No.6 of 1980 (with effect from
21st November, 1979). The aforesaid
provisions are as follows:-

"33 (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 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 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.]"

8. From a perusal of the aforesaid
provisions, it is evident that as per proviso
to Section 33 (5) of the Act, no action
under sub section (4) or sub section (5) can
be taken by the authorities after a period of
four years from the date of execution of the
instrument. The only saving has been
indicated in the second proviso to section
33(5) but the same would be inapplicable in
the present case particularly when it is not
the case of opposite parties that any prior
permission of the State Government has
been taken. As such it is evident that the
1 All. Abaad Ali Vs. State of U.P. & Ors.
167
matter would be covered only by first
proviso to Section 33(5) of the Act.

9. In the present case, it is noticeable
and admitted between the parties that the
instrument
of
lease
is
dated
26th
September, 2002 whereas notice under
section 47-A read with Sections 33/40 of
the Indian Stamp Act has been issued on
31st January, 2010. Clearly the notice has
been issued after a period of four years
from the date of execution of instrument of
transfer and would be barred under
aforesaid provisions.

10. In the counter affidavit filed, the
opposite parties have not taken any such
ground that any prior permission from the
State Government has been taken before
issuance of the notice dated Ist January,
2010 in terms of 2nd proviso to Section
33(5) of the Act.

11. A co-ordinate Bench of this Court
in the case of Som Dutt Builders Limited
versus State of U.P. and others reported in
2005(23) Lucknow Civil Decisions 1030
has particularly adverted to the aforesaid
provisions and has also come to the
conclusion on the same issue.

12. In view of aforesaid, since it is
evident that in terms of proviso to Section
33(5) of the Act, the initial notice itself was
incompetent, no other issue is required to
be adjudicated.

13.

Consequently
in
view
of
discussion
made
herein
above,
the
proceedings initiated vide notice dated Ist
January, 2010 under Section 47-A read with
Sections
33/40
of
the
Act
being
incompetent, the notice dated Ist January,
2010, order dated 31st August, 2010 passed
under section 47-A and order dated 30th
April, 2011 passed under section 56 of the
Act are set aside.

14. Resultantly, the petition succeeds
and is allowed. Parties to bear their own
costs.

15. It has been submitted by learned
counsel for petitioner that in pursuance of
impugned orders, one third amount has
already been deposited before the authority
concerned. In view of fact that petition is
being allowed, liberty is granted to
petitioner to seek refund of the amount so
deposited. In case such an application is
made, the authority concerned is directed to
refund the excess amount deposited within
a period of three months from the date a
copy of this order is produced before the
authority concerned along with application.
----------
(2023) 1 ILRA 167
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.01.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 130 of 2023

Abaad Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Danish, Mohd. Mansoor, Syed
Abul Kasim Zaidi

Counsel for the Respondents:
C.S.C., Gyanendra Mishra

(A)
Civil
Law
-
The
Uttar
Pradesh
Panchayat Raj Act, 1947 - Section 12-C -
Application for questioning the elections -
an order for a recount touches upon the
secrecy of ballot, it should not be made