# Satya Prakash Singh and another v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-29
- **Case number:** Civil Misc. Writ Petition No. 16843 of 2011
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-singh-and-another-v-state-of-u-p-and-others-42272
- **Pages:** 5

## Headnote

Constitution of India, Article 226-charge
of Additional Stamp duty and fines of
equal amount with 12-1/2 % interest-on
ground during course of inspection-ADM
found ground floor used by Doctor as
clinic-if the son of erstwhile landlord
running clinic-can not effect the user of
building-moreover part of building used
by lawyer, Doctor and C.A. Is a vocation
or occupation requiring special advance
of
education
knowledge
and
skill
predominately of an intellectual rather
physical or manual-J.D.A. declares that
area as residential-considering law of
2 All] Satya Prakash Singh and another V. State of U.P. and others
747
Apex Court building remain residential in
nature-demand
of
additional
stamp
treating commercial-held-illegal-demand
notice-quashed.

Held: Para 22

In view of the aforesaid facts and
circumstances,
I
hold
that
the
authorities below have erred in treating
the ground floor portion of the building
in question to be commercial in nature
for the reason that at one point of time a
doctor's clinic or a pathology lab was
being run from there. It is a part of a
residential building.
Case law discussed:
(2000) 2 SCC 494

## Text

746 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to Sri Vijay Vir Singh vide sale deed
dated 2.7.1969 is taken care of, actual
determination of land in any manner
would make no difference.

11. Now coming to the second
aspect about gift deed said to have been
executed on 19.1.1970, this Court finds
that
Appellate
Authority
has
also
considered this issue very rightly and
aptly. It has found that on the date of
execution of said gift deed, two sons were
minor being six and two years of age.
Regarding one son claim to be major, the
Court found that no evidence whatsoever
was adduced to support it. This finding
has not been challenged and even before
this Court no material has been placed to
show any infirmity therein. The Court
below has found that throughout, the land
said to have been gifted, remained in
possession of Sri Man Vir Singh, who
himself was cultivating the field since his
children were either minor or otherwise
not performing any cultivation. The gift
deed was nothing but has been found to
be a sham transaction.

12. This Court in Yadunath Vs.
State, 1979 AWC 187 has held, if
Prescribed Authority finds that gift in
question is really a sham transaction, and,
that, actual title in the gift property did
not pass to the donee i.e. the tenure-holder
continued
to
remained
in
physical
possession of the gifted property, it would
be justified in ignoring such a gift deed
but not otherwise.

13. In the present case the Appellate
Authority has discussed this aspect and
has recorded a finding that cultivation and
possession of land continued with the
tenure holder and the gift deed was never
acted upon. There is nothing on record in
the present writ petition as also the
pleadings to show that the aforesaid
findings are perverse or contrary to
record.

14. In the circumstances, I do not
find any error apparent on the fact of
record in the impugned orders warranting
interference.

15. The writ petition is devoid of
merit. Dismissed.

16. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 16843 of 2011

Satya Prakash Singh and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Chaturvedi

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-charge
of Additional Stamp duty and fines of
equal amount with 12-1/2 % interest-on
ground during course of inspection-ADM
found ground floor used by Doctor as
clinic-if the son of erstwhile landlord
running clinic-can not effect the user of
building-moreover part of building used
by lawyer, Doctor and C.A. Is a vocation
or occupation requiring special advance
of
education
knowledge
and
skill
predominately of an intellectual rather
physical or manual-J.D.A. declares that
area as residential-considering law of
2 All] Satya Prakash Singh and another V. State of U.P. and others
747
Apex Court building remain residential in
nature-demand
of
additional
stamp
treating commercial-held-illegal-demand
notice-quashed.

Held: Para 22

In view of the aforesaid facts and
circumstances,
I
hold
that
the
authorities below have erred in treating
the ground floor portion of the building
in question to be commercial in nature
for the reason that at one point of time a
doctor's clinic or a pathology lab was
being run from there. It is a part of a
residential building.
Case law discussed:
(2000) 2 SCC 494

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Petitioners are purchasers of two
storied building vide registered sale deed
dated 16.2.2009 for a sale consideration
of Rs. 40 lacs, but for the purposes of
payment
of
stamp
duty
petitioners
disclosed its market value as Rs. 75lacs
and paid stamp duty accordingly.

2. The authorities under the Indian
Stamp Act, 1899 (hereinafter referred to
as an 'Act'), on the report of the SubRegistrar
dated
19.2.2009
drew
proceedings under Section 47-A of the
Act for determination of deficiency in
stamp duty, if any.

3.

The
Additional
District
Magistrate (for short ADM) inspected the
property on 25.8.2009. On the basis of the
above inspection and the report of the
Sub-Registrar the authorities held that the
property is partly in commercial use and
partly
is
of
residential
nature.
Accordingly, the market value of the
ground floor portion of the building was
assessed by treating it to be commercial
for the reason it happened to be a clinic of
a doctor and that of the first floor to be
residential in nature. Thus, deficiency in
stamp duty was determined and an equal
amount of penalty was imposed. Both the
amounts were directed to be recovered
with interest @ 12.5% per mensum.

4. It is against the aforesaid two
orders determining the deficiency in
stamp duty and imposing penalty that the
petitioners
have
invoked
the
writ
jurisdiction of this Court under Article
226 of the Constitution of India.

5. I have heard Sri S.K. Chaturvedi,
learned counsel for the petitioners and Sri
Nimai Das, learned Standing counsel for
the respondents and with their consent
proceeds to decide the petition finally on
the basis of the pleadings exchanged.

6. There is no dispute that the
property was inspected by the ADM
himself on 25.8.2009 in the presence of
petitioner no. 1 and the Lekhpal of the
area. A sketch map of the location of the
property was prepared and placed on
record showing shops in vicinity to the
ground floor of the building in question.
The said inspection was made at the
insistence of the petitioners and in their
presence. Therefore, the map prepared on
the inspection can not be discarded simply
for the reason that it is not accompanied
by any narrative or a report when the
inspection was made by the authorized
officer himself in accordance with Rule 7
of the Uttar Pradesh (Stamp Valuation of
Property) Rules, 1997. However, the said
inspection map is not conclusive of the
fact that the ground floor portion
happened
to
be
a
commercial
establishment or that it existed in a
commercial area.
748 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

7. It has been stated in the writ
petition that under the master plan of the
Jhansi Development Authority the area
where the building is located has been
notified as residential area and therefore
no part of the building can be treated as
commercial. The averments to this effect
made in the writ petition have not been
denied by the respondent in the counter
affidavit. Therefore, the Court is left with
no option but to treat the area as
residential in nature.

8.

In
the
above
facts
and
circumstances the solitary question which
arises for consideration is whether the
ground floor portion of the building
situated in a residential locality and which
at one time was being used as a clinic or a
pathology laboratory by the Doctor son of
the erstwhile owner would be assessable
to market value as a commercial property
for the purposes of realizing stamp duty
on the aforesaid sale deed.

9. Commercial property has not
been defined under the Act but the Rules
in Section 2 (d) explains "commercial
building" as a commercial establishment
or a shop as defined under Section 2 (4)
and (16) respectively of the U.P. Dukan
and Vanijya Adhisthan Adhiniyam, 1962
(hereinafter for short 'Adhiniyam').

10. In view of the above definition
of the commercial building, property
which is covered by the definition of
commercial establishment or shop as
contained in Section 2(4) and (16)
respectively of the Adhiniyam alone shall
be
assessable
to
market
value
as
commercial building. Section 2 (4) of the
Adhiniyam
defines
commercial
establishment to mean any premises, not
being the premises of a factory, or a shop,
wherein any trade, business, manufacture,
or any work in connection with, or
incidental or ancillary thereto, is carried
on for profit and includes a premises
wherein journalistic or printing work, or
business of banking, insurance, stocks and
shares, brokerage or produce exchange is
carried on, or which is used as theater,
cinema,
or
for
any
other
public
amusement or entertainment or where the
clerical and other establishment of a
factory, to whom the provisions of the
Factories Act, 1948, do not apply.

11. The above definition of the
'commercial establishment' can be put in a
simplified manner to mean:-

i) Any premises or a shop wherein
any trade, business, manufacture is
carried on or any work in connection
with, or incidental or ancillary thereto is
carried on for profit;

ii) Such premises includes a premises
wherein journalistic or printing work, or
business of banking, insurance, stocks and
shares, brokerage or produce exchange is
carried on;

iii) Premises which is used as theater,
cinema or for any other public amusement
or entertainment.

iv) Any premises where clerical or
other establishment of a factory to whom
the provisions of Factories Act, 1948 do
not apply. It excludes premises of a
factory.

12. The ground floor portion of the
building in question is certainly not
covered by clause (ii) (iii) and (iv) above
of the definition of the commercial
establishment as referred to above.
2 All] Satya Prakash Singh and another V. State of U.P. and others
749

13. Section 2(16) of the Adhiniyam
defines 'shop' to mean any premises
where any wholesale or retail trade or any
business is carried on, or where services
are rendered to customers and includes all
offices, godowns or warehouse, which are
used in connection with such trade or
business.

14. The ground floor portion of the
building is not a godown or a warehouse
and to that extent would not be covered
by the definition of the shop.

15. Now the issue is whether the
ground floor portion of a building in a
residential locality which at one time was
used as a clinic/dispensary/pathology
laboratory by a doctor would be a
premises, shop or office where any trade
either retail or wholesale or business is
said to be carried or services are being
rendered to customers.

16. The work of a Doctor, Chartered
Accountant or a Lawyer or as a matter of
fact any consultant is a profession which
is distinct from any trade or business.
Generally, profession is an activity which
is carried by an individual by his personal
skill, intelligence depending upon his
character. It is not in the nature of any
trade or business. It is a vocation or
occupation requiring special, advance
education,
knowledge
and
skill
predominantly of an intellectual nature
rather than physical or manual.

17. The Supreme Court had an
occasion to consider the nature of the
activity of a private dispensary run by a a
doctor
vis-a-vis
the
definition
of
'commercial establishment' contained in
Section 2 (4) of the Bombay Shops and
Establishment Act, 1948 which is paramateria to the definition of commercial
establishment contained in Section 2 (4)
of the Adhiniyam. Their Lordship's of the
Supreme
Court
after
in
depth
consideration of the matter held that the
activity of a doctor is a profession and is
not a commercial activity and therefore a
private dispensary of a doctor is not a
'commercial establishment'.

18. A similar controversy arose
before the Supreme Court in connection
with lawyers office. The Supreme Court
in
considering
the
definition
of
commercial establishment as appearing in
Section 2(4) of the Kerela Shops and
Establishments Act went on to hold that
office of lawyers or a firm of lawyers is
not a commercial establishment within the
meaning of the Act, as lawyers do not
carry a trade or business nor do they
render services to the customers.

19. In another case before the
Supreme Court, the M.P. Electricity
Board
charged
the
Advocate
with
electricity
tariff
applicable
to
non
domestic users by treating his office as a
commercial activity. The Madhya Pradesh
High Court held that the legal profession
does not involve any commercial activity
and therefore the rate applicable to
commercial consumers can not be applied
to a lawyer's office. The matter was taken
up before the Supreme Court and the
Supreme Court disagreeing with certain
observations made in an earlier decision
in the case of New Delhi Municipal
Counsel Vs. Sohan Lal Sachdeva dead
(2000) 2 SCC 494 referred the matter to a
larger Bench.

20. The larger Bench of the Supreme
Court vide judgment and order dated
27.10.2005 held that advocate running his
750 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
office from his residence can not be
charged additional tariff on commercial
basis. However, in case office is run by
him from an independent and commercial
place, then he can not be exempted from
the commercial tariff. Thus, a distinction
was made between the office of a lawyer
situate in a residential area or in a
residence and the office situate in a
commercial place.

21. The profession of lawyer and
that of a doctor stand on equal footing as
both are professionals and so is the
lawyer's office and that of doctor's
clinic/dispensary or even a pathology lab.
The building in question is recognized by
the respondents themselves partial as
residential in nature, therefore the portion
of the doctor's clinic/dispensary or lab
situate therein would be a part of the
residential premises. The area has also
been notified by the Jhansi Development
Authority as residential in nature. In short,
the clinic/dispensary or laboratory is
being run from a residential area and the
portion would not be covered by
commercial establishment or shop within
the meaning of Sub-section (4) and 16 of
Section 2 of the Adhiniyam and its market
value is not determinable as a commercial
building as provided under Rule 2 (d) of
the Rules.

22. In view of the aforesaid facts
and circumstances, I hold that the
authorities below have erred in treating
the ground floor portion of the building in
question to be commercial in nature for
the reason that at one point of time a
doctor's clinic or a pathology lab was
being run from there. It is a part of a
residential building.

23. Accordingly, a writ of certiorari
is issued quashing the impugned orders
dated 10.3.2011 and 29.5.2010 passed by
the Commissioner, Jhansi Division, Jhansi
and Additional Collector respectively.

24. The writ petition is allowed. No
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2012

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Habeas Corpus Writ Petition No. - 19037
of 2011

Smt. Saroj

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.P. Tewari
Sri S.S. Tripathi
Sri S.P. Tiwari

Counsel for the Respondents:
A.G.A.
Sri B. Narain Singh
Sri N.D. Rai
Sri Sudhir Mehrotra

Constitution of India, Article 226-Habeas
Corpus Petition-petitioner being 17-18
years old girl-as per statement made
under Section 164 before Magistrate as
well as per ossification test-more than
18 years-on her ownfree will living as
husband and wife with her lover Manishcan not be act of "taking away" on
"enticing away" but a case of elopementcan not be termed as an accuseddirection of Magistrate sending Nari
Niketan amounts to attack upon her
freedom-held-order
passed
by
Magistrate-as well as revisional court-