# Smt. Nisha Keserwani v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-25
- **Case number:** Civil Misc. Writ Petition No. 48409 of 2004
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-nisha-keserwani-v-state-of-u-p-and-others-40788
- **Pages:** 3

## Headnote

Indian Stamp Act 1899-Section 47-ALimitation for exercising the power by
D.M.-Sale deed executed on 4.5.96Notice by D.M. issued on 4.7.2000-e.g.
beyond the period of 4 years-under
proviso-the proceeding can be initiatedeven
after
8
years-provided
prior
permission
from
the
government
obtained-held-impugned notice itselfissued in contravention of the provision
of section 47-A-entire exercise held
illegal.

Held: Para 4

In such view of the matter, as the notice
itself was issued to the petitioner after
more than four years, which was in clear
contravention
of
the
provisions
of
Section 47-A of the Indian Stamp Act, no
proceedings could have been initiated
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
against the petitioner in pursuance of
the said notice. As such, the orders
impugned in this writ petition, which had
been
passed
in
pursuance
of
the
aforesaid notice, are both liable to be
quashed.

## Text

1 All] Smt. Nisha Keserwani V. State of U.P. and others
541
offence of criminal conspiracy under
Section 120-B, I.P.C., would also not be
within the term "in discharge of official
duty" and, therefore, Section 197 Cr.P.C.
has no application at all.

144.

The
second
question,
accordingly, is also replied in negative.

QUESTION No.3.

In view of the discussions and the
findings with reference to the aforesaid
two questions, which have been answered
in negative, the question no.3 is also
replied in negative. The reasons already
given above are not thus being repeated.

In view of the aforesaid, answers to
the aforesaid three questions are as
follows:

(I) For prosecution under Prevention of
Corruption Act, 1988, once sanction
under Section 19 of the said Act is
granted, there is no necessity for
obtaining further sanction under
Section 197 of the Code of Criminal
Procedure.
(II) Where a public servant is sought to
be prosecuted under the provisions of
Prevention of Corruption Act read
with Section 120-B, I.P.C., and
sanction under Section 19 of Act of
1988 has been granted, it is not at all
required to obtain sanction under
Section 197 Cr.P.C. from the State
Government or any other authority
merely because the public servant is
also charged under Section 120-B,
I.P.C.
(III) The offences under the Prevention of
Corruption Act, 1988 as well as
charge
of
criminal
conspiracy,
cannot be said to constitute "acts in
discharge of official duty."

145. The record of all these cases
shall be placed before the Division Bench
for necessary orders.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 48409 of 2004

Smt. Nisha Keserwani
...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Siddharth Pandey
Sri M.P. Yadav
Sri Sanjay Kumar Singh
Sri Pradeep Kumar

Counsel for the Respondent:
S.C.

Indian Stamp Act 1899-Section 47-ALimitation for exercising the power by
D.M.-Sale deed executed on 4.5.96Notice by D.M. issued on 4.7.2000-e.g.
beyond the period of 4 years-under
proviso-the proceeding can be initiatedeven
after
8
years-provided
prior
permission
from
the
government
obtained-held-impugned notice itselfissued in contravention of the provision
of section 47-A-entire exercise held
illegal.

Held: Para 4

In such view of the matter, as the notice
itself was issued to the petitioner after
more than four years, which was in clear
contravention
of
the
provisions
of
Section 47-A of the Indian Stamp Act, no
proceedings could have been initiated
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
against the petitioner in pursuance of
the said notice. As such, the orders
impugned in this writ petition, which had
been
passed
in
pursuance
of
the
aforesaid notice, are both liable to be
quashed.

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

1. A sale deed was executed in
favour of the petitioner on 4.5.1996 on
which
requisite
duty
on
the
sale
consideration had been paid. It has been
submitted that after a gap of more than
four years, a notice dated 4.7.2000 was
issued
by
the
District
Magistrate,
Allahabad to show cause why the said
document be not impounded for being
deficiently stamped and penalty be not
imposed on the petitioner. According to
the petitioner, the said notice was never
served on him. However, by order dated
20.3.2003 the respondent no. 2, Deputy
Commissioner (Stamps), Allahabad held
that the valuation of the property in
question was Rs.20,00,000/- on which the
stamp duty of Rs.2,98,000/- ought to have
been paid and thus after deducting the
stamp duty already paid at the time of
registration of the sale deed. It was held
that
the
document
was
deficiently
stamped by Rs.2,64,624/-, on which a
penalty of Rs.376/- was also imposed and
accordingly a sum of Rs.2,65,000/- was
found to be payable by the petitioner. The
appeal filed by the petitioner against the
said
order
was
dismissed
by
the
Commissioner,
Allahabad
Division,
Allahabad, respondent no. 3 by order
dated 28.9.2004 on the ground that the
same was filed beyond the period of
limitation. Aggrieved by the said orders,
the petitioner has filed this writ petition.

2. I have heard Sri Sanjay Kumar
Singh, learned counsel appearing for the
petitioner as well as learned Standing
Counsel
appearing
for
the
Staterespondents.
Counter
and
rejoinder
affidavits have been exchanged and with
the consent of learned counsel for the
parties, this writ petition is being disposed
of at the admission stage itself.

3. The specific case of the petitioner
is that it is only under Section 47-A of the
Indian Stamp Act, 1899 that the Collector
could have called for and examined the
instrument for the purpose of satisfying
himself as to the correctness of the market
value of the property and the duty payable
thereon. Under Section 47-A (3) the same
could have been done only within four
years from the date of registration of such
instrument on which the duty was to be
charged on the market value of the
property. The petitioner had raised such
specific
objections
with
regard
to
limitation before the authorities below.
Admittedly the sale deed was executed on
4.5.1996 and the notice was issued for the
first time on 4.7.2000, which was beyond
the period of four years. The proviso may
confer power to initiate action even after
the period of four years and within a
period of eight years, but only with the
prior permission of the State Government.
It is not the case of the respondents that
such permission had been obtained from
the State Government. In the counter
affidavit the respondents have not denied
this fact that the notice was for the first
time issued only on 4.7.2000 and as such
the action against the petitioner was taken
for the first time after four years of the
registration of the sale deed. Learned
Standing Counsel has not placed before
me any provisions of law under which the
said notice could have been issued after
the period of four years, when no prior
1 All] Smt. Sudesh and others V. A.D.J., Kanpur Dehat and others
543
permission of the State Government had
been taken.

4. In such view of the matter, as the
notice itself was issued to the petitioner
after more than four years, which was in
clear contravention of the provisions of
Section 47-A of the Indian Stamp Act, no
proceedings could have been initiated
against the petitioner in pursuance of the
said notice. As such, the orders impugned
in this writ petition, which had been
passed in pursuance of the aforesaid
notice, are both liable to be quashed.

5. Accordingly, this writ petition
stands allowed. The impugned order dated
20.3.2003 passed by the respondent no. 2,
the
Deputy
Commissioner
(Stamps),
Allahabad and the order dated 28.9.2004
passed by the respondent no. 3, the
Commissioner,
Allahabad
Division,
Allahabad are quashed. There shall be no
order as to costs.

6. The amount deposited in terms of
the interim order granted by this Court
shall be refunded to the petitioner within
two months from the date of filing of an
application by the petitioner before the
respondent no. 2, alongwith a certified
copy of this order. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.27915 of 2002

Smt. Sudesh and others ...Petitioners
Versus
Addl. District Judge, Kanpur Dehat and
others

...Respondents

Counsel for the Petitioners:
Sri Faujdar Rai
Sri Chandra Kr. Rai

Counsel for the Respondents:
Sri M.A. Siddiqui
Sri I.M. Khan

Code of Civil Procedure 1808 Order 9
rule
13-setting
aside
the
ex-parte
decree-suit for cancellation of sale deed
and
permanent
injection-petitioners
claiming possession over the disputed
plat for the last 20 years from the date of
execution
of
sale
seed-Notice
send
through ordinary Post-service through
advocate commission-both the witnesses
mentioned in the report and found
emical to petitioner-held-view taken by
the courts below highly technical-court
should decide the case on merit rather
technical
basis-without
sending
the
Notice
through
registered
postpublication in news paper-held-service
not sufficient-direction issued decide the
case
on
merit
as
expeditiously
as
possible without granting unnecessary
adjournments.

Held: Para 4

From a perusal of the record it is clear
that notices were actually never served
on the petitioners. The notices were only
sent by ordinary process and not even by
registered process. It was thereafter
that notices were sent through Advocate