# Somesh Prakash & Ors v. State of U.P. & Ors. 728 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 9 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-20
- **Case number:** Writ C No. 5229 of 2021
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/somesh-prakash-ors-v-state-of-u-p-ors-728-indian-law-reports-allahabad-series-52517
- **Pages:** 8

## Headnote

Civil Law-Indian Stamp Act, 1899-Section
2 (15) - Parties had already occupied their
respective shares of the property before
reducing the memorandum of settlement in
writing on 23.05.2012 and therefore, they cease
to be co-owners-Administrative authority or
judicial authority, before levying penalty, reason
whatsoever has to be recorded, as without the
same, the consequence of the impugned order
may be very harsh and the same may fails to
justify the essence of the order-No finding
recorded in the impugned orders that there was
any attempt to evade stamp duty or to deprive
the St. Exchequer or the rightful revenueReason is the heartbeat of every conclusion. An
order without valid reasons cannot be sustained.
To give reasons is the rule of natural justice-Any
amount deposited by the petitioners shall be
refunded to them along with interest @ 4%
from the date of deposit till the actual payment
is made. (Para 32,35,37,38 & 45)

Petition allowed. (E-15)

List of Cases cited:

## Text

9 All. Somesh Prakash & Ors. Vs. State of U.P. & Ors.
727
want of jurisdiction, and a writ petition
challenging the same, would not be
entertainable, at this stage.

10. Section 67 of the Revenue Code
provides
power
to
prevent
damage,
misappropriation and wrongful occupation
of Gram Panchayat properties.

11. Where any property entrusted or
deemed to be entrusted to a Gram
Panchayat or other local authority is
damaged or misappropriated, or where any
Gram Panchayat or other authority is
entitled to take possession of any land
under the provisions of the Revenue Code
and such land is occupied otherwise than in
accordance with the provisions of the
Revenue Code, the Bhumi Prabandhak
Samiti or other authority or the Lekhpal
concerned, as the case may be, are required
to inform the Assistant Collector concerned
in R.C. Form - 19.

12. The Assistant Collector from the
information received or otherwise coming
to
his
knowledge
as
to
damage,
misappropriation or wrongful occupation of
Gram Sabha property, is required to initiate
action by issuing a notice under Section
67(2) of the Revenue Code to the person
concerned in R.C. Form- 20. The notice
which is to be issued is for showing cause,
as to why compensation for damage,
misappropriation or wrongful occupation,
be not recovered, and the person concerned
be not evicted from the land in question.

13. In the instant case the Area
Lekhpal having submitted a report on the
basis of a spot inspection indicating
encroachments over the land in question,
by the petitioner, the Assistant Collector, in
exercise of powers under Section 67(2) of
the Revenue Code, has issued a notice to
the petitioner to show cause, in the
prescribed R.C. Form- 20.

14. The earlier proceedings, under
Section 122-B of the Z.A. Act, drawn
against the petitioner's father, having
been dropped upon his death, and there
being no adjudication on merits, and the
fresh report submitted by the Area
Lekhpal, on
the basis of
a
spot
inspection,
being
indicative
of
encroachments over the land in question
by the petitioner, there would be no bar
to initiation of fresh proceedings under
Section 67 of the Revenue Code.

15. Counsel for the petitioner has not
been able to point out any patent illegality
or lack of jurisdiction in issuance of the
notice by the Assistant Collector.

16. Learned counsel for the petitioner
states that as the petitioner has already filed
his objections, he does not wish to press the
petition, and that the petitioner would
contest
the
proceedings
before
the
concerned respondent authority.

17. The petition stands disposed of
accordingly.
----------
(2024) 9 ILRA 727
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABD 20.09.2024

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 5229 of 2021
With
Writ C No. 4980 of 2021

Somesh Prakash & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
728 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Tarun Agrawal

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

Civil Law-Indian Stamp Act, 1899-Section
2 (15) - Parties had already occupied their
respective shares of the property before
reducing the memorandum of settlement in
writing on 23.05.2012 and therefore, they cease
to be co-owners-Administrative authority or
judicial authority, before levying penalty, reason
whatsoever has to be recorded, as without the
same, the consequence of the impugned order
may be very harsh and the same may fails to
justify the essence of the order-No finding
recorded in the impugned orders that there was
any attempt to evade stamp duty or to deprive
the St. Exchequer or the rightful revenueReason is the heartbeat of every conclusion. An
order without valid reasons cannot be sustained.
To give reasons is the rule of natural justice-Any
amount deposited by the petitioners shall be
refunded to them along with interest @ 4%
from the date of deposit till the actual payment
is made. (Para 32,35,37,38 & 45)

Petition allowed. (E-15)

List of Cases cited:

1. Siya Ram & ors. Vs St. of U.P. (Misc. Stamp
Act Reference No.104 of 1972), decided on
08.05.1972

2. S. Sai Reddy Vs S. Narayana Reddy & ors.,
(1991) 3 Supreme Court Cases 647

3. A. Krishna & anr.Vs A. Arjun Rao & anr.AIR
2004 AP 502

4. Mangat Ram & anr.Vs Ram Narain Gupta &
anr.[(I.A. 2698/07 in CS (OS) No.549/1995]

5. Assistant Commissioner, Commercial Tax
Department, Works Contract & Leasing, Kota Vs
Shukla & Brothers, (2010) 4 SCC 785

6. M/s Travancore Rayon Ltd. v. U.O.I., 1969
(3) SCC 868

7. M/s. Aegis BPO Services Ltd. Vs St. of U.P. &
ors., [2010 (9) ADJ 237

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

1. Since the similar controversy
involved in the both the writ petitions, both
are being decided together with this
common judgment.

2. For convenience, the facts of WritC No. 5229 of 2021 are being delineated
here:-

3. Heard Sri Tarun Agrawal, learned
counsel for the petitioners, and Sri A.C.
Mishra, learned Additional Chief Standing
Counsel for the State-respondents.

4. By means of instant writ petition,
the following prayer has been made:-

"(I) Issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
22.12.2020 passed by the respondent no.2
and the impugned order dated 31.05.2106
passed by the respondent no.3 (Anneuxre
Nos. 13 & 9 respectively);

(II) Issue a writ, order or
direction in the nature of mandamus
restraining
the
respondents
from
undertaking any coercive measures to
recover the amount of deficiency of and
penalty imposed vide the impugned order
dated 22.12.2020 passed by the respondent
no.2 and impugned order dated 31.05.2016
passed by respondent no.4;

(III) Issue a writ, order or
direction in the nature of mandamus
commanding the respondents to forthwith
refund the one third amount deposited by
the petitioners alongwith interest @ 9% per
annum compounded annually;

(IV) ...................
9 All. Somesh Prakash & Ors. Vs. State of U.P. & Ors.
729

(V) ...................."

5. Counsel for the petitioners submits
that the petitioners, who are nine in
numbers, belongs to the same family, who
possess a joint family properties. He further
submits that in order to avoid complication
and to maintain peace and harmony in the
family, in the month of July/August, 2011,
the petitioners entered into an oral
settlement for partition of the family
properties amongst themselves and also
exchanged possession of their respective
shares. Thereafter, in order to avoid any
further controversy in future, they resolved
to reduce the aforesaid oral settlement into
writing in the form of a memorandum of
settlement on 23.05.2012; wherein terms
and conditions of the oral settlement dated
July/August 2011 was mentioned. It was
also mentioned therein that ten months'
ago, the possession was occupied by the
respective family members.

6. Thereafter, one of the family members
to seek declaration of his title instituted a suit
in which compromise dated 29.09.2012 was
filed, which took place pursuant to the
memorandum of settlement dated 23.05.2012.
Thereafter, order dated 8.10.2012 was passed
and on 16.10.2012 pursuant to the aforesaid
compromise, decree order was passed.

7. Thereafter, one of the family members,
namely; Raghav Swarup applied for sanction
of map of his portion before Muzaffar Nagar
Development Authority along with copy of the
decree and memorandum of settlement.
Afterward, memo of the same was forwarded
by the officer of Muzaffar Nagar Development
Authority to the Collector to enquire about
payment of stamp duty.

8. On the said basis, the proceedings
were instituted against the petitioners under
Indian Stamp Act, 1899 and a notice was
issued to which the petitioners submitted
their reply, but not being satisfied from the
same, the impugned order was passed
against which an appeal was filed, which
also met the same fate. Hence the instant
writ petition.

9. Learned counsel for the petitioners
further
submits
before
reducing
the
memorandum of settlement in writing, the
petitioners occupied their respective share
of properties pursuant to the oral partition
which took place way back in July/August,
2011. He further submits that at the time of
execution of Memorandum of Settlement
dated 23.05.2012, they were already in
possession of their respective share of
property as per oral settlement between
them.

10. He further submits that once the
petitioners were not co-owners of the
property in question, Section 2 (15) of the
Indian Stamp Act is not applicable. He
further submits that even Article 45 of
Schedule 1-B of Indian Stamp Act, 1899
does not aid to the State-respondents in any
manner. He further submits that the
partition deed is also not required for
registration, if the petitioners were not coowners of the property in question, at the
time of reducing the same in writing.

11. In support of his submission,
learned counsel for the petitioners has
placed
relied
upon
the
Full
Bench
Judgment of this Court passed in the case
of Siya Ram and Ors. Vs. State of U.P.
(Misc. Stamp Act Reference No.104 of
1972), decided on 08.05.1972 as well upon
the judgment of Hon'ble Apex Court
passed in the case of S. Sai Reddy Vs. S.
Narayana Reddy and Others, (1991) 3
Supreme Court Cases 647 and upon the
730 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment of Delhi High Court passed in the
case of Mangat Ram and Another Vs.
Ram Narain Gupta and Another [(I.A.
2698/07 in CS (OS) No.549/1995].

12. He further submits that even after
amendment of Section 2 (15) by which
clause (iii) has been added, does not aid in
any manner to the State authorities as on
the date of reducing the memorandum of
settlement in writing i.e. on 23.05.2012,
petitioners cease to be co-owners.

13. He further submits that for
imposing of penalty, reason for the same is
mandatory and where there is no intention
to avoid stamp duty, the penalty cannot be
imposed.

14. In support of his submission, he has
placed reliance upon the judgment of this
Court passed in the case of M/s. Aegis BPO
Services Limited Vs. State of U.P. and
others, [2010 (9) ADJ 237]. He prays for
allowing the writ petition.

15. Per contra, learned Additional Chief
Standing Counsel supports the impugned
orders and submits that the partition deed was
executed on 23.05.2012, but the same was
not got registered in order to avoid payment
of stamp duty thereof as prescribed under
Section 2(15) of the Indian Stamp Act, 1899.

16. He further submits that an Original
Suit No. 710 of 2012 was filed and during the
pendency of the said suit, a compromise
dated 29.09.2012 was filed, which took place
between the parties, in pursuance whereof,
order dated 8.10.2012 and thereafter, the
decree dated 16.10.2012 was passed in favour
of the petitioners.

17. Once, it is an admitted fact that the
partition deed was executed on 23.05.2012,
in view of Section 2(15) of the Indian
Stamp Act, 1899, it was required to register
as well as payment of due stamp duty
thereof was required to be paid. But the
petitioners did not choose to do the same and
therefore, proceedings were rightly been
initiated
against
the
petitioners.
The
petitioners
would
have
succeeded
in
defaulting the State Exchequer for not paying
the due stamp duty, if present proceedings
were not initiated against them. He further
submits that so far as the penalty is
concerned, if the officer of the Muzaffar
Nagar Development Authority have not
referred the matter to the Collector, the
petitioners would have succeeded in their
intention for not paying the stamp duty to
State Exchequer, therefore, the levy of
penalty is also justified.

18.
Upon
hearing
the
counsel
appearing for the parties, the Court has
perused the records.

19. The record reveals that the
partition deed was executed in writing on
23.05.2012; wherein it has specifically
been mentioned that the petitioners being
the family members, entered into an oral
partition of the joint property of the family
and after due process, they occupied their
respective shares of the property, this fact
has not been disputed at any stage of
litigation by the State-respondents.

20. Once the possession had already
been taken by the respective family members
i.e. ten months ago from the date of execution
of the partition deed, the question arises as to
whether Section 2 (15) of the Indian Stamp
Act, 1899 as amended in 1972 is applicable,
which reads as under:-

"Section 2(15)-"Instrument of
partition means any instrument whereby
9 All. Somesh Prakash & Ors. Vs. State of U.P. & Ors.
731
co-owners of any property divide or agree
to divide such property in severalty, and
also includes

(i) a final order for effecting a
partition passed by any revenue authority
or any civil court;

(ii) an award by an arbitrator
directing a partition; and

(iii)
when
any
partition
is
effected without executing any such
instrument, any instrument or instruments
signed by the co-owners and recording,
whether by way of declaration of such
partition or otherwise, the terms of such
partition amongst the co-owners.

21. From bare reading of the aforequoted Sections, it clearly shows that if an
instrument of partition is executed, duly
signed by the co-owners, on previous terms
of partition without possession, stamp duty
is liable to be paid on the said instrument.

22. In other words, Section 2 (15) (iii)
of the Act will be applicable, if an
instrument of partition is executed by coowners of the property, on a declaration of
terms of a previous partition by co-owners,
then it should be without possession.

23. Once the shares of each family
member
were
divided
and
separate
possession of their respective shares were
occupied by them, they cease to be coowners of the property on the date of
execution of memo of partition in written.
In other words, once the respective parties
had taken possession of their shares, they
cease to be the co-owner of the property.

24. From perusal of the memorandum
of settlement, it further reveals that an
agreement of partition of the property was
reduced in writing, which had already
completed and respective parties had come
into actual physical possession of their
respective shares of the property, which
was agreed to be allotted to them and the
necessary steps were already taken into
consideration to get their respective title
duly recorded in terms of oral family
settlement
and
to
abide
by
the
memorandum.

25. But in the case at hand, at the time
of
execution
of
partition
deed,
the
possession of the respective shares of the
petitioners had already been occupied by
them.

26. The Full Bench of this Court in the
case of Siya Ram (supra), in para no.3 has
specifically held as under:-

"...... ... before aid of this subsection can be taken, the instrument must
be one which is executed by co-owners,
and the partition must be effected by that
instrument. In the present case as the
partition had already taken place earlier
and the parties had entered into separate
possession of their shares, they ceased to
beco-owners of the properties over which
they had taken over separate possession.
Moreover, inasmuch as the present
document only referred to the fact of
partition having taken place earlier, it did
not come within the purview of this subsection. ..........."

27. The Hon'ble Supreme Court in the
case of S. Sai Reddy (supra) has dealt with
the issue of the claim of the daughters to
claim a share in the joint Hindu family
property on the basis of a State amendment
to the Hindu Succession Act granting equal
rights to the daughters in Hindu joint
families. A preliminary decree defining the
shares of the parties had already been
passed in the suit when the law was
732 INDIAN LAW REPORTS ALLAHABAD SERIES
amended by the State granting equal rights
to daughters. The Supreme Court held
"unless and until the final decree is passed
and the allottees of the shares are to be in
possession of the respective property, the
partition is not complete". A completed
partition was explained as "a partition of
the property by metes and bounds".

28. The Hon'ble Apex Court in S. Sai
Reddy (supra) in para no.7 has held as
under:-

" ........... Unless and until the
final decree is passed and the allottees of
the shares are put in possession of the
respective property, the partition is not
complete. The preliminary decree which
determines shares does not bring about
the final partition. ........"

29. Further, no cogent material was
brought on record by the State-respondents
to show that the partition was not complete
on the date of execution of settlement of
memorandum as well as petitioners were
not in possession of their respective shares
of the property.

30. In the case in hand, the petitioners,
on an oral settlement, had already put in
possession of the respective shares, the
partition was completed much before the
date of reducing in writing the memo of
partition.

31. The aforesaid principle was
applied by the A.P. High Court in A.
Krishna and Anr. Vs. A. Arjun Rao and
Anr. AIR 2004 AP 502. The Court held:

"10. The underlying object of
Section 35 of the Stamp Act is to ensure
that the instrument chargeable with duty is
duly stamped, as otherwise it would cause
loss to the exchequer, and in order to save
revenue to the State, the provision makes
the instrument which is not duly stamped
inadmissible in evidence. In the instant
case, the plaintiffs by seeking to produce
the document dated 3-6-1977, which is in
the nature of memorandum of partition
between the parties, are seeking to
extinguish the exclusive right created in
favour of Defendant No. 2. As per the
recitals of the document, it is clear that
partition has been effected by specifying
the shares, which includes payment of
maintenance to their mother, in that view
of the matter, the document dated 3-61977 cannot be said to be memorandum
regarding past partition. A perusal of the
document further discloses that actual
partition was not done by metes and
bounds as per earlier partition. By virtue
of the document, according to the
plaintiffs, separate possession was sought
to be delivered to the respective parties,
and as such, it is evidencing partition. In
this context, it is relevant to state that the
document sought to be marked does not
contain recitals that the parties have
already taken possession of the properties
by virtue of the earlier oral partition and
continue to enjoy the said property
separately after taking possession by
virtue of the earlier partition. In the
absence of any such recitals in the
document, the Court below has rightly
come to the conclusion that the document
is
required
to
be
stamped
and
registered."(emphasis supplied)

32. The Delhi High Court in the case
of Mangat Ram (supra) has held that the
parties had not taken complete possession
of their shares, therefore, instrument for
partition are covered under Section 2 (15)
of the Indian Stamp Act, 1899 and the same
is liable for payment of due stamp duty.
9 All. Somesh Prakash & Ors. Vs. State of U.P. & Ors.
733
However, in the case at hand, the parties
had already occupied their respective
shares of the property before reducing the
memorandum of settlement in writing on
23.05.2012 and therefore, they cease to be
co-owners.

33. Process of partition is not complete
until the parties have divided the properties
by metes and bounds.

34. The record further reveals that the
parties had arrived at an oral family
settlement and to implement its terms, steps
were taken to occupy the respective
possession by metes and bounds i.e. by
delivery of possession of the respective
shares of property that were occupied
before reducing the memo of partition deed
in writing.

35. The record furthermore reveals
that for imposing penalty, not a single
reason has been assigned and however, for
levying the penalty, the mens rea is
essential. It is further essential that every
administrative
authority
or
judicial
authority, before levying penalty, reason
whatsoever has to be recorded, as without
the same, the consequence of the impugned
order may be very harsh and the same may
fails to justify the essence of the order.

36. The record shows that in view of
the oral family settlement, the respective
parties not only divided their shares but
also taken possession of their respective
shares by metes and bounds, then at the
time
of
reducing
in
writing
the
memorandum of settlement, will not be
treated as instrument which is covered
under Section 2 (15) (iii) of the Act.

37. There is no finding recorded in the
impugned orders that there was any attempt
to evade stamp duty or to deprive the State
Exchequer or the rightful revenue. In the
absence of such finding, there appears to be
no justification for imposing the penalty.

38. It is settled law that reason is the
heartbeat of every conclusion. An order
without valid reasons cannot be sustained.
To give reasons is the rule of natural
justice. One of the most important aspect
for necessitating to record reason is that it
substitutes subjectivity with objectivity. It
is well settled that not only the judicial
order, but also the administrative order
must be supported by reasons recording in
it.

39. Highlighting this rule, the Hon'ble
Supreme Court, in the cases of Assistant
Commissioner,
Commercial
Tax
Department, Works Contract & Leasing,
Kota Vs. Shukla & Brothers, (2010) 4
SCC 785, M/s Travancore Rayon Ltd. v.
Union of India, 1969 (3) SCC 868 have
observed that the administrative authority
and the tribunal are obliged to give reasons,
absence whereof would render the order
liable to judicial chastisement.

40. This Court in the case of M/s.
Aegis BPO (supra) has held that so far as
imposition of penalty is concerned, no
reason has been assigned for imposing the
same.

41. Once the reason has not been
assigned by the competent authority for
levying the penalty then on this ground
alone, the impugned orders cannot be
sustained.

42. In the case in hand, the impugned
orders do not refer any reason whatsoever
for justifying the levy of penalty, hence the
734 INDIAN LAW REPORTS ALLAHABAD SERIES
levy of penalty cannot sustain in the eyes of
law and the same is quashed.

43. In view of the facts as stated above
as well as law down in the aforesaid
judgments, the impugned orders are set
aside.

44. Accordingly, the writ petition
succeeds and is allowed.

45. Any amount deposited by the
petitioners during the pendency of the
present proceedings, shall be refunded to
them along with interest @ 4% from the
date of deposit till the actual payment is
made, within a month from today from the
date of production of certified copy of this
order.
----------
(2024) 9 ILRA 734
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.09.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 5837 of 2024

Smt. Bitto Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Pratyush Rawat, Aishwarya Mathur (Amicus
Quria) Rajan Mishra

Counsel for the Respondents:
C.S.C., Shambhunath Misra

Civil Law- The Constitution of India, 1950Article 226 - The Employees Compensation
Act, 1923-Section 17 - writ petition filed on
the ground that after passing of the order of the
Employees Compensation Commissioner, the
petitioner and respondent no. 3 had entered
into an agreement agreeing to settle the
differences
and
the
petitioner
has
also
undertaken not to initiate any legal proceedings
against the respondent no. 3 in pursuance of
the order of the Employees Compensation
Commissioner- Challenge to the order of
Employees Compensation Commissioner was
made on account of subsequent agreement
entered between the parties, and the said
agreement is held to be "null & void".-
Authorities
executing
the
order
of
the
Employees Compensation Commissioner are
directed to continue to recover the outstanding
amount but while recovering the said amount
they shall take into account the fact that
Rs.1,80,000/- has already been paid to the
petitioner and they shall also deduct the value
of the land transferred in favour of the
petitioner as per the prevailing circle rate.
(Para 25 & 26) (E-15)

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

1. Heard Shri Rajan Mishra,
learned
counsel
for
petitioner,
Ms.
Aishwarya Mathur, learned amicus curiae
appointed by the Court, Shri Rahul Shukla,
learned Additional Chief Standing Counsel
for respondent nos. 1 & 2, Shri Shambhu
Nath
Mishra,
learned
counsel
for
respondent no. 3 and perused the material
available on record.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 30.04.2024 passed by the
learned
Commissioner,
Workmen
Compensation/Additional
Labour
Commissioner, Hardoi wherein he has
passed the award in favour of the petitioner
along with all consequential benefits.

3. Brief facts of the case are that
the son of the petitioner was in employment
of respondent no. 3 and while on duty on
18.10.2017 at 8:00 a.m. met with an
unfortunate accident, where a portion of
building of respondent no. 3 fell on her son