# Sri Abdul Waheed & others v. U.P. State through Collector

- **Citation:** (2003) 1 ILRA 180
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-27
- **Case number:** Civil Misc. Writ Petition No. 4101 of 2003
- **Bench:** Sushil Harkauli
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-abdul-waheed-others-v-u-p-state-through-collector-39781
- **Pages:** 5

## Headnote

Indian Stamp Act 1899- Sub Section (4)
of Section 47-A- now numbered as sub
section
(3)
which
empowers
the
Collector to Act suo motu. Therefore, the
reference made by the Sub Registrar can
be treated to be a mere information to
the Collector, in the present case.
Held- Para 10

The contention is not acceptable for two
reasons. The first reason is that there is
a power under sub section (4) of Section
47-A now numbered as sub section (3),
which empowers the Collector to Act suo
motu. Therefore, the reference made by
the Sub Registrar can be treated to be a
mere information to the Collector, in the
present case.

## Text

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180 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the offence and direct reinstatement of the
petitioner with continuity of service, we
impose the punishment that the petitioner
will get only half the back wages from the
date of suspension till the date of
reinstatement and the petitioner will be
given severe warning not to commit such
an offence in future.

9. The petition is allowed with the
above observations.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18TH FEBRUARY,
2003

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.

Civil Misc. Writ Petition No. 4101 of 2003

Sri Abdul Waheed & others ...Petitioners
Versus
U.P. State through Collector

 ...Respondents

Counsel for the Petitioners:
Sri Kshitij Shailendra
Sri S.K. Johari

Counsel for the Respondents:
S.C.

Indian Stamp Act 1899- Sub Section (4)
of Section 47-A- now numbered as sub
section
(3)
which
empowers
the
Collector to Act suo motu. Therefore, the
reference made by the Sub Registrar can
be treated to be a mere information to
the Collector, in the present case.
Held- Para 10

The contention is not acceptable for two
reasons. The first reason is that there is
a power under sub section (4) of Section
47-A now numbered as sub section (3),
which empowers the Collector to Act suo
motu. Therefore, the reference made by
the Sub Registrar can be treated to be a
mere information to the Collector, in the
present case.

(Delivered by Hon'ble Sushil Harkauli, J.)

1. A sale deed dated 11.5.2001 was
executed in favour of the petitioners.
According to the recital in the sale deed it
was in respect of land alone. The Sub
Registrar after the date of registration of
the sale deed sent a reference to the
Collector under section 47 A of the Indian
Stamp Act, 1899 by his letter dated
17.7.2001. In that letter it was written that
the spot inspection was carried out in
which the land was found to have a three
story building standing over it, which
appeared to be more than ten years old.

2. On the basis of this information,
proceedings were started in the form of
Case no. 131/2001-02 under sections
33/40/47 of the Indian Stamp Act. Stamp
duty and penalty was imposed by an order
of the Additional District Magistrate
dated 27.3.2002. It was stated in that
order
that
the
Additional
District
Magistrate had himself inspected the
property on 17.3.2002 and found three
storied old house on the land in question,
which appeared to be ten or twelve years
old. The petitioners preferred a revision
under section 56 (1) Stamp Act, being
Revision No. 36 of 2001-02, which was
allowed by the Commissioner by order
dated 8.5.2002 and the matter was
remanded back with an observation that
the
matter
be
decided
after
spot
inspection.
After
the
remand
the
Additional
District
Magistrate,
Moradabad again repeated his order. In
the order he again mentioned that spot
inspection was done by him which
corroborated the report of the Sub
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1All] Sri Abdul Waheed and others V. The State of U.P. through Collector 181
Registrar dated 17.7.2001 which was
based upon inspection of spot done on
11.7.2001. The order also says that it was
not possible to get three storied building
constructed in such a short time between
the date of sale deed and the date of
inspection by the Sub Registrar. The order
further says that the petitioners have not
produced any evidence to prove that the
construction was done after the sale deed.
The
order
also
says
that
despite
opportunity the petitioners did not appear
to argue out the case.

3. An appeal was preferred by the
petitioners under section 56 of the Stamp
Act, being appeal no. 33 of 2002, which
has been dismissed by the learned
Commissioner by order dated 11.12.2002,
which is under challenge in this writ
petition.
The
Commissioner
has
disbelieved
the
contention
of
the
petitioners that no inspection was done of
the spot. He has also held that there is no
requirement under the Act or the Rules
for preparing a formal inspection note.

4.

Essentially
the
concurrent
findings recorded by the subordinate
authorities
i.e.
Additional
District
Magistrate and the Commissioner are
pure findings of fact.

5. Learned counsel representing the
petitioners has raised following three
contentions:

(i) It is option of the vendor and vendee
to sell the land leaving out the
building standing on the land and in
such an event it is the value of the
land, alone which is to be examined
for the purposes of determining the
stamp duty payable on the sale deed.

(ii) On the facts of this case the building
was not standing on the land at the
time of sale deed and the finding to
that
effect
recorded
by
the
subordinate authorities suffers from
an error of law.

(iii) The reference under section 47-A
could not have been made by the Sub
Registrar after the sale deed had been
registered
and
therefore
all
consequential
proceedings
are
vitiated.

6. Each of the above contention is
dealt with below:

POINT No. 1

Learned counsel for the petitioner
has contended that Section 3 of the Indian
Stamp Act 1899 read with Item-2 of
Schedule I-B and Rules 340 and 341 of
the Indian Stamp Rules, 1925 and Rule 3
of U.P. Stamp (Valuation of Property)
Rules, 1997 would indicate that the land
below a standing building can be sold
without including the building and in such
an event the value of the structure is not
relevant for the purposes of determining
the stamp duty payable on the sale deed,
in as much as the standing building
embedded to earth, which is immovable
property, will not stand transferred, not
being included in the registered sale-deed
and the title of the same will remain the
same with the vendor.

The argument is more attractive than
sound. Such matters have to be decided
on practical considerations and not in pure
theoretical terms. Practically in the
situation, as above, the building or the
structure is bound to pass with the land in
respect of its use and enjoyment and for
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182 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
all practical purposes it would not be
possible for the vendor to use or enjoy the
building or that matter exercise any right
in respect of the structure except perhaps
carrying away of the debris.

Besides Rule 340 is reproduced
below:

Rules for determining the market
value of certain instruments:-

R-340 In the case of an instrument
of conveyance, exchange, gift, settlement,
award or trust relating to immovable
property chargeable with an ad valorem
duty on the market value of the property,
the following particulars shall also be
fully and truly given in the instrument in
addition to the market value of the
property in compliance with sub section
(2) of section 27 of the Indian Stamp Act
as amended in its application to Uttar
Pradesh:-

(1) In case of land:

(a) included in the holding of a
tenure-holder, as defined in the law
relating to land tenures:-

(i) the khasra number and area of
each plot forming part of the subject
matter of the instrument;

(ii) whether
irrigated
or
unirrigated:

(iii) If under cultivation whether dofasli or otherwise;

(iv) land revenue or rent whether
exempted or not and payable by such
tenure holder; and

(v) Classification of soil, supported
in
case
of
instruments
exceeding
Rs.10,000 in value, by the certified copies,
of extracts from relevant revenue records
issued in accordance with law.

(b) being land other than land referred
to in clause (a), the assumed annual
rent/land revenue of rent revenue free,
grain rented and unrented land;

(c) being non-agricultural land situate
within the limits of any local body
constituted
under
the
U.P.
Nagar
Mahapalika
Adhiniyam,
1959,
U.P.
Municipalities Act, 1916 or U.P. Town
Areas Act, 1914, as the case may be, the
area of the land in square meters with the
average
price
per
square
meter
preavailing in the locality in which the
land is situate on the date of the
instrument

(2) In case of grove or garden;

(a) the nature, size, number and age of
trees;

(a) annual recorded land revenue or
where the grove is not assessed to any
revenue or is exempted from it, the
annual rent and/or premium if left
out, otherwise, the annual average of
income which has arisen from it
during the three years immediately
preceding the date of the instrument.

3. In case of building:
(a) Total covered area and open land, if
any, in square meters,
(b) Number of storeys and area of each
storey in square meters
(c) Whether Pacca or Katchcha,
(d) Actual annual rent or assumed annual
rent,
(e) Annual rent assessed by any local
body and the amount of house tax
payable thereon, if any, :

Rule 341 of 1925 Rules and Rule 3
of 1997 Rules are almost identical to the
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1All] Sri Abdul Waheed and others V. The State of U.P. through Collector 183
above quoted Rule 340 would clearly
indicate that where a structure is standing
on the land it would not fall within the
expression : land ' as used in sub rule (1)
but would fall within the expression'
building' as used in sub rule (3) and will
have to be sold as 'building'. This
interpretation, which has been given
above, is essentially to avoid evasion of
tax of stamp duty and defrauding of
revenue.

Learned counsel for the petitioner
has relied upon following decisions:

(1) Maydhan
Gupta
Vs.
Board
of
Revenue 1969 ALJ 333
(2) Kadorilal Vs. Sukhlal AIR 1968 MP
4
(3) Board
of
Revenue
Vs.
K.
Manjunatha Rai AIR 1977 Madras, 10

None of these decisions deal with the
situation like in the present case. The
question to be examined here is whether
parties should be permitted to record only
part of the property sold in a sale deed,
which
has
the
practical
effect
of
transferring the entire property in respect
of its total perpetual enjoyment, though
perhaps technically not transferring the
title in the remaining part of the property
and thereby evade payment of the stamp
duty. The answer obviously must be 'no' .
In fact , the Legislature has throughout
been making amendment to prevent this
kind of mischief by unscrupulous persons
by agreement for sale with possession and
irrevocable powers of attorney with
possession."

Thus the law appears to be that every
instrument of transfer must truly set forth
the entire property which, from the point
of view of practical considerations, is the
subject matter of transfer. Therefore
where a structure is standing on land, the
land alone can not be transferred without
the structure unless before transferring the
structure is removed. However, the
converse may not be correct, as it may be
possible to transfer the structure alone
without transferring the land.

POINT No.2

7. Regarding the second point it has
already been mentioned above that the
finding that structure existed at the time
of sale deed is a finding of fact recorded
concurrently
by
the
subordinate
authorities and that finding of fact cannot
be interfered with in this writ petition, in
as much as is not perverse and it is also
not a case where the finding can be said to
be based on no evidence.

8. The alleged error of law relied
upon by the learned counsel for the
petitions to challenge the said finding of
fact is said to be the failure on the part of
inspecting authorities to prepare a formal
inspection note. The revisional order
mentions that the rules do not require
preparation of formal inspection note. As
against this learned counsel for the
petitioners has relied upon the decision of
the Board of Revenue (in its capacity as
Chief Controlling Revenue Authority) in
the case of Smt. Shakeela Khatoon Vs.
State of U.P. reported in 1995 AWC
2053. I have examined the said decision
and it appears that the learned Member of
the Board of Revenue, who decided the
case proceeded on the wrong hypothesis
that the provisions of Code of Civil
Procedure apply to the proceedings under
Indian Stamp Act. Due to its total
misconception of law the said decision is
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184 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
obviously incorrect and can not help the
petitioners.

9.

Learned
counsel
for
the
petitioners
has
relied
upon
certain
amendments made to Section 47-A by
which the power of Sub Registrar to make
a reference after registration of the sale
deed is alleged to have taken away. It has
been argued that the Sub Registrar could
have made the reference only prior to the
registration
of
sale
deed
and
the
subsequent
reference
is
not
valid.
Therefore, the argument proceeds, all
proceedings consequent upon such invalid
reference are vitiated.

10. The contention is not acceptable
for two reasons. The first reason is that
there is a power under sub section (4) of
Section 47-A now numbered as sub
section (3), which empowers the Collector
to Act suo motu. Therefore, the reference
made by the Sub Registrar can be treated
to be a mere information to the Collector,
in the present case.

The second reason is that the
petitioners are before this Court in
discretionary and equitable jurisdiction. I
am not inclined to exercise such a
jurisdiction to assist the petitioners in
their attempt to evade the tax.

In view of aforesaid circumstances,
this writ petition fails and is accordingly
dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 266 of 2003

Vaaho Photo International and another

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

Counsel for the Petitioners:
Sri Bharat Ji Agarwal
Sri Piyush Agarwal
Sri Amit Jaitly

Counsel for the Respondents:
Sri S. P. Kesharwani
S.C.

Constitution of India, Article 226- trade
tax- imposition upon a firm doing
business of Photographer- the article or
goods transferred to the customers by
the firm liable for imposition of trade tax
as per order of Commissioner- held
proper.

Held- Para 11 and 12

When a photograph, whether positive or
the negative print is given to the
customer
certainly
some
material
property is transferred to the customer,
and it cannot be said that only service is
rendered to the customer. It often
happens that a customer goes to a
photographer's shop, the photographer
takes him into the studio and takes his
photographs. To this extent service is
rendered.
Thereafter
when
the
photograph
is handed over
to the
customer there is transfer of goods when
the photograph is sold to the customer
that is a transfer of the property in goods