# Sri Subhash Chandra v. Chief Controlling Revenue Authority, Allahabad & another

- **Citation:** (2007) 2 ILRA 538
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-26
- **Case number:** Civil Misc. Writ Petition No.5236 of 1987
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-subhash-chandra-v-chief-controlling-revenue-authority-allahabad-another-40923
- **Pages:** 3

## Headnote

Indian Stamp Act-Article-48 Scheduled
1-B-clause-(ee)-charge of Stamp duty
and penality-Power of attorney executed
in 1985-provisions of clause (ee) came in
operation
on
1.11.91-amount
of
consideration not specified in the Deedstamp duty can be charged taking into
account of consideration paid under
agreement-held-No penality could be
charged.

Held: Para 8

Neither in the deed of power of attorney
nor in the impugned orders, it has been
mentioned that what amount was paid
under the agreement executed on the
date of execution of power of attorney,
i.e. 30.01.1985.

## Text

538 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
supported by any affidavit, hence the
same cannot be relied.

13. The shop in dispute was always
found locked whenever the Rent Control
Inspector visited the shop in dispute and
is still vacant. Besides this it is also come
on record that the daughter of the
petitioner is of marriageable age and the
petitioner is unable to marry her due to
financial crunch and that after the shop is
released the petitioner is desirous of
opening his own General Merchant shop
after taking loan from his relatives and
friends.

14. In my opinion the contention of
the learned counsel for the petitioner has
force and the need of the petitioner is
bona fide. Even comparative hardship of
the petitioner is greater than that of the
respondent
who
otherwise
being
a
prospective allottee has neither any right
of say in the matter nor has any right to
challenge the bona fide need and
comparative hardship of the landlord. The
allotment to a prospective allotttee was in
the teeth of the law laid down in Smt.
Savitri Devi (supra) and Full Bench
decision rendered in Baleshwar Nath
(supra) wherein it has been held that
prospective allottee cannot even be heard
at the time of consideration of release
application. This right under the Act is
only of the tenant who is in actual lawful
physical
possession
of
the
accommodation.

15. For the reasons stated above, the
petition is allowed. The impugned orders
are quashed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2007

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No.5236 of 1987

Sri Subhash Chandra

...Petitioner
Versus
Chief Controlling Revenue Authority,
Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri Deo Raj

Counsel for the Respondents:
S.C.

Indian Stamp Act-Article-48 Scheduled
1-B-clause-(ee)-charge of Stamp duty
and penality-Power of attorney executed
in 1985-provisions of clause (ee) came in
operation
on
1.11.91-amount
of
consideration not specified in the Deedstamp duty can be charged taking into
account of consideration paid under
agreement-held-No penality could be
charged.

Held: Para 8

Neither in the deed of power of attorney
nor in the impugned orders, it has been
mentioned that what amount was paid
under the agreement executed on the
date of execution of power of attorney,
i.e. 30.01.1985.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
parties.

The question involved in this writ
petition is regarding payment of stamp
duty
on
power
of
attorney
dated
30.01.1985, copy of which is Annexure-1
2 All] Sri Subhash Chandra V. Chief Controlling Revenue Authority, Allahabad & another
539
to the writ petition. The matter was
registered before District Stamp Officer,
Bijnor as Case No.208 under Section 33
of Indian Stamp Act, State Vs. Subhash
Chandra. The said case was decided on
19.07.1985 and it was held that petitioner
was liable to pay Rs.17745/- as stamp
deficiency, Rs.251/- as deficiency in
registration fees and Rs.20,000/- as
penalty. However, by subsequent order of
the same authority dated 10.10.1985,
penalty was reduced from Rs.20,000/- to
Rs.8,000/-. Against the said order, Stamp
Revision No. 52(O) of 1985-86 was filed.
Chief
Controlling
Revenue
Authority/Board of Revenue, Allahabad
dismissed the revision on 03.03.1987,
hence this writ petition.

2. The relevant provision under
which stamp duty on power of attorney is
to be paid is provided under Article 48 of
Schedule 1-B of Indian Stamp Act as
applicable in U.P. The relevant clauses of
the said article are (e) and (ee), which are
quoted below:-

"(e) When given
for consideration
and
authorising
the attorney to
sell
any
immovable
property."

"The same duty as
a conveyance for
the amount of the
consideration."

"(ee)
when
irrevocable
authority is given
to the attorney to
sell
immovable
property.

"The same duty as
a conveyance on
the market value of
the
property
forming
subject
matter
of
such
authority."

3. The power of attorney in question
squirely falls within aforesaid clause (ee).
However, the said clause was added w.e.f.
01.11.1991, while power of attorney in
question was executed in 1985 and both
the impugned orders were passed in 19851987. Application of clause (ee) is,
therefore, out of question. It has to be
seen as to whether the power of attorney
in question is covered by clause (e) or not.

4. In the power of attorney, it was
mentioned
that
the
executants,
i.e.
Raghubir Singh and others, had earlier
executed a registered agreement for sale
in respect of their property in favour of
Lakhpat Rai-father of the petitioner on
01.08.1984 and 30.01.1985 (30.01.1985 is
also the date of execution of power of
attorney). It is further mentioned in the
power of attorney that under the two
agreements for sale in favour of father of
the petitioner, it was mentioned that total
sale consideration would be Rs.1,69,000/-
out of which Rs.1,39,000/- had already
been paid by him. It was further
mentioned that the attorney could execute
the sale deed in favour of the agreement
holder, i.e. his father or other persons on
the direction of his father and attorney
should make payment of Rs.30,000/- to
the executants after execution of the sale
deed either in favour of his father or in
favour of different persons in small
portions on the direction of his father. It is
also mentioned in the power of attorney
that the executants would never cancel the
same.

5. The question is as to whether the
said deed (power of attorney) has been
given for consideration or not.

6. Even though in the deed, no
consideration is mentioned, however,
execution of the agreement for sale in
favour of the father of power of attorney
540 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
holder on the same date on which power
of attorney was executed makes it
abundantly clear that the said agreement
and power of attorney were part of the
same transaction. Accordingly, I hold that
the earnest money given under the
agreement of the same date was the
consideration for power of attorney. One
agreement had already been executed six
months before, hence it may reasonably
be inferred that no further earnest money
or part of sale consideration would have
been paid by Lakhpat Rai, in case power
of attorney had not been executed by the
vendors in favour of his son i.e. Petitioner
Subhash Chandra.

7. By virtue of Section 202 of the
Contract Act, a power of attorney given
for consideration is irrevocable. The fact
that in the power of attorney in question,
it is mentioned that 'it is irrevocable' is a
strong indicator of the fact that it was for
consideration.

8. Neither in the deed of power of
attorney nor in the impugned orders, it has
been mentioned that what amount was
paid under the agreement executed on the
date of execution of power of attorney,
i.e. 30.01.1985.

9. Accordingly, writ petition is
allowed. Both the impugned orders are set
aside. The matter is remanded to District
Stamp Officer, Bijnor to charge the stamp
duty and registration fees on the power of
attorney
in
question
taking
the
consideration to be the amount paid under
agreement for sale executed on the same
date, i.e. 30.01.1985 by the executants of
power of attorney in favour of Lakhpat
Rai-father of the petitioner.

10.

Under
the
facts
and
circumstances of the case, I am of the
opinion that there was absolutely no
occasion
to
impose
any
penalty.
Accordingly, it is further directed that no
penalty shall be imposed.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 15161 of 2000

J.C. Saxena

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha
Sri Rakesh Sinha
Sri Ashish Srivastava
Sri P.P. Pandey
Sri Manoj Kumar Srivastava

Counsel for the Respondents:
Sri B.N. Singh
Sri Subodh Kumar
S.S.C.

High Court Rules, Chapter XXII Rule- 7Second writ petition for same cause of
action-without
disclosing
the
earlier
petition-held-not
maintainablepetitioner is also committed criminal
contempt by filing false affidavit-must be
saddled with liability of heavy cost.

Held: Para 12

A litigant who has approached this Court
in extra ordinary equitable jurisdiction
with unclean hands, his conduct makes
him liable to pay an exemplary cost for
abusing the process of the Court besides