# State of U.P v. Nalanda Serv Infraventure Pvt. Ltd. & Ors

- **Citation:** (2014) 1 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-02
- **Case number:** Civil Misc. Writ Petition No. 37248 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-nalanda-serv-infraventure-pvt-ltd-ors-42763
- **Pages:** 6

## Headnote

Indian Stamp Act, 1899-Section 31imposition of penalty and impounding
the
document-application
for
fixing
valuation
of
property
sought
to
purchase-held-without
jurisdiction-as
neither instrument nor any abstract of itbrought before collector.

Held: Para-22 & 23

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES
constituting a Larger Bench for answer to
the said questions.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 37248 of 2013

State of U.P..... Petitioner
Versus
Nalanda Serv Infraventure Pvt. Ltd. & Ors...
 Respondents

Counsel for the Petitioner:
Sri Sanjay Goswami, A.C.S.C.

Counsel for the Respondents:
Sri Pankaj Misra, Sri Swapnil Kumar
Sri H.P. Dube

Indian Stamp Act, 1899-Section 31imposition of penalty and impounding
the
document-application
for
fixing
valuation
of
property
sought
to
purchase-held-without
jurisdiction-as
neither instrument nor any abstract of itbrought before collector.

Held: Para-22 & 23
22. In the present case, neither any
instrument was brought before Collector so
as to attract sub-section (1) of Section 31
nor at any point of time any abstract of
instrument
was
placed
before
him.
Therefore, in my view, here is not a case
where Section 31 could have been invoked.

23. Since in the present case no such
instrument
was
ever
placed
before
authority concerned, in my view, exercise of
power by ADM (F&R) by passing impugned
order without having any instrument before
him,
is
patently
illegal
and
without
jurisdiction.

Case Law discussed:
AIR 1951 All 851; AIR 1956 All 453; AIR 1971
SC 787.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition has been preferred
by State of U.P. assailing an order dated
25.02.2012 passed by the State's own officer,
i.e., Additional District Magistrate (Finance
and Revenue), Agra (hereinafter referred to
as the "ADM (F&R)" in Case No. 93/201112 in purported exercise of powers under
Section 31 of Indian Stamp Act, 1899
(hereinafter referred to as the "Act, 1899").

2. This Court issued notices to
respondents. I have perused the office
report dated 18.11.2013. Service upon
respondent no. 1 is deemed sufficient. Sri
H.P.
Dube,
Advocate
has
put
in
appearance on behalf of respondents no. 5
and 6, i.e., ADM (F&R), who has also
been impleaded in person. Sri Swapnil
Kumar, Advocate has put in appearance
on behalf of respondents no. 2, 3 and 4.

3. The short question up for
consideration is, "whether Section 31 of Act,
1899 is attracted to the case in hand or not".

4. It appears that respondent no. 1 M/s
Nalanda Serv Infraventure Pvt. Ltd. filed an
application (undated) before ADM (F&R)
under Section 31 of Act, 1899 stating that it
proposes to purchase an immoveable
property, i.e., No. 2/83/2/84 total area 4470
sq. yards, i.e., 3737.367 sq. mater, out of
which 2125 sq. yards shall be jointly sold by
Vijay Nijhavan, Sandeep Kochar and
Naveen Lamba to respondent no. 1 and 2354
sq. yards would be sold by M/s Cheetarmal
Ramdayal, hence the ADM (F&R) was
requested to determine market value of
aforesaid property proposed to be purchased
by respondent no. 1. The ADM (F&R) vide
1 All] State of U.P. Vs. Nalanda Serv Infraventure Pvt. Ltd. & Ors.
203
order dated 21.02.2012 directed Tehsildar
(Judicial) to make inquiry and submit
valuation report. It was submitted by
Tehsildar (Judicial) concerned on 24.02.2012
and on the very next day, i.e., 25.02.2012 the
ADM (F&R) passed impugned order.

5. It is contended that the instrument
of purchase, i.e., draft sale deed was never
placed or brought before ADM (F&R)
and, therefore, he had no jurisdiction or
authority to proceed under Section 31
since bringing of instrument before
Collector is the condition precedent to
attract Section 31 of Act, 1899.

6. Learned counsel appearing for
respondents no. 2, 3 and 4 did not dispute
that instrument in any manner was not
placed before Collector of ADM (F&R)
till he passed the order dated 25.02.2012,
impugned in this writ petition. On the
contrary, in para 10 of the counter
affidavit, it is averred that there is no
requirement, in any case, for availability
of
instrument
before
Collector
for
adjudicating upon the market value of the
property and duty payable on the
instrument for the purpose of attracting
Section 31 of Act, 1899. In para 11 it is
also said that even respondent no. 5 did
not call for the instrument executed in
favour of aforesaid respondent.

7. During course of oral argument
also Sri Swapnil Kumar, learned counsel
appearing for respondents no. 2, 3 and 4,
did not dispute that the instrument was
never brought before Collector either
when application was submitted under
Section 31 or even subsequently, at any
stage, till the impugned order was passed.

8. In my view it is the instrument
itself
which
brings
jurisdiction
of
Collector, in, to determine the duty with
which the said instrument is chargeable.
In other words if the instrument itself is
not brought before Collector, he has no
occasion, authority or jurisdiction to
determine the duty chargeable since no
instrument is before him. This is evident
from a bare reading of Section 31(1) of
Act, 1899, which reads as under:

"31. Adjudication as to proper
stamp.--(1) When any instrument whether
executed or not, and whether previously
stamped or not, is brought to the
Collector, and the person bringing it
applies to have the opinion of that officer
as to the duty (if any), with which it is
chargeable, and pays the fee of such
amount as may be fixed by the State
Government by notification in the official
Gazette the Collector shall determine the
duty (if any) with which, in his judgment,
the instrument is chargeable." (emphasis
added)

9. Sub-section (2) further provides,
that the Collector may require the party
concerned to furnish with an abstract of
instrument and also with such affidavit or
other evidence, as he may deem necessary
to
prove
that
"all
the
facts
and
circumstances affecting chargeability of
instrument with duty or the amount of
duty with which it is chargeable are fully
and truly set forth therein".

10. The jurisdiction of Collector
under Section 31(1) is not invoked by a
mere application but it is the instrument
which is brought before Collector and in
respect thereof when Collector's opinion
is required as to what should be the
appropriate duty chargeable thereon, the
Collector shall determine the same. When
the instrument itself is not before
204 INDIAN LAW REPORTS ALLAHABAD SERIES
Collector, the question of such determination
obviously cannot arise. It is not a
hypothetical determination which is required
to be made by Collector. It is in respect of an
instrument which is placed before him, in
regard whereto, he has to render his opinion
about the appropriate duty chargeable on
such instrument and considered.

11. Though the parties have not been
able to place any direct authority on the
subject in question but I find some
support from certain authorities in which
Section 31 has been read.

12. In Chunni Lal Burman Vs.
Board of Revenue, U.P. and others, AIR
1951 All 851 a Division Bench of this
Court while reading Sections 31 and 32 of
Act, 1899 says that aforesaid provisions
make it clear that when an instrument is
presented to Collector for his opinion as
to the duty chargeable upon it, the
question of impounding the document by
him would not arise if the instrument is
not sufficiently stamped. The only duty
caste upon Collector is to determine
stamp duty payable upon the instrument.
If thereafter the applicant decides to pay
such stamp duty or deficient stamp duty,
as the case may be, and other conditions
under Section 32 are fulfilled, the
Collector would make an endorsement on
the
document/instrument
that
it
is
sufficiently
stamped
but
he
cannot
impound the document and impose
penalty for the reason that Section 33 of
Act, 1899 is not attracted at the stage
when Collector is required to determine
stamp duty payable on an instrument
brought
before
him
by
invoking
jurisdiction under Section 31 or 32 of Act,
1899. This decision clearly contemplates
the
bringing
of
instrument
before
Collector to attract Section 31.

13. Again in Mohd. Amir Ahmad
Vs. Dy. Commissioner and others, AIR
1956 All 453 a Full Bench of this Court
considered the intra-relation and scope of
Sections 31, 32 and 33 of Act, 1899. It
observed:

"The procedure, in cases to which
Sections 31 and 32 apply is that when in
instrument
is
brought
before
the
Collector, he proceeds to give his opinion.
After the Collector has given his opinion
it is left entirely to the applicant to pay the
duty or not . . . . ." (emphasis added)

14. In appeal this matter was taken
to Apex Court and the decision of this
Court has been affirmed in State of U.P.
Vs. Mohd. Amir Ahmad, AIR 1971 SC
787. The Court said that Section 33 does
not extend to determination of question as
to what the duty payable is. Such function
comes within the scope of Section 31,
which is complete by itself and ends by
saying that "the Collector shall determine
the duty with which, in his judgment, the
instrument
is
chargeable,
if
it
is
chargeable at all". The Court then said:

"The scheme of the Act shows that
where a person is simply seeking the
opinion of the Collector as to the proper
duty in regard to an instrument, he
approaches him under Section 31. If it is
not properly stamped and the person
executing the document wants to proceed
with effectuating the document or using it
for the purpose of evidence, he is to make
up the duty under Section 32 the Collector
will then make an endorsement and the
instrument will be treated as if it was duly
stamped from the very beginning. But if
he does not want to proceed any further
than the seeking the determination of the
duty payable; then, '-no consequence will
1 All] State of U.P. Vs. Nalanda Serv Infraventure Pvt. Ltd. & Ors.
205
follow, 'and an executed document is-in
the same position as instrument which is
unexecuted and unstamped and after the
determination of the duty the Collector
becomes
functus
officio
and
the
provisions of Section 33 have no
application. The provisions of that section
are a subsequent stage when something
more than mere assessing of the opinion
of the Collector is to be done."

15. Learned counsel for the
respondents, however, made a reference
to a judgment dated 09.05.2007 of this
Court passed in Writ Petition No. 21535
of 2006, whereby the writ petition was
dismissed
challenging
an
order
determining stamp duty payable on an
application filed and contended that in
that matter also, the document/instrument
was not placed before Collector yet this
Court declined to interfere and dismissed
the writ petition. I have gone through the
aforesaid order and finds that this
question, whether Section 31 can be
attracted if no instrument is brought
before Collector at any point of time, was
neither raised, nor argued, nor decided
and, therefore, aforesaid order does not
constitute a precedent deciding an issue
which is up for consideration in this case
and hence is not binding on this Court. A
decision would be binding on the
coordinate court if an issue has been
raised therein, argued and decided since it
is the ratio laid down in the decision
which binds a Court and not what actually
has been done ultimately by the Court. A
case is decided in various ways and many
a times under Article 226 of the
Constitution,
the
Court
declines
to
interfere for different reasons since it is a
discretionary extraordinary jurisdiction. It
is the ratio which binds having the
precedential value and not what has
actually been done by the Court. I do not
find that any exposition of law has been
settled in above case that if no instrument is
brought before Collector, still he can
proceed to determine market value of the
property, in one or the other manner, by
taking recourse to Section 31 of Act, 1899.

16. Reliance is also placed on a
recent decision of Apex Court in
Raymond Ltd. and another Vs. State of
Chhattisgarh and others, 2007(3) SCC 79.
Referring to para 13 thereof that on mere
application filed by a person the Collector
is competent to determine stamp duty,
payable, even if no instrument is placed
before him, an attempt was made to read
para 13 of the judgment as if Section 31
of Act, 1899 provides power to Collector
to determine duty with which the
instrument would be chargeable only if an
application in this behalf is made. The
phrase "application in this behalf made" is
stressed to argue that the Apex Court has
read Section 31 in the manner as if the
Collector
would
be
justified
in
determining stamp duty payable even if
no instrument in whatever manner is
brought before him.

17. From a careful reading of the
judgment, however, I find that this
argument is totally fallacious and even
otherwise is incorrect. From the facts
stated in initial part of the judgment, i.e.,
paras 2 and 3, it is evident that alongwith
application instrument was also available
before Collector. Thus there was no
dispute on this aspect. The application
was filed by appellant-company with a
view to pre-assess the stamp duty payable
on the instrument on sale and the impact
thereof. The Collector constituted a
valuation
committee
who
assessed
property and submitted report. Thereafter
206 INDIAN LAW REPORTS ALLAHABAD SERIES
the Collector passed an order determining
stamp duty chargeable on the instrument
under Section 31 of Act, 1899. Para 3 of the
judgment makes it clear that the said order
was accepted by appellant, M/s Raymond
Ltd. and the amount of stamp duty and
registration
charges
were
deposited,
whereupon Collector made an endorsement
on 16.01.2001, on the deed of conveyance,
by way of a certificate, in terms of Section
31, whereupon the instrument was duly
stamped.
Therefore,
a
deed
of
conveyance/instrument
was
already
available before Collector on which he
made assessment and passed order though it
was not executed at that time but executed
subsequently on 19.01.2001 and was
registered on 21.01.2001. Therefore, it is
factually incorrect on the part of petitioner,
in the present case, that the aforesaid
decision has interpreted Section 31 as if
determination of stamp duty can be made
by Collector even if no instrument is
brought before him and only an application
is filed. Moreover, in para 13 also the Court
further said:

"13. . . . .The power to determine the
amount of stamp duty chargeable for the
instrument is, thus, contained in Section
31. . . . . . "

18. In para 18 of the judgment the
Court further said:

"18.
Section
31
of
the
Act
contemplates two situations viz. where the
Collector determines that the instrument
brought before him was already fully
stamped or an additional amount of stamp
duty is required to be paid. The question
of issuance of a certificate by way of an
endorsement in either of the cases would
arise when the additional stamp duty, if
any, is paid." (emphasis added)

19. It is then argued that, Section
31(1) if read as if the instrument in its
entirety must be brought before Collector
then sub-section (2), as such, would
render superfluous and redundant which
permits the Collector to be furnished with
an
"abstract
of
instrument".
It
is
contended that under sub-section (2) the
Collector may require applicant to furnish
with an abstract of instrument, meaning
thereby, when an application is filed it is
open to applicant not to place any
instrument before Collector and simply
require his opinion with regard to stamp
duty chargeable on an instrument which
has yet to see light of the day.

20. In my view, this argument is
nothing but a gross misinterpretation of
scheme of statute. Sub-section (1) is
applicable only when an applicant brings an
instrument before Collector irrespective of
the fact, whether the instrument is executed
or not but the bringing of instrument before
Collector
is
a
condition
precedent.
However, sub-section (2) may come into
picture when an instrument formally has not
been drafted and an application is filed
seeking opinion of Collector about the
chargeability of stamp but in such a case an
abstract of instrument has to be placed
containing all the fact and circumstances
which may affect the chargeability of
instrument with duty.

21. It cannot be doubted that
stipulations and conditions settled in
instrument are relevant for determining
the chargeability of stamp duty on an
instrument. The mere location of land and
the fact that somebody wants to sale or
purchase the said land, is not sufficient.

22. In the present case, neither any
instrument was brought before Collector
1 All] Raj Nath Dubey & Anr. Vs. D.D.C. Allahabad & Ors.
207
so as to attract sub-section (1) of Section
31 nor at any point of time any abstract of
instrument
was
placed
before
him.
Therefore, in my view, here is not a case
where Section 31 could have been
invoked.

23. Since in the present case no such
instrument
was
ever
placed
before
authority concerned, in my view, exercise
of power by ADM (F&R) by passing
impugned order without having any
instrument before him, is patently illegal
and without jurisdiction.

24. In the result, the writ petition is
allowed. The impugned order dated
25.02.2012 is hereby quashed.

25. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2013

BEFORE
THE HON'BLE RAM SURAT RAM (MAURYA), J.

Civil Misc. Writ Petition No.46506 of 2013

Raj Nath Dubey & Anr... .Petitioners
Versus
D.D.C. Allahabad & Ors.... Respondents

Counsel for the Petitioners:
Sri A.C. Pandey, Sri Rajeev Mishra

Counsel for the Respondents:
C.S.C., Sri A.K. Mishra, Sri Vrindaban
Mishra

C.P.C.-Section 11-Principle of 'resjudicata'-
earlier decision about facts regarding
illegitimate son being finding of factbarred by resjudicata-but even being
illegitimate
son
of
Kanhai-who
died
issuless-having illegitimate relation with
mother of petitioner-entitled to succeednot
barred
by
resjudicata-order
of
consolidation
authorities
modified
accordingly.

Held: Para-22
In view of the aforesaid discussions, the
writ petition succeeds and is allowed. It is
held that the findings in the previous
judgments that Kanhai was 'Brahmin'
(Hindu) by caste and died unmarried; The
petitioners failed to prove that Smt. Jhulari
was the wife of Kanhai and they were sons
of Smt. Jhulari and Kanhai; Jagannath,
Amar Nath and Raj Nath were born to Smt.
Ram Pyari, who was widow of Ram Nath,
due to her illegitimate relation with Kanhai,
are the findings on issues relating to the
facts and operate as res-judicata. However,
the findings that children born to Smt. Ram
Pyari, due to her union with Kanhai were
illegitimate children and not entitled to
inherit Kanhai are findings on the legal
issues and the previous judgments in this
respect would not operate as res-judicata,
in the subsequent proceedings, in respect of
other properties.

Case Law discussed:
AIR 1971 SC 2355; AIR 1966 All 84 (FB);
(2011) 2 SCC 705; 1969 RD 10; 1967 RD 101;
1971 RD 48; (2013) 5 SCC 252; (2003) 1 SCC
730; (2010) 11 SCC 483; 1967 RD 101; 1971
RD 48; (2009) 9 SCC 757; AIR 1953 SC 65;
AIR 1966 SC 1061; (2013) 5 SCC 252; AIR
1971 SC 2355; (2005) 12 SCC 1; AIR 2006 SC
2965; (1991) 2 AC 93; AIR 1981 SC 178;
(1997) 2 SCC 53; AIR 1960 SC 971; AIR 1992
SC 756; (2010) 9 SCC 209; AIR 1965 SC 1970.

(Delivered by Hon'ble Ram Surat Ram
(Maurya), J.)

1. Heard Sri Rajeev Mishra and Sri
A.C. Pandey, for the petitioners and Sri
A.K. Mishra, Senior Advocate, assisted
by Sri Vindraban Mishra, for the
contesting
respondents
(hereinafter
referred to as the respondents). There is
no factual controversy, at this stage, as
such the counsel for the respondents
proposes
not
to
file
any
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