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Raghvendra Pratap Shahi v. State Of U.P. & Others - WRIT - C No. 40542 of 2003 [2007] RD-AH 2361 (13 February 2007)


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                    Raghvendra Pratap Shahi


State of U.P. and others.


By means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari for quashing the order dated 26.3.2003, 25.7.2003 and 27.6.2003 passed by respondent no.3 and 2 respectively. Further prayer is for issuing a writ in the nature of mandamus commanding the respondents not to realize any money in pursuance of the order-dated 26.3.2003.

The facts arising out of the present writ petition are that in the year 1990, the petitioner was granted a license for realization of parking fee on taxi stand of Nagar Panchayat, Pepeeganj, district-Gorakhpur from 1.6.1998 to 31.3.1999 amounting to Rs.5 lacs. The District Magistrate confirmed the said auction by his order-dated 15.5.1998. A work order was issued and the petitioner completed his work according to the agreement and an agreement-deed was executed on Rs.100/- stamp paper. After completing the formalities the petitioner was granted a license only for a short period i.e. 11months.

After a lapse of 4 years respondent no.3 sent a notice to the petitioner by registered post indicating that there is a deficiency of stamp duty amounting to Rs.91255/-. Immediately after receiving of the aforesaid show cause notice, the petitioner submitted a reply stating therein that the petitioner neither got any lease of any plot nor any registration of any document has taken place and the petitioner was granted a license/permission on the basis of the auction for the purpose of realization of parking fee. The respondent no.3 without considering the aforesaid pleas taken by the petitioner, passed an order dated 26.3.2003 rejecting the claim of the petitioner and imposing the stamp duty to the tune mentioned above. Aggrieved by the aforesaid order, the petitioner filed an appeal.

The specific ground has been taken that it was a license for the purpose of collection of parking fee. No lease deed was executed, therefore, there is no requirement of payment of stamp duty according to the valuation of the Theka. Further submission has been made that in view of the provisions of the Act, the realization of the aforesaid stamp duty is time barred.

The relevant provision has been brought to the knowledge of the Court that according to Section 33 of the Indian Stamps Act 1899, Clauses 4 and 5 clearly provide a period of limitation, which is 4 years. Admittedly the demand of deficient stamp duty is beyond 4 years and according to Section 33, it is time barred as the same has not been issued within a period of 4 years, as such, the respondent cannot realize the same. Sub-Clause 3 of Section 47 of the Stamp Act gives a power to the Collector that in case it is brought to the notice that he can initiate a proceeding sue moto in case it comes to the knowledge that any document which has been registered and there is deficient stamp duty but the period provided in Sub-Clause-3 is 4 years from the date of registration of any instrument.

In support of his contention the petitioner has placed reliance upon various judgment of this Court. One of the judgments relied upon by the learned counsel for the petitioner is Civil Misc. Writ Petition No.13501 of 2004 Ved Prakash Vs. State of U.P. and others and has submitted that this Court in the similar circumstances has taken a view that the realization of the stamp duty is time barred in view of the provisions of the Act and that cannot be done. It has also been stated by the petitioner that no permission has been taken from the State Government. This fact has not been denied by the respondent in the counter affidavit. Thus it has been submitted that the entire proceeding initiated against the petitioner is being beyond four years and as such barred by limitation and, therefore, all the consequential orders passed by the respondents are liable to be quashed.

On the other hand learned Standing Counsel has submitted that the contract was issued to the petitioner for taxi stand and the instrument was executed between the petitioner and the Nagar Panchayat which comes within the definition of lease as provided under Section 2 (16-C) of the Indian Stamp Act. Therefore, the petitioner is liable for payment in accordance with the provisions contained in Article 35-B provided in Schedule 1-B of the Act. The deed is not license rather it is a lease. The various other pleas have been taken in the counter affidavit and it has been stated that the petitioner is liable for payment of stamp duty. In para 10 of the counter affidavit it has been stated that the benefit of power created under Section 47-A (4) of the Stamp Duty Act is not applicable to the petitioner's case as the case has been considered by the relevant authorities.

I have heard the learned counsel for the petitioner and the learned Standing Counsel and have perused the record. Admittedly, the contract was given to the petitioner in the year 1998 and from the perusal of the provisions of the Stamp Act it clearly appears that Sub-Section 5 of Section 33 of the Act the period of limitation has been given as 4 years. The second provision to Section 33 (5) of the Act has been added w.e.f. 1.9.98. Without adjudicating the issue whether the proviso shall apply or not, admittedly the instrument has been executed in the year 1998, therefore, the provisions of Sub-Section 5 will be applicable and the petitioner is entitled to the benefit of provisions of Section 33 as well as Section 47 of the Act giving the benefit of limitation. The same has not been denied in the counter affidavit filed on behalf of the respondent. In such a situation taking into consideration all the facts the petitioner is entitled for the relief claimed and no recovery in view of the aforesaid provisions can be made.

In view of the aforesaid fact, the writ petition is allowed. The orders dated 26.3.2003, 25.7.2003 and 27.6.2003 passed by respondents no.3 and 2 respectively are hereby quashed. It is made clear that there will be no recovery against the petitioner. No order as to costs.




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