Allahabad High Court
State Of U.P. Thru.Collector ... vs District Judge Lucknow & Ors. on 8 July, 2021
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 13618 of 2021
Petitioner :- State Of U.P. Thru.Collector Muzaffarnagar & Ors.
Respondent :- District Judge Lucknow & Ors.
Counsel for Petitioner :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard Sri Sharad Dwivedi, learned counsel appearing on behalf of the State of U.P. and its assigns, through virtual mode.
2. The petitioners are aggrieved by the order dated 18.12.2020 passed by the District Judge in Misc. Civil Appeal No.36 of 2011: State of U.P. and others Vs. Competent Authority and others.
3. It has been submitted by learned counsel for the petitioners that plot no.1536 is a large plot of land earlier belonging to Mahal Umar Daraj Ali Khan in village, Tehsil & District Muzaffarnagar. After his death the said property devolved upon his five sons. Three sons migrated to Pakistan and two sons, namely, Nawab Aijaz Ali Khan and Shamshad Ali Khan remained in India. Accordingly, 3/5 share of the heirs of Mahal Umar Daraj Ali Khan was declared as evacuee property under the Evacuee Property Act of 1950. Shamshad Ali Khan died issue-less, therefore, his 1/5 share also devolved upon Nawab Aijaz Ali Khan. Nawab Aijaz Ali Khan came to be recorded in the Khewat. He also executed a sale deed on 11.10.2001 with respect to his 2/5 share in favour of respondent no.2-Neeraj Jain. The respondent no.2 filed an application before the Board of Revenue that he may be permitted to purchase 3/5th share of the same property which had already declared as evacuee property and of which the Collector Muzaffarnagar, was the administrator, or that his 2/5th share should be separated from the total property. The Application was allowed on 27.10.2010 by the Board of Revenue without hearing the State of U.P.- petitioners herein. The Board of Revenue directed partition of composite property and separation of area of 2.510 hectare.
4. The petitioner being aggrieved, filed a Regular Civil Appeal under Section 14 of the Evacuee Interest (Separation) Act 1951 before the District Judge on 27.10.2010. The said Appeal was registered as Misc. Appeal No.36 of 2010. In the said pending Appeal, the petitioners moved an application on 31.03.2011 under Section 35 of the Indian Stamp Act that the sale deed in question dated 11.10.2001 in respect of 2/5 share of the property had not been duly stamped. Consequently, proceedings under Sections 33/38/47A/40B of the Stamp Act were registered and after the show-cause notice dated 01.04.2011, the show-cause notice was affirmed by the Writ Court, the order recording of deficiency of Stamp Duty determined as also the penalty imposed was issued. A proper Stamp Duty was determined as Rs.60.14 lakhs. The petitioners moved another application on 01.04.2014 under Section 35 of the Act before the District Judge, Lucknow that proper Stamp Duty having not been paid, the sale deed was not liable to be admitted in evidence. Learned Appellate Court directed the respondent no.2 to pay Stamp Duty as per market rate on the said sale deed. Consequently, a notice was issued to the respondent no.2 on 25.11.2014. Again the said proceedings were challenged before the High Court by the respondent no.2. The writ petition was dismissed on 26.02.2015.
5. The respondent no.2 filed S.L.P. wherein initially an interim order was granted but later on the S.L.P. was dismissed on 26.07.2017. During the pendency of the S.L.P., the petitioner no.3 had issued a Recovery Citation for Rs.6,61,54,000/- on 18.03.2015 which was the amount of penalty determined. The respondent no.2 again preferred a writ petition which was dismissed on 24.03.2015. The Recovery Citation been challenged and upheld by the Writ Court, the petitioner no.4 issued a fresh Recovery Citation for recovery of Rs.6.61 crores on 24.08.2017. The respondent no.2 preferred Writ C No.37353 of 2017 before this Court at Allahabad and the Court was pleased to grant interim order on 22.08.2017 directing the petitioner- respondent no.2 herein to deposit the deficiency of Stamp Duty of Rs.60,14,000/- and on deposit of such deficiency, the order of penalty of Rs.6.61 crores would remain stayed during the pendency of the petition. The petitioners thereafter moved an application under Section 42 of the India Stamp Act saying that the sale deed having not been duly stamped, it was inadmissible in evidence and prayed for staying of the proceedings till entire dues were deposited of the sale deed in question was duly stamped. The application dated 20.04.2019 was rejected on 29.01.2020. The petitioner thereafter filed another application on 27.02.2020 for return of alleged sale deed saying that it was not duly stamped as penalty has not been paid by the respondent no.2.This application has been decided by the respondent no.1 on 18.12.2020 which is an order under challenge before this Court.
The application of the petitioners has been rejected on the ground that the respondent no.2 has deposited the deficiency determined of Stamp Duty in compliance of the interim order dated 22.08.2017 in Writ C No.37353 of 2017 and the Court had stayed the deposit of penalty during the pendency of the writ petition. The respondent no.1 observed that penalty order having been stayed by the High Court, unless the said order is vacated, the sale deed could not be treated to have been liable to be struck off from the record and inadmissible as evidence. It ordered that the sale deed shall be readable as evidence subject to the outcome of the writ petition.
6. Learned counsel for the petitioners has submitted that by the order of the respondent no.1, it is clear that sale deed in question has not been properly stamped as the endorsement requires both deficiency in Stamp Duty to be paid and penalty to be paid by the purchaser. The word used is "and" and not "or" under Section 42 of the Act.
7. This Court finds that the argument of the learned counsel for the petitioners on law appears to be correct but the fact remains that compliance of Section 42 of the Indian Stamp Act cannot be done by the respondent no.2 only because of the interim order passed by this Court in the pending writ petition.
8. The Appellate Court is directed to continue to hear the Appeal and take evidence etc., but it should not pass the final order/ judgment in the Appeal in question till such time that Writ C No.37353 of 2017 is decided by this Court.
9. This petition is disposed of with a direction to the petitioners to approach this Court at Allahabad bringing all such facts that are necessary and file an application for vacation of interim order in the said writ petition as it prejudices their case before the District Judge in Misc. Civil Appeal No.36 of 2011.
Order Date :- 8.7.2021
Rahul
