STATE OF U.P. Vs. ADDL. COMMISSIONER

JUDGEMENT

(1.) Heard the Standing Counsel for the petitioners and Sri Utpal Chatterjee representing respondent No.2.

(2.) A sale deed dated 10.10.2002 regarding four shops numbered as 387, 388, 389 and 390 which were part of House No. 130 and covered a total area of 76.08 square metre was executed in favour of respondent No.2. The market value of the property was determined and stamp duty was paid accordingly. A spot inspection was made by the concerned Sub-Registrar on 25.11.2003 and a report was submitted stating that constructions existing on the area purchased by the respondent No. 2 were more than what was disclosed in the sale deed dated 10.10.2002 and a four floor building existed on the aforesaid plots. It was stated by the Sub-Registrar that sale deed was executed only regarding the shops existing on the ground floor of the area even though there were shops and residential apartments on the first, second and third floor of the same building. As a consequence of the aforesaid report of the Sub Registrar, Case No. V-434/2003-2004, under Sec. 47-A of the Indian Stamp Act, 1899 was registered before the Additional Collector (Finance and Revenue), District-Meerut and a show cause notice was issued to the respondent No. 2 who submitted his reply denying the correctness of the report of the Sub Registrar. In the reply submitted by the respondent No. 2 it was admitted that a four floor building existed on the plot at the time of the execution of the sale deed dated 10.10.2002 but the three floor constructed over the ground floor were done illegally by one Sri Moiddin Ahmad who had forcibly and illegally occupied the shops as well as roof of the shops purchased by respondent No. 2 and had unauthorizedly made his constructions over the same. It was stated in the reply that respondent No. 2 did not purchase the shops illegally constructed by the aforesaid Moiddin Ahmad and, therefore, was not liable to pay any stamp duty on the same. It was further stated in the reply submitted by the respondent No. 2 that Original Suit No. 168 of 2003 had already been instituted by the respondent No. 2 praying for a decree of possession in his favour after getting the constructions made over the roof by Sri Moiddin Ahmad demolished. However, the Additional District Magistrate (Finance and Revenue) relying on the report of the Sub-Registrar, vide his order dated 18.09.2004 held that there was a deficiency of Rs. 48,900.00 in payment of stamp duty on the sale deed dated 10.10.2002 and through the aforesaid order, imposed a penalty of Rs. 48,900.00 on the respondent No. 2. The Additional District Magistrate (Finance and Revenue), District Meerut vide his aforesaid order also directed that the said amount along with an interest calculated @ 1.5% per month be recovered from the respondent No. 2. Aggrieved by the order dated 18.09.2004 passed by the Additional District Magistrate, (Finance and Revenue), Meerut, the respondent No. 2 filed Appeal No. 03 of 2004-05 before the Additional Commissioner, Meerut Division, District Meerut who vide his order dated 18.04.2006, allowed the aforesaid appeal. The order dated 18.04.2006 passed by the Additional Commissioner, Meerut Division, District Meerut in Appeal No. 03 of 2004-05 has been challenged in the present writ petition.

(3.) A perusal of the records annexed with the writ petition as well as counter affidavit filed by respondent No. 2 shows that only shop Nos. 387, 388, 389 and 390 built over an area of 76.08 square metre and which were part of House No. 130 were purchased by the petitioner. The consideration amount was accordingly paid and the stamp duty was also paid accordingly. The constructions existing on the roof of the aforesaid shops were not purchased by the petitioner through the sale deed and the sale deed did not have the effect of transferring the ownership of the said constructions to respondent No. 2. A perusal of the plaint instituting Original Suit No. 168 of 2003 also shows that respondent No. 2 had not admitted his ownership over the constructions existing on the roof of shop Nos. 387, 388, 389 and 390 and had prayed for a decree of possession and demolition of the constructions illegally made by Moiddin Ahmad over the roof of the said shops without the consent of either respondent No. 2 or vendor of respondent No. 2. Apart from the aforesaid, it has been held inNand Kumar Agarwal and Another Vs. State of U.P. and Others, 2009 (107) RD 438that in proceedings under the Stamp Act the stamp duty payable on an instrument has to be determined by reference to the terms of the document and the stamp authorities are not empowered to take into consideration any evidence dehors that instrument. The rights and liabilities of the parties to the instrument are determined by the recitals in the instrument.