- (1.) AMITAVA Lala, J. The issue is related to recovery of further stamp duty for a sum of Rs. 1,22,900 as per the order of the Registrar dated 10-7-2003.
(2.) THE fact remains that in an auction held by the authority, the petitioner was offered to run a slaughter house on payment of Rs. 5,30,000 as licence fee for five years w. e. f. 1-7-1998 to 1-7- 2003. After expiry of the earlier period of licence, a fresh auction was held when the offer was given for a sum of Rs. 7,00,000 which was the highest bid. This was made for a period of 5 years w. e. f. 5-2-2003 to 4-7-2008. An agreement was executed on 10-7-2003 on payment of stamp duty of Rs. 100/- on execution of the document. THEreafter a notice has been issued demanding a sum of Rs. 1,22,900. However, ultimately the Registrar held against the petitioner and demanded the said sum. Although the provision of appeal is available but since the question has been decided by this Court in the case reported in 2005 (98) RD 662, M/s. Strong Construction v. State of U. P. We cannot deviate from such order where hundreds of writ petitions were decided on the question of authority. We have gone through the judgment and also independently according to us, stamp duty cannot be recovered in such manner by the authority. It is a jurisdictional question. Such duty can be recovered when on an instrument consideration will pass forever from one party to another. A sum, if deposited as earnest money or security deposit which will be subsequently recoverable by the depositor, cannot be said to be a part of consideration of an instrument by which a property will pass forever. Therefore, the order which has been passed by the Registrar concerned, is illegal and a question of illegality can always be challenged in writ Court irrespective of having alternative forum for adjudication. Thus, in totality we find that there is an affirmative case in favour of the petitioner. We have called upon the learned Standing Counsel to make submissions on this score but we do not find any prudent reply. Therefore, taking into totality of the matter, in our view, the writ petition can be disposed of by setting aside the order impugned imposing the liability of stamp duty of Rs. 1,22,900.
(3.) THUS the writ petition stands disposed of. However, no order is passed as to costs. In any event, it is to be remembered that this order will be applicable only in respect of the stamp duty on the earnest money or security amount. Petition allowed. .;