AJAI NARAYAN AGARWAL Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Anoop Trivedi assisted by Ms. Pooja Agarwal for the petitioner and Shri Sanjay Goswami, learned Addl. Chief Standing Counsel assisted by Shri Shashikant Upadhyay, learned standing counsel for the respondents.

(2.) The petitioner in the writ petition is seeking quashing of the order dated 21.9.2012 passed by the Commissioner, Allahabad Division, Ballahabad by which he has remanded the Stamp Case relating to the property in dispute to the Collector, Stamps for reconsideration.

(3.) Briefly stated the facts of the case, as stated in the writ petition, are that one Sri Karaly Charan Banerjii took Plot No. 67, George Town, Allahabad on lease on 23.11.1923 for 90 years from the State Government. The lease deed was executed and thereafter he constructed a house on the plot which was numbered as House No. 2(old) 11(New), Malviya Road, Allahabad. Sometime in 1940 this house was sold in an auction and was purchased by Shri Kartar Narain Agarwal. His name was mutated in the revenue records of the Nazul Department. After his death the name of his heirs Sri Om Narain Agarwal and others were mutated in the Nazul record. One Shri Satya Prakash alleging that there was an agreement to sell the house property in question filed suit no. 83 of 1976 against Shri Om Narain Agarwal and others. The suit ended in a compromise on 27.1.1983 and on that basis a compromise decree was drawn. The court then executed the sale deed on 7.11.1984 in favour of Shri Satya Prakash. The said Satya Prakash purchased the House No. 2(old) 11(New) Malviya Road, Allahabad with all the lease hold rights of the land for a sum of Rs. 75,000/-. Sometime in 1989 the petitioner along with some others filed suit no. 279 of 1989 in the court of Civil Judge (J.D.) against Shri Satya Prakash for sale of the house property in favour of the plaintiffs on the ground that the plaintiff had a right of pre-emption to purchase in terms of the compromise decree passed in Arbitration suit no. 35 of 1943. Here also the parties to the suit entered into a compromise on 17.11.1995 and it was agreed that portion of the house No. 2 (old) 11 (new) will be transferred to Sangam Educational Society on a payment of Rs. 1,25,000/- with lease rights. This amount was to be paid by 31.3.1996. The civil court passed a decree in terms of the compromise dated 17.11.1995. The decree holder also deposited the amount of Rs. 1,25,000/- by 31.3.1996 but since the judgement debtor did not execute the sale deed the decree holders filed an execution case No. 43 of 1996. The execution proceedings were finally concluded and the decree executed on 7.8.2001. It is stated that the court determined the stamp duty on the basis of the total sale consideration of Rs. 1,125,000/- and determined the stamp duty at Rs. 12,500/-. It is stated that the draft sale deed was presented before the court with lease hold rights of the land/building. It is also stated that the court vide its order dated 31.5.1999 called upon the decree holders for modification of the draft specifying that only lease hold right of the lessor was being transferred and not the Nazul land because the land itself cannot be transferred. Copy of this order has been filed as Annexure-5 to the writ petition. However, alleging that there was deficiency of stamp duty on the ground that stamp duty was not paid on the sale deed as the land had been sold proceedings under section 33/47-A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899) were initiated against the petitioner. The Society filed its objections and the A.D.M. (F and R), Allahabad by his order dated 25.5.2017 has held that only the lease rights of the lessor had been transferred and not the ownership of the land and therefore stamp duty was not payable on the market value of the land but considering the deed as an assignment of the lease hold rights of the lessor as per the provisions of Article 35 (4) of the Schedule to the Act, 1899 a demand notice was issued to the Society on 19.4.2003 to pay the amount in respect of the land treating the land to be a lease land which was paid by the Society as demanded and the State Government executed a conversion deed on 3.12.2004.