Heard learned counsel for petitioner and learned Standing Counsel for respondent.
The petitioner by means of present petition has assailed the order dated 30.8.2019 passed by respondent no.2-Assistant Commissioner, Stamp, Prayagraj in Case No.5124 of 2018, under Section 47-A/33 of Indian Stamp Act, whereby in respect of sale deed dated 22.10.2018, he held the deficiency in stamp duty to the tune of Rs.1,07,000/- and further, has imposed a penalty of Rs.10,000/- upon the petitioner. The petitioner has also assailed the order dated 8.9.2020 passed by respondent no.2- Assistant Commissioner, Stamp, Prayagraj rejecting the restoration application of petitioner.
The petitioner has purchased an agricultural land Arazi No.565, area 0.3030 hectare out of total area 0.0625 hectare situated in village Shripur, Pargana- Kewai, Tehsil- Handia, District Prayagraj by sale deed dated 22.10.2018.
On the report of the Sub Registrar, Handia dated 26.10.2018, a proceeding under Section 47-A/33 of the Indian Stamp Act has been initiated against the petitioner on the ground that the petitioner has paid deficient stamp duty amounting to Rs.1,07,000/-. On the said report, a Case No.5124 of 2018, under Section 47-A/33 of Indian Stamp Act was registered against the petitioner.
A notice was issued to the petitioner to show cause as to why he may not be directed to pay the deficient stamp duty in the registration of sale deed dated 22.10.2018, and further as to why a penalty may not be imposed upon him.
The petitioner, despite service of notice, did not appear and accordingly, the Assistant Commissioner, Stamp, Prayagraj passed an ex-parte order on 30.8.2019, whereby he has held the deficiency in stamp duty to the tune of Rs.1,07,000/- on sale deed dated 22.10.2018, and further, imposed a penalty of Rs.10,000/- and also directed him to pay interest @ Rs.1.5% per month on the deficient stamp duty from the date of registration of sale deed.
When the petitioner came to know about the said order, he filed an application to recall the order dated 30.8.2019 on the ground that after getting the notice of proceedings under Section 47-A/33 of the Indian Stamp Act, he contacted Sri Amar Yadav, Advocate and the counsel has informed him that the file is not traceable on account of shifting of office and told the petitioner to contact him after 3-4 days. When the petitioner again contacted his counsel after 3-4 days, the counsel told him that the file is not traceable and as soon as the file is traced, the recall application shall be filed. Thereafter, the petitioner again contacted his counsel and he was again informed that as soon as the file is traced, the recall application shall be filed.
Since the petitioner had to go out of station to earn his livelihood, therefore, he has requested his counsel to file recall application and if his presence is needed, he may be given information so that petitioner may come on the date fixed.
The respondent no.2 by order dated 8.9.2020 dismissed the recall application holding that notice of aforesaid proceeding had been served upon the petitioner, and accordingly, petitioner had due notice about the pendency of the case, and therefore, no case for recall of the order is made out.
Challenging the order dated 8.9.2020, learned counsel for petitioner submits that the reason given by the petitioner in recall application for non appearance in the case was bonafide and genuine, and the respondent no.2 without appreciating the correct facts on record, dismissed the recall application of the petitioner. He submits that respondent no.2 while dismissing the recall application has not adverted to any of the grounds on which the recall application was filed, therefore, the order of the respondent no.2 rejecting the recall application is illegal and not sustainable. He further submits that even otherwise the order of the respondent no.2 dated 30.8.2019 is not sustainable as no reason has been assigned, inasmuch as a perusal of the order dated 30.8.2019 reveals that respondent no.2 has not given any basis as to how there was deficiency in stamp duty of Rs.1,07,000/-.
Learned Standing Counsel for respondent submits that the Assistant Commissioner, Stamp, Prayagraj while rejecting the recall application has returned a finding that notice was duly served upon the petitioner, and accordingly, the respondent no.2 dismissed the recall application of the petitioner. He further submits that it is evident from the order dated 30.8.2019 that the respondent no.2 after appreciating the facts on record held the deficiency in stamp duty to the tune of Rs.1,07,000/- in registration of sale deed dated 22.10.2018. Accordingly, he submits that the petitioner has failed to make out case for interference of this Court under Article 226 of the Constitution of India.
I have heard the rival submissions of the parties and perused the record.
From a reading of recall application, it is revealed that the petitioner after receiving the notice of proceeding under Section 47-A/33 of the Indian Stamp Act contacted his counsel, and on the information given by his counsel that the file is not traceable due to shifting of the office, the objection could not be filed. The applicant-petitioner time and again contacted his counsel, but on the assurance given by the counsel that objection shall be filed as soon as the file is traceable, the petitioner was under bonafide belief that the objection shall be filed by his counsel.
It is also stated in the recall application that when petitioner went out of the city to earn his livelihood, he had requested his counsel to inform him whenever his presence is required. Therefore, in the opinion of the Court and considering the facts and circumstances of the case, this Court finds that the petitioner has given sufficient reason for his non appearance in the case and respondent no.2 has not adverted to any of the reasons given by the petitioner in recall application while rejecting the recall application, and this shows that the recall application has been rejected by the respondent no.2 without application of judicial mind. Accordingly, the order dated 8.9.2019 passed by respondent no.2 is not sustainable.
Now, coming to the order passed by respondent no.2 dated 30.8.2019 by which he has held that there was deficiency of Rs.1,07,000/- in payment of stamp duty and also imposed penalty and interest upon the petitioner. The relevant portion of the order dated 30.8.2019 passed by respondent no.2 is reproduced hereinbelow:-
"???????? ?? ?????? ????? ???????? ?? ??????? ? ??????? ???? ???? ???????? ?? ?????? ?? ?? ???? ??????? ??? ??? ?? ????????? ??? ??? ??????? ?? ???????? ?????? ?????? ????? ????? ?? ?? ??? ??? ?????? ???? ?? ?????? ???? ?? ??? ???, ?????? ??????? ???????? ?? ?? ?? ???? ?? ??????? ???? ??? ?? ? ?? ???? ?????? ???? ???? ???????? ???? ???? ??? ????????? ??? ?? ???????? ????????? ??? ????????? ??? ????????? ?? ??????? ????? ?? ???? ???? ??? ???- ??? ?? ???? ?? ???? ???? ?? ?? ????? ?? ??? ??????? ????? ??? 1,07,000 ? ???????? ??? 10,000 ?????? ???? ???? ??? ??? ?? ????? ???????? ?? ???? 22.10.2018 ?? ???????? ?????? ?? ???? ?? ??? ??????? ????? ?? ?????? ?? 1.5 ??????? ???????? ?? ?? ?? ????? ?? ???? ???? ???? ??????? ?????? ???? ?????? ?? ??? ?? ????? ? ??? ???? ?? ??? ??? ?????? ??? ?????? ??????? ????????? ?? ???????? ???? ??? ??? ????? ??????? ???????? ????? ????? ?? ????"
A perusal of relevant portion of the order dated 30.8.2019, extracted above, reveals that respondent no.2 has not assigned any reason nor has been given any basis as to how he has arrived at a conclusion that there was deficiency in payment of stamp duty to the tune of Rs.1,07,000/-.
Since the order is non speaking and has been passed without application of judicial mind, therefore, this Court finds that order dated 30.8.2019 is also not sustainable.
For the reasons given above, the order dated 30.8.2019 and 8.9.2020 passed by respondent no.2-Assistant Commissioner, Stamp, Prayagraj are not sustainable in law and accordingly, set aside.
The respondent no.2-Assistant Commissioner, Stamp, Prayagraj, is directed to decide the Case No.5124 of 2018, under Section 47-A/33 of Indian Stamp Act afresh after giving opportunity of hearing to the petitioner strictly in accordance with law.
The writ petition is allowed subject to the observations made above.
Order Date :- 23.2.2021 Anil K. Sharma