STATE OF U.P. & ORS.versusAMBRISH TANDON & ANR.

                         [2012] 1 S.C.R. 422

A                      STATE OF U.P. & ORS.
                                  v.
                    AMBRISH TANDON & ANR.
                   (Civil Appeal No. 735 of 2012)
                         JANUARY 20, 2012
B
         [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

         Stamp Act, 1899 - s. 47A/33 - Deficiency in stamp duty
  - Execution of sale deed in favour of purchaser - Surprise
C inspection by District Magistrate - Deficiency found in
  payment of stamp duty- Case registered u/s. 47A/33 - Order
  passed by the Additional Collector demanding differential
   stamp duty with interest and penalty - Non-payment of the
   amount - Issuance of demand notice claiming the said
D amount plus 10% recovery charges - Writ petition - High
  Court issuing writ in the nature of certiorari quashing the order
  passed by the Additional Collector and the demand notice -
   Interference with - Held: Not called for - Though the Collector
  made a surprise site inspection, no record to show that all the
E details such as measurement, extent, boundaries were noted
  in the presence of the purchasers - At the time of execution
  of the sale deed, the property was used for residential purpose
  and the stamp duty was paid based on the position and user
  of the building on the date of the purchase - Mere use of the
F property for commercial purpose at a later point of time may
  not be a relevant criterion for assessing the value for the
  purpose of stamp duty - Nature of user relatable to the date
  of purchase and relevant for the purpose of calculation of
  stamp duty - A/so, it was the grievance of the purchasers that
  they were not given adequate opportunity by the Addi.
G Collector and order was passed on a public holiday- Though
  the matter could have been considered by the Appellate
  Authority, since there was no serious objection by the State
  relating to alternative remedy before the High Court, such
  objection is not interfered at this juncture.
H                                422
  STATE OF U.P. & ORS. v. AMBRISH TANDON &             423
                    ANR.
    Respondent purchased a property and on execution A
of sale deed paid stamp duty. The District Magistrate on
spot inspection found that there was deficiency in the
payment of stamp duty. The Additional Collector passed
an order demanding differential stamp duty with interest
and penalty but the respondents failed to pay the same. B
Thereafter, the Additional Collector issued a demand
notice under Section 47A/33 of the Stamp Act, to the
respondents claiming the amount due with recovery
charges. Aggrieved, the respondents filed a writ petition.
The Division Bench of the High Court issued a writ in the c
nature of certiorari quashin!J the order passed by the
Additional Collector (Finance & Revenue) and the
demand notice. Therefore, the appellant filed the instant
appeal.

    Dismissing the appeal, the Court                          D

     HELD: 1.1. A perusal of the proceedings before the
High Court show that the State was not serious in raising
this objection relating to alternative remedy and allowed
the High Court to pass orders on merits, thus, such           E
objection is not entertained at tt.is juncture though it is
relevant. In fact, on receipt of the notice from the High
Court in 2005, the appellants who are respondents before
the High Court could have objected the writ petition filed
under Article 226 and sought for dismissal of the same        F
for not availing alternative remedy but the fact remains
that unfortunately the State or its officers have not
resorted to such recourse. [Para 7] [428-F-H]

    1.2. It is the grievance of the respondents-purchasers
that they were not given adequate opportunity by the          G
Addi. Collector and order was passed on a public holiday.
Before the High Court as well as in this Court, the
respondents placed the order sheet which contains the
various dates and the date on which the ultimate decision
was taken by him. It shows that the matter was heard and      H
    \




    424     SUPREME COURT REPORTS               [2012] 1 S.C.R.


A decided on a public holiday. In all fairness, the High Court
  instead of keeping the writ petition pending and deciding
  itself after two years could have remitted the matter to the
  Addi. Collector for fresh orders. However, it had gone into
  the details as to the area of the plot, nature of the building
B i.e. whether it is residential or non-residential and based
  on the revenue records and after finding that at the time
  of execution of the sale deed, the house was used for
  residential purpose upheld the stand taken by the
  respondents and set aside the order dated 27.09.2004
c passed by the Addi. Collector. [Para 8, 6) [429-A; 428-B-
   0]
       1.3. Regarding the merits though the Collector,
  Lucknow made a surprise site inspection, there is no
  record to show that all the details such as measurement,
D extent, boundaries were not~d in the presence of the
  respondents who purchased the property. It is also
  explained that the plot in question is not a corner plot as
  stated in the impugned order as boundaries of ttie plot
  mentioned in the freehold deed executed by Nazool
E Officer and in the sale deed only on one side there is a
  road. It is also demonstrated that at the time of execution
  of the sale deed, the house in question was used for
  residential purpose and it is asserted that the stamp duty
  was paid based on the position and user of the building
F on the date of the purchase. The impugned order of the
  High Court shows that it was not seriously disputed
  about the nature and user of the building, namely,
  residential purpose on the date of the. purchase. Merely
  because the property is being used for commercial
G purpose at the later point of time may not be a relevant
  criterion for assessing the value for the purpose of stamp
  duty. The nature of user is relatable to the date of
  purchase and it is relevant for the purpose of calculation
  of stamp duty. Though the matter could have been
H considered by the Appellate Authority in view of the
   STATE OF U.P. & ORS. v. AMBRISH TANDON &                425
                     ANR.
reasoning that there was no serious objection and in fact          A
the said alternative remedy was not agitated seriously
and in view of the factual details based on which the High
Court has quashed the order passed by the Additional
District Collector, it is not interfered at this juncture. Under
these circumstances, there is no valid ground for                  B
interference with the impugned order of the High Court.
[Paras 8 and 9) [429-B-H]

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 735
of 2012.
                                                                   c
    From the Judgment and Order dated 25.01.2007 of the
High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow in Writ Petition No. 732 of 2005.

      Shail Kumar Dwivedi,A.A.G. Sanjay Visen, Abhinav             D
Srivastava, Vandana Mishra and Gunnam Venkateswara Rao
for the Appellants.

     KV. Viswanathan and Mathew for the Respondents.

     The Judgment of the Court of was delivered by                 E

     P. SATHASIVAM, J. 1. Leave granted.

      2. This appeal is filed against the final judgment and order
dated 25.01.2007 passed by the Division Bench of the High F
Court of Judicature at Allahabad in Writ Petition No. 732 (M/
B) of 2005 whereby the Division Bench while allowing the
petition filed by the respondents herein issued a writ in the
nature of certiorari quashing the impugned order dated
27.09.2004 passed by the Additional Collector (Finance & G
Revenue). Lucknow and the demand notice dated 20.01.2005.

     3. Brief Facts:

    a) A Sale Deed dated 16.04.2003 was executed between
Har Charan Singh and the respondents herein in respect of the      H
    426      SUPREME COURT REPORTS                   [2012] 1 S.C.R.

A property situated at 17/1 Ashok Marg, Lucknow measuring
     11,029 sq. ft. and registered as Sale Deed Document No.
    5341 of 2003. The total value of the property was computed
    as Rs. 1,55,28,860/- for the purposes of Stamp Duty and the
    respondents herein paid Rs. 15,53,000/- as stamp duty.
B
          b) The District Magistrate, Lucknow made a spot
    inspection of the property in question on 21.07.2003. During
  · inspection, the land has been found having an area of 12,099
    sq. ft. with a two storey building having an area of 5,646.3 sq.
C ft. at ground floor and an area of 5192.3 sq. ft. ai the first floor.
    In the inspection report, the property in question has been
    valued for Rs. 3,87,74,097/- and the stamp duty on the said
    property has been calculated by the competent authority as Rs.
    38,78,000/-. However, at the time of purchase, respondents
D herein paid Rs. 15,53,000/- as Stamp duty, hence a deficiency
    of Rs. 23,50,000/- has been pointed out by the authorities. The
    District Mi:!gistrate, vide report dated 26.07.2003, directed to
    register a case against the respondents herein

       c) On the basis of the aforesaid report, Case No. 653
E Stamp-2003 under Sections 47A/33 of the Indian Stamp Act,
  1899 (in short 'the Act') was registered. Vide order dated
  27.09.2004, the Additional Collector (Finance & Revenue)
  Lucknow directed the respondents to make good the deficiency
  in the stamp duty and also imposed a penalty amounting to Rs.
F 8,46,000/- for such tax evasion. On 20.01.2005, for failure to
  deposit the aforesaid amount, a demand notice claiming an
  amount of Rs. 38,30,500/- plus 10% recovery charges was
  issued and the respondents herein were directed to pay the
  said amount within a period of seven days.
G
        d) Being aggrieved by the order dated 27.09.2004 and
  demand notice dated 20.01.2005, the respondent filed a writ
  petition being No. 732 of 2005 before the High Court. By order
  dated 25.01.2007, the High Court, while allowing the petition
H filed by the respondents herein issued a writ in the nature of
   STATE OF U.P. & ORS. v. AMBRISH TANDON &                427
            ANR. [P. SATHASIVAM, J.]
certiorari quashing the impugned order dated 27.09.2004           A
passed by the Additional Collector (Finance & Revenue),
Lucknow and the demand notice dated 20.01.2005.

     e) Aggrieved by the said decision, the State has preferred
this appeal by way of special leave petition before this Court.   8
     4. Heard Mr. Shail Kumar Dwivedi, learned Addi. Advocate
General for the appellant-State and Mr. K.V. Viswanathan,
learned senior counsel for the respondents.

     5. The only question for consideration in this appeal is C
whether the High Court is justified in interfering with the order
dated 27.09.2004 papsed by the Additional Collector (Finance
and Revenue), Lucknow demanding differential stamp duty with
interest and penalty in respect of the sale deed dated
16.04.2003 executed in favour of the respondents herein. D
According to the respondents, through a registered Sale Deed
dated 16.04.2003 they have purchased the house No. 17/1
Ashok Marg, Lucknow for a total sale consideration of Rs.1.5
crores on which required stamp duty of Rs. 15.53 lakhs was
paid. When the Additional Collector issued a notice under E
Section 47A/33 of the Act, the respondents submitted objection
dated 29.08.2003 stating that the extent, area and valuation are
in accordance with the revenue records and the stamp duty
paid by them on the sale deed was proper. It is also stated by
the respondents that before passing the order dated F
27.09.2004, the Additional Collector (Finance and Revenue)
Lucknow has not afforded sufficient opportunity to them and the
impugned order was passed in a most arbitrary manner
ignoring the objection submitted by them. It is also stated that
at the time of sale deed the house was a residential property G
and in order to avoid unnecessary harassment at the hands of
the revenue and for the purpose of stamp duty and registration
they had valued the said property at the rate fixed by the
Collector, Lucknow treating the land as commercial at the rate
 of Rs.11,300 per sq. metre. In other words, for the purpose of H
    428      SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A stamp duty and registration, according to the respondents, they
  added additional 10% to the value.

          6. In support of the contention that they were not given
     adequate opportunity by the Addi. Collector and order was
B passed on a public holiday, before the High Court as well as
    in this Court, the respondents hereiri have placed the order
    sheet which contains the various dates and the date on which
    the ultimate decision was taken by him. It shows that the matter
  · was heard and decided on a public holiday. In all fairness, the
C High Court instead of keeping the writ petition pending and
    deciding itself after two years could have remitted the matter
    to the Addi. Collector for fresh orders. However, it had gone
    into the details as to the area of the plot, nature of the building
    i.e. whether it is residential or non-residential and based on the
    revenue records and after finding that at the time of execution
0
    of the sale deed, the house was used for residential purpose
    upheld the stand taken by the respondents and set aside the
    order dated 27.09.2004 passed by the Addi. Collector.

        7. Learned counsel appearing for the appellant-State
E submitted that as per the provisions of the Act and the Rules
  made therein, there is a provision for appeal and insteac. .:>f
  resorting the same, the respondents have straightaway
  approached the High Court by exercising writ jurisdiction under
  Article 226 which is not permissible. A perusal of the
F proceedings before the High Court show that the State was not,
  serious in raising this objection relating to alternative remedy I
  and allowed the High Court to pass orders on merits, hence
  we are not entertaining such objection at this juncture though it,
  is relevant. In fact, on receipt of the notice from the High Court
G in 2005, the appellants.who are respondents before the High;
  Court could have objected the writ petition filed under Article
  226 and sought for dismissal of the same for not availing:
  alternative remedy but the fact remains that unfortunately the
  State or its officers have not resorted to such recourse.
H
    STATE OF U.P. & ORS. v. AMBRISH TANDON & 429
             ANR. [P. SATHASIVAM, ,I.]
       8. We have already held that it is the grievance of the             A
respondents that the orders were passed by the Additional
Collector on a public holiday. Regarding the merits though the
Collector, Lucknow made a surprise site inspection, there is
no record to show that all the details such as measurement,
extent, boundaries were noted in the presence of the                       B
respondents who purchased the property. It is also explained
that the plot in question is not a corner plot as stated in the
impugned order as boundaries of the plot mentioned in the
freehold deed executed by Nazool Officer and in the sale deed
dated 16.04.2003 only on one side there is a road. It is also              C
 demonstrated that at the time of execution of the sale deed,
 the house in question was used for residential purpose and it
 is asserted that the stamp duty was paid based on the position
 and user of the building on the date of the purchase. The
 impugned order of the High Court shows that it was not                    D
 seriously disputed about the nature and user of the building,
  namely, residential purpose on the date of the purchase. Merely
  because the property is being used for commercial purpose
  at the later point of time may not be a relevant criterion for
  assessing the value for the purpose of stamp duty. The nature            E
  of user is relatable to the date of purchase and it is relevant
  for the purpose of calculation of stamp duty. Though the matter
  could have been considered by the Appellate Authority in view
  of our reasoning that there was no serious objection and in fact
  the said alternative remedy was not agitated seriously and in            F
  view of the factual details based on which the High Court has
  quashed the order dated 27.09.2004 passed by the Additional
  District Collector, we are not inclined to interfere at this juncture.

      9. Under these circumstances, we find no valid ground for            G
 interference with the impugned order of the High Court.
 Consequently, the appeal fails and the same is dismissed with
 no order as to costs.

 N.J.                                             Appeal dismissed.
                                                                           H