Mohammad Parvej Shamsi and another v. State of UP and others) Neutral Citation No

1.This is an application for substituting the heirs and legal representatives of the sole petitioner who died on 2.3.2018. The applicant is beyond time and an application for condonation of delay supported by an affidavit has already been filed. Learned counsel for the respondent states that he has no objection in case the application is allowed.The delay has properly been explained.

2.Accordingly the delay is condoned and the application is allowed. Let the name of sole petitioner be struck of from the array of parties and in his place the names of his heirs and legal representatives mentioned in the prayer clause of the application be substituted.

3.Learned counsel for the petitioner is directed to carry out the substitution during the course of the day.

4.Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

5.The present writ petition has been filed against the order dated 13.6.2016 passed by the Assistant Commissioner Stamp Varanasi, respondent no. 3 and the order dated 18.3.2017 passed by the Commissioner Varanasi Division, Varanasi, respondent no. 2.

6.Learned counsel for the petitioner submits that the petitioner has purchased through registered sale deed on 10.3.2016. Thereafter the Sub Registrar II Varanasi sent his report regarding deficiency of stamp duty. On the basis of the report a notice was issued to the petitioner. The petitioner moved an application for depositing the balance stamp duty but the same was not considered and impugned order dated 13.6.2016 was passed against which the petitioner preferred a revision before the respondent no.2 which was dismissed without considering the submission made by the petitioner. He further submits that the petitioner has deposited the deficiency of stamp duty the proof of which has been annexed along with second supplementary affidavit.

7.Learned counsel for the petitioner submits that the petitioner, to buy peace of mind, has accepted the deficiency of stamp duty along with interest but so far as the penalty is concerned, no reason has been assigned for levying the penalty.

8.In support of his contention learned counsel for the petitioner has relied upon the judgement of this Court in the case of Writ C No. 10012 of 2025 (Mohammad Parvej Shamsi and another Vs. State of UP and others) Neutral Citation No. - 2025:AHC:49441 in which the Court has struck off the imposition of penalty in view of the judgement of Supreme Court in the case of Smt. Sonia Jindal Vs. State of UP and others 2011 (5) ADJ 316 as well as the judgement of this Court in the case of Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511.

9.Learned counsel for the petitioner has further relied upon the full bench decision of this Court in the case of Girjesh Kumar Srivastava Vs. State of UP and others (1998) 0 AIR (All) 237 and prays for allowing the present writ petition.

10.Per contra, learned Standing Counsel submits that the petitioner has admitted his liability towards deficit of stamp duty and interest thereon to which no relief can be granted. He submits that penalty is also justified as the petitioner admits its liability towards deficit of stamp duty goes without saying in the discharge of its duties as the petitioner's guilty mind was there in making short payment of stamp duty. He prays for dismissal of the stamp duty.

11. After hearing the learned counsel for the parties the Court has perused the records.

12.Once the petitioner has accepted and deposited the stamp deficiency along with the interest, the Court need not to go deep into the facts of the case in respect of levy of deficiency of stamp duty but so far as the penalty is concerned, no reason has been assigned for levying of the penalty in the impugned order. Thus the order of penalty without reasons becomes a "non-speaking order" and is not legally tenable.

13.Full Bench of this Court in the case of Girjesh Kumar Srivastava (supra) has held as under:-

22. The word "penalty" is of wide significance. Some time it means recovery of an amount as a penalty measure even in civil proceeding and exaction which is not compensatory in character is also termed as penalty. When "penalty" is imposed by adjudicating officer, it is done in the adjudicating proceeding and not by way of fine as a result of prosecution of an accused for commission of an offence in a criminal court. But even in adjudicating proceedings, the penalty clause should be found contained in the enactment itself. In the absence of the same, the adjudicating authority cannot be deemed to possess such a power. Mere use of the expression "after taking such action as may be necessary" in Rules 350 and 352 cannot be construed to empowering the Collector to impose penalty especially when such a power is lacking in the main enactment. Law is to be interpreted as it is contained in the enactment made by the legislation. The Court cannot add or subtract any word or words while Interpreting a particular provision. The Court's function is to interpret the law, that is to explain/or to translate into intelligible language. It is the function of the Legislature to enact laws and the duty of the judiciary is to interpret and enforce them. It is well-settled that the Courts have to construe the Acts of Legislature as found therein, whether they approve of them or not and they cannot alter or amend them. They have no power to read into the enactment a sentence or words which it does not contain. It is for the Legislature and not for the Court to consider whether the words employed in framing an enactment will give effect to the object and policy which the Statute may have in view.

23. In the absence of any express provision contained either in Section 47A or the rules empowering the Collector to Impose penalty even in cases of clandestine transfers, the Court cannot confer that power on him with a view to keep a check on such transactions and to give effect to the object which the Statute may have in view. It is the domain of the Legislature and Courts cannot' trespass therein.

14.Recently this Court in the case of Raj Kumar Vs. State of U.P. & Others (supra) has held as under: "20. Insofar as the imposing four times penalty is concerned, it is well settled that unless "mens rea" is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor vs Additional Collector (Finance & Revenue), Ghaziabad and others, reported in 2008 (72) ALR 125, where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale deed executed. Even the annexures to the writ petition disclosing the nature of land have not been disputed by the State in the counter affidavit. I also find that the sale deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land."

15.In view of the law laid down by this Court as well as Supreme Court as referred herein above, this Court is of the view that the imposition of penalty is unjustified.

16.The record shows that none of the authorities below while passing the impugned order has established any mens-rea on the part of the petitioner neither to evade payment of stamp duty nor intention to conceal any material nor play any fraud upon the authorities. In the absence of any such finding, the levy of penalty cannot be justified.

17.Accordingly, the part of the impugned orders, which direct for the imposition of penalty, are set aside and in all other respects, the impugned orders remain intact.

18.In view of the aforesaid facts and circumstances of the case, the order dated 13.6.2016 passed by the Assistant Commissioner Stamp Varanasi, respondent no. 3 and the order dated 18.3.2017 passed by the Commissioner Varanasi Division, Varanasi, respondent no. 2 stand modified to the above extent.

19.The writ petition stands disposed of. Order Date :- 6.5.2025 SYED AKHTARMOHAMMAD MEQDAD High Court of Judicature at Allahabad

1.This is an application for substituting the heirs and legal representatives of the sole petitioner who died on 2.3.2018. The applicant is beyond time and an application for condonation of delay supported by an affidavit has already been filed. Learned counsel for the respondent states that he has no objection in case the application is allowed.The delay has properly been explained.

2.Accordingly the delay is condoned and the application is allowed. Let the name of sole petitioner be struck of from the array of parties and in his place the names of his heirs and legal representatives mentioned in the prayer clause of the application be substituted.

3.Learned counsel for the petitioner is directed to carry out the substitution during the course of the day.

4.Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

5.The present writ petition has been filed against the order dated 13.6.2016 passed by the Assistant Commissioner Stamp Varanasi, respondent no. 3 and the order dated 18.3.2017 passed by the Commissioner Varanasi Division, Varanasi, respondent no. 2.

6.Learned counsel for the petitioner submits that the petitioner has purchased through registered sale deed on 10.3.2016. Thereafter the Sub Registrar II Varanasi sent his report regarding deficiency of stamp duty. On the basis of the report a notice was issued to the petitioner. The petitioner moved an application for depositing the balance stamp duty but the same was not considered and impugned order dated 13.6.2016 was passed against which the petitioner preferred a revision before the respondent no.2 which was dismissed without considering the submission made by the petitioner. He further submits that the petitioner has deposited the deficiency of stamp duty the proof of which has been annexed along with second supplementary affidavit.

7.Learned counsel for the petitioner submits that the petitioner, to buy peace of mind, has accepted the deficiency of stamp duty along with interest but so far as the penalty is concerned, no reason has been assigned for levying the penalty.

8.In support of his contention learned counsel for the petitioner has relied upon the judgement of this Court in the case of Writ C No. 10012 of 2025 (Mohammad Parvej Shamsi and another Vs. State of UP and others) Neutral Citation No. - 2025:AHC:49441 in which the Court has struck off the imposition of penalty in view of the judgement of Supreme Court in the case of Smt. Sonia Jindal Vs. State of UP and others 2011 (5) ADJ 316 as well as the judgement of this Court in the case of Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511.

9.Learned counsel for the petitioner has further relied upon the full bench decision of this Court in the case of Girjesh Kumar Srivastava Vs. State of UP and others (1998) 0 AIR (All) 237 and prays for allowing the present writ petition.

10.Per contra, learned Standing Counsel submits that the petitioner has admitted his liability towards deficit of stamp duty and interest thereon to which no relief can be granted. He submits that penalty is also justified as the petitioner admits its liability towards deficit of stamp duty goes without saying in the discharge of its duties as the petitioner's guilty mind was there in making short payment of stamp duty. He prays for dismissal of the stamp duty.

11. After hearing the learned counsel for the parties the Court has perused the records.

12.Once the petitioner has accepted and deposited the stamp deficiency along with the interest, the Court need not to go deep into the facts of the case in respect of levy of deficiency of stamp duty but so far as the penalty is concerned, no reason has been assigned for levying of the penalty in the impugned order. Thus the order of penalty without reasons becomes a "non-speaking order" and is not legally tenable.

13.Full Bench of this Court in the case of Girjesh Kumar Srivastava (supra) has held as under:-

22. The word "penalty" is of wide significance. Some time it means recovery of an amount as a penalty measure even in civil proceeding and exaction which is not compensatory in character is also termed as penalty. When "penalty" is imposed by adjudicating officer, it is done in the adjudicating proceeding and not by way of fine as a result of prosecution of an accused for commission of an offence in a criminal court. But even in adjudicating proceedings, the penalty clause should be found contained in the enactment itself. In the absence of the same, the adjudicating authority cannot be deemed to possess such a power. Mere use of the expression "after taking such action as may be necessary" in Rules 350 and 352 cannot be construed to empowering the Collector to impose penalty especially when such a power is lacking in the main enactment. Law is to be interpreted as it is contained in the enactment made by the legislation. The Court cannot add or subtract any word or words while Interpreting a particular provision. The Court's function is to interpret the law, that is to explain/or to translate into intelligible language. It is the function of the Legislature to enact laws and the duty of the judiciary is to interpret and enforce them. It is well-settled that the Courts have to construe the Acts of Legislature as found therein, whether they approve of them or not and they cannot alter or amend them. They have no power to read into the enactment a sentence or words which it does not contain. It is for the Legislature and not for the Court to consider whether the words employed in framing an enactment will give effect to the object and policy which the Statute may have in view.

23. In the absence of any express provision contained either in Section 47A or the rules empowering the Collector to Impose penalty even in cases of clandestine transfers, the Court cannot confer that power on him with a view to keep a check on such transactions and to give effect to the object which the Statute may have in view. It is the domain of the Legislature and Courts cannot' trespass therein.

14.Recently this Court in the case of Raj Kumar Vs. State of U.P. & Others (supra) has held as under: "20. Insofar as the imposing four times penalty is concerned, it is well settled that unless "mens rea" is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor vs Additional Collector (Finance & Revenue), Ghaziabad and others, reported in 2008 (72) ALR 125, where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale deed executed. Even the annexures to the writ petition disclosing the nature of land have not been disputed by the State in the counter affidavit. I also find that the sale deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land."

15.In view of the law laid down by this Court as well as Supreme Court as referred herein above, this Court is of the view that the imposition of penalty is unjustified.

16.The record shows that none of the authorities below while passing the impugned order has established any mens-rea on the part of the petitioner neither to evade payment of stamp duty nor intention to conceal any material nor play any fraud upon the authorities. In the absence of any such finding, the levy of penalty cannot be justified.

17.Accordingly, the part of the impugned orders, which direct for the imposition of penalty, are set aside and in all other respects, the impugned orders remain intact.

18.In view of the aforesaid facts and circumstances of the case, the order dated 13.6.2016 passed by the Assistant Commissioner Stamp Varanasi, respondent no. 3 and the order dated 18.3.2017 passed by the Commissioner Varanasi Division, Varanasi, respondent no. 2 stand modified to the above extent.

19.The writ petition stands disposed of. Order Date :- 6.5.2025 SYED AKHTARMOHAMMAD MEQDAD High Court of Judicature at Allahabad