Mohammad Parvej Shamsi and another v. State of UP and others) Neutral Citation No
Case Details
Neutral Citation No. - 2025:AHC:69811 Court No. - 10 Case :- WRIT - C No. - 2886 of 2024 Petitioner :- Smt Fatima Arfeen Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Jata Shankar Pandey Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
Legal Reasoning
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." 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. 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. 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. In view of the aforesaid facts and circumstances of the case, the order dated 6.9.2023 passed by the Additional Commissioner (Judicial), Agra Region Agra and the order dated 2.8.2021 and 7.4.2021 passed by Collector, Firozabad, respondent no.2 stand modified to the above extent.
Arguments
Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. The present writ petition has been filed against the order dated 6.9.2023 passed by the Additional Commissioner (Judicial), Agra Region Agra and the order dated 2.8.2021 and 7.4.2021 passed by Collector, Firozabad, respondent no.2. Learned counsel for the petitioner submits that the petitioner has purchased a residential plot in Khasra No. 221/1 area 398.04 Sq. Meter situated at Mohalla nagla Kothi, Tehsil and Distt. Firozabad vide registered sale deed dated 28.12.2019 and paid the due stamp duty according to the circle rate. He submits that on the basis of alleged spot inspection a report has been submitted on 30.1.2020 showing deficiency of stamp duty and on the basis of which proceedings under Section 47 A of Indian Stamp Act was initiated in which ex -parte impugned order dated 7.4.2021 has been passed by which deficiency of stamp duty to the tune of Rs. 9,86,930/- together with penalty Rs. 4,00,000/- and interest has been imposed against which the petitioner has filed recall application, which has also been dismissed vide order dated 2.8.2021. The petitioner has challenged the said order in revision but the same has been dismissed vide order dated 6.9.2023 in mechanical way. He further submits that the petitioner has deposited Rs. 9,87,000/- towards deficiency of stamp duty on 17.4.2021 by way of Treasury Challan and same is annexed as Annexure No. 6 to this writ petition. After arguing at some length, 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. 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. 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. Per contra, learned Standing Counsel has supported the impugned order, however, to the said submission, learned Standing Counsel has no objection. 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. 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.
Decision
The writ petition stands disposed of. Order Date :- 2.5.2025 Rahul Dwivedi/- Digitally signed by :- Digitally signed by :- RAHUL DWIVEDI RAHUL DWIVEDI High Court of Judicature at Allahabad High Court of Judicature at Allahabad