Sanjiv Khanna, J.

1. As identical issues arise for consideration, Writ Petition (Civil) No. 427/2005 filed by M/s. Ashok Kamal Capital Builders Pvt. Ltd. and Writ Petition (Civil) No. 2663/2005 filed by M/s. Dyer‘s Stone Lime Company Pvt. Ltd. (hereinafter referred to as Capital Builders and Dyer‘s Stone respectively, for short) are being disposed of this by this common judgment.

2. Dyer‘s Stone purchased property No. 10, Alipur Road, Civil Lines, Delhi (herein after referred to as the property, for short) from the erstwhile owners vide sale deed dated 3rd December, 1956.

3. On 30th October, 1985 Dyer‘s Stone obtained permission from Delhi Administration (Land & Building Department) to develop the property as a group housing project. On 23rd December, 1987, Dyer‘s Stone entered into an agreement with the Capital Builders for development and construction of dwelling units. The dwelling units were constructed and sold to various third parties on execution of registered sale deeds. Requisite stamp duty has been paid on these sale deeds.

4. A portion of the property was requisitioned for Delhi Metro Rail Project w.e.f. 5th February, 2002 for a period of three years. Dyer‘s Stone received notice dated 24th December, 2002 from Sub Divisional Magistrate, Civil Lines to discuss the question of payment of compensation for the requisitioned land. By letter dated 15th January 2003, Dyer‘s Stone was asked to submit details of expenses incurred with regard to the requisitioned property and also to file lease deed, conveyance deed, etc in support of their ownership rights. On 23rd January, 2003 Dyer‘s Stone submitted photocopy of the agreement dated 23rd December, 1987 between them and Capital Builders.

5. Dyer‘s Stone and Capital Builders thereafter received two show cause notices both dated 19th August, 2003 stating that the agreement dated 23rd December, 1987 between Dyer‘s Stone and the Capital Builders amounted to conveyance under Article 23 of Schedule IA of the Indian Stamps Act, 1899 (hereinafter referred to as the Act, for short) and therefore the petitioners should be asked to pay deficient stamp duty and penalty under Sections 33 and 35 of the Act and show cause why penal action should not be taken against them under Sections 62 and 64 of the Act. The relevant portion of the show cause notice dated 19th August, 2003 issued under Sections 33 and 35 of the Act reads:

No. F./Temp./Req./SDM/CL/07/422 Dated 19/8/2003

Whereas the said documents is definitely under stamped and thus cannot be taken as evidence in support of the ownership of the said property till stamp duty plus penalty is paid in full.

In view of the above you are directed to deposit the original agreement of sale in the office of the undersigned and also show cause as to why deficient stamp duty along with penalty under Section 35 of Indian Stamp Act should not be deposited by you before the documents is taken into evidence in support of your claim of the ownership of this property.

You are therefore directed to appear on 25.8.2003 3 P.M. in person or through your representative along with your reply failing which necessary action under the stamp act and other relevant law of land will be taken to recover the deficient stamp duty, penalty and other penal action.

(emphasis supplied)

6. From the above, it is clear that the Sub Divisional Magistrate who was also the Collector of Stamps did not have before him the original agreement dated 23rd December, 1987 and the petitioners were called upon to deposit the original document before the Sub Divisional Magistrate in case they wanted to rely upon the same in support of their claim.

7. A similar show cause notice was issued for action under Sections 62 and 64 of the Act on 19th August, 2003. The relevant portion of the notice reads;

No. F./Temp./Req./SDM/CL/07/429 Dated 19/8/2003

x x x x x

Since the intention to evade stamp duty on this document is established after going through the document i.e. agreement of sale,