The main legal point established in the judgment is that stamp duty becomes chargeable to the instrument when it was first executed, and it is to be paid by the lessee/grantee/purchaser or vendee of the property. The recovery of stamp duty should be first sought from the person liable, and only if it cannot be recovered, then the authorities can proceed to recover the stamp duty against the property.

JUDGMENT :

B. Amit Sthalekar, J.

1. Heard Sri Vibhu Rai, learned counsel for the petitioner and Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the respondents.

2. The petitioner in the writ petition is seeking a direction to the respondents not to take any coercive steps against the petitioner in pursuance of the recovery proceedings against the respondent no.4.

3. The brief facts of the case as emerging from the writ petition are that the respondent no.4-Smt. Ritu Chauhan acquired a commercial Plot No.162, Block-B, Sector 16, NOIDA, District Gautam Budh Nagar on lease from New Okhala Industrial Development Authority (NOIDA) through a registered sale deed dated 05.12.2000. The deed was registered in the office of the Sub-Registrar-III, NOIDA as deed no.3462 of 2000. The respondent no.4-Smt. Ritu Chauhan took possession of the said plot of which the petitioner purchased the lease hold rights having an area of 19.80 sq. meter through a registered transfer deed dated 03.05.2001 for a sale consideration of Rs.7,92,000/- executed by Smt. Ritu Chauhan. The transfer deed was registered with the Sub-Registrar-I, NOIDA on 03.05.2001.

4. The specific case of the petitioner is that the plot taken by the respondent no.4-Smt. Ritu Chauhan from NOIDA Authorities was a vacant plot and he also acquired the same plot from the respondent no.4 in a vacant condition and at that time there was no construction on the said plot. The case of the petitioner further is that after he purchased the lease hold rights of the plot from the respondent no.4-Smt. Ritu Chauhan he constructed a liquor shop thereon. It is stated that proceedings under Section 47-A/33 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899) were initiated against the respondent no.4-Smt. Ritu Chauhan in respect of the said transfer arising out of an audit objection raised by the Accountant General, U.P. The report of the Tehsildar, Dadri stated that the rent of the shop was Rs.2,500/-per month and therefore, the property should be valued according to the rent and premium of the lease. He accordingly valued the property at Rs.14,84,580/-and determined the stamp duty at Rs.1,48,500/-whereas Rs.73,520/-had already been paid as stamp duty.

5. The petitioner's contention with regard to the order of the S.D.M., Dadri dated 21.01.2003 is that the same is enforceable only against the respondent no.4 and even otherwise the proceedings have been initiated against the respondent no.4 and therefore no coercive measures be taken against the petitioner's shop.

6. A counter affidavit has been filed by the respondents. An objection has also been raised by the learned Additional Chief Standing Counsel that the petitioner has approached the Court straightaway without exhausting his remedy of appeal under Section 56 of the Act, 1899 and therefore, the writ petition is not maintainable and all the objections that have been raised by the petitioner in the present writ petition can be raised by him in his appeal before the Commissioner.

7. We have heard the learned counsel for the parties.

8. We find that proceedings in the present case have been initiated against the respondent no.4-Smt. Ritu Chauhan and not against the petitioner. No doubt Section 56 of the Act, 1899 provides a remedy to the petitioner by way of appeal as well as revision but considering the facts of the present case that the proceedings herein have been initiated against the respondent no.4-Smt. Ritu Chauhan and not against the petitioner and also considering the fact that the writ petition is of the year 2007 it would not be appropriate at this distance of time to relegate the petitioner to avail the remedy of appeal. We are therefore, proceeding to decide the matter on its merit and therefore, we reject the preliminary objection of the learned counsel for the respondents.

9. We have perused the impugned order dated 21.01.2003. The order records that notices were issued to the respondent no.4-Smt. Rit