JUDGMENT :

[Umesh Chandra Sharma, J.]

1. Heard Sri Madhav Jain, learned counsel for the petitioners and Sri Jitendra Narayan Singh, learned Additional Chief Standing Counsel for the State respondents.

2. This writ petition has been filed to quash the order dated 19.06.1999 passed by Additional District Magistrate (Finance & Revenue), Agra and order dated 11.01.2000 passed by the Commissioner, Agra Division, Agra, whereby both the authorities in relation to assignment dated 17th April, 1993, regarding unexpired lessee rights in the land with constructed con-structure assigned in favour of the petitioners for a sum of Rs.1,43,005/-concluded the deficiency of stamp duty.

3. In brief the facts of the case are that the Society known as Alok Sahkari Grah Nirman Samiti Ltd., Agra, has acquired lease hold rights for a period of eighty years from the Agra Development Authority, Agra in land of Block No. 34 at Sanjay Place, Agra, by means of registered lease deed dated 16.06.1980 and executed an agreement deed of lease on 17.04.1993 (Annexure No.1). The Sub Registrar, Agra exercised power under Section 33, 47-A (A) & (4) of the Stamp Act for realization of Stamp Duty by means of reference (Annexure No.2), which is patiently illegal and without jurisdiction.

4. In pursuance of the reference, Stamp Case No. 1255 of 1995-96 was registered and the notices were served upon the petitioners, who filed objection (Annexure No. 3) to the writ petition in support of the reference, no reference was laid on behalf of the respondents, however, the respondent no. 3 vide its judgment and order dated 19.06.1999 (Annexure no. 4), imposed Rs.96,540/- towards deficiency of stamp duty.

5. The petitioners challenged its validity by means of Stamp Revision No. 30 of 1999-2000 on 22.09.1999. In-spite of pendency of revision, the officials of respondent no. 1 recovered the amount under threat of coercive action quite illegally without affording opportunity to obtain interim orders. Respondent no. 1 is bound to return to the petitioner’s such amount with interest @ 18 per cent per annum. The revisional court vide its order dated 11th January, 2000 (Annexure-05) to this writ petition, the revision is not maintainable.

6. Both the authorities below have failed to exercise its mined and have failed to consider the legality of the proceedings as the assignment-deed is not chargeable with stamp duty on it’s market value under Section 47-A of the Stamp Act. The respondent nos. 2 and 3 failed to consider that land underneath the construction was possessed by the Society under a lease agreement from the Agra Development Authority, Agra and the Society assigned unexpired lease right in respect of the land together with constructions after charging the lease area premium and costs of constructions, under this circumstances the respondent nos. 2 and 3 ought to have drop the proceeding, but instead of doing so acted illegally while imposing deficiency of Stamp Duty against the petitioners. The determining the deficiency of Stamp Duty is absolutely uncalled for and is applicable as it is not supported by any evidence to establish that the rate of rent assumed by them.

7. The respondents have failed to consider that the petitioner’s acquired limited rights to enjoy its usufruct and also failed to consider that the property in question fetch rent @ 2,500/-per month. The respondent no. 2 committed error apparent on the face of record while dismissing the revision on the ground of its being not maintainable. The respondents have acted illegally while treating the transaction as the transaction of sale of the building without considering that the Society from which the petitioners have got it’s right assigned, was not having any saleable interest in the land and in so far as the value of construction is concerned there was no dispute raised from the side of the respondents. The petitioners having no other alternative remedy, have filed this writ petition. The aforesaid annexures h