JUDGMENT :

1. Heard learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.

2. Petition has been filed assailing order dated 23rd August, 2002 passed under Section 47-A of Indian Stamp Act 1899 as well as appellate order dated 12th June, 2003 passed in Appeal under Section 56 of the Act whereunder additional stamp duty along with penalty has been imposed upon petitioner primarily on the ground that he is in possession of excess area than is indicated over plot in question in the sale deed dated 25th June, 2002.

3. Learned counsel for petitioner submits that by means of instrument of transfer dated 25th June, 2002, he had purchased a portion of gata No. 438 situate in village Janora, Paragana Haveli Awadh, Tehsil and District Faizabad whereafter on the basis of an ex parte spot inspection conducted by Tehsildar dated 28th July, 2002, proceedings under Section 47-A of the Act were initiated against petitioner. It is submitted that petitioner had filed his objections to the spot inspection report which however were not considered and the order has been passed by the assessing authority primarily on the spot inspection report on the ground that as per measurement of the property purchased, excess land is in possession of the petitioner than is indicated in the sale deed. The aforesaid finding has thereafter been affirmed by appellate authority under Section 56 of the Act without considering the aspect that stamp duty is leviable only on the area indicated in the instrument of transfer since petitioner would not derive any title or ownership over any property beyond the area indicated in the instrument. As such it is submitted that authorities fell in error in allowing reference under Section 47-A of the Act. Learned counsel further submits that even otherwise the spot inspection report was ex parte and no prior notice thereto was ever provided to petitioner. He has also placed reliance on the judgment of this Court rendered in the case of Mohd. Mustafa Ali Khan Versus Raj Rajeshwari Devi reported in 1959 A.I.R. Allahabad 583 and Smt. Bindu Singh Versus State of U.P. and others reported in 2008 (26) Lucknow Civil Decisions 1158 to buttress his submissions.

4. Learned State Counsel has refuted submissions advanced by learned counsel for petitioner with submission that a perusal of the spot inspection report will reveal that measurement of the actual area purchased by the petitioner was done by Naib Tehsildar and the petitioner was found to be in possession of excess area that is indicated in the sale deed. It is submitted that there was major discrepancy in the area indicated in the sale deed and actual measurement of the area purchased by the petitioner.

5. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that proceedings under section 47-A of the Act were initiated on the basis of spot inspection report which indicated excess area of the property at the time of measurement in the spot inspection than is indicated in the sale deed. It is on that basis that order under section 47-A has also been passed as also on the basis of objection filed by petitioner that he would demolish the existing shops and would execute a sale deed with regard to remaining area of the property purchased. The same reasoning has been adopted by appellate authority in proceedings under Section 56 of the Act.

6. Upon perusal of aforesaid orders, it is apparent that they are based on the spot inspection report dated 28th July, 2002 indicating petitioner to be in possession of over excess area than is indicated in the instrument of transfer. It is quite apparent that petitioner would not derive title or ownership over area which is not included in the sale deed. At best it can be safely inferred that petitioner may be a trespasser or in illegal occupation over area which is in excess of the sale deed but the Act does not provide for imposition of stamp duty as