The court established that the authority's power to recover deficit stamp duty is limited to a period of five years from the date of execution of the instrument, as per the Indian Stamp Act, 1899.

ORDER : – Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, it is finally heard.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of the order dated 18-5-2021 (Annexure P/1) passed by the respondent No. 1 whereby the petitioner has been directed to deposit an amount of Rs. 46,61,667/- as deficit stamp duty and equal amount of Rs. 46,61,667/- being the penalty and as such, total amount of Rs. 93,23,334/- was directed to be deposited by the petitioner within a period of 30 days from the date of passing of the impugned order.

3. The factual matrix of the case relevant for considering the questions raised are as follows : –

3.1. On the basis of a complaint made by one Mukesh Kumar Jain that the agreement executed between the petitioner and the respondent No. 2 on 18-3-2011 (Annexure P/2) was not duly stamped and suffers from deficit stamp duty, the respondent No. 1 passed the impugned ex parte order dated 18-5-2021 (Annexure P/1) giving reference of section 40 of the Indian Stamp Act, 1899 (hereinafter referred to as the ‘Act, 1899’) and also giving reference of clause 5(d) of Schedule I-A saying that the agreement in question falls under the said clause which needs to be stamped with 2% stamp duty of the market value of the land which comes to Rs. 46,61,667/- as deficit stamp duty and therefore, penalty with an equal amount i.e. Rs. 46,61,667/- was also inflicted and as such, total amount of Rs. 93,23,334/- has been directed to be deposited by the petitioner in the treasury within a period of 30 days, failing which, the amount shall be recovered from the petitioner as a land revenue.

4. Shri Sanjay Agrawal, learned senior counsel appearing for the petitioner has contended that the impugned order has been assailed on two counts- firstly, that the same has been issued in violation of principles of natural justice as no opportunity of hearing was provided to the petitioner before passing the order. Although according to him, in the order it is shown that notice was issued and served upon the petitioner despite that, he did not appear before the authority and as such, ex parte order was passed. According to Shri Agrawal, copy of notice has been obtained through RTI over which no acknowledgment of receipt of notice is available and as such, it is clear that no notice has ever been served upon the petitioner and secondly that the agreement which is the subject matter of the impugned order was executed between petitioner and respondent No. 2 on 18-3-2011 does not fall within the ambit of ‘instrument’ referred in clause 5(d) of Schedule I-A appended with the Act, 1899. Counsel for the petitioner submits that the order has also been assailed on the ground of competency saying that the authority, after a period of five years from the date of execution of the agreement, has no jurisdiction to pass any order in view of provisions of section 48-B of the Act, 1899.

5. In rebuttal, the respondent No. 1 has filed its reply justifying the order passed by the authority stating that notice has duly issued and served upon the petitioner. In support whereof, respondent No. 1 has also filed the documents showing dispatch of notice upon the petitioner. It is also stated in the reply that petitioner has an alternative remedy of appeal and the impugned order is appelable and without availing the statutory remedy of appeal, the petition is not maintainable. It is also stated in the reply that section 5(d) of Schedule I-A deals with an agreement which is the impugned agreement dated 18-3-2011 and recital of the same makes it clear that the it falls within the respective provision and, therefore, 2% stamp duty was required to be paid over the market value of the land but that was not done and, as such, the authority has rightly inflicted the penalty and also directed the petitioner to deposit the