IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL nd ON THE 2 OF SEPTEMBER, 2023 WRIT PETITION No. 15951 of 2020 BETWEEN:-

1. SANTOSH KUMAR JANI (DEAD) THRL LRS.

NEELAM JAIN W/O LATE SHRI SANTOSH KUAMR JAIN R/O HOUSE NO 585 GANDHIGANJ (MADHYA PRADESH)

2. MAYANK JAIN S/O LATE SHRI SANTOSH KUMAR JAIN HOUSE NO. 585 GANDHIGANJ (MADHYA PRADESH)

3. PRIYANK JAIN S/O LATE SHRI SANTOSH KUMAR JAIN HOUSE NO. 585 GANDHIGANJ (MADHYA PRADESH)

4. AASHI JAIN D/O LATE SHRI SANTOSH KUMAR JAIN HOUSE NO. 585 GANDHIGANJ (MADHYA PRADESH)

.....PETITIONERS (BY SHRI HITENDRA GOHLANI - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THRO THE INSPECTOR GENERAL DEPARTMENT OF COMMERCIAL TAX REGISTRATION AND STAMP GOVT.OF MP MANTRALAYA VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

2. COLLECTOR OF STAMP AND REGISTRATION JAB ALPUR DISTT. JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI SUBODH KATHAR - GOVERNMENT ADVOCATE )

WRIT PETITION No. 15958 of 2020 Signature Not Verified Signed by: AMITABH BETWEEN:-

SANTOSH KUMAR JAIN (DEAD) THROUGH LRS. NEELAM JAIN W/O LATE SHRI SANTOSH JAIN, AGED ABOUT 67 YEARS, OCCUPATION: BUSINESS R/O HOUSE NO 585 GANDHIGANJ DISTT. JABALUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI HITENDRA GOHLANI - ADVOCATE )

AND

1. THE STATE OF MADHYA PRADESH THROUGH ITS INSPECTOR GENERAL DEPARTMENT OF COMMERCIAL TAX REGISTRATION AND STAMP GOVT. OF M.P. MANTRALAYA BHOPAL (MADHYA PRADESH)

2. COLLECTOR OF STAMP AND REGISTRATION JABALPUR JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI SUBODH KATHAR - GOVERNMENT ADVOCATE)

These petitions coming on for admission this day, the court passed the following:

ORDER

These writ petitions are filed being aggrieved of the order dated

07.01.2014 passed by learned Collector of Stamps District Jabalpur in case No. 27/B-103/Section 33/05-06 and order dated 20.11.2013 passed by the same authority in Case No. 239/B-103/04-05, where the Power of Attorney holder being common namely Shri Santosh Kumar Jain S/o Dayachand Jain.

2. It is submitted that in the first case Power of Attorney was not signed by Santosh Kumar Jain and was given to him only by Smt. Mohan Bai Awasthy W/o Late Shri Radhika Prasad Awasthy, therefore, no liability can be extended in favour of the petitioner to pay the deficit stamp duty. It is admitted that in the other case where one Chiraunji Lal S/o Late Shri Premlal Patel had given Power Signature Not Verified Signed by: AMITABH of Attorney in favour of the petitioner, Power of Attorney was admittedly signed by the petitioner and however, except for this difference in these two proceedings, it is submitted that the common issue is that whether the Collector of Stamps was justified in imposing the duty in as much as, as per Section 29 of the Indian Stamp Act, 1899 (hereinafter referred to as the Act of 1899), there is a provision as to who has to pay the duty and there is provision in regard to payment of duty by the Power of Attorney holder.

3. Reading Section 33 of the Act of 1899, it is submitted that there is a provision that the instruments which are not duly stamped and the impounded and those documents can not be impounded by the Collector which has not been executed but is brought to him under Section 31 of the Act, 1899 for determining the duty with which the instrument is chargeable or any instrument which he is authorize to endorse under Section 32 of the Act, 1899.

4. It is further submitted that as per Appendix "B" of Schedule I-A Entry

45 deals with Power of Attorney w.e.f 13.08.2002 to 01.08.2008 deals with Power of Attorney as defined by Section 2 (21) of the Act, not being a proxy. Clause 'C' provides that when even for consideration and authorizing the agent to sell any immovable property, it will attract the same duty as a convenience (No. 22) on the market value of the property.

5. It is submitted that this provision as has been applied by the Collector of Stamps will not be applicable as much as there is no mention of any consideration in the Power of Attorney and in