JUDGMENT (W.P. No. 905 of 2007) Hon’ble Prakash Krishna, J.—Surendra Singh and Zulfikar, the petitioners, by means of a registered sale deed dated 16th of August, 2003 purchased 0.151 hectares in Khasra No. 113 of village Ismailpur, Boodhpur, Tehsil Chandpur, District Bijnore for an amount of Rs. 53,000/- and paid the stamp duty as applicable to agricultural land situate near the road. 2. They after one year demarcated their land from the land of other farmers in Khara No. 113 by laying a Pucca foundation using bricks around three sides of this land. After a long time, the Deputy Registrar, Chandpur, District Bijnor made a spot inspection of the land in question and recommended for initiation of proceedings as the instrument i.e. the sale deed according to him was deficiently stamped. On the basis of the said spot inspection report, the Assistant Inspector General (Registration) referred the matter to the Collector (Stamp), Bijnore, under Section 47-A of Indian Stamp Act. It was registered as Case No. 324 of 2004-2005. In response to the show cause notice issued by the Collector (Stamp), Bijnore. the petitioners submitted that the proper stamp duty has been paid on the instrument in question as per circle rate fixed for this purpose by the Collector, under the relevant rules. It was contended that the land purchased by them was and still is being used for agricultural purposes and the stamp duty has been paid accordingly. The said plea did not find favour with the authority concerned who under the order dated 27.1.2006 held that the land purchased by the petitioners was for the purposes of Abadi and as such, the stamp duty is payable thereon at the rate applicable to an Abadi land. A sum of Rs. 1,14,720/- was demanded towards the deficiency in stamp duty and Rs. 3,480/- more towards the registration charge. 3. The said order was challenged by way of appeal No. 28 of 2005-2006 under Section 56 of the Indian Stamp Act before the Commissioner, Meerut Division, Meerut unsuccessfully. He, by the order dated 28th of November, 2006 dismissed the appeal on the ground that from the inspection report dated 28th December, 2004, it is clear that the land in dispute is situate near Noorpur-Amroha Road and residential activities are going on. The said order is under challenge in the present writ petition. 4. He, by the order dated 28th of November, 2006 dismissed the appeal on the ground that from the inspection report dated 28th December, 2004, it is clear that the land in dispute is situate near Noorpur-Amroha Road and residential activities are going on. The said order is under challenge in the present writ petition. 4. The learned counsel for the petitioners submits that the authorities below have wrongly held that the land in question is not agricultural land. The date when it was purchased, it was recorded as agricultural land in the Revenue records and it continues to be so even till date. There being no declaration under Section 143 of the U.P.Z.A. & L.R. Act declaring it as Abadi, the authorities below have acted arbitrarily and illegally in treating the land in dispute as non-agricultural land. It was submitted that the land is still recorded in the Revenue records as agricultural land and the petitioners are doing farming in this land as is apparent from the various Khasras. The Khata No. 113 was a big plot and after thirteen days of the sale deed in question i.e. on 29.8.2003 one Gayasuddin had also purchased a piece of land measuring 0.152/2 hectares in the said Khasra No. 113. To him initially a notice for deficiency of stamp duty was issued by the respondent No. 3, but it was dropped subsequently by the order dated 14th of March, 2003 holding that the land is agricultural land. On the ground of parity also, the petitioners’ land is agricultural land. The respondents are not in possession of any material to show that on the date of execution of the sale deed in favour of the petitioners, the land was other than the agricultural land. The burden to prove that the land was other than the agricultural land, lay upon the shoulders of respondents and not on the petitioners. 5. The learned Standing Counsel, on the other hand, supports the impugned orders and submits that the said property was recorded as Abadi in the Revenue records and is situate in residential area. The authorities below were, therefore, justified in treating the land in dispute as non-agricultural land. Reliance on spot inspection report of the Sub-Registrar and on the copy of Khasra No. 1412 Fasli which contains entry of Abadi, was placed by him. 6. The authorities below were, therefore, justified in treating the land in dispute as non-agricultural land. Reliance on spot inspection report of the Sub-Registrar and on the copy of Khasra No. 1412 Fasli which contains entry of Abadi, was placed by him. 6. Considered respective submissions of the learned counsel for the parties and perused the record. 7. A perusal of the order dated 27.10.2008 passed by the Collector (Stamp), Bijnore, would show that it proceeded to determine the market value of the land on the basis of the report of the Sub-Registrar who on inspection found that foundation was laid in the land in question and there were residential activities around the land in question. The Sub-Registrar recommended that the question of payment of stamp duty with regard to the land in question should be determined treating that the land was purchased for residential purposes. The question, thus, boils down to this as to whether, the stamp duty was paid on the instrument treating the land in question as agricultural land or meant for residential purposes. The submission of petitioners’ counsel is that firstly, the land in question was purchased as agricultural land and it was recorded as agricultural land and there being no declaration under Section 143 of the U.P.Z.A. & L.R. Act declaring it as Abadi land, the stamp duty be charged treating as the agricultural land as on the date of the sale deed it was agricultural land. The crux of the argument is that the nature of the land under the instrument should be considered on the date of execution of the instrument and not the future use to which the land may be put by the buyer. Reliance has been placed by him on Anirudha Kumar and Ashwini Kumar v. C.C.R.A., 2000 (3) AWC 2587 which fully supports the above contention. The approach adopted by the authorities is patently erroneous and without jurisdiction, as it runs to the contrary to the aforesaid ruling. 8. In M/s. Maya Food and Vanaspati Ltd. Co. v. Chief Controlling Revenue Authority ( Board of Revenue) Allahabad, 1990 (90) RD 57, the Court held that the market value of the land could not be determined with reference to the use of the land to which the buyer intends to put in use. 8. In M/s. Maya Food and Vanaspati Ltd. Co. v. Chief Controlling Revenue Authority ( Board of Revenue) Allahabad, 1990 (90) RD 57, the Court held that the market value of the land could not be determined with reference to the use of the land to which the buyer intends to put in use. The Court held that a buyer may intend to establish an industrial undertaking thereon and that another buyer may intend to use it for agricultural purposes and a third person may intend to dedicate it for charitable purposes and that these different intentions of individual buyers may affect the price of each of them would be willing to pay for the property but the market value would not depend upon what each individual would offer for the property in question and that the market value would be that which a general buyer would offer and what the owner reasonably accepts for that property, the Court held that in determining the market value, the potential of the land as on the date of sale alone could be taken into account in determining the market value and that the potential value of the land that could be put in use in future could not to be taken into consideration. 9. In Smt. Anasuya Singh v. Commissioner, Faizabad Division, Faizabad and another, 2008 (104) RD 725, the Court held that all agricultural land situate at a roadside in a semi-urban area could not be treated as commercial or residential unless that area was declared as a commercial or a residential area by the authorities. In Kunj Behari v. State of U.P. and others, 2008 (104) RD 750 , a similar view was taken by the Court. 10. The aforesaid judgments have been followed in Ashok Kumar Dubey v. State of U.P. and others, 2008(4) AWC 3718 . The similar view has been taken in 2007 (4) AWC 3559 , Sarva Hitkarini Sahkari Awas Samiti Ltd. v. State of U.P. and 2008 (104) RD 725, Ansuiya Singh v. Commissioner, Faizabad Division, Faizabad. 11. The other limb of the argument is that the market value of the land cannot be determined with reference to use of the land to which buyer intends to put it in use, has substance. 11. The other limb of the argument is that the market value of the land cannot be determined with reference to use of the land to which buyer intends to put it in use, has substance. The matter in depth has been examined by this Court in Shakumbari Sugar and Allied Industries Ltd. v. State of U.P. and others, 2007 (5) ADJ 602 . In this case, reliance has been placed on earlier judgment in M/s. Maya Foods and Vanaspati Ltd., Allahabad v. Chief Controlling Revenue Authority, 1998 (4) AWC 636 wherein the following passage has been reproduced : “Learned Chief Controlling Revenue authority has observed that the land was purchased for an industrial purpose and the Collector is not arbitrary in deciding the price of the land on the basis of the proposed usage. This proposition is legally incorrect. The market value of the land cannot be determined with reference to the use of the land to which buyer intends to put it. One buyer may intend to establish an industrial undertaking thereon, another may intend to use it for agricultural purpose and a third person may intend to dedicate it for charitable purposes like leaving it open as pasture ground or a cremation ground or a playground. These different intentions may affect the price that each of them may be willing to pay for the property and such prices have wide variations but the market value is not what each such individual may offer for the property. The market value is what a general buyer may offer and what the owner may reasonably expect. In determining the market value, the potential of the land as on the date of sale alone can be taken into account and not what potential it may have in the distant future." 12. More or less the similar view has been taken in Smt. Neelam Gupta v. Commissioner, Kanpur Division, Kanpur, 2007 (1) ADJ 289 wherein the Court has placed reliance upon on para 19 of a judgment of the Apex Court in P. Ram Reddy v. Land Acquisition Officer, Hyderabad, JT 1995 (1) SC 593. The para 19 is reproduced below : “The question of future potential cannot be a factor for determining the market value of such a land for the purpose of stamp duty payable under the Stamp Act. The para 19 is reproduced below : “The question of future potential cannot be a factor for determining the market value of such a land for the purpose of stamp duty payable under the Stamp Act. The vendee pays the price that satisfies the vendor and as such, if the land was an agricultural land, it has to be treated as such and the valuation has to be done accordingly. Whether in future the purchaser puts the land into residential use or changes the character is immaterial for the purpose of payment of stamp duty “ 13. None of the authorities below besides the report of the Sub-registrar has referred any other material in support of their orders. In Ram Khelawan @ Bachha v. State of U.P. through Collector, Hamirpur and another, 2005 (98) RD 511, it has been held that the report of the Tehsildar may be a relevant factor for initiation of the proceedings under Section 4-A of the Act, but it cannot be relied upon to pass an order under the aforesaid section. In other words, the said report cannot form itself basis of the order passed under Section 47-A of the Act. In the case of Vijai Kumar v. Commissioner, Meerut Division, Meerut, 2008 (7) ADJ 293 (para 17), the ambit and scope of Section 47-A of the Act has been considered with some depth. Taking into consideration the Division Bench judgment of this Court in Kaka Singh v. Additional Collector and District Magistrate (Finance and Revenue), 1986 ALJ 49; Kishore Chandra Agrawal v. State of U.P. and others, 2008 (104) RD 253 and various other cases it has been held that under Section 4- A (3) of the Act, the burden lay upon the Collector to prove that the market value is more than minimum as prescribed by the Collector under the Rules. The report of the Sub-registrar and Tehsildar itself is not sufficient to discharge that burden. 14. Viewed as above, it is, thus, evident that the report of the Sub­registrar could not legally form basis of the impugned order. There is no material in possession of the respondents to show that on the date of the execution of the sale deed, the land in dispute was not agricultural land. 14. Viewed as above, it is, thus, evident that the report of the Sub­registrar could not legally form basis of the impugned order. There is no material in possession of the respondents to show that on the date of the execution of the sale deed, the land in dispute was not agricultural land. The laying of foundation subsequent to the sale deed is of little consequence so far as it relates to the determination of the payment of stamp duty under Section 47-A of the Act is concerned. Additionally, the learned counsel for the petitioners submits that still the land in dispute is being used for agricultural purposes. In this connection, he has placed reliance upon the extract of Khasra of 1414 Fasli. In the said Khasra it is mentioned that cattle fodder has been sown on .the spot. However, in the Khasra under heading category in column 18 of the said Khasra the entry is “Abadi/Shamil Jot”. The use of words ‘Sha Ja’ have been explained by the counsel for the parties as “Shamil Jot” which means joint cultivation. At this stage, the learned Standing Counsel submits that entry of “Abadi” reflects that the property in dispute is not agricultural property. Along with the counter affidavit the revenue extract (Khasra) of 1412 Fasli which corresponds to the year 2007 has been annexed. From this Khasra it is evident that crop of Urd was sown in Kharif season in the land in question. However, there is an entry of “Abadi/Shamil Jot” under the column 18. The said document does not relate to the date of the execution of the sale deed nor appears to have been filed before the authorities below and as such is liable to be ignored. Besides above, the fact that the crop was sown and factum of joint cultivation mentioned in the said document are also liable to be taken into consideration and cannot be ignored. The fact remains that there is no cogent or convincing material on the record to show that the land on the date of execution of the sale deed was other than the agricultural land, at least. 15. Yet, there is another interesting aspect of the case. The fact remains that there is no cogent or convincing material on the record to show that the land on the date of execution of the sale deed was other than the agricultural land, at least. 15. Yet, there is another interesting aspect of the case. In para 13 of the writ petition it has been stated that the petitioners by means of the sale deed dated 31st of January, 2005 have sold the land to Shri Vahid and Shri Shannu as agricultural land and the stamp duty was also paid at the rate applicable to the agricultural land by the transferee and till date no notice for deficiency of stamp duty has been served upon the transferee and transferee’s name has been duly recorded in the Revenue records. 16. In para 14 of the writ petition it has been stated that in the same Khasra No. 113, the land adjoining to the petitioners’ land was purchased by Gayasuddin. The Collector (Stamp), District Bijnor vide his order dated 14th of March, 2005, a copy whereof has been filed as Annexure-10 to the writ petition, has found that the land is agricultural land. The reply of the aforesaid paragraph has been given in para 9 of the counter affidavit of Shri G.K. Srivastava, Assistant Commissioner (Stamp), Head Quarter, Allahabad. The said reply reads as follows : “9. That the contents of para 13, 14 and 15 of the writ petition are irrelevant for the present controversy and as such do not call for a reply. Any subsequent sale deed or declaration as agriculture in the revenue records will not serve any purpose for the controversy raised with regards to valuation." 17. From the above reply, it follows that the facts as stated in paras 13 and 14 of the writ petition have not been denied. Interestingly, some part of the said Khasra plot No. 113 has been treated by the same authority as agricultural land and the other part as non-agricultural land. This shows that the authority concerned i.e. the Collector (Stamp) District Bijnor, who has decided both the cases has acted differently on the same set of the facts. In the case on hand, the order of the said authority is dated 27.1.2006, while in the case of Gayasuddin it is dated 14.3.2005. This shows that the authority concerned i.e. the Collector (Stamp) District Bijnor, who has decided both the cases has acted differently on the same set of the facts. In the case on hand, the order of the said authority is dated 27.1.2006, while in the case of Gayasuddin it is dated 14.3.2005. Also as noticed above, when the land was resold by the petitioners subsequently on 31.1.2005, no objection was raised by the respondents and they have accepted the stamp duty on subsequent sale deed, treating the land as agricultural land. This being so, there is no hesitation to hold that the respondent No. 3 did not possess any cogent material on record to show that the instrument in question is deficiently stamped or undervalued in any manner. The respondent No. 2 was, therefore, not justified in confirming the order passed by the Collector (Stamp), District Bijnor by the impugned order. The Appellate Authority proceeded to dismiss the appeal without recording any finding its own. 18. In view of the above discussion, the impugned orders cannot be sustained and the same are hereby quashed by issuing a writ of Certiorari. Any amount deposited in pursuance of the interim order dated 9.1.2007 shall be refunded to the petitioners within a period of one month from the date of production of the certified copy of this order by the respondent No. 3. If the respondent No. 3 fails to refund the amount within the period as stipulated above, it shall be liable to pay interest @ 10 per cent per annum from the date of deposit to the date of actual payment. 19. With the aforesaid observations, the writ petition is allowed. No order as to costs. (W.P. No. 11007 of 2007) 20. Gayasuddin and Surendra Singh are the petitioners and they have challenged the orders dated 27.1.2006 passed by the Collector (Stamp), District Bijnor in case No. 325/2004-05 as confirmed in appeal No. 24 of 2005-06 on 28.11.2006. No separate arguments were advanced by the learned counsel for the parties and they submitted that an identical factual and legal controversy is involved in this case also as that of the writ petition No. 905 of 2007. No separate arguments were advanced by the learned counsel for the parties and they submitted that an identical factual and legal controversy is involved in this case also as that of the writ petition No. 905 of 2007. In this case, the land measuring 0.152 hectare in Khasra No. 113 (part of same plot) in village Ismailpur, Pergana Boodhpur, Tehsil Chandpur, District Bijnor was purchased on 11.8.2003 by a registered sale deed for a sum of Rs. 35,000/-. The stamp duty was paid as per agricultural land situate near road. 21. For the reasons given in the writ petition No. 905 of 2007, the impugned orders dated 27.1.2006 and 28.11.2006 are hereby quashed and the writ petition is decided on the same terms including refund of the amount as of writ petition No. 905 of 2007. (W.P. No. 11009 of 2007) 22. Julfikar Khan and Maksood are the petitioners and they have challenged the orders dated 27.1.2006 of the Collector (Stamp), District Bijnor in case No. 326/2004-05 as confirmed in appeal No. 23 of 2005-06 on 28.11.2006. No separate arguments were advanced by the learned counsel for the parties and they submitted that identical factual and legal controversy is involved in this case as that of the writ petition No. 905 of 2007. In this case, the land measuring 0.152 hectare in Khasra No. 113 Fasli in village Ismailpur, Pergana Boodhpur, Tehsil Chandpur, District Bijnor was purchased on 29.8.2003 by a registered sale deed for a sum of Rs. 35,000/-. The stamp duty was paid as per agricultural land situate near road. 23. For the reasons given in the writ petition No. 905 of 2007, the impugned orders dated 27.1.2006 and 28.11.2006 are hereby quashed and the writ petition is decided on the same terms including refund of the amount as of writ petition No. 905 of 2007. 24. All the writ petitions are allowed. No order as to costs. ————