Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1201 (ALL)

FAZLURRAHMAN v. STATE OF U. P.

2010-04-15

ABHINAVA UPADHYA

body2010
JUDGMENT Hon’ble Abhinava Upadhya, J.—The petitioner claims himself to be an agriculturist and has an agricultural holding other than the subject matter of dispute in the present writ petition. It is also contended by the petitioner that even today cultivation is being done on the property in question. 2. The facts in brief are that the petitioner purchased certain property through a sale deed executed in his favour on 27.1.2003 for Plot No. 60, area 3 biswa 15 dhur after paying stamp duty as applicable to the agricultural land and the sale deed was registered without any objection. However after a lapse of about 15 months, a notice dated 5.7.2004 under Section 47-A(3) of the Indian Stamp Act was received by the petitioner on 27.7.2004. In response to the aforesaid notice the petitioner submitted his objection on 3.7.2004. It appears that the proceedings under Section 47-A(3) of the Act, have been initiated pursuant to the inspection made by the Collector himself on 18.6.2004 in which he found that adjacent to the property of the petitioner certain houses were erected. Therefore the Collector held the property of the petitioner to be Abadi in nature and also having potential of Abadi and has proceeded to determine deficiency of stamp duty to the tune of Rs. 59,600/- and after including penalty and interest etc. a demand has been made for a total amount of Rs. 82,000/- vide order dated 19.10.2004 (Annexure-1 to the writ petition). Aggrieved by the aforesaid order, the petitioner filed an appeal under Section 56(1) of the Act and the Commissioner has also affirmed the order of the Collector. 3. Sri Sunil Kumar Shukla, learned counsel appearing for the petitioner has submitted that the procedure as prescribed under Section 47-A(3) of the Act has not been complied with by the Collector in determining the deficiency of stamp duty. It is further contended that the basis of initiation of proceedings under Section 47-A(3) was a report of the Collector himself who had inspected the property prior to the issuance of notice on 18.6.2004. However, after issuance of notice no further inspection was made nor the petitioner was associated with any inspection. It is contended that the Collector has relied upon his own ex parte inspection which is against the spirit of Section 47-A(3). However, after issuance of notice no further inspection was made nor the petitioner was associated with any inspection. It is contended that the Collector has relied upon his own ex parte inspection which is against the spirit of Section 47-A(3). According to learned counsel any prior inspection is only relevant for the purpose of initiating proceeding under Section 47-A(3). However, once proceedings are initiated, the Collector has to determine the fair market value of the property in question on his own upon further making inspection and in such inspection the petitioner ought to have been included which is not the procedure adopted by the Collector in the present case. According to the petitioner no subsequent spot inspection was made and the Collector has proceeded to determine the market value only on the basis of the houses that are standing on the property nearby. It is also contended that in the sale deed the said houses have been disclosed by the petitioner. As such there is no concealment on the part of the petitioner thereby no penalty could have been imposed by the Collector. 4. I have heard learned counsel for the petitioner Sri Sunil Kumar Shukla and Sri A.C. Misra appearing for the Government. There appears to be some substance in the arguments advanced by the petitioner’s counsel that no inspection was made after issuance of notice under Section 47-A(3) and the determination of market value has been made by the Collector on the basis of his own inspection which is an ex parte inspection and on the basis of future potentiality of the land which is not permissible in law. This Court in the case of Ram Khilawan @ Bachcha v. State of U.P. and another, 2005 (2) AWC 1087 has held that fair market value can be determined by applying the same general principle as are applied for determination of compensation to be paid to the land holders under the land acquisition proceedings under the Land Acquisition Act. No such exercise having been done by the Collector, the order cannot be sustained and is hereby set aside. Similarly the order of the Commissioner can also not be sustained and is hereby set aside. However, the liberty is with the Collector to pass afresh order in accordance with law as prescribed under Section 47-A(3) as well as enumerated by this Court in the case of Ram Khilawan (supra). 5. Similarly the order of the Commissioner can also not be sustained and is hereby set aside. However, the liberty is with the Collector to pass afresh order in accordance with law as prescribed under Section 47-A(3) as well as enumerated by this Court in the case of Ram Khilawan (supra). 5. With the aforesaid direction the writ petition stands allowed. 6. Any amount that has already been deposited by the petitioner towards the aforesaid demand for deficiency of stamp duty and penalty etc. shall be refunded back to the petitioner within a period of three months from the date of production of certified copy of this order produced before the Collector. If the said amount is not returned within the said period, then from the expiry of three months the petitioner would be entitled to an interest at the rate of 10% per annum on the amount so deposited by him, till its actual payment to him. ————