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2010 DIGILAW 295 (ALL)

ASIF ALI v. STATE OF U. P.

2010-01-25

ABHINAVA UPADHYA

body2010
JUDGMENT Hon’ble Abhinava Upadhya, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. It is contended by the learned counsel for the petitioner that the petitioner had purchased a land measuring about 5 Biswa and 8 Biswansi, plot No. 416/2, which was Bhoomidhari land of one Sri Hamid Ali. A sale deed was executed and registered in respect of the said land on 22.1.2007. It appears that the Collector, Bulandshahar issued a notice on 5.3.2007 in pursuance of proceedings initiated under Section 47-A (3) of the Indian Stamp Act drawn on the basis of a report of the Sub Registrar dated 23.1.2007. The said report states that another portion of the same plot i.e. plot No. 416/5, a sale deed has been executed treating it as residential plot and, therefore, plot No. 416/2 should also be treated as residential and not agricultural as has been set out in the sale deed of the petitioner. 3. Before the Collector, Bulandshahar in proceedings under Section 47-A (3), the claim of the petitioner was that according to the revenue record, the said plot was an agricultural plot and agricultural activities was also being carried out on the same. Merely on the basis of some other sale deed executed, the value nature of the plot cannot be determined. The further case of the petitioner is that he requested the Collector to make spot inspection for the correct assessment of the land in question but the same was also not done and the Collector relying upon the ex-parte report of the Sub Registrar dated 23.1.2007 declared the deficiency of Stamp duty and imposed penalty thereon. The appeal of the petitioner under Section 56(1-A) of the Stamp Act was also dismissed, hence this petition. 4. The main contention of the learned counsel for the petitioner is that the said property was recorded in the revenue record as agricultural land and the petitioner had purchased the said land for the purposes of agriculture only. The petitioner himself is an agriculturist and even today agriculture activities are going on in the said property, it is also alleged no declaration under Section 143 of ZA & LR Act have been made declaring the land otherwise than agricultural, therefore, the order of the Collector is erroneous. 5. The petitioner himself is an agriculturist and even today agriculture activities are going on in the said property, it is also alleged no declaration under Section 143 of ZA & LR Act have been made declaring the land otherwise than agricultural, therefore, the order of the Collector is erroneous. 5. On the other hand the learned Standing Counsel for the Government has emphasized that the portion of the same plot i.e. plot No. 416/5 has been sold as residential plot and therefore the market value of the present plot of the petitioner will have to be taken as that of residential and, therefore, the order of the Collector passed under Section 47-A of the Stamp Act is in accordance with law and does not call for any interference. 6. I have gone through the order of the Collector as well as the order of Commissioner and in my view adjoining portion of the land which has been sold as residential land will not ipso facto lead to the conclusion that the land of the petitioner is residential. The Collector cannot shrink away from the obligation to determine the market value of the property for ascertaining the leviable stamp duty under Section 47-A(3) of the Act. I am also of the view that the report of the Sub Registrar dated 23.1.2007 was relevant only for the purpose of initiation of proceeding under Section 47-A(3). Once notice under Section 47-A(4) having been issued, the report dated 23.1.07 becomes meaning-less. The Collector, then has to proceed and determine the market value of the property in question as per the general principle applied for the determination of market value of the land for the purpose of payment of compensation under the Land Acquisition Act. 7. In the aforesaid view of the matter, it is incumbent upon the Collector to find out the market value of the land for determination of the stamp duty in the same way as was held by this Court in the case of Ram Khelawan reported in 2005 Vol. 98 Revenue Decision, 511. 8. Under the circumstances, the order of the Collector passed under Section 47-A(3) of the said Act cannot be sustained and similarly the order passed by the Commissioner under Section 56(1-A) of the Act also cannot be sustained and are therefore quashed. 9. 98 Revenue Decision, 511. 8. Under the circumstances, the order of the Collector passed under Section 47-A(3) of the said Act cannot be sustained and similarly the order passed by the Commissioner under Section 56(1-A) of the Act also cannot be sustained and are therefore quashed. 9. However, for determination of the market value of the land in question the matter is remanded back to the Collector to pass a fresh order after giving notice to the petitioner and making spot inspection as well as ascertaining the market value of the land in question as held by this Court in the aforesaid decision of Ram Khelawan (supra). 10. With the aforesaid observation the writ petition is allowed. 11. Parties to bear their own cost. ————