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2010 DIGILAW 679 (ALL)

SEEMA RAI v. STATE OF U. P.

2010-02-23

ABHINAVA UPADHYA

body2010
JUDGMENT Hon’ble Abhinava Upadhya, J.—The present writ petition has been filed challenging the order dated 30.4.2009 passed under Section 47-A (3) filed as Annexure-2 to the writ petition and the subsequent order dated 23.8.2009 passed in appeal under Section 56 (1-A) of the Indian Stamp Act. 2. The main ground of challenge in the writ petition is that without determination of the actual market value of the land the Collector has proceeded merely on the basis of circle rate prevalent for residential plots and determined the deficiency in the stamp duty. According to the learned counsel for the petitioner the said property, area of which is said to be.134 hectares has been purchased to increase his holding considering the fact that the adjoining land is that of the petitioner where cultivation etc. is being done by the petitioner. It is also admitted that the said plot is a Gaddha, i.e. a ditch and, therefore, cannot be used for agricultural purpose in its present state. The contention of the petitioner is that the plot in question is surrounded by agricultural property in which agricultural activities are going on and no abadi is there in the vicinity. However, one boundary wall of the Roadways Stand is there but that alone cannot be a determinative factor for treating the property to be residential. Further contention of the learned counsel for the petitioner is that the Collector has relied upon a report dated 24.3.2007 which is said to be of prior to initiation of the proceeding under Section 47-A (3) of the Act and, therefore, the Commissioner erred in law in relying upon the same. Further contention is that subsequent spot inspection report submitted by the Sub-Registrar dated 24.1.2008 clearly mentions that the property is agricultural and, therefore, the order of the Collector treating the property to be residential cannot be sustained as the same has been held to be so without any basis. The matter was carried to the Commissioner but the Commissioner also affirmed the order of the Collector without interfering with the same. 3. The point for consideration before this Court is that the property in question which is held by the Collector to be of residential potentiality is on the basis of report dated 24.3.2007 but the subsequent report of the Sub-Registrar dated 24.1.2008 has given a finding that the property in question is agricultural. 3. The point for consideration before this Court is that the property in question which is held by the Collector to be of residential potentiality is on the basis of report dated 24.3.2007 but the subsequent report of the Sub-Registrar dated 24.1.2008 has given a finding that the property in question is agricultural. Therefore, it would have been appropriate for the Collector to have made spot inspection himself since there was difference between the two reports. 4. Be that as it may the Collector appears to have proceeded merely on the basis that since there was Roadways Stand in the close proximity of the property in question and also on the basis that the plot in question is situated within the Nagar Palika area, therefore, the petitioner is liable to pay stamp duty on the circle rate fixed for residential purposes. 5. I have heard Sri Pradeep Kumar Rai, learned counsel for the petitioner and the learned Standing Counsel appearing for the State. In my view. the provisions of Section 47-A (3) of the Act clearly mandates that either suo motu or upon some report of any other authority proceeding can be initiated and the Collector after issuing notice to the petitioner can proceed to determine the market value of the property in question for determination of deficiency in the leviable stamp duty. This Court in the case of Ram Khelawan @ Bachcha v. State of U.P., 2005 (98) RD 511 has clearly held that for the purpose of determination of market value same principle has to be adopted as for determination of payment of compensation to the land holders under the land acquisition proceedings. It is wholly irrelevant whether the said property has been recorded as agricultural in the revenue records or whether any declaration under Section 143 of the U.P.Z.A. & L.R. Act has been made or not. 6. It is wholly irrelevant whether the said property has been recorded as agricultural in the revenue records or whether any declaration under Section 143 of the U.P.Z.A. & L.R. Act has been made or not. 6. I, therefore, find that since the determination of market value has not been done in accordance with the provisions of Section 47-A (3) and the law laid down in the case of Ram Khelawan (supra) by ascertaining the probable market value which a willing seller would expect from a willing buyer nor the exempler of similarly situated property earlier sold has been taken into consideration nor the market value has been determined in terms of the general principles applied while determining the compensation to be paid under the Land Acquisition Act, the order dated 30.4.2009 passed under Section 47-A (3) as well as the appellate order dated 23.8.2009 passed under Section 56 (1-A) of the Act cannot be sustained and are set aside. 7. The matter is remanded back to the Collector for determining the market value in view of the observations made above as well as the law laid down by this Court in the case of Ram Khelawan (supra). 8. It is further provided that the amount, if any, already deposited, shall be subject to any further orders that may be passed by the Collector after initiating fresh proceeding for determination of market value as provided under Section 47-A (3) of the Act, and as stated above. 9. It is made clear that no fresh notice will be required to be issued to the petitioner and fresh proceeding will be initiated within a period of one month from the date a certified copy of this judgment is produced before the concerned Collector. It is also directed that if any spot inspection is to be made, the petitioner shall be given due notice thereof. The Collector is to proceed accordingly 10. Subject to the aforesaid direction the writ petition is allowed. ————