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2011 DIGILAW 1271 (ALL)

Chaman Kumar Gaur v. State of U. P. and Others

2011-05-19

PANKAJ MITHAL

body2011
Pankaj Mithal, J.;- Heard Sri Ateeq Ahmad Khan, learned counsel for the petitioner and Sri Nimai Das, learned Standing Counsel appearing for the respondents. Pleadings exchanged between the parties have also been examined. 2. By means of the present writ petition, petitioner has challenged the order dated 16.11.2009 passed by the Additional Collector (Finance and Revenue) Bulandshahar and the appellate order thereto dated 25.1.2010 passed by the Additional Commissioner Meerut Division, Meerut in proceedings under the Indian Stamp Act, 1899. 3. The instrument in question is Instrument No. 4566 of 2009 which is a sale deed dated 20.4.09 in respect of part of land of Gata No.765 situate in Mauja Araniya Bhojpur, Pargana & Tehsil Khurja, District Bulandshahar. Petitioner on the aforesaid sale deed paid the necessary stamp duty by determining the market value as per the circle rate prescribed for agricultural land. 4. The Sub-registrar Khurja, vide Report dated 20.7.09 recommended for charging stamp duty by valuing the land as residential and in this respect he referred to two earlier sale deeds which were also in connection with the part of the aforesaid plot. 5. The Additional Collector solely on the basis of the report of the Sub-registrar without there being any other evidence determined the market value by applying the minimum circle rate prescribed for residential use of the land. 6. The appellate authority also dismissed the appeal on the ground that according to the report of the Sub-registrar in the earlier two sale deeds land of the same plot was sold and it was disclosed to be of residential use, therefore, the land covered by the sale deed in question is also to be treated as residential land. 7. The submission of learned counsel for the petitioner is that sufficient evidence was produced to show that the land is recorded as agricultural land and that there is no declaration under Section 143 of the U.P.Z.A. & L.R. Act, 1950 (hereinafter referred as Act). In such circumstances, in the absence of any spot inspection to prove the actual use of the land, it was not open for the authorities to have treated the said land to be agricultural land. The reliance placed upon the report of the Sub-registrar is misconceived and it is not an admissible piece of evidence. 8. In the case of Ram Khilawan Vs. The reliance placed upon the report of the Sub-registrar is misconceived and it is not an admissible piece of evidence. 8. In the case of Ram Khilawan Vs. State of U.P. and others 2005 (2) AWC 1987 it has been settled by this court that the report of the Sub-registrar which forms the basis for initiation of proceedings under the Act is not relevant and material for determining the market value of the land. 9. In view of above, the reliance placed by the authorities below upon the report of the Sub-registrar in coming to the conclusion that the land in question is of residential use is totally illegal. 10. It has also been held in Ram Khilawan (Supra) that the circle rates prescribed for different categories of land by the Collector under the Act/Rules are only relevant till the stage of registration of the sale deed and they may not act as a proper guideline for determining the market value once the document is registered. After the registration of the sale deed, the proper course for determining the market value is to apply the general principles as are normally applicable for determining the market value for payment of compensation under the Land Acquisition Act. 11. It may be a different thing that where exemplars are not available and there is no other evidence also to enable the authorities to determine the market value, the authorities fall back upon the minimum circle rates prescribed by the Collector and in such a situation the circle rates may form the basis of determination of the market value. 12. In such a situation, the primary thing is to determine the precise nature of the land for applying the circle rate. 13. The submission of learned Standing counsel is that the authorities below have placed reliance upon two earlier sale deeds concerning the same plot and therefore, the determination of market value is not only based upon the report of the Sub-registrar but actually upon the said exemplars. 14. The aforesaid exemplars sale deeds are dated 12.12.07. They relate to 184.25 sq. meters each of the same plot No.765. They have been executed by the vendor of the petitioner. The said vendor in the aforesaid sale deeds have described the nature of the land to be residential. 14. The aforesaid exemplars sale deeds are dated 12.12.07. They relate to 184.25 sq. meters each of the same plot No.765. They have been executed by the vendor of the petitioner. The said vendor in the aforesaid sale deeds have described the nature of the land to be residential. Thus, apparently when the part of the land of the same plot has been described as residential in nature, it automatically follows that the remaining part would also be of the same nature. However, in the present case, the remaining part is recorded to be agricultural in nature. Thus, the controversy remains as to the exact nature of the land or use to which it was being put at the time of the sale deed. The said use of the land could have only been ascertained by the spot inspection which was refused. 15. The submission that as there was no declaration under Section 143 of the Act the land cannot be treated otherwise may not hold good for the simple reason that even an agricultural land can be utilized or other purposes in view of the Section 142(1) of the Act. 16. It was thus, all the more necessary for the authorities to have determined the character of the land before determining its market value by applying the circle rates prescribed by the Collector. The authorities having failed in determining the correct nature of the land were not justified in determining its market value as residential land. 17. In view of aforesaid facts and circumstances, impugned orders dated 16.11.09 and 25.1.10 are quashed. The Collector/Additional Collector is directed to redetermine the market value of the land in question/deficiency in stamp duty in accordance with law after affording opportunity of hearing and to adduce evidence to the petitioner as expeditiously as possible preferably within a period six months from the date of the production of certified copy of this order. 18. The Collector/Additional Collector may determine the market value on the basis of general principles/exemplars independent of the circle rate prescribed by the Collector. 19. It is said that the petitioner has made certain deposits pursuant to the impugned orders. If that be so, any amount so deposited would abide by the fresh decision to be taken by the Collector/Additional Collector. The Collector/Additional Collector may determine the market value on the basis of general principles/exemplars independent of the circle rate prescribed by the Collector. 19. It is said that the petitioner has made certain deposits pursuant to the impugned orders. If that be so, any amount so deposited would abide by the fresh decision to be taken by the Collector/Additional Collector. In case the amount paid or deposited is found to be in excess the same will be refunded to the petitioner within a period of one month thereof. 20. Petition allowed as aforesaid with no order as to costs.