JUDGMENT Hon’ble Ran Vijai Singh, J.—Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the impugned order dated 28.9.1993 and 26.6.1996 passed by Additional District Magistrate (Finance and Revenue), Shahjahanpur and Chief Controlling Revenue Authority, U.P., at Allahabad respectively. vide order dated 28.9.1993 the respondent No. 2 has found the deficiency of stamp of Rs.1,47,561.50 and imposed penalty of the same amount alongwith Rs. 90/- registration fee, the total amount comes to Rs.2,95,213/-,whereas by the subsequent order the petitioner’s revision filed against the said order was dismissed by the Chief Controlling Revenue Authority, U.P.,Allahabad. 2. The facts giving rise to this case are that the petitioner has purchased the land measuring about 0.438 aire from plot Nos. 143,144, 145,146/1, 147/1, 148 and 149 situated at village Hindu Patti, Tehsil Tilhar, District Shahjahanpur for consideration of Rs.9000/- and paid stamp duty worth Rs.1876/-. It appears that the matter was referred under Section 47 A(1) of the Stamp Act by the Sub Registrar before the Collector Stamps. Thereafter a spot inspection was made by Tehsildar Tilhar District Shahjahanpur on two occasions in February, 1993, and in August, 1993 and following that a show cause notice was issued to the petitioner disclosing therein that although the petitioner has purchased the land of commercial use but has paid the stamp duty on agricultural rate. The petitioner has filed reply to the said notice stating therein that petitioner has purchased the agricultural land and it is being used for agricultural purposes. The Additional District Magistrate (Finance and Revenue) after going through the reply of the petitioner and the report of Tehsildar has came to the conclusion that the land purchased by the petitioner was commercial land but petitioner, instead of paying the commercial rate has paid the stamp duty treating it as agricultural land. While passing this order the respondent No. 2 has based his order on the report of Tehsildar, where it is reported that although the land in the revenue record is recorded as agricultural land but it is being used for commercial purposes. It appears Additional District Magistrate (Finance and Revenue) has placed reliance upon the report of Tehsildar Tilhar, District Shahjahanpur dated 25.2.1993 whereas he has overlooked the subsequent report of Tehsildar dated 16.8.1993 which mentions that plot Nos. It appears Additional District Magistrate (Finance and Revenue) has placed reliance upon the report of Tehsildar Tilhar, District Shahjahanpur dated 25.2.1993 whereas he has overlooked the subsequent report of Tehsildar dated 16.8.1993 which mentions that plot Nos. 143,144,145,146/1 and 147/1 are Kachiyana category of which circle rate happens to be Rs.30,000/-per acre whereas plot Nos. 148 and 149 are Doem (Doyam) category land and circle rate of which happens to be Rs.24,000/- per acre. He has also reported that at the time of inspection on the aforesaid plots a Saw Mill, Atta Chakki and Dharm Kanta was found. The Additional District Magistrate Finance & Revenue (hereinafter referred to as A.D.M.(F & R) came to the conclusion that as the land is being used for commercial purpose, therefore, the petitioner has paid less stamp duty. According to the A.D.M.(F & R) the circle rate for commercial land is Rs. 800/- per square meter and since 1494 square metre land has been purchased, he has calculated the value of the land Rs.11,95,200 ( 1494 x 800) and assessed the stamp duty as per schedule 1-B of Article 23 Rs.1,49,437.50 and after reducing the duty which has already been paid by the purchaser, Rs.1,876/- he found the deficiency of Rs.1,47,561.50 and also imposed the penalty of the same amount alongwith Rs.90/- as registration fee. 3. Aggrieved by the order of A.D.M.(F& R) 28.9.1993 the petitioner filed Revision before the Chief Controlling Revenue Authority (hereinafter referred to as C.C.R.A) U.P., Allahabad which was numbered as Stamp Revision No. 1091 of 1993-94 district Shahjahanpur (Rajendra Kumar v. State of Uttar Pradesh) and was partly allowed by the C.C.R.A. vide order dated 26.6.1996. The C.C.R.A. has held that the penalty upon the petitioner has been imposed against the provision of law, therefore, he set aside the order with respect to the imposition of penalty but for other purposes he decline to interfere with the order passed by the A.D.M.(F& R). 4. Aggrieved by these orders the present writ petition has been filed. 5. The C.C.R.A. has held that the penalty upon the petitioner has been imposed against the provision of law, therefore, he set aside the order with respect to the imposition of penalty but for other purposes he decline to interfere with the order passed by the A.D.M.(F& R). 4. Aggrieved by these orders the present writ petition has been filed. 5. Sri Udit Chandra holding brief of Sri Subodh Kumar learned counsel for the petitioner while assailing these orders has submitted that for the purposes of determination of market value and payment of Stamp duty the entry in the revenue record and the nature of the land on the date of execution of sale deed is material and the stamp duty cannot be fixed on the basis of future user of the land. In support of his submissions he has placed reliance upon few judgnemts of this Court; Ashok Kumar Dubey v. State of U.P. and others, 2008 (8) ADJ 748 , Smt. Anasuya Singh v. Commissioner, Faizabad Division Faizabad and another, 2008 (104) RD 725, Veer Bal Singh v. State of U.P. and others, 2009 (2) ADJ 481 and Sumant Lal Tiwari v. State of U.P. and others, 2010(5) ADJ 762 . 6. Refuting the submissions of learned counsel for the petitioner learned Standing Counsel has submitted that from the perusal of the report of Tehsildar dated 16.8.1993 it is apparent that the part of the land is being used for commercial purposes as the Tehsildar at the time of inspection has found functioning of one Dharm Kanta and Atta Chakki on the aforesaid land. In the submissions of learned Standing Counsel the entire land is of commercial nature, therefore no infirmity or illegality can be attached with the view taken by the respondent authorities and the writ petition deserves to be dismissed. 7. I have heard learned counsel for the parties and perused the record. It is not in dispute that the petitioner has purchased 1/3 part of the land of plots No. 143,144,145,146/1,147/1,148 and 149 through sale deed, executed by Sri Ram Kishore, Sri Naiku and Sri Gulab who were the joint owners of the plots, on 29.7.1991. The petitioner has brought on record the extract of the Khatauni from which it transpires that the erstwhile owners were recorded as Bhoomidhar with transferable right of the aforesaid plots. The petitioner has brought on record the extract of the Khatauni from which it transpires that the erstwhile owners were recorded as Bhoomidhar with transferable right of the aforesaid plots. The Tehsildar Tilhar in his report dated 16.8.1993 has mentioned that in Khasra of the year 1395 and 1396 Fasli in Ravi & Kharif (both Fasli) crops were mentioned and came to the conclusion that at the time of the execution of the sale deed, the land was used for agricultural purpose. He further observed that the plot numbers 143, 144, 145, 146/1 and 147/1 are Kachiyana and the circle rate of which happens to be Rs.30,000/- per acre whereas plot numbers 148 and 149 were found Goyad/Doyam, circle rate of which happens to be Rs.24,000/- per acre and on the basis of above rate he valued the land worth Rs.10,320/-. 8. From the perusal of the impugned orders it do not transpires that at the time of execution of sale-deed the land was not used for agricultural purposes and Dharm Kanta and Atta Chakki were existing or the land was used at the relevant time for commercial purpose. It is no where mentioned that the land is not recorded in the revenue record as agricultural one. The factum of existence of Dharm Kanta for the first time came in the year August 1993 whereas the sale-deed is of the year 29.7.1991. 9. It is well settled that stamp duty on an instrument is being paid normally on the basis of market value fixed on the basis of circle rate fixed by the Collector and when the market value on an instrument is being doubted either by the registering authority or under suo moto action of the State Government through its officers then in that situation there must be a definite proof on the basis of material available on record before the authority for enhancing the market value of the property. 10. While fixing the circle rate with respect to land,building,road, etc., various things are to be taken into consideration like in case of land the classification of soil,irrigation facility,proximity of road,market, bus station, railway station, factories, hospitals and Government offices, and location with reference to its situation in urban area, semi urban area or country side. Likewise in the case of non-commercial building, there are other ingredients which are taken into consideration. Likewise in the case of non-commercial building, there are other ingredients which are taken into consideration. Therefore, in the case where the authorities have raised doubt on the determination of market value and payment of deficient of stamp duty, then before arriving to this finding those things have to be taken into consideration on the basis of material available on record. 11. Here in the present case the market value of the land has been calculated treating it as commercial one but in both the judgements there is no discussion with regard to the commercial activity in the area and prevailing rent and nature of economic activity in the locality etc., which happens to be relevant critaria for fixing rate for commercial purposes, merely on the basis of report of the Tehsildar which mentions that there is one Dharam Kanta & Atta Chakki on the land, the land has been treated as of commercial use and the market value has been determined on that basis, which to my opinion is unsustainable as there can be no roof without there being any foundation pillar/wall, as in this case the finding with respect to existence of Dharam Kanta and Ata Chakki on the date of execution of sale deed is missing, which in fact has been made basis for treating the land as commercial one. On the basis of material available on record, it appears that Dharam Kanta and Atta Chakki, on the disputed land, have been constructed only after execution of sale-deed. 12. This Court in the case of Ashok Kumar Dubey v. State of U.P. and others, 2008 (8) ADJ 48, has held that market value of the land could not be determined with reference to use of the land to which the buyer intends to put in use. Here in this case, it appears the authorities have enhanced the stamp duty on the ground that land is situated in urban area but the Court took the view unless the nature of the land is changed from agricultural one to abadi the respondents could not have assessed the market value of the land on the basis of the future potential of the land because of its situation nearby the urban area. The same view has been taken in the case of Smt.Anasuya Singh v. Commissioner, Faizabad Division, Faizabad and another, 2008 (104) RD 725 where this Court has held that the agricultural land situated at road side in semi urban area cannot be treated as commercial or residential unless the area is declared as commercial or residential in the master plan prepared by the State Government. Again reiterating the same principle this Court in the case of Veer Bal Singh v. State of U.P. And others, 2009 (2) ADJ 481 , has held that on date of execution of sale-deed, land was an agricultural land and the market value and consequential stamp duty cannot be fixed on the basis of its future potential. The same view has further been taken by this Court in Sumant Lal Tiwari v. State of U.P. and others, 2010(5) ADJ 762 . 13. In this case as has been noticed after hearing learned counsel for the parties and perusing the record that there was no material before the respondents to arrive at finding that the land in question is not agricultural land and commercial one, on the contrary, there is a report of Naib Tehsildar dated 16.8.1993 mentioning the nature of land agricultural one, as in his report the Naib Tehsildar has reported that at the relevant time in the khasra of the year 1395 and 1396 in both fasli Ravi and Kharif crop has been mentioned. Merely because on the small piece of land Dharm Khata and Atta Chakki is existing, it cannot be inferred that the land in question is not agricultural land and commercial one particularly in the circumstances without there being any proof on record that Dharam Kanta and Atta Chakki were existed before the date of execution of sale-deed or on the date of execution of sale-deed. Further without taking into consideration the economic activity and prevailing rent etc. in the vicinity of land. No provision under the Stamp Act could be shown to the Court by the learned Standing Counsel containing that the stamp duty may also be charged on the future use of the land or the purchaser cannot use agricultural land for any other purposes except the agriculture in future. 14. in the vicinity of land. No provision under the Stamp Act could be shown to the Court by the learned Standing Counsel containing that the stamp duty may also be charged on the future use of the land or the purchaser cannot use agricultural land for any other purposes except the agriculture in future. 14. In these circumstances I am of the view that the future use of the land is irrelevant for the determination of the market value and payment of stamp duty. The valuation of the land has to be assessed on the basis of existing circle rate/market value of particular category of the land on the date of execution of sale deed and its registration considering the other criteria as discussed above, if any deviation is there. 15. In view of the foregoing discussions I am of the opinion that impugned orders are unsustainable in the eye of law and deserves to be quashed. 16. In the result the writ petition succeeds and is allowed. The impugned orders dated 28.9.1993 and 26.6.1996 are hereby quashed. It is also provided that the security if any furnished by the petitioner pursuant to the order dated 11.9.1996 passed by this Court be released. —————