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2017 DIGILAW 1665 (ALL)

Sant Ram v. Commissioner Azamgarh Division

2017-07-17

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri Rajiv Singh, learned counsel for the petitioner and Sri R. K. Shukla, learned standing counsel for the respondents. 2. The petitioner is seeking quashing of the order dated 29.11.2002 passed by the Commissioner, Azamgarh Division, Azamgarh in proceedings under section 47A of the Indian Stamp Act, 1899 as well as the order dated 3.9.2002 passed by the District Magistrate/Collector, Azamgarh. 3. Briefly stated the facts of the case are that the petitioner purchased 168 kadi out of total area 543 kadi of plot no. 364 and plot 365 area 690 kadi having total area 1.233 kadi situated at Mauja Khanpur Fatteh, Pargana Atraulia, Tehsil Budhanpur, District Azamgarh for consideration of Rs. 38,000/-. The petitioner paid stamp duty of Rs. 3040/- and registration fees of Rs. 760/-. Subsequently proceedings under section 47A of the Indian Stamp Act, 1899 were initiated against the petitioner. 4. The Collector, Azamgarh has held that the land in question is situated in between abadi and market and is about one jarib from the town area and, therefore, the rate applicable to the land in question is that as applicable for residential purposes i.e. at the rate of Rs. 1600/- per sq. meter. Therefore, valuation of the land is 1600x680.4=10,88640/-. On this stamp duty payable was Rs. 87,091/- and registration fees Rs. 5000/-. The petitioner has paid stamp duty of Rs. 3040/- and registration fees of Rs. 760/- and, therefore, deficiency of stamp duty comes to Rs. 84,051/- plus deficiency of registration fees Rs. 4240 and penalty of Rs. 45387/- total Rs. 1,33,678/-. 5. Aggrieved by the order of the Collector dated 3.9.2002 the petitioner filed revision before the Commissioner, Azamgarh Division, Azamgarh who has noted that the Tehsildar in his report has held that the land in question is submerged in water and there is only single cultivation and, therefore, the residential rate would be applicable to be Rs. 1300/- per sq. meter. The Commissioner held deficiency of stamp duty at Rs. 67,760, deficiency of registration fees Rs. 4,240/- and penalty of Rs. 36,590/- total Rs. 1,08,590/-. 6. According to the petitioner, the land in dispute is agricultural land and was purchased as such. 1300/- per sq. meter. The Commissioner held deficiency of stamp duty at Rs. 67,760, deficiency of registration fees Rs. 4,240/- and penalty of Rs. 36,590/- total Rs. 1,08,590/-. 6. According to the petitioner, the land in dispute is agricultural land and was purchased as such. He has also relied upon the report of the Tehsildar dated 16.3.2002 and submitted that in the report the Tehsildar has stated that the land is submerged in water and there is single cultivation and that the land is not of any residential or commercial usage. The same report of the Tehsildar has already been relied upon by the respondents. 7. Learned standing counsel on the other hand submitted that the report itself discloses that the land in question is about 50 meters from main link road and is adjacent to a residential area and is situated about 100 meters from the nearest market and, therefore, being adjacent to a residential area it must be held the land in question has residential potential. 8. Learned counsel for the petitioner on the other hand submitted that there is no Notification under Section 143 of the U. P. Z. A. & L. R. Act, 1950 for change of user of the land and, therefore, market value of the land could not have been determined on the basis of its potential usage i.e. for residential purposes and that it remained agricultural land. 9. Learned counsel for the petitioner has placed reliance upon a judgment of learned Single Judge passed in Writ Petition No.54332 of 2002, Ram Ujagir Pandey v. Commissioner, Azamgarh Division and others which according to him pertains to the same village and, therefore, learned Single Judge relying upon the judgment in the case of Ram Khelawan alias Bachcha v. State of U.P. and another reported in 2005 (2) AWC 1087 has held that since user of the land has not changed under Section 143 of the Act, 1950, therefore, market value of the land could not have been determined on the basis of its potentiality to be used for residential purposes. 10. 10. Learned standing counsel on the other hand has placed reliance upon a Full Bench judgment of this Court reported in 2015 (3) ADJ 136 (FB) Pushpa Sareen v. State of U.P. wherein the Full Bench has held that if the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor, which influences the market value of the land. Relevant paragraphs 26 and 27 of the said judgment read as under: "26. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land. 27. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambrish Tandon and another This is because the nature of the user is relateable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser." 11. The judgment of this Court in Pushpa Sareen (supra) has not been referred to while deciding Writ Petition No. 54332 of 2002 and was not cited by the learned standing counsel and, therefore, the judgment of this court passed in Writ Petition No. 54332 of 2002 cannot be said to be a binding precedent in view of Pushpa Sareen (Supra) while deciding the present writ petition. 12. In the present case report of the Tehsildar itself discloses that the land in dispute is situated adjacent to abadi residential area and that it is only 100 meters from nearest market and situated in the link road. 13. In my opinion, all these factors would be relevant for the Collector to take into consideration while determining the potentiality of the land and usage to which it could be put. 14. Therefore on the conspectus facts of the case and the law laid down by the Full Bench of this Court in the case of Pushpa Sareen (supra) the writ petition lacks merit and is accordingly dismissed.