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2017 DIGILAW 1840 (ALL)

Parmilla Devi v. State of U. P.

2017-08-08

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri Rajendra Prasad Rai, learned counsel for the petitioner and Sri S.K. Upadhayay, learned Standing Counsel for the respondents. 2. The petitioner in the writ petition is seeking quashing of the orders dated 31.10.2002 and 24.5.2003 passed in proceedings under the Indian Stamp Act, 1899 (hereinafter referred to as the Act, 1899). 3. The petitioner purchased the property in dispute i.e. plot no. 109 area 620 Kadi for a sum of Rs. 1,29,000/- through a sale deed dated 23.03.2002. Proceedings under section 47A of the Act, 1899 were initiated alleging that there was deficiency of stamp duty. The petitioner filed her objection. In the report which was submitted by the Tehsildar dated 30.4.2002, it is mentioned that on the plot in dispute in an area of 150ft x 40 ft, there is a foundation which is 4ft high and in the remaining part wheat is sown. The land is adjacent to the road and the market is only 500mtr. away. Out of the same plot no. 109, a portion measuring area 280 Kadi has been sold to one Ramwati W/o Prem Narayan through a similar sale deed dated 26.03.2002. In the report of the Tehsildar, it is stated that on that land also there was construction and that construction has been used as exemplar treating the land for residential purposes @ Rs. 700/- per sq. metre. Therefore, the market value of the property @ Rs. 700/- per sq. metre has been calculated at Rs. 17,58,000/- on which stamp duty has been determined at Rs. 1,40,640/-. The petitioner had already paid Rs. 10,320/- as stamp duty and therefore, deficiency of stamp duty has been calculated at Rs. 1,30,320/- plus registration charges at Rs. 2,420/-. The submission of the learned counsel for the petitioner is that the land in question which was purchased, was agricultural land, therefore, stamp duty could only have been computed treating the land as agricultural land and not residential land. 4. I have gone through the pleadings and documents on record. The respondents while determining the market value of the property in question have taken into account by way of exemplar the sale deed dated 26.3.2002 of a part of the same plot which has been treated to be residential and market value of the same has been computed treating it to be residential land. The respondents while determining the market value of the property in question have taken into account by way of exemplar the sale deed dated 26.3.2002 of a part of the same plot which has been treated to be residential and market value of the same has been computed treating it to be residential land. The spot inspection report also states that there was construction on that plot. 5. In the present case also, the finding of the Tehsildar is that there is a 150ft x 40ft foundation constructed which is about 4ft in height and in the remaining area wheat was being cultivated. Therefore, on the facts of the case merely because wheat was being cultivated it cannot be said that it is agricultural land ignoring the exemplar of the sale deed in favour of Ramwati W/o Prem Narayan coupled with the fact that on the plot in dispute there is a foundation constructed about 4ft high over an area measuring 150ft x 40 ft. The learned Standing Counsel has also referred to the relevant revenue record, copy of which has been filed along with the counter affidavit filed in the connected Writ petition no.37731 of 2003, relating to the plot which has been sold to Smt. Ramwati Devi in which the plot has been shown to be abadi. 6. A Full Bench of this Court in the case of Smt. Pushpa Sareen v. State of U.P. 2015 (3) ADJ 136 has held that the nature of the user is relatabe to the date of purchase which is relevant for the purposes of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of execution of the instrument itself by referring to exemplar or comparable sale instances that is clearly a circumstance which is relevant and germane to determine the true market value. Paragraph 28 of the said judgement reads as under: "28. 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, 2012 (5) SCC 566 . This is because the nature of the user is relatable 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." 7. A Division Bench of this Court in Special Appeal no. 3 of 2016, Shri Sumati Nath Jain v. State of U.P. and another referring to the facts of that case observed as under:- "Invocation of Section 47-A Section 47A (3) as a plain reading of the provision would indicate comes into operation if the Collector has before him material which may lead him to believe that the market value of the property comprised in an instrument has not been truthfully disclosed. In the present case the Collector proceeded in the matter solely on the basis of the report of the Sub Registrar dated 7 February 2012. This report doubted the valuation of the property on the ground that in the area abutting it, various residential houses had come up and that Greater NOIDA had become a development hub. Bearing in mind the location of the plot and its likely use, the Sub Registrar opined, it would be inappropriate to value the property at agricultural rates. We find that the very bedrock upon which the opinion of the Sub Registrar based his report was faulty and could not have consequently formed the basis for further action under section 47A (3). We find that the very bedrock upon which the opinion of the Sub Registrar based his report was faulty and could not have consequently formed the basis for further action under section 47A (3). We may note that on the date of execution of the instrument the land was admittedly recorded as agricultural. In fact the Khasra of the property remained unchanged throughout and continued to represent the land as recorded for agricultural purposes. The respondents were in our opinion wholly unjustified in initiating proceedings based on an unsubstantiated assumption that the property in future was likely to be put to non-agricultural use." 8. In the present case as already noted above, in the Khasra the property is clearly recorded as abadi. Nothing has been shown to the court that the petitioner raised any objection with regard to its nature in the revenue records. Assuming that the entries were wrong, therefore in proceedings under Section 47A of the Act, 1899, it is now not open for the petitioner to raise an objection that the land was agricultural land and that there was no declaration under section 143 of the U.P. Z.A. & L.R. Act, 1950. The fact situation is that construction existed on the land in question and the plot no. 109 situate in Mauja Sethali, Pargana Devganj, Tehsil Laalganj, District-Azamgarh was also recorded as abadi in the Khasra. Therefore, the stamp authority cannot be said to have erred in computing the value of the land assuming it to be for residential purposes rather than basing his findings on a mere claim of the petitioner that it was agricultural land. 9. Therefore, on the facts of the present case and the law laid down by the Full Bench in the case of Pushpa Sareen (supra) and the Division Bench in Smati Kumar Jain (supra), I do not find any illegality or infirmity in the impugned orders dated 31.10.2002 and 24.5.2003. 10. The writ petition lacks merit and is accordingly, dismissed.