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2017 DIGILAW 1861 (ALL)

Manohar Lal v. Addl. Commissioner

2017-08-10

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri K.D. Tripathi, learned counsel for the petitioner and learned standing counsel for the respondents. 2. The petitioner is seeking quashing of the orders dated 31.3.2004 and 28.2.2000. 3. Briefly stated the facts of the case are that the petitioner purchased ? share of Gata no. 114 from his brother through registered sale deed. Area of the land is stated to be nine biswas. The petitioner paid stamp duty based upon the market value of the land in question as agricultural land. 4. On an allegation that there was deficiency of stamp duty proceedings under section 47 A of the Indian Stamp Act, 1899 were initiated. The petitioner participated in the proceedings and filed his objection. His case was that land was throughout agricultural land. 5. The Additional Deputy District Magistrate/Stamp Authority has, however, held that the area purchased by the petitioner was 4 biswa 15 biswansi and that there is deficiency of stamp duty. Therefore, he has assessed the deficiency of stamp duty at Rs. 7625/-. On this amount penalty of Rs. 7625/- was imposed plus Rs. 170 as registration charge total Rs. 15420/-. 6. Aggrieved by the order of the Stamp Authority dated 28.2.2000 the petitioner filed revision. The revision has also been dismissed by the Additional Commissioner (Administration), Bareilly Division, Bareilly by his order dated 31.3.2004. 7. Order of the Stamp authority is a thoroughly non speaking order. It neither discloses the status and nature of the land on the date of execution of the instrument nor does it disclose the rate applicable to agricultural land or residential land, as the case may be, for determining market value. It is not understood as to how he has determined the deficiency of stamp duty of Rs. 7625/-. Thus the order of the Additional Deputy District Magistrate dated 28.2.2000 is a pure sham order. In the order of the Additional Commissioner (Administration), Bareilly Division, Bareilly also the reason for upholding the order of the Stamp Authority is that the land in question measures less than 5 biswa and on this land agriculture and cultivation is not possible. Therefore, the land has been assessed for purposes of market value treating it to be residential. In the order of the Additional Commissioner (Administration), Bareilly Division, Bareilly also the reason for upholding the order of the Stamp Authority is that the land in question measures less than 5 biswa and on this land agriculture and cultivation is not possible. Therefore, the land has been assessed for purposes of market value treating it to be residential. In the entire body of the order there is no denial that the land was not being used for agricultural purposes even though the consistent case of the petitioner was that the land was purchased as agricultural land from his brother who was a co-tenure holder out of a total area of the land measuring 14 biswa 5 biswansis in plot no.114. Thus it is noticed that Revenue Authority has based its findings purely on presumptions i.e. potential user of the land for residential purposes which is not permissible. It is not the case of the respondents that the user of the land had been changed under Section 143 of the UP. Z.A. &. L.R. Act. Therefore on the facts as existing the land in question could only have been charged to stamp duty treating the same to be agricultural land in the absence of the documentary evidence to the contrary. The finding to the effect that any construction on the land in question and that it was being used as abadi or that in the revenue record it is declared as abadi has not been given. 8. On behalf of the petitioner reliance has been placed 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. 9. 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. 9. 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 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. 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." 10. Thus on the facts of the case and law laid down by the Supreme Court as well as the Full Bench of this Court the impugned orders dated 31.3.2004 and 28.2.2000 cannot survive and are accordingly quashed. 11. The writ petition is allowed. 12. In case any amount has been deposited by the petitioner towards deficiency of stamp duty under the interim orders of this court, the same shall be refunded to him by the respondents within a period of two months from the date of receipt of a certified copy of this order.