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2017 DIGILAW 1862 (ALL)

Rajeev Agrawal v. State of U. P.

2017-08-10

B.AMIT STHALEKAR

body2017
JUDGMENT : B. Amit Sthalekar, J. Heard Sri V.P. Gupta, learned counsel for the petitioners and learned standing counsel for the respondents. 2. The petitioners are stated to have purchased land in question through a registered sale deed bearing Khasra no. 3292 area 1.54 acres. This land, according to him, was purchased at the rate of Rs. 4,40,000/- per acre, therefore, on total area of 1.54 acre the market value was Rs. 6,71,600/-. It is also stated that out of this area 500 sq.m. was covered by old tin shed which was lying for the last 30 years of which stamp duty has been paid at the rate of Rs. 1500/- per sq.m. as per circle rate and its value being Rs. 7,50,000/- stamp duty of Rs. 1,43,000/- was paid. 3. Alleging that there was deficiency of stamp duty under section 47 A of the Indian Stamp Act proceedings were initiated. The petitioners participated in the proceedings and filed their objection. 4. Case of the respondent was that on the date of spot inspection it was found that there was a restaurant and banquet hall situate on the land in question. 5. The petitioner contended that spot inspection was conducted after two years from the date of purchase and on the date of execution of instrument there was only a tin shed covering the area of 500 sq. m., therefore, stamp duty paid by the petitioner is absolutely correct. 6. The Stamp Authority has, however, held that because there was tin shed, therefore, commercial activity is going on and the circle rate of commercial area was Rs. 8,80,000/- per acre, therefore, the area of the land being 1.54 acres total value of the land came to Rs. 13,55,200/-. That apart the value of the constructed area of 500 sq.m. covered by tin shed its valuation comes to Rs. 7,50,000/- i.e. total Rs. 21,05,200/- i.e. Rs. 21,10,000/- of which stamp duty comes to Rs. 2,11,000/-. Since the petitioner has already paid Rs. 1,43,000/-, therefore, deficiency of stamp duty has been calculated to be Rs. 68,000/-. On this amount penalty of Rs. 46,240/- has been imposed, total Rs. 1,14,240/-. Aggrieved by the order of the District Magistrate dated 12.3.2003 the petitioners preferred revision which has also been rejected by the Commissioner, Moradabad Division, Moradabad by his order dated 9.6.2004. 7. 1,43,000/-, therefore, deficiency of stamp duty has been calculated to be Rs. 68,000/-. On this amount penalty of Rs. 46,240/- has been imposed, total Rs. 1,14,240/-. Aggrieved by the order of the District Magistrate dated 12.3.2003 the petitioners preferred revision which has also been rejected by the Commissioner, Moradabad Division, Moradabad by his order dated 9.6.2004. 7. The contention of the learned counsel for the petitioners is that as per the notified Circular dated 3.4.2002 rate for the area where the land is situate and for tin shed prevalent circle rate is Rs. 800/- per sq. m., copy of which has been filed as Annexure-3 to the writ petition. 8. The submission is, therefore, that if the market value of the area of 500 sq.m covered by tin shed calculated at the rate of Rs. 800 per sq. meter, market value of constructed area comes to Rs. 4,00,000/-. 9. His next submission is that there is an inherent error in the order of the District Magistrate inasmuch as while determining the market value of the property he has determined the same at Rs. 8,80,000 x 1.54 acres, 500 sq. m. covered by tin shed, which has been calculated at Rs. 7,50,000/- at the rate of Rs. 1500/- per sq. meter. 10. The submission is that the area of the plot in question was 1.54 acres, therefore, even by their own calculation while calculating market value of the total plot area the constructed portion of 500 sq. m. should have been deducted from 1.54 acres which has not been done, instead of the value of Rs. 7,50,00 for 500 sq. m. of tin shed area has been added to the total market value of 1.54 acres x 8,80,000/- = Rs. 13,55,200/- and thereafter the total has been calculated as Rs. 21,10,000/-. 11. Further submission is that the land in question was agricultural land from the date of execution of instrument and even if the case of the respondent is accepted that there was commercial activity going on, deficiency of stamp duty was payable only in respect of 500 sq. m. and not on the entire land which remained agricultural and, therefore, stamp duty could not have been computed at the commercial rate of Rs. 8,80,000/- per acre; rather market value ought to have been calculated at agricultural rates of Rs. m. and not on the entire land which remained agricultural and, therefore, stamp duty could not have been computed at the commercial rate of Rs. 8,80,000/- per acre; rather market value ought to have been calculated at agricultural rates of Rs. 4,40,000/- per acre on the basis of which the petitioner had paid stamp duty. 12. In my opinion, the submissions made by learned counsel for the petitioners are absolutely correct. The notice of the proceedings was issued on 14.8.2002 which clearly shows that spot inspection was not made on the date of execution of the sale deed but was made at least two years thereafter. There is nothing on record to show that the land in question was abadi or that commercial activity was being carried on it. The finding recorded by the District Magistrate/Stamp Authority is that in the 1409 fasli the entire area including the land in dispute is declared to be abadi in the column no.18 of khasra. This means that rates which may be applicable for determining the market value would at the most be applicable for residential area and not commercial area. 13. 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 47a 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." 14. In view of the above, in my opinion, the impugned orders 12.3.2003 and 9.6.2004 cannot survive and are accordingly quashed. 15. The writ petition is allowed. 16. The matter is remitted to respondent no.3, the District Magistrate/Collector, J.P. Nagar to re-examine the matter in the light of the observations made above also keeping in mind judgment of the Division Bench of this Court in the case of Shri Sumati Nath Jain (supra).