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2017 DIGILAW 228 (RAJ)

INDRA DEVI v. STATE OF RAJASTHAN

2017-01-18

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. Heard Learned Counsel for the parties. 2. Brief facts of the case are that the petitioner purchased a plot in Bhrama Colony, Pushkar and the sale deed in relation thereto was submitted for registration. The Registering Authority namely Sub-Registrar, Pushkar instead of registering the said document and taking applicable charges including stamp duty treating it to be residential property, referred the instrument to Collector Stamps for adjudication of property stamp duty under section 47A of Indian Stamp Act. 3. The petitioner submitted an objection dated 21.10.2002 before the Collector Stamps stating inter alia that the plot in question was residential and adjacent plot thereto was also residential and the stamp duty has been taken in relation to the sale deed as per the residential value of the plot. 4. The Collector Stamps answered the reference vide impugned order dated 09.08.2004 and determined the market value of the property covered by the instrument in question, treating it to be commercial and applying commercial rates applicable to the main market of Pushkar. 5. The petitioner also filed a review petition before the Collector Stamps which too came to be rejected by him vide order dated 01.11.2004. 6. Learned Counsel for the petitioner Mr. Deepak Sharma arguing the case on behalf of petitioner, submitted that the seller namely Kishan Gopal had executed two sale deeds in relation to two parts of the same plot one to the petitioner and another to one Santosh Devi. As far as petitioner's sale deed was concerned the Learned Collector Stamps has directed the same to be valued on commercial rates as said above, while no such demand was raised in relation to the second sale deed in favour of said Santosh Devi. 7. Learned Counsel for the petitioner by reading the order impugned dated 09.08.2004, argued that Learned Collector has proceeded only on the basis of conjectures and surmises and on the basis of future probable use of the property. 8. Learned Counsel for the petitioner invited attention of this Court towards certificate dated 01.01.2004 issued by the Municipality, Pushkar wherein the property has been shown to be residential. 9. Learned Counsel for respondent raised a preliminary objection that against the order dated 09.08.2004, passed by Collector (Stamps), a remedy of revision is available to the petitioner under Section 65 of the Rajasthan Stamp Act, 1998. 9. Learned Counsel for respondent raised a preliminary objection that against the order dated 09.08.2004, passed by Collector (Stamps), a remedy of revision is available to the petitioner under Section 65 of the Rajasthan Stamp Act, 1998. Learned Counsel for the respondent supported the order of the Collector Stamps based on the Site Inspection Report (Annexure-4) filed by the petitioner himself. 10. Having heard Learned Counsel for the parties, this Court is of the view that the Writ Petition in hand cannot be thrown on the ground of availability of alternative remedy firstly because the matter has been admitted by this Court on 13.05.2008. After matter being admitted and ripe for hearing, this Court does not deem it appropriate to relegate the petitioner to avail statutory remedy as objected by Learned Counsel for the respondent. 11. This Court feels bound by the judgment of Hon'ble Supreme Court rendered in case of Hriday Narayan AIR 1971 SC 33 wherein it has been held that an admitted matter pending in hearing, cannot be dismissed on the ground of alternative remedy. 12. Now coming to the merit of the case, a bare look at the impugned order dated 09.08.2004, passed by the Collector (Stamps) reveals that he had simply determined the market value of the subject property, keeping in view the probable future use by saying that "the possibility of the said plot being used in future as hotel cannot be denied". 13. In considered opinion of this Court, Collector Stamps has preceded arbitrarily and committed grave error of law in determining the market value of the property, based on future and probable use. The market value of the property as per the provisions of Rajasthan Stamps Act, 1998 is required to be adjudicated and determined as existing on the date of execution of sale deed. The view of this Court is supported by the judgment of Hon'ble Supreme Court rendered in case of State of Uttar Pradesh and Others v. Ambrish Tandon and Another (2012) 5 SCC 566 , whereby Hon'ble Supreme Court has in unequivocal terms, ruled that market value of the instrument cannot be determined on the basis of future use. "The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. "The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the Appellate Authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27.09.2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture." 14. In light of the above, the impugned order dated 09.08.2004 is ex-facie illegal and contrary to law. The same is therefore quashed and set aside. 15. Learned Counsel for the petitioner informs that the petitioner has deposited the amount of Rs. 2,62,000/- on 09.05.2016 under protest, while keeping his right reserved. As the order impugned has been quashed by this Court, the petitioner will be entitled for refund of the amount so deposited by her within a period of 3 months from today. If refund of the aforesaid amount is not made within 3 months, then petitioner will be entitled to interest at the rate of 9% from date of deposit i.e. 09.05.2016. 16. Writ Petition allowed, however cost made easy.