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2018 DIGILAW 1048 (ALL)

SURENDAR KAUR v. STATE OF U. P.

2018-04-27

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—Heard Sri P.K. Tyagi, learned counsel for petitioner, Sri A.K. Pandey, learned counsel for the respondents and the learned Standing Counsel. 2. The instant writ petition has been filed against the order dated 30.3.2009 passed by Additional Collector (Finance and Revenue) Ghaziabad, in case No. 156 of 2008-09, State v. Surendar Kaur, the order dated 30.3.2009 passed by Additional Collector, (Finance and Revenue), Ghaziabad on the Restoration application, which was filed for recalling of the order dated 20.12.2008 and the order dated 15.11.2010 passed by Commissioner Meerut Division Meerut in Appeal No. 99 of 2008-09, Smt. Surendar Kaur v. State of U.P., under Section 56 of the Indian Stamp Act. 3. The petitioner had bought the property in question on 29.7.2006. Thereafter, an inspection was conducted by the Additional District Magistrate (Finance and Revenue), Ghaziabad and a report was submitted on 23.6.2008 and the petitioner was consequently put to notice. The order dated 20.12.2008 was passed by the Additional Collector despite the fact that the petitioner had not filed any reply. In fact, in the order itself it was found that the petitioner had not put in appearance and only by presuming service of notice, the Additional Collector (Finance and Revenue), Ghaziabad had proceeded with the matter. When the petitioner subsequently filed a recall application stating that no notice was served upon her, the same was dismissed on 30.3.2009. Before the Appellate Court again it was submitted by the petitioner that there was no notice to her, yet the Revisional Court without giving any finding as to whether there was a notice or not decided the Revision and dismissed the same. Learned counsel for the petitioner has made following submission : (i) The Courts below should have ascertained and should have been fully satisfied that there was a notice to the petitioner. Only, thereafter, they should have proceeded with the adjudication in the stamp case. (ii) When the petitioner had filed the recall application then again a finding ought to have been arrived at as to whether there was a notice. (iii) The Revisional Court also did not advert to the submission that the proceedings had continued without any notice. Only, thereafter, they should have proceeded with the adjudication in the stamp case. (ii) When the petitioner had filed the recall application then again a finding ought to have been arrived at as to whether there was a notice. (iii) The Revisional Court also did not advert to the submission that the proceedings had continued without any notice. (iv) Learned counsel for the petitioner has submitted that even on merits the Additional Collector wrongly decided the case as it had depended on a hearsay evidence and had come to a conclusion that the petitioner’s land also had to be priced at the rate at which plot No. 444 was sold. Learned counsel for the petitioner relied upon a decision in Anupam Infrastructures and Land Development Pvt. Ltd. v. State of U.P. and another, 2010(10) ADJ 358 (DB) and submitted that during the preparation of the inspection report the petitioner was not there. He submits that such evidence could be termed as hearsay evidence and could not from the basis of an order by which deficiency of stamp duty was being calculated. 4. Learned counsel for the petitioner has submitted that even if the counter-affidavit as has been filed by the learned Standing Counsel is perused, it would be clear that the sale-deed relied upon by the Courts below was of the plot No. 444 which was situate nowhere near the petitioner’s plot. Learned counsel has submitted that the map, which has been attached to the counter-affidavit, also in no manner shows that the plot No. 444 was contiguous to plots No. 570 and 572 (Petitioner’s plots). He further submits that even if the plots were contiguous to each other, the market value of the plot had to be calculated in the manner, provided in the U.P. Stamp Valuation of Property Rules, 1997 and relying upon the judgement in Ram Khelawan @ Bachcha v. State of U.P. through Collector Hamirpur and another, 2005(2) AWC 1087, has submitted that inspection should have been done only after a due notice. He further submits that the value could have been ascertained on the basis of the circle rate which is issued every year by the District Magistrate in the month of August. Thus in the absence of a proper survey and in the absence of a circle rate, the orders arrived at a wrong conclusion and therefore deserve to be set aside. 5. Thus in the absence of a proper survey and in the absence of a circle rate, the orders arrived at a wrong conclusion and therefore deserve to be set aside. 5. Learned Standing Counsel, however, in reply has submitted that notices were sent by Registered post and thus there was no other option with the authorities but to conclude that the petitioner was served. Further learned Standing Counsel submits that when the inspection report had found that the land was 200 meters away from the road then the market rate of properties situate on the road should have been applied for the petitioner’s property as well. 6. Having heard the learned counsel for the parties, I am of the view that firstly the Revisional Court fell error by not giving any finding regarding notice, specially when the petitioner had raised a specific ground that she was never served. Further, I hold that the ex parte report dated 23.6.2008, which was prepared after two years of the registration of the sale-deed could not have been relied upon. Even the hearsay evidence relied upon by the authorities saying that the petitioner’s land, which was situated on plots No. 570 and 572 had to be valued at the rate at which plot No. 444 was valued should not have been relied upon. Since the petitioner was never given an opportunity to reply to the notice, I feel it proper that the matter may be decided again by the Additional Collector (Finance and Revenue). If any inspection is to be done then it shall be done in the presence of the petitioner. The authorities shall now decide after considering the reply of the petitioner. 7. Under such circumstances, the orders dated 20.12.2008 and 30.3.2009 passed by Additional Collector (Finance and Revenue) and the order dated 15..11.2010 passed by the Commissioner, Meerut Division, Meerut are set aside. The case shall now be restored to its original number, and shall be proceeded with after the petitioner submits her reply. 8. Accordingly, the writ petition is partly allowed.