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Allahabad High Court · body

2019 DIGILAW 1062 (ALL)

Sharda Prasad Tiwari v. State Of U. P.

2019-04-24

SIDDHARTH

body2019
ORDER : Siddharth, J. 1. Heard Sri Manish, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. Petitioner has approached this Court challenging order dated 28.02.2006 passed by the Commissioner Varanasi Division, Varanasi in Appeal no.07 of 2005 and the order dated 20.10.2005 passed by Assistant Commissioner (Stamp), Jaunpur in Case No.185 of 2005, under Section 47-A of the Indian Stamp Act. 3. The brief facts of the case are that the petitioner purchased plot no.148, area 0.040 hectare and plot no.149 area 0.040 hectare, total area 0.080 hectare or 20 decimal of land from Ram Nihor and others for a sale consideration of Rs.4,60,000/-and paid stamp duty Rs.46,000/-. This land was shown as agricultural land within the limits of Nagar Palika and away from road. 4. In the audit objection the disputed land was found within city limits having residential potential. 5. On the basis of audit objection the Assistant Commissioner (Stamp) Jaunpur, registered Case No.1851 of 2005 under Section 47-A of the Indian Stamp Act against the petitioner and sent him notice. 6. The petitioner submitted his reply dated 3rd March, 2005 stating that the land is agricultural and not residential and he has paid proper stamp duty. 7. On 20.09.2005 spot inspection was done by the Assistant Commissioner (Stamp) and he found that on the western side of the land the petitioner has got construction made and the neighbours informed that house warming has been done 14 months back. On part of the plot in dispute Makka was found to be sown. It was found that the land is situated in old village Wazidpur south and thousands of houses are constructed around. The tea shop was also found opposite to the house of the petitioner. The report of the Tehsildar dated 22.09.2005 was also on record which proved that the land in dispute is 30-35 metre away from the road and adjacent to the houses constructed on the same 2-3 years earlier which were also shown. The Assistant Commissioner (Stamp), Jaunpur found that the land was purchased for residential purpose but stamp duty was paid only on the basis of the valuation of the agricultural land and therefore, on the basis of the circle rate fixed for the residential property in the area of Rs.2750/-per sq. The Assistant Commissioner (Stamp), Jaunpur found that the land was purchased for residential purpose but stamp duty was paid only on the basis of the valuation of the agricultural land and therefore, on the basis of the circle rate fixed for the residential property in the area of Rs.2750/-per sq. metre for an area of 20 decimal or 0.080 hectare stamp duty was determined as Rs.22,23,512.50, out of which an amount of Rs.46,000/-which was paid was subtracted and deficiency of Rs.1,76,400/-was found against the petitioner. A penalty of Rs.600 was also imposed upon the petitioner. 8. The petitioner unsuccessfully preferred an appeal before the Commissioner, Varanasi Division, Varanasi, which was dismissed by order dated 28.02.2006 upholding the order of the Assistant Commissioner (Stamp). Aggrieved by the aforesaid order, petitioner has approached this Court. 9. Learned counsel for the petitioner submitted that at the time when the petitioner purchased the property it was agricultural in nature and not surrounded by abadi. After purchase of the land on 22.04.2002 he constructed the house over the same and along with his house other houses were built in neighbourhood. The audit objection was made in 2005 and thereafter inspections were made over the plot in dispute and on the basis of the abadi thereon stamp duty at the rate of residential rate has been directed to be paid to the petitioner. 10. His argument is that the Stamp Authorities were under obligation to consider the situation of the plot in dispute as it stood at the time of purchase and any subsequent development on the spot will not give right to the Stamp Authorities to demand additional stamp duty on the ground that the at the time of purchase user was wrongly shown in the sale deed. He submitted that the petitioner deposited the correct stamp duty as per nature of land existing at the time of purchase and the orders passed by the Authorities are without any sanction of law and deserve to be quashed. 11. Learned Standing Counsel has submitted that the petitioner did not disclosed correct facts in the sale deed while getting the same registered. He purchased the agricultural land only for the purpose of constructing his house and he ought to have disclosed the correct facts in his sale deed. 11. Learned Standing Counsel has submitted that the petitioner did not disclosed correct facts in the sale deed while getting the same registered. He purchased the agricultural land only for the purpose of constructing his house and he ought to have disclosed the correct facts in his sale deed. Audit objection was rightly raised in this regard and thereafter the proceedings were initiated against the petitioner under Section 47-A of the Stamp Act. The orders have been passed after spot inspection of the property in dispute in presence of the petitioner and therefore, there is no illegality in the procedure adopted by the Stamp Authority and orders passed by the Authorities do not suffer from any illegality. 12. After hearing rival contentions, this Court finds that at the time when sale deed was executed in the year 2002 there is no denial of the fact that any construction was standing thereon and the petitioner concealed the fact that he had constructed house on the land. It has come in the judgment of the Assistant Commissioner itself that the house was constructed by the petitioner over the land in dispute after purchasing of the same and in the year 2015 the neighbours of the petitioner informed that house warming of the house constructed by the petitioner took place only 14 months back. Therefore, petitioner cannot be said to have made any concealment while getting sale deed executed. 13. Relevant provision which covers the field, namely, Section 47-A of the Indian Stamp Act as applicable in the State of U.P. and relevant provision of U.P. Stamp (Valuation of Property) Rules 1997 are required to be considered in this case. 47-A. Under-valuation of the instrument.-(1) (a) If the market value of any property which is the subject of any instrument, on which duty is chargeable on the market value of the property as set forth in such instrument, is less than even the minimum value in accordance with the rules made under this Act, the registering officer appointed under the Registration Act, 1908, (Act no. 16 of 1908), notwithstanding anything contained in the said Act, immediately after presentation of such instrument and before accepting it for registration and taking any action under Section 52 of the said Act, require the person liable to pay stamp duty under Section 29, to pay the deficit stamp duty as computed on the basis of the minimum value determined in accordance with the said rules and return the instrument for presenting again in accordance with Section 23 of the Registration Act, 1908. (b) When the deficit stamp duty required to be paid under clause (a) is paid in respect of any instrument and the instrument is presented again for registration, the Registering Officer shall certify by endorsement thereon, that the deficit stamp duty has been paid in respect thereof and the name and the residence of the person paying them and register the same. (c) Notwithstanding contained in any other provisions of this Act, the deficit stamp duty may be paid under clause (a) in the form of impressed stamps containing such declaration as may be prescribed. (d) If any person does not make the payment of deficit stamp duty after receiving the order referred to in clause (a) and presents the instrument again for registration, the registering officer shall, before registering the instrument refer the same to the Collector, for determination of the market value of the property and the proper duty payable thereon. (2) On receipt of a reference under sub-section (1), the Collector shall after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument and the proper duty payable thereon. (2) On receipt of a reference under sub-section (1), the Collector shall after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument and the proper duty payable thereon. (3) the Collector may, suo motu, or on a reference from any Court or from the Commissioner of Stamps or an Additional Commissioner of Stamps or from a Deputy Commissioner of Stamps or from an Assistant Commissioner of Stamps or any officer authorized by the State Government in that behalf, within four years from the date of registration of any instrument on which duty is chargeable on the market value of the property, not already referred to him under sub-section (1), call for an examine the instrument for the purpose of satisfying himself as to the correctness of the market value, of the property which is the subject of such instrument and the duty payable thereon, and if, after such examination, he has reason to believe that market value of such property has not been truly set forth in such instrument, he may determine the market value of such property and the duty payable thereon: Provided that, with the prior permission of the State Government, an action under this sub-section may be taken after a period of four years but before a period of eight years from the date of registration of the instrument on which duty is chargeable on the market value of the property. Explanation: The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under subsection (3). Explanation: The payment of deficit stamp duty by any person under any order of registering officer under sub-section (1) shall not prevent the Collector from initiating proceedings on any instrument under subsection (3). (4) If on enquiry under sub-section (2) and examination under subsection (3) the Collector finds the market value of the property- (i) truly set forth and the instrument duly stamped, he shall certify by endorsement that it is duly stamped and return it to the person who made the reference; (ii) not truly set forth and the instrument not duly stamped, he shall require the payment of proper duty or the amount required to make up the deficiency in the same together with a penalty of an amount not exceeding four times the amount of the proper duty or the deficient portion thereof. Sub-Sections 4-A to 6 are not relevant. Relevant portions of Rule 4, 5 and Rule 7 of U.P. Stamp (Valuation of Property) Rules 1997 are quoted below:- Rule 4-Fixation of minimum rate for valuation of land, construction value of non-commercial building and minimum rate of rent of commercial building.-(1) The Collector of the district shall yearly, as for as possible, in the month of August, fix the minimum value per hectare/per square metre of agricultural/non-agricultural land, the minimum value per square metre of construction of non-commercial building and the minimum monthly rent per square metre of commercial building, situated in different parts, taking into consideration the following facts;- (a) in case of agricultural land- (i) classification of soil; (ii) availability of irrigation facility, (iii) proximity to road, market, bus station, railway station factories, educational institutions, hospitals and government offices; (iv) location with reference to its situation in urban area, semi-urban or countryside; and (v) potentiality as distance from developed area. (b) in case of non-commercial building- (i) location of building; and (ii) kind of construction and value of building. (c) in case of commercial building- (i) nature of economic activity in the locality; and (ii) prevailing rent in the locality, and kind of commercial building. (b) in case of non-commercial building- (i) location of building; and (ii) kind of construction and value of building. (c) in case of commercial building- (i) nature of economic activity in the locality; and (ii) prevailing rent in the locality, and kind of commercial building. (2) The Collector of the district may, suo motu or on an application made to him in this behalf, on being satisfied about the incorrectness of the minimum value of land or of the construction of non-commercial building or the minimum rent of a commercial building fixed by him under sub-rule (1), for reasons recorded in writing, revise the same within a period of one year from the dated of fixation of minimum value or rent as the case may be. Explanation.-(1) The revision in rates of immoveable property does not only mean to increase the rates but to reduce the rates fixed more than the rates prevailing in such locality. (2) The kind of commercial building means economic activities in it. (3) The direction issued by Government/Commissioner of Stamps shall have the same effect as if it were issued under these rules.] (3) The Collector of the district shall after fixing the minimum value per acre/per square mete of land, and of the construction of non-commercial building and the minimum rent per square metre of commercial building under sub-rule (1), send a statement in three parts to the Registrar. The first part of such statement shall contain the division of each sub district of the district under his jurisdiction into urban area, semi-urban area and the countryside, the second part shall specify the minimum value of land situated in different parts of the sub-district and the third part shall contain, in the case of the non-commercial building, the minimum value of construction and in the case of commercial building the minimum rent fixed under sub-rule (1). (4) The Registrar shall supply copies of statement mentioned in sub-rule (3) to the Sub-Registrars under his control and shall also forward a copy of the same to the Inspector General of Registration, Uttar Pradesh. (5) Every Registering Officer shall cause a copy of the above statement to be affixed on the notice board outside the registration office." Rule 5, on the other hand, deals with calculation of minimum value of land, grove, garden and building. "5. (5) Every Registering Officer shall cause a copy of the above statement to be affixed on the notice board outside the registration office." Rule 5, on the other hand, deals with calculation of minimum value of land, grove, garden and building. "5. Calculation of minimum value of land, grove, garden and building.-For the purposes of payment of stamp duty, the minimum value of immovable property forming the subject of an instrument shall be deemed to be such as may be arrived at as follows: (a) In case of land Minimum value Whether agricultural or non agricultural Area of land multiplied by minimum value fixed by Collector of the district under rule 4 (b) In case of grove or garden (i) if assessed to revenue Minimum value of the land as worked out in the manner laid down in Clause (a) plus the value of the trees standing thereon worked out on the basis of the average price of the trees of the same nature, size and age prevailing in the locality on the date of the instrument; (ii) if not assessed to revenue or is exempted from it and is rented. Twenty times the annual rent plus the premium, if any, plus the value of trees standing thereon determined in accordance with sub-clause (i); (iii) if not assessed to revenue or is exempted from it and profit has arisen during three years immediately preceding the date of the instrument Twenty times the average annual profit plus the value of the trees standing thereon determined in accordance with sub-clause (i); (iv) if not assessed to revenue or is exempted from it and no profit has arisen during three years immediately preceding the date of the instrument Twenty times the assumed annual profit plus the value of the trees standing thereon determined in accordance with sub-clause (i). (c) In case of buildings: (i)Non-commercial building Minimum value of land whether covered by the construction or not, which is subject matter of the instrument as worked out under clause (a) plus the value of construction of building arrived at by multiplying the constructed area of each floor of the building by the minimum value fixed by the Collector of the district under rule 4. (ii) Commercial building Three hundred times the minimum monthly rent of the building, which is the subject matter of instrument, calculated by multiplying the constructed area of each floor of the building with the minimum rent fixed by the Collector of the district under Rule 4. Rule 7. Procedure on receipt of a reference or when suo motu action is proposed under Section 47-A--(1) On receipt of a reference or where action is proposed to be taken suo motu under Section 47-A, the Collector shall issue notice to parties to the instrument to show cause within thirty days of the receipt of such notice as to why the market value of the property set forth in the instrument and the duty payable thereon be not determined by him. (2) The Collector may admit oral or documentary evidence, if any, produced by the parties to the instrument and call for and examine the original instrument to satisfy himself as to the correctness of the market value of the subject-matter of the instrument and for determining the duty payable thereon. (3) The Collector may: (a) call for any information or record from any public office, officer or authority under the government or local authority; (b) examine and record the statement of any public officer or authority under the Government or local authority; (c) inspect the property after due notice to the parties to the instrument. (4) After considering the representation of the parties, if any, and examining the records and other evidence, the Collector shall determine the market value of the subject matter of the instrument and the duty payable thereon. (5) If, as a result of such inquiry, the market value is found to be fully and truly set forth and the instrument duly stamped according to such value, it shall be returned to the person who made the reference with a certificate to that effect. A copy of such certificate shall also be sent to the Registering officer concerned. (6) If as a result of such inquiry, the market value is found to be undervalued and not duly stamped, necessary action shall be taken in respect of it according to relevant provisions of the Act. " 14. The provisions quoted above has been subject matter of interpretation before this Court in the case of Ram Kehlawan Vs. State of U. P. reported in 200 5(98) R D 511 as follows. " 14. The provisions quoted above has been subject matter of interpretation before this Court in the case of Ram Kehlawan Vs. State of U. P. reported in 200 5(98) R D 511 as follows. Relevant paragraphs 15 to 25 is being extracted below. 15. It is quite possible that even in the first instance the instrument/deed may show the valuation of the property to be less than the minimum value determined in accordance with Rules of 1997 (popularly known as circle rate) still purchaser or seller may not be required to pay more stamp duty. The only purpose of the minimum market value fixed and circulated under Rule 4 of the Rules of 1997 is that in case on the face of it the market value of the property set forth in the sale deed is less than minimum market value fixed under the said Rules then Registering Officer can not register the deed and it will have to refer the same to the Collector unless on being asked by him to make good the deficiency in stamp duty, parties to the sale deed make good the requisite deficiency. In case deficiency is not made good then matter will have to be referred by Registering Officer to the Collector. However, thereafter it is quite possible that Collector may hold that even though market value of the property set forth in the deed is less than minimum market value fixed under the Rules of 1997 still the market value set forth in the sale deed is correct and proper stamp has been paid. It is quite clear from Section 47A(4)(i) and Rule 7(5). 16. However, if deed has been registered then action may be taken only under Section 47-A(3) of the Stamp Act. Rule 7 of the Rules of 1997 prescribes the procedure for determining market value of the subject matter of the instrument. This Rule nowhere refers to the minimum value of the property fixed in accordance with Rule 4 of the said Rules. Sub section (2) of Section 47-A of Stamp Act obliges the Collector for the purpose of determining of the market value of the property which is the subject of instrument presented for registration after holding inquiry in such manner as may be prescribed by Rules made under the said Act. This clearly refers to Rule 7 of Rules of 1997. Sub section (2) of Section 47-A of Stamp Act obliges the Collector for the purpose of determining of the market value of the property which is the subject of instrument presented for registration after holding inquiry in such manner as may be prescribed by Rules made under the said Act. This clearly refers to Rule 7 of Rules of 1997. However, sub section 3of the said section only says that Collector may examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property, which is subject of such instrument. Manner of examination has not been mentioned and the said sub section (3) also does not refer to any Rules. However, Rule 7 makes itself applicable to both situations; pre registration inquiry as well as post registration examination regarding market value of the property. It is interesting to note that Rule 7 no where prescribes the basis, formula or principle for determining market value. It only prescribes procedure like notice, admission of oral or documentary evidence, calling for information or record from any public office and inspection of property. The result is that, whether Rule 7 of Rules of 1997 applies or not market value has to be determined on the same principle on which market value in land acquisition cases is determined. Minimum market value fixed in accordance with Rules of 1997 is relevant only and only for the purposes of referring the document by Registering Officer to the Collector before registration. Even after such reference market value is to be determined not in accordance with the minimum value fixed under Rule 4 of the Rules of 1997 but in accordance with general principles of determination of market value as applicable in land acquisition cases. Simultaneously when proceedings are initiated after registration of the document under Section 47-A(3) of the Act market value has to be determined in accordance with general principles applicable for the said purpose like principles of determination of market value in land acquisition cases without taking recourse to minimum market value of the property fixed In accordance with Rule 4 of the Rules of 1997. 17. It has been held by a Division Bench of this court reported in Kaka Singh Addl. Collector & Dist. 17. It has been held by a Division Bench of this court reported in Kaka Singh Addl. Collector & Dist. Magistrate (F&R), A.I.R. 1986 Allahabad 107 that treating method of calculation of market value given under Rule 341 (since repealed and substituted by Rule 4 of the Rules of 1997) as conclusive and final is erroneous in law. It has further been held that the purpose of entire exercise under Section 47-A as supplemented by the relevant rules is to see as to whether the parties to the conveyance or instrument have deliberately under valued it for the purpose of deceitful gain. In a case where it is found that the value of the conveyance was fraudulently made although more has passed on it, Section 47-A would come into play (para-10). In the said authority the following observation of A.I.R. 1974 Madras 117 was quoted: "We are inclined to think that the object of the Amending Act being to avoid large scale evasion of stamp duty, it is not meant to be applied in a matter of fact fashion and in a haphazard way. Market value itself as we already mentioned, as a changing factor and will depend on various circumstances and matters relevant to the consideration. No exactitude is in the nature of things possible. In working the Act, great caution should be taken in order that it may not work as an engine of oppression. Having regard to the object of the Act, we are inclined to think that normally the consideration stated as the market value in a given instrument brought for registration should be taken to be correct unless circumstances exist which suggest fraudulent evasion." 18. The Supreme Court in R.C. Bansal v. D.M. A.I.R. 1999 S.C. 2126 has held that circle rates under Rule 340-A (since repealed and substituted by Rule 4 of Rules of 1997) is merely a guideline and at best prima-facie rate of the area concerned and on the one hand parties to the deed are entitled to say that actual valuation is less than the circle rate and on the other hand Collector is also empowered to decide that actual market value is more than the circle rates. 19. 19. In State of Punjab v. Mahabir Singh A.I.R. 1996 S.C. 2994 which was a case from Punjab it has been held that circle rate is merely a guideline provided by the State which would only serve as prima-facie material and that no absolute higher or minimum value can be pre-determined (para-5). The Supreme Court approved the judgment of Punjab & Haryana High Court reported in A.I.R. 1991 Punjab & Haryana 26 which held that the guidelines cannot control the quasi judicial discretion to determine the correct valuation of the property. 20. In Maya Food v. C.C.R.A. 1999 Revenue Judgments (R.J.) 619 a Single Judge of this Court has held that market value of the land cannot be determined with reference to the use of the land to which buyer intends to put it and that in determining the market value the potential of the land as on the date of the sale alone can be taken into account and not the potential it may have in the distant future. 21. In R.K. Agarwal v. C.C.R.A. reported in 1997 R.D. 383 a Single Judge of this Court has held that assumed rental value without any basis cannot form the basis for determining market value and that the proper course is to decide the market value on the basis of some exemplars of other land in the vicinity which had been sold at the relevant time (para-4). 22. In Smt. Prabhawati v. C.C.R.A. reported in 1996 R.D. 419 Supreme Court held that mere smallness of the area would not suggest the same by itself to be a costly property and that merely because property situated in an area which is close to a decent colony where people of high income group reside does not by itself make it a part thereof. 23. The view that Rules of 1997 (which have been framed at the place of old Rules 340, 340-A and 341) cannot be taken into consideration at the time of determination of market value which I have taken is squarely covered by the authority of a Single Judge of this Court reported in Aniruddha Kumar v. C.C.R.A. 2000 R.D. 566. 23. The view that Rules of 1997 (which have been framed at the place of old Rules 340, 340-A and 341) cannot be taken into consideration at the time of determination of market value which I have taken is squarely covered by the authority of a Single Judge of this Court reported in Aniruddha Kumar v. C.C.R.A. 2000 R.D. 566. In the said authority it has also been held that agricultural Sand cannot be treated as residential plot unless declaration under Section 143 of U.P.Z.A.& L.R. Act is made and that market value of land is to be determined on the basis of the character of the land and its user. In para-21 of the said authority it has also been held that valuation cannot be determined on the basis of its future potential. 24. In H.L. Sahu v. state of U.P. A.I.R. 2004, Allahabad 190 a Single Judge of this court struck down Note-2 of order dated 3.8.1997 prescribing circle rate of District Kaushambi under Rule 4 of the Rules of 1997 which provided that in case agricultural land is not transferred in favour of a co-tenure holder or a person having adjoining agricultural plot then the same shall be valued on the basis of per Sq. Meter in case area of the land sold is less than 1500 Sq. Meter. 25. It has been found in several cases like the present one that the entire basis of determination of market value for the purpose of stamp duty is ex-parte report of Tehsildar or other officer. Ex-parte inspection report may be relevant for initiating the proceedings under Section 47-A of Stamp Act. However, for deciding the case no reliance can be placed upon the said report. After initiation of the case inspection is to be made by the Collector or authority hearing the case after due notice to the parties to the instrument as provided under Rule-7(3) (c) of the Rules of 1997. Moreover in the inspection report distance of the property from other residential or commercial properties and road must be shown and wherever possible sketch map must also be annexed alongwith the report so that correct valuation may be ascertained with reasonable certainity. 15. Moreover in the inspection report distance of the property from other residential or commercial properties and road must be shown and wherever possible sketch map must also be annexed alongwith the report so that correct valuation may be ascertained with reasonable certainity. 15. The minimum value determined by the authorities under Rule 4 or 5 of 1997 Rules is only indicative of the fact that if the value set forth in the sale deed is less than such minimum value then Registering Officer before registering the instrument shall make a reference to the Collector and get the market value determined therefrom. It is not necessary that when such a reference is made, necessarily and in all cases, the value set forth in the instrument would not be a market value of the property in question. The Collector being under an obligation to determine market value under Section 47-A(3) of the Act read with Rule 7 of 1997 Rules thereafter would make inquiry in accordance with procedure prescribed thereunder and find out the correct market value which may be the same which is stated in the instrument or may be higher or lesser as the case may be. But there is no rule of thumb that it will always be higher than the value determined by the competent authority under Rule 4 or 5 of 1997 Rules as held by this Court in Paragraph 15 of the case of Ram Khelawan (Supra). 16. Rule 7 of 1997 Rules while providing for determination of market value nowhere refers to either minimum value fixed under Rule 4 or 5 of 1997 Rules or provides that the market value shall be determined by the Collector which must be in all cases higher than the value set forth in the instrument by the parties concerned. The question as to how and what manner market value would have to be determined by the Collector has been discussed in detail and various aspects have been considered by this Court in Ram Khelawan (Supra) with which I entirely agree and, therefore, is of the view that the Collector is under a statutory obligation before holding that an instrument does not set forth correct market value, to determine as to what is the market value of the property in question. This is what has been said in Hajari Lal Sahu (Supra) and Aniruddha Kumar (Supra) with which also this Court is in entire agreement. The decision of the Apex Court referred to by the respondents no. 2 and 3 in the orders, impugned in this writ petition, that immediate potential user of the land is relevant for the purpose of determining market value, cannot be disputed but that is one of the relevant consideration and can not be the sole basis for holding that the value of the property as set forth in the instrument is not correct and it must be higher than that. 17. A future potential of the land for residential user by itself would not be a sole determinative factor for determining market value though, of course, it may be one of the relevant consideration for the same. The Collector however has to examine all relevant aspects in the matter and thereafter to find out what is the correct market value of the property in question. He cannot proceed merely by saying that since the land is adjacent to Abadi, therefore, it must be valued at the rate of residential land and duty must be charged accordingly. In none of the orders impugned in this petition this court finds that the respondents no. 2 and 3 have proceeded in accordance with Rule 7 of 1997 Rules read with Section 47-A (3) of the Act to find out as to what is the true market value of the property in question and on the contrary by only observing that the land is adjacent to Abadi, has immediate potential of user as residential land and has been purchased by the petitioners and, therefore, has valued it at par with residential land. The said determination is not at all in accordance with the aforesaid provisions and the determination by the respondents is more based on conjectures and surmises ignoring the relevant factors as set out in the various judgments of the Apex Court, as discussed in Ram Khelawan (Supra) and others and other judgments cited above as also the procedure prescribed under the 1997 Rules. 18. In view of the above consideration, the Court is of the view that the judgment and orders 28.02.2006 and 20.10.2005 passed by respondent nos.2 and 3 respectively, deserve to be quashed. 19. 18. In view of the above consideration, the Court is of the view that the judgment and orders 28.02.2006 and 20.10.2005 passed by respondent nos.2 and 3 respectively, deserve to be quashed. 19. This court is not remanding the matter for fresh decision since from the year 2002 the market value of the land must have been drastically increased and it would not be possible for the respondents to fairly determine the market value of the property in the year 2002, after lapse of about 17 years. 20. Any amount deposited by the petitioner shall be refunded to him along with interest at the rate of 1.5% per month by Assistant Commissioner (Stamp), Jaunpur/Collector, Jaunpur from the date of deposit within a period of three months from today. 21. In case amount is not refunded to the petitioner within a period of three months, costs of Rs.25,000/-shall be payable further to the petitioner. It shall be open for the State Government to recover the amount of Rs.25,000/- from the official found responsible for the lapse. 22. Writ petition is allowed.