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2021 DIGILAW 1315 (ALL)

Vinod Kumar Jain v. State of U. P.

2021-11-08

JAYANT BANERJI

body2021
JUDGMENT : Jayant Banerji, J. 1. Heard Shri A.P. Paul, learned counsel for the petitioner and Shri Sanjay Goswami, learned Additional Chief Standing Counsel appearing for the respondent nos. 1, 2 and 3. 2. This petition has been filed challenging the order dated 25.3.2009 passed by the Assistant Commissioner Stamp, Mathura in proceedings under Section 47A of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act') as well as the order passed by the Commissioner dated 28.7.2009 passed in Revision No. 163 of 2009. 3. It has been stated in the writ petition that plot nos. 212 and 213 having a total area of 1.214 hectare situated in Village Jaisingh Pura Banger, Tehsil and District Mathura was purchased by the petitioner and the respondent no. 4 by means of a registered sale deed dated 14.11.2002. Relying upon an audit report, the Sub-Registrar, Mathura-Ist reported to the Collector, Mathura by means of his letter dated 15.9.2004, that there was deficiency of Stamp duty of Rs. 4,10,600/-. Thereafter, proceedings under Section 47A of the Act were initiated and a show cause notice was issued to the petitioner. The petitioner filed his objections stating that the land in question is agricultural and therefore, the stamp duty as per the rate of land for agricultural purposes is to be fixed and not as per the residential rate. It is stated that a local inspection was allegedly made by the Tehsildar, Mathura on 20.1.2007 without any notice to the petitioner. Thereafter, by means of an order dated 25.3.2009, the Assistant Commissioner Stamp, relying on the report of the Tehsildar dated 20.10.2007 held that the deficiency of the stamp on the instrument was Rs. 4,10,600/-and also imposed penalty of Rs. 5,000/-along with interest at the rate of 1.5 percent per mensem. The order of the Assistant Commissioner was challenged in a revision before the Commissioner and by the order dated 28.7.2009, the revision was rejected upholding the order passed by the Assistant Commissioner. 4. The contention of the learned counsel for the petitioner is that at the time of purchase of the land, admittedly, the usage was agricultural and not residential. The order of the Assistant Commissioner was challenged in a revision before the Commissioner and by the order dated 28.7.2009, the revision was rejected upholding the order passed by the Assistant Commissioner. 4. The contention of the learned counsel for the petitioner is that at the time of purchase of the land, admittedly, the usage was agricultural and not residential. It is contended that without getting an inspection done in terms of Rule 7(3)(c) of the Uttar Pradesh (Valuation of Property) Rules, 1997, and, by basing finding on the basis of future potential of the land, stamp duty for residential usage has been determined which is completely illegal and arbitrary. In support of his contention, the learned counsel for the petitioner has relied upon a judgement of this Court in the matter of Northern India Iron Press Work (P) Ltd. Vs. State of U.P. and Another dated 15.4.2015 passed in Misc. Single No. 3 of 1993, Aniruddha Kumar and Ashwini Kumar Vs. Chief Controlling Revenue Authority, Uttar Pradesh reported in (2000) 3 AWC 2587 and the judgement dated 8.7.2020 passed in the case of Chhotey Lal Vs. State of U.P. and others in Writ-C No. 42628 of 2010. Reliance has also been placed on a Division Bench judgement of this Court in the case of Smt. Vijaya Jain Vs. State of U.P. and others dated 1.9.2015 passed in Special Appeal Defective No. 598 of 2015. 5. Learned counsel for the State has opposed the writ petition stating that the Tehsildar's report dated 20.1.2007 was prepared pursuant to an application filed by the petitioner before the Court of the Assistant Commissioner. Under the circumstances, the petitioner cannot claim that he had no notice of the spot inspection. It is further contended that the Assistant Commissioner has relied upon the report of the Tehsildar to formulate its opinion and therefore, the order passed under Section 47A cannot be faulted. It is stated that the report of the Tehsildar clearly reflected that the land reflected in instrument in question was surrounded by the abadi and therefore, the deficiency in stamp was fixed. 6. The learned Standing Counsel has relied upon a Full Bench judgement dated 12.02.2015 of this Court in the matter of Smt. Pushpa Sareen v. State of U.P. reported in 2015 (3) ADJ 136 passed in a Reference Against Misc. Acts No.1 of 1993. 6. The learned Standing Counsel has relied upon a Full Bench judgement dated 12.02.2015 of this Court in the matter of Smt. Pushpa Sareen v. State of U.P. reported in 2015 (3) ADJ 136 passed in a Reference Against Misc. Acts No.1 of 1993. The contention of the learned Standing Counsel is that one of the questions that was referred in pursuance of the provisions of Section 57(1) of the Indian Stamp Act, 1899 was whether the Collector Stamps had power to fix the valuation of a plot on the assumption that the same is likely to be used for commercial purposes, and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector. It is contended that the Full Bench has categorically observed that 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. It is contended that in view of the abadi around the plot in question, the Assistant Commissioner Stamp was justified in holding that the land forming part of the instrument in question could be put to residential use in the proximate future. 7. Having heard learned counsel for the parties and perused the record, that the matter that is required to be seen is whether on the date of purchase of the land in question whether the land be used for agricultural or residential purpose, and whether the provision of Rule 7(3)(c) was complied with. 8. Though, copy of the instrument in question has not been filed, from the record it is evident that the stamp duty was paid on the instrument treating the land in question to be agricultural. The onus of proving the land usage to be residential is on the date of registration of the instrument, land usage was not agricultural lay on the authority before whom the proceedings under Section 47A of the Act were instituted. The order dated 25.3.2009 reflects that the Khasra available pertaining to Fasli year 1409-1410 the land in question is shown as 'purani parti', that is to say, open land. It has been observed by the Assistant Commissioner that the report of the Tehsildar evinces that the land in question was vacant since prior to its sale and is surrounded by abadi and its usage is abadi. It has been observed by the Assistant Commissioner that the report of the Tehsildar evinces that the land in question was vacant since prior to its sale and is surrounded by abadi and its usage is abadi. The Assistant Commissioner has observed that the land of the petitioner is transferred, for all practical purposes, for residential usage and therefore, the assessment is to be made for residential usage. The Commissioner in the revision, merely affirms the view taken by the Assistant Commissioner. 9. It has been repeatedly held by this Court in the cases relied upon by the learned counsel for the petitioner that actual land usage at the time of the execution/registration of the deed is to be seen for purpose of calculation of stamp duty under the Act. In the present case, it is noticed that the observation made by the authorities is that the land in question is fit to be used for residential purposes, that is to say, the authorities have relied upon the intended or the proximate potential future use of the land in question. 10. It needs mention that though it is open for the Assistant Commissioner Stamp to consider the market value in question in view of its potential in proximate future as observed by the Full Bench in Smt. Pushpa Sareen and in the Division Bench in the matter of Smt. Vijaya Jain, however, the valuation itself is required to be done, not by relying upon the minimum rate prescribed under the Rules of 1997 but, by assessing the market value which has to be based on adequate material. The Collector must have material on the record 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. As held in the judgment of Smt. Pushpa Sareen, the Collector would be well 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. 11. 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. 11. Though, it is noticed that this Court in the aforesaid Full Bench was considering the referred question in light of the provisions of Section 47-A of the Act of 1899 as it stood at the relevant time, the observations by the Full Bench, as extracted above, are germane to the case at hand. The order of the Assistant Commissioner Stamp dated 25.03.2009 has nowhere referred to any exemplar sale deed in the vicinity of that land that was the subject matter of the instrument in question. 12. With regard to the other aspect of the matter regarding compliance of Rule 7(3)(c) of the Rules of 1997, it is noticed that the inspection was done by the Tehsildar on 20.10.2007 pursuant to an order passed on an application of the petitioner. However, there appears nothing on record, including in the order-sheet of the case that has been filed in the counter affidavit, which can demonstrate that the petitioner was put to notice regarding the date on which the inspection would be held. 13. For the reasons aforesaid and in view of the settled law, the orders impugned cannot be sustained. Accordingly, the orders dated 25.3.2009 and 28.7.2009 are hereby quashed. 14. In case, any deposit of stamp duty/penalty has been made by the petitioner over and above the stamp duty paid by him at the time of registration of the instrument, the same shall be refunded to him within a period of one month from today along with simple interest at the rate of 8 percent per annum. 15. This writ petition is, accordingly, allowed.