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2021 DIGILAW 1455 (ALL)

Furkan Mukhtar Khan v. State of U. P.

2021-11-30

JAYANT BANERJI

body2021
ORDER : 1. Heard Sri Harsh Vikram, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 2. Under challenge in the present petition is the order dated 10.5.2019, whereby the Collector, Rampur in Case No. 00271 of 2018, under Section 47A of the Indian Stamp Act, 1899(hereinafter referred to as the Act) held that the land in question reflects residential usage and, accordingly, assessed deficiency of stamp duty and penalty. Further under challenge is an order of Collector, Rampur dated 2.9.2019, passed on an application for review of the previous order dated 10.5.2019, whereby, the order dated 10.5.2019 was modified and proportionate amount of stamp duty payable by each of the tenure holder was specified. Also under challenge is the order dated 21.1.2021, passed by the Deputy Commissioner (Stamp), Moradabad Division in an appeal under Section 56(1A) of the Act filed by the petitioner against the aforesaid orders dated 10.5.2019 and 2.9.2019, whereby the appeal was partly allowed by reducing the amount of penalty imposed. 3. The facts in brief as mentioned in the petition, are that Plot No. 400 having an area of 1.306 hectare situated in Village Kashipur, Tehsil Sadar, District Rampur, which was recorded as an agricultural land, was sold by means of a registered sale deed dated 11.12.2017 in favour of the petitioner and others. It is stated that the petitioner and one Babu Hasan have 40% share each in the property while one Taufeeq has only 20% share and they had made payment of stamp duty according to their share of the property in question. A notice dated 12.4.2018 was issued to the petitioner under Section 33/47A of the Act. The objections to the notice were filed on 13.4.2018. An application was filed on 4.7.2018 for conducting a fresh spot inspection in presence of the petitioner and other co-tenure holders. The spot inspection was done on 12.7.2018 against which the petitioner filed an objection. In view of the petitioner's objection, another spot inspection was done on 6.5.2019 in which it was specifically mentioned that the land in question was used for agricultural purposes. However, the respondent no. 3, by means of order impugned dated 10.5.2019 assessed the deficiency of stamp duty and imposed penalty. Thereafter, a review application was filed for determining proportionate liability on each of the tenure holders for payment of deficiency of stamp duty. 4. However, the respondent no. 3, by means of order impugned dated 10.5.2019 assessed the deficiency of stamp duty and imposed penalty. Thereafter, a review application was filed for determining proportionate liability on each of the tenure holders for payment of deficiency of stamp duty. 4. Being dissatisfied with the order passed under Section 47A(3) of the Act dated 10.5.2019 as well as by order dated 2.9.2019 passed on the review application, an appeal was filed under Section 56(1A) of the Act which was partly allowed by reducing the amount of penalty substantially. 5. It is contended by the learned counsel for the petitioner that the joint report dated 6.5.2019 prepared by the Sub-Divisional Magistrate and the Assistant Inspector General of Registration reflects that the land in question was found to be in a shape of an agricultural land. Therefore, there was no occasion for the authorities below to hold that the land in question was being used for non-agricultural purpose that is to say, residential purpose. It is further contended that the valuation done by the District Magistrate in the order dated 10.5.2019 is based on the minimum rates which cannot be done in view of the mandate of section 47A(3) of the Act which requires that valuation of the property in question be assessed as per its market value. In the alternative, learned counsel for the petitioner has contended that in case this Court upholds the order passed by the authorities below, then the petitioner is ready to make the payment of deficiency of stamp duty in accordance with his proportionate share of the land in question and he cannot be saddled with the liability of payment of the entire amount of deficiency of stamp duty and penalty as assessed. 6. Learned Standing Counsel has opposed the petition stating that the report of 6.5.2019 clearly reflects that there were mounds of bricks lying on the land and that the two member committee that conducted the inspection were informed by the Kanoongo that the bricks were used for temporary demarcation of plots of land over the land in question. It is contended that the learned counsel for the petitioner is misreading the report dated 6.5.2019. It is further contended that the valuation has been done by the Collector correctly and in accordance with law. It is contended that the learned counsel for the petitioner is misreading the report dated 6.5.2019. It is further contended that the valuation has been done by the Collector correctly and in accordance with law. His further contention is that the liability for payment of deficiency of stamp duty and penalty as assessed by the authorities below is joint and several and each of the tenure holders is liable to make the payment of penalty etc. and if he so desires, he can recover the same from the other tenure holders who are also liable to pay the stamp duty. 7. Having considered the arguments advanced by the learned counsel for the parties as well as on perusal of the record, it appears that the sale deed in question was executed and registered on 11.12.2017. The order impugned dated 10.5.2019 refers to the notice issued to the petitioner on 6.4.2018. Learned Standing Counsel has not been able to point out from the order impugned that on what date was the report made, if any such report exists, on the basis of which the notice dated 6.4.2018 was issued to the petitioner. There is a report dated 12.7.2018 referred to in the order impugned that reflects plotting works going on over the land in question. Another report dated 20.11.2018 of the Sub-Divisional Magistrate Sadar also appears to be on record, which reflects statements of the petitioner and other co-tenure holders. In that report, the statement of the petitioner, as it appears from the order impugned, is that plotting work was going on over the land in question. Thereafter, a spot inspection report dated 6.5.2019 was prepared by a joint team which has already been referred to above. The order impugned dated 10.5.2019 as well as the writ petition is silent as to the date on which, the first inspection, if any, was made by the respondents. Even in the counter affidavit, filed on behalf of the respondents, there is no such averment. Therefore, assuming that the report was available shortly before issuance of notice dated 6.4.2018, it still merits consideration whether, on the date of execution of sale deed, the potential usage of the land in question, could be said to be residential. Even in the counter affidavit, filed on behalf of the respondents, there is no such averment. Therefore, assuming that the report was available shortly before issuance of notice dated 6.4.2018, it still merits consideration whether, on the date of execution of sale deed, the potential usage of the land in question, could be said to be residential. Under the circumstances, it can be assumed that a minimum of three months had elapsed from the date of execution of sale deed dated 11.12.2017 before any spot inspection was made on behalf of the respondents. 8. As held by a three Judge Bench of this Court in the case of Smt. Pushpa Sareen Vs. State of U.P. 2015 (3) ADJ 136 , the proximate future potential of the land forming subject matter of the sale deed can be taken into account. There is no report on record to determine the nature of the land in question on the date of execution of the sale deed or in the proximate future that may lead the Court to a conclusion with regard to proximate future potential usage of the land in question. Even, if it is assumed that a report was made prior to initiation of proceeding under Section 47A(3) of the Act, that cannot be relied upon by the authority in those proceedings. Such a report's purpose can only be to initiate the proceedings under Section 47A(3) of the Act as held in the judgment of Ram Khelawan Vs. State of U.P. 2005 (2) AWC 1087 . The first spot inspection report that is referred to by the District Magistrate in its order dated 10.5.2019 is of 12.7.2018 which is after seven months of the date of execution of the sale deed. If any plotting activity has been found over the land in question, after seven months of the execution of the sale deed, it cannot be taken to mean that on the date of execution of the sale deed on 11.12.2017, the usage of the land in question could be determined as residential. Further, the valuation of the land in question has been done by the Collector on the basis of minimum rates. There is no reflection in the order whether any exemplar deeds were considered while determining the market value of the land in question. Further, the valuation of the land in question has been done by the Collector on the basis of minimum rates. There is no reflection in the order whether any exemplar deeds were considered while determining the market value of the land in question. The determination of market value is a sine qua non in proceedings under Section 47-A(3) of the Act. The method of valuation on the basis of market value in the proceedings under Section 47A(3) of the Act has been repeatedly pointed by this Court in the various decision including the judgment of Ram Khelawan (supra) and a three Judge Bench of this Court in Smt. Pushpa Sareen (supra). As such, the orders impugned dated 10.5.2019 and 21.1.2021 cannot be sustained and are hereby quashed. 9. As far as the order dated 2.9.2019 is concerned that was passed by the Collector on the basis of a review application filed by the petitioner is concerned, it is noticed that there is no provision for review of an order passed under Section 47A(3) under the Act. Learned counsel for the petitioner, has in all fairness conceded on this point. The order dated 2.9.2019 of the District Magistrate is not in the nature of procedural review but is a substantive review which is not permissible under the provisions of the Act. As such the order dated 2.9.2019 is without jurisdiction and is quashed. 10. The writ petition is, accordingly, allowed.