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2021 DIGILAW 1522 (ALL)

Kamlesh Devi v. State of U. P.

2021-12-09

JAYANT BANERJI

body2021
JUDGMENT : Hon'ble Jayant Banerji, J. 1. Heard Sri Atul Srivastava, learned counsel for the petitioner and Sri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents. 2. This petition has been filed, inter alia, with the following prayers:- “a. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.1.2009 passed by the learned Additional Commissioner, Merut Division, Meerut in appeal No. 15 of 2008-09 (Annexure No. 6) and order dated 30.8.2008 passed by the Sub Divisional Magistrate (Sadar), Bulandshahar in Stamp Case No. 18 of 2006 (Annexure No. 4). b. Issue a writ, order or direction in the nature of mandamus directing the respondents not make any recovery in pursuance of impugned order according to law.” 3. From the record of the petition, it appears that on 19.6.2006 a sale deed was executed in favour of the petitioner by Sri Parashuram and Smt. Premwati Devi in respect of a plot of land measuring 181.25. sq. meter in village Khwajapur Meerpur, Pargana Baran, Tehsil and District Bulandshshar for residential purpose. The stamp duty was, accordingly, paid and the deed was registered on 19.6.2006 itself. It is stated that a notice dated 31.7.2007 was issued to the petitioner under the provisions of Section 47A of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) alleging evasion of stamp duty. A reply was filed by the petitioner on 19.9.2007 wherein allegation of under-valuation was denied. On 10.11.2007, a fresh spot inspection was conducted by the Tehsildar, who wrote in his report that the land in dispute was being used for residential purpose. However, an objection was filed by the petitioner to the report of the Tehsildar also. Thereafter, by means of impugned order dated 30.8.2008, the Sub-Divisional Magistrate-respondent no.3, proceeded to hold that the land in question was of potential commercial usage in view of a report submitted by the Sub-Registrar and has assessed deficiency of stamp duty after calculating value of the property on the basis of minimum rates. The challenge to the order of the Sub-Divisional Magistrate in an appeal under Section 56 of the Act being Appeal No. 15 of 2008-09 filed in the Court of Additional Commissioner (Judicial), Meerut Division, Meerut met with the failure and the appeal was dismissed on 20.1.2009 by another order impugned. 4. The challenge to the order of the Sub-Divisional Magistrate in an appeal under Section 56 of the Act being Appeal No. 15 of 2008-09 filed in the Court of Additional Commissioner (Judicial), Meerut Division, Meerut met with the failure and the appeal was dismissed on 20.1.2009 by another order impugned. 4. The contention of the learned counsel for the petitioner is that the notice that has been enclosed as Annexure No. 2 to the writ petition is vague, lacking in material particulars, and is defective, inasmuch as it refers to a sale deed of 10.11.2004 which is not the sale deed by means of which the property in dispute was transferred to the petitioner. It is further contended that an exparte report of the Sub-Registrar has been relied upon by the Sub-Divisional Magistrate without properly appreciating the report of the Tehsildar dated 10.11.2007 and without taking into account the objections raised by the petitioner. 5. Learned Standing Counsel has opposed the writ petition and has sought to justify the orders passed by the Sub-Divisional Magistrate and the Additional Commissioner (Judicial), but has not been able to dispute the fact that valuation has been done on the basis of assessment made on the circle rate and not on the market value. Learned Standing Counsel has also not been able to dispute the fact that the notice sent to the petitioner does not give correct date of sale deed executed in favour of the petitioner. 6. Having heard the learned counsel for the parties and on perusal of the record, it is evident that the notice to show cause issued on 31.7.2007 to the petitioner is erroneous and is lacking in material particulars. The date of sale deed mentioned in that notice is 10.11.2004 which is at complete variance to the sale deed by which the property in question was transferred to the petitioner and which was executed and registered on 19.6.2006. As such, the notice cannot be said to be a proper notice. A Division Bench of this Court in the case of Smt. Vijaya Jain Vs. As such, the notice cannot be said to be a proper notice. A Division Bench 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 has held as follows: “In our opinion a notice of this nature must necessarily disclose to the person concerned the basis and the reasons upon which the Collector has come to form an opinion that the market value of the property has not been truly set forth. In the absence of a disclosure of even rudimentary details on the basis of which the Collector came to form this opinion, the person concerned has no inkling of the case that he has to meet. A notice in order to be legally valid and be in compliance with the principles of natural justice must necessarily disclose, though not in great detail, the case and the basis on which action is proposed to be taken against the person concerned.” 7. The order dated 30.8.2008 places reliance upon the report of the Sub-Registrar and looking into the fact that the notice was issued to the petitioner on 31.7.2007, an assumption can be drawn that a spot inspection may have been carried out by the Sub-Registrar in the month of July 2007 itself. Such an exparte report of the Sub-Registrar cannot be relied upon by the authority concerned for ascertaining the usage/valuation of the land on the date of execution of the sale deed. (refer to the judgement in the matter of Ram Khelawan alias Bachcha Vs. State of U.P. and another reported in 2005(98) RD 511 ). Further, the valuation has been done on the basis of circle rate which is admitted to the respondent. Such method of valuation is foreign to the provision of Section 47A(3) of the Act which provide for valuation on the basis of market value. This position has been clarified in the case of Ram Khelawan(supra) and as also iterated in the case of Smt. Pushpa Sareen Vs. State of U.P. reported in 2015 (3) ADJ 136 (FB), where a three Judge Bench of this Court by its judgment dated 12.2.2015, while answering a reference under Section 57(1) of the Act of 1899, has observed as follows:- “26. State of U.P. reported in 2015 (3) ADJ 136 (FB), where a three Judge Bench of this Court by its judgment dated 12.2.2015, while answering a reference under Section 57(1) of the Act of 1899, has observed as follows:- “26. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument. 27. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. 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. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land. 28. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land. 28. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, (2012) 5 SCC 566 . This is because the nature of the user is relateable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect 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. The Collector, therefore, would be 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”. 8. There is no consideration by the Sub-Divisional Magistrate or Additional Commissioner in the orders impugned of any exemplar deed which is a mandate under the facts and circumstances of the case. 9. In view of the aforesaid, the order passed by the Sub-Divisional Magistrate, Sadar, Meerut dated 30.8.2008 and the order passed by the Additional Commissioner (Judicial), Meerut Division Meerut dated 20.1.2009 cannot be sustained and are hereby quashed. 9. In view of the aforesaid, the order passed by the Sub-Divisional Magistrate, Sadar, Meerut dated 30.8.2008 and the order passed by the Additional Commissioner (Judicial), Meerut Division Meerut dated 20.1.2009 cannot be sustained and are hereby quashed. Any amount deposited by the petitioner over and above the stamp duty actually paid by her at the time of execution/registration of deed in question, shall be refunded within a period of two months from today alongwith simple interest at the rate of 8% per annum. Payment of interest has been directed in view of the general mandamus issued by the Court in the case of Ansal Housing & Construction Ltd. Vs. State of U.P. and others, reported in 2014(10) ADJ 348 . 10. The writ petition is, accordingly, allowed.