Allahabad High Court
Tirath Raj Rai vs State Of U.P. And Others on 24 March, 2023
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- WRIT - C No. - 42000 of 2009 Petitioner :- Tirath Raj Rai Respondent :- State of U.P. and Others Counsel for Petitioner :- A.K. Rai,G.K. Malviya,Vishnu Kr. Singh Counsel for Respondent :- C.S.C. Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Vishnu Kumar Singh, learned counsel for the petitioner and Sri Indra Bhan Singh, learned Standing Counsel for the respondents.
2. This writ petition primarily assails the order dated 03.12.2008 passed by Assistant Commissioner Stamp, Mau in proceedings under Section 47-A/33 of Indian Stamp Act (hereinafter called as "Act") and the order dated 27.05.2009 passed by Additional Commissioner, Azamgarh Division, Azamgarh in Revision filed under Section 56A of the Act.
3. According to the petitioner's counsel, the sale deed was executed by Ashok Kumar in favour of petitioner on 26.08.2008 in respect of Plot No.1231 measuring 450 kari, situated at Village and Post Amila, District Mau. It seems that a spot inspection was made on the basis of which a notice was issued on 4.11.2008 which was replied by the petitioner but the authorities imposed deficiency of stamp to the tune of Rs.24,750/- penalty of Rs.5,210/- as also interest since the date of execution of sale deed.
4. According to the petitioner's counsel, the order passed by Assistant Commissioner Stamp as well as Revisional Authority assuming that the potential value of the land was much more than the price disclosed in the sale deed cannot be the basis for proceeding under Section 47A read with 33 of the Act as the value of the land shall be considered on the date when the sale deed was executed. He has relied upon the decision of coordinate Bench of this Court in Vijay Kumar & Anr. Vs. Commissioner, Meerut Division, Meerut & Anr., 2008 (7) ADJ 293; Anshu Chhabara Vs. Collector, Jhansi & Anr., 2008 (9) ADJ 736 and Sarvoday Babu Uddeshiya Vikas Samiti vs. Commissioner, Kanpur Division & Ors. 2014(1) ADJ 415.
5. Per contra, learned Standing Counsel while defending the order passed by authority submitted that the land of the petitioner is situated just 100 mts. away from the Abadi land purchased hence it has potential market value and the authorities have rightly proceeded under the Act.
6. I have heard the respective counsels for the parties and perused the material on record.
7. It is not in dispute that the land purchased by the petitioner in the year 2008 was an agricultural land. The petitioner is still using it for agricultural purpose. The proceedings under Section 47A read with Section 33 of the Act cannot be initiated on the basis of potential value of the land. This court had already held that proceedings for under-valuation of the instrument cannot be initiated merely on the assumption that the land has potential value. In Vijay Kumar (supra), it has been observed as under:
"19. In the case of Prakashwati v. Chief Controlling Revenue Authority Board of revenue, Allahabad, 1996 (87) R.D. 419 Hon'ble the Apex Court has held that situation of a property in an area close to a decent colony not by itself would make it part thereof and should not be a factor for approach of the authority in determining the market value. According to said decision, valuation has to be determined on constructive `materials, which could be made available before the authorities concerned."
8. Then, in Anshu Chhabra (supra), it has been observed as under:
"21. The circle rate fixed by the Collector has been indicated in the report of the A.D.M. dated 1.10.2007 which indicates that the value of the land upto 50 meters from the main road is Rs. 6,000/- per square meter and from 50 meters to 150 meters, the rate is Rs. 5,000/- per square meter. Admittedly, the land in question is 119 meters from the main road. Therefore, the rate applicable as per the Collector's circle rate is Rs. 5,000/- per square meter. The petitioner has paid the stamp duty at the rate of Rs. 5,000/- per square meter. The authorities have valued the land at Rs. 10,000/- per square meter on the strength of the finding that the land is surrounded by commercial buildings, and that, the said land has a potential value for commercial purposes.
22. In my opinion, such presumption cannot be drawn by the authorities. The Stamp Act is a fiscal statute and the provisions has to be interpreted strictly and literally. There is no room for presumptions or approximation. The market value of the land is required to be assessed on the nature of the land as existing on the date of the sale of that land. What the land could be put in use in future could not be taken into consideration by any stretch of imagination. The market value of the land as existing as on the date of the execution of the sale-deed is required to be considered. The potential value of the land, which could fetch in future is not required to be taken into consideration.
23. There is another aspect. Admittedly, the land is a residential land close to a commercial area. The mere fact that the land in question is surrounded by commercial buildings will not make a residential land into a commercial land unless the use of the land is converted in the master plan under the provisions of the U.P. Urban Development and Planning Act, 1973. The petitioner has also filed an extract of the master plan indicating that the distance of a bazaar street is 30 meters from the Elite crossing, Civil Lines, Jhansi. Consequently, as per the master plan, land upto 30 meters from the crossing is to be treated as commercial land and beyond 30 meters, the land is treated as a residential land. The petitioner's land is admittedly beyond 30 meters."
9. In view of the said fact, I find that the orders passed by respondents dated 03.12.2008 and 27.05.2009 (Annexures 4 and 6 to the writ petition) are unsustainable in the eyes of law and are hereby quashed.
10. The writ petition succeeds and is hereby allowed.
11. Any amount deposited during the proceedings shall be refunded to the petitioner upon an application made by him before the appropriate authority within three weeks from today and the concerned authority shall released the amount, so deposited, within next four weeks.
Order Date :- 24.3.2023 Kushal