Ms Asahi India Glass Ltd. vs State And Anr. on 28 August, 2017

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Uttarakhand High Court

Ms Asahi India Glass Ltd. vs State And Anr. on 28 August, 2017

Admittedly, the petitioner is an Organization which indulges in industrial activities in various parts of the country and, for the purpose of establishment of an industrial unit over and on the land lying in village Lathardeva Hoon, Tehsil Roorkee, District Haridwar lying in khasra No. 240/1, having an area of 0.8148 hectares, petitioner wanted to establish a unit, for which the pre- condition for purchase was required to have permission as envisaged under Section 154 of ZA & LR Act, for outside purchasers. It was a prior permission for purchase under Section 154 to be taken from Assistant Collector.

The petitioner had submitted an application for the grant of permission under Section 154 of the Act and the said permission was granted in his favour on 3rd November, 2004. The permission, thus, granted reads as under :-

"mi;qZDr fo'k;d vkids i= la[;k&1795@Hkwfe O;oLFkk fnukad 29 vDVwcj] 2004 ds lUnHkZ esa eq>s ;g dgus dk funsZ"k gqvk gS fd Jh 2 jkT;iky egksn; eS0 vlkgh bf.M;k Xykl fy0 dks futh {ks= ds vUrxZr vkS|ksfxd vkLFkku dh LFkkiuk gsrq mRrj izns"k tehankjh fouk"k rFkk Hkwfe O;oLFkk vf/kfu;e] 1950 dh /kkjk&154 ¼2½ ,oa mRrjkapy m0iz0 tehankjh fouk"k ,oa Hkwfe O;oLFkk vf/kfu;e] 1950 vuqdwyu ,oa mikUrj.k vkns"k] 2001 la"kks/ku vf/kfu;e] 2003 fnukad 15&1&2004 dh /kkjk&154 ¼4½ ¼3½ ¼d½ ¼v½ ds vUrxZr tuin gfj}kj dh rglhy yDlj ijxuk eaxykSj ds xzke [kkueiqj dlkSyh ,oa ykBjnsokgw.k esa dqy 35-568 gS0 Hkwfe dz; djus dh vuqefr fuEufyf[kr izfrcU/kksa ds lkFk iznku djrs gS&"

In the absence of there being permission under Section 154 (2) of the ZA & LR Act for establishment of industry in a private area, in pursuance to the policy of the State Government, the petitioner could not have purchased the land for establishment of the unit and for availing the benefit as contemplated vide Notification No. 50 of 2003 dated 10th June, 2003. After the grant of permission under Section 154 (2), the petitioner was also granted permission for conversion to the user land under Section 143 ZA & LR Act by the order dated 9th November, 2005. Consequently, the petitioner, after the purchase of the property by the sale deed dated 6th November, 2004, had purchased the entire khasra No. 240 /1, which is situated in a notified area had valued the land as to be Rs.6,11,100/- and, accordingly, on the basis of the valuation of the deed, the stamp duty was paid by the petitioner of Rs. 48,888/-. Under the policy, if a land is purchased for a non-commercial activity, then the stamp on deed of conveyance would be at an enhanced rate @ 1.5 times more than normal rate and, as such, the liability of the petitioner to pay stamp duty towards sale deed dated 6th November, 2004, would be Rs. 73,332/-.

According to the respondents, they contend that on inspection of the record, it revealed that the sale deed was deficiently stamped and thus they issued notices on 31st 3 June, 2005 under Section 47A of Stamp Act, which was served upon the petitioner on 25th September, 2006.

The case of the petitioner is that the said notice under Section 47A of the Stamp Act, was served by affixation, though, he admits that in pursuance to the notice, in question, he has filed his objection, denying the allegation of the notices and contended that since at the time of purchase of the property, i.e. 6th November, 2004, as per the revenue entries, it was recorded as an agricultural holding, he ought to have stamped sale deed on the basis of the land being a revenue paying land and not in accordance with its commercial rate or potential utility or for its utilization for any other purposes than the agricultural.

Based on the objection taken by the petitioner, the Collector Haridwar, vide its order dated 16.11.2006, came to a conclusion that looking to the nature of purchase made after the permission having been taken under Section 154, since the user itself contemplated by the petitioner was for industrial purposes, it was held that the petitioner is liable to pay stamp duty based on the commercial rate as fixed by the Collector and the stamp duty paid by him deserves to be enhanced by 1.5 times of the circle rates of residential property.

Thus, the circle rate of Rs. 225 per square meter as fixed for residential was to be imposed by enhancing the rate of Rs. 337/ sq. meter, thus, a deficiency of 88,600/- determined against the petitioner. Petitioner preferred a revision, the revision too was dismissed by the Revisional Court order dated 31.05.2007. Hence, the present writ petition.

At the time when the writ petition was argued on 20th July, 2007, by way of an interim measure, the petitioner was directed to deposit 50% of the amount found deficient by the impugned order as rendered by the Revisional Court. Though the learned counsel for the petitioner lacks knowledge about the compliance of the said part of the interim order dated 20th July, 2007, but we proceed on the premise that the condition must have been complied with otherwise a counter allegation must come forward by the State Government for non compliance of the interim order. Even if the deposit of 50% amount has been made or if it has not been made whatsoever the situation may be, the said amount would be adjusted as a consequence and the effect of the final order having been passed now.

The Revisional Court, in its judgment dated 31st May, 2007, has taken into consideration the fact that the concept as canvassed by the petitioner which is normally followed and has been laid down by the Courts too that the stamp duty which is liable to be paid by the purchaser of the property has had to be on the basis of its revenue entry at the time of purchase, i.e. if it is recorded an agricultural land, the stamp duty would be levied in accordance with the stamp duty as fixed by the Collector in relation to the revenue paying land and so on. This is the sole argument which has been extended by the petitioner so far the propriety of the levying of the deficiency is concerned.

As already stated above and at the risk of repletion, it is observed that since the conscious decision of purchasing the land by the petitioner was based with an intention that it was to be utilized for industrial purposes for which the prior permission was granted under Section 154 to the 5 petitioner. It would be deemed that the said concept of the nature of the land having been recorded as an agricultural land on the date of purchase, becomes irrelevant because he could not have purchased the land except for the permission under Section 154 of the Act.

In view of what has been observed above, since the petitioner has purchased the land only for the industrial purposes, after a prior permission for purchase under Section 154. I do not find any anomaly in the order levying the deficiency of stamp. Hence, the petitioner is directed to make good the deficiency minus the amount, if any deposited in pursuance to the interim order.

The writ petition stands dismissed. No order as to costs.

(Sharad Kumar Sharma, J.) 28.08.2017 Shiv

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Uttarakhand High Court