Allahabad High Court
Abdul Rahman Khan And Another vs State Of U.P. And 8 Others on 24 January, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:12826 Court No. - 2 Case :- WRIT - C No. - 26046 of 2024 Petitioner :- Abdul Rahman Khan And Another Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Apoorva Bhatt,Arpit Agarwal Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard Sri Arpit Agarwal, learned counsel for the petitioners and Sri Siddharth Singh, learned Standing Counsel for the State-respondents.
2. The instant writ petition has been filed with the following prayer:-
"(a) Issue, a writ, order or direction in the nature of certiorari whereby quashing the impugned judgment and order dated 13.03.2014 (Annexure No.1) passed by the learned Collector, Badaun in Stamp Case No. 0017 of 2014; State of U.P. Vs. Abdul Rahman Khan and others and the judgment and order dated 10.06.2024 (Annexure No.2) passed by the respondent no.2 in Stamp Appeal No. 579 of 2014; Computerized Case No.AL20141207992464; Abdul Rahman Khan and others Vs. State of U.P.'
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents to refund the extra deposits made by the petitioners in connection with the instrument in question along with interest @ 18% within a fixed time frame as this Hon'ble Court may deem fit to fix
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(d) ..........."
3. Learned counsel for the petitioner submits that vide registered sale deed dated 16.03.2012, the petitioner purchased an agricultural land, which is situated on a link road and is more than 25 mts away from Road, after paying the requisite stamp duty in accordance with the prevalent circle rate. Thereafter, pursuant to some communication dated 18.07.2013 made by Sub-registrar concerned, an ex-parte spot inspection of the property in dispute was made and a report thereof was submitted on 19.08.2013 to the respondent no.3, on the basis said report, proceedings under the provisions of Indian Stamp Act were initiated and a notice was issued to the petitioner to which the petitioner submitted his objection. Thereafter, respondent authorities without issuing any notice or giving them any information whatsoever, again submitted a spot inspection report on 05.02.2014, which specifically provides that the land is being used for agricultural purposes, however, the respondent no.3 without considering the same, passed the impugned order dated 13.03.2014 imposed the deficiency of stamp duty amounting to Rs. 3,63,600/- along with penalty of Rs. 36,360/- as well as deficiency in registration fee amounting to Rs.19,560/-. Being aggrieved against the said order, the petitioner preferred an appeal, which was dismissed vide impugned order dated 10.06.2024 without considering the material available on record. Hence, this writ petition.
4. He further submits that the first spot inspection was made on 19.08.2013 to which no notice whatsoever was given to the petitioners and no contrary material has been brought on record to show that the petitioner was put to notice. He further submits that the land in question has not been declared under Section 143 of the UPZA & LR Act and therefore, the proceedings initiated against the petitioners are bad.
5. Per contra, learned ACSC supports the impugned orders and submits that the proceedings have rightly been initiated against the petitioner.
6. After hearing learned counsel for the parties, the Court has perused the record.
7. It is admitted that at the time of execution of sale deed, the land in question was disclosed as an agricultural land and additional 25% stamp duty was paid by the petitioners as per the prevalent circle rate at that relevant time. The objection was raised by the petitioners and the materials were brought on record to justify that before the purchase of the land, at the time of purchase of the land and after the purchase of land, the same was used as an agricultural land. The said fact has specifically been mentioned in the grounds of appeal as well as in the present writ petition, which has not been denied. Once the materials have been brought on record i.e. Khasra and Khatauni showing that the standing crop of wheat and millet were grown, the proceedings are bad.
8. Further, the report dated 05.02.2014 also provides that the standing crops were there but the same has not been denied at this stage.
9. Furthermore, the record shows that the petitioner was not put to any notice on the report relied upon, and therefore, it cannot be treated to be corrected in view of the judgment of the this Court passed in case of Jagroop Singh Vs. State of U.P. & 2 Others [Writ C No. 20752/2015 decided on 15.07.2024]. The relevant paragraphs of the said judgment are quoted below:-
"7. It is admitted that the sale deed of the vacant plot was executed on 20.10.2012 in favour of the petitioner and on the basis of exparte report, the proceedings were initiated against the petitioner and in pursuance thereof notice was issued but the Collector has not visited the site in question in accordance with Rule 7 (3) (c) of the Rules. Even the respondent authority up to the stage of this Court could show any material in order to justify that prior to initiation of the proceedings, Section 7 (3) (c) of the Rules was complied with in letter and spirit.
8. This Court in the case of Ajay Agrawal (supra) has held as under:-
9. Nonetheless, in view of submissions advanced by learned State counsel, the question arising for determination would be whether compliance of Rule 7(3)(c) is required in proceedings under Section 47(A)(1) as well as under section 47 A(3) of the Act? Here it is also relevant to indicate that both the orders impugned in present writ petition are based only on the aforesaid spot inspection report, which admittedly was ex parte in nature.
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14. It is quite discernible that the starting provision of Rule 7 itself indicates the applicability of the Rule to the extent that on receipt of a reference or where action is proposed to be taken suo motu under section 47 A the Collector shall issue notice to parties to the instrument to show-cause. A reading of the aforesaid provision makes it evident that no distinction whatsoever has been carved out under Rule 7 of the Rules of 1997 with regard to procedure being required to be followed under section 47 A. On the contrary, it specifically indicates that the aforesaid Rule is required to be followed even in case suo motu action is taken under section 47 A of the Act, which in effect pertains to Section 47 A(3) of the Act of 1899 with regard to determination of stamp duty after registration of a document of instrument of transfer. As such no such distinction having been carved out under Rule 7, it is not feasible to accede to the submissions of learned State counsel that Rule 7 (3)(c) of the Rules would not be applicable in case of proceeding under section 47 A( 3) of the Act.
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20. In view of aforesaid, it is evident that the power to be exercised by Collector under section 47A (3) of the Act is not pedantic in nature but is required to be made on the basis of observations made hereinabove particularly with regard to the fact that he is required to apply his mind and record subjective satisfaction not only with regard to under valuation of the instrument of transfer but also to record a separate satisfaction regarding market value of the property and the duty payable thereupon and cannot place reliance only on the spot inspection report.
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22. Upon applicability of aforesaid in the present case, it is evident from a reading of the impugned orders that the same are based only on the spot inspection report and no subjective satisfaction at all has been recorded by the authority either under section 47 A or under section 56 of the Act as required to be done as per observation is made hereinabove.
9. Again this Court in the case of Satendra and another (supra) has held as under:-
11. On a pointed query being made to the learned Standing Counsel as to whether there was any further inquiry after the inquiry was initially held in the form of spot inspection, learned Standing Counsel could not point out either from the record or pleadings of the counter affidavit that any further inquiry was held as contemplated under the Rule 7 of the Rules.
12. This Court notices that after the notices were issued and the Collector had fixed date inviting objections, the Collector failed to fix any further date for spot inspection or for any further oral or documentary evidence and therefore, it cannot be said that the Collector at all undertook any effort to act in accordance with the procedure prescribed in the matter. The conclusion drawn therefore, is devoid of any cogent and convincing material in support there of and the findings therefore, are liable to be held as perverse. The said rule which has been quoted herein above, has also drawn attention of Full Bench in Smt. Pushpa Sarin v. State of U.P. 2015 (127) RD 855. However, the Full Bench did not delve into the issue any further regarding the scope and applicability of the Rules because the period which was in dispute under the reference was prior to the rule coming into force. Para 18 of the judgment of Full Bench runs as under:
"18. Subsequently, the provisions of the Stamp Rules in regard to valuation were replaced by the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 which have been made in exercise of the powers conferred by sections 27, 47-A and 75 of the Stamp Act. However, it is not necessary for the Court to express any view on the scheme or provisions of those rules since the period of dispute in the present reference is prior to the enforcement of those rules."
10. In view of above, the writ petition is allowed. The impugned orders dated 23.2.2015 and 20.8.2013 are hereby quashed."
10. Further, the record shows that the land in question has not been declared as an abadi land under Section 143 of the UPZA & LR Act, and therefore, it cannot be treated to be correct in view of the judgment of Raj Kumar Vs. State of U.P. and 2 others (Writ-C No. 19644 of 2016). The relevant paragraph nos. 16 & 20 of the said judgment are as under:-
"16. In view of the definition of land contained in the law relating to land tenures, i.e. U.P. Zamindari Abolition & Land Reforms Act, 1950, the fact that the land was not declared as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 as explained under section 3(14) of the said Act, in itself becomes a relevant factor for determining the nature of land that was subject matter of instrument. This Court in various authorities has held that when the land is purchased for agricultural purposes and declaration under section 143 of the U.P. Z.A. & L.R.Act, 1950 has not been made and merely because the land is situated in close vicinity of the non-agricultural land, the same would not loose its character as the agricultural land for the purposes of levy of stamp duty. Reference can be made to few authorities of this Court in the case of Aniruddha Kumar and Ashwini Kumar vs Chief Controlling Revenue Authority, U.P. Allahabad and another, reported in 2000 (3) AWC 2587; Smt. Sushila Verma vs State of U.P. and others reported in 2006 (2) AWC 1492 and Sudama vs Chief Controlling Authority and others, reported in 2013 (4) AWC 3571.
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20. Insofar as the imposing four times penalty is concerned, it is well settled that unless "mens rea" is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor vs Additional Collector (Finance & Revenue), Ghaziabad and others, reported in 2008 (72) ALR 125, where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale deed executed. Even the annexures to the writ petition disclosing the nature of land have not been disputed by the State in the counter affidavit. I also find that the sale deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land."
11. In view of the aforesaid facts & circumstances of the case as well as the law laid down by this Court in the afore-quoted judgments, the judgment and order dated 13.03.2014 as well as the judgment and order dated 10.06.2024 cannot be sustained in the eyes of law, and the same are hereby quashed.
12. The writ petition succeeds and is allowed, accordingly.
13. The authority concerned is directed to refund any amount deposited by the petitioner pursuant to the impugned orders, along with interest @ 4% per annum from the date of its deposit till the date of refund, within a period of one month from the date of production of a certified copy of this order.
Order Date :- 24.1.2025 Pravesh Mishra