Allahabad High Court
Akhilesh Rusia vs State Of U.P. And Another on 10 September, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:146999 Court No. - 2 Case :- WRIT - C No. - 26100 of 2020 Petitioner :- Akhilesh Rusia Respondent :- State of U.P. and Another Counsel for Petitioner :- Nitinjay Pandey,Vijay Singh Sengar Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the petitioner and Sri Rishi Kumar, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of instant writ petition, the petitioner has assailed the order dated 20.04.2020 passed by respondent no.2 in Case No. SA/95/2013/2014/Jalaun (Computerized Case No.AL20140635993258), and order dated 09.01.2014 passed by the District Magistrate, Jalaun at Orai in Stamp Case No.09/2011-12/03/2013-14.
3. Learned counsel for the petitioner submits that vide registered sale deed dated 29.06.2010, the petitioner purchased an agricultural land after paying the requisite stamp duty in accordance with the prevalent circle rate. He further submits that on 30.05.2011, an ex parte spot inspection report was prepared and on the basis of the same, proceedings under the provisions of Indian Stamp Act were initiated against the petitioner. Thereafter, vide order dated 31.03.2020, the District Magistrate, Jalaun imposed the deficiency of stamp duty amounting to Rs.24,74,360/- along with penalty of equal amount and the interest @ 1.5% per month. Being Aggrieved from the said order, the petitioner preferred an appeal, which was also dismissed vide order dated 07.06.2012. Thereafter, petitioner filed writ petition No.30471 of 2012 against the orders dated 31.03.2012 as well as order dated 07.06.2012, which was allowed, remanding the matter to the Collector for re-assessing the market value of the land in question, pursuant to which the District Magistrate again considered the matter, but without taking into consideration the observations being made by this Court vide its order dated 14.05.2013, again placed relied upon the reports dated 30.05.2011 & 06.01.2012 and reiterated the earlier finding. Being aggrieved from the said order, petitioner preferred an appeal, which has also been rejected without considering the grounds taken by the petitioner in the memo of appeal. Hence, this writ petition.
4. He further submits that though the due stamp duty was paid for the land purchased by the petitioner, on the basis of ex-parte report dated 30.05.2011, proceedings under the Indian Stamp Act, 1899 were initiated against the petitioner to which the petitioner submitted a detailed objection, making request for a fresh spot inspection, pursuant to which, a fresh spot inspection was made on 06.01.2012 in which it was categorically mentioned that there is no residential or commercial activity at the spot. Further, it has also been stated that within 200 meters, there is no abadi. Furthermore, it also refers that there is no hotel across the road, but only one Dhaba is there, but without giving due weightage to the subsequent report, the impugned order dated 31.03.2012 was passed against which the appeal was preferred by the petitioner, which was dismissed by the order dated 07.06.2012. Thereafter, petitioner filed Writ-C No.30471 of 2012, which was allowed and the matter was remanded for fresh consideration. In pursuance thereof, the impugned order dated 09.01.2014 was passed reiterating its earlier order. He further submits that while passing the said order, no reason has been assigned for imposing the penalty as well as interest @ 1.5% per month. Being aggrieved from the said order, the petitioner preferred an appeal, taking specific ground therein with regard to non-declaration of land in question as an abadi land under Section 143 of UPZA & LR Act, but without considering the same, the appeal has also been dismissed vide order dated 20.04.2020. He next submits that the said fact has also been mentioned in para no.8 of the instant writ petition, which has not specifically been denied in para no.6 of the counter affidavit. He prays for allowing the writ petition.
5. In support of his submission, he has placed reliance upon the judgment of this Court passed in the case of Raj Kumar Vs. State of U.P. and 2 Others, 2023 LawSuit (All) 661.
6. Per contra, learned Additional Chief Standing Counsel supports the impugned orders and submits that the proceedings were rightly been initiated as the petitioner had failed to deposit the legitimate stamp, causing loss to the State Exchequer and therefore, the penalty has rightly also rightly been imposed.
7. After hearing the parties, the Court has perused the record.
8. It is not in dispute that after execution of Sale deed dated 29.06.2010, spot inspection was made on 30.05.2011 and thereafter on the request of the petitioner, a fresh spot inspection was made on 06.01.2012. In the subsequent spot inspectoin, no abadi was found within the vicinity of around 200 meters. Further, no commercial or residential activities were also found on the disputed plot and no contrary material was brought on record to deny the same. Further, the respondent in their wisdom, do not choose to order for fresh enquiry when there was a contradiction between the two spot inspections.
9. The instant writ petition is a second round of litigation before the High Court; such as in the first round of litigation, vide order dated 14.05.2013, matter was remanded by this Court, but without considering the observations made by this Court, the respondents have just reiterated its earlier order, which is bad in the eyes of law.
10. The issue in hand with regard to the non-declaration of land as an abadi land under Section 143 of UPZA & LR Act, is no longer res-integra.
11. This Court in the case of Raj Kumar (supra) in para no. 16 & 20 has held 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.
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."
12. Since the authorities have failed to bring on record any cogent material showing that the land in question has been declared as an abadi land, the deficiency of stamp duty levied upon the petitioner cannot be justified.
13. In view of the law laid down in the aforesaid judgment, the penalty imposed cannot also be justified in the eyes of law.
14. In the light of the facts and circumstances of the case as well as law laid down in the aforesaid judgment, the impugned orders cannot sustain and the same are hereby set aside.
15. Accordingly, the writ petition is allowed.
16. Any amount deposited by the petitioner either pursuant to the impugned orders or by the order of this Court, shall be refunded to him along with interest @ 4% from the date of deposit to till refund, within a month from today from the date of production of certified copy of this order.
Order Date :- 10.9.2024 Pravesh Mishra