Allahabad High Court
Smt. Sneh Lata vs State Of U.P. And Others on 23 August, 2023
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:169372 Reserved Court No. - 5 Case :- WRIT - C No. - 4255 of 2011 Petitioner :- Smt. Sneh Lata Respondent :- State of U.P. and Others Counsel for Petitioner :- Rajeev Lochan Shukla, K.K. Pandey Counsel for Respondent :- C.S.C. HON'BLE PIYUSH AGRAWAL, J.
1. Heard Mr. Rajeev Lochan Shukla for the petitioner and Mr. Krishna Mohan Mishra, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of present petition, the petitioner is assailing the order dated 30.9.2010 passed by respondent no. 2 and order dated 29.7.2010 passed by respondent no. 3 whereby stamp deficiency has been imposed upon the petitioner and same has been upheld by the appellate court.
3. Brief facts of the case are that the petitioner has purchased half portion of plot no. 372 area 0.1315 hectare situated in village Mugriha, District Auraiya through registered sale deed dated 19.12.2008. The said property was purchased by paying sale consideration of Rs. 53,000/- and due stamp duty was paid for the same according to the circle rate. Thereafter petitioner was served a notice under Section 47 A/33 of Stamp Act to which he has given reply on 4.9.2009. Thereafter a report has been submitted by the Naib Tehsildar on 11.11.2009 mentioning therein that the plot in question is situated near the abadi land, however prior to the report of Naib Tehsildar, a report was prepared by Revenue Inspector on 13.10.2009 mentioning therein that property in question is not residential / abadi property, therefore, there is no deficiency of stamp. Thereafter the Tehsildar has also made spot inspection on 4.12.2009 and submitted report that abadi land is situated in the radius of 4 meter of the plot in question and thereafter authorities below has passed the impugned order on the basis of the said report. The petitioner has preferred an appeal against the said order, which has also been dismissed. Hence the present petition.
4. Learned counsel for the petitioner has submitted that land in question was purchased as agricultural land and same is also being used for agricultural purpose. He submitted that the plot in question is adjoining from three sides of the land being used for agricultural purposes, however, on one side there is kuchcha chak road. He submitted that the said fact is evident from the site map annexed along with counter affidavit as Annexure No. CA-2 at page 10. On the strength of said document, it has been submitted that the plot in question is being used only for agricultural purpose. He placed reliance on Annexure SA -5 of the supplementary affidavit at page 36, in which copy of Form- 4 of Tehsil Bidhuna, Distt. Auraiya, has been annexed in which at column no. 9, a reference has been made that 'आबादी से सटे हुए गाटा नम्बर ' and various plot numbers have been shown in which plot in question i.e. 372, has also been mentioned. On the strength of said document, it has also been submitted that land in question may be adjacent to the abadi land but same has been used for agricultural purpose only. He further submitted that if some abadi land is adjacent to the plot in question then also the land in question cannot be treated as abadi land until and unless same is being declared under Section 143 of UP Z.A. & L.R. Act 1956.
5. In support of his claim, learned counsel for the petitioner has relied upon the recent judgement of this Court passed in Writ C No. 19644 of 2016 (Raj Kmar Vs. State of UP) decided on 13.4.2023. He prays for allowing the writ petition.
6. Per contra, learned A.C.S.C. supports the impugned order and submitted that the land in question is abadi land, whereas the petitioner has wrongly shown the same as agricultural property. He relied upon Annexure CA-1 of the counter affidavit at page 9, where a reference has been made in column no. 6, which reads as 'आबादी में स्थित गाटा न. ' and plot no. 372, which is belonging to the petitioner, has also been mentioned therein. On the strength of said, he submitted that proceedings have rightly been initiated against the petitioner. In support of his claim he further relied upon the impugned order passed by respondent no. 3, wherein the proceedings have been initiated on the basis of plot numbers mentioned as abadi land (non-agricultural). He prays for dismissal of this writ petition.
7. To controvert the said submission of learned ACSC, learned counsel for the petitioner has submitted that Annexure CA-1 of the counter affidavit, has seen the light of day for the first time in the counter affidavit. He further referred Annexure- SA-5 of supplementary affidavit at page 36 and stated that the plot in question was never mentioned as abadi land and said fact was also clear from the Annexure CA-2 filed along with counter affidavit, wherein it has been stated that from three sides, the land in question is adjoining the plots, which has been used for agricultural purposes and from one side it is adjacent to brick paved road/ chak road and thereafter some abadi land is situated. He further submitted that the land in question cannot be treated as non-agricultural land and prayed for allowing the writ petition.
8. The Court after hearing the counsel for the parties has perused the records.
9. Admittedly, half portion of the land in question was purchased by the petitioner through registered sale deed dated 19.12.2008 and thereafter Revenue Inspector prepared his report treating that the land in question is agricultural land, copy of the which has been annexed as Annexure SA-3 along with supplementary affidavit and thereafter another report was prepared by Naib Tehsildar on 11.11.2003 mentioning therein that the land in question is adjacent to the abadi land and also mentioned that report prepared by Revenue Inspector is incorrect and thereafter report of Tehsildar was prepared on 4.12.2009. On perusal of the report prepared by Tehsildar, the authorities below have come to the conclusion that the land in question is adjacent to the abadi land and passed the impugned order imposing deficiency of stamp. However none of the authorities below have considered the fact as to whether the land in question as mentioned in Annexure CA-1 at page -8 of the counter affidavit, was scribed as abadi land in the revenue records or not and there is also no material to controvert Annexure no. SA- 5 of the supplementary affidavit showing that the land in question is adjacent to the abadi land. Even on assuming that the land in question has been treated as abadi land but in the absence of any declaration made under Section 143 of UP Z.A. & L.R. Act, 1956, the land in question cannot be treated as abadi land as held by this Court in the case of Raj Kumar (supra).
10. Since two relevant documents have been brought on record, one by the petitioner and other by the State by way of supplementary affidavit Annexure no. 5 at page 36 as well as counter affidavit Annexure no. 2 at page 8 respectively. The documents brought on record does not reveal the date of its enforcement to show whether the land in question was abadi or adjacent to abadi land. In view of above, the said relevant fact has not been disclosed in any of the impugned order, thus the impugned orders cannot sustain in the eyes of law.
11. In the results the writ petition is allowed. The impugned orders are set aside. The matter is remanded to the Assistant Commissioner, (Stamp) Kanpur Mandal, Kanpur, respondent no. 2, who shall consider the issue and decide the same afresh, in accordance with law, expeditiously, preferably within a period of three months from the date of production of certified copy of this order before the authority concerned. The petitioner is directed to serve a certified copy of this order before respondent no. 2 within 15 days from today.
Order Date :- 23.8.2023
Rahul Dwivedi/-