Allahabad High Court
Archana Gupta And Others vs State Of U.P. And Others on 18 October, 2019
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- WRIT - C No. - 58859 of 2010 Petitioner :- Archana Gupta And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- J.P.S. Chauhan Counsel for Respondent :- C.S.C. Hon'ble Saral Srivastava,J.
Heard Sri J.P.S. Chauhan, learned counsel for the petitioners and Sri Bimla Prasad, learned Standing Counsel.
The challenge in the present petition is the order passed by the respondent no.3 Collector (Stamp), Bijnor dated 19.03.2009 whereby he has determined the deficiency of stamp duty of Rs.2,97,760/- and imposed penalty of Rs.30,000/- and the order passed by respondent no.2 dismissing the appeal No.156 of 2008-09 preferred by the petitioners against the order of respondent no.3 dated 19.03.2009.
The petitioners purchased part of plot nos.83Gha, 85Ka and 140 having area of 0.111 hectare (1110 square meters) situate in village Ibrahimpur Raju, Pargana & Tehsil Nazibabad, District Bijnor through sale-deed dated 05.05.2008 from one Kapil Singhal. The land has been recorded as agriculture in the revenue record, accordingly, petitioners paid the stamp duty applicable to the agriculture land as per the circle rate plus 50% extra as the aforesaid land is situated within the radius of 200 meter of national highway and abadi.
A notice under Section 47-A of the Stamp Act was issued by respondent no.3 to the petitioners on the report of Sub-Registrar dated 08.05.2008 wherein it has been stated that as in the surrounding area of the land in question commercial activities and residential activities are going on, therefore, petitioners ought to have paid the stamp duty applicable to the commercial land and abadi land and the deficiency of Rs.2,97,760/- in payment of stamp duty was found.
The petitioners submitted their reply to the notice contending therein that the land in question is an agricultural land on which agricultural activities are going on and further the land is recorded as agricultural land in the revenue records and no declaration under Section 143 of the Uttar Pradesh Zamindari and Land Reforms Act (hereinafter referred to as 'U.P.Z.A.& L.R. Act') has been made by the Assistant Collector declaring the land to be abadi land.
The respondent no.3 by order dated 19.03.2009 rejected the objection of the petitioners and determined the deficiency of Rs.2,97,760/- and held the petitioners liable to pay interest on the aforesaid amount @ 1.5% per month and further imposed a penalty of Rs.30,000/-. Thus, in total, petitioners were required to pay Rs.3,76,890/-.
The District Magistrate mainly proceeded on the basis of report of Sub-Registrar and held that since in the vicinity of plot in question, some commercial and residential activities are going on, therefore, the petitioners are liable to pay the stamp duty applicable to commercial land for part of the land and stamp duty applicable to the residential land for the part of other land.
The petitioner being aggrieved by the order of the District Magistrate, preferred Appeal No.156 of 2008-09 which was dismissed by the appellate authority by order dated 09.08.2010.
Challenging the aforesaid orders, learned counsel for the petitioners contends that it is not in dispute that the land in question is recorded as agricultural land in the revenue records and no declaration under Section 143 of the U.P.Z.A.& L.R. Act has been made with respect to aforesaid land declaring it to be the abadi or commercial land. He submits that there is evidence on record which shows that there was eucalyptus tree on the plot in question and merely because in the surrounding of the plot some commercial and residential activities are going on that would not make the petitioners liable to pay the stamp duty applicable to commercial plot and residential plot.
He submits that the potential of the land as on the date of sale alone could be taken into account for determining the market value and as the land in question on the date of execution of sale deed was agriculture, therefore, petitioners have rightly and correctly paid the stamp duty applicable to aforesaid land. In this regard, he has placed reliance upon the two judgements of this Court in the cases of Kusum Lata Jaiswal Vs. State of U.P. and Others 2010(109) RD 519) and Sarvoday Babu Uddeshiya Vikas Samiti Vs. Commissioner Kanpur Division & Others 2014 SCC Online All. 308.
Refuting the aforesaid submission, learned Standing Counsel contends that to determine the market value of the property for the purposes of determination of stamp duty, various other factors like nature of activities going on in the vicinity of the plot, size of the plot, market value of other plot in the vicinity of the plot in question etc. has to be seen and in the present case, as it is evident from the record that commercial and residential activities have been carried out in the vicinity of the plot, therefore, deficiency determined by the respondent no.3 in payment of stamp duty by the petitioners is correct and orders impugned in the writ petition are based on settled principles of law and do not warrant interference by this Court in exercise of powers under Article 226 of Constitution of India. He has relied upon the judgement of this Court in the case of Wasi -Ur-Rehman and Another Vs. Commissioner Moradabad Division, Moradabad and Others 2015 (3) ADJ 361.
I have considered the rival submissions of the parties and perused the record.
The record reveals that the plot in question are recorded as agricultural in the revenue records. Further, there is no declaration made by the Assistant Collector under Section 143 of the U.P.Z.A.& L.R. Act declaring the land to be abadi land or commercial land. It is worth noticing the that the report of the Sub-Registrar does not state that any commercial and residential activities are being carried out on the plot in question. The report only says that some commercial activities like shops and showrooms are situated in the vicinity of the plot, therefore, part of plot around which commercial activities is going on, stamp duty applicable to commercial plot is to be paid and with respect to other part of the plot around which residential activities is going on, stamp duty applicable to the residential plot is to be paid by the petitioners.
The report of the Sub-Registrar does not indicate as to which plot is in the vicinity of commercial activities and which plot in the vicinity of residential activities. The respondent no.3 has also not recorded any finding as to which number of plot is in the vicinity of commercial activities and which plot is in the vicinity of residential activities, and the petitioners in respect to which plot are liable to pay stamp duty applicable to commercial land and on which plot they are liable to pay stamp duty applicable to residential plot.
In view of aforesaid fact, the order of the respondent no.3 cannot be sustained in law. Further, it has been held by this Court in the case of Kusum Lata Jaiswal (supra) that authorities while determining the market value has to see the potential of the land as on the date of the sale alone and the potential value of land that could be put in use in future could not be taken into consideration.
In the case of Sarvoday Babu Uddeshiya Vikas Samiti (supra) this Court in paragraph 12 has held that when a land is an agricultural land and is not an abadi and has not been declared non-agricultural but continue to be shown as agricultural in the revenue records, the stamp duty in respect of such land is to be paid on the basis of current rate applicable to agricultural land. Paragraphs 12 and 13 of the said judgement are being extracted herein below:-
"12. When a land is an agricultural land and is not an Abadi and also not declared non-agricultural but shown in revenue record as agricultural land, in respect to such property, unless there is a clear evidence that on the date of its transfer, it was a commercial land, on mere presumption or facts found much subsequent in point of time after the date of registration of instrument, no enhancement can be allowed.
13. In Smt. Anasuya Singh Vs. Commissioner, Faizabad Division, Faizabad and another, 2008 (104) RD 725, this Court held that an agricultural land situate at a roadside in a semi urban area cannot be treated as commercial or residential unless that area was declared as a commercial or a residential area by the competent authorities. It was followed in Kunj Behari Vs. State of U.P. and others, 2008 (104) RD 750."
The facts delineated above clearly speaks about the fact that respondent no.3 as well as appellate authority without appreciating the correct preposition of law has illegally held the deficiency in payment of stamp duty. So far as the judgement relied upon by the learned Standing Counsel is concerned, the same is not applicable in the facts of the present case as in the said case, the commercial activities was going on the plot in question with respect to which deficiency in payment of stamp duty was found.
Thus, for the reasons given above, the order dated 19.03.2009 passed by respondent no.3 and order dated 09.08.2010 passed by the appellate authority in appeal no.156 of 2008-09 are not sustainable in law and are, accordingly, set aside. The writ petition is allowed with a direction to respondents to refund the money deposited by the petitioners at the time of filing of appeal along with 7% simple interest from the date of deposit till the date of refund.
Order Date :- 18.10.2019 Sattyarth