Rajasthan High Court - Jodhpur
M/S Fine Mineral Industry vs State And Ors on 18 January, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
(1 of 24) [CW-7943/2007]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7943/2007
M/s Fine Mineral Industry
----Petitioner
Versus
State of Rajasthan & Ors.
----Respondent
For Petitioner(s) : Mr. Sharad Kothari on VC.
For Respondent(s) : Ms. Akshiti Singhvi for
Mr. Sandeep Shah, AAG on VC.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 18/01/2022
1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to the Courts.
2. This writ petition has been preferred claiming the following reliefs:
"(i) impugned Order dated 26/2/2006 (Annexure 5) passed by the Respondent No.2 may be quashed and set-aside.
(ii) it may be declared that the nature of the land as on the date of execution of sale deed in question was agriculture and subsequent event cannot alter the valuation of the land."(Downloaded on 25/12/2022 at 07:21:47 PM)
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3. In nutshell, the facts of this case, as revealed from the averments made in the writ petition, are that the petitioner, through its partner, purchased an agricultural land admeasuring 2 bigha 1 biswa comprising khasra No.7 in Village Khari-Khurd, from one Gangaram and others vide a registered sale deed dated 05.04.2000, for a sum of Rs.35,000/-. When the said sale deed was presented for registration before the respondent No.3-Sub Registrar, Tinwari, Jodhpur, the market value of the said land was determined as Rs.43,050/- and the stamp duty and registration charges were determined accordingly, which were duly paid by the petitioner.
4. The petitioner-Firm thereafter got the aforementioned agricultural land in question converted for the purpose of industrial use after making payment of the requisite charges. Thereafter, upon completion of all the formalities, the Sub Divisional Officer, Phalodi issued a conversion order dated 24.10.2000, whereby the land in question was duly converted for industrial purposes.
5. Upon such conversion, the petitioner established a unit for manufacturing stone chips, mining and mineral, and also installed stone crusher on the land in question.
6. However, thereafter, it was informed by the respondent No.3 to the petitioner that there is a certain amount remained outstanding towards payment of the stamp duty of the said land in question.
7. Thereafter, the Senior Accountant of the Registration & Stamp Department, Ajmer had sent a reference to the Collector (Stamps) under Section 47A(2A) of the Indian Stamp Act of 1899 (in short, 'Act of 1899') to the effect that the petitioner is a (Downloaded on 25/12/2022 at 07:21:47 PM) (3 of 24) [CW-7943/2007] commercial establishment, and the land, for which the sale deed in question (conveying the agricultural land admeasuring 2 bigha 1 biswa) has been registered on 05.04.2000, was purported to be used for commercial purposes, and therefore, the valuation should have been done as per the prevailing commercial rates. Upon such reference being made, a case No.15/2003 under revisional power was registered by the Collector (Stamps), Jodhpur and an additional demand of Rs.1,13,240/- was raised towards the deficit stamp duty with respect to the said land in question; whereupon, an attachment order/notice dated 02.10.2006 was sent by the Collector (Stamps) to the Sub Registrar, Tinwari, District Jodhpur, while recording that the aforementioned amount of Rs.1,13,240/-, in pursuance of the order dated 26.02.2006, has not been duly paid; and such attachment order was ordered to remain operative until the requisite amount under additional demand is paid.
8. Learned counsel for the petitioner submits that once a parcel of land has been lawfully purchased, it is the right of such purchaser to make use of such land, as he deems fit, either for development purposes, for plantation and cultivation, for the purpose of investment, or for any other ancillary purposes, only in accordance with law.
9. Learned counsel for the petitioner further submits that the stamp duty and the registration charges in respect of such parcel of land, have to be valued and determined, as on the date of execution of the sale deed in respect of the said land. As per learned counsel, the land in question, as on the date of purchase by the petitioner was having the status of an agricultural land, and the stamp duty and registration charges were valued and levied by (Downloaded on 25/12/2022 at 07:21:47 PM) (4 of 24) [CW-7943/2007] the concerned authority accordingly; which the petitioner had duly paid. Learned counsel also submits that a possible future use of the land cannot be a valid parameter to subsequently alter the charges towards stamp duty, that has already been levied and collected.
10. In support of his submissions, learned counsel for the petitioner relied upon the precedent law laid down by the Hon'ble Supreme Court in State of U.P. and Ors. Vs. Ambrish Tandon and Ors. (2012) 5 SCC 566, relevant portion of which reads as under:
"We have already held that it is the grievance of the Respondents that the orders were passed by the Additional Collector on a public holiday. Regarding the merits though the Collector, Lucknow made a surprise site inspection, there is no record to show that all the details such as measurement, extent, boundaries were noted in the presence of the Respondents who purchased the property. . . . . . It is also demonstrated that at the time of execution of the sale deed, the house in question was used for residential purpose and it is asserted that the stamp duty was paid based on the position and user of the building on the date of the purchase. The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. Though the matter could have been considered by the Appellate Authority in view of our (Downloaded on 25/12/2022 at 07:21:47 PM) (5 of 24) [CW-7943/2007] reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27.09.2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture."
11. Learned counsel for the petitioner, while placing reliance on the judgment rendered by this Hon'ble Court in Smt. Padmavati Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 1973 of 2010, decided on 10.04.2015, submits that in that case, the land was converted from agricultural to residential, and the question in the said case was pertaining to valuation of stamp duty; in the judgment, the precedent law of Ambrish Tandon (supra) was also considered, and it was observed thus:
"6. In the considered opinion of this court, the market value of the land subject matter of an instrument produced for registration had to be assessed on the basis of the nature of the land as on the date of execution of the instrument and the possible future use of the land for any other purpose is hardly of any relevance and no assessment of the market value of the land can be made keeping in view the intended use of the land by the beneficiary of the instrument. A bare perusal of the order impugned reveals that the market value of the land in question has been assessed by the Collector (Stamp) on the basis of the value of the adjacent land sold after due conversion of the land for residential purpose, whereas indisputably, the land in question was agriculture land as on the date of execution of the sale deed. ..."(Downloaded on 25/12/2022 at 07:21:47 PM)
(6 of 24) [CW-7943/2007]
12. Learned counsel for the petitioner also relied upon the judgment rendered by this Hon'ble Court in Orient Resorts (India) Pvt. Ltd. Vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 4534 of 1999, decided on 27.09.2016), reported in 2017 (1) CDR 203 (Raj.), wherein it was observed as under:
"It is settled law that the market value of the property subject matter of an instrument produced for registration has to be assessed on the basis of nature of the property as on the date of execution of the instrument, the possible future use of the property is hardly of any relevance and no assessment of the market value of the property can be made keeping in view the intended use of the property by the beneficiary of the instrument. It has come on record that the property in question was an agriculture land at the time of execution of the sale deed and the registration thereof and therefore, the stamp duty and registration charges having been paid by the petitioner as determined by the Sub Registrar, Sirohi, there was no occasion for the Senior Account Officer, Registration & Stamp to make a reference to the Collector (Stamp) under Section 47A of the Act. As a matter of fact, even subsequent conversion of the land for non agricultural use, cannot be made basis for levy of the stamp duty and registration charges, presuming that the land was intended to be used for residential/commercial purpose at the time of registration."
13. Learned counsel for the petitioner further relied upon the judgment rendered by this Court in Shankar Lal and Ors. Vs. (Downloaded on 25/12/2022 at 07:21:47 PM) (7 of 24) [CW-7943/2007] Sri Niwas and Ors. S.B. Civil Writ Petition 3007 of 2010, decided on 15.05.2019, wherein it was observed as under:
"32. This Court also finds that had the defendants/petitioners chosen to act in time, then of course, as per the precedent law, they would have a right to get the value of the document in question determined from the Collector Stamps, Nagaur payable on the document of partition deed on the date when the same was executed i.e. 10.11.1951, and not on the date on which they have presented it for the necessary stamping.
36. However, in the peculiar facts of the case, and that, the precedent law clearly stands in favour of the petitioners, the petitioners are entitled to get the document in question stamped with the valuation at the rate prevalent on the date when the document was executed, rather than on the date when the application was filed by the defendants/petitioners before the learned trial court i.e. on 13.10.2006.
37. Thus, inspite of the frustrating delays caused by the defendants/petitioners, this Court, to avoid any further delay and for ensuring continuance of the proceedings pending before the learned trial court, allows the present writ petition, while quashing the impugned orders dated 30.01.2010 and 07.09.2006 as well as the letters dated 08.10.2007 and 29.10.2007. Accordingly, the respondent No. 7-Deputy Inspector General, Registration-cum-Collector (Stamp), Circle, Ajmer is directed to determine the stamp duty in respect of the partition deed dated 10.11.1951 in question, as per the directions given by this Hon'ble Court earlier in the aforementioned judgment dated 17.08.1993, and while taking the valuation from the date of execution of the partition deed i.e. 10.11.1951, the order upon the necessary stamp duty shall be passed by respondent No. 7 within a period of (Downloaded on 25/12/2022 at 07:21:47 PM) (8 of 24) [CW-7943/2007] 30 days from today. The learned trial court shall thereafter, proceed expeditiously to decide the suit pending before it within a period of two months thereafter. The learned trial shall impose heavy costs upon the parties, who would seek unnecessary adjournments. It is made clear that this Court is not relegating this matter to the appeal, even while knowing that there is a statutory appeal, which lies against the order of Collector (Stamps), as that would further the delay the adjudication process of the civil suit, which is pending for last about 56 years."
14. Learned counsel for the petitioner also relied upon the precedent law laid down by the Hon'ble Supreme Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly (1970) 2 SCC 355, wherein it was observed as under:
"Exercise of power to rectify an error apparent from the record is conferred upon the Income-tax Officer in aid of enforcement of a right ...
The High Court was, in our judgment, in error in assuming that exercise of the power was discretionary and the Income - tax Officer could, even if the conditions for its exercise were shown to exist, decline to exercise the power."
15. Learned counsel for the petitioner further submits that the land in question was purchased in April 2000 and converted to be used for industrial purposes in October 2000, and in doing so, all the necessary disclosures were made to the concerned authorities and no fact was concealed, and that the entire procedure was carried out strictly in accordance with the law.
16. Learned counsel for the petitioner further submits that as regards the present controversy, the Hon'ble Courts have clarified (Downloaded on 25/12/2022 at 07:21:47 PM) (9 of 24) [CW-7943/2007] the position to the effect that for the purposes of valuation and levy of stamp duty pertaining to an immovable property or land, the nature of the property, as on date of execution of the relevant deed, would be the decisive factor to be taken into account by the concerned authorities for the purpose of imposition of the stamp duty, in an appropriate manner.
17. Learned counsel for the petitioner further submits that when the land in question was converted, the requisite charges were paid by the petitioner, as mandated under the law, and the petitioner has approached this Court only after the additional demand in question towards deficit stamp duty has been raised, followed by the aforementioned order of attachment in respect of the land in question.
18. Learned counsel for the petitioner also submits that the proceedings by the concerned Collector (Stamps), after a reference being made to it by the concerned Senior Accountant of the Registration & Stamp Department, were in fact conducted in a slipshod manner, and that, the petitioner was not given an adequate opportunity of hearing, which is in clear violation of the principles of natural justice.
19. Learned counsel for the petitioner further submits that the inquiry report, which formed the very basis of the findings recorded by the Collector (Stamps) in its order, to the effect that the petitioner was carrying out a business of manufacturing of mineral water and cold drinks, were incorrect, as the petitioner was in fact, carrying out a business related to mining i.e. manufacturing of stone chips and 'gitti' and had installed a stone crusher for the said purpose, on the land in question. Further, as (Downloaded on 25/12/2022 at 07:21:47 PM) (10 of 24) [CW-7943/2007] per learned counsel, the order passed by the Collector is contrary to Section 3(2)(xiii) and Article 21 of the Schedule to the Indian Stamp Act (as adopted by the State of Rajasthan).
20. On the other hand, learned counsel for the respondents raises a preliminary objection as to the maintainability of the present writ petition under Article 226 of the Constitution of India, in light of availability of an alternate statutory remedy to the petitioner.
21. In support of the contention that the suit was not maintainable, learned counsel for the respondents relied upon the precedent law laid down by the Hon'ble Apex Court, in Genpact India Private Limited Vs. Deputy Commissioner of Income Tax & Anr. (Civil Appeal No.8945 of 2019), decided on 22.11.2019, wherein on the issues; one regarding availability of appellate remedy and; the other concerning refusal to exercise jurisdiction under Article 226 on the ground of availability of an alternative efficacious remedy, it was observed as under:
"16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct . . . .
In State of U.P. Vs. UP Rajya Khanij Vikas Nigam Sangarsh Samiti and others (2008) 12 SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under:(Downloaded on 25/12/2022 at 07:21:47 PM)
(11 of 24) [CW-7943/2007] "38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus:
(Suresh Chandra Tewari case, AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed."
(emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court (Downloaded on 25/12/2022 at 07:21:47 PM) (12 of 24) [CW-7943/2007] under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.
17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court ... "
22. Learned counsel for the respondents also submits that although the land in question purchased by the petitioner was an agricultural land, but within few months, the petitioner got the said land in question converted into industrial land, thereby evaded payment of adequate stamp duty, which should have been levied upon the petitioner at commercial rates. Learned counsel further submits that to ensure that the State Government does not suffer a loss of revenue due to the said conduct of the petitioner, the proceedings in respect of an additional demand in question were drawn up by the concerned revenue authority.
22.1 Learned counsel for the respondents draws the attention of this Court towards Rule 58 and Rule 65 of the Rajasthan Stamp Rules, 2004, relevant portions whereof read as follows:
"58. Procedure for assessment of the market value of the immovable property by the Registering Officer.--
[(1) In the case of an instrument relating to immovable property, the market value of such property shall be assessed as under namely :-
(a) in case of agriculture, residential and commercial categories of land, on the basis of the rates recommended by the District Level Committee constituted under clause (b) of sub-rule (1) of rule 2:(Downloaded on 25/12/2022 at 07:21:47 PM)
(13 of 24) [CW-7943/2007] Provided that Inspector General of Stamps may revise the rates of agriculture, residential or commercial land determined by District Level Committee with prior approval of the State Government by notification published in the Official Gazette, if circumstances so require;
(b) in case of other categories of land, on the basis of the rates determined by Inspector General of Stamps with approval of State Government or determined by State Government by notification published in the Official Gazette;
(c) in case of constructed portion, on the basis of the rates determined by State Government;
(d) in case of proportionate land under the multistoried buildings on the basis of criteria specified by the State Government:
(e) while assessing market value, depreciation on the constructed portion shall be allowed according to the criteria specified by the State Government; and
(f) in case of corner plots on the basis of criteria specified by the State Government."] "(2) Inspector General of Stamps with approval of State Government shall prepare guidelines for District Level Committee from time to time, in respect of determination of market value of the agriculture, residential and commercial categories of land. The District Level Committee while recommending the rates of agriculture, residential and commercial categories of land, shall follow the guidelines issued by Inspector General of Stamps:
Provided that if the rates recommended by the District Level Committee are increased by more than fifty percent of the existing rates, the increased rates so recommended shall be taken into consideration only after the approval of the Inspector General of Stamps."] (Downloaded on 25/12/2022 at 07:21:47 PM) (14 of 24) [CW-7943/2007] [Provided further that if the District Level Committee recommends to decrease the existing rates, the decreased rates so recommended shall be taken into consideration only after the approval of the State Government."] (3) If the District Level Committee does not revise the rates of agriculture, residential or commercial categories of land up to 31st March of any year, the market value of such categories of land in that district, shall be assessed by increasing 10% in the existing rates from next 1st April.
(4) Notwithstanding anything contained in sub-
rule (1), (2) and (3) above, the State Government may re-determine the rates recommended by District Level Committee or determined by Inspector General of Stamps, if the circumstances so require. The rates so determined shall be the basis of assessment of the market value of the land with effect from the date specified in such order and be valid until the District Level Committee revises the rates so determined.
[(5) Notwithstanding anything contained in sub- rule (1), (2), (3) and (4) above, the State Government, if the circumstances so require, may by order suspend the revision of the rates of agriculture, residential or commercial categories of land for particular year or years."
65. Procedure to be followed by the Collector in cases of under-valued instrument.-
"(1) (2) (3) (4) The Collector may for the purpose of enquiry--
(i) Look into corresponding rates as recommended by the District Level Committee and the rates approved by the Inspector General of stamps.(Downloaded on 25/12/2022 at 07:21:47 PM)
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(ii) Call for any information or record from any public office, officer or authority under the Government or the Local Authority. (iii) Examine and record statement of any member of the public, officer or authority under the Government or the Local Authority.
(iv) Inspect the property after due notice to the parties concerned.
(5) The Collector shall- i. After considering the objection and representation received in writing from the person to whom notice under sub-rule (1) & (2) has been issued; ii. After examining the records produced before him; iii. after a careful consideration of all the relevant factors and evidence placed before him, and iv. after consideration the corresponding rates as recommended by the District Level Committee and the rates approved by the Inspector General of Stamps;
Pass an order determining the market value of the property and duty payable on the instrument and take steps to collect the difference in the amount of stamp duty alongwith penalty, if any.
(6) ...
(7) ...
Learned counsel further referred to Section 47A of the Act of 1952, which reads as follows:
"47A. Instrument undervalued how to be valued.
(1) Notwithstanding anything contained in the Registration Act, 1908 (Central Act. XVI of 1908) and the rules made thereunder as in force in Rajasthan where in the case of any instrument relating to an immovable property chargeable with an ad valorem duty on the market value of the property as set forth in the instrument the registering officer has while registering the instruments reasons to believe that the (Downloaded on 25/12/2022 at 07:21:47 PM) (16 of 24) [CW-7943/2007] market value of the property has not been truly set forth in the instrument, he may (either before or after registering ) the instrument, send it in original to the Collector for determination of market value and to assess and charge the duty in conformity with such determination together with a penalty not exceeding ten times the deficient stamp duty chargeable and surcharge, if any payable on such instrument. (2) On receipt of the instrument under sub - section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in the prescribed manner, determine the market value and the duty including the penalty and surcharge, if any, payable thereon and if the amount of duty including penalty and surcharge, if any, so determined exceeds the amount of duty including penalty and surcharge, if any already paid the deficient amount shall be payable by the person by the person liable to pay the duty including penalty and surcharge, if any.
[(2A) Where it appears to a person having by law or consent of parties authority to receive evidence or a person in charge of a public office, during the course of inspection or otherwise, except an officer of police, that an instrument is undervalued, such person person shall forthwith make a reference to the Colelctor in that matter.] (3) The Collector may, suo moto [or on a reference made under sub - section (2-A)] call for and examine any instrument not referred to him under sub-section (1) [from any person referred to in sub- section (2-A) or the executant or any other person] for the purpose of satisfying himself as to the correctness of the market value of the property, and if after such examination, he has reason to believe that the market value of such property has not been truly set forth in the instrument, he may determine in accordance with (Downloaded on 25/12/2022 at 07:21:47 PM) (17 of 24) [CW-7943/2007] the procedure provided in sub-section (2) the market value and the amount of stamp duty [xx] together with the penalty not exceeding ten times the deficient stamp duty chargeable on it, which shall be payable by the person liable to pay the stamp duty [xx] and penalty."
Learned counsel also referred to Rule 59 (B) of the Rules of 1955, which reads as follows:
"59-B. Procedure for assessment of the market value of the property by the Registering Officer.-
(1) In the case of an instrument relating to immovable property, the market value of land shall be asessed by the Registering Officer on the basis of the rates recommended by the District Level Committee constituted under rule 20) from time to time or the rates approved by the Inspector General of Stamps from time to time, whichever is higher and market value of the constructed portion shall be assessed on the basis of the rates deter mined by the State Government from time to time.
(2) If the rates of land recommended by the District Level Committee are not revised within one year from the date of such recommendation or if the market value of land in any àrea has extra ordinarily increased on decreased, the State Government may suo-motu or on a reference made by the Inspector General of Stamps re-determine by order the rates of the land in such areas on the basis of the recommendations made by a committee consisting of SSF (Revenue) as chairman and Inspector General of Stamps, D.S.F. (Tax), Collector of concerned District and a Public Representative of that District nominated by the Government as member. The rated so determined shall be the market value of that area and be the basis of assessment of the market value of the land with effect from the date specifled in such order and be (Downloaded on 25/12/2022 at 07:21:47 PM) (18 of 24) [CW-7943/2007] valid until the District Level Committee revises the rates so determined."
Learned counsel for the respondents also submits that in the present case, the instrument in question is dated 05.04.2000 and since the Act of 1998 came into force on 27.05.2004, the Act of 1998 and the Rules of 2004 would not apply to the instrument in question, and the erstwhile Act of 1952 and the Rules of 1955 would apply. And that, although the term 'market value' is not defined in the Act of 1952, but Section 51 of the Act of 1998 is a provision similar to Section 47A of the erstwhile Act of 1952, and likewise, Rule 58 of the Rules of 2004 is similar to the Rule 59B of the erstwhile Rules of 1955.
23. Learned counsel for the respondents further submits that the valuation of stamp duty was carried out only after a speculative inquiry being conducted, in respect of the land in question, by the concerned authorities; and after finding that the proper stamp duty was not collected, an additional demand was drawn up for the collection of the deficit stamp duty.
23.1 Learned counsel also submits that the aforementioned proposition was upheld by the Hon'ble Supreme Court in State of Rajasthan Vs. Satyam Properties Civil Appeal No(s). 3671 - 3684 of 2003 wherein it was observed thus:
"Section 47A of the Act is a provision in the statute, whereas Rule 59(B) of the Rules is only a piece of delegated legislation. In our opinion, we can harmonise the two provisions quoted herein above by holding that the assesment determined under the Rules by the District Level Committee (which is commonly known as 'circle rate') shall not prevent the (Downloaded on 25/12/2022 at 07:21:47 PM) (19 of 24) [CW-7943/2007] Registering Officer from making a reference under Section 47A of the Act to the Collector in case the Registering Officer, prima facie, is of the opinion that the real market value of the property is far above the circle rate so determined by the District Level Committee."
24. Learned counsel for the respondents further submits that the intention behind the purchasing of a parcel of the land in question must be considered, while determining the appropriate stamp duty and levy thereof.
25. In support of his submissions, learned counsel for the respondents relied upon the judgment rendered by the Hon'ble Allahabad High Court in Pushpa Sareen Vs. State of U.P. 2015(2) MWN (Civil) 129, wherein, the Hon'ble Full Bench, on the issue, "Whether the Collector Stamps has power to fix the valuation of a plot on the assumption that the same is likely to be used for commercial purposes, and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector", observed as under: -
"19. Now insofar as the second question is concerned, the issue posed for consideration before the Court is whether the Collector has the power to fix the valuation of a plot on the assumption that it is likely to be used for commercial purposes and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector. The Collector, while exercising his jurisdiction under Section 47-A, is required to determine the market value of the property on the date of the instrument. It is a well settled principle of law that stamp duty is a levy which (Downloaded on 25/12/2022 at 07:21:47 PM) (20 of 24) [CW-7943/2007] is imposed not on the transaction but on the instrument.
21. Section 17 of the Stamp Act provides that all instruments chargeable to duty and executed by any person in India shall be stamped before or at the time of execution.
22. In certain judgments of the learned Single Judges of this Court, a view had been taken that the authorities are required to determine the value of the land on the date on which the sale was made and cannot consider the potential value of the land to which it could be put to use in future. Smt. Kusum Lata Jaiswal v. State of U.P. and others, 2010(2) ADJ
274. Similarly in Dinesh Tiwari v. Commissioner, Gorakhpur and others, 2012(3) AWC 2343 : 2011(10) ADJ 1 (NOC), it was held that the Collector had no power to assess the market value of the property on the basis of a future value which the property may acquire.
24. In Ramesh Chand Bansal and others v. District Magistrate/Collector, Ghaziabad and others AIR 1999 SC 2126, para 5, the Supreme Court held as follows:
"The object of the Indian Stamp Act is to collect proper stamp duty on an instrument or conveyance on which such duty is payable. This is to protect the State revenue. It is matter for common knowledge in order to escape such duty by unfair practice, many a time under valuation of a property or lower consideration is mentioned in a sale-deed. The imposition of stamp duty on sale- deeds are on the actual market value of such property and not the value described in the instrument. Thus, an obligation is cast on authority to properly ascertain its true value for which he is not bound by the apparent tenor of the instrument. He has to truly decide the real nature of the transaction and value of such (Downloaded on 25/12/2022 at 07:21:47 PM) (21 of 24) [CW-7943/2007] property. . . . there has to be some material before such authority as to what is likely value of such property in that area. . . .
26. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto ...
27. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambush Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relatable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has (Downloaded on 25/12/2022 at 07:21:47 PM) (22 of 24) [CW-7943/2007] been a change of use or other contemporaneous sale- deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser."
26. Learned counsel for the respondents further relied upon the precedent law laid down by the Hon'ble Supreme Court in Ansal Housing and Construction Ltd. Vs. State of U.P. and Ors. (2016) 13 SCC 305 wherein it was observed as under:
"In our view, bereft of the required materials before the High Court, the Court was not justified in adjudicating the issue at the first instance when there is a statutory scheme provided for adjudication of such issues by the competent authorities concerned.
In that view of the matter, without expressing any further opinion, we set aside the judgment dated 16.8.2011 in Civil Miscellaneous Writ Petition No. 73277 of 2010 and other connected matters. The parties are relegated to the competent authority under the Indian Stamp Act in the State of Uttar Pradesh for the adjudication of the dispute. We direct the Authority concerned to issue notice to the parties, hear them and pass final orders on merits on the dispute within a period of six months from today."(Downloaded on 25/12/2022 at 07:21:47 PM)
(23 of 24) [CW-7943/2007] 27. As against the submission regarding violation of the
principles of natural justice made on behalf of the petitioner in the present case, learned counsel for the respondents submits that it is evident from the necessary notice dated 15.12.2002 and reply thereto submitted by the petitioner, that the respondents have not violated the principles of natural justice and have acted in accordance with the settled principles of law.
27.1 As against this, learned counsel for the petitioner, in his rejoinder arguments, submits that as per the mandate of Section 47C sub-section (2) of the Stamp Act, 1952, the Collector cannot pass any order of determination without giving reasonable opportunity of hearing to the effected parties, and it is apparent from the order-sheets of the proceedings in question, having been placed on record, that no notice was ordered to be issued by the Collector before taking the impugned action against the petitioner, so as to enable the petitioner to put forth its stand, thereby violating the principles of natural justice.
28. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited above.
29. With regard to the preliminary objection regarding the maintainability of the present petition, as raised by the learned counsel for the respondents, this Court observes the following:
(a) The present petition is brought before this Court under its extraordinary writ jurisdiction under Article 226 of the Constitution of India, and while in Genpact (supra) the Hon'ble Apex Court, referring to UP Rajya Khanij (supra) has observed that a petition brought before a High Court under Article 226 of the Constitution of India may be dismissed in light of availability of an (Downloaded on 25/12/2022 at 07:21:47 PM) (24 of 24) [CW-7943/2007] effective and alternative remedy, and non-dismissal of such petition merely on the ground that such a petition has already been admitted, would be an incorrect understanding of the law.
(b) In Ansal Housing (supra), the Hon'ble Apex Court in the said case found that the High Court was not justified in entertaining the writ petition, and thus, relegated the matter back to the concerned authority.
30. Keeping in mind the facts and circumstances of the case, and in light of the fact that a statutory alternate remedy is available to the petitioner, and deriving strength from the decisions rendered by the Hon'ble Apex Court in Genpact (Supra) and Ansal Housing (supra), this Court does not find it a fit case for making any interference.
31. Consequently, the present petition is dismissed. However, the petitioner shall be at liberty to avail the alternate remedy available to him under the law, and approach the concerned authority for redressal of his grievance. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI),J.
119-SKant/-
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