Allahabad High Court
Mohd. Yasin vs State Of U.P. And 4 Others on 23 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- WRIT - C No. - 60357 of 2017 Petitioner :- Mohd. Yasin Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Manu Saxena Counsel for Respondent :- C.S.C. Hon'ble Kshitij Shailendra,J.
Heard Sri Manu Saxena, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The matter arises out of the proceedings under Indian Stamp Act, 1899. By the first order impugned dated 24.11.2016, a deficiency of Rs.14,11,960/- towards alleged deficient stamp duty has been levied upon the petitioner in the proceedings under Section 47-A of the Indian Stamp Act along with penalty of the same amount with interest at the rate of 1.5% per month. By the second order impugned dated 28.9.2017, the statutory appeal by the petitioner under Section 56(1-A) of the Stamp Act has been dismissed.
The contention of learned counsel for the petitioner is that the petitioner purchased a land covered by Gata No.552(Kha) situated at Village Bijauriya alias Nawabganj, Tehsil Nawabganj, District Bareilly from some Mirazul and Jabir Hussain @ Jakir Hussain and others by registered sale deed dated 20.4.2016. It is contended that the user of the land was agricultural in nature, however, in the revenue records, in the year 2008, it was recorded as non agricultural for some reason.
It is further contended that sellers moved an application dated 29.12.2015 under Section 144 of U.P. Z.A. & L.R. Act before the Sub Divisional Magistrate concerned contending that no abadi exists on the land and that cultivation activities were being carried out. The said application was processed and necessary reports were called from concerned Revenue Officer, who submitted reports dated 4.3.2016 & 11.3.2016 clearly mentioning that the land covered by the aforesaid gata was being utilized for cultivation activities, however, as per the revenue records, the same had been declared as non agricultural. Existence of crop of Laahi was also mentioned in the reports.
It is further contended that during pendency of the aforesaid application under Section 144 of U.P. Z.A. & L.R. Act, the provision of U.P. Z.A. & L.R. Act was repealed and the provisions of U.P. Revenue Code, 2006 came into force and the matter was examined by Sub Divisional Magistrate concerned in the light of provisions of Section 82 of U.P. Revenue Code, 2006, and by order dated 18.4.2016, the land covered by the aforesaid gata was declared agricultural.
It is further contended that the order dated 18.4.2016 became final, which was not challenged by any of the parties including the State. It is further argued that the petitioner purchased the said land by way of registered sale deed on 20.4.2016, and on the date, not only as per the order dated 18.4.2016, but also on facts, the land was being used for agricultural purposes. It is further contended that the Sub Divisional Magistrate, Nawabganj sent communication dated 25.4.2016 to the Collector, a copy whereof has been filed, taking note of the declaration made under Section 82 of the U.P. Revenue Code, 2006 and the observation that it appears that the parties have moved application for declaration in order to evade stamp duty. The said apprehension is contained at page 29 of the paper book, which is quoted as follows:-
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By the said communication, a request was made for registration of a case for recovery of deficient stamp duty.
In pursuance of the said report, stamp case in reference was registered in which the petitioner appeared and submitted objections clearly referring to the aforesaid proceedings and taking specific ground that the land as per record as well as per actual user is purely agricultural in nature and cannot be treated as abadi. The petitioner also led documentary evidence in support of his defence.
The Collector, Bareilly, by order impugned dated 24.11.2016, arrived at a conclusion that a declaration under Section 143 of U.P. Z.A. & L.R. Act had been done in the year 2008, whereafter, the proceedings under Section 82 of U.P. Revenue Code, 2006 were instituted in order to evade the stamp duty. Deficiency as well as penalty to the aforesaid effect has been imposed upon the petitioner. The petitioner thereafter filed a recall application requesting reconsideration of his matter, however, the same was also rejected and an appeal thereafter was filed, which was rejected on 31.3.2017 and when the petitioner filed statutory appeal against first order that was also dismissed by impugned order dated 28.9.2017.
Learned counsel submits that the petitioner moved various applications during the pendency of case requesting the Collector to get the spot inspection carried out, however, without taking consideration all the said applications, the case was decided.
The pleadings have been exchanged between the parties. A supplementary affidavit has also been filed annexing therewith the extract of khasra of 1426 fasli, which shows that crops of Jwar and Chara have been recorded in the revenue records against khasra no.552(Kha). Further, a copy of khatauni relating to 1427-1432 fasli has also been brought on record, which also shows that endorsement of the order passed under Section 82 of the U.P. Revenue Code, 2006 declaring the land as agricultural. Further khatauni relating to 1429-1435 fasli has also been brought on record, which shows entry of crop of Laahi in column no.10 and another entry of river as a source of irrigation.
The submission of learned counsel for the petitioner is that while not adhering to the request made on behalf of the petitioner to carry out spot inspection, the provisions of Rule 7 of the U.P. Stamp (Valuation of Property), Rules 1997 have been violated and on the other hand, the impugned orders are merely based upon the conjectures and surmises, i.e. the opinion formed by the authorities that declaration under Section 82 of the U.P. Revenue Code, 2006 appears to have been made with intention to evade stamp duty.
On the other hand, learned Standing Counsel submits that proximity of dates of proceedings demonstrates that the declaration was made in order to evade stamp duty and that the spot map annexed at page no.73 of the writ petition clearly shows existence of a slaughter house just adjacent to the land covered by Gata No.552(Kha) and house of one Yusuf. Therefore, he submits that there was sufficient evidence on record to demonstrate that the land forming subject matter of instrument in question was surrounded by abadi and, hence, no illegality has been committed in levying the stamp duty.
Learned counsel for the petitioner submits that although spot inspection was never carried out, as aforesaid, despite request made on behalf of petitioner from time to time, even from perusal of map relied upon and referred to by the learned Standing Counsel, it stands established that there is open land towards northern side of the land, a chak-road towards western side of the land, agricultural holding of co-sharers towards the northern side of the land and, thereafter, a river and, hence, merely because towards left hand side of the plot, one slaughter house has been shown that is not a sufficient evidence to establish the nature of land forming subject matter of instrument to be abadi, particularly, when the entire revenue records as well as the order of the competent authority under Section 82 of the Code read in favour of the petitioner.
Learned counsel for the petitioner has placed reliance upon the following authorities in support of his submission:-
i. Mrs. Rekha Rani Vs. State of U.P. through Secretary, Revenue, Lucknow and others, 2019 (144) RD 20 ii. Additional Commissioner, Revenue and others Vs. Akhlaq Hussain and another 2020 (147) RD 199 iii. Sunita Agarwal Vs. State of U.P. and others 2018 (11) ADJ 116 iv. Smt. Kamini Singh Vs. State of U.P. through Principal Secretary, Revenue Lucknow and others 2021 (153) RD 253 He submits that once this Court, time and again, after relying upon the authorities of the Supreme Court has held that if there is no declaration of the land being abadi and the actual user of the land forming subject matter of the instrument is agricultural, the stamp duty treating the nature of land as abadi would be contrary to the provisions and the relevant rules. He, therefore, submits that once the order under Section 82 of the Code, 2006 was never challenged nor set aside in any proceedings, the record shall read in favour of the petitioner since the date of execution of the sale deed.
Learned Standing Counsel submits that if the arguments advanced on behalf of petitioner are treated to be correct, this Court should remand the case to the authority concerned for conducting spot inspection and then again decide the matter.
The Court is not impressed by the arguments advanced by the learned Standing Counsel for various reasons. Firstly, the stamp duty is levied with reference to the date on which the instrument in question is executed. Secondly, extracts of revenue record clearly depict existence of various crops and also the river as a source of irrigation, therefore, it will not be a proper case to direct reconsideration of the matter or conducting spot inspection etc. at this stage. Once, this Court is satisfied with the old as well as latest revenue records as well as the order of the competent authority and the Code, 2006 speak in favour of the petitioner and the law is well settled as discussed thoroughly by this Court as well as by the Apex Court in the aforesaid authorities, no fruitful purpose would be served in directing remand of the matter to the authorities concerned.
Consequently, the writ petition succeeds and is allowed and the impugned orders dated 24.11.2016 and 29.8.2017 are hereby set aside. Any amount deposited by the petitioner either during pendency of the appeal or in pursuance of the interim order granted by this Court, shall be refunded to him by moving appropriate application by the petitioner within a period of three months from today along with 6% simple interest from the date of such deposit till the date of its payment to the petitioner.
Order Date :- 23.3.2023 Anil K. Sharma