Allahabad High Court
Ram Vishal And Another vs State Of U.P. And 2 Others on 11 September, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:148801 Court No. - 2 Case :- WRIT - C No. - 13934 of 2019 Petitioner :- Ram Vishal And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajay Vikram Yadav,Satya Prakash Bharti Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the petitioner and learned ACSC for the State - respondents.
2. The instant writ petition has been filed assailing the impugned order dated 26.9.2018 passed by the respondent no. 2 as well as the order dated 28.4.2018 passed by the respondent no. 3 in the proceeding under Section 47 A/ 33 of the Stamp Act.
3. Learned counsel for the petitioner submits that vide registered sale deed dated 26.4.2013 the petitioner purchased agricultural land after paying requisite stamp duty in accordance with the prevalent circle rate. He submits that some complaint was made in pursuance thereof a report was submitted by the Sub Divisional Officer and thereafter the proceedings under the Stamp Act was initiated in which an ex parte order dated 30.11.2016 was passed by the Collector holding deficiency of stamp. Thereafter the petitioner has filed a recall application in which the order dated 30.11.2016 was recalled and the petitioner was given opportunity to file objection, however, respondent no. 3 without making any spot inspection as well as without considering the objection of the petitioner has passed the impugned order dated 28.4.2018 only relying on the report of Lekhpal. Feeling aggrieved to the aforesaid, the petitioner has challenged the said order in appeal, which was also dismissed in an arbitrary manner without considering the matter in proper perspective.
4. Learned counsel for the petitioner submits that at the time of execution of the sale deed, the land in question was agricultural land and no other activity, except the agriculture was going on, over the property in question. He further submits that the respondent authority was required to make spot inspection in accordance with Rule 7 (3) (c) of UP Stamp (Valuation of Property) Rules 1997 but no spot inspection was made in the presence of the petitioner though the petitioner has requested for the same. He further submits that the said specific ground is also taken in the ground of appeal as ground no. 6 and 7, copy of which has been annexed as Annexure No. 7 to the writ petition but the appellate authority has not considered the same while passing the impugned order. He submits that land in question was an agricultural land prior to its purchase or at the time of execution of sale deed and no contrary material was brought on record except the report dated 20.6.2016 on the basis of which the impugned order has been passed. He further submits that the character of the land cannot be the basis of its future potential, as such, the impugned orders are bad and liable to be quashed.
5. He further submits that no declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 has been made declaring the land in dispute as non-agricultural land at the time of execution of the sale deed. He further submits that said ground is taken in para 21 of this writ petition, which has not been disputed by the respondent authority in the counter affidavit.
6. In support of his submissions, he has placed reliance on the judgements of this Court in Jagroop Singh Vs. State of U.P. & 2 Others [Writ C No. 20752/2015 decided on 15.07.2024], M/s Uttaranchal Automobiles Pvt. Ltd. Vs. CCRA & Others [Writ C No. 12727/2012, decided on 06.03.2024] and Charan Singh Vs. State of U.P. & 3 Others [Writ C No. 58674/2014, decided on 29.05.2024].
7. Per contra, learned ACSC supports the impugned orders and submits that the petitioner's land was non agricultural property but the same was wrongly described as agricultural land and therefore, the proceedings have rightly been initiated against the petitioner.
8. After hearing learned counsel for the parties, the Court has perused the record.
9. It is not in dispute that the property was purchased in the year 2013 and impugned orders indicates that compliance of Rule 7(3) (c) of the Rules has not been made. The proceedings under section 47-A of the Stamp Act were initiated on the basis of inspection report submitted by the Lekhpal. Specific objection was raised by the petitioner that no declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act has been made in respect of the land in question at the time of execution of the sale deed, but the same has not been considered by the authorities below. This Court in Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511] has held as under:
14. Having heard the learned counsel for the parties, I find that non-declaration of land as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. The contention of the State to the effect that the said non-declaration is not relevant in the proceedings under the Indian Stamp Act cannot be accepted for the reason that in exercise of statutory powers under the Indian Stamp Act, as applicable in the State of U.P., Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 have been framed. Rule 3(1)(a) of the Rules, provide as follows:
"Facts to be set forth in an instrument.-In case of an instrument relating to immovable property chargeable with an ad valorem duty, the following particulars shall also be fully and truly stated in the instrument in addition to the market value of the property-
(1) In case of land-
(a) included in the holding of a tenure-holder, as defined in the law relating to land tenures-
(i) the Khasra number and area of each plot forming part of the subject-matter of the instrument;
(ii) whether irrigated or unirrigated and if irrigated, the source of irrigation;
(iii) if under cultivation whether do-fasali or otherwise;
(iv) land revenue or rent whether exempted or not and payable by such tenure-holder;
(v) classification of soil, supported in case of instruments exceeding twenty thousand rupees in value, by the certified copies, or extracts from the relevant revenue records issued in accordance with law;
(vi) location (whether lies in an urban area, semi-urban area, or countryside); and
(vii) minimum value fixed by the Collector of the district."
15. Admittedly, on the date of execution of the sale deed, the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950 were applicable. The definition of "land" as contained under section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows:
(14) "Land"[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, hoticulture or animal husbandry which includes pisciculture and poultry farming;
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.
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19. The observations/findings recorded in the orders impugned are also contrary to principles of burden of proof particularly, in a case where proceedings arise out of a fiscal statute. Once the State was proceeding to impose deficient stamp duty upon the petitioner, the entire burden lay upon the State to establish beyond reasonable doubt that the petitioner made some concealment at the time of getting the sale deed executed in his favour or that within a close proximity of dates, the user of the land in dispute was changed so as to levy additional stamp duty. Nothing to this effect has been brought on record, rather, not only the findings recorded in the orders impugned are contrary to the provisions of the Indian Stamp Act, 1899, as applicable in the State of U.P. as well as U.P. Stamp (Valuation of Property) Rules, 1997, but certainly contrary to the law consistently laid down by this Court.
10. Both the authorities below have failed to consider that no declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act has been made in respect of the land in question at the time of execution of the sale deed.
11.Further, this Court in the case of Jagroop Singh Vs. State of U.P. & 2 Others [Writ C No. 20752/2015 decided on 15.07.2024] has held that in absence of compliance of rule 7(3)(c) of the Rules, the impugned order cannot be justified. The relevant paragraphs are quoted below:-
"7. It is admitted that the sale deed of the vacant plot was executed on 20.10.2012 in favour of the petitioner and on the basis of exparte report, the proceedings were initiated against the petitioner and in pursuance thereof notice was issued but the Collector has not visited the site in question in accordance with Rule 7 (3) (c) of the Rules. Even the respondent authority up to the stage of this Court could show any material in order to justify that prior to initiation of the proceedings, Section 7 (3) (c) of the Rules was complied with in letter and spirit.
8. This Court in the case of Ajay Agrawal (supra) has held as under:-
9. Nonetheless, in view of submissions advanced by learned State counsel, the question arising for determination would be whether compliance of Rule 7(3)(c) is required in proceedings under Section 47(A)(1) as well as under section 47 A(3) of the Act? Here it is also relevant to indicate that both the orders impugned in present writ petition are based only on the aforesaid spot inspection report, which admittedly was ex parte in nature.
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14. It is quite discernible that the starting provision of Rule 7 itself indicates the applicability of the Rule to the extent that on receipt of a reference or where action is proposed to be taken suo motu under section 47 A the Collector shall issue notice to parties to the instrument to show-cause. A reading of the aforesaid provision makes it evident that no distinction whatsoever has been carved out under Rule 7 of the Rules of 1997 with regard to procedure being required to be followed under section 47 A. On the contrary, it specifically indicates that the aforesaid Rule is required to be followed even in case suo motu action is taken under section 47 A of the Act, which in effect pertains to Section 47 A(3) of the Act of 1899 with regard to determination of stamp duty after registration of a document of instrument of transfer. As such no such distinction having been carved out under Rule 7, it is not feasible to accede to the submissions of learned State counsel that Rule 7 (3)(c) of the Rules would not be applicable in case of proceeding under section 47 A( 3) of the Act.
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20. In view of aforesaid, it is evident that the power to be exercised by Collector under section 47A (3) of the Act is not pedantic in nature but is required to be made on the basis of observations made hereinabove particularly with regard to the fact that he is required to apply his mind and record subjective satisfaction not only with regard to under valuation of the instrument of transfer but also to record a separate satisfaction regarding market value of the property and the duty payable thereupon and cannot place reliance only on the spot inspection report.
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22. Upon applicability of aforesaid in the present case, it is evident from a reading of the impugned orders that the same are based only on the spot inspection report and no subjective satisfaction at all has been recorded by the authority either under section 47 A or under section 56 of the Act as required to be done as per observation is made hereinabove.
9. Again this Court in the case of Satendra and another (supra) has held as under:-
11. On a pointed query being made to the learned Standing Counsel as to whether there was any further inquiry after the inquiry was initially held in the form of spot inspection, learned Standing Counsel could not point out either from the record or pleadings of the counter affidavit that any further inquiry was held as contemplated under the Rule 7 of the Rules.
12. This Court notices that after the notices were issued and the Collector had fixed date inviting objections, the Collector failed to fix any further date for spot inspection or for any further oral or documentary evidence and therefore, it cannot be said that the Collector at all undertook any effort to act in accordance with the procedure prescribed in the matter. The conclusion drawn therefore, is devoid of any cogent and convincing material in support there of and the findings therefore, are liable to be held as perverse. The said rule which has been quoted herein above, has also drawn attention of Full Bench in Smt. Pushpa Sarin v. State of U.P. 2015 (127) RD 855. However, the Full Bench did not delve into the issue any further regarding the scope and applicability of the Rules because the period which was in dispute under the reference was prior to the rule coming into force. Para 18 of the judgment of Full Bench runs as under:
"18. Subsequently, the provisions of the Stamp Rules in regard to valuation were replaced by the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 which have been made in exercise of the powers conferred by sections 27, 47-A and 75 of the Stamp Act. However, it is not necessary for the Court to express any view on the scheme or provisions of those rules since the period of dispute in the present reference is prior to the enforcement of those rules."
10. In view of above, the writ petition is allowed. The impugned orders dated 23.2.2015 and 20.8.2013 are hereby quashed."
12. It is not the case of the respondents that any fresh inspection as requested by the petitioner was made prior to passing of the impugned order in compliance of rule 7(3)(c) of the Rules, therefore the impugned orders are not justified.
13. In view of the facts and circumstances of the case as well as the law laid down by this Court, impugned order dated 26.9.2018 passed by the respondent no. 2 as well as the order dated 28.4.2018 passed by the respondent no. 3 cannot be sustained in the eyes of law and same are hereby quashed.
14. The writ petition succeeds and is allowed.
15. The authority concerned is directed to refund any amount deposited by the petitioner either pursuant to the impugned orders or in pursuance of the direction made by this Court, along with interest @ 4% per annum from the date of its deposit till the date of refund, within a period of one month from the date of production of a certified copy of this order.
Order Date :- 11.9.2024 Rahul Dwivedi/-