Allahabad High Court
Shailendra Son Of Om Prakash And Ors. vs The Chief Controlling Revenue ... on 14 July, 2006
Equivalent citations: 2006(4)AWC3665, AIR 2007 (NOC) 175 (ALL.) = 2006 (6) ALJ 54, 2006 (6) ALL LJ 54, 2006 A I H C 3807, (2006) 101 REVDEC 476, (2006) 4 ALL WC 3665, 2006 ALL CJ 3 1947
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition, petitioner has challenged the order dated 17.03,2004 passed in revision No. 1121 of 2003 by Chief Controlling Revenue Authority/Commissioner, Agra Division, Agra filed against the order dated 1106.2003 passed by Deputy Commissioner (Stamps), Agra Division, Agra.
2. The brief facts giving rise to the present writ petition are that the petitioners purchased plot No. 317/5/1 area 1 Bigha 5 Biswa and 7 Biswansi situated in village Hyatwasan, Pargana, Tehsil and district Agra for Rs. 10 lacs and on the valuation of Rs. 10,47,000/- paid the stamp duty at Rs. 1,04,700/-. The sale deed was registered on 03.11.2000. The valuation of the land in dispute was made on the basis of the circle rate fixed by the District Magistrate for the agriculture land @ Rs. 35 lacs per hect. It appears that the Additional District Magistrate (Finance and Revenue) made a survey on 25.01.2003 and submitted a report stating therein that the land was abadi land, in which plots have been carved out and the construction was being going on for residential purpose. He valued the whole of the land @ Rs. 1400/- sq. mtr., the valuation fixed by the District Magistrate for residential land of that area and accordingly, total valuation was fixed as abadi land at Rs.41,00,600/- on which stamp duty has been calculated at Rs. 4,10,100/- and the deficiency of Rs. 3,05,400/- has been worked out. On the basis of the report given by Additional District Magistrate (Finance and Revenue) case No. 55/2003-04 has been registered. In the aforesaid case, petitioners have been given opportunity to show cause as to why the demand for the deficient stamp duty may not be raised and why the penalty may not be levied. Petitioners tiled the reply stating therein that the property in dispute was the agriculture land for which khasra No. 317/5/1 was filed. It was stated that the said land was registered in the revenue record as agriculture land and in khataum for Fasli 1406 to 1410 the names of Shailendra Kumar and Narendra Kumar were entered as bhumidhars and as per the kliasra Fasli 1406 land was entered as a banjar land and thus on the date of the sale, it was the agriculture land and not the abadi land. It was further stated that the date of sale is relevant and the position of the land after the sale is not relevant. It was submitted that the survey was made on 25.01.2003 and the facts stated at the time of survey relates to year 2003 and thus is wholly irrelevant for the purpose of determination of the land on the date of sale. Commissioner Stamps stated that on the request of the petitioner he himself made the spot inspection of the plots. He found that the land in dispute is situated behind Kamla Nagar inside the Mughal Road and its approach road is through private plot. In several plots construction was going on Commissioner Stamps has agreed to the submissions of the petitioners that the subsequent construction on the land is not the relevant but he observed that it was not acceptable that on the date of sale, the land was used as an agriculture land. He observed that in Mauja Ghatsavan, which falls under the Nagar Nigam Agra in khasra Fasli 1406, said land was entered as abadi land and surrounding to the land recorded at one side Awadhesh Puri Colony and on other side Bhopal Kunj Colony are present and thus it can not be believed that on the date of purchase the land was useable as agriculture land Deputy Commissioner Stamps accordingly, upheld the valuation of the land at Rs. 41,00,600/- and the deficiency of the stamp at Rs. 3,05,400/- He has also imposed a sum of Rs. 10,000/- towards penalty. Against the order of the Deputy Commissioner, Agra petitioners filed revision before the Commissioner Agra Division, Agra. Commissioner Agra Division, Agra by the impugned order dated 17.03.2004 has rejected the revision.
3. Heard learned Counsel for the parties.
4. Learned Counsel for the petitioner submitted that as per khasra land in dispute was entered as agriculture land and in khasra also on the date of sale it was entered as agriculture land and in the Fasli 1406 it was shown as banjar land. He further submitted that the levy of penalty at Rs. 10,000/- is wholly without jurisdiction in as much as the Deputy Commissioner has No. jurisdiction to levy the penalty as held by the Full Bench decision of this Court in the case of Girijesh Kumar Srivastava and Anr. v. State of U.P. and Ors. reported in 1998 (1) A.W.C. 403 Learned Standing Counsel submitted that the submission of learned Counsel for the petitioners has no force. He submitted that the petitioners fail to prove that even on the date of sale, land in dispute was entered as agriculture land. He submitted that in the order of the Deputy Commissioner and in the order of the Divisional Commissioner it is slated that in the khasra for the year 1406 to 1407 land in dispute was not found in the nature of agriculture land and it was entered as abadi land. It was further submitted that surrounding to the land in dispute, there were developed residential colonies in which the residential houses were built and even in the land in dispute subsequently, plotting was done and the residential houses have been constructed and. therefore, the valuation of the land in dispute has rightly been made treating as abadi land and not agriculture land
5. I do not find any substance in the argument of learned Counsel for the petitioner so far as valuation of land in dispute is concerned. It is true that the nature of land on the date of sale has to be seen. Both the authorities namely, Deputy Commissioner and Divisional Commissioner on the basis of revenue record, recorded the finding that in the khasra for the Fasli year 1406 to 1407 land in dispute was shown as abadi land and not as banzar or agriculture land Thus, the valuation of land in dispute treating it as abadi land can not be said to be illegal or erroneous.
6. In the case of Girijesh Kumar Srivastava and Anr. v. State of U.P. and Ors. (Supra) the full Bench of this Court held that while exercising powers under Sub-section (4) of Section 47A of the Act, the Collector can determine the market value of the property and the duty payable on the instrument as a result of such determination but he has no power to impose penalty.
7. Respectfully following the Full Bench decision, the penalty levied in the present case is liable to be set aside.
8. In the result, writ petition is allowed in part. The order of the Deputy Commissioner and Commissioner so far as it relates to the valuation and determination of the (sic) land in dispute and the demand of stamp duty is upheld. However, the penalty levied at Rs. 10,000/- is deleted.