Allahabad High Court
Smt. Pooja Singhal And Others vs State Of U.P. And Others on 4 October, 2023
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:189776 RESERVED Court No. - 5 Case :- WRIT - C No. - 20500 of 2009 Petitioner :- Smt. Pooja Singhal And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- Ravi Anand Agarwal,Shreya Gupta Counsel for Respondent :- C.S.C. HON'BLE PIYUSH AGRAWAL,J.
1. Heard Shri Ravi Anand Agarwal, learned counsel for the petitioners and Shri Rishabh Agrawal, learned Standing Counsel for the State - respondents.
2. The instant writ petition has been filed against the impugned order dated 26.11.2008 passed by the Additional Collector (Finance & Revenue), Ghaziabad imposing deficiency of stamp duty amounting to Rs. 09,10,000/-, together with penalty amounting to Rs. 2 lacs and the order 16.03.2009 passed by the Commissioner, Meerut Division, Meerut.
3. The brief facts of the case are that vide registered sale deed dated 11.12.2016, the petitioners purchased the land in question for agricultural purposes. Thereafter, the petitioners names have been mutated in the revenue records. On 02.07.2008 a notice was issued under section 47-A of the Indian Stamp Act in respect of 2/3rd share of khasra no. 352 area 0.8100 hectare, in which the petitioners filed their objection. Thereafter, vide impugned order dated 26.11.2008, the respondent no. 2 imposed deficiency of stamp duty amounting to Rs. 09,10,000/-, together with penalty amounting to Rs. 2 lacs. Feeling aggrieved by the order dated 26.11.2008, the petitioners preferred appeal before the Commissioner, Meerut Division, Meerut, which was partly allowed vide order dated 16.03.2009. Hence, the present writ petition.
4. Learned counsel for the petitioners submits that the court below, vide order dated 31.03.2008 passed in Suit No. 565/2007-08 (State of U.P. Vs. Smt. Nikki Goel), directed for determination of market value covered by the sale deed dated 11.12.2006. In support of the contention, Smt. Nikki Goel filed the copy of the sale deed executed in favour of the petitioner and being not satisfied in that proceeding, the court determined the deficiency against Smt. Nikki Goel and also made passing remark for initiation of proceedings under section 47-A of the Indian Stamp Act against the petitioner and at the behest of the said observation/remark, notice was issued against the petitioner without annexing the copy of the report of the Tehsildar. The petitioner submitted reply to the show cause notice stating therein that the plot in question was purchased and used for agricultural purposes.
5. He further submits that the copy of the report of the Tehsildar, which was ex parte report, was never supplied to the petitioner and the impugned orders have been passed on the basis of the said report of the Tehsildar, which was submitted in respect of other plots situated in the locality, but no such report was submitted regarding the plot purchased by the petitioner. He further submits that the petitioners have filed objection with supporting documentary evidence categorically mentioning that the land in question was purchased as agriculture land and is being used for agricultural purposes. He further submits that once an objection to the report was made by the petitioners, it was the duty of the District Magistrate to inspect the property personally or through its authorized representative. He further submits that on the basis of the report, the Collector has not exercised his power under rule 7(3)(c) of the Rules framed under the Indian Stamp Act. In support of his contention, he has placed reliance on the judgements of this Court in Ajay Agarwal & others Vs. Commission, Lucknow & Others [2023 (2) ADJ 561], Vineet Mittal Vs. State of U.P. & Others [2018 (141) RD 171] and Deo Prakash Maurya Vs. State of U.P. & Others [2021 (9) ADJ 451]. He further submits that there was no evidence with regard to construction activity, but the respondents - authorities, without considering the aforesaid documentary evidence, passed the impugned orders only on the basis of the presumption and assumption. He further submits that the sale deed was executed on 11.12.2006; whereas, the report was prepared on 11.01.2008, much after the execution of the sale deed. He further submits that the proceeding under section 47-A of the Indian Stamp Act has to be taken at the relevant time, i.e., at the time of execution of the sale deed. In support of his contention, he has placed reliance on the judgement of this Court in M/s Indo Continental Hotels & Resorts Private Limited Vs. State of U.P. & others [Writ C No. 51205/2010, decided on 04.09.2023].
6. Learned counsel for the petitioners further submits that at the time of execution of the sale deed and thereafter, the land has been used for agricultural purposes and the future potential of the land cannot be the determined factor that too after expiry of two years on the basis of the report of the Tehsildar dated 11.01.2008. In support of his submission, he has placed reliance on the judgement in Pushpa Sareen Vs. State of U.P. [2015 AIR All. 83]. He further submits that the land in question was used for agricultural purposes and is still being used for agricultural purposes. In this regard, supporting documentary evidence was also brought on record, but the authorities below have not considered the same and in absence of declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, the land cannot be treated as industrial land and and there is no mens-rea on the part of the petitioners, which is essential for imposing penalty as has been held by this Court in Raj Kumar Vs. State of U.P. & 2 Others [Writ C No. 19644/2016, decided on 13.04.2023], Varun Goyal Vs. State of U.P. & Others [2015 (2) ADJ 311] and Sushila Verma Vs. State of U.P. & Others [2006 (1) RD 173].
7. He further submits that even assuming without admitting that the land is adjacent to industrial unit and situated near the road, the same cannot be said to be non-agricultural land as has been held by this Hon'ble Court in Sudama Vs. CCRA & Others [2012 (10) ADJ 523]. He prays for allowing the writ petition.
8. Per contra, learned Standing Counsel supports and impugned orders and submits that the proceedings have rightly been initiated against the petitioner on the basis of the report of the Tehsildar, wherein, the land in question was adjacent to the industrial units and therefore, the land in question was an industrial land, which has wrongly been shown as agricultural land. He further submits that even in the absence of notification being issued under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, the land can be treated as industrial land in view of the fact that adjacent to the land of the petitioner, industries are being operating. He further submits that once a report has been submitted by the Tehsildar stating therein that the land in question is an industrial land, which has wrongly been shown as agricultural land and the Collector did not exercise power under rule 7(3)(c) of the Rules framed under the Indian Stamp Act by visiting the site, the proceedings cannot be said to be vitiated as has been held by this Court in State of U.P. Vs. Santosh Kumar Pandey & Another [(2018) 141 RD 160]. He prays for dismissal of the writ petition.
9. Heard learned counsel for the parties and perused the records.
10. Pursuant to the order of this Court, the original record has been produced by the learned Standing Counsel for perusal of this Court.
11. Perusal of the record reveals that the report has been prepared on 11.01.2008 and the copy of the said report was never supplied to the petitioner. It is not in dispute that the record does not show that the Collector has ever visited the site personally as required under the provisions of the Indian Stamp Act and the Rules framed thereunder. The record further reveals that the Collector has not recorded his own finding of deficiency of stamp duty before proceeding after obtaining the report from the Tehsildar. Only a notice has been issued. The report further shows that an assertion has been made that two industries are shown to be adjacent to the plot in question, but it does not specifically states as to whether the industries were running at the time of execution of the sale deed dated 11.12.2006 or not. The report further does not reflect that when the industries, as mentioned in the report, were established. It is also not in dispute that the said report was prepared in the matter of Smt. Nikki Goel on the direction of the court below for determining the market value of the land in question.
12. The record further reveals that specific point was raised before the court below by the petitioners that the proceedings have been initiated against them ex parte, as neither the report, nor any material were provided to them on the basis of which stamp deficiency has been determined. The proceeding has been initiated against the petitioners on the basis of the ex parte report of the Tehsildar. The decision of the court below cannot be relied upon on the basis of the report unless & until the Collector has made the inspection himself or through a person authorized by him and therefore, the proceedings initiated under section 47-A of the Indian Stamp Act are illegal and against law. Once the petitioners raised objection to the report of the Tehsildar, the Collector ought to have exercised its power as provided under Rule 7 of the Rules. The Collector has not exercised his power under rule 7(3)(c) of the Rules framed under the Indian Stamp Act. Reference may be had to the judgements of this Court in Ajay Agarwal & others (supra), Vineet Mittal (supra) and Deo Prakash Maurya (supra).
13. Further, the report was prepared on 11.01.2008; whereas, the sale deed was executed on 11.12.2006. This Court in Pushpa Sareen (supra) and M/s Indo Continental Hotels & Resorts Private Limited (supra) has held that the date of purchase will be the relevant and the future potential cannot be looked into, as in the case in hand, the report dated 11.01.2008 shows some industrial activities adjacent to the plot in question, but the report is silent as to whether the industries were in running/set-up/established on the date of execution of the sale deed.
14. It is not the case of the State - respondents that the land in question has been declared as industrial; whereas, the petitioners have brought on record materials to show that at the time of execution of the sale deed and thereafter, the land in question was being used for agricultural purposes. Further, no material has been brought on record to show that land in question has been declared under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 as industrial. In support thereof, relevant documents were produced, but without rebutting the same, the impugned orders have been passed. This Court in the cases of Raj Kumar (supra) and Varun Goyal (supra) has held that in absence of declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, 1950, the land cannot be treated as industrial land.
15. In view of the facts & circumstances stated above as well as the law laid down by this Court, the impugned orders cannot be sustained in the eyes of law.
16. The writ petition succeeds and is allowed.
17. The impugned order dated 26.11.2008 passed by the Additional Collector (Finance & Revenue), Ghaziabad and the order 16.03.2009 passed by the Commissioner, Meerut Division, Meerut are hereby quashed.
18. It is provided that any amount deposited by the petitioners pursuant to the impugned order shall be refunded to the petitioners within a period of 15 days from the date of production of a certified copy of this Court before the respondent no. 2.
19. In the event the amount is not returned to the petitioners within the aforesaid period, the petitioners would be entitled to interest @ 6% per annum from the date of deposit till the date of actual payment, which shall not be bear by the State exchequer and the same shall be recovered from the erring Officer concerned.
20. In that regard, let a compliance affidavit be filed before the Registrar General of this Court within a period of two months from today.
21. The original records supplied by the learned Standing Counsel shall be returned to the learned Standing Counsel within two days from today.
Order Date :-04/10/2023 Amit Mishra