Allahabad High Court
Vikas Jain vs State Of U.P. And 2 Others on 5 August, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:125454 Court No. - 2 Case :- WRIT - C No. - 12543 of 2022 Petitioner :- Vikas Jain Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi Counsel for Respondent :- C.S.C. WITH Case :- WRIT - C No. - 22005 of 2022 Petitioner :- Gaurav Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi Counsel for Respondent :- C.S.C. Case :- WRIT - C No. - 22008 of 2022 Petitioner :- Amit Jain Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi Counsel for Respondent :- C.S.C. AND Case :- WRIT - C No. - 22040 of 2022 Petitioner :- Vikas Jain Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi Counsel for Respondent :- C.S.C. HON'BLE PIYUSH AGRAWAL,J.
1. Heard Shri Ashok Kumar Tripathi, learned counsel for the petitioner and Shri Rishi Kumar, learned ACSC for the State - respondents.
2. Since the issues involved in these writ petitions are similar, therefore, the same are being decided by the common order with the consent of learned counsel for the parties. Writ C No. 12543 of 2022 is taken as a leading case for deciding the controversy involved in these writ petitions.
Writ C No. 12543 of 20223. The instant writ petition has been filed challenging the impugned order dated 06.05.2019 passed by the Assistant Commissioner, Stamp, Agra as well as the impugned order dated 20.02.2020 passed by the Collector, Stamps, Agra.
4. Learned counsel for the petitioner submits that the land in question was acquired under section 4 of the Land Acquisition Act vide notification dated 30.01.1989 for "Taj Nagri Awasiya Yojna (2nd Phase)" followed by the notification under section 6 of the said Act dated 08.02.1990. He further submits that the possession of the land in question was taken and award under section 11 of the Land Acquisition Act was made on 05.11.2001. He further submits that the original tenure holders filed reference under section 18 of the Land Acquisition Act against the award and the matter was referred to for determination of the real value of the land in question before the court concerned. The case was registered as LA Case No. 143/2004.
5. The said tenure holders assigned share of their compensation right of the land in favour of the petitioner. Thereafter, on 04.10.2018, the assignment deed was executed in favour of the petitioner after paying requisite stamp duty. Thereafter, the petitioner moved an application for addition of his name as the co-claimant of LA Case No. 143/2004. On 01.05.2019, the Sub Registrar, Agra submitted the report treating the deed as a conveyance of immovable property under Article 23(a) of Schedule I-B of the Indian Stamp Act. Thereafter, vide impugned order dated 06.05.2019, the Assistant Commissioner, Stamps initiated the proceedings under section 47-A(3) of the Indian Stamp Act and issued the show cause notice dated 20.02.2020. Hence, this writ petition.
6. Learned counsel for the petitioner further submits that the provisions of section 47-A of the Stamp Act, read with Article 23(a) of Schedule I-B of the Indian Stamp Act are not applicable to the assignment deed of the compensation right and the said provision is machinery provision for dealing with the undervaluation of the instrument relating to immovable property and not for movable and intangible properties. He further submits that the impugned notice has been issued on the illegal assumption that the instrument dated 04.10.2018 pertains to "transfer of rights and interest in the immovable property", while the land in question vested absolutely in the Government, when its possession was taken by the Special Land Acquisition Officer and the land in question was acquired pursuant to the notifications. He further submits that the respondents misconstrued Article 23(a) of Schedule I-B of the Stamp Act by overlooking that it pertained to transfer relating to immovable property and they also ignored the provisions of Article 55, though Article 55 was applicable to the facts of the present matter in view of the law settled by this Court.
7. Learned counsel for the petitioner further submits that the issue in hand has already been decided by the Full Bench of this Court in the case of CCRA Vs. M/s Anti Biotic Project Virbhadra Rishikesh [1979 AIR (All.) 355]. He further submits that the deed in question was a deed of assignment of interest in the undetermined amount of monetary benefits pending consideration in reference under section 18 of the Land Acquisition Act and there was no conveyance or transfer of title or interest in the property which had already been acquired. In support of his submissions, he has placed reliance on the judgement of this Court in Prem Singh Vs. State of U.P. & Others [2013 (119) RD 557].
8. He further submits that once the issue has already been decided, the same cannot be re-agitated. He further submits that under section 47-A of the Stamp Act, the Collector has reason to believe that due stamp has not been paid and that reason should be cogent reason and not on surmises and conjectures for initiating the proceedings. He further submits that once this Court has decided the issue in hand that the assignment deed cannot be treated as conveyance, the issuance of notice is bad in law. In support of his submission, he has placed reliance on Anupam Infrastructures & Land Development (P) Limited Vs. State of U.P. & Others [2010 (10) ADJ 358]. He prays for allowing the writ petition.
9. Per contra, learned ACSC supports the impugned order.
10. After hearing learned counsel for the parties, the Court has perused the record.
11. It is not in dispute that the land in question was acquired by the State under the provisions of Land Acquisition Act after issuance of due notifications and the possession of the land was taken. It is also not in dispute that the original tenure holders, not being satisfied with the award, instituted LA Case No. 143/2004 for determination of real value of the land by the Court. During the pendency of the said proceeding, the assignment deed was executed in favour of the petitioner, which was duly stamped and registered.
12. The Division Bench of this Court in Anupam Infrastructures & Land Development (P) Limited (supra) has held as under:-
"14. The issue of maintainability of a writ petition where "reason to believe" does not exist, has been dealt with and explained in a catena of decisions by the Hon'ble Supreme Court and this Court on several occasions. It has been in the context of Section 147 of the Income-tax, 1961 also, where this controversy of the existence or otherwise of the "reason to believe" often arose. The provisions of Section 147 of the Income Tax Act are in fact in pari materia to Sectiion 47-A(3) of the Stamp Act and, therefore, the case law evolved in context with Section 147 of the Income Tax Act also stands attracted and applicable to ascertain the true connotation and import of the term the "reason to believe", as employed in sub-section (3) of Setion 47-A of the Stamp Act.
16. This Court, while specifically dealing with Section 47-A of the Stamp Act in the case of Vijay Kumar & anr. v. Commissioner, Meerut Division & ors., 2008 (5) ALJ 261, also succinctly held that "The sine qua non for invoking the provisions of Section 47-A(3) of the Act is that the Collector has reason to believe that the stamp duty has not been properly set forth in the instrument as per market value of the property. Once the instrument is registered and the stamp duty as prescribed by the Collector has been paid, the burden to prove that the market value is more than the minimum as prescribed by the Collector under the rules, is upon the Collector. The report of the Sub-Registrar or Tehsildar itself is not sufficient to discharge that burden Reference can be made to a Division Bench judgment of this Court in Kaka Singh v. the Additional Collector and District Magistrate (Finance and Revenue) Bulandshahar & anr., 1986 ALJ 49." Similar view was also taken in Duncuns Industries Ltd. v. State of UP, 1998 (89) RD 284.
17. In view of the above settled legal scenario, it cannot be gainsaid that a writ petition under Article 226 of the Constitution lies to challenge a jurisdictional notice issued by the stamp authorities under Section 47-A(3) of the Stamp Act, if the same has been issued without the fulfillment of the pre-requisite, namely, the existence "reason to believe" that the market value of the demised property has not been truly set forth in the instrument in question. Such "reason to believe" should not be an eyewash but must be based on tangible, relevant and legally admissible evidence. It should be a belief of an honest and reasonable person who is properly instructed on facts and law. There must also be an intelligible nexus between the 'reason' and the 'belief'. Such belief should not be a substitute for roving enquiries because the term the "reason to believe" is much stronger, designedly employed by the legislature in place of the "reason to suspect". Even in a case where there are reasons to doubt or suspect about the truthfulness of the market value depicted in the instrument of sale, the proceedings under sub-section (3) of Section 47-A cannot be initiated by the stamp authorities as the "doubts" or "suspicions" can never be a substitute of a "reasonable belief" as contemplated by the law-makers.
18. In the above legal backdrop, the significant question now arises for consideration is ? whether while issuing the impugned three notices dated 12.09.2002 in both of the writ petitions, the Additional Collector had the "reason to believe that the market value of such property has not been truly set forth" in the instruments of sale. Indisputably, the only material before the Additional Collector before issuing the impugned notices was the inspection reports with unsubstantiated averments and no other material whatsoever was before him.
19. It the above context, it may also be noted that the Collector, Agra himself issued the rate-list of the various localities, which was brought into force w.e.f. 01.04.2002. Such rate-list was prepared and put into force in exercise of the powers conferred upon the Collector under the provisions of Section 47-A of the Stamp Act read with the Valuation Rules which came into force on 08.07.1997. The provisions of Rule 4(1) of the Valuation Rules enjoined the Collector to fix the minimum values after definitely taking into account the various factors as enumerated therein, which read as under:
"4. Fixation of minimum rate for valuation of land, construction value of non-commercial building and minimum rate of rent of commercial building.?(1) The Collector of the district shall biennially, as far as possible in the month of August, fix the minimum value per acre /per square metre of land, the minimum value per square metre of construction of non-commercial building and the minimum monthly rent per square meter of commercial building situated in different parts of the district taking into consideration the following facts:
1.in case of land?
i.classification of soil.
ii.Availability of irrigation facility, iii.Proximity to road, market, bus station, railway station factories, hospitals and government offices, and iv.Location with reference to its situation in urban area, semi-urban area or country side."
13. Further, the Full Bench of this Court in M/s Anti Biotic Project Virbhadra Rishikesh [1979 AIR (All.) 355] (supra), which has been followed by the Division Bench of this Court in Prem Singh (supra), has held as under:-
"9. Next comes the question whether the instrument could be considered to be a "conveyance." The term "conveyance" has been defined in Section 2(10) of the Stamp Act as under: -
"Conveyance -- "Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable is transferred inter vivos and which is not otherwise specifically provided for by Schedule I, Schedule I-A or Schedule I-B, as the case may be".
This term denotes an instrument in writing by which some title or interest is transferred from one person to another. It would appear from this definition that an actual transfer of property is an essential feature of a "conveyance". Consequently, an agreement to transfer property in the future cannot be treated as a conveyance.
11. Emphasis may be laid at this place on the words "on sale" and "is transferred" used in the definition of the word 'conveyance'. These words are significant. They denote that the document itself should create or vest a complete title in the subject matter of the transfer in the vendee. If, therefore, there is no transfer, the requirement of conveyance or sale could not be said to be satisfied. A perusal of the various clauses of the instrument would show that no transfer of water took place under it. Parties had simply agreed to sell and purchase water in the future. Even the amount which was payable by the Company was not stated in this document. The quantum of the liability depended on a future contingency. ....."
14. Therefore, from a reading of the Article 55 and applying the ratio of the Full Bench to the facts of the present case, it will be seen that the deed in question was a deed of assignment of interest in the undetermined amount of monetary benefits pending consideration in reference under section 18 of the Land Acquisition Act. There was no conveyance or transfer of title or interest in the property, which had already been acquired.
15. In the light of the foregoing discussions as well as the law laid down by this Court, as stated above, the impugned orders in the instant writ petition as well as in the connected writ petitions cannot be sustained in the eyes of law. The same are hereby quashed.
16. The writ petitions succeed and are, accordingly, allowed.
Order Date :- 05/08/2024 Amit Mishra