Allahabad High Court
Nihaluddin vs Chief Controlling Revenue Authority ... on 11 December, 2024
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:193893 Court No. - 2 Case :- WRIT - C No. - 35195 of 2023 Petitioner :- Nihaluddin Respondent :- Chief Controlling Revenue Authority And 2 Others Counsel for Petitioner :- Himanshu Pandey,Vinod Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the petitioner and Sri A.C. Mishra, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of instant writ petition, the following prayer has been made: -
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 26.06.2023 (Annexure No.9) to the writ petition) and 06.02.2023 (Annexure No.8 to the writ petition) so passed by the respondents no.1 & 2 respectively.
(ii) Issue an appropriate writ, order or direction of adequate nature holding the amount of stamp duty paid by the petitioner as sufficient.
(iii) ........
(iv) ........"
3. Learned counsel for the petitioner submits that the petitioner purchased an agricultural land which falls under the land earmarked as segment, vide sale deed dated 15.06.2022 after paying the requisite stamp duty thereof. Thereafter, on the basis of alleged spot inspection report, the proceedings under Section 47-A of the Indian Stamp Act were initiated against the petitioner and the notice was issued to the petitioner. To which the petitioner submitted his reply/objection duly supported by an affidavit along with extract of the Khasra and Khatauni of the property in dispute, showing therein that the property in question was regularly under cultivation. Not being satisfied with the said objection, District Collector (Stamp)/District Magistrate, Basti passed an order dated 06.02.2023 by treating the land in question to be a residential land, holding the deficiency of stamp duty amounting to Rs.22,79,500/- along with interest @ 1.5 % per month from the date of execution of sale deed as deficiency of stamp duty and Rs. 2,00,000/- as penalty as well as Rs. 3,25,650/- as less registration fee. Against the said order impugned, appeal was filed by the petitioner, which was dismissed vide order dated 26.06.2023. Hence, the present writ petition.
4. Learned counsel for the petitioner submits that at the time of execution of the sale deed, the plot in question was agricultural land no commercial activity was going on. He further submits that no notice was served upon the petitioner before the spot inspection.
5. He further submits that in the grounds of appeal, a specific plea has been raised about non-compliance of rule 7(3)(c) of the Rules framed under the Stamp Act, but without considering the same, the impugned order has been passed, the said fact has specifically been mentioned in paragraph nos. 28 & 29 of the present writ petition, which has not been denied in paragraph no. 19 of the counter affidavit filed on behalf of the State. He next submits that no proceedings whatsoever were undertaken for declaration of the plots in question as an abadi land as required under Section 143 of UPZA & LR Act, 1950. He further submits that specific grounds were also taken in paragraph nos. 14 & 15 of the writ petition, which has not been denied in paragraph nos. 12 & 13 of the counter affidavit.
6. Per contra, learned Additional Chief Standing Counsel supports the impugned orders.
7. After hearing the parties, the Court has perused the records.
8. The property was purchased by the petitioner after paying the requisite stamp duty thereof, but thereafter, on the basis of ex parte spot inspection, the proceedings under section 47-A of the Stamp Act were initiated, but in spite of the specific ground having been taken in the memo of appeal with regard to non-compliance of rule 7(3)(c) of the Rules framed under the Stamp Act, no finding was recorded with regard to the same. The petitioner has also taken the same grounds in the writ petition as mentioned above, which has not been denied in the counter affidavit filed on behalf of the State.
9. Furthermore, the record shows that no proceedings whatsoever were undertaken for declaration of the plots in question as an abadi land as required under Section 143 of UPZA & LR Act, 1950.
10. The issue in hand is no longer res-integra as this Court in the case of Writ- C No. 19644 of 2016 (Raj Kumar Vs. State of U.P. and 2 others) in para no. 16 & 20 has held as under:-
"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.
20. Insofar as the imposing four times penalty is concerned, it is well settled that unless "mens rea" is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor vs Additional Collector (Finance & Revenue), Ghaziabad and others, reported in 2008 (72) ALR 125, where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale deed executed. Even the annexures to the writ petition disclosing the nature of land have not been disputed by the State in the counter affidavit. I also find that the sale deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land."
11. In view of the fact that once the proceedings under Section 143 of UPZA & LR Act have not been undertaken or otherwise and also looking to the fact that the Rule 7 (3) (C) has not been complied with and in the light of settled proposition of law in the aforequoted judgmetns, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.
12. Accordingly, the writ petition is allowed.
13. Any amount deposited by the petitioner pursuant to the impugned orders, shall be refunded to the petitioner along with interest @ 4 % per annum within a period of two months from the date of production of certified copy of this order.
Order Date :- 11.12.2024 Pravesh Mishra