Allahabad High Court
Govind Purwar vs State Of U.P., Thru. Prin. Secy., ... on 18 February, 2020
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 Case :- MISC. SINGLE No. - 5321 of 2011 Petitioner :- Govind Purwar Respondent :- State Of U.P., Thru. Prin. Secy., Revenue & Others Counsel for Petitioner :- K.K. Singh,M P Singh,Vimal Kishor Singh Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Sri Mahendra Pratap Singh, learned counsel for the petitioner and the Standing counsel on behalf of the respondents.
2. By means of instant writ petition, the petitioner has challenged the order of the Commissioner, Lucknow Division, Lucknow dated 2.6.2011 passed in exercise of the powers under Section 56 of the Indian Stamps Act thereby dismissing the appeal preferred by the petitioner against the order of District Magistrate passed under Section 47 A of Indian Stamp Act dated 8.12.2010 thereby declaring the land purchased by the petitioner to be non-agricultural and thereby enhanced the valuation of the said land and accordingly additional fee for fixation for stamp was assessed.
3. Counsel for the petitioner has submitted that he purchased agricultural land measuring an area 1.091 hectare of khasra plot No.158 situated in Village Agra, Pargna and District - Kheri for consideration and the same was registered on 23.5.2009 and subsequently a notice was served on the petitioner by the Collector (Stamps) /Additional Collector (Finance and Revenue) asking the petitioner to file objection, if any, in respect of the prima facie deficiency of the stamp duty in getting the sale deed executed in his favour. In response to the aforesaid the petitioner replied to the notice and submitted that the land in question was agricultural land and still the land use remains the same which is also entered as such in the revenue records and prayed that the notice be discharged. It has further been submitted that there is no declaration under Section 143 of U.P. Z.A. and L.R. Act for converting the land use.
4. The District Magistrate by means of the order dated 8.12.2010 relied upon the report of Revenue Department dated 16.2.2010 stating therein that one boiler, turbine etc. were found at the premises and there was boundary wall along with the said plot and accordingly imposed penalty on the petitioner as well as enhanced the valuation of the said land.
5. Against the aforesaid order of the District Magistrate, the petitioner preferred an appeal before the Commissioner, Lucknow Division, Lucknow, who has also decided it against the petitioner on 2.6.2011 while reiterating the findings recorded by the Collector.
6. I have heard learned counsel for the parties and perused the record.
7. The main contention raised by the learned counsel for the petitioner is that entire proceedings were initiated on the basis of the spot inspection report dated 16.2.2010 wherein it was reiterated that area 1.113 hectare out of which 1.091 hect. of gata No.158 was purchased by the petitioner. On the spot inspection it was discovered that on the said plot there existed one boiler, one turbine etc. and other buildings on the basis of which it was concluded that the said land was for other than agricultural purposes and its valuation was determined to be higher than as declared by the petitioner in the sale deed executed by him on 23.5.2009. The petitioner filed his objection to the spot inspection report wherein he has stated that plot No.158 area 1.119 hectare out of which the petitioner has purchased 1.091 hectare where no machinery of any sort is installed and the said land even at that point of time was begin used for agricultural purposes and accordingly he paid stamp duty on the said land rightly treating it as agricultural land.
8. The Additional Collector, Kheri in the entire order has not considered any of the objections raised by the petitioner but has solely relied upon the spot inspection report and passed the the said order.
9. Learned counsel for the petitioner submits that sub clause (c) of sub section 3 of Rule 7 of U.P. Stamp (Valuation of Property) Rules, 1997 (hereinafter referred to as the Rules of 1997) provides that Collector may inspect the property after due notice to the parties to the instruments. He submits that he had preferred objection to the spot inspection report denying all the contents therein and had made assertions that on the said land there is no boiler or any machinery and the said land was begin used for agricultural purpose.
10. In the light of the above objections raised by the petitioner it was necessary for the Collector to exercise the powers under Rule 7 (3) (c) of the Rules of 1997 and conducted spot inspection in presence of the petitioner and there upon proceeded under Section 47 A to assess the valuation of the land.
11. This Court in WRIT - C No. - 47533 of 2010 (Wasi Ur Rehman And Another Vs. Commissioner Moradabad Division And Others) decided on 26.2.2015 has held as under:-
"The Indian Stamp Act 1899 is a law relating to revenue/stamps. Its applicability thus stands restricted to the scheme of the Act. The Stamp Act is a fiscal measure enacted with an object to secure revenue for the State on certain classes of instrument.
It is not enacted to arm a litigant with a weapon of technicality to defect the case of the Revenue. The stringent provisions of the Act are conceived in the interest of the Revenue.
It is a matter of common knowledge that in order to escape such duty by unfair practice, many a time under valuation of a property or lower consideration is mentioned in a sale deed.(Chiranji Lal (Dr. ) v. Hari Das 3; Ramesh Chand Bansal versus District Magistrate/Collector4) A Stamp Act is a taxing statute and as regards a taxing statute , it is well settled that equity has no place in it. There is no presumption as to a tax, nothing is to be read in, nothing is to be implied, (Agra City Real State Development Organisation,Agra versus State of U.P & others)5.
Market value has not been defined under the Act, in proceedings under section 47-A(3) refers "to instrument on which duty is chargeable on the market value of the property", Article 23 provides for stamp duty payable on conveyance which refers to market value of immovable property which is subject of such conveyance.
Market value as referred to in the expression conveyance is the price which a willing purchaser would pay to a willing seller for the property. The court in Vijay Kumar and another Versus Commissioner6, explained the expression "market value":
"The 'market value' means what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going in the vicinity and potentiality of the land."
Again in Ratna Shankar Dwivedi versus State of U.P 7the Court held that:
"The term "market value" has not been defined under the Act. However there are some precedents laying down certain guidelines as to how and in what manner a market value would be determined. The consensus opinion is that the market value of any property is the price which the property would fetch or would have fetched if sold in the open market."
The sine qua non for invoking provisions of Section 47-A(3) of the Act is that the Collector had reason to believe, that the value had 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 was paid, the burden to prove that the market value was more than the minimum prescribed by the Collector under the rules, was upon the Collector. The report of the sub-Registrar or Tehsildar was not sufficient to discharge that burden.(Vijay Kumar v. Commissioner, Meerut Division).
The expression "reason to believe" is not synonymous with subjective satisfaction of the officer. The belief must be held in good faith, it cannot be merely a pretence. It is open to the court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not irrelevant or extraneous to the purpose of the section. "
12. In the instant case, the Collector has relied solely upon the spot inspection report while the petitioner, on the other hand, had questioned the said report and filed objection but the objections raised by the petitioner were not even dealt with by the Collector and he proceeded to ascertain the valuation of the land solely on the basis of the spot inspection report which was duly challenged by the petitioner. While assessing the stamp valuation of the land it was open in the present set of circumstances for the Collector to have exercised the powers so vested in him under Rule 7 sub clause 3 (c) of the Rules of 1997 and get the land inspected as requested by the petitioner in his application.
13. The Commissioner has not even considered or even adverted to any of the objections preferred by the appellant therein and he merely reiterated the contents of the impugned order passed by the Collector. The Commissioner in the present case has virtually abdicated his duty of sitting in appeal under Section 56 of the Stamps Act. He was under the legal mandate to consider, decide and give reasons in his order while considering the grounds of appeal preferred by the petitioner. It has further been submitted by the petitioner that adjacent to the plots of the same area i. e. 159, 160 and 161 which was purchased by other persons stamp duty was paid on the agricultural rate and was duly accepted by the authorities.
14. He has submitted that in this view of the matter, the respondents have acted in most arbitrary manner in determining the stamp valuation of the land of the petitioner. The State while denying the allegations so made by the petitioner have not denied the fact that the plots of gata Nos.159, 160 and 161 purchased by other purchasers determining the stamp valuation of the said plots treating them to be agricultural purposes was duly accepted.
15. In light of the above, the petitioners cannot be discriminated and relying solely on the spot inspection report which was conducted prior to issuance of the notice to the petitioner and despite several objections having been raised, the Collector failed to exercise the powers of inspection so vested in him by Rule 7 (3) (c) of the Rules of 1997. The orders impugned herein dated 2.6.2011 and 8.12.2010 passed by the Commissioner, Lucknow Division, Lucknow and Collector respectively suffer from the vice of arbitrariness and, as such, are hereby set aside.
16. The petition is allowed.
Order Date :- 18.2.2020 (Alok Mathur, J.)
RKM.