Allahabad High Court
Smt. Manju Agrawal vs Commissioner Bareilly Division ... on 7 April, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - C No. - 51725 of 2010 Petitioner :- Smt. Manju Agrawal Respondent :- Commissioner Bareilly Division Bareilly And Another Counsel for Petitioner :- Tarun Agrawal Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Iman Syed, Advocate, holding brief of Sri Tarun Agrawal, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
2. Present writ petition has been filed against the order of the Additional Commissioner (Administration), Bareilly Division, Bareilly dated 22.05.2010 in Stamp Appeal No. 173/66/2009-10 (Smt. Manju Agarwal Vs. State of U.P.). By that order, the appeal authority has confirmed the order dated 15.11.2007 passed under Section 47-A of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act') determining the stamp deficiency on a property measuring 66.46 square metre purchased by the petitioner vide registered sale deed dated 30.09.2006 for sale consideration for Rs. 3,10,000/-.
3. In short, the petitioner claimed to have purchased a residential property in the locality Zulfiqarganj, Bareilly. She paid stamp duty thereon @ 8% Rs. 24,800/-.
4. On 18.01.2007, a notice was issued under Section 47-A of the Act referring to Rule 38(2) of the Rules framed under the Act and Section 33 read with Section 40(1)(b) of the Act. Also, a report of the Tehsildar was submitted on 07.02.2007 disclosing that the aforesaid property was at a distance of more than 30 metres from the main road. It comprised of one room, one hall together with a latrine and bathroom by way of construction existing thereon. The construction was estimated to be about 45 years old.
5. At that stage, the petitioner appears to have filed objections dated 12.07.2007 wherein it clearly claimed the property to be residential in nature. The circle rate for such property was disclosed at Rs. 3500 per square metre. According to the petitioner, the sale deed had been correctly valued for the purpose of payment of stamp duty.
6. Second and third reports are also stated to have been submitted in such proceedings being dated 19.07.2007 and 18.08.2007, proposing to value the property in question as commercial.
7. On its part, the petitioner further relied on the stamp duty assessment of an adjacent property of Smt. Urmila Devi. Referring to that order, it has been submitted that that property was accepted to be a residential property. While mentioning its boundaries, there is clear mention of the property of the present petitioner giving rise to the present proceedings.
8. Thus, it has been submitted, the property in question was also a residential property. There is no material to doubt the same. In any case, the revenue authorities did not lead any evidence to establish that the disputed property was commercial in nature. That burden not discharged, the finding recorded by the original authority and the appeal authority are stated to be perverse or based on presumptions and conjectures. Merely because the property may have been put to use different for which it had been earmarked may not be enough to subject the conveyance with respect to such a property at a different or a higher rate. Reliance has been placed on two earlier decisions of this Court in Vijay Kumar & Anr. Vs. Commissioner, Meerut Division, Meerut & Anr., 2008 (7) ADJ 293 and Anshu Chhabara Vs. Collector, Jhansi & Anr., 2008 (9) ADJ 736.
9. On the other hand, learned Standing Counsel would submit, once it was found that the property was being used to carry out trade in foodgrains, no error exists in subjecting the conveyance to stamp duty by valuing such document @ rate equivalent for commercial property.
10. Having heard learned counsel for the parties and having perused the record, in Vijay Kumar (supra), it has been observed as under:
"19. In the case of Prakashwati v. Chief Controlling Revenue Authority Board of revenue, Allahabad, 1996 (87) R.D. 419. ''Hon'ble the Apex Court has held that situation of a property in an area close to a decent colony not by itself would make it part thereof and should not be a factor for approach of the authority in determining the market value. According to said decision, valuation has to be determined on constructive `materials, which could be made available before the authorities concerned."
11. Then, in Anshu Chhabra (supra), it has been observed as under:
"21. The circle rate fixed by the Collector has been indicated in the report of the A.D.M. dated 1.10.2007 which indicates that the value of the land upto 50 meters from the main road is Rs. 6,000/- per square meter and from 50 meters to 150 meters, the rate is Rs. 5,000/- per square meter. Admittedly, the land in question is 119 meters from the main road. Therefore, the rate applicable as per the Collector's circle rate is Rs. 5,000/- per square meter. The petitioner has paid the stamp duty at the rate of Rs. 5,000/- per square meter. The authorities have valued the land at Rs. 10,000/- per square meter on the strength of the finding that the land is surrounded by commercial buildings, and that, the said land has a potential value for commercial purposes.
22. In my opinion, such presumption cannot be drawn by the authorities. The Stamp Act is a fiscal statute and the provisions has to be interpreted strictly and literally. There is no room for presumptions or approximation. The market value of the land is required to be assessed on the nature of the land as existing on the date of the sale of that land. What the land could be put in use in future could not be taken into consideration by any stretch of imagination. The market value of the land as existing as on the date of the execution of the sale-deed is required to be considered. The potential value of the land, which could fetch in future is not required to be taken into consideration.
23. There is another aspect. Admittedly, the land is a residential land close to a commercial area. The mere fact that the land in question is surrounded by commercial buildings will not make a residential land into a commercial land unless the use of the land is converted in the master plan under the provisions of the U.P. Urban Development and Planning Act, 1973. The petitioner has also filed an extract of the master plan indicating that the distance of a bazaar street is 30 meters from the Elite crossing, Civil Lines, Jhansi. Consequently, as per the master plan, land upto 30 meters from the crossing is to be treated as commercial land and beyond 30 meters, the land is treated as a residential land. The petitioner's land is admittedly beyond 30 meters."
12. In the present case, other than a bald recital in the subsequent reports, there is no material brought on record by the revenue authorities to establish that the property in question was one, solely of commercial nature or use at the time of the execution of the sale deed dated 30.09.2006. The burden to establish that fact was on the revenue authorities. No presumption could have been drawn in that regard. Even then, it is not disputed that admittedly the disputed property of one Urmila Devi was assessed as residential, on 02.12.2006 that is around the same time. Further, the first report of the Tehsildar was clearly in favour of the petitioner. Then, nature of the undisputed construction being one room, one hall together with a latrine and bathroom are prima facie indicating that the property was not commercial but residential that too 45 years old.
13. In view of the above, it is seen, the original authority as also the appeal authority have not recorded their conclusions based on material and evidence on record. They have not enforced the rule of evidence on the revenue authorities. Thus, without discharge of the essential burden to establish the nature and use of property as commercial, the revenue authorities could not have treated the same to be commercial, based on presumptions and conjectures.
14. In view of the above, the order passed by the original authority as also the appeal authority are found to be perverse, based on presumptions and conjectures. They are accordingly set aside. Present writ petition is allowed. No order as to costs.
15. Any amount that may have been deposited in compliance of the impugned orders may be refunded to the petitioner in accordance with law.
Order Date :- 7.4.2022 Abhilash