Anasuya Singh vs Commissioner, Faizabad Division, Faizabad and another

Rajiv Sharma, J.—Heard Mr.

Karunakar Srivastava, Counsel for the petitioner and Mr. Rakesh Srivastava, Standing Counsel.

In the instant writ petition, the petitioner has questioned the correctness and validity of the order dated 30.7.2003 passed by the District Magistrate, Barabanki in Case No.35 (2003) under sections 47 A/ 33 of the Indian Stamp Act and the Appellate Order dated 10.3.2005 passed by the Commissioner, Faizabad Division, Faizabad in Appeal No.172 preferred under section 56 of the Indian Stamp Act.

It is stated by the Counsel for the petitioner that Smt. Phoolmati was the tenure holder of the land (Gata No.989/1.098 hectare) situated in Village Ajaimau, Pargana Dariyabad, Tehsil Ram Sanehi Ghat, District Barabanki. The petitioner purchased 2/5th part of the aforesaid agricultural land through a sale deed executed by Smt. Phoolmati in favour of the petitioner on 11.11.2002. The petitioner paid the stamp duty as was determined by the District Magistrate for the area in question. Later on, the matter was referred by the SubRegistrar, Ram Sanehi Ghat on 21.11.2003 to the District Magistrate, who called for a report from the NaibTahsildar, Ram Sanehi Ghat, District Barabanki. The Naib Tahsildar in his report mentioned that the property in question situates at the main road and the crop is standing. No trees, tube well, building etc. was found. The land is situated closer to ''abadi'' area.

The villagers have reported that the property has been purchased for construction of a school building.

Consequently, a show cause notice was issued to the petitioner and the proceedings under section 47A/33 of the Indian Stamp Act were initiated. The petitioner submitted reply to the showcause notice in which he mentioned that the land in question is an agricultural land and has been purchased for the agricultural purpose. He also annexed the ''khatauni'' of the land in support of his submissions.

The District Magistrate not being satisfied with the reply of the petitioner passed the order dated 30.7.2003 requiring the petitioner to make good the deficiency of stamps to the tune of Rs. 1,50,640/ and also imposed a penalty of Rs. 10,000/. This order was assailed by the petitioner in an appeal before the Commissioner, who confirmed the order of the District Magistrate and as such, the petitioner has approached this Court.

Counsel for the petitioner submits that there cannot be two market values of a property at a particular timeone for realizing the stamp duty and the other for payment of compensation, if land is acquired. If circle rate is not to be taken into consideration while determining market value in land acquisition cases, then it can also not be considered while determining the correct valuation of the property. It was also argued that unless the land use of the property in question is changed by a declaration under section 143 of the U.P.Z.A. and L.R. Act the land cannot be treated to be the ''abadi'' land. The report of the Naib Tehsildar only says that it is situated closer to ''abadi'' area, but does not report that it situates within the ''abadi'' area. Further, the District Magistrate proceeded on the report which also indicates that on the date of inspection crops were standing. The presumption that the land has been purchased for construction of a School building is wholly erroneous and unwarranted and as such learned Counsel for the petitioner contended that the impugned orders are unjustified.

To strengthen his arguments reliance has been placed by the learned Counsel for the petitioner on Kishore Chandra Aganval v. State of LJ.P., 2008 (104) RD 235 wherein it has been held by a Division Bench of this Court 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 factor for approach of the authority in determining the market value. It was further observed that the agricultural land situate on the roadside of a highway in semiurban area or countryside area cannot be treated as commercial or residential unless that area is declared as commercial or residential in the Master Plan prepared by the State Government.

In Smt. Neelam Gupta v. Commissioner, Kanpur Division, Kanpur, 2007 (102) RD 147 (HC) this Court placing reliance on P. Ram Reddy''s case (supra) held that the present status of the land is to be seen and the presumption that the plot has a potential in future like becoming a commercial or residential area is not relevant.

Sri Rakesh Srivastava, Standing Counsel submitted that in view of the U.P. Stamp (Valuation of Property) Rules, 1997 the authorities are competent to examine the market value of the property set forth in the instrument and the duty payable thereon. For this purpose, the competent authority is also empowered to call for necessary information in this regard from the concerned authority and record statement or inspect the property after due notice to parties to the instrument.

Sri Rakesh Srivastava further submitted that the appellate authority as also the Collector has rightly required the petitioner to make good the deficiency in stamp duty. The Appellate Court has observed that the land is situated on the road and is closer to the ''abadi'' area. Further, it has come to light that the land in question has not been purchased for agricultural purposes. In.support of his argument, he has also placed reliance on P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad. (1995) 2 SCC 305 = 1995 (26) ALR 13 (Sum.) He further contended that as on the date of transfer, the valuation has to be determined, although the future potential may not be taken into account, but it can be a relevant consideration for the determining the value. The value of the land is determined on the basis of its utility as on the date of transfer.

The facts and circumstances of P. Ram Reddy''s case (supra) are quite distinguishable from the facts and circumstances of the present case. In the said case the land of the appellant was acquired for formation of inner ring road and the dispute was regarding the market value of the acquired land and as such the Hon''ble Supreme Court has observed that the value of building plots as found in the Basic Valuation Registered maintained under the Stamp Act cannot form the basis for determining the market value of the lands acquired under the Land Acquisition Act.

This Court in the case of Sarva Hitkarini Sahkari Avas Samiti Ltd. Allahabad v. State of U.P. and others, 007 (103) RD 19 has observed that the rules framed for determining market value under the Stamp Act and circle rates circulated under said rules are relevant only for initiation of proceedings under section 47A of Stamp Act. However, after initiation of the case the said rule becomes irrelevant and while deciding the case market value shall be determined on the basis of general principles for determining market value which are applicable to the land acquisition matters. Moreover, future use of the property is not decisive.

It would be relevant to add that the Collector/District Magistrate under the provisions of the U.P. Stamp (Valuation of Property) Rules, 1997 is not empowered to declare the agricultural land as ''abadi'' land or land to be used for commercial purposes for realization of stamp duty as this power vests to a different authority under section 143 of the U.P.Z.A. and L.R. Act.

In the present case, as observed by the Collector, admittedly, the land was an agricultural land and was being used for agriculture purposes and therefore, it cannot be treated to be a residential or commercial plot. The valuation cannot be determined straightway on such an assumption that the land is situated in close proximity of ''abadi'' area and on the presumption that the land is to be used for a purpose other than the agriculture.

Having considered the submissions made by the learned Counsel for the parties and the materials placed before this Court, it appears that the authority had proceeded to determine the value on the presumption that though the land is agricultural land but it has not been purchased for the said purpose. The said presumption does not appear to be sound and reasonable. It is not the case of the opposite parties that the land use of the property in question has been changed.

Accordingly, the writ petition is allowed and the order dated 30.7:2003 passed by the Collector, Barabanki and the appellate order dated 10.3.2005 are herebyquashed. The amount deposited by the petitioner pursuant to the interim order dated 13.7.2005 of this Court, shall be remitted to the petitioner within a month by the concerned authority.