Ram Gopal vs State of U.P. and Others

Ritu Raj Awasthi, J.—Heard Sri Vimal Kishore Verma, learned Counsel for the petitioner as well as learned standing counsel and perused the record.

The present writ petition challenges the order dated 26.7.2001, passed by the Upper Collector/Stamp Collector, Sitapur in Case No. 86(k) 345 under Stamp Act as contained in Annexure-5 to the writ petition as well as the revision order dated 14.8.2002, passed in Revision No. 158/2000-01 by the Commissioner, Lucknow Division, Lucknow u/s 56 of the Indian Stamp Act, as contained in Annexure-10 to the writ petition.

It is submitted by the learned Counsel for the petitioner that the petitioner Ram Gopal had purchased 1/2 share of Gata No. 30/0.044 and Gata No. 136/0.192 hectare from one Daya Ram s/o Gurcharan R/o village Saidanpur, Pargana/Tehsil Mohamudabad, district Sitapur for Rs. 20,000 by registered sale deed dated 2.6.1999 and he is in possession of the said land from the date of sale deed. The land purchased by the petitioner is 1230 sq. metre and as such he had paid the stamp duty @ Rs. 50 per sq. metre according to the circle rate fixed by the Collector and prevailing at the time of execution of the sale deed.

On the basis of the complaint made by one Om Shanker s/o Bhagu Ram, the proceeding u/s 47A (4) of the Indian Stamp Act were initiated against the petitioner and a notice was issued by the opposite party No. 3. The petitioner submitted the objection/reply. In the reply, it was submitted that the agricultural land purchased by the petitioner is situated at a distance of more than two kilometres from the town Area Paintepur and there was no link road adjacent to the agriculture land Gata No. 136 at the time of the sale deed.

It is contended by the learned Counsel for the petitioner that the impugned order dated 26.7.2001 was passed on the basis of the Tehsildar''s report dated 3.5.2001 whereby the valuation of the land in question has been enhanced to Rs. 6,17,000 and thereby deficiency of stamp duty of Rs. 44,060 and registration charges of Rs. 3,680 plus penalty of Rs. 22,030 has been imposed on the petitioner. By the impugned order opposite party No. 3 has directed to recover the amount of Rs. 69,717 from the petitioner. It is submitted by the petitioner that actually valuation of the land purchased by the petitioner was Rs. 61,500 and valuation of the trees was Rs. 4,400. The total valuation of the land and trees was Rs. 65,900, upon which the petitioner had paid the stamp duty of Rs. 5,300, it is correct and according to the circle rate prevailing at the time of execution of the sale deed. However, feeling aggrieved by the impugned order dated 26.7.2001 the petitioner had filed the Revision No. 158/2000-01 before the opposite party No. 2, Commissioner, Lucknow Division, Lucknow. By the interim order dated 7.9.2001 the Commissioner, Lucknow Division, Lucknow had admitted the aforesaid revision and the operation of the impugned order dated 26.7.2001 was stayed subject to deposit of 25 per cent of the deficiency of the stamp and registration charges. The petitioner had deposited Rs. 11,935 as deficiency of stamp and Rs. 920 as deficiency of registration fee on 31.10.2001 which was done in compliance of the order dated 7.9.2001. The Commissioner, Lucknow Division, Lucknow thereafter by order dated 2.11.2001 had stayed the remaining recovery amount. It is submitted by the learned Counsel for the petitioner that, however, the opposite party No. 2 by the impugned order dated 14.8.2002 without properly considering the various grounds taken in the revision has rejected the revision and confirmed the impugned order dated 26.7.2001.

The learned Counsel for the petitioner has vehemently urged that the impugned order dated 26.7.2001 has been passed on the basis of false complaint made by one Om Shanker s/o Bhagan Ram, resident of same village in which the land is situated as Sri Om Shanker was interested in purchasing the said land, however, since the land was purchased by the petitioner therefore, Sri Om Shanker had made a false and frivolous complaint. It is further submitted that the impugned order has been passed on the basis of the ex parte report dated 3.5.2001 submitted by the Tehsildar, Mahmudabad without any notice to the petitioner. According to Rule 7(3)(c) of the U.P. Stamp Valuation of Property Rules, 1997 the aforesaid inspection report submitted by the Tehsildar, Mahmudabad was wrong and illegal as the inspection of the property (land in question) was to be made after due notice to the parties to the instrument. The inspection report is annexed as Annexure-RA1 to the rejoinder-affidavit. It is further submitted by the learned Counsel that the land in question cannot be treated to be as abadi land as the same has not been declared as abadi u/s 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The enhancement in valuation of land in question has been done on the presumption and surmise which is wrong and not sustainable in the eye of law.

The learned standing counsel on the basis of the counter-affidavit as well as the supplementary counter-affidavit filed by Sub-Registrar, Mahmudabad, Sitapur and Assistant Inspector General of Registration, Sitapur respectively has submitted that proceedings u/s 47A of the Stamp Act were initiated by the order of A.D.M. (Finance) on the basis of the complaint made by Sri Om Shanker s/o Bhagan Ram. The A.D.M. (Finance) had asked for spot inspection report of the Tehsildar, Mahmudabad. The report dated 3.5.2001 of the Tehsildar, Mahmudabad corroborated the allegations made in the complaint. As per the said report the calculation of the value of the sold land 960 sq. metre @ 800 per sq. metre was Rs. 7,68,000 and the value of two trees as Rs. 8,000 and the value of the boundary wall (5 x 30 fit) as Rs. 10,000. The total assessed value of the sold property was as such Rs. 7,86,000. The copy of the khatauni/khasra enclosed with the said report showed the total area of khasra No. 136/0.192 hectare as being abadi land having three mangoes trees of aged 30 years. The khatauni showed the mutation in favour of the purchaser Ram Gopal. It is further submitted by the learned standing counsel that the Additional District Magistrate while deciding the case by impugned order dated 26.7.2001 had held that the land in question is situated within two kilometres from town Area Paintepur and is on link road. He assessed the market value of the land according to the prescribed Collector circle rate of abadi land, i.e., Rs. 600 per sq. metre, the value of the three mango trees was assessed as Rs. 24,060, the market value of the property was as such assessed as Rs. 6,17,000 and deficit of stamp duty of Rs. 44,060, deficit of registration fee of Rs. 3,680 plus penalty of Rs. 22,030 was imposed which was justified and therefore, there is no illegality in the impugned order. The learned standing counsel submitted that the impugned order was passed on the basis of inspection report submitted by the Tehsildar, Mahmudabad. The learned Commissioner while deciding the revision had taken into consideration the entire material on record and had rightly upheld the order dated 26.7.2001.

In the case of Ram Khelawan alias Bachcha Vs. State of U.P. and Prashant Shukla, it has been held that for deciding the amount of stamp duty no reliance can be placed upon the ex parte report of the Tehsildar. The proceeding u/s 47A of the Stamp Act may be initiated on the said report, however, while deciding the stamp duty the inspection is to be made by the Collector or authority hearing the case after due notice to the parties to the instrument under Rule 7(3)(c) of the Rules, 1997, the relevant paragraph is quoted below:

It has been found in several cases like the present one that the entire basis of determination of market value for the purpose of stamp duty is ex parte report of Tehsildar or other officer. Ex parte inspection report may be relevant for initiating the proceedings u/s 47A of Stamp Act. However, for deciding the case no reliance can be placed upon the said report. After initiation of the case inspection is to be made by the Collector or authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the Rules of 1997. Moreover, in the inspection report distance of the property from other residential or commercial properties and road must be shown and wherever possible sketch map must also be annexed alongwith the report so that correct valuation may be ascertained with reasoned certainty.

In the case of Prafulla Singh Vs. State of U.P. and Others, this Court has held that mere fact that land is in close proximity to a residential land will not make an agricultural land into a residential land nor can the authority determine the stamp duty of an agriculture land treating the said land as a residential land.

The Division Bench of this Court in the case of Kishore Chand Agrawal v. State of U.P. and Ors. 2008 (104) RD 235, has held that the agriculture land cannot be treated to a residential plot or commercial plot until there is a declaration u/s 143 of U.P.Z.A. and L.R. Act.

In the case of Smt. Anusuya Singh v. Commissioner, Faizabad Division, Faizabad and Anr. 2008 (26) LCD 588, this Court has held that the Collector/District Magistrate is not empowered to declare an agriculture land as abadi or land for commercial purposes unless there is a declaration to this effect u/s 143 of the U.P.Z.A. and L.R. Act. The mere report of the Tehsildar would not make the land as abadi land for the purposes of Stamp Act.

I have considered the various submissions made by the petitioner''s counsel and the learned standing counsel. From the perusal of the impugned order dated 26.7.2001 it is very much clear that the opposite party No. 3 while deciding the proceedings u/s 47A of the Stamp Act has taken into consideration the report dated 3.5.2001 submitted by the Tehsildar, Mahmudabad and the documents submitted alongwith the said report and on that basis had come to the conclusion that there was deficit in the stamp duty as well as deficit in registration fee in the sale deed of the land in question and the petitioner is, therefore, liable to pay the penalty.

The Uttar Pradesh Stamp Valuation of Property Rules, 1997 particularly Rule 7 provides the procedure on receipt of a reference or when suo motu action is proposed u/s 47A of the Stamp Act. The Rule 7(2)(c) provides that the Collector may inspect the property after due notice to parties to the instrument. The complete reading of the aforesaid rule clearly indicates that while deciding the proceedings u/s 47A of the Stamp Act the Collector or its authority are required to make an inspection after due notice to the parties to the instrument. The proceeding u/s 47A of the Stamp Act shall not be decided merely placing reliance on the ex parte report of the Tehsildar or any authority for that purpose. In the present case, the Tehsildar''s report dated 3.5.2001 does not disclose as to whether any notice was given to the petitioner before inspection of the land in question by the Tehsildar. Rather it clearly shows that it was an ex parte report. Hence, the order dated 26.7.2001 was passed in violation of Rule 7(2)(c) of the U.P. Stamp Valuation of Property Rules, 1997.

Section 143 of the U.P.Z.A. and L.R. Act clearly provides that where a bhumidhar uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultary farming, the Assistant Collector Incharge of the Sub-Division may, sua motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. Unless a declaration u/s 143 is made the agriculture land will continue to be governed by the provisions of U.P.Z.A. and L.R. Act and it cannot be presumed to be residential or commercial. The opposite party No. 3 has come to the conclusion that the land in question is residential on the basis of Tehsildar report which does not seem to be proper and correct. Moreover, the opposite party No. 3 has calculated the valuation of trees on the basis of the khasra of year 1406 fasli which had the endorsement of three mango trees of 30 years old. The valuation of each tree was made as Rs. 8,000, the total of which comes to Rs. 24,000. However, the inspection report itself clearly shows that there are two trees on the land in question, i.e., one mango tree and one Jamun tree of 30 years old as such there is contradiction in the Tehsildar report dated 3.5.2001 and the findings recorded in the impugned order. From the perusal of record it is further evident that at the time of registration of the sale deed there was no Damer road and the same was made after the execution of the sale deed. Moreover, in the impugned order dated 26.7.2001 as well as in the Tehsildar''s report dated 3.5.2001 the distance of land in question from the town area Paintepur is two kilometres. The mere construction of wall (5 fit x 30 fit) on the land in question would not in any manner change the land use and it was not open for the opposite parties to presume that the land in question was not for the agricultural use.

In view of the aforesaid discussions, the writ petition is accordingly allowed and the order dated 26.7.2001, passed by opposite party No. 3, Upper Collector/Stamp Collector, Sitapur in Case No. 86(k) 345 and the order dated 14.8.2002, passed by the opposite party No. 2, Commissioner, Lucknow Division, Lucknow in Revision No. 158/2000-01 are quashed. The amount deposited by the petitioner pursuant to the interim order dated 7.9.2001, passed by the Commissioner, Lucknow Division, Lucknow in Revision No. 158/2000-01 shall be remitted back to the petitioner within a period of one month from today by the concerned authority. No order as to cost.