Allahabad High Court

Haroon Ahmad And Another vs State Of U.P. And Others on 30 August, 2011

Bench: Arun Tandon




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- WRIT - C No. - 50302 of 2009
 

 
Petitioner :- Haroon Ahmad And Another
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Anil Kumar Misra
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Arun Tandon,J.

Heard learned counsel for the petitioners and learned Standing Counsel for the State-respondents.

Proceedings under Section 47A of the Indian Stamp Act were initiated against the petitioner in respect of document presented before the Registrar, Sadar, Azamgarh for registration on the plea that the document has been insufficiently stamped.

Stamp duty had been paid on the value of the land calculated at the rate of Rs. 520 per square metre i.e. Rs.1,55,140/-. The property is situate in Village Balrampur, Ward No. 14, Mukeri Ganj, Tehsil Sadar, District Azamgarh. In the deed it was mentioned that the land was for agricultural purposes. In the sale-deed plot numbers, subject matter of transfer, namely, 574/1Ka, 574/3Ga, and 574/6 Ba, along with their respective areas, were specifically disclosed.

According to the report of the Sub-Registrar, Sadar, Azamgarh the land was situate behind the plots sold under the exemplars qua which the stamp duty at residential rates had been paid. Accordingly, the market value of the land in question had reduced.

Petitioner contested the proceedings and contended that the plot under transfer was not adjacent to the road, the same cannot be treated to have residential potential. The land was meant for agricultural purposes and therefore, stamp duty paid was justified. It was further stated that the potential of the land had to be examined on the date of sale.

In the proceedings, exemplars in respect of parts sold out of the same plot, executed in favour of Shiv Kumar, Fagu Chauhan and Durga Prasad etc. dated 2nd July, 2008 as well as documents bearing 2184 of 2008, 2185 of 2008, 2186 of 2008, 2187 of 2008 and 2188 of 2008 in respect of same plot no. 574 executed on 3rd July, 2008, were brought on record, wherein the value of the property under transfer was calculated at the rate of Rs.7000/- per square meter.

Petitioner, despite filing his objections to the notice issued, did not participate in the proceedings before the Additional District Magistrate and therefore the case proceeded ex parte. However, a recall application was filed, which was granted. Hearing took place afresh.

Petitioner relied upon the judgement of this Court in the cases reported in 2000 R.D. 566, 1995 R.D. 455, 2005 R.D. 423, 2004 R.D. 303, 2007 R.D. 503, 2009 R.D. 427 & 749, 2005 R.L.T. 9 & 74 and 2006 R.L.T. 2006 24 for the proposition that the potential of the land is to be seen on the date of sale and that future use of the land will not be relevant for determining its potential on the date of sale.

The Additional District Magistrate along with Lekhpal made spot inspections on 12th May, 2009 and it was found that plot no. 574 was situate at Azamgarh-Gorakhpur Highway. Under documents bearing No. 2184 of 2008, 2185 of 2008, 2186 of 2008, 2187 of 2008 and 2188 of 2008, parts of the same plot no. 574 had been sold on 3rd July, 2008. Under the exemplars. Market value of the property has been determined at the rate of Rs. 7000/- per square meter. It is further recorded that on both sides of the road, commercial activities were being undertaken since prior to the date of sale. After having recorded the aforesaid findings, it has been found that since the plot in question was situate behind the plots, which were subject matter of exemplars referred to above, the market value of the plot in question be determined at the rate of Rs.3000/- per square meter, correspondingly deficiency in the stamp duty had been worked out. Petitioner was saddled with liability of Rs. 14,77,520/- towards deficiency of stamp duty along with penalty of like amount, with interest at the rate of 1.5% per month.

Not being satisfied with the order so passed by the Additional District Magistrate, petitioner filed a revision under Section 56 of the Indian Stamp Act being revision no. 90/A of 2009 before the Commissioner, Azamgarh Division, Azamgarh. The revision has also been dismissed by the Commissioner vide order dated 29th July, 2009 after affirming the finding recorded by the first authority. Hence the present writ petition.

Before this Court, it has been contended that since no notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act has been issued, property has to be treated as an agricultural land only and it cannot be said to have any potential for residential purposes. For the proposition reliance has been placed upon the Division Bench Judgement of this Court in the case of Kishor Chandra Agarwal vs. State of U.P. reported in 2008 R.D. 104-235, Pr. 6 as also other judgements in the case of Ram Gopal vs. State of U.P. & others reported in 2009 R.D. (7) 185; Ansuiya vs. Commissioner, Faizabad Division, Faizabad reported in 2008 L.D.C. (26) 588; Arudh Kumar & Aswani Kumar vs. Chief Controlling U.P. reported in 200 R.D. 566; Prakashwati vs. Chief Controlling, Revenue Authority, Board of Revenue, Allahabad reported in 1996 A.D.C. (3) 1331 and Rajendra Kumar vs. State of U.P. reported in 2011 A.D.J. (3) 888.

It is then contended that since the document was not registered, respondent authorities do not get any authority to demand any deficiency in the stamp duty. For the proposition, learned counsel for the petitioner has placed reliance upon the judgement of the Hon'ble Supreme Court of India in the case of M/s. Residents Welfare Association, Noida vs. State of U.P. & others reported in 2009 (108) RD 744.

I have considered the submissions made by the learned Counsel for the parteis and have examined the records of the present writ petition.

The Controversy with regard to the potential of the land for the purposes of determining the market value so as work out the correct stamp duty payable thereon has been settled by the Hon'ble Supreme Court in the case of R.C. Bansal vs. District Magistrate reported in 1999 (5) SCC 62 and it has been held that market value of the land may change from area to area and from plot to plot.

In the facts of the present case, this Court finds that five exemplars of the same plot executed on a date very near to the date of the deed in question, have been considered by the authority concerned for determining the market value of the land. Learned counsel for the petitioner could not dispute that the plot under transfer is situate adjacent to the plots subject matter of sale in the aforesaid five exemplars. The authorities had been more than fair in reducing the market value of the land subject matter of transfer by more than 50% on on the ground that the land is situate behind the plots subject matter of exemplars and at a distance of nearly 50 meters from the main highway. It may be recorded that the rate applied in respect of land adjacent to main highway subject matter of exemplars was Rs. 7000/- per square meter while that applied qua the transferred land in question is Rs. 3000/- per square meter only. The authorities have worked out the market value of the land subject matter of sale giving rise to the present proceedings at less than half of the rates applied to the land covered by the exemplars.

The impact of the plot being situate at some distance from main highway and behind the plots subject matter of the exemplars has been taken due care of under the impugned orders.

So far as the issuance of the notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act is concerned, this Court may record that under Section 142 of the U.P. Zamindari Abolition and Land Reforms Act, a Bhumidhari gets a right to use the land in whatever manner he likes. Petitioner has become a Bhumidhari of the land after purchase, therefore, he gets a right to use the land in the manner he likes. Mere non-issuance of the notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act will not in any hamper his right to use the land in the manner he desires.

Non-issuance of the notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act cannot be the basis for questioning the determination of the market value of land. Section 143 of U.P. Zamindari Abolition and Land Reforms Act is for different purposes and cannot control the determination of the market value under the Indian Stamp Act.

Impact of Section 142 of U.P. Zamindari Abolition and Land Reforms Act as well as the purpose of issuance of notification under Section 143, vis-a-vis its applicability on the provisions of the Indian Stamp Act, has not been considered in the judgements relied upon by the petitioner. This Court finds no reason to accept the submission raised by the petitioner nor the judgements relied upon by the petitioner can be the reason for questioning the determination of the market value of the land under transfer in the facts of the case.

This Court has no hesitation to hold that the provisions of U.P. Zamindari Abolition and Land Reforms Act are clearly distinct and operate in different field. Determination of the market value of plot under sale is to be made under the Indian Stamp Act as per the procedure prescribed under Rule 7 of U.P. Stamp (Valuation of Property) Rules, 1997. Such determination is not controlled in any manner by the provisions of U.P. Zamindari Abolition and Land Reforms Act. Notification under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act can at best be one of the factors for consideration at the time of determination of the market value under the Indian Stamp Act.

In the facts of the present case, this Court finds that exemplars of adjoining land forming part of the same plot no. 574 have been taken into consideration. The revenue authorities after giving due weightage to the fact that that the plot was situate behind the plots subject matter of exemplars and at some distance from main highway have applied less than half the rate of the emplaness for determining the market value of the property under transfer in this case.

The other contention raised on behalf of the petitioner that so log as the document is not registered, the district authorities have no power to determine the deficiency in the stamp duty, is based on misreading of Section 47A of the Indian Stamp Act. On the document being presented for registration, the authorities get a jurisdiction to determine the deficiency in the stamp duty and to insist upon the recovery thereof, as would flow from simple reading of the Section itself. The judgement in the case of M/s. Residential Welfare Association (Supra) is clearly distinguishable in the facts of this case.

The learned counsel for the petitioner lastly challenges the penalty imposed on the ground that it is excessive and legally not justified.

This Court finds that under the impugned order, penalty of like amount vis-a-vis the deficiency noticed has been levied. In the facts of the present case Rs. 7,38,760/- has been imposed as the penalty.

Although there is an observation in the order of the revenue authority that complete facts had not been disclosed in the deed, the Court finds that the levy of penalty in the facts of the present case to the tune of Rs. 7,38,760 is excessive and not supported by cogent reasons.

Having regard to the totality of the circumstances as on record, the amount of penalty is reduced to Rs. 1,50,000/- with a condition that the petitioner may deposit the deficiency in stamp duty along with penalty and interest. Any amount already deposited by the petitioner shall be adjusted towards the said deposit.

The present writ petition is disposed of subject to the observations made above.

(Arun Tandon, J.)

Order Date :- 30.8.2011

Sushil/-

Case :- WRIT - C No. - 50302 of 2009

Petitioner :- Haroon Ahmad And Another

Respondent :- State Of U.P. And Others

Petitioner Counsel :- Anil Kumar Misra

Respondent Counsel :- C.S.C.

Hon'ble Arun Tandon,J.

Disposed of.

For order see order of date passed on the separate sheets.