Smt. Rekha Chaturvedi & Another vs Chief Controlling Rvenue & ...
2013 Latest Caselaw 1072 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

																		Reserved
 

 
Case :- WRIT - C No. - 32962 of 2000
 

 
Petitioner :- Smt. Rekha Chaturvedi & Another
 
Respondent :- Chief Controlling Rvenue & Another
 
Petitioner Counsel :- R.K. Porwal
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Arvind Kumar Tripathi,J.

1. Mr. R. K.Porwal, Advocate, appeared for the petitioner and learned Standing Counsel on behalf of respondent.

2. Heard learned counsel for the parties and perused the record. Judgement was reserved on 8.3.2013.

3. The present writ petition has been filed with the prayer to issue writ of certiorari quashing the impugned order dated 21.3.1998 and 14.2.2000 passed by respondent no.2 and 1 respectively (annexure nos.1 and 2 respectively to this petition).

4. Learned counsel for the petitioner submitted that the land in question was jointly purchased by the petitioners, who are real sisters, measuring 22 decimal, out of plot no.201 (A) having total area of 3.66 decimal from one Attar Singh for a sum of Rs.42,000/-. The land was an agricultural land and according to circle rate, of the land, stamp duty was paid. There was no deficiency of stamp duty. The sale deed was executed and registered on 16.2.1993. Subsequently on the ground that there was deficiency the sale deed was impounded and notice was issued. The application was moved on behalf of petitioner seeking time to file written objection with regard to the queries mentioned in the notice. However, without giving any opportunity of hearing to the petitioners and without allowing time to file objection order was passed by the Additional District Collector (Stamp), Etawah on 21.3.1998 declaring that there was deficiency for a sum of Rs.38, 164/- and equal to the deficiency amount penalty was imposed and as such the petitioner was asked to deposit total a sum of Rs.76,328/-. Against that revision was preferred by the petitioners, which was partly allowed by the respondent no.1, Chief Controller, Revenue Authority, U.P./Board of Revenue, Allahabad and penalty was set aside. However, order regarding deficiency of stamp was affirmed on the ground that since only 20 decimal land was purchased by two different persons (petitioners) hence in the share of each of the petitioner there was ten decimal land. According to valuation list of the area on 1.1.1992 the plot upto the area of 10 decimal would be considered as a residential plot and further there was no evidence of cultivation and farming over the land in question. He further submitted that both the authorities failed to consider that the land was purchased jointly by two real sisters and the circle rate, which was issued by the District Magistrate, Etawa was with regard to the plot, which were only ten decimal hence it was deemed to be not for the agricultural purposes. The receipt regarding the irrigation was also produced before the authorities. When the land was purchased it was agricultural land and merely on the presumption that in future it might be converted into residential, the valuation cannot be determined because the valuation has to be determined on the basis of the nature and valuation of the land on the date of execution of the deed. There was no material and merely on the basis of presumption it was observed that after the plot was divided by the petitioners, area of each plot would be ten decimal, though in fact there was no partition over the land in question, which was jointly purchased by real sisters. Hence the observation was hypothetical and based on presumption. He also submitted that there was no declaration and order under section 143 of the U.P. Z.A. & L. R. Act for change of user and nature of the land into Abadi or residential from the agricultural land. Hence the order passed by both the authorities are illegal, arbitrarily, without jurisdiction and against the principle of natural justice and as such the same are liable to be set aside. He also relied the judgment of this Court reported in 2011 (3) AWC 3093 Sunti Bunti Automobiles (P.) Ltd. Vs. State of U.P. and others in which it was held that the circle rate for the residential cannot be applied for determining the market value of the agricultural land, if there was no declaration under section 143 of U.P.Z.A & L.R. Act relying the earlier judgment of this Court in 2000 (3) (AWC) 2587 Aniruddha Kumar and Ashwini Kumar V. Chief Controlling Revenue Authority, U.P., Allahabad and another. He also relied other judgements of this Court in which aforesaid judgments were followed. He further cited the judgment of the Apex Court 2012(2) AWC 1836 (SC) State of U.P. and others Vs. Ambrish Tandon and another. Hence in view of the law and aforesaid judgments he submitted that both the orders are liable to be set aside.

5. Learned Standing Counsel vehemently opposed aforesaid prayer and submitted that earlier the plots might have been agricultural plot but the village Jugramau is adjacent to Kasba/city Etawah, which is a developed place and according to valuation list dated 1.1.1992 issued by the District Collector if any plot was purchased upto 10 decimal that would be treated as residential plot and in the present case admittedly 20 decimal land was purchased by two petitioners though by a joint sale deed just for evasion of the stamp duty to show that the area of the plot was 20 decimal, which was double to the maximum area provided in the valuation list. There was no evidence to show that it was purchased for agricultural purposes and farming was being done there. He also contended that the lower revisional court, respondent no.1, has already taken lenient view and the penalty imposed by the Additional Collector was set aside, however, the order regarding deficiency of stamp duty was affirmed and as such no interference is required.

6. Considered the submission of learned counsel for the parties. There is no dispute that the land, which was purchased from one Attar Singh was part of the plot no.201 (A) having area of 3.66 decimal out of that 20 decimal land was purchased by the petitioners, who were claiming to be real sisters. As far as the determination of the market value of the land regarding which the sale deed was executed is concerned, the valuation of the land on the date of registration of the deed is relevant and not the future potentiality and change of user of the land. Admittedly there is no declaration under section 143 U.P.Z.A.& L.R. Act regarding change of the user and nature of land, which was recorded as agricultural land when the sale deed was executed and there is also no dispute or any evidence that when Attar Singh transferred the land by executing registered sale deed he was not cultivating for sowing crops rather receipt regarding irrigation was produced on behalf of the petitioners with regard to the land in question. In the present case, the sale deed was executed on 16.2.1993 and the U.P. Stamp (Valuation of Property) Rules, 1997 was published in the U.P. gazette dated 15.7.1997. Before that the rule was not in existence and after that rule the valuation has to be considered under rule 4, 5, 6 and 7. The various factors are necessary to be considered for determining the market value of the property on the date of sale and execution of the deed. The circle rate, potentiality and utility of the land on the date of transfer of the land and surrounding lands and exemplar are the factors which ought to be considered for determining the market value for the purpose of stamp duty payable under the stamp act. As far as exemplar of any deed is concerned, adjacent or near the plot in question is important factor for determining the market value. On the basis of future potentiality and utility of the land, the market value cannot be determined for payment of stamp duty because the vendee is required to pay stamp duty for purchase of the property in question on the basis of its value on the date of purchase and execution of the deed. However, in the present case, there was grievance of the petitioner that no opportunity was given to file the reply with regard to the queries made in the show cause notice. Even there was no information and notice for spot inspection. Even any building was not found adjacent or near the plot in question. Merely on the ground that village Jugramau, where the land in question is situated was adjacent to kasba/city Etawa, the valuation was determined. While determing the valuation of the property in question for payment of stamp duty it is the potentiality and utility of the land on the date when the same was purchased and sale deed was got registered, is a relevant factors. In the present case neither any part of the area of particular village, which is adjacent to the kasba nor any exemplar has been considered and examined to show that even an agricultural plot was transferred and purchased as a residential plot or any residential or commercial plot was situated adjacent or near the plot. In case of Sunti Bunti Automobiles (P.) Ltd. (supra) the land was initially recorded as an agricultural land and there was no declaration under section 143 of U.P.Z.A. & L.R. Act though an application was moved but that remain pending so there was no declaration. It was held that in absence of exemplar sale deed or any other positive evidence to establish higher market value of the land in dispute than disclosed in the instrument, the impugned orders cannot be sustained under law.

7. In case of Ram Khelawan V. State of U.P. and another, 2005 (98) RD 511 : 2005(2) AWC 1087 it was held that " the circle rates notified under the Indian Stamp Act are merely guidelines for determining the market value that too till the time of registration of the document and the said rates would not be a conclusive proof of the market value which on registration has to be determined by applying general principles, which are applicable in determining the compensation under the Land Acquisition Act. It was also held that the exemplar sale method is the best method for determining the market value."

8. In case of State of U.P. and others Vs. Ambrish Tandon and another (supra) it was held by the Apex Court that "merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty" and the judgement and order of the High Court was upheld by the Apex Court.

9. In case of Aniruddha Kumar and Ashwini Kumar (supra) the argument that for purpose of determination of compensation under the Land Acquisition Act future potential of the land is also to be taken into account but the same principle cannot be a consideration for determination of market value of stamp duty under the Stamp Act. It was held by the Court that the submission appeared to be a sound proposition of law. In that case also the land was agricultural land and there was no declaration under section 143 U.P.Z.A. & L. R. Act and it was held that the market value has to be determined on the basis of value that would satisfy the vendor. The question of future potential cannot be a factor for determining the market value of such land for the purpose of stamp duty payable under the stamp act. The vendee pays the price of the land that satisfies the venders according to the utility of the land as on the date of transfer by the vendor. If the land was an agricultural land, it has to be treated as such and the valuation has to be done accordingly. The future potential cannot be a factor for determing market value for payment of stamp duty under the stamp act. In future if purchaser changes the utility and character of land is immaterial for the purpose of determining of stamp duty.

10. In view of the aforesaid discussion, the order declaring the deficiency of stamp duty is illegal and without jurisdiction. As such the impugned orders cannot sustain hence the impugned orders dated 21.3.1998 and 14.2.2000 passed by respondent no.2 and 1 respectively are hereby quashed.

11. Accordingly, present writ petition is allowed. No order as to costs. The amount if any deposited towards deficiency of stamp duty in pursuance of the interim order dated 2.8.2000 shall be refunded to the petitioner within reasonable period, preferably, within six weeks after furnishing certified copy of this order.

Order Date :- 18.4.2013

Pramod