Ram Achhaibar vs State Of U.P. & Others
2013 Latest Caselaw 6413 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 24
 

 
Case :- WRIT - C No. - 28425 of 2001
 

 
Petitioner :- Ram Achhaibar
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- R.S.Sharma,Vinod Shanker Tripathi
 
Counsel for Respondent :- C.S.C.,S.C.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioner has preferred this writ petition to seek issuance of a writ of certiorari to quash the order dated 17.03.2001 passed by the Additional Commissioner (Second), Varanasi Region, Varanasi, and the order dated 09.02.2000 passed by the Additional District Magistrate (Finance & Revenue), Jaunpur, whereby the petitioner has been directed to deposit the deficiency of the stamp duty to a sum of Rs. 28,700/-.

2. The basic facts pertaining to the issue in question may be stated as; a sale deed dated 30.12.1994 was executed between Kripa Shankar and the petitioner in respect of Plot No. 956 measuring 0.113 hectare situated in Village Kacchideeh, Tehsil Machhalishahar, District Jaunpur. A proceeding under the provisions of The Indian Stamp Act, 1899 (for short, the "Act, 1899"), on the basis of a report of Deputy Registrar, Machhlishahar dated 10.03.1995, was registered under Section 47A of the said Act. A spot inspection was made by the Tehsildar, who had stated in his report that the plot in question is situated at a distance of one kilometer from the road but it is in the vicinity of residential area, for the said reason it is liable to be valued at the rate of residential area and thus, the land in question was valued at Rs. 2,43,600/-. Accordingly, deficiency of stamp duty of Rs. 28,700/- was imposed upon the petitioner. The petitioner had filed objection and stated that no spot inspection was made and land is situated 1Km. away from the road and no abadi land is near the aforesaid land. It was also stated that from the Tehsildar's report it is also clear that the land is being used for agricultural purpose and Tehsildar has also found the crop standing over the land in question and canal is situated near the petitioner's plot. Thus the valuation was wrongly calculated as a residential area in square feet.

3. The petitioner has also filed the document to establish that nearby plot of the petitioner being Plot No. 960Ka is also used for agricultural purposes and according to the circle rate the stamp was paid by the purchaser of the said land, a copy of the sale deed has been brought on the record as Annexure-3 to the writ petition. The petitioner has also filed a copy of sale deed in respect to another adjoining Plot No. 401, on which the stamp duty treating the plot as agricultural plot, has been realised.

4. A counter affidavit has been filed on behalf of respondents. The stand taken in the counter affidavit is that the land has been found to be a residential potential though it is situated 1Km. away from the road. In the counter affidavit, a copy of the inspection report has been brought on the record as Annexure CA-1.

5. Learned Counsel for the petitioner submits that the stamp duty paid by him on the sale deed was proper and the respondent no. 3 has passed the order ignoring the objection and the spot inspection report submitted by Tehsildar. He further urged that on the basis of future potential the stamp duty cannot be assessed. The petitioner is using the land for agricultural purposes, which is also evident from the report of Tehsildar.

6. Learned Standing Counsel has taken the Court to various paragraphs of the counter affidavit and he submits that no interference is called for.

7. I have heard learned Counsel for the petitioner and learned Standing Counsel.

8. The Governor of the State of U.P. in exercise of powers under Section 27 of the Act, 1899 has framed the "Uttar Pradesh Stamp (Valuation of Property) Rules, 1997" (for Short, "Rules, 1997"). Section 27 of the Act, 1899 provides that party presenting an instrument relating to immovable property is chargeable with ad valorem duty. Section 27 reads as under;

"27. Facts affecting duty to be set forth in instrument -(1) The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.

(2) In the case of instruments relating to immovable property chargeable with an ad valorem duty on the value of the property, and not on the value set forth, the instrument shall fully and truly set forth the annual land revenue in the case of revenue paying land, the annual rental or gross assets, if any, in the case of other immovable property, the local rates, municipal or other taxes, if any, to which such property may be subject, and any other particulars which may be prescribed by rules made under this Act."

9. Section 47A provides the procedure to deal with undervalued instruments. The Rules, 1997 provide the detail procedure for the assessment of the stamp duty. Rule-4 deals with the fixation of minimum rate for valuation of land, construction value of non-commercial building and the minimum rate of rent of commercial building. Rule-4 of the Rules, 1997 reads as under;

"4. Fixation of minimum rate for valuation of land, construction value of noncommercial building and minimum rate of rent of commercial building.--

(1) The Collector of the district shall biennially, as far as possible in the month of August, fix the minimum value per acre/per square metre of land, the minimum value per square metre of construction of non-commercial building and the minimum monthly rent per square metre of commercial building, situated in different parts of the district taking into consideration the following facts--

(a) in case of land--

(i) classification of soil;

(ii) availability of irrigation facility;

(iii) proximity to road, market, bus station, railway station, factories, educational institutions, hospitals and Government offices; and

(iv) location with reference to its situation in urban area, semi urban area or country-side;

(b) in case of non-commercial building--

(i) cost of material used in the construction of building;

(ii) labour charges;

(iii) type of construction, age and the depreciation of building;

(c) In case of commercial building--

(i) prevailing rent in locality; and

(ii) nature of economic activity in the locality.

(2) The Collector of the district may, suo motu or an application made to him in this behalf, on being satisfied about the incorrectness of the minimum value of land or of the construction of non-commercial building of the minimum rent of a commercial building fixed by him under sub-rule (1), for reasons recorded in writing, revise the same within a period of two years from the date of fixation of minimum value or rent as the case may be.

(3) The Collector of the district shall after fixing the minimum value per acre/per square metre of land, and of the construction of non-commercial building and the minimum rent per square metre of commercial building under sub-rule (1), send a statement in there parts to the Registrar. The first part of such statement shall contain the division of each sub-district of the district under his jurisdiction into urban area, semi-urban area and the countryside, the second part shall specify the minimum value of land situated in different parts of the sub-district and the third part shall contain, in the case of the non-commercial building the minimum value of construction and in the case of commercial building the minimum rent fixed under sub-rule (1).

(4) The Registrar shall supply copies of statement mentioned in sub-rule (3) to the Sub-Registrars under his control and shall also forward a copy of the same to the Inspector-General of Registration, Uttar Pradesh.

(5) Every Registering Officer shall cause a copy of the above statement to be affixed on the notice board outside the registration office."

10. Rule-5 of the Rules, 1997 provides the method of calculation in respect of minimum value of land, grove, garden and building. Rule-5 reads as under;

"5. Calculation of minimum value of land, grove, garden and building.--

For the purposes of payment of stamp duty, the minimum value of immovable property forming the subject of an instrument shall be deemed to be such as may be arrived at as follows :--

(a) In case of land---

Minimum value

Whether agricultural or non-agricultural

Area of land multiplied by minimum value fixed by Collector of the district under Rule 4.

(b) In case of grove or garden---

(I) if assessed to revenue

Minimum value of the land as worked out in the manner laid down in clause (a) plus the value of the trees standing thereon worked out on the basis of the average price of the trees of the same nature, size and age prevailing in the locality on the date of the instrument;

(ii) if not assessed to revenue or is exempted from it and is rented.

Twenty times the annual rent plus the premium, if any, plus the value of trees standing thereon determined in accordance with sub-clause (i);

(iii) if not assessed to revenue or is exempted from it and profit has arisen during three years immediately preceding the date of the instrument.

Twenty times the average annual profit plus the value of the trees standing thereon determined in accordance with sub-clause (i);

(iv) if not assessed to revenue or is exempted from it and no profit has arisen during the three years immediately preceding the date of the instrument.

Twenty times the assumed annual profit plus the value of the trees standing thereon determined in accordance with sub-clause (i).

(c) In case of buildings---

(i) Non-commercial building.

Minimum value of land whether covered by the construction or not, which is subject matter of instrument as worked out under clause (a) plus the value of construction of building arrived at by multiplying the constructed area of each floor of the building by the minimum value fixed by the Collector of the district under Rule 4;

(ii) Commercial building

Three hundred times the minimum monthly rent of the building, which is the subject-matter of the instrument, calculated by multiplying the constructed area of each floor of the building with the minimum rent fixed by the Collector of the district under Rule 4."

11. In the present case the only dispute is that whether the stamp duty is payable under Rule-4 or Rule-5 of the Rules, 1997. From a perusal of Rules-4 and 5 it is evident that certain criteria have been laid down for the determination about the nature of the land. Either the Act or the Rule does not provide the word "potential of the land", therefore, the stamp duty is payable on the nature of the land, whether it is a commercial, residential, agricultural, grove, garden etc. Nowhere it is provided that the stamp duty should be payable on the potential of the land but the assessment is to be made on the basis of the nature of land at the time of execution of the sale deed.

12. From a perusal of Tehsildar's report dated 11.09.1995, which has been submitted to the respondent no. 3 after spot inspection, three things are clear;

(i) It is an agricultural land;

(ii) There was no construction over the land, and

(iii) The land is used only for agriculture [d`f"k (dsoy) ].

13. From the impugned order passed by respondent no. 3 it is clear that only one factor has been taken into consideration that from the report of Tehsildar it is evident that the abadi is 50 meters away. There is no finding recorded by the Tehsildar that the land is not used for agriculture. The respondent no. 3 has not considered the objection of the petitioner and he has misread the report submitted by the Tehsildar, thus the finding recorded by him is perverse. The Revisional Court has repeated the same finding that the land is suitable for the residential purpose. It has further found that although it is true that the land is under the use for agriculture purposes and the crop was found there, but the stamp duty ought to have been paid on higher rate. The said findings have not been based on any material and it appears that it is only on the basis of surmises and conjectures. Therefore, the finding recorded by the Revisional Court is totally illegal and is based on assumption.

14. In the counter affidavit it is clearly mentioned that the Collector has assessed the stamp duty on the basis of future potential of the land. The issue whether the stamp duty is payable at the time of execution of the sale deed as per existing nature of the land or on the basis of the future potential of the land, is no more res integra. The Supreme Court in the case of State of Uttar Pradesh and others v. Ambrish Tandon and another, 2012(5) SCC 566, has observed as under;

"15.....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 the 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......"

15. The Supreme Court in the case of P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others, (1995) 2 SCC 305, also had taken the similar view.

16. This Court also in a catena of decisions has taken the same view. The reference may be made to the decisions of this Court in the cases of Smt. Sushila Verma v. State of U.P. and others, 2006(1) ADJ 245 (All); Aniruddha Kumar and Ashwini Kumar v. Chief Controlling Revenue Authority, Uttar Pradesh Allahabad and another, (2000) 3 AWC 2587; Prafulla Singh v. State of U.P. and others, 2009(3) AWC 2310; and Mohit Kumar (Minor) v. Commissioner, Jhansi Division, Jhansi, (2006) 8 ADJ 235.

17. In view of the law laid down by the Supreme Court and this Court, the order of respondent no. 3 and the Revisional order, which are impugned in this writ petition, need to be set aside for the aforestated reasons. Accordingly, both the orders are set aside. At the time of moving of this writ petition, this Court on 02.08.2001 had granted an interim order that the petitioner shall pay adequate security to the satisfaction of respondent no. 3.

18. In view of the admitted position that on the basis of the potential of the land the impugned orders had been passed and also the report of the Tehsildar, from which it is demonstrably established that the land is used for agricultural purposes, the respondent no. 3 is directed to pass a fresh order in the light of law mentioned in this order, expeditiously, preferably within a period of four months from the date of receipt of this order.

19. Thus, the writ petition is allowed.

20. No order as to costs.

Date :- 10.10.2013

DS