Shakeel Ahmad vs Additional Commissioner ...
2019 Latest Caselaw 4596 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 26.2.2019
 
Delivered on 16.5.2019
 
AFR
 
Reserved
 

 
Case :- MISC. SINGLE No. - 1494 of 2009
 
Petitioner :- Shakeel Ahmad
 
Respondent :- Additional Commissioner Judicial Faizabad
 
Counsel for Petitioner :- D.K.Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra, J.

1. This writ petition has been filed by the petitioner, praying for a writ in the nature of certiorari, quashing the order dated 15.9.2008 passed by the District Magistrate, Barabanki in Stamp Case no.103/44/25/22/07-08 under Section 47-A/33 of the Stamp Act (for short ''the Act') and also for quashing the appellate order passed by the Additional Commissioner (Judicial), Faizabad Division, Faizabad dated 28.2.2009, whereby he has partly allowed the Appeal No.171/100 preferred by the petitioner.

2. It is the case of the petitioner that he purchased a part of Gata no.222 situated in Village Asoomau, Pargana Rudauli, Tehsil Rudauli, District Barabanki from the recorded tenure holder Smt. Amrunnisha through registered sale deed dated 28.10.2005. On 1.4.2006, the Sub Registrar, Rudauli, District Barabanki made a spot inspection and submitted a report to the Collector (Stamps), indicating that on the land in question, two shops had been built, each measuring 8X10 feet and that the land surrounding the property was being used for residential purposes. The spot inspection report led to reference being made under Section 47-A/33 of the Act to the Collector (Stamps) and notice was issued to the petitioner to submit his reply.

3. The petitioner disputed the spot inspection report and stated that the land purchased by him was agricultural land and was being used for agricultural purposes at the time of sale and the shops were constructed two months after the purchase of the property in question. The petitioner filed some copies of the bills relating to purchase of construction material.

4. It has been submitted by the learned counsel for the petitioner that despite such objections being raised, the Collector, Barabanki passed the order imposing a liability of payment of Rs.1,57,680/- and also directed that from the date of execution of sale deed till the date of payment, 1.5% simple interest be charged.

5. In the appeal preferred by the petitioner, the Additional Commissioner (Judicial), Faizabad Division, Faizabad, modified the order only to the extent that the petitioner was held liable to pay only Rs.51,280/- as stamp duty on the valuation of two shops, that were constructed by the petitioner after purchasing the land. It is the case setup by the petitioner that he had already paid 20% extra stamp duty as the land of the petitioner was situated adjoining the road.

6. Sri D.K. Mishra, while arguing the matter on behalf of the petitioner, has argued that two Division Benches of this Court in Kishore Chandra Agarwal vs. State of U.P. and others, 2008 (104) RD 235 and Smt. Anasuya Singh vs. Commissioner, Faizabad Division, Faizabad and another, 2008 (26) LCD 588, have held that situation of a property in an area close to a decent colony would not by itself make the plot in question part of the colony and it should not be a factor to be taken into account by the authority in determining the market value. The agricultural land situated on the road side or on the highway in semi urban area or even in countryside cannot be treated as commercial or residential, unless the area is declared so by the Master Plan prepared by the Development Authority.

7. It has been submitted further that the land in question is still recorded as agricultural land in the khatauni of 2009 and no declaration of change of user under Section 143 of U.P.Z.A. and L.R. Act has been made by the appropriate authority.

8. Learned counsel for the petitioner, during the course of argument, has also brought to the notice of the Court several judgments rendered by the coordinate Benches viz. Writ-C No.5403 of 2003: Surendra Yadav and others vs. State of U.P. and others, decided on 31.8.2017, Writ-C No.7764 of 2004: Mahendra Singh and others vs. State of U.P. and another, decided on 4.9.2017 and also the judgment rendered by the Full Bench in the case of Pushpa Sareen vs. State of U.P., 2015 (3) ADJ 136 (FB), to buttress his argument on the proposition that the market value of the property for which sale deed has to be registered, has to be seen on the date on which it is bought and there should be no presumption with regard to its potential for being used in the future for residential and commercial purposes.

9. Sri Vivek Shukla, learned Additional Chief Standing Counsel, on the other hand, has placed reliance upon a coordinate Bench decision in the case of Wasi Ur Rehman and another vs. Commissioner, Moradabad Division and others: Writ-C No.47533 of 2010, decided on 26.2.2015, and has argued that the Collector while determining the correct market value of the property for which, registered agreement has been executed is well within his jurisdiction to look into the surrounding circumstances. The object of the Act is to collect proper stamp duty on an instrument or conveyance. An obligation is cast on the authorities to properly ascertain its true value. The market value of a property may vary from village to village, from location to location and even may differ on the basis of size of the plot and other relevant factors like predominant land use in the surrounding area. Entry in the revenue record though relevant, is not the sole determining factor of the market value under the Act. The Collector may also look into the surrounding circumstances and if he has reason to believe that the property in question is deliberately undervalued, he could also impose penalty on the purchaser for paying less stamp duty.

10. Having heard the rival submissions, this Court has perused the judgments cited by the learned counsel for the parties.

11. It is no doubt true that several Division Benches of this Court before the Full Bench decision in the case of Pushpa Sareen (supra) was rendered on 12.2.2015, had held that future potential for residential or commercial use of the property cannot lead to a presumption that the sale deed has been deliberately undervalued, if the land in question continues to be recorded as agricultural land and no declaration under Section 143 of U.P.Z.A. and L.R. Act for change of land user has been made by the competent authority. However, even from a perusal of the Full Bench rendered by this Court on several questions referred by the Chief Controlling Revenue Authority to it, it is apparent that the Full Bench while answering the second question i.e. whether the Collector, Stamps has power to fix the valuation of a plot on the assumption that the same is likely to be used for commercial purposes, and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector?, has observed in Paragraph nos.20 to 29 of the decision that a Collector under the second clause of Section 47-A of the Act is empowered to determine the market value of the property. The Collector in making that determination is not bound either by the value as described in the instrument or for that matter, the value as discernible (circle rate), as an obligation is cast upon the Collector to properly ascertain the true value of the property for which, conveyance has been registered and he is not bound by the apparent tenor of the instrument. He can even decide the real nature of the transaction and value of such property, ignoring apparent mention therein of its nature either as a lease deed, sale deed or a partnership deed. The Collector can look into the material placed before him and even conduct an enquiry to ascertain what is the likely value of such property in the area surrounding the property in question. If such enquiry gives him material to test, prima facie, whether the description of valuation in an instrument is proper or not, he may issue notice and thereafter, hear the parties and then pass appropriate orders. The Collector while determining the true value of an instrument may also look into the circle rate, but the circle rate does not take away the right of a person to show that the property in question is correctly valued as he gets an opportunity in case of under valuation to prove it before the Collector after reference is made.

12. The determination may be made on the basis of the market value of the property on the date of the instrument and the Collector should be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use of the land to which, the land can be put on the date of execution of the instrument. However, the Collector cannot launch upon a speculative enquiry about the prospective use to which, the land may be put to use at an uncertain future date, but the market value of the property can be determined with reference to the use to which the land is capable reasonably of being put to use immediately or in the proximate future. "The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again, the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land."

13. In Para-28 of the judgment, the Hon'ble Full Bench has referred to the judgment rendered by the Supreme Court in the case of State of U.P. and others vs. Ambrish Tandon and another (2012) 5 SCC 566, and has observed that where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser.

14. It is apparent from the observations made by the Full Bench of this Court in answering the reference made by the Chief Controlling Revenue Authority that this Court has left it open to the Collector to determine the market value of the property taking into account its commercial potential, if the land in surrounding area has been put to commercial use at the time of execution of sale deed or at a time quite proximate to it.

15. Now, with regard to the orders impugned in this petition, the Collector, Barabanki while deciding the reference under Section 47-A/33 of the Act with respect to the property in question i.e. Plot no.222 ad-measuring 0.144 hectare bought through registered sale deed dated 28.10.2005 by the petitioner, has found that the Sub Registrar, Rudauli, Barabanki had inspected the spot in question on 1.4.2006 and submitted his report on 18.5.2006 that the land in question was adjacent to the road side for which, the purchaser had given 20% extra stamp duty. However, the boundaries as shown in the sale deed were quite misleading. The purchaser has shown that the property in question is surrounded by agricultural field and grove of one Sant Ram. In the spot inspection carried out by the Sub Registrar, Rudauli, Barabanki, it had been reported along with a detailed map of the surrounding area of the property in question that it was situated at Sarai Ahmad Link Marg, adjacent to the canal and next to the road made on the banks of canal. It was on the corner where the link road met the canal. The western part of the land in question was bounded by the canal and eastern part was bounded by Plot nos.218, 219, 220, 221 and not the grove of Sant Ram as was mentioned in the sale deed. There was no grove as mentioned in the sale deed. There were two shops found to have been constructed on the plot in question.

16. The Collector came to the conclusion that the description of the property and its boundaries had been wrongly mentioned deliberately to undervalue the instrument. In the objection filed by the petitioner, there was no averment that spot inspection report along with map was in any way falsely or wrongly prepared. A bald denial has been made by the petitioner. The Collector, therefore, determined a discrepancy in stamp duty of Rs.51,280/- and in registration fee of Rs.3,840/- i.e. a total of Rs.55,120/-

17. The Collector has also observed that there was deliberate concealment resorted to, by the purchaser and, therefore, a penalty of Rs.1,02,560/- was imposed also on the petitioner. The liability determined was Rs.1,57,680/-, which was to be deposited by the petitioner in the Treasury along with simple interest @ 1.5% from the date of registration of the sale deed i.e. w.e.f. 28.10.2005 till the date of payment.

18. Against the order of the Collector dated 15.9.2008, the petitioner had filed an appeal under Section 56 of the Act. The appellate authority while considering the appeal gave reasonable opportunity of hearing to the petitioner, but the petitioner could not prove that the spot inspection report was in any way falsely prepared. No documentary evidence was produced except for certain receipts of buying construction materials in January, 2006. The Khasra was examined of the period in question and it was found that under Column-18 for 1416 Fasli, the area was shown as abadi.

19. The appellate court had modified the penalty imposed, taking into account the Government Order dated 12.12.2002 instead of Government Order dated 28.7.2000, which was relied upon by the Collector to impose penalty. The penalty imposed was, therefore, reduced, determining it to be the amount determined of discrepancy in stamp duty as Rs.51,280/- only. The petitioner has challenged the order dated 28.2.2009 of the appellate authority.

20. This Court finds from a perusal of both the orders impugned that they have been passed after giving opportunity of hearing to the petitioner and the petitioner has failed to produce any documentary evidence to show that the spot inspection report and map prepared by the Sub Registrar, Rudauli, Barabanki, was in any way falsely prepared.

21. There is a specific finding regarding the material concealment on the part of the petitioner in describing the boundaries of the plot purchased by him in an attempt to undervalue the instrument and thus, defalcated legitimate revenue payable to the public exchequer.

22. The writ petition is dismissed. No orders as to costs.

23. It is, however, provided that in case certain amount has already been deposited by the petitioner in pursuance of the impugned orders, the same shall be adjusted while making a final calculation by the office of the Sub Registrar, Rudauli, Barabanki. The final calculation of the payment to be made shall be delivered to him within a period of four weeks from today. On such a demand being made, the petitioner shall make the payment as due and admissible within a further period of four weeks.

24. Since this Court has not interfered with the impugned orders, the interest as admissible under the Act and the Rules shall also be payable by the petitioner as determined by the Sub Registrar, Rudauli, Barabanki from the date of execution of the registered sale deed i.e. 28.10.2005 upto the date of actual payment being made.

Dated: May 16, 2019

Sachin