Allahabad High Court
Shivadutt Mishra vs Commissioner Gorakhpur Division ... on 27 January, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 04.01.2023
Delivered on 27.01.2023
Court No. - 81
Case :- WRIT - C No. - 2130 of 2020
Petitioner :- Shivadutt Mishra
Respondent :- Commissioner Gorakhpur Division And 2 Others
Counsel for Petitioner :- Narayan Dutt Shukla,Sri R.C. Singh (Senior Advocate)
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Shyam Shamshery,J.
1. Sri R.C. Singh, learned Senior Advocate assisted by Sri Narayan Dutt Shukla, learned counsel for petitioner, in support of prayer raised in this writ petition, submitted that appropriate authority under Indian Stamp Act, 1899 (as applicable in State of U.P.) has erroneously and illegally passed order under Section 47-A, whereby deficiency in stamp duty was fixed ignoring that instrument in question was a gift deed. Learned Senior Advocate further submitted that deficiency, if any, cannot be determined on the basis of potentiality or market value when instrument was a gift deed and it ought to have been considered only with regard to nature of land which was agricultural. In order to buttress his argument, learned Senior Advocate has placed reliance on this Court's judgments in Aniruddha Kumar and another vs. Chief Controlling Revenue Authority, U.P. Allahabad and another, 2000(3) AWC 2587; Ram Khelawan alias Bachcha vs. State of U.P. and another, 2005(2) AWC 1087; Asif Ali vs. State of U.P. and another, 2010(3) AWC 2841; Sumit Gupta vs. State, AIR 2011 All 135; Smt. Somlata Tanwar and others vs. State of U.P. and others, 2017(2) AWC 1625; and, Vijay Kumar vs. Chief Controller, Board of Revenue and others, 2017(136) RD 364.
2. Per contra, Sri Dharmendra Prasad Mishra, learned Standing Counsel appearing of State-Respondents, has supported impugned orders, however, he was not able to convince the Court on legal issue discussed in above referred judgments.
3. Heard learned counsel for petitioner and perused the material available on record.
4. The instrument in question is a gift deed of a land which was declared as agricultural land. By means of impugned order dated 01.12.2018 passed under Section 47-A of Indian Stamp Act, which was confirmed in appeal also, the concerned authority has divided land in two parts. So far as first part is concerned, it was admitted to be an agricultural land as on inspection it was found that sugarcane crop was sown. So far as second part of land was concerned, on inspection it was found that it was not used for the purpose of agriculture for last many years and it was treated as a non-agricultural land. Further, considering surrounding location of land, according to circle rate, stamp duty was determined and as there was a deficiency, impugned order was passed.
5. Above referred judgments are incorporated in latest judgment passed in Vijay Kumar (supra) and relevant paragraphs of judgment are mentioned hereinafter:
"6. The next judgment relied upon by the learned counsel for the petitioner is also of a learned Single Judge reported in 2005 (2) AWC 1087, Ram Khelawan alias Bachcha Vs State of U.P. and another wherein the facts of the case are similar to that of the present case and in that case also the land on the date of inspection was found to be vacant but deficiency of stamp duty was calculated treating the land in question to be of abadi use on the basis of its potential to be used as abadi and therefore, the court held that the land in question would have to be determined on the basis of its nature and status at the time of execution of the sale deed and not on the basis of the potential use to which the land can be put in future.
7. In my opinion, both the judgments referred to above squarely apply to the facts of the present case. In the present case also on the date of inspection, the land in question was agricultural land though lying vacant. There was no declaration under Section 143 of ZA & LR Act, 1950 changing the nature of the land from agricultural to non-agricultural and therefore, the stamp duty could not have been determined in respect of the said land on the basis of construction of colonies by builders in the nearby area."
6. Considering facts of present case as well as position of law referred above, in the present case there is nothing on record that there was a declaration under Section 143 of U.P. Zamindari Abolition and Land Reforms Act, 1950 with regard to change of nature of land from agricultural to non-agricultural, therefore, authorities have committed error in treating some part of land to be non-agricultural.
7. In view of above, writ petition is allowed. Impugned orders dated 01.12.2018 and 19.12.2019 are hereby set aside. Matter is remanded back to determine afresh requisite stamp duty considering it to be an agricultural land only and if authority still finds deficiency of stamp duty, appropriate order may be passed. Aforesaid proceedings shall be concluded within a period of six weeks from today.
Order Date :-27.01.2023
AK
