Abdul Mannan vs State Of ...
2023 Latest Caselaw 9366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 22
 

 
Case :- WRIT - C No. - 34488 of 2019
 

 
Petitioner :- Abdul Mannan
 
Respondent :- State Of U.P.Throu.Prin.Secy.Revenue Deptt.Lucknow And Ors.
 
Counsel for Petitioner :- Mohan Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.

Petition under Article 226 of the Constitution of India has been filed challenging order dated 27th July, 2017 passed under Section 47-A of the Indian Stamp Act 1899 whereby property which is subject matter of the instrument of transfer in question was found to be under valued since stamp duty thereupon was required to be assessed at non agricultural rates, although it has been assessed by petitioners as agricultural. Also under challenge is the revisional order dated 27th August, 2019 filed under section 56 of the said Act.

Learned counsel for petitioner submits that instrument of transfer pertaining to property in question was executed on 25th September, 2010 and two spot inspections were made pertaining to property on 3rd February, 2011 and 12th August, 2011 but both of them were discarded due to discrepancy and fresh spot inspection was directed, which took place subsequently and report dated 8th July, 2014 was submitted by Sub Divisional Magistrate indicating the fact that property in question was within 500 meters of a major traffic intersection. The report also indicated that the nature of property was residential and no agricultural activity was being undertaken at the time of spot inspection.

Learned counsel for petitioner submits that impugned orders have been passed placing reliance only on the aforesaid spot inspection report dated 8th July, 2014 without any exemplars being considered. It is submitted that petitioner had specifically taken a ground of violation of Rule 7(3) (c) of U.P. Stamp (Valuation of Property), Rules 1997 which were mandatory in nature and since the spot inspection report dated 8th July, 2014 was submitted without issuance of notice to petitioner, the same can not be taken into consideration.

Learned counsel for petitioner further submits that even otherwise spot inspection report in itself can not be sole basis for passing of order under section 47-A of the Act and location and circumstances of the property are also required to be seen on the basis of exemplars, which have not been considered in the present case. Reliance has been placed on judgments rendered by coordinate Benches of this Court in the case of Ram Khelawan alias Bachchha versus State of U.P. and others reported in 2005 (23) Lucknow Civil Decisions 1681 and in the case of Ganga Ram versus State of U.P. and others reported in 2020 (38) Lucknow Civil Decisions 1991 as considered subsequently in the case of Ajay Agarwal and others versus Commissioner, Lucknow and others passed in Writ C No. 1000019 of 2008. It is also submitted that in fact exemplar had been provided by the petitioner to the effect that another sale deed had been executed on 25th September, 2010 itself pertaining to an adjoining property in which stamp duty has not been assessed at non agricultural rates but the impugned orders have ignored aforesaid exemplar.

Learned State Counsel appearing on behalf of opposite parties has submitted that adequate notice was given to the petitioner prior to spot inspection held in the year 2014. It is submitted that impugned orders even though passed on the basis of aforesaid report are valid and legal. It is further submitted that since nature of property is non agricultural and is within parameters of 500 meters from the major intersection on Lucknow-Bahriach Highway, as would be evident from inspection report dated 8th July, 2014, the impugned orders have been correctly passed. He has also placed reliance on the judgment rendered by this Court in the case of Haroon Ahmad and others versus State of U.P. and others,Writ C No. 50302 of 2009 to submit that even if user of property is not changed under Section 143 of U.P. Zamindari Abolition and Land Reforms Act, the same would not have any effect for the purposes of valiation of stamp duty in terms of Section 142 of the said Act. As such it is submitted that the orders impugned have been passed validly and in consonance with the Act of 1899.

Upon considerations of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that impugned orders have been passed placing reliance primarily on the spot inspection report dated 8th July, 2014 submitted by the Sub Divisional Magistrate. Order also indicates that the property has been considered as non agricultural on the ground that it is situate within 500 meters of major intersection on a state highway and that no agricultural activity is being conducted over the property in question. It is also evident from reading of aforesaid report dated 8th July, 2014 that it does not advert to any notice having been given to petitioner prior to spot inspection of the property. Rule 7 (3)(c) of the Rules of 1997 which clearly stipulates prior notice being given to the assessee before spot inspection has been held to be mandatory by this court in the case of Ganga Ram (supra).

Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that no prior notice has been provided to the petitioner before undertaking the spot inspection in 2014. Specific averment with regard to same has been made in paragraph 14 of the writ petition and has been denied in the counter affidavit without annexing any document to corroborate notice having been issued to petitioner prior to spot inspection. As such clearly judgment rendered by co-ordinate Bench of this court in the case of Ganga Ram (supra) would be squarely applicable.

It is also noticed that impugned orders have placed reliance on a spot inspection report which has been filed after almost four years of the date of execution of deed.

Hon'ble Supreme Court in the case of State of U.P. and others versus Ambrish Tandon and another reported in (2012) 5 SCC 566 has clearly held that spot inspection of the property which is subject matter of instrument of transfer is to be seen as on the date of execution of deed and not its situation thereafter. In the present case, it is evident that situational circumstance of the property in question has been considered by the impugned orders almost after four years of execution of deed. The aforesaid aspect itself is enough to hold that the orders are clearly erroneous.

Another co-ordinate Bench of this court in the case of Ram Khewalawn (supra) has also held that spot inspection report can not be the sole basis of considering valuation of property which is subject matter of instrument of transfer in the following manner:-

"9. Entire basis of report of Tahsildar and judgment of A.D.M. is that the land is of residential use/ potential (Awasiya prayojan). Even if it is assumed for the sake of argument that the land in dispute is having Abadi potential, still no basis of determining its valuation has been given. Once sale deed is registered then for determining market value of the land under Section 47-A Stamp Act no reliance can be placed upon Rules of 1997. If a case is instituted under Section 47-A of the Stamp Act after registration of the deed particularly sale-deed then valuation has to be determined on the general principles applicable for determining market value of immovable property. The method of determining market value and the factors to be taken into consideration for the said purpose have been discussed in detail and laid down with precision by the Courts white determining quantum of compensation under Land Acquisition laws. Exactly same principles shall apply for determining market value while deciding a case by Collector under Section 47-A Stamp Act.

11. The three standard principles of determining market value in Land Acquisition cases are; comparable sale method i.e. value of similar adjoining property sold in near past, multiplication by a suitable multiplier of monthly or yearly rent, income or yield; and adding the cost of construction to the value of the land."

In the case of Ajay Agarwal and others (supra) this Court has held that power exercised by Collector under Section 47-A of the Act is not pedantic in nature but is required to be made on the basis of subjective satisfaction with regard to material on record which can not be only on the basis of spot inspection report.

Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is evident that impugned orders dated 27th July, 2017 and 27th August, 2019 have been passed against judgments rendered as observed herein above and are therefore quashed by issuance of writ in the nature of Certiorari.

Consequently the petition succeeds and is allowed. Parties to bear their own costs.

Order Date :- 31.3.2023

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