Allahabad High Court
Kedar Nath And 3 Ors. vs State Of U.P. Through Secy. Revenu Civil ... on 2 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:34126
Court No. - 17
Case :- WRIT - C No. - 1003233 of 2007
Petitioner :- Kedar Nath And 3 Ors.
Respondent :- State Of U.P. Through Secy. Revenu Civil Sectt Lko.
Counsel for Petitioner :- P.S.Pandey
Counsel for Respondent :- C.S.C
Hon'ble Manish Mathur,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Mr. P.S. Pandey, learned counsel for petitioners and learned State Counsel for opposite parties.
3. Petition has been filed challenging order dated 18.09.2000 passed under Section 47A/33 of the Indian Stamp Act, 1899 whereby deficiency in Stamp Duty alongwith penalty has been imposed upon petitioners. Also under challenge is the revisional order dated 18.04.2007 whereby revision preferred by petitioners has been rejected.
4. It has been submitted that petitioners purchased the property in question through sale deed executed on 27.07.1999 whereafter proceedings under Section 47A/33 of the Act were instituted in pursuance of report dated 15.03.2000 resulting in passing of the impugned orders. It is submitted that during the course of proceedings, a spot inspection was undertaken by the prescribed authority which forms the basis of the impugned order and the property in question has been declared to be under valued adjudging it to be commercial in nature only on the basis that it is surrounded by a boundary wall in which debris has been collected and that it is situated on the Kanpur Lucknow link road.
5. Learned counsel for petitioners submits that the inspection report itself clearly indicates the fact that no commercial activity was ongoing on the plot in question and it has been taken to be a commercial property only on account of the fact of its location and that it is surrounded by a boundary wall. Learned counsel submits that none of the factors indicated by this Court in the case of Ram Khelawan @ Bachcha versus State of U.P. and Ors. reported in 2005 (2) JCLR 610 (Allahabad) has been taken into account particularly since no exemplars or revenue records were examined by the prescribed authority. It has been submitted that even the revisional authority has not adjudicated the matter on the aspects required to be seen.
6. Learned State Counsel has refuted submission advanced by learned counsel for petitioners with the submission that a perusal of the impugned order will make it evident that the spot inspection was conducted in the presence of petitioners and no objections thereto were filed by them. It is submitted that the inspection also indicates that no agricultural activity was going on the plot in question which is situated on the Kanpur Lucknow link road and abuts a factory and therefore there is no error in considering the property to be commercial in nature.
7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the impugned order passed under Section 47-A/33 of the Act is based completely on the spot inspection report which indicates that the property has been considered to be commercial in nature on the basis that it is surrounded by a boundary wall without any agricultural activity being undertaken and that it is located on the Lucknow Kanpur link road.
8. In the case of Ram Khelawan (supra), the aspect of under valuation which was required to be considered by the prescribed authority has been laid down as follows:-
"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."
9. The aforesaid judgment clearly enunciates the law of three standard principles for determining market value as per the land acquisition cases, which have also been made applicable upon the Stamp Act and as per which the comparable same method and other factors are required to be seen by the prescribed authority in order to which a subjective satisfaction regarding under valuation of the instrument of transfer.
10. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that the order is based only on assumptions surmises to the effect that since the property is surrounded by a boundary wall and no agricultural activity is undertaken, it would be deemed to be commercial in nature. The authority in question has not adverted either to any revenue records or even exemplars of surrounding areas. There is no discussion of the fact as to whether the area in which the property is situated is declared to be a part and parcel of any town area or municipal area.
11. In the considered opinion of this Court, the nature of property under transfer cannot be considered to be commercial only on account of the fact that it is surrounded by a boundary wall and no agricultural activity is being undertaken unless and until the prescribed authority refers to any exemplars of surrounding areas and considering the nature of the locality where the property is situate. Such a course of action having not been undertaken by the prescribed authority, renders the order vitiated.
12. It is seen that in the memorandum of appeal, petitioner has taken a specific pleading with regard to aforesaid which has not been considered by the revisional authority either.
13. In view of aforesaid, the impugned orders dated 18.09.2000 passed under Section 47(A)/33 of the Stamp Act and the revisional order dated 18.04.2007 being against provisions of law are hereby set aside. Consequences to follow.
14. It has been submitted that in pursuance of the impugned orders, petitioner has already deposited the deficiency of Stamp Duty. In view of order passed hereinabove, petitioner is entitled to a refund of the amount so deposited, which shall be refunded to him forthwith.
15. Resultantly, the petition succeeds and is allowed. Parties to bear their own cost.
Order Date :- 2.5.2024
Satish
