Smt.Kiran Gupta vs Additional Commissioner Lucknow ...
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Allahabad High Court

Smt.Kiran Gupta vs Additional Commissioner Lucknow ... on 23 May, 2024

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:39170
 
Court No. - 17
 

 
Case :- WRIT - C No. - 1005072 of 2007
 

 
Petitioner :- Smt.Kiran Gupta
 
Respondent :- Additional Commissioner Lucknow Division And Another
 
Counsel for Petitioner :- Narvind Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Narvind Kumar Singh learned counsel for petitioner and learned State Counsel for opposite parties.

2. Rejoinder affidavit is taken on record.

3. Petition has been filed challenging order dated 20th September, 2005 passed under Section 47-A(3) of Indian Stamp Act 1899 whereby deficiency of stamp duty has been indicated in the instrument of transfer registered on 31st July, 1997. Also under challenge is the appellate order dated 28th May, 2007 passed under Section 56 of the Act.

4. Learned counsel for petitioner submits that a perusal of the order passed under Section 47-A(3) will make it evident that the same has been passed on the basis of spot inspection report conducted by Sub Divisional Magistrate on 27th January, 2005. It has been submitted that impugned order has been passed imposing stamp duty at the rate of Rs. 125/- per square feet instead of Rs. 15/- per square foot which was paid by the petitioner. Learned counsel has submitted that impugned order has been passed on the basis of future potential of the plot in question as well as its proximity to a developed colony while admitting the fact that the plot in question was not situate in the town area but outside it. It is further submitted that stamp duty has been incorrectly imposed upon petitioner since the status of the plot in question as on the date of execution of sale deed only was a material factor and not its future potential nor its proximity to a developed area. Learned counsel has placed reliance on judgments rendered by Hon'ble Supreme Court in the case ofState of U.P. and others versus Ambrish Tandon and another reported in (2012) 5 SCC 566 and Smt. Prakashwati versus Chief Controlling Revenue Authority, Board of Revenue, Allahabad & others reported in (1996) 4 SCC 657.

5. It is submitted that even the appellate order has not considered the aforesaid aspects and has passed order also on the same twin considerations.

6. Learned State Counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner with submission that it has been clearly indicated in the impugned order that Rs. 125/- per square feet was payable on account of the fact that the same was applicable as per notification regarding circle rates which clearly was applicable to those plots which were purchased in the vicinity of a developed colony particularly when the plot was being taken for purposes of a new colony. It is further submitted that petitioner did not produce the C.H. Forms 41 and 45 on which he had placed reliance to submit that the plot in question was agricultural and therefore in the absence of any such corroboratory evidence, the prescribed authority has recorded a correct decision.

7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the trial court has placed reliance on spot inspection report submitted by Sub Divisional Magistrate and has thereafter recorded a finding that the rate of Rs. 125/- per square feet would be applicable to those properties which have been purchased for the purposes of establishing a colony. The aforesaid rate has thereafter been imposed due to close proximity of the property under transfer with a developed colony. The order also indicates that as per report, the plot is residential in nature and close to the Mohalla Rangrejan in the Nagar Palika Paliya.

8. It is thus quite evident that impugned order has been passed on the location of plot in question being in close proximity to a developed colony. However the order does not make it evident that the plot under transfer itself is located within the municipal limits. The order appears to be based on the spot inspection report dated 27th January, 2005 which also indicates that the property is outside nagar palika limits and is lying in a vacant state without any construction thereupon.

9. The order makes it thus evident that the increased valuation of property has been decided only on the basis of its future potentiality and close proximity to a developed area.

10. The appellate order as well has been passed on the same twin considerations.

11. Hon'ble Supreme Court in the case of Ambrish Tandon (supra) has already enunciated the law that valuation of a plot under transfer is to be seen with regard to its situation and usage as on the date of execution of the deed and not as per its future potentiality. Relevant portion of the aforesaid judgment is as follows:-

"15. The impugned order of the High Court shows that it was not seriously disputed about the nature of user of the building, namely, residential purpose on the date of the purchase. 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. Though the matter could have been considered by the appellate authority in view of our reasoning that there was no serious objection and in fact the said alternative remedy was not agitated seriously and in view of the factual details based on which the High Court has quashed the order dated 27-9-2004 passed by the Additional District Collector, we are not inclined to interfere at this juncture."

12. The aforesaid judgment has thereafter been followed by Full Bench decision of this court in the case of Pushpa Sareen versus State of U.P. and others reported in 2015(33) LCD 1575 in which also following has been held:-

"27. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to 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 to which the land can be put on the date of the execution of the instrument.

28. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to 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 the 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. Upon applicability of aforesaid judgments in the present facts and circumstances, it is evident that future potentiality of the plot in question has not been determined according to any exemplar or after examination of any relevant record.

14. So far as close proximity of the plot in question to a developed colony is concerned, the Hon'ble Supreme Court in the case of Smt. Prakashwati (supra) has held as follows:-

" Secondly, its being situated in an area which is close to Samrat Vikram Colony, said to be a decent locality, where people of high income group reside, does not by itself make it a part thereof. We are doubtful whether the said factum of closeness by itself would cast any reflection on the price of property in question."

15. It is thus quite evident that twin conditions which form the basis of the impugned orders is against the law enunciated by Hon'ble Supreme Court and Full Bench of this Court.

16. In view of aforesaid, the impugned orders dated 20th September, 2005 passed in case No.983 by the prescribed authority as well as appellate order dated 28th May 2007 passed in appeal no.38/2005-06 are hereby set aside. Consequences to follow.

17. It has been submitted that in pursuance of the impugned orders, certain amount has been deposited by the petitioner, who shall be entitled for refund forthwith of the amount so deposited.

18. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.

Order Date :- 23.5.2024

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