Allahabad High Court
M/S Madhuri Builders vs State Of Up And 2 Others on 9 April, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:51283
Court No. - 10
Case :- WRIT - C No. - 8857 of 2024
Petitioner :- M/S Madhuri Builders
Respondent :- State Of Up And 2 Others
Counsel for Petitioner :- Sanjay Singh
Counsel for Respondent :- C.S.C.
Hon'ble Piyush Agrawal,J.
(Re:- Civil Misc. Delay Condonation Application No. 4 of 2024)
Heard learned counsel for the applicant(s) and learned Standing Counsel for the State respondents.
Delay in filing the restoration application has been sufficiently explained.
Delay condonation application is allowed.
Delay in filing the restoration application is condoned.
(Re:- Civil Misc. Restoration Application No. 5 of 2024)
Heard learned counsel for the applicant(s) and learned Standing Counsel for the State respondents.
Cause shown for filing restoration application has been sufficiently explained.
Restoration application is allowed.
Order dated 09.07.2024 whereby the writ petition was dismissed for want of prosecution is recalled.
The writ petition is restored to its original number.
Order on Petition
1. Rejoinder affidavit files today, taken on record.
2. Heard Sri Sanjay Singh, learned counsel for the petitioner and Sri Siddharth Singh, learned Standing Counsel for the State-respondents.
3. By means of instant writ petition, the petitioner has assailed the order dated 28.06.2023 passed by respondent no.3 and the order dated 15.02.2024 passed by respondent no.2.
4. Learned counsel for the petitioner submits the petitioner has purchased an agricultural land vide registered sale deed dated 21.04.2022 after paying the requisite stamp duty thereof. Thereafter, on the basis of an ex-parte report being prepared, proceedings under the Indian Stamp Act were initiated against the petitioner and a notice was issued to the petitioner to which the petitioner has submitted his reply/objection, but not being satisfied with the same, the impugned order has been passed treating the land in question as an agricultural land. Against the said order, the petitioner preferred an appeal, which has also been dismissed. During the pendency of the appeal, the spot inspection was again made wherein crop of mustard was found to be sown over the land in question. Further, the land was found to be surrounded by ready-made boundary wall as well as a borewell was also found, but both i.e. raising of the ready made boundary wall as well as borewell was undertaken after the purchase of the land in question.
5. He further submits that after the purchase of land in question, the ready-made boundary wall as well as borewall was got undertaken by the petitioner but none the less, merely on the basis of that, it cannot be said to be changed in nature of land as an abadi land from agricultural land until and unless the proceedings under Section 143 of the UPZA & LR Act is taken place. Once the finding has been recorded at the inspection dated 16.12.2023 in favour of the petitioner, no adverse view ought to have been taken against the petitioner.
6. In support of his submission, he has placed reliance upon the judgment of this Court passed in Writ- C No. 19644 of 2016 (Raj Kumar Vs. State of U.P. and 2 others).
7. Per contra, learned Counsel supports the impugned orders.
8. After hearing the parties, the Court has perused the record.
9. Admittedly, the land in question has been shown to be purchased as an agricultural land after paying the requisite stamp duty thereof. Thereafter, on the basis of an ex-parte report, after due process, an impugned order has been passed against which an appeal was filed. During the pendency of the said appeal, spot inspection was made on 16.12.2023 wherein crop of lahi was found to be sown as well as ready-made boundary wall surrounding the land in question and a borewell was also found over the land in question.
10. While passing the impugned order, though the authorities have observed that the bore-well is used for agricultural purposes, having the bifurcation of the land in question, the part of the land in question has been treated as non-agricultural land, however, for determining the said fact, no reason has been assigned.
11. Further, the record shows that though the specific grounds have been taken by the petitioner that the land in question has not been changed as an abadi land under Section 143 of the UPZA & LR Act, however, the same has not been considered by the authorities.
12. The issue in hand is no longer res-integra as this Court in the case of Raj Kumar (supra) has held that until and unless the use of land is not changed as an abadi land under Section 143 of the UPZA & LR Act, proceedings under Section 47-A of the Indian Stamp Act cannot be initiated. The relevant paragraphs of the said judgement is quoted as below:-
"16. In view of the definition of land contained in the law relating to land tenures, i.e. U.P. Zamindari Abolition & Land Reforms Act, 1950, the fact that the land was not declared as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 as explained under section 3(14) of the said Act, in itself becomes a relevant factor for determining the nature of land that was subject matter of instrument. This Court in various authorities has held that when the land is purchased for agricultural purposes and declaration under section 143 of the U.P. Z.A. & L.R.Act, 1950 has not been made and merely because the land is situated in close vicinity of the non-agricultural land, the same would not loose its character as the agricultural land for the purposes of levy of stamp duty. Reference can be made to few authorities of this Court in the case of Aniruddha Kumar and Ashwini Kumar vs Chief Controlling Revenue Authority, U.P. Allahabad and another, reported in 2000 (3) AWC 2587; Smt. Sushila Verma vs State of U.P. and others reported in 2006 (2) AWC 1492 and Sudama vs Chief Controlling Authority and others, reported in 2013 (4) AWC 3571.
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20. Insofar as the imposing four times penalty is concerned, it is well settled that unless "mens rea" is established on the part of the purchaser, no penalty can be imposed, even if the provision of penalty is a creation of statute. Regarding imposition of penalty, reference can be made to a judgment of this Court in the case of Smt. Asha Kapoor vs Additional Collector (Finance & Revenue), Ghaziabad and others, reported in 2008 (72) ALR 125, where this Court has held that penalty can be imposed if there is an attempt to evade the stamp duty and penalty presupposes culpability and an intention to conceal or to play fraud with the authorities. I do not find any finding on record, whereunder any opinion has been formed by the respondent-Authorities that the petitioner defrauded the Government having mens rea at the time of getting the sale deed executed. Even the annexures to the writ petition disclosing the nature of land have not been disputed by the State in the counter affidavit. I also find that the sale deed in question conforms to the statutory requirements of disclosure of necessary particulars as per rule 3(1)(a) of the Rules of 1997. Therefore, imposition of penalty is also contrary to law of the land."
13. In view of the above facts as stated as well as law laid down in the aforesaid judgment, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.
14. Accordingly, the writ petition is allowed.
15. Any amount deposited by the petitioner pursuant to the impugned orders, shall be refunded to him along with interest @ 4% per annum, within a month from the date of production of certified copy of this order.
Order Date :- 9.4.2025
Pravesh Mishra
