Allahabad High Court
Veena Agrawal And 2 Others vs Board Of Revenue And 4 Others on 13 February, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:20225
Reserved On:10.02.2025
Delivered On:13.02.2025
Case :- WRIT - C No. - 17268 of 2021
Petitioner :- Veena Agrawal And 2 Others
Respondent :- Board Of Revenue And 4 Others
Counsel for Petitioner :- Satyendra Narayan Singh
Counsel for Respondent :- C.S.C.
HON'BLE PIYUSH AGRAWAL,J.
1. Heard Shri Satyendra Narayan Singh, learned counsel for the petitioners and learned ACSC for the State - respondents.
2. The instant writ petition has been filed against the impugned order dated 16.12.2020 passed by the respondent no. 1 and the impugned order dated 09.07.2018 passed by the respondent no. 3 as well as the recovery certificate dated 18.02.2019 issued by the respondent no. 5.
3. Learned counsel for the petitioners submits that vide registered sale deed dated 29.08.2007, the petitioner no. 1 purchased an agricultural land after paying requisite stamp duty. He further submits that in the earlier round of litigation, the petitioners preferred Writ C No. 56150 of 2009 challenging the orders dated 25.09.2008, 03.08.2009 and 28.09.2009, by which the deficiency of stamp duty was imposed on the instrument in question, which had been affirmed by the appellate court. This Court, vide order dated 26.02.2018, allowed Writ C No. 56150 of 2009 and remanded the matter to the Additional Collector (Finance & Revenue), Ghaziabad to redetermine the market value of the property in question in the light of the observations made in the judgement.
4. Learned counsel for the petitioners further submits that pursuant to the order of this Court dated 26.02.2018, instead of following the direction and observation made by this Court, again a similar order has been passed without considering the materials available on record. He further submits that the land in question was purchased as an agricultural land and on the basis of the ex parte report submitted by the Sub Registrar on 07.07.2018, the impugned order dated 09.07.2018 has been passed imposing deficiency of stamp duty, together with interest & penalty. Aggrieved by the order dated 09.07.2018, the petitioners preferred an appeal, which has been dismissed vide order dated 16.12.2020 and thereafter, recovery certificate dated 18.02.2019 has been issued by the respondent no. 5.
5. Learned counsel for the petitioners further submits that there being no denial of the fact that the land in question was an agricultural land and used as such at the time of execution of the sale deed, the impugned orders cannot be sustained in the eyes of law. He further submits that the land in question was not used for the commercial purpose at the time of execution of the sale deed, nor any commercial activity was in existence in the vicinity, but the court below has not considered this aspect of the matter. He further submits that the land in question has not been declared as abadi under section 143 of the U.P. Zamindari Abolition & Land Reforms Act. The said grounds were taken before the authorities below, but without considering the same, the impugned orders have been passed. He further submits that specific gound has been taken in paragraph no. 13 of the writ petition also, which has not been denied in the counter affidavit filed by the State. Once the area has not been declared as abadi, the same cannot be treated as abad. In support of his submissions, he has placed reliance on the judgements in Aniruddha Kumar, Ashwani Kumar Vs. CCRA & Others [2000 (3) AWC 2587], Ratna Shanker Dwivedi Vs. State of U.P. & Others [Writ C No. 58020 of 2007, decided on 02.03.2012] as well as Raj Kumar Vs. State of U.P. & Others [Writ C No. 19644/2016, decided 13.04.2023].
6. Per contra, learned ACSC supports the impugned orders.
7. After hearing learned counsel for the parties, the Court has perused the record.
8. Admittedly, this is the second round of litigation. Earlier, this Court vide order dated 26.02.2018 passed in Writ C No. 56150 of 2009 has allowed the writ petition and remanded the matter for reconsideration. In pursuance of the remand order, again a survey was conducted behind the back of the petitioners without complying with the provisions of rule 7(3)(c) of the Rules famed under the Indian Stamp Act and the impugned orders have been passed considering the subsequent survey. Once the presence of the petitioners was not there, it is a clear violation of the rule 7(3)(c) of the Rules.
9. This Court in Jagroop Singh (supra) has held that in absence of compliance of rule 7(3)(c) of the Rules, the impugned order cannot be justified. The relevant paragraphs are quoted below:-
"7. It is admitted that the sale deed of the vacant plot was executed on 20.10.2012 in favour of the petitioner and on the basis of exparte report, the proceedings were initiated against the petitioner and in pursuance thereof notice was issued but the Collector has not visited the site in question in accordance with Rule 7 (3) (c) of the Rules. Even the respondent authority up to the stage of this Court could show any material in order to justify that prior to initiation of the proceedings, Section 7 (3) (c) of the Rules was complied with in letter and spirit.
8. This Court in the case of Ajay Agrawal (supra) has held as under:-
Nonetheless, in view of submissions advanced by learned State counsel, the question arising for determination would be whether compliance of Rule 7(3)(c) is required in proceedings under Section 47(A)(1) as well as under section 47 A(3) of the Act? Here it is also relevant to indicate that both the orders impugned in present writ petition are based only on the aforesaid spot inspection report, which admittedly was ex parte in nature.
...
14. It is quite discernible that the starting provision of Rule 7 itself indicates the applicability of the Rule to the extent that on receipt of a reference or where action is proposed to be taken suo motu under section 47 A the Collector shall issue notice to parties to the instrument to show-cause. A reading of the aforesaid provision makes it evident that no distinction whatsoever has been carved out under Rule 7 of the Rules of 1997 with regard to procedure being required to be followed under section 47 A. On the contrary, it specifically indicates that the aforesaid Rule is required to be followed even in case suo motu action is taken under section 47 A of the Act, which in effect pertains to Section 47 A(3) of the Act of 1899 with regard to determination of stamp duty after registration of a document of instrument of transfer. As such no such distinction having been carved out under Rule 7, it is not feasible to accede to the submissions of learned State counsel that Rule 7 (3)(c) of the Rules would not be applicable in case of proceeding under section 47 A( 3) of the Act.
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20. In view of aforesaid, it is evident that the power to be exercised by Collector under section 47A (3) of the Act is not pedantic in nature but is required to be made on the basis of observations made hereinabove particularly with regard to the fact that he is required to apply his mind and record subjective satisfaction not only with regard to under valuation of the instrument of transfer but also to record a separate satisfaction regarding market value of the property and the duty payable thereupon and cannot place reliance only on the spot inspection report.
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22. Upon applicability of aforesaid in the present case, it is evident from a reading of the impugned orders that the same are based only on the spot inspection report and no subjective satisfaction at all has been recorded by the authority either under section 47 A or under section 56 of the Act as required to be done as per observation is made hereinabove.
9. Again this Court in the case of Satendra and another (supra) has held as under:-
11. On a pointed query being made to the learned Standing Counsel as to whether there was any further inquiry after the inquiry was initially held in the form of spot inspection, learned Standing Counsel could not point out either from the record or pleadings of the counter affidavit that any further inquiry was held as contemplated under the Rule 7 of the Rules.
12. This Court notices that after the notices were issued and the Collector had fixed date inviting objections, the Collector failed to fix any further date for spot inspection or for any further oral or documentary evidence and therefore, it cannot be said that the Collector at all undertook any effort to act in accordance with the procedure prescribed in the matter. The conclusion drawn therefore, is devoid of any cogent and convincing material in support there of and the findings therefore, are liable to be held as perverse. The said rule which has been quoted herein above, has also drawn attention of Full Bench in Smt. Pushpa Sarin v. State of U.P. 2015 (127) RD 855. However, the Full Bench did not delve into the issue any further regarding the scope and applicability of the Rules because the period which was in dispute under the reference was prior to the rule coming into force. Para 18 of the judgment of Full Bench runs as under:
"18. Subsequently, the provisions of the Stamp Rules in regard to valuation were replaced by the Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 which have been made in exercise of the powers conferred by sections 27, 47-A and 75 of the Stamp Act. However, it is not necessary for the Court to express any view on the scheme or provisions of those rules since the period of dispute in the present reference is prior to the enforcement of those rules."
10. In view of above, the writ petition is allowed. The impugned orders dated 23.2.2015 and 20.8.2013 are hereby quashed."
10. Further, it is admitted that the land in question has not been declared as abadi under section 143 of the U.P. Zamindari Abolition & Land Reforms Act at the time of execution of the sale deed. Once the declaration under section 143 of the said Act has not been made, the land in question would not lose its character as an agricultural land only on the basis of close vicinity of the non-agricultural land as has been held by this Court Raj Kumar (supra).
11. In view of the aforesaid facts & circumstances of the case, the impugned order dated 16.12.2020 passed by the respondent no. 1 and the impugned order dated 09.07.2018 passed by the respondent no. 3 as well as the recovery certificate dated 18.02.2019 issued by the respondent no. 5 cannot be sustained in the eyes of law. The same are hereby quashed.
12. The writ petition succeeds and is allowed.
13. The authority concerned is directed to release the sale deed, which has been impounded pursuant to the impugned orders within a period of one month from the date of production of certified copy of this order.
Order Date :-13/02/2025
Amit Mishra
