Allahabad High Court
Kailash Narain vs State Of Up And 5 Others on 27 February, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:27355
Court No. - 2
Case :- WRIT - C No. - 29905 of 2024
Petitioner :- Kailash Narain
Respondent :- State Of Up And 5 Others
Counsel for Petitioner :- Ishir Sripat
Counsel for Respondent :- C.S.C.
Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.
2. By means of present petition, the petitioner is, inter alia, praying for the following relief:-
"i) Issue a writ of Certiorari quashing the impugned orders dated 22.12.2023 passed by respondent no. 3 in Stamp Case No. 288 of 2023 (Annexure No. 1 ) and 13.6.2024 passed by respondent no. 2 in Appeal No. 239 of 2024( Annexure No. 2) and consequential recovery citation dated 21.8.2024 (Annexure No. 12). "
3. Learned counsel for the petitioner submits that the petitioner has purchased an agricultural land of plot no. 161 (Area 0.4170 hectare) situated at village Patna Bela, Tehsil Bidhuna, Distt. Auraiya through registered sale deed dated 17.11.2022. He submits that the vendor and vendee of the aforesaid sale deed belong to Schedule Tribes, therefore, the sale deed was executed and paid the stamp duty thereof in accordance with the prevalent law. He submits that after execution of the sale deed, a report dated 20.4.2023 was submitted in which stamp deficiency was pointed out on the basis of exemplar sale deeds of small plots executed as abadi land and thereafter the proceedings under Section 47 A / 33 was initiated against the petitioner in which the petitioner submitted his detailed reply on 14.7.2023, however, without considering the material available on record, respondent no. 3 has passed the impugned order dated 22.12.2023 by which deficiency of stamp together with penalty and interest has been imposed. The petitioner challenged the said order in appeal, which was also dismissed in an arbitrary manner. Hence the present petition.
4. Learned counsel for the petitioner submits that agricultural land was purchased and stamp duty was paid thereof as per prevalent circle rate. He submits that in the report dated 20.4.2023 submitted by In charge Sub Registrar, it has been mentioned that at the time of inspection, agricultural activity was going on and even in the adjacent plots agricultural activities were found but since in the year 2002, some portion of plot was sold as residential plot, therefore, the land in question should be treated as abadi land. He further submits that no declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 has been made declaring the land in dispute as non-agricultural land and in the absence thereof, the land in question cannot be treated as non-agricultural land.
5. In support of his submission, learned counsel for the petitioner has relied upon the judgements of this Court in the case of Naeem Khan and another Vs. State of UP and others, Neutral Citation No. 2024: AHC:131816 and Raj Kumar Vs. State of UP, [2023 (5) AWC 4511].
6. Per contra, learned ACSC supports the impugned orders.
7. After hearing learned counsel for the parties, the Court has perused the records.
8. It has been averred that at the time of execution of the land in question, the land in question was an agricultural land, therefore, the petitioner has paid the stamp duty as per the prevalent circle rate, however, on the basis of the report dated 20.4.2023, the proceedings has been initiated against the petitioner alleging that some sale deeds of the plot in question has been executed as residential plot, therefore, the petitioner is liable to pay the stamp duty of the plot in question as residential plot. A copy of the report dated 20.4.2023 is annexed as Annexure No. 5 of this writ petition and relevant part is quoted hereunder:
"???????? ????? ?????? 11715/2022 ???? ?????? 161 ??? ???? ???? ??? ??????? ??????? ?? ??????? 19 (?) ?? ?????? 30 ?????????? ?????? ???? ??????? ??? ??????? ????? ??? ???? ??? ??? ???? ???????? ?? ????? ???? ?? ???? ????? ???? ?? ??? ?? ??? ?? ??? ?? ???? ????? ?? ??? ??? ?? ??? ??? ????? ???? ?? ?????? ?????????? ???????? ???? ???? ???? ?? ??????? ????? ?????? ????? ??? ?? ???????????? ?? ??????? ?????? ?? ??????? ?? ??????? ????? ?? ??? ??? ????? ???????? ???? ???????? ???? ?? ??, ????? ????? ??? ???? ???? ??? ??????? ?? ????? ????? ???? ??? ??? ????? ???? ?? ???? ?? ??????? ?? ?????????? ???? ???? ??? ??? ?????? ?? ?? ???????? ???? ???? ???? ?? ??? ??? ??? ????? ??? ???? ?????? ??? ???? ?????? ?????? ?? ?? ?????? ???? ??? ???, ????? ???????? ?????? ?? ????????? ????? ?? ?? ???? ???? ??????"
(emphasis supplied by this Court)
9. On perusal of the said report, it appears that at the time of inspection, agricultural activities were not only found over the plot in question but also over the adjacent plots of the land in question and a categorical finding of fact has been recorded that no residential activity was found. Even the allegation has been made that sale deeds of some plots were made as residential but the same cannot be identified, therefore, adverse inference cannot be drawn against the petitioner that the land in question was abadi land. The respondents have failed to bring any cogent material on record to show that any declaration under section 143 of the U.P. Zamindari Abolition & Land Reforms Act has been made in respect of the land.
10. This Court in Naeem Khan another (supra) has held as under:
9. It is not in dispute that the agricultural land was purchased by the petitioners by way of aforesaid sale deed and thereafter, the proceedings of deficiency of stamp duty have been initiated against them on the premise that in the vicinity of the property in question, commercial activity were being undertaken. Out of all the three surveys, one survey dated 05.08.2017 in which a specific finding was recorded that before the execution of the sale deed and at the time of survey, agricultural activity were being undertaken, have not been given due weightage by any of the authorities though noticed in the impugned order. Once the said fact has not been disputed that the agricultural activity were being undertaken before execution of sale deed and at the time of execution of sale deed as well as subsequent to the same, to which various documents were also brought on record showing that the agricultural activity were being undertaken over the property in question even after the execution of the sale deed, which has not been considered by the authorities nor any contrary material denying the survey has been brought on record, impugned orders are bad.
13. Further, this Court in the case of Raj Kumar (supra) in para no. 16 & 20 has held as under:-
"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.
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.
14. In view of the fact that once the proceedings under Section 143 of UPZA & LR Act have not been undertaken for making change in category of land from agricultural land to abadi land or otherwise, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed. "
11. In view of the facts and circumstances of the case as well as law laid down by this Court, the impugned orders dated 22.12.2023 and 13.6.2024 cannot be sustained in the eyes of law and same are hereby quashed.
12. The writ petition succeeds and is allowed.
13. The authority concerned is directed to refund any amount deposited by the petitioner either pursuant to the impugned orders or in pursuance of the direction made by this Court, along with interest @ 4% per annum from the date of its deposit till the date of refund, within a period of one month from the date of production of a certified copy of this order.
Order Date :- 27.2.2025
Rahul Dwivedi/-
