Allahabad High Court
Mohammad Tariq vs State Of U.P. And 2 Others on 7 January, 2025
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:2648
Court No. - 2
Case :- WRIT - C No. - 33863 of 2015
Petitioner :- Mohammad Tariq
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- S.M. Khan
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, order or direction in the nature of certiorari quashing the impugned order dated 21.5.2015 passed by respondent no. 2 in Revision No. C 2015130000121 U/s 56 (1) of Indian Stamp Act (Mohammad Tariq Vs. State of UP and others) as well as the order dated 29.12.2014 passed by respondent no. 3 in Case No. D-2014135900322 U/s 33/47 A of Indian Stamp Act (State Vs. Mohammad Tariq) (Contained in Annexure No. 5 and 7 to this writ petition). "
3. Brief facts as stated in the writ petition is that petitioner has purchased an agricultural land of gata no. 430 M, measuring 0.291 hectare situated at Village Tashka, Tehsil Sadar, Distt. Rampur vide sale deed no. 1451 dated 01.3.2014 after paying due stamp duty thereof. Thereafter a notice was issued under Section 33/47 A of Indian Stamp Act on 7.8.2014 on the ground that the petitioner has not paid sufficient stamp duty on the aforesaid sale deed. In pursuance of the said notice, the petitioner had appeared before respondent no. 3 and filed objection on 4.9.2014 along with the affidavit, however being not satisfied with the same, the impugned order dated 29.12.2014 has been passed imposing deficiency of stamp together with penalty and interest. Being aggrieved to the said order, the petitioner filed a revision, which has also been dismissed vide order dated 21.5.2015.
4. Learned counsel for the petitioner submits that at the time of execution of sale deed, the land in question was an agricultural land and same was being used as such after execution of sale deed. He submits that khasra and khatauni of the relevant year in respect of the land in question was brought on record before the respondent authority showing that the land in question was an agricultural land and a copy thereof has also been annexed as Annexure RA-2 of the rejoinder affidavit. He submits that on perusal of the documents available on record, it was clear that the land in question was agricultural land but the impugned order has been passed without considering the material available on record. He submits that ex parte inspection was carried out by the Assistant Inspector General, Registration, Rampur and a report was submitted on 23.4.2014 , on the basis thereof, the impugned order has been passed. He submits that prior to passing of the order dated 21.5.2015, respondent no. 2 called for an inspection report from the Sub Divisional Officer, Sadar Rampur in which also there is no whisper about the residential activities being carried out in the vicinity of the land in question. He further submits that the land in question was not declared as non agricultural / abadi land u/s 143 of UP Z.A. & L.R. Act by the competent authority however only on the basis of conjunctures and surmises, it has been presumed that the land in question will be used for residential purposes in the near future. He prays for allowing the present writ petition.
5. Per contra, learned ACSC supports the impugned orders and prays for dismissal of the writ petition.
6. After hearing learned counsel for the parties, the Court has perused the records.
7. The record shows that the land in question was purchased showing the same as an agricultural land and due stamp duty was paid thereof according to the prevalent circle rate but the proceedings under Section 33/47 A of the Stamp Act was initiated and notice was issued to the petitioner to which the petitioner has submitted reply duly annexing the documentary evidence showing that the land in question was used as agricultural land but the same was not accepted only on the ground that in the vicinity of the land in question, some residential activities were being undertaken and in the near future, the land in question will be used for residential purpose. The respondent authorities have failed to consider the evidence filed by the petitioner in support of his contention that prior to purchase as well as after execution of sale deed, the land in question was used for agricultural purpose. Once the material brought on record showing that the land in question was used for agricultural purpose, the respondent authorities ought to have consider the same and pass appropriate order accordingly.
8. Further the record shows that the land in question was not declared as an abadi land under Section 143 of UP Z.A. & L.R. Act. Once the declaration under Section 143 of UP Z.A. & L.R. Act has not been made, the land in question would not loose its character as an agricultural land only on the basis of close vicinity of the non agricultural / residential land.
9. Hon'ble Apex Court in the case of Prakashwati Vs. Chief Controlling Revenue Authority, Board of Revenue,UP at Allahabad 1996 (4) SCC 637 has held as under:
"3. Before the High Court as also here, it was urged on behalf of the appellant that since sufficient guidelines have not been provided in Section 47-A of the Act, the provision was unworkable. The High Court repelled the contention holding that a procedure was prescribed under sub-sections (3) and (4) of Section 47-A which requires to be adopted for determining market value of the property which has not been truly set-forth in the document in question. The manner of the inquiry, as required to be held, is appropriately given therein. According to the High Court the procedure postulated was observed in the instant case and nothing further was required to be done. Rule 341 of the U.P. Stamp Rule 1942 providing for determination of the minimum market value, also subserving the purpose of Section 47-A of the Act was explained to say that the minimum market value determinable was not the end of the matter and value could be determined at a figure higher than that if warranted.
4. We have carefully examined the orders of the first respondent. Noticeable the house is built on a very small area i.e 68.84 sq yards only in a town which is not metropolis. Presumably the smallness of the area would not suggest the same by itself to be a costly property or be situated in a prestigious or posh locality, where the upper classes would rub shoulders to acquire it. Secondly, its being situated in an area which is close to Samrat Vikram Colony, said to be 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. Seemingly, influenced by the factor of the close proximity of Samrat vikram colony the Assistant Commissioner, Stamps, for one does not know how, determined the monthly rental value of the property at Rs. 1500/- per mensem and worked out the price of the house on that basis. Despite that the Tehsildar at a subsequent stage reported that the annual rental value of the house was Rs. 1200/- per annum, whereas for house tax purpose it was recorded as Rs. 480/- per annum. The first respondent ignoring the same worked out the monthly rental of the property at Rs. 830/- per mensem and its value at Rs. 2.5 lack, ostensibly on the basis that the average cost of construction of building in the year 1992 was about Rs. 400/- per sq yards, inclusive of the land cost. This figures too was arrived at, one knows not from where, without determining the age of the building, the quality of construction and citing appropriate instances. The approach of the authorities, to say the least, was highly vain, casual and unsatisfactory and dehors any constructive material on the basis of which on could have said that the decision arrived at by the first respondent was fair and reasonable. we cannot approve of such an assumptive posture of the respondent in treating the appellant as an evader. We must therefore, upset the impugned order of the first respondent and the proceedings for the supposed deficient payment of stamp, but confining the end result to the facts and circumstances of the instant case, when the valuation under Section 341 of the Stamp Rules."
10. Further this Court in Writ-C No.51205 of 2010 (M/s Indo Continental Hotels and Resorts Pvt. Ltd. Vs. State of U.P. Thru Secretary Min) Neutral Citation No. - 2023:AHC:175077 has held as under :
"16. However, if deed has been registered then action may be taken only under section 47-A (3) of the Stamp Act. Rule 7 of the Rules of 1997 prescribes the procedure for determining market value of the subject-matter of the instrument. This Rule nowhere refers to the minimum value of the property fixed in accordance with Rule 4 of the said Rules, Sub-section (2) of section 47-A of Stamp Act obliges the Collector for the purpose of determining of the market value of the property which is the subject of instrument presented for registration after holding inquiry in such manner as may be prescribed by Rules made under the said Act. This clearly refers to Rule 7 of Rules of 1997. However, subsection (3) of the said section only says that Collector may examine the instrument for the purpose of satisfying himself as to the correctness of the market value of the property, which is subject of such instrument. Manner of examination has not been mentioned and the said sub-section (3) also does not refer to any Rules. However, Rule 7 makes itself applicable to both situations; pre-registration inquiry as well as post registration examination regarding market value of the property. It is interesting to note that Rule 7 no where prescribes the basis, formula or principle for determining market value. It only prescribes procedure like notice, admission of oral or documentary evidence, calling for information or record from any public office and inspection of property. The result is that, whether Rule 7 of Rules of 1997 applies or not market value has to be determined on the same principle on which market value in land acquisition cases is determined. Minimum market value fixed in accordance with Rules of 1997 is relevant only and only for the purposes of referring the document by Registering Officer to the Collector before registration. Even after such reference market value is to be determined not in accordance with the minimum value fixed under Rule 4 of the Rules of 1997 but in accordance with general principles of determination of market value as applicable in land acquisition cases. Simultaneously when proceedings are initiated after registration of the document under section 47-A (3) of the Act market value has to be determined in accordance with genera principles applicable for the said purpose like principles of determination of market value in land acquisition cases without taking recourse to minimum market value of the property fixed in accordance with Rule 4 of the Rules of 1997.
20. In Maya Food v. C.C.R.A., a Single Judge of this Court has held that market value of the land cannot be determined with reference to the use of the land to which buyer intends to put it and that in determining the market value the potential of the land as on the date of the sale alone can be taken into account and not the potential it may have in the distant future.
22. In Smt. Prabhawati v. C.C.R.A., held that mere smallness of the area would not suggest the same by itself to be a costly property and that merely because property situated in an area which is close to a decent colony where people of high income group reside does not by itself make it a part thereof."
11. This Court in Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511] has held as under:
14. Having heard the learned counsel for the parties, I find that non-declaration of land as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. The contention of the State to the effect that the said non-declaration is not relevant in the proceedings under the Indian Stamp Act cannot be accepted for the reason that in exercise of statutory powers under the Indian Stamp Act, as applicable in the State of U.P., Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 have been framed. Rule 3(1)(a) of the Rules, provide as follows:
"Facts to be set forth in an instrument.-In case of an instrument relating to immovable property chargeable with an ad valorem duty, the following particulars shall also be fully and truly stated in the instrument in addition to the market value of the property-
(1) In case of land-
(a) included in the holding of a tenure-holder, as defined in the law relating to land tenures-
(i) the Khasra number and area of each plot forming part of the subject-matter of the instrument;
(ii) whether irrigated or unirrigated and if irrigated, the source of irrigation;
(iii) if under cultivation whether do-fasali or otherwise;
(iv) land revenue or rent whether exempted or not and payable by such tenure-holder;
(v) classification of soil, supported in case of instruments exceeding twenty thousand rupees in value, by the certified copies, or extracts from the relevant revenue records issued in accordance with law;
(vi) location (whether lies in an urban area, semi-urban area, or countryside); and
(vii) minimum value fixed by the Collector of the district."
15. Admittedly, on the date of execution of the sale deed, the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950 were applicable. The definition of "land" as contained under section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows:
(14) "Land"[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, hoticulture or animal husbandry which includes pisciculture and poultry farming;
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."
12. Again this Court in Writ C No. 29207 of 2018 (Naeem Khan and another Vs. State of UP) Neutral Citation No. 2024:AHC:131816 has categorically held that without changing the category of the land from agricultural to non agricultural as prescribed under Section 143 of UP Z.A. & L.R. Act, the land cannot be treated as non-agricultural land on the basis of future potentiality of the land.
13. In view of the facts and circumstances of the case as well as law laid down as herein above, the matter requires re-consideration by the respondent authorities.
14. Accordingly, the writ petition is allowed. The impugned orders dated 21.5.2015 and 29.12.2014 are set aside. The matter is remanded to the Collector, Rampur, respondent no. 3, who, after considering the evidence filed by the petitioner as well as after giving due opportunity of hearing to all the stake holders, shall decide the matter, afresh, in accordance with law, expeditiously, preferably within a period of three months from the date of production of certified copy of this order.
15. Any amount already deposited by the petitioner shall be subject to the outcome of the fresh order passed by the Collector.
Order Date :- 7.1.2025
Rahul Dwivedi/-
