Allahabad High Court
Niyaz Ahmad vs Dy. Commissioner Stamp Devi Patan ... on 5 March, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:13362
Court No. - 19
Case :- WRIT - C No. - 2729 of 2019
Petitioner :- Niyaz Ahmad
Respondent :- Dy. Commissioner Stamp Devi Patan Mandal Gonda And Ors.
Counsel for Petitioner :- Brijesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard Mr. Brijesh Kumar Singh, learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 21.02.2018 passed under section 47-A of Indian Stamp Act indicating deficiency in Stamp duty and imposing penalty and interest thereupon. Also under challenge is appellate order dated 21.12.2018 whereby petitioner's Appeal under Section 56 of the Act has been rejected.
3. Learned counsel for petitioner submits that the sale-deed dated 27.12.2016 has been executed in favour of petitioner pertaining to Plot No.1077 miljumla having an area of 0.045 hectare in the village in question. It is submitted that since location of plot was adjacent to Abadi and interlocking road, 25+30% additional stamp duty was paid in terms of notification dated 30.07.2016 issued by the District Magistrate, Balrampur particularly clause 14 thereof.
4. It is submitted that after registration of the deed, a complaint was filed by one Mustaff and in pursuance thereof, proceedings were initiated after submission of spot inspection report. It is submitted that subsequently during the course of proceedings, another spot inspection took place on 25.01.2018 but the said inspection also only reiterates the fact that plot in question is adjacent to Abadi and interlocking road and does not indicate any construction made thereupon. It is submitted on the contrary, the report clearly indicates trees existing on a portion of the plot although it does indicate that no agricultural activities are being carried out over the plot.
5. It is submitted that once petitioner has already paid enhanced Stamp duty in terms of the notification dated 30.07.2016, there was no occasion for the opposite parties to have treated the plot as residential and to impose additional Stamp duty thereupon particularly since mere proximity to an Abadi area does not make a plot Abadi.
6. It is submitted that although such specific plea has been taken in the memo of appeal particularly in paragraphs 3 and 10, the appellate authority has not adverted to same. It is submitted that even in the present writ petition, the same averments have been reiterated in paragraphs 3 and 8 which have not been specifically denied in the counter affidavit.
7. He has placed reliance on judgments rendered in ;
(i) State of U.P. and others v. Ambrish Tandon and another, reported in (2012) 5 SCC 566,
(ii) Smt. Prakashwati versus Chief Controlling Revenue Authority, Board of Revenue, U.P., Allahabad & Ors.; (1996) 4 Supreme Court Cases 657,
(iii) Smt. Yogesh Kumari V State of U.P. through Secretary & Ors; 2024 AHC 119571,
(iv) Ashish Kumar & Ors versus State of U.P. & Ors; 2010(28) LCD 945, and
(v) Surendra Singh & Anr. versus State of U.P. & Ors.; 2009(27) LCD 442.
8. Learned State counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner with the submission that the spot inspection report was done in the presence of son of petitioner and it was clearly established that the plot was in the vicinity of constructed houses and being utilized as residential land. It is also submitted that impugned orders have been passed after affording opportunity of hearing to petitioner and are reasoned and justified. He has also placed reliance on Section 27 of the Indian Stamp Act to submit that since the sale-deed does not fully and truly set forth all particular of the property but seeks to evade Stamp duty, impugned orders have been passed and are justified particularly in view of spot inspection report clearly indicating it to be in the vicinity of Abadi land on which no agricultural activity is being carried on since past several years.
9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is established that petitioner purchased the plot in question by means of sale-deed dated 27.12.2016 whereafter proceedings under Section 47-A of the Act were initiated on the basis of a complaint and spot inspection on that basis. A separate spot inspection was also conducted and a report dated 25.01.2018 was also submitted which forms the basis of the order passed under Section 47-A of the Act in which the plot in question has been adjudged to be Abadi on the ground that it is in proximity with an Abadi area.
10. It is relevant that in the memorandum of appeal as well as in the writ petition, petitioner has taken a specific ground that he has already paid additional Stamp duty in terms of clause 14 of the notification dated 30.07.2016. The said averments and the said clause in the notification dated, 30.07.2016 has not been denied by the opposite party nor the averment that petitioner has already paid additional Stamp duty in terms thereof.
11. The aspect of any plot being adjudged non-agricultural merely on the basis of subsequent use after sale-deed has already been considered by Hon'ble the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, reported in (2012) 5 SCC 566. The relevant paragraph 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. Similarly in Smt. Prakashwati (supra); it has been held that mere proximity to a developed area cannot be a criteria to adjudge a property to be developed. Relevant paragraph of judgment is as follows:
"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."
13. In the memorandum of appeal also, the specific ground has been taken by petitioner that the property is registered as agricultural and its mere proximity to the Abadi area would be irrelevant.
14. However the aforesaid averments have not been addressed at all by the appellate authority.
15. Upon applicability of judgments rendered in the cases of Ambrish Tandon (supra) and Smt. Prakashwati (supra), it is evident that mere proximity of a plot to an Abadi or developed area is in consequential for determining its use as a developed area particularly once there is no denial that the plot in question was recorded as agricultural.
16. In view thereof, impugned orders dated 21.02.2018 and 21.12.2018 being against settled law, are unsustainable and are hereby quashed by issuance of a writ in nature of Certiorari.
17. Resultantly, the petition succeeds and is allowed. The parties to bear their own cost.
Order Date :- 5.3.2025
Subodh/-
