By means of present writ petition, the petitioner is seeking a writ of certiorari for quashing the impugned orders dated 05.10.2009 as well as order dated 22.01.2009 passed by the opposite parties no. 1 and 2, contained in Annexures-1 and 2 respectively to the writ petition.
The submission of the counsel for the petitioner is that the petitioner purchased the plot in the year 2007 after being paid proper stamp duty. A complaint has been made by one Ram Achar on 09.10.2007, on which an enquiry was made by Tehsildar and on the basis of enquiry a case was registered and notices were issued to the parties.
The further submission of the counsel for the petitioner is that the court below in a most illegal and arbitrary manner imposed the deficiency of stamp duty upon the petitioner only on the basis of ex-parte report of Tehsildar which cannot be the basis for deciding the case as has been held in Catina of decisions of this Court that ex-parte report of Tehsildar may be relevant for initiation of proceedings but no reliance can be placed upon for deciding the case. After initiation of the case an inspection can be made by the Collector or the Authority after due notice to the parties to the instrument as provided under Rule 7 (3) (c) of U.P. Stamp (Valuation of Property) Rules, 1997. The petitioner in support of his contention placed reliance upon the judgment reported in 2005 (98) RD 511), Ram Khelawan @ Bachcha vs. State of U.P. through Collector, Hamirpur & another and 2009 (27) LCD 442, Surendra Singh and another vs. State of U.P. & others. In para-13 of the judgment provides as under:-
"13. None of the authorities below besides the report of the Sub-Registrar has referred any other material in support of their orders. In Ram Khelawan @ Bachcha v. State of U.P. through Collector, Hamirpurt and another, 2005 (98) RD 511, it has been held that the report of the Tehsildar may be a relevant factor for initiation of the proceedings under Section 47-A of the Act, but it cannot be relied upon to pass an order under the aforesaid section. In other words, the said report cannot form itself basis of the order passed under Section 47-A of the Act. In the case of Vijai Kumar v. Commissioner, Meerut Division, Meerut, 2008 (7) ADJ 293 (para-17), the ambit and scope of Section 47-A of the Act has been considered with some depth. Taking into consideration the Division Bench judgment of this Court in Kaka Singh v. Additional Collector and District Magistrate (Finance and Revenue), 1986 ALJ 49; Kishore Chandra Agarwal v. State of U.P. and others, 2008 (104) RD 253 and various other cases it has been held that under Section 47-A (3) of the Act, the burden lay upon the Collector to prove that the market value is more than minimum as prescribed by the Collector under the Rules. The report of the Sub-Registrar and Tehsildar itself is not sufficient to discharge that burden."
I have considered the arguments of the learned counsel for respective parties. From perusal of the record and the judgment, it is evident that the authorities have only relied upon the report of Lekhpal and Tehsildar and no enquiry was done as provided under Rule 7 (3) (c) of the Rules, 1997 and placed reliance on the report of Lekhpal and Tehsildar.
In view of the above, the operation and implementation of the orders dated 05.10.2009 and 22.01.2009, contained in Annexures- 1 and 2 to the writ petition, are hereby stayed till further orders of the Court. Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any may be filed within a week thereafter.
List immediately thereafter.
Order Date :- 12.1.2010 Suresh/-