(Oral)
1. Heard Sri Shushrut Pandey, learned counsel for the petitioner and Sri Dev Prakash Mishra, learned Standing Counsel for the State- respondents.
2. This petition has been filed by the petitioner for quashing of the order dated 15.06.2016 passed in a Stamp Case instituted by the State-respondents under Section 47-A of the Stamp Act and the order dated 17.10.2016 passed by the Revisional Authority in the revision filed by the petitioner under Section 56 of the Act, rejecting the same.
3. It has been submitted by the learned counsel for the petitioner that the petitioner bought only 0.081 hectare of land of plot no.313, the total measurement of which, was 0.634 hectare. It was surrounded on three sides of agricultural land and on the fourth side by Chaudharydeeh Tulsipur Road, through a registered Sale Deed from one Vibhutinath alias Nathu Ram. The said Sale Deed was registered as 7346/2014 on 14.11.2014. At the time when the land was purchased, as per Circle Rate for agricultural land fixed @ Rs.20 lacs per hectare, the petitioner paid the consideration of Rs.2,03,000/-, on which, Stamp Duty of Rs.10,150/- was paid along with registration fee of Rs.2030/-.
4. After registration of the Sale Deed, the petitioner, all of a sudden received a show-cause notice in Stamp Case No.128/D 201608100074 instituted under Section 47A(3) of the Stamp Act on 24.02.2016. In the said show-cause notice, a mention was made of an Audit report/objection dated 7.1.2016 by the Audit team sent from the office of the Accountant General. The Audit party had raised an objection that plot no.313 ad-measuring 0.0634 Hectare had earlier been shown as a residential land and some part of the same Gata had been sold by the same vendor Nathu Ram through Sale Deed No.7254 on 12.11.2014 @ 3600 per square meter.
5. The petitioner submitted a reply saying that the land that the petitioner had bought was recorded as agricultural land. It was bought for agricultural purposes only. In the revenue records also, there was no declaration under Section 143 of the U.P. Z.A. & L.R. Act. In the objection, the petitioner also stated that one Lalta Prasad s/o Kanhaiya Lal had sold half of the plot no.313 in favour of Vibhuti Nath and Ram Manohar, sons of Ram Saran, through registered Sale Deed and the land had been recorded in the name of his vendor in Mutation Case No.1424 by the order of Tehsildar, Balrampur on 27.07.2010. Since the land was agricultural in nature and was surrounded also by agricultural land, the petitioner had paid stamp duty on the basis of agricultural rates as mentioned in the Collector's list of Circle Rates.
6. Learned Counsel for the petitioner has submitted that before the Assistant Commissioner (Stamp), Balrampur, several judgments were also cited by the petitioner to show that only because the potential of the land in question has increased with passage of time, the valuation of the plot could not be said to be automatically increased. The valuation of the plot has to be determined on the date on which the Sale Deed has been executed and registered. However, the Assistant Commissioner (Stamp), Balrampur, ignored such submissions and passed the order dated 15.06.2016.
7. Aggrieved by the said order, the petitioner filed Revision No.06/C-20160800896 before the Additional Commissioner (Administration), Devi Patan Mandal, Gonda. In the said revision also, the petitioner raised the ground that plot of land had not yet been declared for non-agricultural purposes under Section 143 of the U.P.Z.A. & L.R. Act. It has been recorded in the revenue records as agricultural land and that the petitioner bought only one bigha of land and on the basis of Collector's list of Circle Rates of Rs.20 lacs per hectare for agricultural land, stamp duty and registration fee had been paid. The petitioner had also relied upon judgments with regard to his contention that valuation of the land cannot be determined on the basis of its potential to be used for residential purposes. However, the same were ignored.
8. Learned Counsel for the petitioner has submitted that an on the spot inspection was conducted on 06.05.2016 after nearly two years from the date of Sale Deed and on the basis of the on spot inspection which found commercial and residential activities in the surrounding area, the revision has been rejected by the order dated 17.10.2016.
9. Learned Counsel for the petitioner has referred to two judgments passed by Co-ordinate Benches of this Court. The first case is Ashish Kumar and others Vs. State of U.P. and others: Writ Petition No.6187 (M/S) of 2008, decided on 29.01.2010 and the second judgment is with regard to M/s Prosperous Buildcon Pvt. Ltd. Vs. State of U.P. and others: Writ-C No.53008 of 2012, decided on 20.09.2017.
10. Learned Standing Counsel appearing for the State-respondents has referred to the counter affidavit filed on 10.02.2017 by the A.I.G. (Registration), Balrampur. It has been submitted that the registered Sale Deed no.7346/2014 was examined by the Audit team and an Audit report dated 07.01.2016 was submitted on the basis of which, the Sub-Registrar, Sadar, Balrampur, sent the Sale Deed for examination and institution of stamp case. In the Audit report, it had come out that out of Gata No.313 area 0.634 hectare, the petitioner had purchased only 0.081 hectare of land, which was surrounded on three sides by agricultural land and on the fourth side by Chaudharydeeh Tulsipur road on agricultural rate of Rs.20 lacs per hectare. For a part of the very same plot no.313, Sale Deed no.7254 was registered on 12.11.2014 to another purchaser by calculating the valuation @ Rs.3600/- per square meter at residential rate and the seller of both the lands/parts of land was the same person i.e. Nathu Ram. One Sale Deed was registered on 12.11.2014 at residential rates and the other Sale Deed was registered on 14.11.2014 at agricultural rates, which show that the evasion of stamp duty had been made by the petitioner, therefore, after giving the opportunity of hearing, the A.I.G. (Registration), Balrampur, decided the case, finding that a total amount of Rs.1,44,000/- (Stamp Duty + Registration charges) has been paid less by the petitioner.
11. The petitioner filed his objection. To verify the contents of the objections made by the petitioner, an on the spot inspection was held on 06.05.2016. In the objections, the petitioner had stated that the agricultural work was being carried out on the property in dispute and the paddy or Dhan in Kharif season and wheat in Rabi season had been sown. However, in the on the spot inspection carried out, it was found that the land was fallow or parti and the other adjacent plots were being used for residential purposes and their foundation had been laid. Chaudharydeeh Market was within 100 meters from the plot in question and commercial activity was being carried out very close to the property in dispute. Also, on examination of record, it was found that two Sale Deed nos.7254/2014 dated 14.11.2014 and 5101/2014 dated 23.07.2014, had been executed for residential purposes for the parts of the same plot number 313. In the objection, it was also mentioned that on the eastern side of the property in dispute, agricultural land of Arjun Prasad was situated. When the records were examined, it was found that the Sale Deed of Arjun Prasad was for residential purposes and the seller Nathu Ram is the same vendor as that of the petitioner.
12. It has been submitted in the counter affidavit that on the basis of careful examination of records and on the basis of on the spot inspection, the valuation of the area of 810 Square Meter bought by the petitioner was determined as Rs.29,16,000/-, on which stamp duty of Rs.1,45,800/- and registration fee of Rs.10,000/- + penalty of Rs.2,000/- was determined. The deficiency along with the penalty and registration fee has been imposed by means of the order passed by the Assistant Commissioner (Stamp) along with simple interest @ 1.5% from the date of execution of Sale Deed i.e. 14.11.2014 till the date of actual payment. It has been further submitted that under Section 47(A)(4) of the Stamp Act, in case of deficiency of stamp duty, penalty may be imposed upto four times of the deficient amount.
13. Learned Standing Counsel has also relied upon a judgment in Writ-C No.47533 of 2010 (Wasi Ur Rehman and another Vs. Commissioner, Moradabad Division and others), rendered on 26.02.2015, wherein a Co-ordinate Bench after consideration of binding precedent including a judgment of Hon'ble Supreme Court in Chiranji Lal (Dr.) Vs. Hari Das (2005) 10 SCC 746 and another judgement of Supreme Court in Ramesh Chand Bansal Vs. District Magistrate/Collector (1999) 5 SCC 62, has observed that it is common knowledge that in order to escape such duty by unfair practice, many a time under valuation of the property is done and lower consideration is mentioned in the Sale Deed. This Court has considered expression 'market value' as mentioned under Section 47A (3) of the Act, and its meaning given by the High Court in its judgment in Vijay Kumar and another Vs. Commissioner 2008 (3) AWC 299 All, that market value means 'what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going in the vicinity and potentiality of the land.'
14. Similar observations have been made by the High Court in Ratna Shankar Dwivedi Vs. State of U.P., AIR 2012 ALL 100. This Court had considered 1997 Rules and the factors which the Collector could take into account while determining the minimum value (Circle Rate), as mentioned in Rule 4(1)(c) of the Act for fixation of minimum rate for valuation of land, construction value of non-commercial building and minimum rate of rent of commercial building. In case of commercial building, prevailing rate in the locality and nature of economic activity in the locality have to be taken into account. The person presenting the instrument is required to disclose nature of economic activity, industrial development, if any, prevailing in the locality where the property is situated.
15. Learned Standing Counsel has also relied upon a judgment rendered in Writ Petition No.6616 (M/S) of 2015 (Sunil Jaiswal and another Vs. State of U.P. and others), decided on 3.11.2015, wherein this Court considered the Full Bench decision rendered in Pushpa Sareen Vs. State of U.P., 2015 (33) LCD 1575, and also the judgment rendered by the Co-ordinate Bench in Wasi Ur Rahman (supra), and observed that it cannot be said that merely because the land is recorded in the revenue records as agricultural land or there is no declaration under Section 143 of the U.P. Z.A. & L.R. Act, the same is to be treated as agricultural land even for the purposes of imposition of stamp duty under the Indian Stamp Act. The U.P.Z.A. & L.R. Act is for a different purpose altogether from the purpose as mentioned under the Stamp Act and Valuation of Property Rules, 1997.
16. Learned Standing Counsel has also placed reliance upon the judgment in Writ-C No.50302 of 2009 (Haroon Ahmad and another Vs. State of U.P. and others), rendered on 30.08.2011 by another Co-ordinate Bench of this Court. In the said judgment, the Co-ordinate Bench has referred to the judgment of the Supreme Court in R.C. Bansal Vs. District Magistrate, 1999 (5) SCC 62, wherein it has been held that market value of the land will change from area to area and from plot to plot. The Court found that the five exemplars of the same plot on a date very near to the date of the Sale Deed in question had been considered by the authority concerned for determining the market value of the land. The Court also found that the learned counsel for the petitioner could not dispute that the plot under transfer was situated adjacent to the plots subject matter of sale in the aforesaid five exemplars. The Court dismissed the writ petition but reduced the amount of penalty looking into the facts and circumstances of the case.
17. Learned Standing Counsel has also placed reliance upon a judgment rendered by this Court in Writ Petition No. 1494 (M/S) of 2009 (Shakeel Ahmad vs. Additional Commissioner, Judicial, Faizabad) decided on 16.05.2019, wherein this Court has considered the judgments passed by the Co-ordinate Benches and also the Full Bench decision in Pushpa Sareen (supra) and has held that the market value of the plot has to be determined on the basis of area in which the plot is situated.
18. Learned counsel for the petitioner, on the other hand, has relied upon the judgment rendered in Ashish Kumar (supra), wherein this Court observed that the Sale Deed had been executed on 12.10.2004 and on the date of execution of Sale Deed, the land in question was recorded as agricultural land and in the Khatauni of 1411 Fasli, certain crops of wheat, arhar and dhaan, have been sown in the land in question. It observed that the nature of the land shall be considered on the date of execution of instrument and not on the basis of future use to which the land may be put to. The land cannot be treated to be as industrial or commercial unless a declaration under Section 143 of U.P. Z.A. & L.R. Act is made. It has also been observed that in case the use of agricultural land has been changed to commercial or industrial, the authorities shall first initiate proceedings under Section 143 of U.P. Z.A. & L.R. Act for making such a declaration to the said effect and only thereafter charge the stamp duty treating the land to be industrial or commercial or residential, as the case may be.
19. Learned Counsel for the petitioner has also placed reliance upon the case of M/s Prosperous Buildcon Pvt. Ltd. (supra). In the said case, the Sale Deed was executed in 2005. The inspection note was of the year 2007 i.e. more than two years after the date of Sale Deed and, therefore, this Court observed that such an inspection cannot be said to make an accurate presentation of the status of the land, in which it was situated at the time of purchase. This Court referred to the judgment rendered by the Supreme Court in State of U.P. Vs. Ambrish Tandon and others, (2012) 5 SCC 566, wherein the Supreme Court has observed that merely because the property is being used for commercial purposes at a later point of time, it may not be a relevant factor for assessing the value for the purpose of nature of user which is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp duty. The Co-ordinate Bench also referred to Pushpa Sareen (supra), wherein similar observations have been made that the nature of user is relatable to the date of purchase, which is relevant for the purposes of computing the stamp duty.
20. This Court has perused the judgment cited before it. It finds that paragraph-27 of the judgment rendered by the Full Bench has been quoted in the coordinate Bench's order, which is as follows:
"27.The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others vs. 23 Ambrish Tandon and another, 2012 (5) SCC 566. This is because the nature of the user is relatable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Collector has to be based on adequate material and cannot be a matter of hypothesis or surmise. The Collector must have material on the record to the effect that there has been a change of use or other contemporaneous sale deeds in respect of the adjacent areas that would have a bearing on the market value of the property which is under consideration. The Collector, therefore, would be within jurisdiction in referring to exemplars or comparable sale instances which have a bearing on the true market value of the property which is required to be assessed. If the sale instances are comparable, they would also reflect the potentiality of the land which would be taken into consideration in a price agreed upon between a vendor and a purchaser." (Emphasis supplied)
21. It is evident that the Full Bench of this Court has observed that the Collector can, on the basis of material on record, compare contemporaneous Sale Deeds in respect of adjacent areas that would have a bearing on the market value of the property, which is under consideration. If the sale instances are comparable, they would also reflect potentiality of the land, which would be taken into consideration in a price agreed upon between a vendor and a purchaser.
22. This Court finds from a perusal of the orders impugned that they have referred to atleast two Sale Deeds that were executed in close proximity to the Sale Deed of the petitioner, for parts of the same Plot no.313 by the same vendor. Moreover, in the orders impugned, there is already a mention of the fact that on the inspection of the property in question, it was found that there is no wrong mention of the surrounding boundaries of the property purchased by the petitioner. The plot of Arjun Prasad said to be adjacent to the plot of the petitioner, has been shown to be agricultural in nature in the Sale Deed. However, it was found that Arjun Prasad's land was residential and was purchased at residential rates.
23. This Court, therefore, does not find any good ground to show interference in the orders impugned.
24. The writ petition is dismissed.
25. Since there was no interim order granted in this writ petition at the time of its filing, payment in pursuance of the order impugned may have been made by the petitioner by now. In case the payment has not been made, since the orders impugned have been affirmed by this Court, the deficiency in stamp duty and in registration fee as well as penalty imposed, shall be paid @ 1.5% interest admissible under the Rules also from the date of Sale Deed dated 12.11.2014 till the date of actual payment.
Order Date :- 26.9.2019 Sachin