Court No. - 83
Case :- WRIT - C No. - 19223 of 2018 Petitioner :- Neta Subhash Krishi Sainik Mahavidyalaya And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Adarsh Singh,Indra Raj Singh Counsel for Respondent :- C.S.C.,
Hon'ble Jayant Banerji,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Adarsh Singh, learned counsel for the petitioners and Sri Sanjay Goswami, learned Additional Chief Standing Counsel appearing for respondent nos. 1 to 5.
Counter and rejoinder affidavits have been exchanged in the matter.
This petition has been filed challenging the order dated 16.12.2017, passed by respondent no.3, Assistant Commissioner Stamp, Maharajganj, whereby in proceeding under Section 47A of the Act of 1899 he has assessed stamp deficiency of Rs. 14,97,220/ and has imposed a penalty of Rs. 1,49,722/ totalling Rs. 1,64,6942/. Interest on the stamp deficiency at the rate of 1.5% per mensum was also imposed. Further challenge is to the order dated 19.5.2018, passed by the respondent no.2, Commissioner, Gorakhpur Division, Gorakhpur, whereby the order passed by the Assistant Commissioner Stamp dated 16.12.2017 has been upheld and the appeal of the petitioner has been dismissed. The consequent recovery certificate dated 21.5.2018 issued by respondent no.5, Tehsildar has also been challenged. A direction has also been sought commanding the respondents-authorities to conduct inspection of the land in dispute.
The case set up in the petition is that the Society by the name of Banki Shiksha Sudhar Samiti, Maulaganj Urf Banki, Vinod Nagar, Baida, Maharajganj was established and that Society established and administers an Intermediate College in the name of Neta Subhash Krishi Sainik Inter College, Banki Vinod Nagar, Maulaganj, District Maharajganj which is a recognized institution under the U.P. Intermediate Education Act, 1921 and is also governed under U.P. Act No. 24 of 1971. The petitioner No.2 is the Manager of the society and the institution.
It is stated that for establishing a degree college, the committee of management of the aforesaid institution, under a bona fide mistake and ignorance of section 5 of U.P. Act No. 3 of 1975, authorized the petitioner no.2 to establish a degree college and to execute a registered sale deed of the excess land of the institution to the extent of 1.012 hectare comprised in two plots of land, one being Arazi No. 78 and other being Arazi No.
79. Consequently, a registered sale deed No. 3289 was executed on 31.5.2011 in favour of Neta Subhash Krishi Sainik Mahavidayalaya Banki Vinod Nagar, Maulaganj, District Maharajganj.
After coming to know of the mistake in getting the sale deed registered, steps were taken to restore the aforesaid land in favour of the institution and, accordingly, another sale deed No. 5617 dated 15.9.2011 was executed in favour of the institution. The aforesaid transactions were duly recorded by the revenue authorities in the Khatauni. It is alleged that respondent No. 6 made a complaint on 8.10.2011 regarding deficiency of stamp before the respondent no.3 with regard to the aforesaid sale deed. On the basis of the aforesaid complaint, by a letter dated 1.11.2011, the Sub-Registrar sought a report from the respondent no.5, Tehsildar. The concerned Lekhpal of the area visited the spot and prepared a report enclosing a map and stating that the aforesaid Arazi No. 78 having an area of 0.709 hectare is a ‘गड़ही#’ (‘gadahi’ which means depression) and Arazi No. 79-Ka to the extent of 0.303 hectares is an agricultural land. It is stated in the petition that the Sub-Registrar prepared a report contrary to the Lekhpal’s report on 28.11.2011 and pointed out a deficiency of stamp duty of Rs. 14,80,600/. It is stated that the petitioner filed an objection before the respondent no.3 on 4.8.2016, but the same was not considered by the respondent no.3 who decided the matter under Section 47-A of the Act of 1899 and imposed the penalty aforesaid.
It is contended by the learned counsel for the petitioner that in the objection filed before the respondent no.3, the report of Sub-Registrar dated 28.11.2011 was specifically challenged. An appeal was filed before the respondent No.2 specifically raising the issue regarding non- consideration of the objection filed by the petitioner to the report of the Sub-Registrar. However, the same was not considered in the correct perspective and the order was passed by respondent no.2, the Commissioner, Gorakhpur Division, Gorakhpur rejecting the appeal.
Learned counsel for the petitioner has drawn attention of the Court to the report of Lekhpal dated 8.11.2011 as well as to the report dated 28.11.2011 prepared by Sub-Registrar, the respondent no.4. Learned counsel has relied upon judgements passed by this Court in Writ-C No. 56955 of 2009 (Smt. Rajkali Devi Vs. State of U.P. and others), Ram Khelawan alias Bachcha Vs. State of U.P.1, Veer Bal Singh Vs. State of U.P. and others2, Rajesh Pandey Vs. State of U.P.3, Hari Chand Vs. State of U.P.4 and Udaiveer Singh Vs. Commissioner, Agra Division and others, passed in Writ-C No.61910 of 2014.
Sri Sanjay Goswami, learned Additional Chief Standing Counsel has strongly opposed the writ petition and has contended that the Collector has made no error in relying upon the report of respondent no.4 dated 28.11.2011. He has stated that a detailed inspection was made by the Sub-Registrar after consulting and taking the opinion of various villagers and he also prepared a map clearly reflecting that the plots in question are adjacent to roads and, therefore, the Collector was justified in 1 2005(2) AWC 1087 2 2009(108) RD 124 3 2011(4) ADJ 801 4 2011(3) ADJ 670 imposing additional stamp duty and penalty on the petitioner, and, the Commissioner too committed no error of law in rejecting the appeal filed by the petitioner.
Having considered the record of the case and contention of the learned counsel for the respective parties and relevant case laws on the subject, it needs to be seen whether the authorities were justified in relying upon the report of Sub-Registrar, respondent no.4 as conclusive evidence for imposing deficiency of stamp and of penalty with interest thereon.
A perusal of the report of the Lekhpal submitted to respondent no.4 that is appended as Annexure-6 to the writ petition reveals that it also includes a site map reflecting various plots and roads that are adjacent to the plots in question. The report of respondent no.4 dated 28.11.2011 which is addressed to the District Stamp Officer and enclosed as Annexure-7 to the writ petition reflects that the sold property was identified on the basis of assistance extended by some persons present at the site. The report does not reveal whether the petitioner or any person authorised by the petitioner was present on the site during the course of inspection. After making some measurements and taking into account the boundaries of the land as identified by the persons present on the site, the amount of stamp duty was assessed. It is pertinent to mention here that on page 101, it has been specifically mentioned by the respondent no.4 in his report, that since there is a difference in the Arazi number mentioned in the sale deed and the boundaries given therein, therefore, prior to final disposal, the competent revenue official is required to make a spot verification. The map enclosed with the report of respondent no.4, the Sub-Registrar, has been filed today by means of a supplementary affidavit which has been taken on record. This map shows various houses, rooms varandah, cycle stand and road existing in and around the plots of the land stated to be of Arazi no. 78 and 79-Ka. However, Arazi No. 78 and 79-Ka have not been specified in the map but merely mentioned in the heading of the page.
Annexure no. 1 to the rejoinder affidavit is the objection filed by the petitioners to the show cause notice dated 11.1.2012 sent by the authorities after initiation of proceedings under Section 47A of the Act of 1899. A perusal of paragraphs 10,11 and 12 thereof reveals that specific objections were taken with regard to the inspection report dated 28.11.2011 submitted by respondent no. 4. As a matter of fact, a serious dispute regarding the said report was raised. The order of respondent no.3, the Assistant Commissioner Stamp that is enclosed as Annexure-10 to the writ petition reveals scant consideration of the objection filed by the petitioner to the report dated 28.11.2011. The respondent no. 3 has proceeded to unilaterally make the assessment of deficiency of stamp without addressing the objection of the petitioner.
Further, in the grounds of appeal that have been enclosed as Annexure-12 to the writ petition, in paragraphs 6, 9 and 13 thereof specific objections have been raised regarding the report of respondent no.4. However, it is noticed with concern that respondent no.2, Commissioner though noticing that the petitioner had filed response/objection on 4.8.2016, proceeded to totally overlook the same and has mechanically approved the order passed in proceedings under Section 47-A of Act of 1899, basing his findings on the report of Lekhpal dated 8.11.2011 and report of Sub-Registrar dated 28.11.2011.
In the case of Ram Khelawan alias Bachcha Vs. State of U.P. (supra), this Court after considering a gamut of case laws on the subject as well as the provisions of the U.P. Stamp (Valuation of Property) Rules, 1997, particularly Rule 7(3)(c) thereof, has proceeded to observe as follows:-
“12. It has been found in several cases like the present one that the entire basis of determination of market value for the purpose of stamp duty is ex-parte report of Tehsildar or other officer. Ex-parte inspection report may be relevant for initiating the proceedings under Section 47A of Stamp Act. However, for deciding the case no reliance can be placed upon the said report. After initiation of the case inspection is to be made by the Collector or authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3) (c) of the Rules of 1997. Moreover, in the inspection report distance of the property from other residential or commercial properties and road must be shown and wherever possible sketch map must also be annexed alongwith the report so that correct valuation may be ascertained with reasonable certainty”.
The aforesaid judgement of Ram Khelawan (supra) has been affirmed and followed by various decisions of this Court. In the case of Veer Bal Singh Vs. State of U.P. and others(supra), the Court observed as follows:-
“15. None of the authorities below besides the report of the Sub- Register has referred any other material in support of their orders. In Ram Khelawan @ Bachcha V. State of U.P. through Collector, Hamirpur and another, it has been held that the report of the Tehsildar may be a relevant factor for initiation of the proceedings under section 47A 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 47A of the Act. In the case of Vijai Kumar V. Commissioner, Meerut Division, Meerut5, the ambit and scope of section 47-A of the Act has been considered with some depth. Taking into consideration the Division Bench judgement of this Court in Kaka Singh V. Additional Collector and District Magistrate (Finance and Revenue)6, Kishore Chandra Agrawal V. State of U.P. and others7, 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”.
5 2008 (105) RD 192=2008(7) ADJ 293.
6 1986 ALJ 49 7 2008(104) RD 253 Thus, it is no longer res nova that the report on the basis of which the appropriate authority initiates proceedings under Section 47A of the Act of 1899 can at best be to referred to as a preliminary piece of information/evidence, on the basis of which the appropriate authority can conclude that the proceedings under Section 47A of the Act of 1899 are required to be initiated. Once the person to whom notice is issued pursuant to the proceedings under Section 47A of the Act of 1899 raises an objection with regard to that report which forms the basis of initiation of proceedings under Section 47A, it is incumbent on the appropriate authority, given the provisions of Rule 7(3)(c) of the Rules 1997, to inspect the property after due notice to the parties to the instrument. Admittedly, no such inspection has been made in the matter.
There is another aspect of the matter. The report of Sub-Registrar, in its penultimate paragraph, itself reflects that the report is inconclusive. When that report itself created a doubt regarding the boundaries, etc., coupled with the fact that the objection of the petitioners with regard to that inspection was also on record, it was impermissible for the authorities concerned to proceed to pass the order imposing additional stamp duty and penalty. This cannot but be referred to as wholly unilateral and arbitrary.
Under the circumstances, the impugned order dated 16.12.2017 passed by respondent no.3 and the order dated 19.5.2018 passed by respondent no.2 and the recovery certificate dated 21.5.2018, issued by respondent no.5 are quashed. However, under the circumstances, since the interest of the State exchequer is involved, it is directed that the Collector/ Assistant Commissioner Stamp shall restart the proceedings under Section 47A and shall take an appropriate decision in accordance with law within a period of four months from today.
Keeping in view of the decision of this Court in Writ Petition No. 9026 of 2011 (Hari Chand Vs. State of U.P.) and in Writ-C No. 5646 of 2006 (Ishaq Khan Vs. State of U.P.), it is directed that any amount deposited in excess of the stamp duty paid by the petitioners at the time of registration of the instrument shall be refunded to them by the respondents within one month from today alongwith simple interest @ 8% per annum from the date of deposit and till the date of actual payment.
Subject to above, this writ petition is allowed.
Order Date :- 25.10.2021 sfa/ (Jayant Banerji, J)