Heard counsel for the parties.
By means of present writ petition, the petitioner is seeking a writ of certiorari for quashing the order dated 27.08.2009, contained in Annexure-9 to the writ petition, passed by the opposite party no.1 upholding the order dated 26.02.2009, contained in Annexure-7 to the writ petition, passed by the opposite party no.2. The petitioner further seeking a writ in the nature of mandamus commanding the opposite party no.2 to refund an amount of Rs.2,32,165/- i.e. 1/3 of the total amount of deficiency in stamp, penalty and interest to the petitioner within the time frame fixed by this Hon'ble Court. The submission of the counsel for the petitioner is that one Daya Ram son of Sri Dori was recorded Bhumidhari of Plot No. 154 having area 0.492 hectares situated in village Saidpur Jagir, pargana Lucknow, Tehsil Bakshi-ka-Talab, district Lucknow, had executed a registered sale deed on 12.05.2005 in favour of Rajesh Bansal and the same was mutated in his name and recorded in the revenue record. Rajesh Bansal, recorded Bhumidhar of Plot No. 154 has executed a sale deed of entire plot No. 154 having area 0.492 hectares in favour of the petitioner for sale consideration of Rs.4.50 lakhs and as per market value the stamp duty worth Rs.45,000/- was paid and the Sub- Registrar, Bakshi-ka-Talab on being satisfied with the valuation of the property as disclosed in the sale deed on 31.10.2005 registered the documents. The petitioner's Society subsequently sold the entire plot to one Mr. Mayur Jaiswal for sale consideration of Rs.5.00 lakhs on 09.01.2006 and the land was mutated in the name of Mr. Mayur Jaiswal on the basis of sale deed executed by the petitioner's Society. On the basis of statement of Lekhpal that the land purchased by the petitioner's Society is not agricultural land but residential one and the stamp duty has to be paid on the sale deed as per the residential rates. The Tehsildar, Bakshi-ka-Talab referred the matter to the Additional Collector (Finance & Revenue), Lucknow for further action and on the basis of report of Tehsildar, Bakshi-ka-Talab, Lucknow the Additional Collector (Finance & Revenue), Lucknow registered the case as Stamp Case No. 596/ Stamps/1855/67, State vs. Sana Sahkari Avas Samiti Ltd. and issued a notice under Section 47-A/37 of the Stamp Act. The Additional Collector (Finance & Revenue), Lucknow on the basis of report of Lekhpal and Tehsildar treating the plot purchased by the petitioner's Society as residential use and determine the market value of the plot purchased as Rs.46,80,000/- as well as stamp duty to the tune of Rs.4,68,000/- and after deducting a sum of Rs.45,000/-, which was already paid, held that there was a deficiency of Rs.4,23,000/- towards stamp duty by order dated 26.02.2009. A sum of Rs.7,000/- was determined as penalty and further interest at the rate of 1.5 % per month was imposed from the date of the execution of the sale deed dated 29.10.2005. The petitioner being aggrieved by the order dated 26.02.2009 preferred an appeal under Section 56 of the Act before the opposite party no.1 alongwith stay application and deposited 1/3 amount.
The further submission of the counsel for the petitioner is that the opposite party no.1 even without considering the entire facts and circumstances of the case as well as law applicable thereto, merely by endorsing the order passed by the opposite party no.2, dismissed the appeal vide judgment and order dated 27.08.2009. The counsel for the petitioner further submits that it is settled law that market value has to be determined with reference to the date on which the document is executed and also placed reliance on the judgment reported in 2009 (106) RD 749, Prafulla Singh vs. State of U.P. & others. In paras-4, 5 and 6 of the same read as under:-
"4. In Aniruddh Kumar and Ashwani Kumar v. Chief Controlling Revenue Authority, U.P. Allahabad and another, the Court held that an agricultural land remains an agricultural land on the date of purchase and could not be treated as a residential plot nor can the valuation be determined on the assumption that the land was situated in close proximity of a residential land nor the said land could be treated as a residential land.
5. In P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others, the Supreme Court held that the question of future potential of the land in question cannot be the determinatric factor for determination of the market value of the land for the purpose of stamp duty payable under the Stamp Act.
6. The Supreme Court held that whether in future the purchaser would use the land for residential purpose or changes the character of the land was immaterial for the payment of stamp duty on the date when the land was purchased. Similar view was again held by the learned Single Judge of this Court in Smt. Neelam Gupta v. Commissioner, Kanpur Division, Kanpur and others".
The counsel for the petitioner also placed reliance on the judgments reported in 2009 (27) LCD 442, Surendra Singh and another vs. State of U.P. & others, 2008 (26) LCD 588, Smt. Anasuya Singh vs. Commissioner, Faizabad Division, Faizabad and 2008 LCD 1284, Jingle Bell Nursery School Society, Faizabad vs. Chief Controlling Revenue Authority & others. After considering the submission of the counsel for the petitioner and the judgments cited by the counsel for the petitioner, it would be in the interest of justice to restrain the opposite parties from taking any coercive action against the petitioner and, accordingly, the opposite parties are hereby restrained from taking any coercive action against the petitioner till further orders of the Court.
Admit.
Learned Standing Counsel prays for and is granted four weeks' time for filing counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.
List immediately after expiry of the aforesaid period.
Order Date :- 13.1.2010 Suresh/-