AFR
Court No. - 30
Case :- WRIT - C No. - 4808 of 2018 Petitioner :- Sudhansu Agrawal Respondent :- State Of U.P.
Counsel for Petitioner :- Aditya Shukla Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
1. Heard learned counsel for the petitioner and Sri B.N. Pathak, learned Standing Counsel appearing for the State respondents.
2. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties present petition is being decided at this stage itself.
3. Present petition has been filed for quashing the order dated 25.1.2014 passed by the respondent no. 3 in Stamp Case No. 72 of 2013-14 and order dated 26.10.2017 passed by the respondent no. 2 in Appeal No. 23/72/2012-13.
4. By the impugned order dated 25.1.2014 in proceedings initiated under Section 33/47A of the Indian Stamp Act deficiency of Rs. 2,80,000/- was found and penalty of Rs. 20,000/- was imposed alongwith interest @ Rs. 1.5% per month on the ground that the land has residential potentiality and the plotting is being done on the land purchased by the petitioner through registered sale deed dated 8.1.2013. The aforesaid order was challenged in appeal. The appeal was also dismissed by the appellate authority vide impugned judgment and order dated 26.10.2017.
5. Submission of learned counsel for the petitioner is that the stamp duty could have been imposed only on the basis of position as existing on the date of execution of the sale deed. He further submits that there is no declaration under Section 143 of U.P. Z.A. and L.R. Act, 1950 declaring the land as abadi land and therefore, the order impugned herein, whereby the deficiency has been assessed on the ground of urban potentiality, cannot been assessed and the impugned orders are liable to be set aside. He further submits that the impugned orders are ex-parte and the report was submitted only on presumption that residential use in future of the land so purchased by the petitioner can be made.
6. In support of his argument learned counsel for the petitioner has placed reliance on a judgment of this Court in the case of Sumati Nath Jain vs. State of U.P. and others 2016 (2) ADJ 533 (DB).
7. Per contra, learned Standing Counsel submits that the impugned orders are perfectly justified and non declaration of land under Section 143 of the Act itself is not sufficient and residential potentiality of the land can be very well considered by the revenue authorities and there is cogent evidence to assess such deficiency. He further submits that the residential potentiality infact has been admitted by the petitioner that he is willing to pay double stamp duty, presumably on the ground, to avoid further legal dispute. He further pointed that there are so many facts as narrated in paragraph 11 of the counter affidavit that have to be taken into account for the purpose of assessing deficiency of stamp and in the present case all the factors are present. Submission, therefore, is that the impugned orders warrant no interference. Alongwith counter affidavit copy of the confidential report of Sub Registrar and photographs of spot inspection report made by Naib Tehsildar alongwith najri naksha have also been annexed.
8. I have considered the rival submissions and have perused the record.
9. On perusal of record I find that in the adjoining plots the residential colony is being raised and a lay out plan has also been made. In the present case also the lay out plan and the photographs were annexed with the report. The plot in question being Plot No. 627 is adjoining to another plot consisting of old residential area. In the adjoining plots also lay out plan and drainage had already been carved out. The record further reveals that the inspection was done only after 12 days of the execution of the sale deed, which was also immediate after execution of the sale deed. Alongwith report reference has also been made to two previously executed sale deeds of Jageshwari Tripathi and Priyanka Singh regarding same Plot No. 627 as residential plots, which therefore, clearly indicates that a residential colony was, infact, also existing or further development in the vicinity of the plot in question has already been done.
10. Apart from that, it may be to avoid litigation, however, fact remains that the petitioner has also admitted that he is willing to pay double the stamp duty in case the plot is considered as having residential potentiality.
11. A reference may also be made in this regard to a judgment of Hon'ble Apex Court in the case of Neeraj Jain vs. State of U.P. and others 2015 (11) SCC 437. Paragraph 8 whereof is quoted as under:-
"8. In our considered opinion, it is a fit case where the High Court should have dwelled upon the issues in a proper prospective requiring the State Government to put forth the material on record that there has been a change of user or there are other contemporaneous sale-deeds in respect of adjacent area and the market value has been increased or there has been a change in the agricultural land to the urban agglomeration and such other ancillary aspects. Therefore, we think it appropriate to set aside the order passed by the High Court and remit the matter to it for consideration from all the spectrums while appreciating the legal validity of the orders passed by the authorities. We may repeat at the cost of the repetition that we have remitted the matter as we have noticed that the authorities have passed the order on the assumption that this is an urban land or has the potentiality of the urban land. The determination of the urban land is dependent on many a factor and, therefore, we remit the matter to the High Court with a request that it should advert to all the aspects."
12. In the case of Sumati Nath Jain (supra) the main consideration was that on the date of execution of the instrument the land was admittedly recorded as agricultural and the same remain unchanged throughout and continued to represent the land as recorded for agricultural purposes. Therefore, it was held that the proceedings were initiated based upon unsubstantiated assumption that the property in future was likely to be put to non-agricultural use. Whereas in the case of Neeraj Jain (supra) the argument regarding non-declaration of land under Section 143 of the U.P. Z.A. and L.R. Act, 1950 was raised that the land continues to be agricultural in nature. It is only after considering the aforesaid argument the opinion as quoted above in paragraph 8 of the aforesaid judgment was expressed by Hon'ble Apex Court.
13. In such view of the matter, I do not find any good ground to interfere in the order impugned herein as the authority concerned has taken note of all the factors as are required to be considered in such cases as Neeraj Jain (supra).
14. Present petition is devoid of merits and is accordingly dismissed.
Order Date :- 29.11.2018 Lalit Shukla