1. By registered sale-deed dated 20.4.2012 the petitioner and other persons had purchased the property in question from earlier owner of said property, namely Syed Ashfaq Hussain and Syed Farasat Hussain. The said sale-deed contained description of property being proposed as vacant plot of 3350, square feet which is equal to 311.33 square meter. After execution of sale-deed the property was inspected on 5.12.2012 and thereafter respondent no.-2 has issued show cause notice dated 7.12.2012 for proposing additional stamp duty in accordance with law.
2. After service of said notice, the petitioners had found error in boundaries mentioned in sale-deed dated 20.4.2012, so the parties to the earlier sale-deed had executed another supplementary registered instrument dated 30.1.2013 for correction of boundaries mentioned in earlier registered sale-deed dated 20.4.2012.
3. After it petitioner had submitted his reply dated 22.4.2013 before respondent no.-2 and also requested for again inspection of disputed property, on the ground that earlier inspection was carried out for different property, in his absence. His application was allowed and accordingly Tehsildar, Shikohabad had made inspection of property in question on 31.8.2013. After receiving of said inspection report dated 31.8.2013, the Respondent no.-2 Collector, Firozabad had passed impugned order dated 23.10.2013 by which the explanation submitted by the petitioner was rejected and it was held that stamp fees was properly paid at the rate of land of residential area for landed portion, but since this property contains constructed area of 811.93 Sq. Mtr., which was not shown in sale-deed dated 23.10.2013, therefore the valuation of constructed portion is being considered and additional stamp fees leviable on instrument in question. Accordingly, respondent no.-2 had passed direction for realization of Rs. 6,30,525/- as additional stamp duty and Rs. 10000/- as penalty, to be recovered from petitioner with interest at the rate of 1.5% per month.
4. Aggrieved by this judgment dated 23.10.2013 of respondent no.-2, the petitioner had preferred Revision No.-19 of 2013, Udaiveer Singh Vs. State of UP and others, that was heard and dismissed by the judgment dated 17.10.2014 of respondent no.-1. During hearing of this revision, the revisionist-petitioner had contended that error of boundary mentioned in sale-deed dated 23.10.2013 was corrected by supplementary registered deed dated 3.1.2013. But this contention was rejected by revisional court on ground that such error cannot be rectified and the description of property cannot be changed.
5. Against the judgment dated 23.10.2013 of respondent no.-2 and judgment dated 13.10.2014 of respondent no.-1, the present writ petition has been preferred.
6. Learned counsel for the petitioner submitted that at the time of passing of impugned order dated 23.10.2013, the respondent no.-2, Collector had not considered the inspection report dated 31.8.2013 and without any basis had held that property in question related to sale-deed dated 23.10.213 contains constructed area. His submission is that no constructed area was part of property sold. Therefore for the sale-deed dated 20.4.2012 the imposition of stamp duty for such alleged construction is without any basis and is erroneous; therefore the impugned orders should be quashed.
7. Standing Counsel opposed these submissions and contended that impugned order dated 23.10.2013 passed by respondent no.-2 contains the description of judgment of this court, in which it has been held that by execution of supplementary deed, the clerical error of instrument may be rectified and property cannot be changed. He submitted that impugned orders are correct, and the writ petition should be dismissed.
8. There are few pertinent facts relating to this matter. Admittedly the original said deed dated 20.4.2012 contains description of property as vacant plot. It is nowhere mentioned in it that said property has any constructed portion. The supplementary deed of rectification dated 3.1.2013 also contains description of said property as vacant plot without any construction. It is relevant to note here that for purpose of imposition of additional stamp duty such property should be inspected in presence of the purchaser, who is expected to pay proper stamp duty, but in present matter alleged inspection dated 5.12.2012 was carried out in his absence. Apart from it, the said inspection of 5.12.2012 was carried out for different property and not regarding the property of vacant plot which was initially sold on 20.4.2012 and for which rectification deed dated 3.1.2013 was executed. It appears that for the consideration of those facts and after accepting submissions of the petitioner in his application dated 3.5.2013 for re-inspection of plot was allowed by respondent no.-2. In this application of re-inspection, the petitioner had specifically mentioned that property purchased by him was plot and not constructed portion. After allowing of said application, under direction of respondent no.-2, the disputed property was inspected by Tehsildar, Shikohabad on 31.8.2013, who had submitted his report in which it was specifically mentioned that this property has only vacant land and contains no construction, and the stamp fees levied for it at the rate of Rs. 6000/- per square meter was correct.
9. Admittedly disputed property is situated in residential area and at the time of execution of sale-deed stamp fees was paid on prevalent circle rate of that residential area. The only point to be considered by respondent no.-2, Collector was that whether this property contains constructed area or not. The petitioner had been submitting that this property is vacant land. Both the sale-deed dated 20.4.2012 and rectification deed dated 3.1.2013 contains description of vacant land only having no construction. The inspection report submitted by Tehsildar, on direction of respondent no.-2, had report of vacant land only and of non presence of any constructed portion. In spite of it, the respondent no.-2 had held that disputed property contains.
10. Section 101 of Evidence Act reads that whoever desires in court to give judgment as to any legal right depending on the existence to fact which he asserts, must prove that such fact exists. Section 103 of this Act provides that burden of proof as to particular fact lies on that person who wishes to the court to believe in its existence. In present matter no one except the respondent no.-2 (Collector), had desired to prove that disputed property contains construction area of 811.33 square meters. Since these facts have been denied by petitioner and also in the documentary evidence available before respondent, therefore burden was on him to prove these facts with sufficient reasons. The finding of fact was given by respondent no.-2 that constructed area is also present on property relating to instrument dated 20.4.2012 and 3.1.2013. In absence of any evidence or reason, such finding of fact given by respondent no.-2 in his impugned order dated 23.10.2013 is totally erroneous and perverse. Since proper stamp duty was paid by petitioner on the land in question and since no constructed area was present on it, therefore the petitioner is not liable to pay any additional stamp duty or penalty in that regard. These facts were not properly considered in the judgment dated 17.10.2014 by respondent no.-1, who had superficially considered the judgment of respondent no.-2 and, apparently without application of judicial mind, reiterated its finding and dismissed the revision. Therefore the impugned judgment of respondent no.-1 is also found without proper exercise of jurisdiction.
11. In view of above, this Court finds the impugned judgments dated 23.10.2013 and 17.10.2014 passed by respondent no.-2 and respondent no.-1 respectively as erroneous. Therefore, these judgments are hereby set aside. Accordingly, this writ petition is allowed.
12. The amount, if any, deposited after passing of impugned order will be returned to the petitioner with interest. The respondents are simultaneously directed to refund any amount deposited by the petitioner pursuant to the impugned orders with simple interest @ 8% from the date of the deposit till its refund.
Order Date :- 7.12.2016 SKS