Court No. - 38
Case :- WRIT - C No. - 53843 of 2010
Petitioner :- Pratap Singh
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Rajesh Kumar Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Jayant Banerji,J.
Heard Shri Rajesh Kumar Mishra, learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents.
By means of this petition, the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate (Finance & Revenue), Moradabad in Case No.407/09 under Section 33/40/47 of the Indian Stamp Act, 18991 whereby, by means of an ex-parte order, deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner (Administration), Moradabad Mandal, Moradabad, whereby the appeal filed by the petitioner under Section 56 of the Act, being Appeal No.74/2009-10, has been partly allowed by reducing the amount of penalty imposed upon the petitioner.
The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869-Ka, an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950, totalling 0.387 hectares in Village-Bhogpur, Mithauni, Tehsil & District-Moradabad by means of a sale-deed executed on 27.09.2007, which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner, in which it was held that the plots in question are for residential usage and, therefore, deficiency of stamp duty of Rs.1,38,400/- and penalty of Rs.1,38,400/- alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex-parte order passed by the respondent no.2, an appeal was filed by the petitioner before the Additional Commissioner (Administration) which was partly allowed by reducing the amount of penalty imposed, though no error was found in the order of the respondent no.2 in assessing the land in question as residential.
The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by the respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of Ram Khelawan alias Bachcha v. State of U.P. and another2. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumidhari over which agricultural activities were being carried on. The learned counsel states that the order of the respondent no.2 was passed ex-parte without affording any opportunity of hearing to the petitioner. It is further contended that the Additional Commissioner (Administration), in the appellate order, has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been imposed upon the petitioner under the facts and circumstances of the present case.
Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale-deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that, accordingly, no fault exists in the order of the respondent no.2 on this ground and, also on the ground that the service of notice on the petitioner was deemed sufficient.
It is noticed, as is admitted, that the impugned order dated 31.12.2009 was ex-parte. It is not the contention of the learned counsel for the petitioner that any restoration application was filed on behalf of the petitioner in respect of the aforesaid order dated 31.12.2009. The petitioner straightaway proceeded to file the appeal under Section 56 of the Act. The grounds of appeal, that has been enclosed as Annexure-6 to the writ petition, do not contain any ground with regard to the non-receipt of notice. Among the grounds raised is of lack of opportunity of hearing to the petitioner. In view of the aforesaid, the affirmation on behalf of the petitioner that no notice was received by him, is belied. The order of the respondent no.2, Additional District Magistrate, has been passed relying upon the report of the Assistant Inspector General of Registration dated 16.10.2009 in which it was mentioned that portions of lands of those very Khasra numbers, were subject of instrument Nos.4894/05, 601/06 and 2463/07 on which stamp duty on the basis of the residential rates was paid. The respondent no.2 has observed that since neither the petitioner nor his counsel had appeared nor any objection was filed, it would be deemed that he accepts the report and notice. Accordingly, the deficiency in stamp duty and penalty were imposed.
Annexure-5 is the report made by the Assistant Inspector General of Registration dated 16.10.2009. The relevant part of the report dated 16.10.2009 is extracted below:-
"...........
अधोहस्ताक्षरित द्वारा अर्द्धनगरीय एवं उपान्त क्षेत्र के कृषि आधारित मूल्यांकन वाले विक्रय विलेखों के मूल्यांकन जांच के क्रम में उक्त विक्रय विलेख मेरे संज्ञान में आया। अभिलेखों के अवलोकन से खसरा न० 869, 948 व 950 स्थित ग्राम भोगपुर मिठौनी से सम्पत्ति क्रय की गयी तथा आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। उक्त प्रकार के कतिपय विलेखों का विवरण निम्न सारिणी में दिया जा रहा हैः-
क्रमांक
विक्रय विलेख संख्या
निष्पादन तिथि
खसरा न०
अन्तरित क्षेत्रफल (वर्ग मी० में)
दर प्रति वर्ग मी०
मूल्यांकन जिस पर स्टाम्प शुल्क अदा किया गया
अदा किया गया स्टाम्प शुल्क
1.
4894/05
9.11.05
869, 948, 950
140.00
1500
210000
21000
2.
601/06
8.2.06
948
132.47
1500
199000
20000
3.
2463/07
5.4.07
869, 948, 950
245.91
1600
394000
31600
उपरोक्त सारिणी के अवलोकन से स्पष्ट है कि खसरा न० 869, 948, 950 स्थित ग्राम भोगपुर मिठौनी से सम्बन्धित विक्रय विलेख संख्या 4894/05, 601/06 तथा 2463/07 का निबन्धन किया गया तथा निर्धारित आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। एक ही ग्राम एक ही एक ही खसरे की भूमि के दो दर्रो के आधार पर सम्पत्ति के बाजार मूल्य का निर्धारण किया जाना तर्क संगत एवं विधि सम्मत् नही है कि सारिणी में उल्लिखित विलेख विवादित विलेख संख्या 5733/07 के द्वारा अन्तरित सम्पत्ति के मूल्यांकन हेतु उपयुक्त एवं तर्क संगत पूर्व दृष्टांत / दृष्टांत स्टजित करते है। ....."
As is evident from the report, as extracted above, that three specific exemplar deeds have been relied upon by the Assistant Inspector General of Registration to reflect the residential usage over the land in question.
In the decision of Ram Khelawan (supra), a coordinate Bench of this Court had made an observation that no reliance can be placed on an ex-parte report for deciding the case. It was observed that the ex-parte inspection report may be relevant for initiating the proceedings under Section 47-A of the Act and after initiation of the case, inspection is to be made by the Collector or the authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the U.P. Stamp (Valuation of Property) Rules, 1997.
Though this Court is in respectful agreement with the aforesaid observations made by this Court in the case of Ram Khelawan (supra), however, in the present case at hand, the ex-parte report specifically refers to three exemplar instruments that were considered by the Assistant Inspector General of Registration while making his report. It was, therefore, open for the District Magistrate, in the facts and circumstances of the present case, where despite notice, neither any objection was filed on behalf of the petitioner nor had any advocate appeared on his behalf, to rely upon the ex-parte report which was based upon the exemplar deeds. It is always open to the Collector or the authority undertaking an examination of an instrument under Section 47-A(3) of the Act, to refer to exemplar deeds for the purpose of ascertaining the market value even though they may form part of an ex-parte report that has led to the initiation of the proceedings under Section 47-A(3) of the Act. Therefore, no fault can be attributable to the respondent no.2 in relying upon the three exemplar deeds that find mention in the ex-parte report dated 16.10.2009. In view of the above, the order of the Additional Commissioner, upholding the order of the respondent no.2, cannot faulted as far as this aspect is concerned.
However, the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds, the respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47-A(3) of the Act that is also relied in the judgment of this Court in Ram Khelawan (supra) and several other decisions. In the decision of a three Judge Bench of this Court in the case of Smt. Pushpa Sareen vs. State of U.P.3, it has been held as follows:-
"26. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument.
27. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land.
28. 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 v. Ambrish Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relateable 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."
Accordingly, the impugned order of the respondent no.2 dated 31.12.2009, insofar as it assesses the valuation of the land in question on the basis of the minimum rates, is set aside. The order of the Additional Commissioner (Administration) dated 26.05.2010 is also set aside insofar as it affirms the order of the respondent no.2 assessing the market value on the basis of the minimum rates. The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter, to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds, and not on the basis of the minimum rates. This exercise shall be done by the authority concerned within a period of three months from today. Since the petitioner is represented, no separate notice is required to be sent to him. It is, however, provided that the petitioner shall appear before the respondent no.2 on 22.12.2021 alongwith a certified copy of the order passed today, whereafter dates may be fixed. In case of failure of the petitioner in appearing on that day, it will be open to the authority concerned to proceed in accordance with law.
In view of the aforesaid observations and to the extent mentioned above, this writ petition is allowed.
Order Date :-07.12.2021
Heard Shri Rajesh Kumar Mishra, learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents.
By means of this petition, the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate (Finance & Revenue), Moradabad in Case No.407/09 under Section 33/40/47 of the Indian Stamp Act, 18991 whereby, by means of an ex-parte order, deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner (Administration), Moradabad Mandal, Moradabad, whereby the appeal filed by the petitioner under Section 56 of the Act, being Appeal No.74/2009-10, has been partly allowed by reducing the amount of penalty imposed upon the petitioner.
The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869-Ka, an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950, totalling 0.387 hectares in Village-Bhogpur, Mithauni, Tehsil & District-Moradabad by means of a sale-deed executed on 27.09.2007, which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner, in which it was held that the plots in question are for residential usage and, therefore, deficiency of stamp duty of Rs.1,38,400/- and penalty of Rs.1,38,400/- alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex-parte order passed by the respondent no.2, an appeal was filed by the petitioner before the Additional Commissioner (Administration) which was partly allowed by reducing the amount of penalty imposed, though no error was found in the order of the respondent no.2 in assessing the land in question as residential.
The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by the respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of Ram Khelawan alias Bachcha v. State of U.P. and another2. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumidhari over which agricultural activities were being carried on. The learned counsel states that the order of the respondent no.2 was passed ex-parte without affording any opportunity of hearing to the petitioner. It is further contended that the Additional Commissioner (Administration), in the appellate order, has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been imposed upon the petitioner under the facts and circumstances of the present case.
Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale-deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that, accordingly, no fault exists in the order of the respondent no.2 on this ground and, also on the ground that the service of notice on the petitioner was deemed sufficient.
It is noticed, as is admitted, that the impugned order dated 31.12.2009 was ex-parte. It is not the contention of the learned counsel for the petitioner that any restoration application was filed on behalf of the petitioner in respect of the aforesaid order dated 31.12.2009. The petitioner straightaway proceeded to file the appeal under Section 56 of the Act. The grounds of appeal, that has been enclosed as Annexure-6 to the writ petition, do not contain any ground with regard to the non-receipt of notice. Among the grounds raised is of lack of opportunity of hearing to the petitioner. In view of the aforesaid, the affirmation on behalf of the petitioner that no notice was received by him, is belied. The order of the respondent no.2, Additional District Magistrate, has been passed relying upon the report of the Assistant Inspector General of Registration dated 16.10.2009 in which it was mentioned that portions of lands of those very Khasra numbers, were subject of instrument Nos.4894/05, 601/06 and 2463/07 on which stamp duty on the basis of the residential rates was paid. The respondent no.2 has observed that since neither the petitioner nor his counsel had appeared nor any objection was filed, it would be deemed that he accepts the report and notice. Accordingly, the deficiency in stamp duty and penalty were imposed.
Annexure-5 is the report made by the Assistant Inspector General of Registration dated 16.10.2009. The relevant part of the report dated 16.10.2009 is extracted below:-
"...........
अधोहस्ताक्षरित द्वारा अर्द्धनगरीय एवं उपान्त क्षेत्र के कृषि आधारित मूल्यांकन वाले विक्रय विलेखों के मूल्यांकन जांच के क्रम में उक्त विक्रय विलेख मेरे संज्ञान में आया। अभिलेखों के अवलोकन से खसरा न० 869, 948 व 950 स्थित ग्राम भोगपुर मिठौनी से सम्पत्ति क्रय की गयी तथा आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। उक्त प्रकार के कतिपय विलेखों का विवरण निम्न सारिणी में दिया जा रहा हैः-
क्रमांक
विक्रय विलेख संख्या
निष्पादन तिथि
खसरा न०
अन्तरित क्षेत्रफल (वर्ग मी० में)
दर प्रति वर्ग मी०
मूल्यांकन जिस पर स्टाम्प शुल्क अदा किया गया
अदा किया गया स्टाम्प शुल्क
1.
4894/05
9.11.05
869, 948, 950
140.00
1500
210000
21000
2.
601/06
8.2.06
948
132.47
1500
199000
20000
3.
2463/07
5.4.07
869, 948, 950
245.91
1600
394000
31600
उपरोक्त सारिणी के अवलोकन से स्पष्ट है कि खसरा न० 869, 948, 950 स्थित ग्राम भोगपुर मिठौनी से सम्बन्धित विक्रय विलेख संख्या 4894/05, 601/06 तथा 2463/07 का निबन्धन किया गया तथा निर्धारित आवासीय दर के मूल्यांकन पर स्टाम्प शुल्क अदा किया गया है। एक ही ग्राम एक ही एक ही खसरे की भूमि के दो दर्रो के आधार पर सम्पत्ति के बाजार मूल्य का निर्धारण किया जाना तर्क संगत एवं विधि सम्मत् नही है कि सारिणी में उल्लिखित विलेख विवादित विलेख संख्या 5733/07 के द्वारा अन्तरित सम्पत्ति के मूल्यांकन हेतु उपयुक्त एवं तर्क संगत पूर्व दृष्टांत / दृष्टांत स्टजित करते है। ....."
As is evident from the report, as extracted above, that three specific exemplar deeds have been relied upon by the Assistant Inspector General of Registration to reflect the residential usage over the land in question.
In the decision of Ram Khelawan (supra), a coordinate Bench of this Court had made an observation that no reliance can be placed on an ex-parte report for deciding the case. It was observed that the ex-parte inspection report may be relevant for initiating the proceedings under Section 47-A of the Act and after initiation of the case, inspection is to be made by the Collector or the authority hearing the case after due notice to the parties to the instrument as provided under Rule 7(3)(c) of the U.P. Stamp (Valuation of Property) Rules, 1997.
Though this Court is in respectful agreement with the aforesaid observations made by this Court in the case of Ram Khelawan (supra), however, in the present case at hand, the ex-parte report specifically refers to three exemplar instruments that were considered by the Assistant Inspector General of Registration while making his report. It was, therefore, open for the District Magistrate, in the facts and circumstances of the present case, where despite notice, neither any objection was filed on behalf of the petitioner nor had any advocate appeared on his behalf, to rely upon the ex-parte report which was based upon the exemplar deeds. It is always open to the Collector or the authority undertaking an examination of an instrument under Section 47-A(3) of the Act, to refer to exemplar deeds for the purpose of ascertaining the market value even though they may form part of an ex-parte report that has led to the initiation of the proceedings under Section 47-A(3) of the Act. Therefore, no fault can be attributable to the respondent no.2 in relying upon the three exemplar deeds that find mention in the ex-parte report dated 16.10.2009. In view of the above, the order of the Additional Commissioner, upholding the order of the respondent no.2, cannot faulted as far as this aspect is concerned.
However, the matter of concern in the present petition is that despite relying upon the aforesaid exemplar deeds, the respondent no.2 has proceeded to assess the value of the land in question on the basis of the minimum rates prescribed by the Collector. This could not have been done in view of the express provisions of Section 47-A(3) of the Act that is also relied in the judgment of this Court in Ram Khelawan (supra) and several other decisions. In the decision of a three Judge Bench of this Court in the case of Smt. Pushpa Sareen vs. State of U.P.3, it has been held as follows:-
"26. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument.
27. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor which influences the market value of the land.
28. 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 v. Ambrish Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relateable 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."
Accordingly, the impugned order of the respondent no.2 dated 31.12.2009, insofar as it assesses the valuation of the land in question on the basis of the minimum rates, is set aside. The order of the Additional Commissioner (Administration) dated 26.05.2010 is also set aside insofar as it affirms the order of the respondent no.2 assessing the market value on the basis of the minimum rates. The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter, to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds, and not on the basis of the minimum rates. This exercise shall be done by the authority concerned within a period of three months from today. Since the petitioner is represented, no separate notice is required to be sent to him. It is, however, provided that the petitioner shall appear before the respondent no.2 on 22.12.2021 alongwith a certified copy of the order passed today, whereafter dates may be fixed. In case of failure of the petitioner in appearing on that day, it will be open to the authority concerned to proceed in accordance with law.
In view of the aforesaid observations and to the extent mentioned above, this writ petition is allowed.
Order Date :-07.12.2021
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