Further this Court in Raj Kumar v. State of U.P. Others

1. Heard Mr. Vishal Khandelwal, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.

2. By means of present petition, the petitioner is, inter alia, praying for the following relief:- "i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.12.2018 (Annexure No. 4) passed by respondent no. 2 as well as order dated 14.7.2011 (Annexure No. 2) passed by respondent no. 3. "

3. Learned counsel for the petitioner submits that the property in question was purchased as a residential plot vide sale deed dated 30.11.2006 and on the basis of ex parte report dated 20.2.2007, the same was treated as commercial land to which an objection was filed by the petitioner on 11.7.2007 specifically stating therein that the land in question is not the commercial land at the time of execution of sale deed and the same is still not as a commercial property. He further submits that under Section 2, sub clause (4) and sub clause 16 of UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, until and unless area is declared to be commercial land, the same cannot be treated as commercial property, merely on the basis of super structure standing over it. He further submits that once the specific question was raised before the authorities below and the same was not dealt with, the order is vitiated. He further submits that specific pleading has also been raised in the writ petition but the same has not been denied in the counter affidavit filed by the State. He further submits that the matter requires re-consideration by the respondent authorities.

4. Per contra, learned ACSC supports the impugned order.

5. After hearing learned counsel for the parties, the Court has perused the records.

6. On perusal of the records, it shows that the property in question was purchased by the petitioner as a residential property and paid the due stamp duty along with the super structure however on the basis of a report, the proceedings were initiated, thereafter, the impugned orders have been passed. In the report, the respondent authorities has found that store room and few shops were being constructed but no commercial activities were found in the property in question. The petitioner in her objection has taken a ground that under Section 2 (4) & (16) of UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, the area has not been declared as commercial property, therefore, until and unless same is declared commercial property, the same cannot be treated otherwise. Before the appellate stage also, some grounds were taken by the petitioner and though the arguments have been noticed but no finding has been recorded in that respect.

7. Further this Court in Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511] has held that nature of the property cannot be changed without there being any declaration under Section 143 of UP Z.A. & L.R. Act. The relevant paragraphs of the said judgement are quoted hereunder:

14. Having heard the learned counsel for the parties, I find that non-declaration of land as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. The contention of the State to the effect that the said non- declaration is not relevant in the proceedings under the Indian Stamp Act cannot be accepted for the reason that in exercise of statutory powers under the Indian Stamp Act, as applicable in the State of U.P., Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 have been framed. Rule 3(1)(a) of the Rules, provide as follows: "Facts to be set forth in an instrument.-In case of an instrument relating to immovable property chargeable with an ad valorem duty, the following particulars shall also be fully and truly stated in the instrument in addition to the market value of (1) In case of land- property- (a) included in the holding of a tenure-holder, as defined in the law relating to land tenures- (i) the Khasra number and area of each plot forming part of the subject-matter of the instrument; (ii) whether irrigated or unirrigated and if irrigated, the source of irrigation; (iii) if under cultivation whether do-fasali or otherwise; (iv) land revenue or rent whether exempted or not and payable by such tenure- holder; (v) classification of soil, supported in case of instruments exceeding twenty thousand rupees in value, by the certified copies, or extracts from the relevant revenue records issued in accordance with law; (vi) location (whether lies in an urban area, semi-urban area, or countryside); and (vii) minimum value fixed by the Collector of the district."

15. Admittedly, on the date of execution of the sale deed, the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950 were applicable. The definition of "land" as contained under section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows: (14) "Land"[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, hoticulture or animal husbandry which includes pisciculture and poultry farming;

16. In view of the definition of land contained in the law relating to land tenures, i.e. U.P. Zamindari Abolition & Land Reforms Act, 1950, the fact that the land was not declared as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 as explained under section 3(14) of the said Act, in itself becomes a relevant factor for determining the nature of land that was subject matter of instrument. This Court in various authorities has held that when the land is purchased for agricultural purposes and declaration under section 143 of the U.P. Z.A. & L.R.Act, 1950 has not been made and merely because the land is situated in close vicinity of the non-agricultural land, the same would not loose its character as the agricultural land for the purposes of levy of stamp duty. Reference can be made to few authorities of this Court in the case of Aniruddha Kumar and Ashwini Kumar vs Chief Controlling Revenue Authority, U.P. Allahabad and another, reported in 2000 (3) AWC 2587; Smt. Sushila Verma vs State of U.P. and others reported in 2006 (2) AWC 1492 and Sudama vs Chief Controlling Authority and others, reported in 2013 (4) AWC 3571. ****

19. The observations/findings recorded in the orders impugned are also contrary to principles of burden of proof particularly, in a case where proceedings arise out of a fiscal statute. Once the State was proceeding to impose deficient stamp duty upon the petitioner, the entire burden lay upon the State to establish beyond reasonable doubt that the petitioner made some concealment at the time of getting the sale deed executed in his favour or that within a close proximity of dates, the user of the land in dispute was changed so as to levy additional stamp duty. Nothing to this effect has been brought on record, rather, not only the findings recorded in the orders impugned are contrary to the provisions of the Indian Stamp Act, 1899, as applicable in the State of U.P. as well as U.P. Stamp (Valuation of Property) Rules, 1997, but certainly contrary to the law consistently laid down by this Court.

8. In view of above, the matter requires reconsideration by the authorities below.

9. Accordingly, the impugned orders dated 18.12.2018 passed by respondent no. 2 as well as order dated 14.7.2011 passed by respondent no. 3 are hereby quashed for that purpose only.

10. The writ petition succeeds and is allowed.

11. The matter is remanded to the Collector, Agra, respondent no. 3 who, after considering the evidence filed by the petitioner as well as after giving due opportunity of hearing to all the stake holders, shall decide the matter, afresh, in accordance with law, expeditiously, preferably within a period of three months from the date of production of certified copy of this order. Any amount already deposited by the petitioner shall be subject to the outcome of the fresh order passed by the Collector. Order Date :- 2.5.2025 Rahul Dwivedi/- RAHUL DWIVEDI High Court of Judicature at Allahabad

1. Heard Mr. Vishal Khandelwal, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.

2. By means of present petition, the petitioner is, inter alia, praying for the following relief:- "i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.12.2018 (Annexure No. 4) passed by respondent no. 2 as well as order dated 14.7.2011 (Annexure No. 2) passed by respondent no. 3. "

3. Learned counsel for the petitioner submits that the property in question was purchased as a residential plot vide sale deed dated 30.11.2006 and on the basis of ex parte report dated 20.2.2007, the same was treated as commercial land to which an objection was filed by the petitioner on 11.7.2007 specifically stating therein that the land in question is not the commercial land at the time of execution of sale deed and the same is still not as a commercial property. He further submits that under Section 2, sub clause (4) and sub clause 16 of UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, until and unless area is declared to be commercial land, the same cannot be treated as commercial property, merely on the basis of super structure standing over it. He further submits that once the specific question was raised before the authorities below and the same was not dealt with, the order is vitiated. He further submits that specific pleading has also been raised in the writ petition but the same has not been denied in the counter affidavit filed by the State. He further submits that the matter requires re-consideration by the respondent authorities.

4. Per contra, learned ACSC supports the impugned order.

5. After hearing learned counsel for the parties, the Court has perused the records.

6. On perusal of the records, it shows that the property in question was purchased by the petitioner as a residential property and paid the due stamp duty along with the super structure however on the basis of a report, the proceedings were initiated, thereafter, the impugned orders have been passed. In the report, the respondent authorities has found that store room and few shops were being constructed but no commercial activities were found in the property in question. The petitioner in her objection has taken a ground that under Section 2 (4) & (16) of UP Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, the area has not been declared as commercial property, therefore, until and unless same is declared commercial property, the same cannot be treated otherwise. Before the appellate stage also, some grounds were taken by the petitioner and though the arguments have been noticed but no finding has been recorded in that respect.

7. Further this Court in Raj Kumar Vs. State of U.P. & Others [2023 (5) AWC 4511] has held that nature of the property cannot be changed without there being any declaration under Section 143 of UP Z.A. & L.R. Act. The relevant paragraphs of the said judgement are quoted hereunder:

14. Having heard the learned counsel for the parties, I find that non-declaration of land as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 is an admitted fact. The contention of the State to the effect that the said non- declaration is not relevant in the proceedings under the Indian Stamp Act cannot be accepted for the reason that in exercise of statutory powers under the Indian Stamp Act, as applicable in the State of U.P., Uttar Pradesh Stamp (Valuation of Property) Rules, 1997 have been framed. Rule 3(1)(a) of the Rules, provide as follows: "Facts to be set forth in an instrument.-In case of an instrument relating to immovable property chargeable with an ad valorem duty, the following particulars shall also be fully and truly stated in the instrument in addition to the market value of (1) In case of land- property- (a) included in the holding of a tenure-holder, as defined in the law relating to land tenures- (i) the Khasra number and area of each plot forming part of the subject-matter of the instrument; (ii) whether irrigated or unirrigated and if irrigated, the source of irrigation; (iii) if under cultivation whether do-fasali or otherwise; (iv) land revenue or rent whether exempted or not and payable by such tenure- holder; (v) classification of soil, supported in case of instruments exceeding twenty thousand rupees in value, by the certified copies, or extracts from the relevant revenue records issued in accordance with law; (vi) location (whether lies in an urban area, semi-urban area, or countryside); and (vii) minimum value fixed by the Collector of the district."

15. Admittedly, on the date of execution of the sale deed, the provisions of U.P. Zamindari Abolition & Land Reforms Act, 1950 were applicable. The definition of "land" as contained under section 3(14) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, reads as follows: (14) "Land"[except in Sections 109, 143 and 144 and Chapter VII] means land held or occupied for purposes connected with agriculture, hoticulture or animal husbandry which includes pisciculture and poultry farming;

16. In view of the definition of land contained in the law relating to land tenures, i.e. U.P. Zamindari Abolition & Land Reforms Act, 1950, the fact that the land was not declared as Abadi under section 143 of U.P. Zamindari Abolition & Land Reforms Act, 1950 as explained under section 3(14) of the said Act, in itself becomes a relevant factor for determining the nature of land that was subject matter of instrument. This Court in various authorities has held that when the land is purchased for agricultural purposes and declaration under section 143 of the U.P. Z.A. & L.R.Act, 1950 has not been made and merely because the land is situated in close vicinity of the non-agricultural land, the same would not loose its character as the agricultural land for the purposes of levy of stamp duty. Reference can be made to few authorities of this Court in the case of Aniruddha Kumar and Ashwini Kumar vs Chief Controlling Revenue Authority, U.P. Allahabad and another, reported in 2000 (3) AWC 2587; Smt. Sushila Verma vs State of U.P. and others reported in 2006 (2) AWC 1492 and Sudama vs Chief Controlling Authority and others, reported in 2013 (4) AWC 3571. ****

19. The observations/findings recorded in the orders impugned are also contrary to principles of burden of proof particularly, in a case where proceedings arise out of a fiscal statute. Once the State was proceeding to impose deficient stamp duty upon the petitioner, the entire burden lay upon the State to establish beyond reasonable doubt that the petitioner made some concealment at the time of getting the sale deed executed in his favour or that within a close proximity of dates, the user of the land in dispute was changed so as to levy additional stamp duty. Nothing to this effect has been brought on record, rather, not only the findings recorded in the orders impugned are contrary to the provisions of the Indian Stamp Act, 1899, as applicable in the State of U.P. as well as U.P. Stamp (Valuation of Property) Rules, 1997, but certainly contrary to the law consistently laid down by this Court.

8. In view of above, the matter requires reconsideration by the authorities below.

9. Accordingly, the impugned orders dated 18.12.2018 passed by respondent no. 2 as well as order dated 14.7.2011 passed by respondent no. 3 are hereby quashed for that purpose only.

10. The writ petition succeeds and is allowed.

11. The matter is remanded to the Collector, Agra, respondent no. 3 who, after considering the evidence filed by the petitioner as well as after giving due opportunity of hearing to all the stake holders, shall decide the matter, afresh, in accordance with law, expeditiously, preferably within a period of three months from the date of production of certified copy of this order. Any amount already deposited by the petitioner shall be subject to the outcome of the fresh order passed by the Collector. Order Date :- 2.5.2025 Rahul Dwivedi/- RAHUL DWIVEDI High Court of Judicature at Allahabad