High Court · 2025

1. Heard learned counsel for petitioner and Mr. Ashok Srviastava learned State Counsel for opposite parties.

2. Petition has been field challenging order dated 21st July, 2006 passed under section 47-A of the Stamp Act whereby deficiency in stamp duty has been indicated while imposing penalty and interest thereupon. Also under challenge is the order dated 26th September, 2011 passed under Section 56 of the Act whereby application for recall of order passed earlier dismissing the appeal in default of appearance, has been rejected.

3. Learned counsel for petitioner submits that sale deed for property in question pertaining to plot No. 371 having an area of 0.710 Hectares was executed on 12th August, 2002 by one Mr. Shada Shiv in favour of the new Janhit Shakari Awas Samiti. It is submitted that the aforesaid plot in question at the time of execution of the sale deed was agricultural in nature and recorded as such and therefore the authorities by means of impugned orders have erred in considering it to be non agricultural/residential in nature.

4. It is submitted that until and unless declaration of the plot in question is made under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, the nature would remain agriculture and not residential. He has further submitted that even the exemplar which forms the basis of imposition of stamp duty as per residential rates was executed subsequent to the sale deed dated 12th August, 2002 and therefore also was not required to be taken into account.

5. It is also submitted that against order dated 25th January, 2006 passed under Section 47-A of the Act, appeal No.85 of 2006-07 was preferred under Section 56 of the Act and was dismissed in default of appearance vide order dated 18th December, 2008 whereafter an application for recall/restoration was filed on 15th September, 2011 but has been rejected by means of impugned order dated 26th September, 2011 without adverting to merits.

6. It is also submitted that the order dated 26th September, 2011 even otherwise has been passed without jurisdiction since as noticed in the order itself, at the time of rejection of the application, jurisdiction did not vest in the C.C.R.A.

7. Learned State Counsel on the basis of counter affidavit filed has refuted submissions advanced by learned counsel for petitioner and submits that the order passed under Section 47-A of the Act is perfectly in consonance with future potentiality of land as on the date of execution of sale deed as enunciated by Full Bench of this Court in the case of Pushpa Sareen versus State of U.P. and others reported in 2015(33) LCD 1575.

8. He has also adverted to the impugned order passed in appeal to submit that restoration application has been rejected since no cogent explanation was preferred by petitioner for a delay of three years in seeking restoration of appeal.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the order impugned passed under Section 47-A of the Act has been passed in terms of definition of a Cooperative Housing Society while holding that since it is a housing society which has purchased the plot in question, its use naturally would be residential and not agricultural and therefore has to be treated to be residential in nature while holding that stamp duty as per agricultural nature of the land was deficient.

10. Since the order dated 21st July, 2006 is also under challenge, this Court is adverting to the merits of the order as well.

11. A perusal of the order as well as a copy of the sale deed dated 12th August, 2002 makes it evident that the plot in question has been purchased by a cooperative housing society. Although the bye laws of society have not been brought on record but it is admitted by learned counsel for petitioner that the property was brought for the benefit of its members.

12. The sale deed clearly indicates the purchaser to be a housing society.

13. In such circumstances, it is evident that the plot in question has been purchased by the society for purposes of plotting and sale for residential purpose and not for agricultural activity.

14. Full Bench of this Court in the case of Pushpa Sareen (supra) after considering judgments rendered by Supreme Court on the aspect has enunciated the law that future potentiality of a plot can also be examined by the prescribed authority as on the date of execution of sale deed. Relevant paragraphs of the judgment are as follows:- "27. 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." "28. 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."

15. Upon applicability of aforesaid judgment in the facts and circumstances of the case, it is evident that plot in question having been brought by means of the sale deed was clearly for non agricultural/residential purpose. The future potentiality of the land as a residential plot is clearly discernible from the sale deed itself and the purchaser indicated therein.

16. In view thereof, this Court does not find any occasion to take a view contrary to that which has been taken in the impugned order dated 27th July, 2006.

17. The perusal of impugned order dated 26th September, 2011 reveals that the recall application has been rejected on the ground that it has been preferred after three years without any cogent explanation for delay with only ground being taken that the clerk of the concerned lawyer inadvertently missed out noting the date of case.

18. The order impugned clearly indicates that even if the aforesaid reason was correct, no cogent explanation has been preferred for a delay of three years in filing the recall application.

19. In any case, once this Court does not find any occasion to interfere with the reasoning of the order passed under section 47-A of the Act, the aspect of maintainability of recall application or otherwise looses its importance.

20. Considering aforesaid discussion and in view of Full Bench decision quoted herein above, this Court does not find any occasion to interfere with the orders impugned.

21. The writ petition therefore fails and is dismissed. Parties to bear their own cost. Order Date :- 7.3.2025 prabhat PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for petitioner and Mr. Ashok Srviastava learned State Counsel for opposite parties.

2. Petition has been field challenging order dated 21st July, 2006 passed under section 47-A of the Stamp Act whereby deficiency in stamp duty has been indicated while imposing penalty and interest thereupon. Also under challenge is the order dated 26th September, 2011 passed under Section 56 of the Act whereby application for recall of order passed earlier dismissing the appeal in default of appearance, has been rejected.

3. Learned counsel for petitioner submits that sale deed for property in question pertaining to plot No. 371 having an area of 0.710 Hectares was executed on 12th August, 2002 by one Mr. Shada Shiv in favour of the new Janhit Shakari Awas Samiti. It is submitted that the aforesaid plot in question at the time of execution of the sale deed was agricultural in nature and recorded as such and therefore the authorities by means of impugned orders have erred in considering it to be non agricultural/residential in nature.

4. It is submitted that until and unless declaration of the plot in question is made under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, the nature would remain agriculture and not residential. He has further submitted that even the exemplar which forms the basis of imposition of stamp duty as per residential rates was executed subsequent to the sale deed dated 12th August, 2002 and therefore also was not required to be taken into account.

5. It is also submitted that against order dated 25th January, 2006 passed under Section 47-A of the Act, appeal No.85 of 2006-07 was preferred under Section 56 of the Act and was dismissed in default of appearance vide order dated 18th December, 2008 whereafter an application for recall/restoration was filed on 15th September, 2011 but has been rejected by means of impugned order dated 26th September, 2011 without adverting to merits.

6. It is also submitted that the order dated 26th September, 2011 even otherwise has been passed without jurisdiction since as noticed in the order itself, at the time of rejection of the application, jurisdiction did not vest in the C.C.R.A.

7. Learned State Counsel on the basis of counter affidavit filed has refuted submissions advanced by learned counsel for petitioner and submits that the order passed under Section 47-A of the Act is perfectly in consonance with future potentiality of land as on the date of execution of sale deed as enunciated by Full Bench of this Court in the case of Pushpa Sareen versus State of U.P. and others reported in 2015(33) LCD 1575.

8. He has also adverted to the impugned order passed in appeal to submit that restoration application has been rejected since no cogent explanation was preferred by petitioner for a delay of three years in seeking restoration of appeal.

9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the order impugned passed under Section 47-A of the Act has been passed in terms of definition of a Cooperative Housing Society while holding that since it is a housing society which has purchased the plot in question, its use naturally would be residential and not agricultural and therefore has to be treated to be residential in nature while holding that stamp duty as per agricultural nature of the land was deficient.

10. Since the order dated 21st July, 2006 is also under challenge, this Court is adverting to the merits of the order as well.

11. A perusal of the order as well as a copy of the sale deed dated 12th August, 2002 makes it evident that the plot in question has been purchased by a cooperative housing society. Although the bye laws of society have not been brought on record but it is admitted by learned counsel for petitioner that the property was brought for the benefit of its members.

12. The sale deed clearly indicates the purchaser to be a housing society.

13. In such circumstances, it is evident that the plot in question has been purchased by the society for purposes of plotting and sale for residential purpose and not for agricultural activity.

14. Full Bench of this Court in the case of Pushpa Sareen (supra) after considering judgments rendered by Supreme Court on the aspect has enunciated the law that future potentiality of a plot can also be examined by the prescribed authority as on the date of execution of sale deed. Relevant paragraphs of the judgment are as follows:- "27. 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." "28. 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."

15. Upon applicability of aforesaid judgment in the facts and circumstances of the case, it is evident that plot in question having been brought by means of the sale deed was clearly for non agricultural/residential purpose. The future potentiality of the land as a residential plot is clearly discernible from the sale deed itself and the purchaser indicated therein.

16. In view thereof, this Court does not find any occasion to take a view contrary to that which has been taken in the impugned order dated 27th July, 2006.

17. The perusal of impugned order dated 26th September, 2011 reveals that the recall application has been rejected on the ground that it has been preferred after three years without any cogent explanation for delay with only ground being taken that the clerk of the concerned lawyer inadvertently missed out noting the date of case.

18. The order impugned clearly indicates that even if the aforesaid reason was correct, no cogent explanation has been preferred for a delay of three years in filing the recall application.

19. In any case, once this Court does not find any occasion to interfere with the reasoning of the order passed under section 47-A of the Act, the aspect of maintainability of recall application or otherwise looses its importance.

20. Considering aforesaid discussion and in view of Full Bench decision quoted herein above, this Court does not find any occasion to interfere with the orders impugned.

21. The writ petition therefore fails and is dismissed. Parties to bear their own cost. Order Date :- 7.3.2025 prabhat PRABHAT KUMAR High Court of Judicature at Allahabad, Lucknow Bench