# Kashi Nath Upadhyay v. Commissioner Varanasi Division Varanasi & Ors

- **Citation:** (2015) 1 ILRA 320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-26
- **Case number:** Civil Misc. Writ Petition No. 22901 of 2011
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kashi-nath-upadhyay-v-commissioner-varanasi-division-varanasi-ors-43306
- **Pages:** 12

## Headnote

U.P. Stamp Rules 1997-Rule 2(d)-read
with Stamp Act 1899, Section 47-A-stamp
duty-deficiency reported on basis of report
of
Tehsildar-Land
recorded-agricultural
one since 1988, 89 used as show room for
selling tractor absence of any economic
activity-plot in question can not be treated
commercial
building
having
potential
value-held-mere report not sufficient to
discharge burden-in absence of similar
exemplar that property in vicinity being
sold or purchased at commercial rateorder impugned unsustainable-quashed.
Held: Para-52 & 53

## Text

320
 INDIAN LAW REPORTS ALLAHABAD SERIES
imposing the minor penalties finding
mention in the impugned order. In
situations like these the Court is also
mindfull of what the Apex Court held in
State
of
Orissa
Vs.
Bidyabhushan
Mohapatra AIR 1963 SC 779-
"9. ........The recommendation of the
Tribunal was undoubtedly founded on its
findings on Charges 1(a), 1(c ), 1(d) and
Charge (2). The High Court was of the
opinion that the findings on two of the heads
under Charge (1) could not be sustained
because in arriving at the findings the
Tribunal had violated rules of natural
justice.............Therefore if the order may be
supported on any finding as to substantial
misdemeanour for which the punishment can
lawfully be imposed, it is not for the Court to
consider whether that ground alone would
have weighed with the authority in
dismissing the public servant........."
24. In the opinion of the Court,
therefore,
the
imugned
order
of
punishment is clearly severable. The part
of the impugned order insofar as it
imposes
minor
penalties
upon
the
petitioner cannot be upset or set-aside by
this Court either in exercise of its powers
of judicial review or on the basis of the
submissions advanced by the learned
counsel for the petitioner.
25. In a position of this nature, this
Court exercising powers under Article
226 of the Constitution of India can very
well proceed to partially quash an order if
it finds that the invalidity can be
earmarked and separated/excised from the
otherwise valid part of the order assailed
before it. In the facts of the present case,
this Court finds that the invalidity by
which the impugned order suffers pertains
only to the imposition of major penalties.
The said part of the order is severable and
it is to that extent alone that this Court
feels compelled to interfere. It is the
undisputed position that under the Rules,
1999 insofar as the power of imposition
of minor penalties is concerned, the same
was not liable to be preceded by an oral
enquiry. The Rules, 1999 only mandated
that the authority would elicit an
explanation from the concerned employee
and proceed to pass orders after taking the
same into consideration. The authority,
therefore, would have been fully justified
in making the order impugned on the
basis of the response submitted by the
Petitioner and the material before him.
This Court is further convinced in arriving
at the above conclusion in light of the fact
that the findings recorded by the Enquiry
Officer and the Disciplinary Authority
have not been assailed on merits before
this Court and the submissions have been
confined to the infraction of Rule 7 of the
Rules, 1999 and the principles of natural
justice.
26.
Accordingly, and in view of the
above, this writ petition is partly allowed.
The impugned order insofar as it imposes
punishment of stoppage of one increment
with cumulative effect is hereby quashed.
Consequential reliefs, if any, which are
liable to flow to the petitioner shall be
considered by the respondents in light of
what is recorded by this Court hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 22901 of 2011
Kashi Nath Upadhyay
...Petitioner
1 All] Kashi Nath Upadhyaya Vs. Commissioner Varanasi Division Varanasi & Ors.
321
Versus
Commissioner Varanasi Division Varanasi
& Ors.
...Respondents
Counsel for the Petitioner:
Sri H.N. Singh, Sri Vineet Kumar Singh
Counsel for the Respondents:
C.S.C.
U.P. Stamp Rules 1997-Rule 2(d)-read
with Stamp Act 1899, Section 47-A-stamp
duty-deficiency reported on basis of report
of
Tehsildar-Land
recorded-agricultural
one since 1988, 89 used as show room for
selling tractor absence of any economic
activity-plot in question can not be treated
commercial
building
having
potential
value-held-mere report not sufficient to
discharge burden-in absence of similar
exemplar that property in vicinity being
sold or purchased at commercial rateorder impugned unsustainable-quashed.
Held: Para-52 & 53
52. Having due regard to the material
available on record i.e the undisputed
spot inspection report, coupled by the
spot
inspection
of
the
Collector
(undertaken in 2013), the property in
question
was
not
being
used
commercially on the date of execution of
the deed, the property is located in a
urban
area
(municipal
area),
the
predominant land use appears to be
residential as the property is surrounded
by residential buildings, and there being
no reference of any economic activity in
the vicinity of the property, therefore the
property in this background cannot be
said to be having commercial potential
on the date of the execution of the sale
deed.
53. Therefore, the determination by the
Collector that the property in question
would have to be valued commercially,
merely because the property, in the past,
was being used for non agricultural
purposes, would not bring the property
within the expression of commercial
building/shop.
Case Law discussed:
AIR 2012 All 100; 2008 (3) AWC 299 All; AIR
1996 SC 1170; AIR 2010 SC 1779; (2010) 4
SCC 350; AIR 2008 SC 166; AIR 2008 SC 590;
2008 (3) AWC 299 All; AIR 2008 All 176; AIR
1985 SC 989; AIR 1996 1 SCC 609; AIR 1976
SC 1753; AIR 1998 All 72 (75); AIR 2000 SC
355; (2009) 14 SCC 716; AIR 1985 SC 989;
2000 (91) RD 566 (HC); 2008 (104) RD 235;
1996 (87) RD 419 (SC); 2010(4) All LJ 96(All);
JT 1994 (2) SC 605; Civil Appeal No. 8286 of
2014; 1990 (9) RD 57; AIR (2008) ALJ 363.
(Delivered by Hon'ble Suneet Kumar, J.)
1.

Petitioner
purchased
plot
no.764/1M, 764/2M and 764/2 M and 764
M admeasuring 0.135 hectares vide
instrument no.697/04 dated 6.2.2004.
2. The Sub Registrar, Jaunpur on
24.2.2004, reported that the property in
question is surrounded by a boundary wall
and approximately 2000 square ft. tin
shed was standing on pillars, earlier the
property was used by Mahendra Tractors
for service station, the property is
surrounded by residential houses, hence,
the property having commercial potential,
had to be valued as a commercial
property, accordingly deficient stamp
duty
of
Rs.5,74,000/-
have
to
be
recovered.
3. On reference, proceedings was
instituted under the Indian Stamp Act
1899,1 being case no.1652 of 2004, the
petitioner in objection to the notice urged
that the sale deed was executed for
Rs.11,00,000/- lacs, the property in
question being recorded as an agricultural
land in the revenue records, accordingly,
stamp duty @ Rs.50,000/- per decimal on
agricultural land, as fixed by the Collector
under the 1997 Rules was paid. The
Collector called for a report from the
Tahsildar,
who
vide
report
dated
322
 INDIAN LAW REPORTS ALLAHABAD SERIES
11.12.2008 noted that the property in
question is situated within Nagar Palika
Parishad, Jaunpur, was earlier used as a
godown by a tractor agency, is adjacent to
the Abadi, 3 k.m from the Railway
Station and presently the property has a
two storey building and is being used for
a Eye Clinic and residential purposes.
4. The Collector vide order dated
27.3.2010 held that since the property in
question was earlier used for commercial
purposes, by a tractor company, and merely
because the company had shut down the
agency, way back in 1998-1999, would
have no bearing regarding the potentiality of
the property, accordingly, the property was
valued at commercial rate. The area of the
property being 9169.46 square metre, of
which 185.87 square metre being covered
by tinshed, accordingly the land was valued
at Rs.35,28,486.59 @ Rs.3850/- square
metre, the covered area was valued at
Rs.33,45,660/- @ Rs.60/- per square metre
per month being the prescribed rent,
accordingly, deficiency of stamp duty of
Rs.5,61,449/- was determined, penalty of
Rs.1000/- and interest @ of Rs.1.5% per
month from the due date was imposed.
5. Aggrieved, petitioner preferred an
appeal before the Chief Controlling Revenue
Authority/Additional Commissioner(Judicial)
Varanasi Division, Varanasi being Stamp
Appeal No.43 of 2010. The appellate
authority vide order dated 31.3.2011 affirmed
the order of the Collector.
6. The orders passed by the appellate
authority and the Collector is being
assailed by the petitioner under Article
226 of the Constitution of India.
7. This Court vide order dated
29.1.2013 remanded the matter to the
Collector to examine whether or not
commercial building was existing on the
site in question on the relevant date and
whether it could be called commercial
activity at all or not.
8. The order is extracted:
This writ petition has been filed by
the petitioner being aggrieved by an order
passed by the Collector regarding an
instrument executed on 6.2.04. The
Collector has come to the conclusion that
185.87 square meters of plot was having a
building of commercial nature and this
fact has not been disclosed in the sale
deed at all by the petitioner.
Learned Standing Counsel states that
the tin shed, which has been found in the
premises,
clearly
indicates
that
commercial building was standing there.
Learned
counsel
for
the
petitioner
strongly refused this factum and states
that business of the tractor show room had
come to an end in the year 1998-99 and
on the date of the execution of the
instrument, no commercial activity was
carried on, so as to attract provisions of
Rule 2(d) of the U.P. Stamp Rules, 1997,
which defines commercial building.
Learned counsel for the petitioner
has argued that the commercial rate,
which has been settled by the Collector is
arbitrary and excessive, especially in view
of the fact that no commercial activity is
being carried on.
Learned counsel for the petitioner
has argued that even though he has raised
this objection before the Collector, his
objection has not been considered by the
Collector.
The matter is, therefore, remanded to
the Collector for consideration on this
point, to examine whether or not
commercial building was existing on the
1 All] Kashi Nath Upadhyaya Vs. Commissioner Varanasi Division Varanasi & Ors.
323
plot in question on the relevant date and
whether it could be called a commercial
activity at all or not.
The Collector may fix a date in the
matter with due notice to the petitioner
and hear him on this point and, thereafter,
pass fresh orders on merits and in
accordance with law.
9. Pursuant thereof, the Collector
Jaunpur vide order dated 26.4.2013
reiterated and re-affirmed his earlier
order, but enhanced the penalty from
Rs.1000/- to half of the deficient stamp
duty at Rs. 2,80,724/- along with interest
@ Rs.1.5% from the due date. The order
of the Collector is under challenge by
amending the writ petition.
10. The learned standing counsel has
raised a preliminary objection that the order
is appellable/revisable under section 56 of
the Act, the petitioner should first approach
the forum prescribed under the Act.
11. Per contra, it is submitted on
behalf of the petitioner that facts are not
in dispute, the order of the Collector was
passed on the direction of the Court, the
Collector has merely reaffirmed his
earlier order without answering the query
of the Court, the only difference being
that penalty has been enhanced, hence, the
matter be heard by the Court.
12. The facts are not in dispute, the
question for determination is as to
whether the property in question could be
valued as a commercial property merely
because the property was earlier put to
commercial use.
13. I have heard Shri H.N.Singh,
learned senior advocate assisted by Shri
Vineet Kumar Singh for the petitioner and
learned standing counsel for the State
respondent.
14. It would be apposite to examine
the provisions of the Uttar Pradesh Stamp
(Valuation of Property) Rules, 19972,
framed under the Act. 1997 Rules defines
commercial building by adopting the
definition of commercial establishment
and shop contained in Uttar Pradesh
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 19623, the definition reads as
follows:
2(d) 'Commercial building' means
commercial establishment or shop as
defined respectively in clause (4) and
clause (16) of Section 2 Uttar Pradesh
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 1962.
15. Adhiniyam defines commercial
establishment and shop as follows:
(1)
'Commercial
establishment'
means any premises, not being the
premises of a factory, or a shop, wherein
any trade, business, manufacture, or any
work in connection with, or incidental or
ancillary thereto, is carried on for profit
and
includes
a
premises
wherein,
journalistic or printing work, or business
of banking, insurance, stocks and shares,
brokerage or produce exchange is carried
on, or which is used as theatre, cinema, or
for any other public amusement or
entertainment or where the clerical and
other establishment of a factory, to whom
the provisions of the Factories Act, 1948,
do not apply, work:
(2)'Shop' means any premises where
any wholesale or retail trade or business is
carried on, or where services are rendered
to customers, and includes, all offices,
godowns or warehouses, whether in the
324
 INDIAN LAW REPORTS ALLAHABAD SERIES
same premises or not, which are used in
connection with such trade or business;
16. Section 2(h) & 2(k) of the 1997
Rules defines semi-urban area and urban
area as follows:
2(h) 'Semi-urban area' means an area
-
(i)other than the urban area declared
as development area under Section 3 of
the Uttar Pradesh Urban Planning and
Development Act, 1973;
(ii)other than the urban area to which
Avas Evam Vikas Parishad Adhiniyam,
1965 is applicable:
(iii)of two kilometres width of
revenue villages peripheral to an urban
area not covered by clause (i) or clause
(ii);
2 (k) 'Urban area' means an area-
(i)comprised in metropolitan area or
a municipal area as defined in the Uttrar
Pradesh
Municipal
Corporation
Act,
1959; or
(ii)comprised in a smaller urban area
as defined in the United Provinces
Municipalities Act, 1916, or
(iii)comprised in a cantonment as
defined
under
Section
3
of
the
Cantonments Act, 1924; or
(iv)demarcated
for
industrial,
commercial and residential purposes by
the concerned Industrial Development
Authority under clause (c) of sub-section
(2) of Section 6 of the Uttar Pradesh
Industrial Area Development Act, 1976.
17. Rule 3 of 1997 Rules, mandates
the particulars of the immovable property
that should be truly stated in the
instrument regarding land and building, in
addition to market value. Rule 3 read as
follows:
Rule 3. Facts to be set forth in an
instrument- In case of an instrument
relating
to
immovable
property
chargeable with an ad volorem duty, the
following particulars shall also be fully
and truly stated in the instrument in
addition to the market value of the
property:-
(I) In case of land-
(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 subjectmatter of the instrument;
(ii) whether irrigated or unirrigated
and if irrigated, the source of irrigation;
(iii)if under cultivation whether dofasali or otherwise;
(iv)land revenue or rent whether
exempted or nor 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;
(b) being non-agricultural land-
(i)area of land in square metres;
(ii)minimum value fixed by the
Collector of district;
(iii)location (whether lies in urban
area, semi-urban area, or country -side).
(3)In case of buildings-
(a) total covered area and open land,
if any, in square metres;
(b) number of storeys, area and
covered area of each storey in square
metres;
1 All] Kashi Nath Upadhyaya Vs. Commissioner Varanasi Division Varanasi & Ors.
325
(c)
whether
pucca
or
katchha
construction;
(d) year of construction;
(e) actual annual rent;
(f) annual value assessed by any
local body and the amount of house tax
payable thereon, if any;
18. Rule 6 of Rule 1997 requires
furnishing of statement of market value of
the immovable property in the prescribed
Form.
Rule 6. Statement of market value to
be furnished to the Registering Officer:
(1) The party presenting an instrument
relating
to
immovable
property
chargeable with an ad valorem duty, shall
submit along with the instrument a
statement in duplicate in the Form
appended to these rules.
(2) .................
(3) .................
19. The Form referred to under Rule
6 requires the transferor to furnish,
interalia, the following information in
respect of the immovable property.
Form
2. ............
3. ............
4.Location of property (whether
located
in
Urban/Semi-Urban
area/Country side........................
5.Approximate
distance
(in
kilometres or metres) of property from
nearest road with the name of road and its
approximate width..........
6.Approximate
distance
(in
kilometres or metres) of property from
railway
station,
bus-station,
public
offices,
hospitals,
factories
and
educational institution, etc. Mention any
one which is nearest to the property under
transfer..............
7.Nature of Economic, Industrial,
Developmental activity, if any, prevailing
in the locality in which property is
situate............
8.Any other special feature affecting
the value of the property..........
9.........
10.........
11.Fair market value of the property:
12.Other information:-
In case of Agricultural land:
(i) The Khasra number;
(ii)Area in hectare;
(iii)If Cultivable, whether do-fasali
or otherwise;
(iv) Land revenue or rent (Whether
exempted or not) payable by the tenureholder;
(v)Land revenue per hectare;
Whether irrigated by canal, lift canal,
well, tank, pumpset, tubewell water or
any other sources (name the sources)
(vii)Minimm value of land, fixed by
the Collector of the district;
Non-agricultural land;
(i)Khasra/Plot number;
(ii)area (in hectare/squre metre);
(iii)minimum value of land fixed by
the Collector of district:
Signature of transferor
20. Rule 5 for the purposes of
payment of stamp duty, provides for
calculation of the minimum value of land
and building both non-commercial and
commercial building.
21. Rule 7 provides for the
procedure for the Collector to determine
the market value of the property, in case
the Collector has reasons to believe that
the market value of the property has not
been correctly set forth in the instrument.
326
 INDIAN LAW REPORTS ALLAHABAD SERIES
22. Sub section (3) of Section 47 A
requires the Collector to "examine the
instrument for satisfying himself of the
correctness of the market value", after
such examination Collector has "reasons
to believe" that the market value has not
been truly setforth, he may 'determine the
market value of such property"
23. Stamp Act being a taxing statute,
the purpose is duty chargeable on an
instrument, the immovable property has to
be valued as per the provisions of the
1997 Rules. Under Rule 5, for non
commercial building value is to be
calculated by multiplying the constructed
area of each floor by the minimum value
fixed by the Collector under Rule 4,
whereas,
for
commercial
building
minimum
value
is
determined
by
multiplying the minimum monthly rent as
fixed by the Collector under Rule 4, by
the area of the construction by three
hundred times.
24. In respect of commercial
property, the Collector would inter alia,
consider:
(1)location of the property whether
in Urban/Semi Urban area/Country side,
(2)nature of economic activity in the
locality,
(3)whether
the
property
is
a
commercial building.
25. The facts that emerge from the
record reflects that the property in
question:
(1)is recorded as an agricultural
property;
(2)earlier (1998-99) was used for
non-agricultural purpose,
(3) no economic activity was being
carried on the property on the date of
execution of the instrument;
(4)surrounded
by
residential
buildings;
(5)property presently being used for
residential cum clinic;
26. Collector valued the property
having commercial potential, merely for
the reason that the property was used for
non-agriculture purpose in the past,
admittedly, the property on the date of
execution of the instrument was not being
used for commercial purpose, as none of
the activities, mentioned in the expression
"commercial
establishment/shop"
as
contained in Adhiniyam, was being
carried on the said property. Neither the
property was being used as an agricultural
property. Though the property was put to
non agricultural use in the past but
continued to be recorded as agricultural
property in the revenue records, therefore
it is being contended that the property be
valued as an agricultural property.
27. This Court in Ratna Shanker
Dwivedi versus State of U.P and others4
explained the objects of the Stamp Act as
follows:-
"The sole object of Stamp Act under
its various provisions is to require the
parties concerned to set forth correct
market value of the property at which the
transaction has taken place so that
appropriate duty in accordance with the
Act is paid by them to avoid large scale
evasion of stamp duty. It also mandates
that while setting forth the correct market
value of the property in dispute the
competent authority must not apply their
mind in a fact fashion and in a haphazard
way. "
1 All] Kashi Nath Upadhyaya Vs. Commissioner Varanasi Division Varanasi & Ors.
327
(Refer Himalaya House Company
versus
Chief
Controlling
Revenue
Authority5).
28. The minimum value (circle rate) is
only for the purpose of collecting the stamp
duty and it cannot form the foundation to
determine the market value. (U.P Jal Nigam
versus Kalra Properties(P) Ltd.6; State of
Haryana versus Manoj Kumar7) .
29. Market value of the property has
to be determined with reference to the
date on which the document is executed.
(Hari
Om
Agarwal
versus
Prakash
Malviya8; State of Rajasthan versus
Khandaka Jain Jwellers 9).
30. Market value as referred to in
the expression conveyance is the price
which a willing purchaser would pay to a
willing seller for the property. The court
in Vijay Kumar and another Versus
Commissioner10,
explained
the
expression "market value":
"The 'market value' means what a
willing purchaser would pay to a willing
seller for the property having regard to the
advantages available to the land and the
development activities which may be going
in the vicinity and potentiality of the land."
31. Again in Ratna Shankar Dwivedi
(supra) the Court held that:
"The term "market value" has not been
defined under the Act. However there are some
precedents laying down certain guidelines as to
how and in what manner a market value would
be determined. The consensus opinion is that
the market value of any property is the price
which the property would fetch or would have
fetched if sold in the open market."
32. The sine qua non for invoking
provisions of Section 47-A(3) of the Act
is that the Collector had reason to believe,
that the value had not been properly set
forth in the instrument as per market
value of the property. Once the instrument
is registered and the stamp duty as
prescribed by the Collector was paid, the
burden to prove that the market value was
more than the minimum prescribed by the
Collector under the rules, was upon the
Collector. The report of the sub-Registrar
or Tehsildar was not sufficient to
discharge that burden. (Vijay Kumar v.
Commissioner, Meerut Division11 .
33. The expression "reason to
believe"
is
not
synonymous
with
subjective satisfaction of the officer. The
belief must be held in good faith, it cannot
be merely a pretence. It is open to the
court to examine the question whether the
reasons for the belief have a rational
connection or a relevant bearing to the
formation of the belief and are not
irrelevant or extraneous to the purpose of
the section. (Dr. Pratap Singh V. Director
of
Enforcement
Foreign
Exchange
Regulation Act 12; State of Punjab versus
Mahavir Singh13; ITO versus Lakhmana
Mewal Deas14).
34.

The
term
"reason
to
believe"occurring in sub section (3) of
Section
47-A
spells
out
that
the
Registering Officer, must have some
material-direct, circumstantial or even
intrinsic evidence on the basis of which
he may come to a reasonable belief that
the market value of the property has not
been truly set forth in the instrument.
(Duncans Industries Ltd. Versus State of
U.P 15 (affirmed by Supreme Court in
appeal)16 .
328
 INDIAN LAW REPORTS ALLAHABAD SERIES
35. It was not enough for the
authority for the purpose of invoking
section 47-A of the Act that the
consideration amount shown in the
agreement for sale was less than the
prevailing market value, but the authority
must be satisfied as to an attempt on the
part of the party to under value the
property. (Residents Welfare Association
v. State of U.P17 )
36. It is open to the Court to
examine the question whether the reasons
for the belief have a rational connection
or a relevant bearing to the formation of
the belief and are not irrelevant or
extraneous to the purposes of the section.
(Dr.Pratap Singh versus Director of
Enforcement
Foreign
Exchange
Regulation Act18 ).
37. The binding precedent referred
hereinabove would suggest that the
burden to prove that the property was
undervalued was upon the Collector. The
only material available with the Collector
was the report of the Tehsildar dated
11.12.2008. The report was not sufficient
to discharge that burden. Evidence of
comparable
bonafide
sales
of
land
situated of near about land, possessing
same or similar advantageous feature
would furnish basis for determining the
market
value.
Merely
because
the
property at some point of time was put to
non-agricultural use would not mean that
the market value of the property could be
valued at commercial rate. The Collector
has not referred to a single exemplar to
indicate that similar property in the
vicinity is being sold and purchased at
commercial rate. The Tehsildar's report on
the contrary is indicative of the fact that
property in question is surrounded by
residential houses, suggesting that there
has been a change of land use from
agricultural to an urban agglomeration
predominantly being of residential use.
38. The object of the Act is to collect
proper stamp duty on an instrument or
conveyance. An obligation is cast on the
authorities to properly ascertain its true
value. The market value of a property may
vary from village to village, from location
to location and even may differ from the
sizes of land area and other relevant factors
viz. predominant land-use. Entry in revenue
record though relevant is not the sole
determining factor of the market value
under the Act. This apart there has to be
some material before the authority as to
what is the likely value of such property in
that area. Such 'reason to believe' must be
based on tangible, relevant and legally
admissible evidence. There must be an
intelligible nexus between the 'reason' and
the 'belief'. Such belief should not be
substitute for roving enquiries or the
authorities 'reason to suspect'.
39. Having due regard to the
provisions of the Rules and the law
referred to, I am of the opinion that the
Collector was in error in determining the
value of the property merely for the
reason that the property was put to non
agricultural use ten years back. The
reason becomes untenable as it fails to
subscribe
to
the
parameters
for
determining the market value as detailed
in the Rules. The impugned orders on that
count cannot be sustained.
40.
It is urged on behalf of the
petitioner that the property being recorded
as an agricultural property in the revenue
records, therefore, the property should have
been valued as such and not as a property
having
commercial
potential.
The
1 All] Kashi Nath Upadhyaya Vs. Commissioner Varanasi Division Varanasi & Ors.
329
contention cannot be accepted as explained
in the earlier part of the order. Market value
is dependent on several factors and not
merely on the nature of the property as
described in the revenue record.
41. The Court in Aniruddha Kumar
and
Ashwini
Kumar
Versus
Chief
Controlling Revenue Authority U.P. Alld.
and another19, laid down that where in
respect of agricultural land there is no
declaration under section 143 of the
U.P.Z.A. & L.R. Act 1950 its nature
would not change and its market value for
the purposes of payment of stamp duty
would be determined on the basis of the
agricultural character of the land not on
the future potentiality.
42. A Division Bench in Kishore
Chandra Agarwal Versus State of U.P.
and others20, in the facts of that case,
where the land which was recorded as a
bhoomidhari or agricultural land and
stamp duty was being demanded treating
the land commercial land to be in semiurban area. The Court made following
observation:-
" The agricultural land situate on the
roadside of a highway in semi-urban area
or countryside area cannot be treated as
commercial or residential unless that area
is declared as commercial or residential in
the Master Plan prepared by the State
Government."
43. In Prakashwati Vs. Chief
Controlling Revenue Authority Board of
Revenue,
Allahabad,21
the
Hon'ble
Supreme Court held that situation of a
property in an area close to a decent
colony would not by itself make it part
thereof and should not be a factor for
approach of the authority in determining
the market value. Accordingly, valuation
has to be determined on constructive
materials, which could be made available
before the authorities concerned.
44. This Court in Shivkali Devi
Versus Commissioner,22 relying upon
Prakashwati (supra) and Kishore Chandra
Agarwal (supra), observed that the land
recorded in revenue record as agricultural
land cannot be treated as non agricultural
land merely on the report of Additional
Collector.
45. Market value of the property has
to be seen irrespective of the fact whether
it
is
residential,
commercial
or
agricultural. Nature of the land and its
current use may not be relevant, if around
the plot in question, properties were being
sold and bought at commercial rates, then
for determination of stamp duty, market
value of the property would be the same
as that of property bought for commercial
use. (D.P.R. Foods (P) Ltd. Versus State
of Uttar Pradesh 23).
46. Evidence of bonafide sales
between prudent vendor
and prudent
vendee of land acquired or situated near
about land possessing same or similar
advantageous features would furnish basis
to determine the market value. (Jawajee
Nagnatham
versus
The
Revenue
Divisional Officer, Adilabad, A.P etc.24 ).
47. The Supreme Court in Neeraj
Jain Versus State of U.P. and others,25
decided on 26.08.2014, observed that "the
Court should require 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
330
 INDIAN LAW REPORTS ALLAHABAD SERIES
urban agglomeration and such other
ancillary aspects."
48. In M/s. Maya Food and
Vanaspati Ltd. Co. Vs. Chief Controlling
Revenue Authority (Board of Revenue )
Allahabad,26 the Court held that market
value of the land for the purposes of
payment of stamp duty can not be
determined with reference to its future use
or the intended use to which it is likely to
be put by the purchaser.
49. The decided cases do not detail
the norms or parameters for determination
of the market value, the cases have been
decided on the facts of those cases. It
would not be proper for the Court to lay
down the parameters or norms for
determination of the market value. Market
Value would vary from facts of each case
depending upon a number of factors
including entry of the nature of the
property in revenue record.
50. Though entry in the revenue
record regarding the nature of the
property may be relevant but would not
constitute the sole factor in determining
the market value. Market value is
dependent upon other factors viz. change
of user in adjacent area or change of
agricultural land to urban agglomeration
or if the properties were being sold and
bought at commercial rates then for the
purposes of stamp duty the market value
of the property would be the same as that
of the property bought at commercial rate,
irrespective of the entry in the revenue
record.
51. The petitioner had not placed
before the Collector any exemplar of
similar property to show that the
predominant use in the vicinity of the
property in question is agricultural and
not non-agricultural. So did the Collector
failed to show that the predominant land
use
in
the
area
was
commercial
irrespective of the property being entered
in revenue record as agricultural.
52. Having due regard to the
material available on record i.e the
undisputed spot inspection report, coupled
by the spot inspection of the Collector
(undertaken in 2013), the property in
question
was
not
being
used
commercially on the date of execution of
the deed, the property is located in a
urban
area
(municipal
area),
the
predominant land use appears to be
residential as the property is surrounded
by residential buildings, and there being
no reference of any economic activity in
the vicinity of the property, therefore the
property in this background cannot be
said to be having commercial potential on
the date of the execution of the sale deed.
53. Therefore, the determination by
the Collector that the property in question
would have to be valued commercially,
merely because the property, in the past,
was being used for non agricultural
purposes, would not bring the property
within the expression of commercial
building/shop.
54. Penalty could have been
imposed, if there was an attempt to evade
stamp
duty.
Penalty
pre-supposes
culpability and an intention to conceal or
to play fraud with authorities. Before
imposing penalty, authorities must record
finding based on relevant material that the
purchaser or the person liable to pay
stamp duty had concealed relevant facts in
execution of sale deed and had intention
to evade payment of stamp duty. (Asha
1 All] Ram Pratap Singh Vs. State of U.P. & Ors.
331
Kapoor
(Smt.)
versus
Additional
Collector(Finance
&
Revenue),
Ghaziabad AIR (2008) 4 ALJ 363).
55. For the reasons and law stated
herein above, the impugned order dated
26.4.2013
passed
by
the
second
respondent, Collector Jaunpur is quashed.
56. The matter is remitted back to the
Collector, Jaunpur for redetermination of the
market value of the property in the light of
the direction and observation made in the
judgement within three months from the date
of service of certified copy of this order.
57. Subject to above, the writ
petition stands allowed.
58. The approach of the Collector in
determining the market value despite the
direction of this Court dated 29.1.2013
was a very casual and not based on the
parameter of settled position of law in
determining the market value of a
property under the Act. The Collector
instead of returning the determination as
directed by the Court, merely reiterated
the earlier reasoning and enhanced the
penalty which was not called for. I am of
the opinion that the petitioner has been
subjected to the unnecessary hardship and
inconvenience for having to resolve the
writ proceedings for quashing the order.
The petitioner is therefore, entitled to
costs which is quantified at Rs.50,000/-
payable by the Collector, Jaunpur. It will
be open for the State to recover the cost
from the salary of the then Collector,
Jaunpur.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2015
BEFORE
THE HON'BLE YASHWANT VARMA, J.
Writ -A No. 28337 of 2009
Ram Pratap Singh
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Kripa Shanker Singh, Sri A.K. Singh,
Sri Anil Kumar Aditya
Counsel for the Respondents:
C.S.C.
U.P. Government Servant Conduct Rules
1956-Rule 29-Police constable-dismissed
on allegation of bigamy-in departmental
enquiry-petitioner admitted the second
marriage-only
explanation
that
with
consent of first wife as per practice
developed in rural area-second marriage
took place-Child Marriage Restraint Act
1929, again Prohibition on child Marriage
2006-such custom depriving from basic
human right-held such punishment not
shock the conscience of Court-warrants
no interference.
Held: Para-17
Bearing in mind the above, this Court
finds
itself
unable
to
accept
the
submissions advanced by the learned
counsel for the Petitioner. The bane of
child marriage has been sought to be
removed by our country for centuries.
Legislation to end this cursed custom
was enacted as far back as 1929 in the
form of the Child Marriage Restraint Act,
1929 and subsequently replaced by the
Prohibition of Child Marriage Act, 2006.
The custom not only amounts to child
abuse, it deprives the girl child of basic
human rights. A member of the police
force is charged with the duty of
maintaining
the
law, upholding
the
standards
of
a
civil
society.
The
punishment, viewed in light of the above
facts, does not shock the conscience of
this Court warranting substitution of the
choice made by the administrator.