# Pratap Singh v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-07
- **Case number:** Writ-C No. 53843 of 2010
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pratap-singh-v-state-of-u-p-ors-46596
- **Pages:** 6

## Headnote

A. Civil Law - Indian Stamp Act, 1899 -
Sections 47-A & 56 - Deficiency of stamp - Exparte order passed relying upon ex-parte
inspection report - Though three exemplar
instruments relied upon to ascertain the
market value, the report also proceeded to
assess the value of the land, in question, on the
basis of the minimum rates prescribed by the
Collector
-
Validity
challenged
-
Held,
assessment of the value of the land in question
514 INDIAN LAW REPORTS ALLAHABAD SERIES
on the basis of the minimum rates prescribed
by the Collector could not have been done in
view of the express provisions of Section 47A(3) of the Act - Smt. Pushpa Sareen's case
relied upon. (Para 9 and 11)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

11 All. Pratap Singh Vs. State of U.P. & Ors.
513
provided under the rules, but would have no
locus to assail the final order passed by the
authority on the complaint.

Having due regard to the facts and
circumstances of the case, I am not inclined to
interfere. The petition filed at the behest of a
complainant
being
not
maintainable
is,
accordingly, dismissed."

12. In all the three cases referred herein
above, Court has taken constant view that only
aggrieved person, who has participated in the
process of allotment of fair price shop can file
appeal. Any appeal filed by stranger/ outsider
is not maintainable. In present case too,
undisputedly respondent no. 5 was never
participant in the process of allotment of fair
price shop, therefore, this Court is also of the
same view that he is not the person aggrieved
and cannot file appeal against the order of Sub
Divisional Magistrate. It is required on the
part of respondent no. 2 to first consider about
the maintainability of appeal and return
findings upon the ground taken by the
petitioner in reply of appeal. In case, it was
found that appellant is not the aggrieved
person, appeal has to be rejected on the this
ground alone, but here while partly allowing
the appeal, respondent no. 2 has committed
error of law as undisputedly appellant was not
the "person aggrieved". Therefore, impugned
order dated 22.08.2017 passed by respondent
no. 2 is bad and liable to be set aside.

13. Further, so far as second argument of
the petitioner is concerned, about the absence
of adverse finding, is also having substance.
Respondent no. 2 has not recorded any
adverse finding or about violation of any
procedure.
Even
in
case,
appeal
was
maintainable, it is required on the part of
respondent no. 2 to return finding about the
procedural lapses and illegality in the order, if
any, but nothing has been recorded in the
impugned order. Therefore, on this ground too,
the impugned order is bad and liable to be set
aside.

14. Accordingly, under such facts of the
case as well as law laid down by this Court
referred as above, impugned order dated
22.08.2017 passed by Joint Commissioner
(Food),
Saharanpur
Region,
Saharanpur-
respondent no. 2 is hereby quashed and writ
petition is allowed.

15. This Court vide order dated
3.10.2017 has stayed the effect and operation
of the order dated 22.8.2017 passed by
respondent no. 2 and petitioner is running the
fair price shop as on date, therefore, no further
order is required.
----------
(2021)12ILR A513
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2021

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 53843 of 2010

Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Sections 47-A & 56 - Deficiency of stamp - Exparte order passed relying upon ex-parte
inspection report - Though three exemplar
instruments relied upon to ascertain the
market value, the report also proceeded to
assess the value of the land, in question, on the
basis of the minimum rates prescribed by the
Collector
-
Validity
challenged
-
Held,
assessment of the value of the land in question
514 INDIAN LAW REPORTS ALLAHABAD SERIES
on the basis of the minimum rates prescribed
by the Collector could not have been done in
view of the express provisions of Section 47A(3) of the Act - Smt. Pushpa Sareen's case
relied upon. (Para 9 and 11)
Writ petition allowed. (E-1)
Cases relied on :-
1. Ram Khelawan @ Bachcha Vs St. of U.P. & anr.;
2005 (2) AWC 1087

2. Smt. Pushpa Sareen Vs St. of U.P.; 2015 (3) ADJ
136
(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Shri Rajesh Kumar Mishra,
learned counsel for the petitioner and Shri
Awadhesh Chandra Srivastava, learned Standing
Counsel appearing for the respondents.

2. 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 exparte 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.

3. 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 saledeed 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.

4. 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
11 All. Pratap Singh Vs. State of U.P. & Ors.
515
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.

5. 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.

6. 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.

7. 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:-

"...........
अिोहस्ताक्षररत द्वारा अिमनगरीय एवां उपान्त क्षेत्र के
कृधष आिाररत मूल्याांकन वाले धवक्रय धवलेखोां के
मूल्याांकन जाांच के क्रम में उि धवक्रय धवलेख मेरे
सांज्ञान में आया। अधभलेखोां के अवलोकन से खसरा
न० 869, 948 व 950 क्तस्थत ग्राम भोगपुर धमठौनी से
सम्पधि क्रय की गयी तथा आवासीय दर के मूल्याांकन
पर स्टाम्प िुल्क अदा धकया गया है। उि प्रकार के
कधतपय धवलेखोां का धववरण धनम्न साररणी में धदया जा
रहा हैिः-

क्र
माां
क
धवक्र
य
धवले
ख
सां
ख्या
धन
ष्पा
द
न
धत
धथ
खस
रा
न०
अन्त
ररत
क्षेत्र
फल
(वगम
मी०
में)
दर
प्रधत
वगम
मी०
मू
ल्याां
क
न
धज
स
पर
स्टा
म्प
िु
ल्क

अ
दा
धक
या
ग
या
अदा
धकया
गया
स्टाम्प
िुल्क
1.
489
4/05
9.
11
.0
5
869,
948,
950
140.
00
150
0
21
00
00
21000
516 INDIAN LAW REPORTS ALLAHABAD SERIES
2.
601/
06
8.
2.
06
948
132.
47
150
0
19
90
00
20000
3.

246
3/07
5.
4.
07
869,
948,
950
245.
91
160
0
39
40
00
31600

उपरोि साररणी के अवलोकन से स्पष्ट है धक
खसरा न० 869, 948, 950 क्तस्थत ग्राम भोगपुर धमठौनी
से सम्बक्तन्धत धवक्रय धवलेख सांख्या 4894/05, 601/06
तथा 2463/07 का धनबन्धन धकया गया तथा धनिामररत
आवासीय दर के मूल्याांकन पर स्टाम्प िुल्क अदा
धकया गया है। एक ही ग्राम एक ही एक ही खसरे की
भूधम के दो दरो के आिार पर सम्पधि के बाजार मूल्य
का धनिामरण धकया जाना तकम सांगत एवां धवधि सम्मत्
नही है धक साररणी में उक्तल्लक्तखत धवलेख धववाधदत
धवलेख सांख्या 5733/07 के द्वारा अन्तररत सम्पधि के
मूल्याांकन हेतु उपयुि एवां तकम सांगत पूवम दृष्टाांत /
दृष्टाांत स्टधजत करते है। ....."

8. 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.

9. 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.

10. 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 47A(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.

11. 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
11 All. Pratap Singh Vs. State of U.P. & Ors.
517
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."

12. 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
518 INDIAN LAW REPORTS ALLAHABAD SERIES
failure of the petitioner in appearing on that day,
it will be open to the authority concerned to
proceed in accordance with law.

13. In view of the aforesaid observations
and to the extent mentioned above, this writ
petition is allowed.
----------
(2021)12ILR A518
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE NAVEEN SRIVASTAVA, J.

Writ-C No. 59863 of 2015
Connected with
Writ-C No. 11072 of 2017

Sun Tower Residents Welfare Asso. ...Petitioner
Versus
Ghaziabad Dev. Auth. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant, Sri Abhijeet Mukherji, Sri Prashant, Sri
S.K. Pal

Counsel for the Respondents:
Sri Ram Bilas Yadav, Sri Anoop Tivedi, Sri Anoop
Trivedi (Sr. Adv.), Sri Himanshu Tyagi, Sri Kartikeya
Saran, Sri Rahul Agarwal, Sri Rakesh Kumar Singh, Sri
S. Shekhar, Sri Vrindavan Mishra, Sri M.C. Chaturvedi

A. UP Parks, Playgrounds and Open Spaces
(Preservation and Regulation) Act, 1975 -
Parks, claimed to be encroached - Burden of
proof - Layout plan nowhere describes any
piece of land to be a park exclusively - Writ
petition does not specify any location or area
as 'park' which park is, as per petitioner,
allegedly being encroached upon but nothing
assertive brought on record to establish
existence of park - apart from a bald averment
in the writ petition - Effect - Held, the burden
to prove fact of green area earmarked in the
layout plan dated 06.01.2005 to be a park is on
the petitioner. (Para 101, 102 and 138)
B. Constitution of India - Article 226 - Writ -
Maintainability - Concealment of material fact
- Suppression of an order passed by the
Competent authority on the same issue - Held,
the behaviour of the petitioner is not fair and
the petitioner has not approached with clean
hands, instead, it has suppressed material facts
/ order passed by the G.D.A. in the year 2015
and
indirectly
sought
to
get
over
the
inconvenient parts of it through the present
writ petition while seeking enforcement of the
portions favourable to it through another writ
petition - High Court found the petitioner
guilty of 'suppressio veri and sugestio falsi' and
refused to entertain the writ petition. (Para
150 and 151)
C. Jurisprudence - Law of equity - One who
seeks equity must come with clean hands.
(Para 151)
Writ petition disposed of. (E-1)
Cases relied on :-
1. Gorie Gouri Naidu (Minor) & anr. Thandrothu
Bodemma & ors.; (1997) 2 SCC 552
2. Shri Narayana Dharmasanghom Trust Vs Swami
Prakasananda & ors.; (1997) 6 SCC 78
3. K.A. Abdul Jaleel Vs T.A. Shahida; (2003) 4 SCC
166
4. Mehar Singh Saini, Chairman Haryana Public
Service Commission & ors., In re; (2010) 13 SCC 586
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Sudeepta Kumar Pal and Sri
Abhijeet
Mukherji,
learned
counsels
representing The Petitioner Association, Sri
M.C. Chaturvedi, learned Senior Counsel
assisted by Sri Vrindavan Mishra, learned
Advocate representing Ghaziabad Development
Authority, Sri Rahul Agarwal and Sri Kartikeya
Saran, learned counsel representing respondent
no. 2 and Sri Himanshu Tyagi, learned counsel
representing respondent no. 3 and perused the
record.