# Rajendra Kumar v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 374
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-11
- **Case number:** Civil Misc. Writ Petition No. 29406 of 1996
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-v-state-of-u-p-and-others-41841
- **Pages:** 5

## Headnote

Stamp Act-Section 47-A-stamp dutypurchase
of
agricultural
landsubsequently on basis of report by
Tehsildaar-it was found that small
piece being used as Dharam-KhataAtta Chakki-unless the nature of land
declared otherwise-can not be treated
for commercial purpose-nor any finding
is there regarding use of land for non
agricultural purpose-prior to date of
purchase-demand of additional stamp
duty-held-not legal.

Held: Para 15

In these circumstances I am of the
view that the future use of the land is
irrelevant for the determination of the
market value and payment of stamp
duty. The valuation of the land has to
be assessed on the basis of existing
circle rate/market value of particular
category of the land on the date of
execution
of
sale
deed
and
its
registration
considering
the
other
criteria as discussed above, if any
deviation is there.
Case law discussed:
2008 (8) ADJ 748; 2008 (104) RD 725; 2010
(4) AWC 4232; 2008 (8) ADJ 48; 2009 (2)
ADJ 481

## Text

374 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2011

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 29406 of 1996

Rajendra Kumar

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Subodh Kumar

Counsel for the Respondents:
C.S.C.

Stamp Act-Section 47-A-stamp dutypurchase
of
agricultural
landsubsequently on basis of report by
Tehsildaar-it was found that small
piece being used as Dharam-KhataAtta Chakki-unless the nature of land
declared otherwise-can not be treated
for commercial purpose-nor any finding
is there regarding use of land for non
agricultural purpose-prior to date of
purchase-demand of additional stamp
duty-held-not legal.

Held: Para 15

In these circumstances I am of the
view that the future use of the land is
irrelevant for the determination of the
market value and payment of stamp
duty. The valuation of the land has to
be assessed on the basis of existing
circle rate/market value of particular
category of the land on the date of
execution
of
sale
deed
and
its
registration
considering
the
other
criteria as discussed above, if any
deviation is there.
Case law discussed:
2008 (8) ADJ 748; 2008 (104) RD 725; 2010
(4) AWC 4232; 2008 (8) ADJ 48; 2009 (2)
ADJ 481

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition the
petitioner has prayed for issuing a writ of
certiorari quashing the impugned order
dated 28.09.1993 and 26.06.1996 passed
by
Additional
District
Magistrate
(Finance & Revenue), Shahjahanpur and
Chief Controlling Revenue Authority,
U.P., at Allahabad respectively. Vide
order dated 28.09.1993 the respondent
no.2 has found the deficiency of stamp of
Rs.1,47,561.50 and imposed penalty of
the same amount along with Rs. 90/-
registration fee, the total amount comes to
Rs.2,95,213/-,whereas by the subsequent
order the petitioner's revision filed against
the said order was dismissed by the Chief
Controlling
Revenue
Authority,
U.P.,Allahabad.

2. The facts giving rise to this case
are that the petitioner has purchased the
land measuring about 0.438 aire from plot
nos. 143,144, 145,146/1, 147/1, 148,149
situated at village Hindu Patti, Tehsil
Tilhar,
District
Shahjahanpur
for
consideration of Rs.9000/- and paid stamp
duty worth Rs.1876/-. It appears that the
matter was referred under Section 47 A(1)
of the Stamp Act by the Sub Registrar
before the Collector Stamps. Thereafter a
spot inspection was made by Tehsildar
Tilhar District Shahjahanpur on two
occasions in February, 1993, and in
August, 1993 and following that a show
cause notice was issued to the petitioner
disclosing
therein
that
although
the
petitioner has purchased the land of
commercial use but has paid the stamp
duty on agricultural rate. The petitioner has
filed reply to the said notice stating therein
that
petitioner
has
purchased
the
agricultural land and it is being used for
agricultural purposes. The Additional
1 All] Rajendra Kumar V. State of U.P. and others
375
District Magistrate (Finance & Revenue)
after going through the reply of the
petitioner and the report of Tehsildar has
came to the conclusion that the land
purchased by the petitioner was commercial
land but petitioner, instead of paying the
commercial rate has paid the stamp duty
treating it as agricultural land. While
passing this order the respondent no.2 has
based his order on the report of Tehsildar,
where it is reported that although the land in
the
revenue
record
is
recorded
as
agricultural land but it is being used for
commercial purposes. It appears Additional
District Magistrate (Finance & Revenue)
has placed reliance upon the report of
Tehsildar Tilhar, District Shahjahanpur
dated 25.2.1993 whereas he has overlooked
the subsequent report of Tehsildar dated
16.8.1993 which mentions that plot nos.
143,144,145,146/1/147/1 are Kachiyana
category of which circle rate happens to be
Rs.30,000/-per acre whereas plot nos. 148
and 149 are Doem (Doyam) category land
and circle rate of which happens to be
Rs.24,000/- per acre. He has also reported
that at the time of inspection on the
aforesaid plots a Saw Mill, Atta Chakki and
Dharm Kanta was found. The Additional
District Magistrate Finance & Revenue
(hereinafter referred to as A.D.M.(F & R)
came to the conclusion that as the land is
being used for commercial purpose,
therefore, the petitioner has paid less stamp
duty. According to the A.D.M.(F & R) the
circle rate for commercial land is Rs. 800/-
per square meter and since 1494 square
metre land has been purchased, he has
calculated
the
value
of
the
land
Rs.11,95,200 ( 1494 x 800) and assessed the
stamp duty as per schedule 1-B of Article
23 Rs.1,49,437.50 and after reducing the
duty which has already been paid by the
purchaser,
Rs.1,876/-
he
found
the
deficiency of Rs.1,47,561.50 and also
imposed the penalty of the same amount
along with Rs.90/- as registration fee.

3. Aggrieved by the order of
A.D.M.(F& R) 28.09.1993 the petitioner
filed Revision before the Chief Controlling
Revenue Authority (hereinafter referred to
as C.C.R.A) U.P., Allahabad which was
numbered as Stamp Revision No. 1091 of
1993-94 district Shahjahanpur (Rajendra
Kumar vs State of Uttar Pradesh) and was
partly allowed by the C.C.R.A. vide order
dated 26.6.1996. The C.C.R.A. has held that
the penalty upon the petitioner has been
imposed against the provision of law,
therefore, he set aside the order with respect
to the imposition of penalty but for other
purposes he decline to interfere with the
order passed by the A.D.M.(F& R).

4. Aggrieved by these orders the
present writ petition has been filed.

5. Sri Udit Chandra holding brief of
Sri Subodh Kumar learned counsel for the
petitioner while assailing these orders has
submitted
that
for
the
purposes
of
determination of market value and payment
of Stamp duty the entry in the revenue
record and the nature of the land on the date
of execution of sale deed is material and the
stamp duty cannot be fixed on the basis of
future user of the land. In support of his
submissions he has placed reliance upon
few judgnemts of this Court;

6. Ashok Kumar Dubey Vs State
of U.P. and others 2008 (8) ADJ 748,
Smt. Anasuya Singh Vs Commissioner,
Faizabad
Division
Faizabad
and
another 2008 (104) RD 725, Veer Bal
Singh Vs State of U.P. and others 2009
(2) ADJ 481 and Sumant Lal Tiwari Vs.
State of U.P. and others 2010 (4) AWC
4232.
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. Refuting the submissions of
learned counsel for the petitioner learned
Standing Counsel has submitted that from
the perusal of the report of Tehsildar
dated 16.8.1993 it is apparent that the part
of the land is being used for commercial
purposes as the Tehsildar at the time of
inspection has found functioning of one
Dharm Kanta and Atta Chakki on the
aforesaid land. In the submissions of
learned Standing Counsel the entire land
is of commercial nature, therefore no
infirmity or illegality can be attached with
the view taken by the respondent
authorities and the writ petition deserves
to be dismissed.

8. I have heard learned counsel for
the parties and perused the record.

It is not in dispute that the petitioner
has purchased 1/3 part of the land of plots
no. 143,144,145,146/1,147/1,148 and 149
through sale deed, executed by Sri Ram
Kishore, Sri Naiku and Sri Gulab who
were the joint owners of the plots ,on
29.07.1991. The petitioner has brought on
record the extract of the Khatauni from
which it transpires that the erstwhile
owners were recorded as Bhoomidhar
with transferable right of the aforesaid
plots. The Tehsildar Tilhar in his report
dated 16.8.1993 has mentioned that in
Khasra of the year 1395 and 1396 Fasli in
Ravi & Kharif (both Fasli) crops were
mentioned and came to the conclusion
that at the time of the execution of the
sale deed, the land was used for
agricultural purpose. He further observed
that the plot numbers 143, 144, 145,
146/1,147/1 are Kachiyana and the circle
rate of which happens to be Rs.30,000/-
per acre whereas plot numbers 148,149
were found Goyad/Doyam, circle rate of
which happens to be Rs.24,000/- per acre
and on the basis of above rate he valued
the land worth Rs.10,320/-.

9. From the perusal of the impugned
orders it do not transpires that at the time
of execution of sale deed the land was not
used for agricultural purposes and Dharm
Kanta and Atta Chakki were existing or
the land was used at the relevant time for
commercial purpose. It is no where
mentioned that the land is not recorded in
the revenue record as agricultural one.
The factum of existence of Dharm Kanta
for the first time came in the year August
1993 whereas the sale deed is of the year
29.7.1991.

10. It is well settled that stamp duty
on an instrument is being paid normally
on the basis of market value fixed on the
basis of circle rate fixed by the Collector
and when the market value on an
instrument is being doubted either by the
registering authority or under suo moto
action of the State Government through
its officers then in that situation there
must be a definite proof on the basis of
material available on record before the
authority for enhancing the market value
of the property.

11. While fixing the circle rate with
respect to land,building,road, etc., various
things are to be taken into consideration
like in case of land the classification of
soil,irrigation
facility,proximity
of
road,market, bus station, railway station,
factories,
hospitals
and
government
offices, and location with reference to its
situation in urban area, semi urban area or
country side. Likewise in the case of noncommercial building, there are other
ingredients
which
are
taken
into
consideration. Therefore, in the case
where the authorities have raised doubt on
1 All] Rajendra Kumar V. State of U.P. and others
377
the determination of market value and
payment of deficient of stamp duty, then
before arriving to this finding those things
have to be taken into consideration on the
basis of material available on record.

12. Here in the present case the
market value of the land has been
calculated treating it as commercial one
but in both the judgements there is no
discussion with regard to the commercial
activity in the area and prevailing rent and
nature of economic activity in the locality
etc., which happens to be relevant critaria
for fixing rate for commercial purposes,
merely on the basis of report of the
Tehsildar which mentions that there is one
Dharam Kanta & Atta Chakki on the land,
the
land
has
been
treated
as
of
commercial use and the market value has
been determined on that basis, which to
my opinion is unsustainable as there can
be no roof without there being any
foundation pillar/wall, as in this case the
finding with respect to existence of
Dharam Kanta and Ata Chakki on the
date of execution of sale deed is missing,
which in fact has been made basis for
treating the land as commercial one. On
the basis of material available on record,
it appears that Dharam Kanta and Ata
Chakki, on the disputed land, have been
constructed only after execution of sale
deed.

13. This Court in the case of Ashok
Kumar Dubey vs. State of U.P. And
others 2008 (8) ADJ 48 has held that
market value of the land could not be
determined with reference to use of the
land to which the buyer intends to put in
use. Here in this case, it appears the
authorities have enhanced the stamp duty
on the ground that land is situated in
urban area but the Court took the view
unless the nature of the land is changed
from agricultural one to abadi the
respondents could not have assessed the
market value of the land on the basis of
the future potential of the land because of
its situation nearby the urban area. The
same view has been taken in the case of
Smt.Anasuya Singh Vs Commissioner,
Faizabad
Division,
Faizabad
and
another 2008 (104) RD 725 where this
Court has held that the agricultural land
situated at road side in semi urban area
cannot be treated as commercial or
residential unless the area is declared as
commercial or residential in the master
plan prepared by the State Government.
Again reiterating the same principle this
Court in the case of Veer Bal Singh Vs.
State of U.P. And others 2009 (2) ADJ
481 has held that on date of execution of
sale-deed, land was an agricultural land
and the market value and consequential
stamp duty cannot be fixed on the basis of
its future potential. The same view has
further been taken by this Court in 2010
(4) AWC 4232 Sumant Lal Tiwari Vs.
State of U.P. & others.

14. In this case as has been noticed
after hearing learned counsel for the
parties and perusing the record that there
was no material before the respondents to
arrive at finding that the land in question
is not agricultural land and commercial
one, on the contrary, there is a report of
Naib
Tehsildar
dated
16.08.1993
mentioning the nature of land agricultural
one, as in his report the Naib Tehsildar
has reported that at the relevant time in
the khasra of the year 1395 and 1396 in
both fasli Ravi and Kharif crop has been
mentioned. Merely because on the small
piece of land Dharm Khata and Atta
Chakki is existing, it cannot be inferred
that the land in question is not agricultural
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
land and commercial one particularly in
the circumstances without there being any
proof on record that Dharam Kanta and
Atta Chakki were existed before the date
of execution of sale deed or on the date of
execution of sale deed. Further without
taking into consideration the economic
activity and prevailing rent etc. in the
vicinity of land. No provision under the
Stamp Act could be shown to the Court
by
the
learned
Standing
Counsel
containing that the stamp duty may also
be charged on the future use of the land or
the purchaser can not use agricultural land
for any other purposes except the
agriculture in future.

15. In these circumstances I am of
the view that the future use of the land is
irrelevant for the determination of the
market value and payment of stamp duty.
The valuation of the land has to be
assessed on the basis of existing circle
rate/market value of particular category of
the land on the date of execution of sale
deed and its registration considering the
other criteria as discussed above, if any
deviation is there.

16. In view of the foregoing
discussions I am of the opinion that
impugned orders are unsustainable in the
eye of law and deserves to be quashed.

17. In the result the writ petition
succeeds and is allowed. The impugned
orders dated 28.09.1993 and 26.06.1996
are hereby quashed.

18. It is also provided that the
security if any furnished by the petitioner
pursuant to the order dated 11.09.1996
passed by this Court be released.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Crl. Misc. Application No. 4761 of 2011

Santosh Chauhan and others ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner :
Sri M.S. Chauhan

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section 205Exumption from personal appearancesale discretion of magistrate-to consider
whether or not the trail affected in
absence of accused-No direction can be
issued
by
High
Court-Application
dismissed.

Held: Para 7

Therefore,
the
Magistrate
while
considering an application under section
205 of the Code, has to see whether or
not any useful purpose would be served
by requiring the personal attendance of
the accused in the court. He is further
required to see whether or not the
progress of the trial is likely to be
hampered on account of absence of the
accused. As held in the case of Bhaskar
Industries (supra), the discretion under
section 205 of the Code should be
exercised in a judicious manner and the
personal presence of the accused should
be required only when the trial cannot
proceed further without the presence of
the accused. If the trial can be held
conveniently in absence of the accused,
it would be just and expedient to
exercise the discretion in favour of the
accused and dispense with his personal
attendance
in
the
court.