# Reena Gupta v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-18
- **Case number:** Writ C No. 57052 of 2010
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reena-gupta-v-state-of-u-p-ors-45573
- **Pages:** 6

## Headnote

C.S.C.

Sale
deed
executed
in
Petitioner's
favour-for
agricultural
land-impugned
order asseseed market value of the land
on non agricultural basis-on ground
that there exist a textile mill-and Petrol
pump of Reliance-defficiency of stamp
directed to be paid-impugned order
quashed-as it is based upon view that
land has potential to be used as
commercial land-W.P. allowed.

HELD-
A perusal of the order dated 20th
July, 2009 further reveals that on the
property in question there is only one
tree of Neem and there is no finding
on record to suggest that the property
in question was being used for non -
agricultural
purposes.
The
order
impugned has been passed on the
presumption that the land in question
has the potential of being used for
nonagricultural purposes. (para 4)
(E-9)
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
Cases cited:

## Text

2 All. Reena Gupta Vs. State of U.P. & Ors.
1873
Section 29 of Act, 1951 and putting the
Unit for auction.

30. Moreover, nothing has been
placed by petitioners on record to show that
there was any bona fide, willing buyer
actually available to purchase Unit and its
assets, for more than Rs.5 lakhs i.e.
consideration whereupon it has been sold to
respondent 6. In absence of any buyer
offering higher price than that whereupon it
has been sold to respondent 6, we find no
reason to interfere with sale transaction of
Unit in favour of respondent 6.

31. In the entirety of the facts and
circumstances we find that petitioners
have not approached this Court in a
bona fide manner. It was financed by
UPFC but committed repeated defaults
in repayment. Despite demand and
notices, petitioners made no attempt to
clear outstanding dues. Several cheques
issued by petitioners towards repayment
of outstanding dues were dishonored.
Even when One Time Settlement was
accepted and Rehabilitation Committee
of State Government made proposal to
petitioners to deposit just 10 percent of
the total outstanding dues, at that time
i.e. Rs.1,40,000/-, vide letter dated
06.01.2001, still petitioners had no
intention to pay the said amount and
made no attempt to do so.

32. In these facts and circumstances,
we do not find that petitioners are entitled
to any relief and this is not a fit case
justifying interference in extra ordinary
equitable jurisdiction under Article 226 of
Constitution. Writ petition lacks merit.

33. Dismissed.

34. Interim order, if any, stands
vacated.
----------
(2020)02ILR A1873

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 57052 of 2010

Reena Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.V. Goswami, Sri Bharat Pratap Singh

Counsel for the Respondents:
C.S.C.

Sale
deed
executed
in
Petitioner's
favour-for
agricultural
land-impugned
order asseseed market value of the land
on non agricultural basis-on ground
that there exist a textile mill-and Petrol
pump of Reliance-defficiency of stamp
directed to be paid-impugned order
quashed-as it is based upon view that
land has potential to be used as
commercial land-W.P. allowed.

HELD-
A perusal of the order dated 20th
July, 2009 further reveals that on the
property in question there is only one
tree of Neem and there is no finding
on record to suggest that the property
in question was being used for non -
agricultural
purposes.
The
order
impugned has been passed on the
presumption that the land in question
has the potential of being used for
nonagricultural purposes. (para 4)
(E-9)
1874 INDIAN LAW REPORTS ALLAHABAD SERIES
Cases cited:

1. Sarvoday Babu Uddeshiya Vikas Samiti v.
Commissioner, Kanpur Division and Others; [2014(1)
ADJ 415]

2. M/s Prosperous Buildcon Pvt. Ltd. v. State of U.P. and
others, judgment dated 20.9.2017 passed in Writ-C No.
53008 of 2012.

3. M/s Prosperous Buildcon Pvt. Ltd. v. State of U.P. and
others,

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Bharat Pratap Singh,
counsel for the petitioner and Standing
Counsel for the State-respondents.

2. The submission of the counsel for
the petitioner is that the sale deed in
question was executed on 22.7.2008 for an
agricultural land. A perusal of the order
dated 20th July, 2009 shows that the
market value of the land has been assessed
on non-agricultural basis only on the
ground that there exists a textile mill
known as Chhadha Spin Mill and opposite
to the land of the petitioner, a petrol pump
of Reliance is in operation and, therefore, it
appeared that the property in question had
commercial value and on that basis, the
deficiency of stamp duty was assessed as
Rs. 1,52,000/- and equal amount of penalty
as Rs. 1,52,000/- was imposed total Rs.
3,05,000/-, which was directed to be paid
along with interest at the rate of 1.5% per
month in terms of the statutory provisions.

3. The counsel for the petitioner Sri
Bharat Pratap Singh submits that in terms
of the U.P. Stamp (Valuation of Property)
Rules, 1997, only two kinds of property are
described in Rule 3, which includes
agricultural land as well as commercial
land, for which the manner of prescribing
the stamp duty is prescribed. He further
submits that in the impugned order, there is
no finding to the effect that the land in
question is not an agricultural land and is
being used as a non-agricultural land.

4. A perusal of the order dated 20th
July, 2009 further reveals that on the
property in question there is only one tree
of Neem and there is no finding on record
to suggest that the property in question was
being used for non-agricultural purposes.
The order impugned has been passed on the
presumption that the land in question has
the potential of being used for nonagricultural purposes. Thus, the sole
question to be considered is whether
deficiency in stamp duty can be assessed
under Section 47-A of the Indian Stamp
Act only on the ground that the land in
question has the potential of being used for
non-agricultural purposes.

5. Sri Bharat Pratap Singh has relied
upon judgments of this Court in the cases
of Sarvoday Babu Uddeshiya Vikas Samiti
v. Commissioner, Kanpur Division and
Others; [2014(1) ADJ 415] and M/s
Prosperous Buildcon Pvt. Ltd. v. State of
U.P.
and
others,
judgment
dated
20.9.2017 passed in Writ-C No. 53008 of
2012. He further drawn my attention to the
report dated 16.9.2008, in which the Joint
Registrar has observed that on the land in
question, the crop was still standing,
although the land in question can be used
for commercial purposes.

6. This Court while considering the
similar question in the case of M/s
Prosperous Buildcon Pvt. Ltd. v. State of
U.P. and others, recorded as under:-

"A Division Bench of this Court
in 2015 (9) ADJ 503, Smt. Vijaya Jain vs.
State of U.P. and Others has held in
2 All. Reena Gupta Vs. State of U.P. & Ors.
1875
paragraphs 20 and 23 which read as
under:

"20.
Having
extracted
the
relevant statutory provisions above, the
following principles emerge therefrom.
Sub-section (1) (a) of Section 47-A of the
Act empowers the registering officer to call
upon the person who has presented an
instrument for registration to pay deficit
stamp duty. This power is exercisable by
the registering officer immediately after
presentation of an instrument and before
accepting it for registration and taking any
action under Section 52 of the Act. This
power is liable to be exercised in a
situation where the market value of the
property as set forth in the instrument is
less than even the minimum value fixed by
the Collector in accordance with the rules
made under the Act. In distinction to the
above, the power under sub-section (3) of
Section 47-A is exercised by the Collector
either suo motu or on a reference from any
Court or from the Commissioner of Stamps
or an Additional Commissioner of Stamps,
Deputy Commissioner of Stamps, an
Assistant Commissioner of Stamps or any
officer authorized in that behalf by the
State Government. This power confers
jurisdiction and authority on the Collector
to call for and examine any instrument for
the purpose of satisfying himself as to the
correctness of the market value of the
property which forms the subject matter of
the
instrument
and
if
upon
such
examination, he has reason to believe that
the market value of such property has not
been truly set forth in such instrument, he
may proceed to determine the market value
of such property and the duty payable
thereon. The first distinguishing feature of
sub section (3) is that it is available to be
exercised even after the instrument has
been registered. Secondly the Collector
proceeds under sub section (3) upon
finding that the "market value" of the
property has not been truly set forth in the
instrument as distinct from the "minimum
value fixed by the Collector in accordance
with the rules made under the Act" which is
the benchmark for initiation of action
under sub section (1).

23. From the provisions extracted
above, it is apparent that the Collector
proceeds under sub section (3) of Section
47-A read with rule 7 when he has reason
to believe that the market value of the
property comprised in the instrument has
not been truly set forth and that in the
opinion of the Collector, circumstances
exist warranting him to undertake the
enquiry contemplated under rule 7. What
we however find from the notice dated 09
September 2013 is that the Collector has
proceeded to record, albeit prima facie,
that the instrument in question has been
insufficiently stamped to the extent of
Rs.8,89,000/-. The notice apart from
referring to a note dated 20 May 2013,
received from the Assistant Inspector
General of Registration neither carries nor
discloses any basis upon which the
Collector
came
to
the
prima
facie
conclusion that the appellant was liable to
pay Rs. 8,89,000/ as deficit stamp duty. In
our opinion a notice of this nature must
necessarily
disclose
to
the
person
concerned the basis and the reasons upon
which the Collector has come to form an
opinion that the market value of the
property has not been truly set forth. In the
absence
of
a
disclosure
of
even
rudimentary details on the basis of which
the Collector came to form this opinion, the
person concerned has no inkling of the case
that he has to meet. A notice in order to be
legally valid and be in compliance with the
principles
of
natural
justice
must
necessarily disclose, though not in great
detail, the case and the basis on which
1876 INDIAN LAW REPORTS ALLAHABAD SERIES
action is proposed to be taken against the
person concerned. Not only this and as is
evident from a bare reading of rule 7, at
the stage of issuance of notice, the
Collector has to proceed on the basis of
material which may tend to indicate that
the market value of the property has not
been truly and faithfully disclosed in the
instrument. The stage of computation of
market
value
comes
only
after
the
provisions of sub rules (2) (3) and (4) of
rule 7 come into play. At the stage of
issuance of notices, the Collector calls
upon the person concerned to show cause
"as to why the market value of the
property.... be not determined by him".

There is another aspect of the
matter, which ought not to go unmentioned, namely, the notice under
Section 47-A (2) of the Act, 1899 refers to
the potential value of the land as being
more than the rates prescribed by the
Collector for residential land. It is not
denied by the authorities that the land in
question was agricultural land but the
authorities have proceeded for determining
the stamp duty on a presumption that the
said land has a potential of future user for
residential purposes because the Village
Shahpur
Bamhaita,
Pargana
Dasna,
District Ghaziabad has been declared as
Hi-tech City and Integrated City. The
Supreme Court and this Court have time
and again held that the potential user of the
property cannot be the determining factor
for computing its market value or the
consequent stamp duty payable thereon.

In (2012) 5 SCC 566, State of
U.P. Vs. Ambrish Tandon and others, the
Supreme Court has held that merely
because the property is being used for
commercial purposes at the later point of
time may not be a relevant criterian for
assessing the value for the purpose of the
nature of user is relatable to the date of
purchase and it is relevant for the purpose
of calculation of stamp duty.

The judgment of the Supreme
Court in the case of Ambrish Tandon
(supra) has been followed by the Full
Bench of this Court reported in 2015 (3)
ADJ 136 (Smt. Pushpa Sareen Vs. State of
U.P.) wherein the Full Bench has also held
that the nature of the user is relatabe to the
date of purchase which is relevant for the
purposes of computing the stamp duty.
Where however the potential of the land
can be assessed on the date of execution of
the instrument itself by referring to
exemplar or comparable sale instances that
is clearly a circumstances which is relevant
and germane to determine the true market
value. Paragraph 27 of the said judgement
reads as under:

"27.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 vs. 23 Ambrish Tandon
and another, 2012 (5) SCC 566. This is
because the nature of the user is relatable
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
2 All. Reena Gupta Vs. State of U.P. & Ors.
1877
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."

A Division Bench of this Court in
2016 (2) ADJ 533 (DB) Sumati Nath Jain
Vs. State of U.P. and another has held in
paragraphs 18 and 19 as under:

"18. We may note that on the date
of execution of the instrument the land was
admittedly recorded as agricultural. In fact
the Khasra of the property remained
unchanged throughout and continued to
represent the land as recorded for
agricultural purposes. The respondents
were in our opinion wholly unjustified in
initiating
proceedings
based
on
an
unsubstantiated
assumption
that
the
property in future was likely to be put to
non-agricultural use.

19. The perceived or presumed
use to which a buyer may put the property
in the future can never be the basis for
adjudging its value or determining the
stamp duty payable. The Act, we may note
is a fiscal statute. The taxable event with
which it concerns itself is the execution of
an instrument which is chargeable to duty.
The levy under the statute gets attracted the
moment an instrument is executed. These
propositions clearly flow from a plain
reading of the definition of the words
"chargeable", "executed" and "instrument"
as carried in the Act. In the case of an
instrument which creates rights in respect
of property and upon which duty is payable
on the market value of the property
comprised therein, since the tax liability
gets fastened immediately upon execution it
must necessarily be quantified on the date
of execution. The levy of tax or its quantum
cannot be left to depend upon hypothetical
or imponderable facets or factors. The
value of the property comprised in an
instrument has to be adjudged bearing in
mind its character and potentiality as on
the date of execution of the instrument. For
all the aforesaid reasons we fail to find the
existence of the essential jurisdictional
facts which may have warranted the
invocation of the powers conferred by
section 47A (3). We are therefore of the
firm
opinion
that
the
initiation
of
proceedings as well as the impugned order
based upon a presumed future use of the
property for residential purposes was
wholly without jurisdiction and clearly
unsustainable. Dealing with this aspect of
the matter and after noticing the consistent
line of precedent on the subject the
Division Bench in Smt Vijaya Jain
observed: -

"This Court on more than one
occasion has held that the market value of
the land is not liable to be determined with
reference to the use to which a buyer
intends to put it in future. The market value
of the property is to be determined with
reference to its character on the date of
execution of the instrument and its
potentiality as on that date.

xxx xxx xxx

The above principles of law
enunciated
in
the
aforementioned
judgments have been consistently followed
by this Court. We however find that the
order of the Collector relies upon no
evidence which would support imposition
of residential rates on a property which
was stated to be agricultural on the date of
execution of the instrument."

7. Further there is no document in the
form of comparable sale deed of any
1878 INDIAN LAW REPORTS ALLAHABAD SERIES
property in the vicinity. It is well settled
that the burden of proving that the market
value of the property is more than that
disclosed in the sale deed is to be
discharged by the State, which the State has
failed to discharge.

8. Considering and following the
ratio of the judgments in the cases of
Sarvoday Babu Uddeshiya Vikas Samiti
(Supra) and M/s Prosperous Buildcon
Pvt. Ltd. v. State of U.P. and others, I
have no hesitation in holding that the
order dated 20th July, 2009 deserves to
be aside, as the same is based upon the
view that the land in question has the
potential to be used as a commercial
land. Consequently, the appellate order
dated 14.6.2010 also quashed. The
amount deposited by the petitioner in
terms of the order passed by this Court
shall be refunded to the petitioner,
along with interest at the rate of 8% per
annum, within a period of four months
from the date when an application is
filed for refund of the same along with
a certified copy of this order.

9. The writ petition is allowed in
terms of the said order.
----------
(2020)02ILR A1878

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 48219 of 2013

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

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Arun Kumar, Sri S.K. Dixit

Counsel for the Respondents:
C.S.C., Sri Amit Shukla, Sri Satyendra
Chandra

A.
Eligibility/qualification
-
a
person
possessing Bachelor's degree in physical
education is not eligible to be a Principal
of an Intermediate College
The
training
qualification
possessed
by
respondent no. 5 is not even a bachelor
qualification in physical education but she
possess an inferior qualification of diploma in
physical education. Therefore, in light of the Full
Bench decision in the case of Amal Kishore
Singh Vs UOI she has no right to continue as a
principal. (para 8 & 11)
B. Doctrine of necessity - handing over the
charge of office of Principal can only be
justified only as long as a qualified and
eligible teacher is not available to be
appointed as officiating principal
On the date of accrual of vacancy i.e.,
30.06.2009 the petitioner was not eligible to
officiate on the post of principal. It was in that
context that a decision had to be taken by the
Managing Committee to hand over the charge to
someone of the office of principal as the office
could
not
have
been
left
vacant.
The
appointment of respondent no. 5, therefore,
may be justified on the touchstone of doctrine
of necessity but such continuance can be
justified only so long as an eligible person is not
eligible to function as the principal. (para 10)
Writ Petition accepted/ disposed of (not stated)
(E-10)

Lists of cases cited

1. Amal Kishore Singh Vs. State of U.P. and ors
Special Appeal No. 1247 of 2013 (followed)

2. Smt. Hemlata Rajput Vs State of U.P. and ors
2019(9) ADJ 93 (followed)