# Shiv Kumar v. Chief Controlling Revenue Authority U.P. & Anr

- **Citation:** (2023) 2 ILRA 316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-24
- **Case number:** Writ-C No. 39549 of 1998
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-v-chief-controlling-revenue-authority-u-p-anr-49661
- **Pages:** 7

## Headnote

A. Civil Law - Indian Stamp Act, 1899 -
Sections 47-A & 56 - UP Stamp Rules,
1942 - R. 341 - Rule of 142 repealed in
1997 - Applicability of Rule of 1942
regarding sale-deed executed in 1992 -
Held, It is noteworthy that in the year
1997, the U.P. Stamp Rule 1942 were
repealed. Since it is a matter of 1992 and
the property in question was purchased on
04.06.1992, therefore the stamp duty
would be payable in accordance with the
provisions of U.P. Stamp Rule, 1942 - The
property in question is a building which
has been assessed for the purposes of
House Water and other related municipal
taxes, therefore, the provisions of Rule
341 (iii) (b) are applicable to the property
in question - Respondents has flouted the
provisions of U.P. Stamp Rules, 1942,
which was prevalent at the time of
2 All. Shiv Kumar Vs. Chief Controlling Revenue Authority U.P. & Anr.
317
execution of the sale-deed. (Para 19, 20
and 32)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

316 INDIAN LAW REPORTS ALLAHABAD SERIES
1969 enabling the Registrar to summon a
person to record his evidence on oath. The
counsel for the petitioner also could not show
any provision under the said Act enabling the
Registrar to exercise powers of a Court to
summon witnesses and record their statement
on oath and to allow cross examination of
those witnesses. The enquiry contemplated
under Section 13 is limited for the purposes
of
verifying
the
authenticity
of
the
information relating to birth or death of the
person concerned brought to the notice of the
Registrar or the Magistrate, as the case may
be, so as to enable him to form an opinion
whether the information provided is to be
entered in the register or not and for such
purpose it may take an affidavit. An opinion
formed in such enquiry is not conclusive
determination of the date of birth or death and
is therefore not binding on a regular court
competent to decide questions relating to
living status of a person or other questions of
fact. These entries may, however, be taken
into consideration as a piece of evidence. As
to how much weight is to be attached to such
an entry would depend on the facts of each
case based on the evidence led by the parties
before the court empowered to decide such
questions of fact.

12. In such view of the matter, no
useful purpose would be served in
examining the correctness of the entry in
these proceedings when their correctness
can
be
tested
in
a
regular
court
proceeding on the basis of evidence led
therein.
We,
therefore,
decline
to
interfere with the order impugned in this
petition and leave it open to the petitioner
to lead such admissible evidence, as they
may be advised, in connection with the
date of death of Jagat Narayan, before the
competent court where the proceedings
are pending.

13. Subject to above, the petition is
disposed off.

14. It is made clear that we have not
expressed any opinion with regard to the
date of death of Jagat Narayan.
----------
(2023) 2 ILRA 316
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ-C No. 39549 of 1998

Shiv Kumar ...Petitioner
Versus
Chief Controlling Revenue Authority U.P. &
Anr. ...Respondents

Counsel for the Petitioner:
Sri T.S. Dabas, Sri Arpit Agarwal

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Sections 47-A & 56 - UP Stamp Rules,
1942 - R. 341 - Rule of 142 repealed in
1997 - Applicability of Rule of 1942
regarding sale-deed executed in 1992 -
Held, It is noteworthy that in the year
1997, the U.P. Stamp Rule 1942 were
repealed. Since it is a matter of 1992 and
the property in question was purchased on
04.06.1992, therefore the stamp duty
would be payable in accordance with the
provisions of U.P. Stamp Rule, 1942 - The
property in question is a building which
has been assessed for the purposes of
House Water and other related municipal
taxes, therefore, the provisions of Rule
341 (iii) (b) are applicable to the property
in question - Respondents has flouted the
provisions of U.P. Stamp Rules, 1942,
which was prevalent at the time of
2 All. Shiv Kumar Vs. Chief Controlling Revenue Authority U.P. & Anr.
317
execution of the sale-deed. (Para 19, 20
and 32)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Vijay Kumar & anr. Vs Commissioner, Meerut
Division & anr.; MANU/0682/2008
2. Mahabir Prasad Vs Collector, Cuttack [1987] 2
SCR 289
3. Ram Khelawan allias Bachchan Vs St. of U.P.
through Collector, Hairpur and Anr. 2005 (98)
RD 511
4. Prakashwati Vs Chief Controlling Revenue
Authority Board of Revenue, Allahabad 1996
(87) R.D 419
5. Collector of Nilgiris at Ootacamund Vs
Mahavir
Plantations
Pvt.
Ltd.;
MANU/TN/0285/1982
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This writ petition has been filed for
quashing the order dated 24.08.1098
Annexure 5 passed by respondent no. 1 -
CCRA U.P / Board of Revenue at
Allahabad and the order dated 14.06.1994
annexure no. 2 passed by respondent no. 2
i.e. Additional Collector (F&R), District
Saharanpur, by which both the authorities
have impounded the deed and imposed
penalty for Rs.16,325/- directed to make
the deficit and complete the deficiency of
stamp duty of Rs.16,675/-. Total Rs.
33,000/- and directed to recover the same
from the petitioner.

2. In brief, facts of the case are that
the petitioner purchased one room on the
ground floor of an area 23.24 Sq. Yard
situated in Mohalla Railway Saharanpur for
the consideration of Rs. 35,000/- and paid
the stamp duty accordingly at the time of
purchase of shop. After the execution of the
sale-deed in question, the Sub Registrar
referred the sale deed to respondent no. 2
for correct the valuation for stamp purposes
with report that after spot inspection, it
appears that the property exists in a posh
locality has been purchased for commercial
purposes and not for residential purposes.
According to him Rs. 500/- per month may
be the rent of the property in question. The
monthly rent of the property is Rs. 100/-
per month, as the petitioner was an old
tenant.

3. Notice was issued to the petitioner
to file objection (annexure no.1) dated
21.04.1994 before the respondent no. 2
with the allegation/objection that the
adequate stamp duty was not paid by him.
The property in question was in his tenancy
at the time of purchase. The petitioner was
not provided an opportunity to file
objection against the report of the Sub
Registrar and to produce the evidence. The
report of the Sub-Registrar does not
contains the correct facts and depicts
incorrect picture of the spot.

4. The petitioner in support of the
version, has filed a copy of the assessment of
the year 1991-96, in which the annual rent of
the property is shown as Rs.900/-. The
respondent no. 2 without going into the depth
of the case, rejected the objection and valued
the property showing wrongly its monthly
rent at Rs.5,00/- per month and valued the
property in question at Rs.1,50,000/- showing
the deficit of Rs.1,15,000/- on which stamp
deficiency was shown Rs.16,675/- and
imposed Rs.16,325/- as penalty total Rs.
33,000/- to be paid by the petitioner to the
State of U.P. The judgment dated 14.06.1994
has been annexed as annexure no. 2 to this
writ petition.

5. In the trial court, the petitioner filed
an extract of Nagar Palika Parishad
318 INDIAN LAW REPORTS ALLAHABAD SERIES
showing yearly valuation of the house in
question. The petitioner was shown as
tenant and the annual value was Rs 9,00/- .
A copy of the Khasara for the year w.e.f.
01.08.1991 to 31st March, 1997 has been
filed as annexure no. 3.

6. The petitioner being aggrieved with
the order of the respondent no. 2, filed a
stamp revision Annexure No. IV under
Section 56 of the Indian Stamp Act before
the respondent no. 1 on 20th July, 1994.

7. The respondent no. 1 on
24.08.1998 passed the judgment and order
(annexure no. 5), and imposed stamp
deficiency of Rs.16,675/- but set aside the
penalty of Rs.16,325/-. The order of the
respondent no. 1 was bad in the eyes of
law. He has not applied the judicial mind
and has recorded the finding, which is not
tenable in law, he has not followed the
directions given in Rule 341 of the Indian
Stamp Rules and has wrongly assessed the
property on his own accord without
considering the principles laid down under
Rule 341 of the Indian Stamp Rules.
Existing a property in commercial area is
no ground to say that the property which is
purchased is for commercial purposes.

8. Respondent no. 1 has not applied
the judicial mind and has not followed the
order of the Hon'ble Supreme Court that in
this connection only assessment of the
house be considered for determining of the
stamp duty. The respondent no. 1 has also
wrongly fixed the monthly rent Rs.500/-
without any evidence, exemplar or any rent
receipt filed by the State. In this connection
a fixation of property in question of
Rs.1,50,000/- of such small area is no basis
for fixing the stamp duty to such a high
rate. It is the clear case of the petitioner that
he was an old tenant of the purchased
building since before the time of its
purchase and the monthly rent cannot be
Rs.5,00/-
per
month.
There
is
no
independent inquiry either from the Tehsil
authority, whatsoever has been made by the
court below, thereby vitiating the impugned
judgment. The judgement is based upon the
report of the Sub-Registrar, which is an exparte, inadmissible in evidence and could
not have been relied upon. Showing the
said deficient stamp duty in arbitrarily
manner shall cause an irreparable loss and
injury to the petitioner, therefore, the
Hon'ble Court be pleased to exercise it's
power under Article 226 of the Constitution
of India and to quash the impugned orders
passed by respondent nos. 1 & 2.

9. The relevant orders and photo copy
of the extracts of the house and water tax of
Nagar Palika Parishad has been annexed, in
which Rs.9,00/- yearly rent has been
mentioned for the property in question.

10. The respondent has filed a counter
affidavit and denied all the allegations of
the petition and reiterated the version of the
order passed by respondent nos. 1 and 2
and has said that in the said property there
is an office of Shiv and Manikkoti Charted
Accountant & Company and its Sale is only
for commercial purposes. The valuation of
the property in question cannot be less then
Rs.1,50,000/-. The property is situated near
Surya Hotel in first floor of the building.
The market value (rent) in the year 1993, is
not less then Rs.5,00/- per month and on
the said rent the valuation of the property in
question cannot be less than Rs.1,50,000/-,
hence Rs.16,675/- was computed as stamp
duty and penalty for Rs.16,325/- has been
imposed.

11. A notice under Section 33/47-A
had been issued to the petitioner and the
2 All. Shiv Kumar Vs. Chief Controlling Revenue Authority U.P. & Anr.
319
petitioner has submitted his objection on
21.04.1994.
He
was
provided
full
opportunity of hearing. Due to ill intention
he showed the commercial building as a
room in order to evade the stamp duty. He
has purchased the said property for
commercial
purposes,
therefore,
the
valuation of the property should not be less
than Rs.1,50,000/- in the year 1993, in the
assessment bill of Nagar Paliaka for the
year 1991-96, it is mentioned that there is
shop and due to mala fide intention to
evade the stamp duty the said property is
shown as room.

12. It is admitted that the petitioner
has submitted the assessment bill but the
penalty of the deficit stamp fee was
imposed after inspecting the said plot.
According to the extract of Nagar Palika
Parishad, Rs. 9,00/- annual rent had been
fixed in the year 1990. The property is
situated at the railway station road, which
is hot place and commercial area of district
Saharapur and it has been sold for
commercial purposes. The rent of the shop
cannot be less than Rs.500/- per month and
in every circumstance the present petition
is devoid of merit and is liable to be
dismissed with cost.

13. The petitioner has filed rejoinder
affidavit, in which he has reiterated the
facts of the petition and has denied the
contents of the counter affidavit.

14. Heard Sri Arpit Agarwal, learned
counsel for the petitioner and Sri Jitendra
Narain Rai, learned Additional Chief
Standing Counsel for the State-respondent
and perused the material available on
record.

15.
Learned
counsel
for
the
petitioner has argued that since the sale
deed
was
executed
prior
to
the
enforcement
of
the
U.P.
Stamp
(Valuation of the Property) Rule, 1997,
therefore, the provisions of U.P. Stamp
Rule, 1942, are applicable to the present
proceedings.

16. The present proceedings were
initiated in the year 1994 on the basis of
report
of
the
Sub
Registrar
dated
21.09.1994 and the learned court below
without considering the provisions of law
has wrongly and illegally computed the
amount deficit vide it's order dated
14.06.1994.

17. The provision of the Rule 341
provides the method for computation of
the market value of a property for the
purpose and determination of the stamp
duty of an instrument.

18. Rule 341 is as under:-

For the purposes of payment of
stamp duty, the minimum market value of
immovable property forming the subject
of
an
instrument
of
conveyance,
exchange, gift, settlement, award or trust,
referred to in Section 47-A (1) of the Act,
shall be deemed to be not less than that as
arrived on the basis of the multiples given
below:-

(i) Where the subject is land:-

(a) in case of Bhumidari-800
times the land revenue.

(b) in case of Sirdari land-400
times the land revenue.

(c) where the land is not assessed
to revenue but net profits have arisen from
it during the three years immediately
preceding the date of the instruments 25
times the annual average of such profits.

(d) where the land is not assessed
to revenue and no profits have arisen from
320 INDIAN LAW REPORTS ALLAHABAD SERIES
it during the three years immediately
preceding the date of the instrument 400
times the assumed annual rent.

(e) where the land is nonagricultural and is situate within the limits
of any local body referred to in clause (c)
of sub-rule (i) of rule 340-equal to the
value worked out on the basis of the
average price per square meter, prevailing
in the locality on the date of the instrument.

(ii) where the subject is grove or
garden:

(a) If assessed to revenue the
value of the land shall be worked out in the
manner laid down in rule 341 (i) (a) and the
value of the trees standing thereon shall be
worked out according to the average price
of the trees of the same size, and age
prevailing in the locality on the date of the
instruments.

(b) If not assessed to revenue or
is exempted from it the value there of shall
be determined at 20 times the annual rent
plus the premium or 20 times of the annual
average of income which has arisen during
the three years immediately preceding the
date of instrument and the value of the trees
thereon shall be determined in accordance
with rule 341 (ii) (a)

(iii)
Where
the
subject
is
Building:

(a) Where the building is assessed
to house tax and is occupied by the owner or
is wholly or partly let out to tenants-25 times
the actual or assessed annual rental value,
whichever is higher as the case may be.

(b) Where the building is not
assessed to house tax and is occupied by
the owner or is wholly or partly let out to
tenants-25 times the actual or assumed
annual rental value, whichever is higher as
the case may be.

19. It is noteworthy that in the year
1997, the U.P. Stamp Rule 1942 were
repealed. Since it is a matter of 1992 and
the property in question was purchased on
04.06.1992, therefore the stamp duty would
be
payable
in
accordance
with
the
provisions of U.P. Stamp Rule, 1942.

20. It is undisputed that the property
in question is a building which has been
assessed for the purposes of House Water
and
other
related
municipal
taxes,
therefore, the provisions of Rule 341 (iii)
(b) are applicable to the property in
question.

21. The aforesaid provisions provide
that if the market value of the property has
been assessed by the municipal board, it
can only be computed by multiplying 25
times of the assessed or the actual
reasonable value. From the extracts of
Municipal Board's Register the valuation of
the property in question is Rs. 9,00/- only.

22. Therefore, the valuation of the
property as per Rules becomes Rs.22,500/-
only. The learned court below assuming the
rental value Rs.500/- per month calculated
that there is deficiency in payment of stamp
duty and also imposed the penalty though
the penalty has been removed by the Board
of Revenue (C.C.R.A, UP). It is clear from
the aforesaid discussions that on the basis
of accompanying report of Sub Registrar,
A.D.M (F&R) accepted the rental value of
the room in question Rs.5,00/- per month.
For determining the rate of rent to be
Rs.5,00/- the learned Sub Registrar did not
collect any DATA from the nearby shop or
vicinity. It is also noteworthy that the
petitioner was already a tenant of the
property in question since before the
execution of the sale-deed. If the rental
value was wrongly mentioned by the Nagar
Palika Parishad, it was the duty of the
respondents to raise an objection and to get
2 All. Shiv Kumar Vs. Chief Controlling Revenue Authority U.P. & Anr.
321
it corrected, but instead of adopting the
reasonable and sound method in legal way,
the Sub Registrar imaginarily opined that
the rent of the room in question would not
be less than Rs.5,00/- per month.

23. This Court is of the opinion that if
the property in question would not have
been assessed by the Nagar Palika
Parishad, there was an option to Sub
Registrar and the respondent to apply the
provisions of Section 341 (iii) (b).

24. When the property in question was
assessed by the Nagar Palika, which is very
much clear from the extract of the concerned
Register and the U.P. Stamp Rules, 1942,
was into exists, there was no opportunity to
the respondents and the Sub Registrar except
to act in accordance with the Rule 341 (iii) (a)
according to which where the building is
assessed to house tax and it is occupied by
the owner or is wholly or partly, let out to the
tenant, 25 times the actual or assessed annual
rental value whichever is higher as the case
may be, would be considered for payment of
stamp duty.

25. In this case the Nagar Palika has
assessed Rs.9,00/- annual rental value of
the property in question, therefore as per
the existing law in the year 1992, the
petitioner was under an obligation to pay
the stamp duty in accordance with Rule 341
(iii) (a). If we multiply Rs.9,00/- into 25
times, the value of the property becomes
Rs. 22,500/-. The petitioner has purchased
the property of Rs. 35,000/- and on this
amount, he has paid the stamp duty
accordingly, which is more than the market
value computed in accordance with the
Rule 341 (iii) (a).

26. Since the rules of U.P. Stamp
Rules, 1997 had not come into force and
the Sub Registrar had not given any DATA
regarding rent of the property in question,
the respondents had to act upon in
accordance with the provisions of U.P.
Stamp Rules, 1942.

27. In Vijay Kumar and Surendra
Kumar Both sons of Shri Daulat Ram Vs.
Commissioner,
Meerut
Division
and
Additional District Magistrate (Finance
and Revenue) MANU/0682/2008 decided
on 27.03.2008, it is held that the burden to
prove that the market value more than the
minimum as prescribed by Collector under
Rule is on Collector. Report of SubRegistrar or Tehsildar, itself is not
sufficient to discharge that burden.

28. In Mahabir Prasad Vs. Collector,
Cuttack [1987] 2 SCR 289, it is held that
the ''market value' of land means a price at
which both buyers and sellers are willing to
do business; the market or current price.

29.

In Ram
Khelawan allias
Bachchan Vs. State of U.P. through
Collector, Hairpur and Anr. 2005 (98) RD
511, it has been held that report of
Tahsildar may be a relevant factor for
initiation of proceedings under Section 47A of the Act but it cannot be relied upon to
pass an order under the aforesaid section.
In other words the said report cannot form
itself basis of the order passed under
Section 47-A of the Act.

30. In Prakashwati Vs. Chief
Controlling Revenue Authority Board of
Revenue, Allahabad 1996 (87) R.D 419
"Hon'ble the Apex Court has held that
situation of a property in an area close to a
decent colony not by it self would make it
part thereof and should not be a factor for
approach of the authority in determining
the market value.
322 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In Collector of Nilgiris at
Ootacamund Vs. Mahavir Plantations Pvt.
Ltd. MANU/TN/0285/1982, the Madras
High Court while dealing with the
valuation guidelines has held that the
Collector under Section 47-A can not
shrink his responsibility of determining the
market value by adopting the guidelines
nor can he fix the market value without
proper materials and evidence to support it.
The very idea of an inquiry contemplated
by Section 47-A and the detailed procedure
prescribed in the relevant rules goes to
show that the Collector's finding must be
verifiable by evidence. The valuation
guidelines
prepared
by
the
Revenue
officials at the instance of the Board of
Revenue were not prepared on the basis of
any open hearing of the parties concerned,
or of any documents with a view to
eliciting the market value of the properties
concerned. They were based on data
gathered
broadly
with
reference
to
classification of land, grouping of land and
the like. This being so, the Collector acting
under Section 47-A cannot regard the
guidelines valuation as the last word on the
subject of market value.

32. From the aforesaid discussions, it
is very much clear that respondents has
flouted the provisions of U.P. Stamp Rules,
1942, which was prevalent at the time of
execution of the sale-deed.

33. On the basis of aforesaid
discussions, this Court is of the opinion that
the respondents have not acted properly
and in accordance with the existing U.P.
Stamp Rules, 1942 and have passed the
impugned orders in arbitrary and illegal
manner, therefore the writ petition is
allowed and the impugned judgement and
orders dated 14.06.1994 Annexure No. 2
and the order dated 24.08.1998 Annexure
No. 5 to this writ petition are hereby
quashed.
----------
(2023) 2 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 41347 of 2012

Ulfat & Ors. ...Petitioners
Versus
Additional
Commissioner
(Judicial),
Moradabad & Ors. ...Respondents

Counsel for the Petitioners:
Sri V.C. Srivastava, Sri I.P. Singh, Sri Saiful
Islam Siddiqui, Ms. Tahira Kazmi, Vinay
Kumar Pathak

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh, Sri Tarun
Agarwal, Sri Shashank Bhartiya, Sri Arun
Kumar Pandey

A. Civil Law - UP Zamindari Abolition &
Land Reforms Act, 1950 - Sections 132 &
198(4) - Review power - How far
maintainable before Commissioner - Held,
the power of review would lie with the
Board of Revenue only. The schedule that
prescribes for judicial proceedings is
schedule (1) which does not provide for
any forum of review. So the forum of
review is only the Board of Revenue -
Held further, the Court substantively
reviewed its order on merit which was
certainly not available to it. (Para 13 and
19)
B. Substantive review and Procedural
review
-
Distinction
-
Power
of
substantive review is to be exercised by
any court or Tribunal or authority if such a
power is specifically conferred upon it
under the relevant statute but the power