SMT. PAKKO AND ANOTHERversusSTATE OF U.P. AND OTHERS

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                        WRIT - C No. - 65482 of 2008

Smt. Pakko And Another
                                                               .....Petitioner(s)
                                   Versus

State of U.P. and Others
                                                          .....Respondent(s)

Counsel for Petitioner(s)                   :    Madhusudan Dixit
Counsel for Respondent(s)                   :    C.S.C.

Court No. - 37
                 HON'BLE KSHITIJ SHAILENDRA, J.

1. Heard Sri Madhusudan Dixit, learned counsel for the petitioners and

Sri I.P. Srivastava, learned Standing Counsel for the State.


2. The petitioner purchased 740.55 square meters of land by registered
sale deed dated 24.05.2007 indicating the nature of land as residential.

They paid stamp duty computing the same at residential rates.

Proceedings under Section 47-A of the Stamp Act were registered against

the petitioners on the ground that a saw machine was found to be placed

on the spot on the date of inspection which was made on 18.02.2008.

Based upon the same, notice was issued to the petitioners who submitted

their response. Thereafter, by order dated 16.06.2008, the petitioners were

saddled with deficient stamp duty of Rs. 95,140/- and penalty of the same

amount. The said order was affirmed in appeal by order dated 05.11.2008.


3. The present writ petition has been filed against both the aforesaid

orders.


4. An interim order was passed in this case on 17.12.2008 staying the

impugned demand subject to deposit of 50 % of the amount of deficient

stamp duty. The said condition is said to have been complied with by the

petitioners.
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5. Learned counsel for the petitioners submits that the nature of land

purchased through sale deed was non-agricultural and, therefore, in order

to avoid any imposition, it was indicated as residential and stamp duty

was accordingly paid. As far as the allegations that a saw machine was

found on the spot, submission has been made that the inspection was

carried out ex parte and though it is true that there was a saw machine

belonging to the petitioners, however,the same related to different place

and plot wherefrom it was dismantled and the same was kept on the

property forming subject matter of the sale deed. It is further submitted

that the saw machine never became operational on account of expiry of

the license granted in favour of the petitioners in the year 2006 itself and,

therefore, merely because saw machine was found on the spot, the same,

in itself, cannot be treated as an evidence of commercial nature of the land

covered by the sale deed and, therefore, the orders impugned are

unsustainable.


6. Further submission is that in the boundaries of the plot purchased,

agricultural land of one Bhopal was indicated, hence the land cannot be

treated as commercial.


7. Per contra, learned Standing Counsel submits that categorical finding

has been recorded in the orders impugned that a saw machine was found

functional on the spot and, even otherwise, the petitioners have admitted
this fact in their objections and affidavit as well as photographs as noted

in the order of the CCRA and, therefore, no interference is warranted.


8. Having heard learned counsel for the parties, I find that the petitioners

had indicated the nature of land as residential and also objective of

purchase being residential. It is not the case of the petitioners that either
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                                3


prior to purchase or subsequent thereto or even on the date of purchase,

some residential structures were standing or the petitioners ever intended

to raise constructions. The entire case of the petitioners is based upon

expiry of license of saw machine which they were running at a different

place and which they admit to have dismantled from the said different

place and reinstalled on the property sold to them.


9. Proceedings under Section 47-A are initiated when the market value of

any property forming subject matter of any instrument as set forth therein,

is less than even the minimum value determined in accordance with the

rules made under the Act. The U.P. Stamp (Valuation of Property) Rules,

1997 contain detailed classification of the stipulations which are required

to be taken care of while getting a sale deed executed. Therefore, the

recital contained in the sale deed, when verified from the spot position on

the date of execution of sale deed, if gives rise to a doubt regarding

correct valuation of the property, the Authorities are competent to

determine the same in accordance with the provisions of law and based

upon the inspection made.


10. Submission made that ex parte inspection was carried out and,

therefore, there is a violation of Rule 7(3)(c) of the Rules of 1997, does

not appear to have been raised either in the memo of appeal filed before

the Commissioner or even in the present writ petition. Even otherwise,
alleged ex parte nature of spot inspection would be of no significance in

the present case as the petitioners have themselves admitted that they had

kept saw machine on the plot purchased and surrounded it by boundary

wall for the purposes of its protection.


11. As far as the plea based upon license is concerned, the same has no
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                                 4


relevance in the present case inasmuch as grant/refusal/renewal of license

to run a saw machine has no correlation with the determination made by

the Stamp Authorities. What is required to be seen by them is as to

whether the description made in the sale deed qua the valuation of the

property is at par with the market value of the property, for which circle

rate list is a guiding factor.


12. In the present case when there is nothing on record to indicate that the

plot was residential in nature and that at any point of time residential

structures were raised thereon, this court is not inclined to accept the

submissions made on behalf of the petitioners that the land was residential

in nature.


13. At the same time, there is nothing on record to indicate that saw

machine ever became functional over the spot. Therefore, whether

property was utilized even for commercial purposes, does not stand

established from record.


14. In view of the aforesaid facts and circumstances, peculiar nature of

defence taken and evidence led, though the court does not find any good

ground to set aside the deficiency worked out under the orders impugned,

it is inclined to set aside the penalty part of the order which is equivalent

to the deficiency as element of "MENS REA" is found absent.

15. Consequently, the writ petition is partly allowed. The orders

impugned dated 16.06.2008 and 05.11.2008 are hereby set aside to the

extent of penalty of Rs. 95,410/-


16. The Authority shall recompute the demand in terms of this order and

shall give due adjustment to the amount deposited by the petitioner under
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                                    the interim order dated 17.12.2008.


                                    17. The recomputed amount, worked out as per this order, shall be

                                    deposited by the petitioners within 2 months from the date of service of

                                    redetermination on them, failing which the respondents shall be within

                                    their rights to recover the amount according to law.



                                                                                           (Kshitij Shailendra,J.)
                                    March 18, 2026
                                    Prashant D.




Digitally signed by :-
PRASHANT DWIVEDI
High Court of Judicature at Allahabad