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SARVA HITKARINI SAHKARI AWAS SAMITI LTD. & ANOTHER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Sarva Hitkarini Sahkari Awas Samiti Ltd. & Another v. State Of U.P. & Others - WRIT - C No. 7860 of 2003 [2007] RD-AH 7416 (23 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Judgment Reserved on 18.1.2007

Judgment Delivered on 23.4.2007

(Reserved)

Civil Misc. Writ Petition No. 7860 of 2003

AND

Civil Misc. Writ Petition No. 7861 of 2003

Sarva Hitkarini Sahkari Avas Samiti Allahabad and another Verses State of U.P and others.

Hon'ble S.U.Khan J

First Writ Petition

This writ petition arises out of proceedings under section 47-A of Stamps Act as added by U.P. It is directed against order dated 28.4.1999 passed by Additional Collector (F& R), Allahabad and order dated 6.8.2002 passed by Commissioner, Allahabad Division, Allahabad, dismissing the revision filed against the first order dated 28.4.1999. Proceedings were initiated in respect of sale deed dated 24.12.1996 executed by one Ashfaq Ahmad in favour of the petitioner. Through the said sale deed an area of 16 Biswa and 3 Biswancy land equivalent to 1841 square meters was transferred. The case before Additional Collector was registered as Case No. 35/97 State Vs. Sarva Hitkarini Sahkari Avas Samiti. The land sold through the sale deed in question was share of vendor in different agricultural plots. Additional Collector / First authority held that when housing society purchases a property,the purpose is to construct house, hence stamp shall be paid in accordance with the circle rate meant for abadi land. It was further held that at the time of registration of sale deed in accordance with the circle rate of the area in question, valuation of the abadi land was Rs.450/- to Rs.500/- per square meters. In the sale deed valuation of the property was shown as Rs.40000/- and stamp duty of Rs.5300/- was paid. A.D.M held that valuation @ Rs.450/- per square meters came to Rs. 828000/- and odd. Accordingly by the first order dated 28.4.1999 a deficiency to the tune of about Rs.115000/- was determined and directed to be recovered. Commissioner, Allahabad division, Allahabad through order dated 6.8.2002, dismissed the revision No. 41 of 2002 which was directed against order of ADM dated 28.4.1999, hence, this writ petition.

I have held in Ram Khelawan Vs. State 2005 (98) RD 511 that the rules framed for determining market value under the Stamp Act and circle rates circulated under said rules are relevant only for initiation of proceedings under section 47-A of Stamp Act. However, after initiation of the case the said rules become irrelevant and while deciding the case market value shall be determined on the basis of general principles for determining market value which are applicable to the land acquisition matters. Moreover, future use of the property is not decisive.

Accordingly writ petition is allowed. Impugned orders are set-aside. Matter is remanded to A.D.M (F& R) Allahabad to decide the case again. A.D.M shall determine on the basis of general principle,  the market value of the land in dispute at the time of execution of sale deed.

There are three standard methods of determining market value; first is use of exemplar i.e transfer deed of similar property executed around the same time when market value is to be determined; second is principle of applying multipliers i.e. determining yearly income including rent and multiplying that by suitable multiplier. In this regard normally multiplier of 10, 12 or 15 is applied; Third is determination of market value of the land and the cost of construction in case of buildings. Applying 25 years multiplier upon the rent on which property may be let out is not the correct formula for determining the market value. Normally multiplier of 10,  sometimes of 12 and occasionally of 15 is applied. Adjoining lands, buildings and their use is also relevant consideration.

A.D.M must determine as to whether any adjoining land when the sale deed in question was executed was sold or not. If any such exemplar is available then the same may be considered otherwise it must be determined that immediately before the date of sale whether  any adjoining land was being actually used for aabadi purpose or not.

Petitioner is directed to appear before the A.D.M (F& R) Allahabad on 18.6.2007 alongwith his detailed objections supported by the documentary evidence sought to be relied upon by him.

Second Writ Petition

One Vijay Kumar on 10.5.1994 sold an area of 13 Biswa 18 Biswancy land of his agricultural plot No. 51 to the petitioner society. The area in square meters comes to 2109 square meters. Proceedings under section 47-A of Stamp Act as added by U.P were initiated in respect of the said sale deed. The case was registered as case No. 154/84/29 of 1998 State of U.P Vs. Sarva Hitkarini Sahkari Avas Samiti Allahabad . Additional Collector, (F & R) Allahabad decided the matter on 30.7.1999 and determined that there was deficiency in Stamp duty to the tune of Rs.122377/-. Against the said order petitioner filed revision No. 44 of 2002, which was dismissed by Commissioner, Allahabad on 6.8.2002, hence this writ petition.

Like the order impugned in the first writ petition, in the order which is challenged through this writ petition also it is mentioned that purpose of purchasing land by cooperative housing society is to construct house hence valuation is to be determined on the basis of circle rate for the area in question at the relevant time for abadi land. It has further been mentioned that at the relevant time abadi circle rates for the area in question were in between Rs.400/- to Rs.450/- per square meter.

For the reasons mentioned in the earlier part of this judgment in respect of first writ petition, this writ petition is also allowed. Both the impugned orders are set-aside and matter is remanded to A.D.M (F&R) Allahabad.

In this writ petition, a further argument has been raised through the application dated 17.1.2007 which is supported by affidavit of cashier and Pairokar of the petitioner society. In the said affidavit it has been stated that several plots including plot No. 51 part of which was purchased by the petitioner through the impugned sale deed was acquired by the State Government through notifications under section 4 & 6 of Land Acquisition Act dated 13.11.1990/8.12.1990 and 8.2.1991 /16.3.1991 respectively. In para 6 of the affidavit, it has been stated that the land is in possession of ADA for whom it was acquired. In para 7, it has been stated that against the acquisition petitioner filed writ petition No. 8829 of 1991, which was dismissed on 5.3.2004.  In para 8 it has been stated that land in dispute is not in possession of the petitioner. Para 9 of the affidavit is quoted below:

"That the petitioner has no objection and undertake for not raising objection and proposes that the sale deed in dispute may be cancelled by Judicial order with exemption to pay stamp duty."

Let the above aspect and effect of acquisition and undertaking of petitioner contained in the above quoted para 9 of the affidavit be also considered by the A.D.M.

Waqar

23.4.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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