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MOHIT KUMAR (MINOR) versus COMMISSIONER & OTHERS

High Court of Judicature at Allahabad

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Mohit Kumar (Minor) v. Commissioner & Others - WRIT - C No. 50394 of 2004 [2006] RD-AH 14673 (29 August 2006)

 

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

Reserved

Civil Misc. Writ Petition no. 50394 Of 2004.

Mohit Kumar (Minor), Jalaun. ...      Petitioner.

Versus

Commissioner, Jhansi Div., Jhansi, and others....                  Respondents.

Hon'ble Rajes Kumar, J.

By means of present writ petition, the petitioner has challenged the order dated 11.11.2004 passed by the Commissioner, Jhansi Division, Jhansi in Appeal no. 21 of 2003-04 Mohit Kumar Versus State of U. P. under Section 56 of Indian Stamp Act.  

By the aforesaid order, the respondent no. 1 has confirmed the order passed by the respondent no. 2, by which, he has determined the deficiency of stamp duty at Rs.35,890/- and imposed a penalty at Rs.71,780/-.

The brief facts of the case are that the respondent no. 4 executed a sale-deed on 09.12.1997 in favour of the petitioner in respect of half share of Gata no. 246 measuring 4.410 hectare and Gata no. 370 measuring 3.529 hectare for Rs.2 Lacs and paid stamp duty at Rs.10,030/-.  After the presentation of documents, the Sub Registrar, Orai forwarded the documents to the Deputy Registrar, Jalaun at Orai for issuing notice under Section 33 of the Act.  He recommended that there was a deficiency of stamp duty at Rs.32,700/-.  On the basis of the above report, a notice under Section 33 of the Act was issued.  The petitioner filed reply.  In reply, it was asserted that the land was un-irrigated and thus, the value shown in the sale-deed was correct.  The respondent no. 2 passed the order dated 16.12.1998 and rejected the objection of the petitioner and held that there was a deficiency of stamp duty to the tune of Rs.32,700/- and a penalty has also been imposed for a sum of Rs.65,400/-.  Being aggrieved by the above order dated 16.12.1998, petitioner preferred a Revision before the Chief Controlling Revenue Authority, U. P. at Allahabad.  The Revisional authority vide order dated 29.10.1999, allowed the revision and set aside the order of the respondent no. 2 and remanded back the matter for passing afresh order.  In pursuance of the order passed by the Chief Controlling Revenue Authority, the respondent no. 2 inspected the spot and held that the above mentioned Gata no. 246 and 370 were irrigated land and taking the value of irrigated land deficiency of stamp duty at Rs.35,890/- has been worked out and a penalty at Rs.71,780/- has been imposed vide order dated 22.7.2004.  Against the said order, petitioner filed appeal before the respondent no. 1 which has been dismissed by the impugned order.

Heard learned Counsel for the parties.

Learned Counsel for the petitioner submitted that before the Appellate Authority, it was submitted that in Khasra and Kisan Bahi on the date of execution of the sale-deed, both the Gatas were shown as un-irrigated land.  He submitted that near the disputed land, there was no Nahar or Pull.  It was also submitted that the respondent no. 2 in his order referred about the inspection dated 11.7.2004, but no notice or any information has been given to the petitioner about the said inspection and thus, treating the land in dispute as irrigated land on the basis of inspection, is wholly unjustified.  He submitted that the levy of penalty is also erroneous.  He further submitted that the respondent no. 1 has heard the argument on 30.9.2004 and directed to put up the file for decision on 07.10.2004, but on several dates, the judgment could be delivered and finally on 11.11.2004, order has been passed.  He submitted that the order passed by the respondent no. 1 after a gap of more than two months after hearing the case, is not justified.  Learned Standing Counsel submitted that in pursuance of the order of Chief Controlling Revenue Authority, U. P. at Allahabad, the respondent no. 2 had made spot inspection and found that both the land were irrigated and adjacent to the land Nahar and Naali were found and thus, the order of the respondent no. 2 confirmed by the respondent no. 1, can not be said to be unjustified.

Having heard learned Counsel for the parties and perused the impugned order.  The petitioner has enclosed the copy of grounds of appeal.  In the grounds of appeal, petitioner has specifically stated that on the date of execution of sale-deed in Khasra, Khatauni and Kisan Bahi, land were shown as un-irrigated and there was no Nahar.  It is also stated that before the inspection, no information or any notice has been given.  In my view, before making spot inspection of the land in dispute notice and information ought to have given, so that spot inspection should be made in presence of the parties concern.  Any inspection made on the back of the parties, raises doubts and correctness.  The only dispute in the present case is whether the land in dispute is irrigated or un-irrigated land.  The value of the property is based on the aforesaid facts, thus, to verify the above facts, if the respondent no. 2 in pursuance of the order of Chief Controlling Revenue Authority, U. P. at Allahabad had made spot inspection, a proper notice or information should have been given to the petitioner and spot inspection should be made in his presence.  In my opinion, spot inspection made by the respondent no. 2 without any notice or information in the absence of the petitioner, can not be relied upon.  Thus, the order of the respondent no. 2 is vitiated.

In the result, writ petition is allowed.  The order passed by the respondent no. 1 dated 11.11.2004 and the order passed by the respondent no. 2 dated 22.07.2004 are set aside and the matter is remanded back to the respondent no. 2 to pass order afresh.  He is directed to make spot inspection after due information and notice to the petitioner, so that proper inspection be made in the presence of the petitioner and thereafter the issue relating to the valuation and deficiency of stamp duty may be decided.  The respondent no. 2 may also consider the various other documents namely Khasra, Khatauni and Kisan Bahi as claimed to have been filed by the petitioner to show that the land in dispute were un-irrigated.    The petitioner may file Certified copy of the order within two weeks before the respondent no. 2 and thereafter, the respondent no. 2 may fix date for hearing and decide the matter expeditiously.

      Dated:   29    - 08       -2006.

      MZ/-


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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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