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SMT USHA KASLIWAL versus STATE & ORS

High Court of Rajasthan

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SMT USHA KASLIWAL v STATE & ORS - CW Case No. 5165 of 1999 [2006] RD-RJ 2440 (1 November 2006)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH

JUDGMENT 1. Usha Kasliwal Vs. State of Rajasthan & Others

(SB Civil Writ Petition No.5165/1999) 2. Ritu Kasliwal Vs. State of Rajasthan & Others

(SB Civil Writ Petition No.5164/1999) 3. Anant Kasliwal Vs. State of Rajasthan & Others

(SB Civil Writ Petition No.5163/1999) 4. Sudhanshu Kasliwal Vs. State of Rajasthan & Others

(SB Civil Writ Petition No.5146/1999)

SB Civil Writ Petitions under Article 226 & 227 of the Constitution of India.

Date of order: November 01, 2006.

PRESENT

HON'BLE MR. JUSTICE SHIV KUMAR SHARMA

Mr. Amod Kasliwal, for the petitioners.

Mr. Shyam Arya, Govt. Advocate for the respondents.

BY THE COURT:

Since identical questions of fact and law are involved in these writ petitions, I proceed to decide them by a common order. 2. The petitioners have approached this Court with the following prayer :-

(i) to quash and set aside circular No.3/94 issued by

Department of Stamps Govt. of Rajasthan providing for valuation of apartments and multistoried buildings by applying a multiple 3.6 to the market value of the land used in common areas and facilities.

(ii) to declare illegal and unconstitutional the Rule 59-B of

Rajasthan Stamps Rules,1999.

(iii) to quash and set aside the report of District Level

Committee in so far as it relates to valuation of the lands located in Banipark Jaipur.

(iv) to quash and set aside the judgment dated May 6, 1999 passed by Additional Collector Stamps Jaipur. 3. For the convenience the facts of writ petition No. 5165/1999 are taken for consideration. The petitioner offered the builder and developer Smt.Santosh Chaudhary to purchase undivided 1/3 portion of basement bearing No.B-2, Vrindavan Apartments D-2 Meera Marg Banipark

Jaipur in all admeasuring 3400 sq.ft. (super built-up) 1/3 being equivalent to 433.33 sq.ft. and the builder agreed to sell the same for a sum of

Rs.1,13,333.33. The petitioner paid the whole amount of consideration to the builder and developer and a sale deed was executed in favour of petitioner on December 1, 1997. The sale deed was presented before Sub Registrar-II

Jaipur for registration of the same. The Sub Registrar impounded the sale deed and forwarded it under section 47 A(i) of Stamps Act to Additional

Collector Stamps stating that the value of the subject property should be made as per the rates prescribed by the District Level Committee. The

Additional Collector Stamps registered the case and issued notice to petitioner under section 47-A(i) of Rajasthan Stamps (Adaptation) Act,1952

(for short `1952 Act') read with Rule 66 of Rajasthan Stamps Rules,1955

(for short `Rules'). The petitioner submitted reply to notice and stated that he purchased only a skeleton (unfinished) property thereafter the construction was raised. The current market value of the property was not more than the rate disclosed in the sale deed. The petitioner paid the whole amount through cheques. The subject property was located in basement area, therefore no independent value of land or any part thereof could be deemed. The premises was being used as a office of lawyer, therefore it could not be deemed to be commercial/ semi commercial premises. However the Additional Collector Stamps impounded the sale deed and vide order dated may 6, 1999 assessed the value of the property at Rs.5,38,650/- and ordered the petitioner to pay deficient stamp duty of Rs.47,065/-, deficient registration fee Rs.4,252/- and penalty Rs.483/- totaling Rs.51,680/-. 4. In writ petition No.5164/99 undivided 1/3 portion of basement admeasuring 3400 sq.ft. (super built-up) 1/3 being equivalent to 866.67 sq.ft. was purchased for a sum of Rs.2,66,666.67. However the Additional

Collector Stamps assessed the value of the property at Rs.10,76,664/- and ordered the petitioner to pay deficient stamp duty of Rs.94,064/-, deficient registration fee Rs.8,497/- and penalty Rs.436/- totaling Rs.1,03,600/-. 5. In writ petition No.5163/99 undivided 1/3 portion of basement admeasuring 3400 sq.ft. (super built-up) 1/3 being equivalent to 433.33 sq.ft. was purchased for a sum of Rs.1,13,333.33. However the Additional

Collector Stamps assessed the value of the property at Rs.5,38,650/- and ordered the petitioner to pay deficient stamp duty of Rs.47,065/-, deficient registration fee Rs.4,252/- and penalty Rs.483/- totaling Rs.51,800/-. 6. In writ petition No.5146/99 undivided 1/3 portion of basement admeasuring 3400 sq.ft. (super built-up) 1/3 being equivalent to 866.67 sq.ft. was purchased for a sum of Rs.2,26,666.67. However the Additional

Collector Stamps assessed the value of the property at Rs.10,76,664/- and ordered the petitioner to pay deficient stamp duty of Rs.94,064/-, deficient registration fee Rs.8,497/- and penalty Rs.436/- totaling Rs.1,03,000/-. 7. Learned counsel for petitioner contended that the sale deed was not undervalued. The fair market value is the final value of the property which if sold as actually fetched by a hypothetical seller. The value of immovable properties ordinarily fluctuates with time. Three distinct methods have been conceived and approved for valuing immovable properties namely, comparable sale method, obtain exper opinion and rent capitalization method. The authority has not employed any of the three methods. Only on the basis of DLC rates which were prevalent in the market in December,1997 without undertaking enquiry in a scientific manner assessed the value. Learned counsel further contended that the owner of the property had disclosed the value of the property in income-tax return which could be based for assessing the value of the property and the value cannot be assessed more than as stated in the income tax return. The petitioner submitted the sale deed in absolute conformity with the requirements of Rule 59-A of the Rules. Learned counsel contended that Rule 59-B totally take away the power of determination and seeks to substitute it with the report of

District Level Committee. This rule is ultra vires to section 47-A of the

Stamp act and also hits the basic concept of fairness and reasonableness. 8. The respondents filed reply to the writ petition raising preliminary objections and prayed to dismiss the writ petition. 9. Rule 59 B of the Rules reads as under :

"59B. The market value shall be assessed by the registering Officer, taking into consideration all facts affecting duty, on the basis of the rates recommended by the

District Level Committee as constituted by the Government from time to time or the rates approved by the Registration and Stamps Department from time to time or the highest rate of similar property in Index II, whichever is higher." 10. The Division Bench of this Court in Satyam Properties Vs. State of Rajasthan (2002 WLC Raj. UC 313 ) held that since Rule 59B attempts to over ride the statutory provisions contained in Section 47A(2) of the

Indian Stamp Act,1899, it has to be struck down. It was indicated as under:-

"The rule making power is contained in Section 75 of the

Rajasthan Stamp Act. According to Section 75, the State

Government is authorised to make rules to carry out generally the purposes of the Act. Here in the present case, as per facts noted above, Rule 59B instead of helping in carrying out the purposes of the Act, is trying to control the provisions of the

Act, by curtailing the power of the Collector given to him under the statute. It is settled law that rules framed in pursuance of rule making power given under a statute cannot over ride the statute. In our considered view Rule 59B which tries to over ride the statutory provisions contained in Section 47A(2) of the Act, has to be struck down." 11. Since Rule 59B of the Rules has been struck down the preliminary objection raised and defence sought to be made out by the respondent on the basis of said provisions do not have legs to stand. Upon striking off Rule 59-B, the Collector Stamps is now required to re-determine the market value of the property in question on the basis of proper enquiry carried out in accordance with law after providing fair and reasonable opportunity to the petitioners. 12. In Jawaji Nagnathan Vs. Revenue Divisional Officer (1994)4

SCC 595, the Supreme Court propounded that area wise rate being applied uniformly to various locals for the purpose of levying tax or duty could not be justified. 13. Article 265 of the Constitution of India provides that tax can be levied only under and in accordance with law enacted by competent legislature when the State Legislature in the instant case already made the law, it is not permissible for the State Government to over reach the process of law by issuing an administrative circular laying down the rates mechanically for determining the market value. I find that the premise and presumption on which the impugned circular is based, are manifestly erroneous. The act of the respondents in mechanically adopting and applying the rates laid down in the impugned DLC report for determining the market value is illegal. 14. For these reasons, I allow the writ petitions and quash impugned circular No.3/94. As a consequence of quashing of the circular, the report of District Level Committee and the orders dated May 6, 1999 of the Additional Collector Stamps Jaipur, shall also stand set aside. There shall be no order as to costs.

(Shiv Kumar Sharma),J. arn/


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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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