Neutral Citation No. - 2025:AHC-LKO:3954 Court No. - 19 Case :- WRIT - C No. - 1005538 of 2010 Petitioner :- Himanshu Kumar Shukla Respondent :- State Of U.P. Thru Secy. Revenue And Others Counsel for Petitioner :- Anil Kumar Mishra,Ram Sewak Tripathi Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J. 1. Heard Mr. R.S. Tripathi, learned counsel for petitioner and learned State Counsel for opposite parties. 2. Petition has been filed challenging order dated 25.07.2008 passed under Section 33/47-A of the Indian Stamp Act whereby deficiency in stamp duty has been noticed and penalty with interest thereupon have been imposed upon petitioner. Also under challenge is the revisional order dated 09.07.2010 whereby revision preferred by petitioner has been rejected. 3. It has been submitted that order passed by the prescribed authority under Section 33/47-A of the Act is based completely on inspection reports dated 17.08.2007 and 09.04.2008 and also on the alleged admission of petitioner recorded therein that at the time of execution of sale deed in question on 07.02.2007, constructions as indicated therein existed over the plot in question, being Gata No. 228 in the village concerned, of which petitioner has purchased half portion by means of said sale deed dated 07.02.2007. 4. It is submitted that objections against the aforesaid inspection reports were filed by petitioner with such ground also being taken before the revisional authority but the said objections have not been dealt with at all by either of the authorities and on the contrary, alleged construction over the plot in question at the time of execution of sale deed on 07.02.2007 have been assumed only on the basis of inspection reports. 5. It is submitted that once such an objection had been raised, it was incumbent upon authorities concerned to have dealt with the objections raised by petitioner and to have recorded a specific finding on the basis of evidence that the constructions on the basis of which deficient stamp duty has been imposed were in fact present at the time of execution of the sale deed. It is submitted that such a procedure having not been followed, vitiates the impugned orders. 6. It is also submitted that the exemplar relied upon by authorities also would be inapplicable since the said exemplars pertain to execution of sale deed subsequent to sale deed dated 07.02.2007. 7. Learned counsel has placed reliance on the following judgments rendered in the case of Pushpa Sareen v. State of U.P. and others reported in 2015(33) LCD 1575, State of U.P. and others versus Ambrish Tandon and another reported in (2012) 5 SCC 566, Ratna Shanker Dwivedi versus State of U.P. and others reported in 2012 (116) RD 17, Ram Achhaibar versus State of U.P. and others reported in 2014 (3) ALJ 689 and Hari Mohammad versus Additional Commissioner, Stamp Gorakhpur reported in AIR 2020 (NOC) 963 (ALL.). 8. Learned State Counsel appearing on behalf of opposite parties has refuted submissions advanced by learned counsel for petitioner with the submission that the aspect of construction has been considered by both the authorities on the basis of admission which has been made by petitioner at the time of spot inspection and as recorded in the inspection reports themselves. It is also submitted that the plot in question has been rightly assessed as a commercial plot in view of the fact that after purchase of the said plots by petitioner on 07.02.2007, a subsequent sale deed has been executed by petitioner himself merely six days thereafter on 13.02.2007 indicating the plot in question to be commercial in nature. 9. Learned State Counsel has placed reliance on judgment rendered by Full Bench of this Court in the case of Pushpa Sareen (supra) to submit that as on the date of execution of sale deed, exemplars can be resorted to indicate future potential use of the plot in question. 10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that twin questions arise for determination of the dispute; (i) Whether the exemplar relied upon by the authorities was applied in its correct perspective pertaining to future commercial use of the property? (ii) Whether the aspect of alleged construction present on the plot in question as on the date of execution of sale deed dated 07.02.2007 is not based on any evidence? 11. So far as first question is concerned, it is evident that for determination of the question whether the property was required to be valued as a commercial property or not, the authorities have placed reliance on the subsequent sale deed dated 13.02.2007 executed by petitioner themselves. 12. Although the aforesaid sale deed dated 13.02.2007 are not on record but learned counsel for petitioner has brought on record appellate orders pertaining to the aforesaid sale deed pertaining to the same Gata No. 228 as annexure RA-1 to RA-4 with the rejoinder affidavit. The aforesaid orders have been passed under Section 56 of the Act dated 31.03.2010. Paragraph 4 of the aforesaid orders on which reliance has been placed by learned counsel for petitioner clearly indicates the admitted fact that on 13.02.2007, petitioner has executed a sale deed pertaining to the same Gata No.228 indicating it to be a commercial property. 13. It is relevant that the aforesaid sale deed has been executed merely six days after purchase of the plot in question on 07.02.2007 itself. 14. Learned counsel for petitioner has relied upon judgment rendered by Hon'ble Supreme Court in the case of Ambrish Tandan (supra) to submit that the aspect of valuation of a property and the nature of its user is required to be seen as on the date of execution of sale deed and the aspect that it may be used for commercial purpose at a later point of time would not be a relevant criterion for assessing value for purposes of stamp duty. 15. He has also adverted to judgments in the case of Ratna Shanker Dwivedi (supra) and Ram Achhaibar (supra) to submit that even otherwise once admittedly the change of user of the plot in question has not been accorded approval under Section 143 of the Zamindari Abolition and Land Reforms Act, the user of plot in question would be deemed to be agricultural and not commercial even if the property is being used otherwise. 16. The aforesaid judgments have been considered by Full Bench of this Court in the case of Pushpa Sareen (supra) and it has been held as follows:- "27. The true test for determination by the Collector is the market value of the property on the date of the instrument because, under the provisions of the Act, every instrument is required to be stamped before or at the time of execution. In making that determination, the Collector has to be mindful of the fact that the market value of the property may vary from location to location and is dependent upon a large number of circumstances having a bearing on the comparative advantages or disadvantages of the land as well as the use to which the land can be put on the date of the execution of the instrument." "28. Undoubtedly, the Collector is not permitted to launch upon a speculative inquiry about the prospective use to which a land may be put to use at an uncertain future date. The market value of the property has to be determined with reference to the use to which the land is capable reasonably of being put to immediately or in the proximate future. The possibility of the land becoming available in the immediate or near future for better use and enjoyment reflects upon the potentiality of the land. This potential has to be assessed with reference to the date of the execution of the instrument. In other words, the power of the Collector cannot be unduly circumscribed by ruling out the potential to which the land can be advantageously deployed at the time of the execution of the instrument or a period reasonably proximate thereto. Again the use to which land in the area had been put is a material consideration. If the land surrounding the property in question has been put to commercial use, it would be improper to hold that this is a circumstance which should not weigh with the Collector as a factor, which influences the market value of the land." 17. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that Full Bench after consideration of the judgment rendered by Hon'ble Supreme Court in the case of Ambrish Tandan (supra) has held that although the user of property subsequent to execution of the sale deed would not be a relevant criteria but the potential value of a property even as on the date of execution of the sale deed is a factor which is relevant and has to be adjudicated upon on the basis of exemplars. 18. In the present case, it is discernible from the impugned orders that the plot in question has been deemed to be a commercial property on the basis of potential value as on the date of execution of sale deed dated 07.02.2007 particularly in view of the fact that the aforesaid property has been subsequently sold merely six days thereafter on 13.02.2007 by petitioner himself indicating the plot to be commercial in nature. 19. In view of such a finding of fact recorded by authorities, it is quite evident that there is no error with regard to such finding being recorded since potential use of the plot in question in terms of potentiality of the plot as on the date of execution of the sale deed dated 07.02.2007 has been seen and adjudicated upon on that basis relied upon exemplar. 20. So far as the second question is concerned, it is evident from a perusal of the order passed under Section 33/47-A of the Act that deficient stamp duty has been imposed on the basis of inspection reports indicating an admission of petitioner with regard to construction allegedly present on the plot in question as on the date of execution of the sale deed. 21. It is also evident that against the said inspection reports, objections were filed by petitioner with such a plea also being taken before revisional authority that there was no such admission made by petitioner at the time of inspection. 22. A perusal of orders impugned, however, indicate that despite such an objection being raised, the same has not been addressed at all and the authorities have again placed reliance on the same reports to determine that constructions existed on the plot in question as on the date of execution of sale deed dated 07.02.2007. 23. A Co-ordinate Bench of this Court in the case of Hari Mohammad (supra) has clearly held that a finding with regard to existence of construction on the site as on the date of execution of sale deed is required to be returned by the authority concerned on the basis of evidence on record and it is a bounden duty of such an authority to address the issue on the basis of evidence, failing which the order would be vitiated. 24. This Court is in respectful agreement with the of enunciation of law as indicated in the case of Hari Mohammad (supra). 25. Upon applicability of aforesaid judgment in the present facts and circumstances, it is evident that despite such objections being raised by petitioner, they have neither been dealt with nor any independent finding has been recorded by the authorities to substantiate that constructions existed on the plot in question as on the date of execution of sale deed on 07.02.2007. The finding recorded with regard to constructions, therefore, are clearly vitiated. 26. In view of discussion made hereinabove and with question no.2 being found in favour of petitioner, the impugned orders dated 25.07.2008 and 09.07.2010 are hereby quashed by issuance of a writ in the nature of certiorari to the extent with regard to recording of finding pertaining to constructions existing on the plot in question as on 07.02.2007. 27. The matter is remitted to the authority concerned for assessing the market value in view of finding recorded in answer to question no.1. 28. Resultantly, the petition succeeds partly to the aforesaid extent and is allowed to that extent. Parties to bear their own cost. Order Date :- 21.1.2025 Satish Digitally signed by :- SATISH KUMAR BHARATI High Court of Judicature at Allahabad, Lucknow Bench