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TMI Blog2022 (1) TMI 1481X X X X Extracts X X X X X X X X Extracts X X X X ..... i-Khurd, from one Gangaram and others vide a registered sale deed dated 05.04.2000, for a sum of Rs.35,000/-. When the said sale deed was presented for registration before the respondent No.3-Sub Registrar, Tinwari, Jodhpur, the market value of the said land was determined as Rs.43,050/- and the stamp duty and registration charges were determined accordingly, which were duly paid by the petitioner. 4. The petitioner-Firm thereafter got the aforementioned agricultural land in question converted for the purpose of industrial use after making payment of the requisite charges. Thereafter, upon completion of all the formalities, the Sub Divisional Officer, Phalodi issued a conversion order dated 24.10.2000, whereby the land in question was duly converted for industrial purposes. 5. Upon such conversion, the petitioner established a unit for manufacturing stone chips, mining and mineral, and also installed stone crusher on the land in question. 6. However, thereafter, it was informed by the respondent No.3 to the petitioner that there is a certain amount remained outstanding towards payment of the stamp duty of the said land in question. 7. Thereafter, the Senior Accountant of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andon and Ors. (2012) 5 SCC 566, relevant portion of which reads as under: "We have already held that it is the grievance of the Respondents that the orders were passed by the Additional Collector on a public holiday. Regarding the merits though the Collector, Lucknow made a surprise site inspection, there is no record to show that all the details such as measurement, extent, boundaries were noted in the presence of the Respondents who purchased the property. . . . . . It is also demonstrated that at the time of execution of the sale deed, the house in question was used for residential purpose and it is asserted that the stamp duty was paid based on the position and user of the building on the date of the purchase. The impugned order of the High Court shows that it was not seriously disputed about the nature and user of the building, namely, residential purpose on the date of the purchase. Merely because the property is being used for commercial purpose at the later point of time may not be a relevant criterion for assessing the value for the purpose of stamp duty. The nature of user is relatable to the date of purchase and it is relevant for the purpose of calculation of stamp d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in view the intended use of the property by the beneficiary of the instrument. It has come on record that the property in question was an agriculture land at the time of execution of the sale deed and the registration thereof and therefore, the stamp duty and registration charges having been paid by the petitioner as determined by the Sub Registrar, Sirohi, there was no occasion for the Senior Account Officer, Registration & Stamp to make a reference to the Collector (Stamp) under Section 47A of the Act. As a matter of fact, even subsequent conversion of the land for non agricultural use, cannot be made basis for levy of the stamp duty and registration charges, presuming that the land was intended to be used for residential/commercial purpose at the time of registration." 13. Learned counsel for the petitioner further relied upon the judgment rendered by this Court in Shankar Lal and Ors. Vs. Sri Niwas and Ors. S.B. Civil Writ Petition 3007 of 2010, decided on 15.05.2019, wherein it was observed as under: "32. This Court also finds that had the defendants/petitioners chosen to act in time, then of course, as per the precedent law, they would have a right to get the value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred upon the Income-tax Officer in aid of enforcement of a right ... The High Court was, in our judgment, in error in assuming that exercise of the power was discretionary and the Income - tax Officer could, even if the conditions for its exercise were shown to exist, decline to exercise the power." 15. Learned counsel for the petitioner further submits that the land in question was purchased in April 2000 and converted to be used for industrial purposes in October 2000, and in doing so, all the necessary disclosures were made to the concerned authorities and no fact was concealed, and that the entire procedure was carried out strictly in accordance with the law. 16. Learned counsel for the petitioner further submits that as regards the present controversy, the Hon'ble Courts have clarified the position to the effect that for the purposes of valuation and levy of stamp duty pertaining to an immovable property or land, the nature of the property, as on date of execution of the relevant deed, would be the decisive factor to be taken into account by the concerned authorities for the purpose of imposition of the stamp duty, in an appropriate manner. 17. Learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct . . . . In State of U.P. Vs. UP Rajya Khanij Vikas Nigam Sangarsh Samiti and others (2008) 12 SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: "38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the immovable property by the Registering Officer.-- [(1) In the case of an instrument relating to immovable property, the market value of such property shall be assessed as under namely :- (a) in case of agriculture, residential and commercial categories of land, on the basis of the rates recommended by the District Level Committee constituted under clause (b) of sub-rule (1) of rule 2: Provided that Inspector General of Stamps may revise the rates of agriculture, residential or commercial land determined by District Level Committee with prior approval of the State Government by notification published in the Official Gazette, if circumstances so require; (b) in case of other categories of land, on the basis of the rates determined by Inspector General of Stamps with approval of State Government or determined by State Government by notification published in the Official Gazette; (c) in case of constructed portion, on the basis of the rates determined by State Government; (d) in case of proportionate land under the multistoried buildings on the basis of criteria specified by the State Government: (e) while assessing market value, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the District Level Committee and the rates approved by the Inspector General of stamps. (ii) Call for any information or record from any public office, officer or authority under the Government or the Local Authority. (iii) Examine and record statement of any member of the public, officer or authority under the Government or the Local Authority. (iv) Inspect the property after due notice to the parties concerned. (5) The Collector shall- i. After considering the objection and representation received in writing from the person to whom notice under sub-rule (1) & (2) has been issued; ii. After examining the records produced before him; iii. after a careful consideration of all the relevant factors and evidence placed before him, and iv. after consideration the corresponding rates as recommended by the District Level Committee and the rates approved by the Inspector General of Stamps; Pass an order determining the market value of the property and duty payable on the instrument and take steps to collect the difference in the amount of stamp duty alongwith penalty, if any. (6) ... (7) ... Learned counsel further referred to Section 47A of the Act of 1952, which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market value and the amount of stamp duty [xx] together with the penalty not exceeding ten times the deficient stamp duty chargeable on it, which shall be payable by the person liable to pay the stamp duty [xx] and penalty." Learned counsel also referred to Rule 59 (B) of the Rules of 1955, which reads as follows: "59-B. Procedure for assessment of the market value of the property by the Registering Officer.- (1) In the case of an instrument relating to immovable property, the market value of land shall be asessed by the Registering Officer on the basis of the rates recommended by the District Level Committee constituted under rule 20) from time to time or the rates approved by the Inspector General of Stamps from time to time, whichever is higher and market value of the constructed portion shall be assessed on the basis of the rates deter mined by the State Government from time to time. (2) If the rates of land recommended by the District Level Committee are not revised within one year from the date of such recommendation or if the market value of land in any àrea has extra ordinarily increased on decreased, the State Government may suo-motu or on a reference made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined by the District Level Committee." 24. Learned counsel for the respondents further submits that the intention behind the purchasing of a parcel of the land in question must be considered, while determining the appropriate stamp duty and levy thereof. 25. In support of his submissions, learned counsel for the respondents relied upon the judgment rendered by the Hon'ble Allahabad High Court in Pushpa Sareen Vs. State of U.P. 2015(2) MWN (Civil) 129, wherein, the Hon'ble Full Bench, on the issue, "Whether the Collector Stamps has power to fix the valuation of a plot on the assumption that the same is likely to be used for commercial purposes, and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector", observed as under: - "19. Now insofar as the second question is concerned, the issue posed for consideration before the Court is whether the Collector has the power to fix the valuation of a plot on the assumption that it is likely to be used for commercial purposes and whether the presumed future prospective use of the land can be a criterion for valuation by the Collector. The Collector, while exercising his jurisdiction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 ... 27. The fact that the land was put to a particular use, say for instance a commercial purpose at a later point in time, may not be a relevant criterion for deciding the value for the purpose of stamp duty, as held by the Supreme Court in State of U.P. and others v. Ambush Tandon and another, (2012) 5 SCC 566. This is because the nature of the user is relatable to the date of purchase which is relevant for the purpose of computing the stamp duty. Where, however, the potential of the land can be assessed on the date of the execution of the instrument itself, that is clearly a circumstance which is relevant and germane to the determination of the true market value. At the same time, the exercise before the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination without giving reasonable opportunity of hearing to the effected parties, and it is apparent from the order-sheets of the proceedings in question, having been placed on record, that no notice was ordered to be issued by the Collector before taking the impugned action against the petitioner, so as to enable the petitioner to put forth its stand, thereby violating the principles of natural justice. 28. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited above. 29. With regard to the preliminary objection regarding the maintainability of the present petition, as raised by the learned counsel for the respondents, this Court observes the following: (a) The present petition is brought before this Court under its extraordinary writ jurisdiction under Article 226 of the Constitution of India, and while in Genpact (supra) the Hon'ble Apex Court, referring to UP Rajya Khanij (supra) has observed that a petition brought before a High Court under Article 226 of the Constitution of India may be dismissed in light of availability of an effective and alternative remedy, and non-dismissal of such petition merely on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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