IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 948 of 2009 Surya Narayan S/O Late Bhanu Pratap, R/O Mohalla Patelnagar, Tahsil Kashipur, District Udham Singh Nagar. … Petitioner. Versus 1. Additional Chief Revenue Commissioner, Circuit Court Uttarakhand, Nainital. 2. Additional District Magistrate (Revenue), District Udham Singh Nagar. … Respondents. Mr. B.C.Bhatt, Advocate, holding brief of Mrs. Indu Sharma, Advocate, learned counsel for the petitioner. Mr. Sudhir Kumar, Brief Holder, learned counsel for the respondents. Date April 05, 2011. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned orders dated 29-1-2009 and 22-5-2009 passed by the respondent nos. 2 and 1 respectively (Annexure Nos. 5 and 7 respectively to the writ petition). Brief facts giving rise to the present writ petition are that on the report of Sub Registrar Kashipur dated 30-3-2007, proceedings under Sections 33/38 of the Stamp Act were initiated against the petitioner and Stamp Case No. 52/08 of 2006-07 was registered before the Additional District Magistrate (Finance and Revenue) Udham Singh Nagar. Sub Registrar Kashipur has reported that a sale deed in favour of the petitioner was executed pertaining to sale of plot no. 97/654 M. area 0.138 hectare within the limits of Nagar Palika Kashipur. The said land was valued at Rs. 10,00,000/- showing it agricultural land and stamp duty worth Rs. 80,000/- was paid. The land is recorded as Abadi and the valuation of the land as agricultural land is suspicious and spot inspection is necessary. 2 Notice was issued to the petitioner and report of Tehsildar Kashipur was obtained after getting the spot inspection of the land in question. The petitioner filed his objection. It appears that the spot inspection was made by Naib Tehsildar, who reported that the area of the land in question is 0.138 hectare and there is no construction on the land. The land is for agricultural purpose and vegetable is grown there. The land is situate within the municipal limits and adjoining to Kashipur- Ramnagar motor road. The Naib Tehsildar also reported that the valuation of the land in question as per circle rates fixed by the Collector comes to Rs. 13,80,000/-. The learned Additional District Magistrate after hearing both the parties ignoring the report of Naib Tehsildar has concluded that the land in question is Abadi land and accordingly, he valued the same at Rs. 1,15,92,000/- and held that stamp duty worth Rs. 11,59,200/- was payable while stamp duty of Rs. 80,000/- had been paid. The Additional District Magistrate also held that there was deficiency of stamp duty worth Rs. 10,79,200/-. He imposed interest @ Rs. 2/- per mensem for 22 months amounting to Rs. 4,74,848/- and directed the petitioner to deposit the said amount within a period of 15 days vide order dated 29-1- 2009. Aggrieved by the said order, the petitioner preferred revision before the Additional Chief Revenue Commissioner, Circuit Court, Uttarakhand, Nainital, which was registered as Stamp Revision No. 2 of 2009. The revisional authority also did not find favour with the petitioner and dismissed the revision hodling that in the Khasra, the land in question is recorded Abadi and consequently, the revision was dismissed by order dated 22-5- 2009. This writ petition has been filed mainly on the ground that the Lekhpal has wrongly mentioned the entire land of Khasra no. 97/654 as Abadi and that the report of Naib Tehsildar has been ignored by the courts below without any basis as well as that the 3 land in question is an agricultural holding and its valuation has to be assessed in respect of agricultural land and not Abadi land. Counter affidavit has been filed on behalf of the respondents wherein the averments made in the memo of petition are denied. Along with the counter affidavit, copy of Khasra has been annexed to show that the land in question is Abadi. On behalf of the petitioner, rejoinder affidavit has been filed and in the rejoinder affidavit, the averments made in the memo of petition have been reiterated. It is stated that the Naib Tehsildar in his report dated 8-7-2008 has specifically mentioned that the land in question is agricultural land, hence stamp duty was payable as on the agricultural land and not on Abadi. In the case at hand, the Naib Tehsildar Kashipur appears to have made spot inspection in compliance of the order of the Additional District Magistrate concerned and has submitted his report on as many as 12 points. At point no. 2, it is mentioned that there is no construction on the spot. At point no. 3, it is specifically mentioned that the land on the spot is of agricultural use and the vegetable has been grown thereon. At point no. 11, the Naib Tehsildar has reported that there is no building constructed over the land in question. At point no. 12, the Naib Tehsildar has calculated the valuation of the land in question at Rs. 13,80,000/-. In the impugned order dated29-1-2009 passed by the Additional District Magistrate (Finance & Revenue) Udham Singh Singh, there is mention of the report of Naib Tehsildar, but surprisingly there is no mention as to why he has ignored the report of the Naib Tehsildar whereby the valuation of the land in question was assessed at Rs. 13,80,000/- for purposes of stamp duty treating the land in question agricultural. On the other hand, the Additional District Magistrate has assessed the valuation of the land at Rs. 1,15,92,000/- treating the same as Abadi and has held that stamp duty worth Rs. 11,59,200/- was payable thereon. In the rejoinder affidavit in paragraph no. 6, the following averments have been made by the petitioner:- 4 “6) That the contents of para 4 of the counter affidavit are false misconceived and denied and the contents of para 2 of the writ petition may be reiterated. It is stated that the so far as the location of the property as purchased by the petitioner on 29.3.2007 from Brahmahesh Chandra for Plot No.97/765 M having an area of 0.138 hectares was a property which was conveyed to the petitioner which was exclusively an agricultural holding lying in a revenue village Maheshpura Tahsil Kashipur, as the status of the land then prevailing as agricultural hence the stamp duty payable on the same would be in accordance with its valuation and, thus, the impugned order passed on 22.5.2009 as well as the order dated 22.1.2009 in the proceedings under the Stamp Act were illegal. It is stated that as the stamp duty cannot be levied on the basis of a prospective use of the land, its determination would be on the basis of its actual status prevailing and not otherwise and hence the basis of determination of deficiency and the rational attached to it is illegal.” From a perusal of the entire material available on record, it is evident that the learned Additional District Magistrate (Finance & Revenue) had himself obtained report of Naib Tahsildar after making spot inspection on the land in question and the Naib Tahsildar in turn has submitted his report point-wise, referred to above. In the impugned order, the learned Additional District Magistrate has given no reason why the valuation report of Naib Tahsildar cannot be relied, while he has placed reliance on the entries made in the Khatauni, which was prepared by Lekhpal, who is subordinate to Naib Tahsildar. For the reasons and discussion above, I am of the considered view that the courts below have lost sight of the report submitted by Naib Tahsildar Kashipur after making spot inspection of the land in question. The stamp duty was payable in respect of the land in question treating the same agricultural and not as Abadi, as held by the two courts below. The petitioner has paid stamp duty on the instrument at the valuation of Rs. 10,00,000/- and not on proper valuation of Rs. 13,80,000/-, therefore, the petitioner is 5 liable to pay deficit stamp duty. I find force on the contention of the learned counsel for the petitioner that the stamp duty was payable on the use of the land as on the date of purchase and execution of sale-deed and not on prospective use of the land. Accordingly, the petitioner shall pay deficit stamp duty on 13,80,000/- instead of Rs. 10,00,000/-, as has been paid by him on the instrument. Thus, the deficit stamp duty payable @ 8% on Rs. 3,80,000/- comes to Rs. 30,400/-, which the petitioner is liable to pay. A perusal of the record of the writ petition reveals that in compliance interim order dated 6-7-2009 of this Court, the petitioner had deposited an amount of Rs. 8.00 lacs in the Registry on 16-7-2009. So far as the imposition of penalty as directed by the learned Additional District Magistrate is concerned, taking into consideration the facts and circumstances of the present case as well as the provisions of Section 47-A(4) of the Indian Stamps Act, the ends of justice would be served if the petitioner is directed to pay an amount equal to deficit stamp duty, i.e. Rs. 30,400/-. In my view, in addition to above, as per provisions of sub-section (4-A) of Section 47-A of the said Act, the petitioner shall pay simple interest at the rate of one and half per cent per mensem on the amount of deficit stamp duty, i.e. Rs. 30,400/-. Since an amount of Rs. 8.00 lacs is already in deposit with this Court as on 16-7-2009, it would be in the fitness of things to direct the petitioner to pay simple interest also @ 1,1/2% per mensem on the amount of deficit stamp duty (Rs. 30,400/-) from the date of execution of the instrument (29-3-2007) till the date of deposit made in the Registry of this Court, i.e. 16-7-2009. In view of the discussion above, the writ petition deserves to be partly allowed. The writ petition is partly allowed with no order as to costs. The petitioner is directed to pay deficit stamp duty of Rs. 30,400/- and penalty equal to deficit stamp duty, i.e. Rs. 30,400/- as per provisions of Section 47-A(4) of the Indian Stamps Act 6 together with simple interest @ 1,1/2% per mensem, under Section 47-A(4-A) of the said Act, on the amount of deficit stamp duty (Rs. 30,400/-) from the date of execution of the instrument (29-3-2007) till the date of deposit made in the Registry of this Court, i.e. 16-7- 2009. To that extent, the impugned order dated 29-1-2009 and order dated 22-5-2009 passed by respondent nos. 2 and 1 respectively stand modified. Since an amount of Rs. 8.00 lacs has already been deposited in the Registry of this Court, the Registry is directed to workout the amount of simple interest payable by the petitioner in addition to deficit stamp duty and the amount of penalty, as directed above, and to remit the amount of deficit stamp duty, penalty and simple interest as worked out by the Registry to the Additional District Magistrate (Finance & Revenue) District Udham Singh Nagar and the balance of the amount be refunded to the petitioner. (B.S.Verma, J.) RCP