IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1589 of 2001 (Old No. 29388 of 2000) Jeevan Kumar S/O Late Sri Des Raj and others … Petitioners. Versus Board of Revenue/Chief Controlling Authority and others. … Respondents. Mr. Dinesh Bankoti, Advocate, holding brief of Mr. S.K.Posti, Advocate, learned counsel for the petitioners. Mr. Sudhir Kumar, Brief Holder, learned counsel for the respondent No.1 to 3. Date July 27, 2011. Hon’ble B.S.Verma, J. (Delay Condonation Application No. 7517 of 2011) Heard. By means of this application, the petitioners have prayed for condoning the delay in filing the rejoinder affidavit. Delay in filing the rejoinder affidavit by the petitioners is condoned. The rejoinder affidavit is taken on record. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari for quashing the order dated 19-1-2000(Annexure No. 6 to the petition) passed by the Chief Controlling Revenue Authority, U.P. Allahabad as well as the order dated 27-3-1999 (Annexure No. 4 to the petition) passed by the Collector Stamps/Additional District Magistrate (Finance & Revenue), Dehradun. By the order dated 27-3-1999, the Collector Stamps Dehradun has directed the petitioners to deposit deficit stamp duty amounting to Rs. 2,66,980/- within a period of 15 days. By order dated 19-1-2000, the Chief Controlling Revenue Authority in Stamp Revision No. 96 of 1999-2000 under Section 56 of the Indian Stamps Act dismissed the revision preferred by the petitioners. The petitioners have purchased land measuring 2.36 Acres, which is a part of Snowdon Estate, situated at Hathi Pawn, Mussoorie (Dehradun), for which a sale deed was executed on 22- 7-1993 for a sale consideration of Rs. 80,000/-, which was 2 registered at Sub Registrar’s office Delhi on 8-9-1993. Copy of the sale deed has been annexed by the petitioners as Annexure-1 to the writ petition. When the copy of the sale deed was received in the office of Sub Registrar, Dehradun, the document was referred for adjudication of the stamp duty as per market value by the Sub Registrar under the orders of the Collector. It appears that the sale consideration mentioned in the sale deed is Rs. 80,000/-, therefore, the stamp duty worth Rs. 10,000/- was paid @ 12.5%. It appears that Stamp Case No. 188/98, State Vs. Jeevan Kumar and others was registered before the Collector (Stamps)/Additional District Magistrate (Finance & Revenue) Dehradun under Section 47-A of the Stamps Act on the basis of the report of Sub Registrar Mussoorie. Notices were issued to the petitioners. Earlier order dated 9-1-1996 was passed ex parte, which was subsequently set aside and the petitioners were given liberty to file objection against the notice demanding deficit stamp duty issued to them. In their objection, the petitioners stated that Snowdon Estate is a private forest estate and that proper stamp duty has been paid as per law on the market value of the land and that the property is not assessed by the Municipal Board Mussoorie. Therefore, the stamp duty was paid as per prevailing market rate. Spot inspection report of the Sub Registrar in respect of the property in question was obtained. The Sub Registrar Mussoorie in his report has stated that this property is situate at a distance of 100 Mts. from the road and the Snowdon Estate falls within the notified forest land. It was also stated that outside the land, there existed a cottage and rate of stamp duty fixed by the Collector for the area situated at a distance of 200 Mt. or above from the main road is Rs.1,50,000 to 2,00,000/- per Acre. It appears that the Collector Stamps ignoring the report of the Sub Registrar whereby the stamp duty fixed by the Collector was disclosed and without any other basis determined the market value of the land in question holding the same Abadi, i.e. at the rate of Rs. 200/- per Sq.Mt. and directed the petitioners to pay deficit stamp duty worth Rs. 2,66,980/- vide order dated 27-3-1999. 3 Aggrieved by that order, the petitioners preferred revision before the Chief Controlling Revenue Authority. The revisional authority dismissed the revision vide order dated 19-1- 2000 holding that the purchasers have knowingly purchased the land joint for the residential purpose to save the stamp duty. Aggrieved by the impugned orders, the petitioners have filed the present writ petition. It has been stated in paragraph no. 6 of the writ petition that the land purchased is a private forest estate and was notified area as such in the year 1966 and since it is notified forest area (jungle) and the land is sloppy and hilly area, which cannot be used either for residential or for any commercial purposes and that at the time of sale deed there was no commercial or residential activities thereon. On behalf of the respondents, counter affidavit has been filed and in reply to the contents of para 6 of the writ petition, only this much has been stated that spot inspection was got conducted by the Sub Registrar Mussoorie and that the said property is situated at a distance of 100 Mt. from the main road and comes within notified forest land and a cottage is built up outside the said land. Even in paragraph no. 7 of the counter affidavit, the respondents could not dare say in unequivocal terms that any stamp duty other than the fixed rate of Rs. 1,50,000/- to Rs. 2,00,000/- per acre had been fixed by the Collector for the area in question. The petitioners have filed rejoinder affidavit and have reiterated the averments made in the writ petition. I have pondered over the matter and have perused the averments made in the writ petition, the counter affidavit and the rejoinder affidavit filed by the parties. The petitioners have annexed the copy of the report of the Sub-Registrar as Annexure-3 to the writ petition. The Sub Registrar made spot inspection of the land in question. It has been stated in the report that the land is situated at a distance of 100 Mt. from the road and that the property is notified forest land. The Sub Registrar has specifically stated that the Collector has fixed the Stamp duty for the area situated at a distance of 200 Mts. or above 4 from the Main Road @ Rs. 150,000/- to 2,00,000/- per Acre. There is no construction over this land, but a cottage has been constructed outside the land in dispute. The Sub Registrar has suggested that since the land is situated at a distance of 100 Mt. from the main road, therefore, the stamp duty would be payable at the rate of Rs. 200/- to 300/- per Mt. It is pertinent to mention that it is not disputed by the respondents that the Collector has fixed the stamp duty @ Rs. 1,50,000 to 2,00,000/- per acre as discussed above. There is no mention in the report of the Sub Registrar that the Collector had fixed the stamp duty for that area at the rate of Rs. 200/- to Rs. 300/- per Sq.Mt., therefore, the inference drawn by the Sub Registrar in his report that the stamp duty would be payable at the rate of Rs. 200/- to Rs. 300/- per Sq.Mt. is arbitrary and untenable in the eye of law. It does not stand to reason as to on what basis the Collector (Stamps) has determined the stamp duty for the land in dispute, which is payable for Abadi. Both the authorities below have not pointed out in their orders as to what rate has been fixed for the land other than Abadi or commercial purposes. If there is no rate fixed, the rate of stamp duty applicable to adjoining land would be the appropriate rate of stamp duty. From the record, it is clearly borne out that the rate fixed for the adjoining area was Rs. 1,50,000/- to Rs. 2,00,000/- per acre for the place situated at a distance of 200 Mt. or above from the main road. Moreover, in his objection the petitioner Jeevan Kumar has clearly stated that the land is a jungle and sloppy hilly land and it cannot be used for any residential or commercial purpose, but the learned Collector (Stamps) and the revisional Court have not given any reason to discard the objections filed by the petitioner Jeevan Kumar. It also finds place to mention here that had the rate of stamp duty fixed by the Collector been different from the rate of Rs. 1,50,000/- to Rs. 2,00,000/- per Acre, the Sub Registrar ought not to have stated that the stamp duty fixed by the Collector for the adjoining area is Rs. 1,50,000/- to Rs. 2,00,000/- per acre and there was no need to make a mention of that rate in his report. It is thus clear that the stamp 5 duty for the area in question at the time of sale-deed was Rs. 1,50,000/- to Rs. 2,00,000/- per acre. In view of above, the petitioners were under obligation to pay the stamp duty at least @ of Rs. 2,00,000/- per Acre. By a perusal of the copy of the sale-deed, it reveals that the stamp duty was not paid by the petitioners as has been fixed by the Collector. The sale deed was executed for a sale consideration of Rs. 80,000/-. Therefore, if the market rate of the land in question is calculated @ Rs. 2,00,000/- per Acre, the total market value of 2.36 acre land comes to Rs. 4,72,000/-. On this amount, the stamp duty payable @ 14.5% comes to Rs. 68,440/-, but the petitioners have only paid stamp duty worth Rs. 10,000/- at the time when the sale deed was executed and was registered. Thus, the Collector Stamps and the revisional Authority both have committed an error of law in not considering this fact that there is no Abadi or any commercial activities was found on the land in dispute, as has been stated by the Sub Registrar in his report. The petitioners are liable to pay the deficit stamp duty as reckoned above. For the reasons and discussion above, I am of the view that the writ petition deserves to be partly allowed and the impugned orders passed by the Collector Stamps as well as the Revisional Court are liable to be modified to the above extent. The writ petition is partly allowed. It is directed that the petitioners shall pay the deficit stamp duty to Collector Stamps/Additional District Magistrate (Finance & Revenue) Dehradun, as mentioned above within a period of two months from today. The impugned orders passed by the two authorities below stand modified to the above extent. All pending applications stand disposed of. (B.S.Verma, J.) RCP