MANU/UP/1724/2011

IN THE HIGH COURT OF ALLAHABAD

Writ C. No. 2541 of 2008

Decided On: 01.08.2011

Appellants: Vibhor Rungata

Vs.
Respondent: The State of U.P. and Ors.
[Alongwith Writ C Nos. 6430, 6429, 2546, 2544, 2543, 2548 and 2547 of 2008]

Hon'ble Judges/Coram:
Sudhir Agarwal, J.

Case Note:
Civil - Valuation of Property - Section 31 of Indian Stamp Act, 1899 - Deputy
Commissioner Stamp by an order required Petitioner to pay sum amount towards
deficiency of stamp and with penalty as interest on that amount - Hence, this Writ
Petition - Whether, Respondents were justified in determining value of property at
commercial rates instead of residential rates - Held, Respondents distinguishing
determination valuation of property under Section 31 of Act vis a vis case of
Petitioners by treating entire land of 5 acres as one unit but land was actually
transferred in much smaller units - Further, such determination was might not be
wholly binding yet it constituted relevant material - Moreover, it was matter of
common knowledge that size of land constituted relevant factor in determining
market value - Therefore, determination of market value ought to be made by
Collector afresh in accordance with relevant statute and rules - Even though he was
not bound by determination made under Section 31 of Act in respect to another
person but determination having been made taking into consideration all relevant
facts it had persuasive value and could not have been brushed aside entirely - Hence,
Respondents were justified in determining value of property at commercial rates
instead of residential rates - Writ Petition allowed.Civil - Determination of area -
Section 31 of Indian Stamp Act, 1899 - Whether, impugned order passed by
Respondent were vitiated in law - Held, determination under Section 31 of Act as such
would be available to person at whose instance same has been made - Even if land
was same and situated at same place, such determination as such might not be
available to another person but that by itself would not solve problem - Further,
Section 31 of Act provided of instrument which would be referred whether executed
or not and whether previously submitted or not - Moreover, language of letter clearly
showed that Petitioner wanted to purchase entire land i.e. area 5 acres but there was
any instrument or not was not at all mentioned therein - However, it could not be said
that any instrument was placed before authority concerned which contained
stipulations and other relevant aspects set out in instrument relevant for determining
value - Consequently, correctness of order could not be sustained as it had attained
finality - Therefore, said order as such could not be said to be binding or benefit
thereof could not be extended to Petitioners since they were not party to said
application - Writ Petitions disposed of.Ratio Decidendi"Authorities shall be justified
while determining value of property at commercial rates instead of residential rates."

JUDGMENT

Sudhir Agarwal, J.

1. All the writ petitions involve common questions of law and facts and therefore as agreed by
learned Counsel for the parties have been heard together and are being decided by this
common judgement.

2. The writ petition No. 2541 of 2008 has been filed by one Vibhor Rungata Son of Santosh

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Kumar Rungata assailing the orders dated 31st March, 2005 passed by Respondent No. 3
Deputy Commissioner Stamp, Gorakhpur in purported exercise of power under Section 33 and
47-A of Indian Stamp Act, 1899 (hereinafter referred to as "Act") requiring the Petitioner to pay
Rs. 1,08,800/- towards deficiency of stamp and Rs. 10,880/- towards penalty as also interest
on the aforesaid amount.

3. There was a project namely Ram Garh Tal Project. M/s Hotel Clarks Siddharth Branch
Varanasi got a plot No. 1/2 area 5 acres initially on lease, later on converted into free hold. The
Project, it is said, ultimately failed. The land was located at about 110 meters from the main
road. M/s Hotel Clarks intended to alienate the aforesaid property to one Hari Mohan Das
Agrawal, partner M/s A.D. Estate Developer. The said developer made an application under
Section 31 of the Act on 21st November, 2003 for determining the duty chargeable on the
instrument. The Additional District Magistrate (Finance & Revenue), Gorakhpur (hereinafter
referred to as "A.D.M.") obtained report from Tahsildar, Sadar regarding the location of the plot
in question and vide order dated 20th March, 2004 determined amount of stamp duty to Rs. 9.5
lacs on the market value of the property determined as Rs. 95 lacs i.e. Rs. 19 lacs per acre. The
order dated 20th March, 2004 of A.D.M. was challenged by State of U.P. before this Court in
Writ Petition No. 21535 of 2007 but the same was dismissed vide judgment dated 9th May,
2007 and the Court affirmed the order dated 20.3.2004 passed under Section 31 of the Act.
The said deed was executed between the parties accordingly.

4. Later on, a notice was issued on 4th June, 2005 by Deputy Inspector General of Stamp,
Gorakhpur Mandal, Gorakhpur alleging that valuation of the property was much higher and the
duty paid is deficient. The aforesaid notice dated 4th June, 2005 was challenged in Writ Petition
No. 46951 of 2005 by M/s A.D. Estate Developers and this Court vide judgment dated

rd August, 2007 allowed the aforesaid writ petition, quashed the said notice, observing as
under:

In view of the above law laid by the Apex Court and by this Court once the Collector
has determined the value of the property and the stamp duty, it is not open to the
authorities concerned to reopen the case and challenge the same. The Collector
becomes functus officio and provisions of section 33 of the Act have no application.

5. It is worthy to mention that aforesaid M/s A.D. Estate Developers had purchased only 4.07
acre of land though the total area of the plot was 5 acres. The sale deed was executed on 26th
March, 2004. The rest of 0.93 decimal area of the plot 4 was sold by M/s Hotel Clarks through
different sale deeds to several persons namely Smt. Nutan Tyagi and A.K. Tyagi (Writ Petition
No. 2547 of 2008), Dr. Km. Nisha Mishra (Writ Petition No. 2548 of 2008), Shashi Mauli Pandey
(Writ Petition No. 2543 of 2008, the present Petitioner, Sri Anup Kumar Agrawal (Writ Petition
No. 2544 of 2008), Pashupati Nath Gadaia (Writ Petition No. 2546 of 2008) Anil Agrawal (Writ
Petition No. 6429 of 2008) and Kashyap Adit (Writ Petition No. 6430 of 2008). The details i.e.
area of plot, date of sale deed, price on which the instrument was executed, stamp duty paid,
amount of deficient stamp duty, penalty along with interest determined by Respondents and
the dates of impugned orders in all these writ petitions, including the present writ petition are
shown as under:

Writ Area of Date of Price on Stamp Deficit Penalty Date of

Petition plot in sale deed which duty stamp alongwith impugned
No. sq. instrument paid duty interest order
meter is
executed
/08 280.60 26.03.2004 ,00,000/- ,400/- ,200/- ,80,896/- 31.03.05
&
31.10.07
/08 214.57 26.03.2004 ,40,000/- ,400/- ,200/- ,07,744/- 31.03.05
&
31.10.07

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 /08 214.57 26.03.2004 ,25,000/- ,400/- ,200/- ,07,744/- 31.03.05
&
31.10.07
/08 285.775 26.03.2004 ,00,000/- ,800/- ,10,700/- 1.43,357/ 31.03.05
- &
31.10.07
/08 286.35 26.03.2004 ,00,000/- ,000/- ,10,900/- ,43,616/- 31.03.05
&
31.10.07
/08 281.175 26.03.2004 ,00,000/- ,400/- ,09,000/- ,41,155/- 31.03.05
&
31.10.07
/08 284.337 26.03.2004 ,90,000/- ,400/- ,10,100/- ,42,580/- 31.03.05
&
31.10.07
/08 285.775 26.03.2004 ,00,000/- ,800/- ,10,700/- ,43,357/- 31.03.05
&
31.10.07

6. All these Petitioners paid stamp duty on the basis of determination made under Section 31 of
the Act on the application filed by another purchaser M/S A.D. Estate Developers. Moreover, the
land was purchased by all these Petitioners for residential purposes and thus the stamp duty
was paid on residential rates. The Assistant Registrar, however referred the matter under
Section 47A/33 of the Act to the Respondent No. 3. The Respondent No. 3 held that the
determination made under Section 31 of the Act vis a vis M/s

A.D. Estate Developers cannot applied as such to the case of the Petitioners. The land was in
commercial area and therefore is liable to be determined on the basis of the value of
commercial property in the said area. He, therefore, enhanced the value by 25% and
determined the stamp duty payable accordingly.

7. Sri A.P. Tiwari, learned Counsel appearing for all these Petitioners contended that once
stamp duty payable in respect to the land constituting a single plot was already determined
under Section 31 of Act, it was not open to the Respondents to treat the property in question
differently when the Petitioners have clearly stated that the land is being purchased for
residential purposes. The determination of Stamp duty, treating the land in question as
commercial land, is illegal and arbitrary. He submitted that in the proceedings under Section 31
of the Act though these Petitioners were not party but the property being same, a different
treatment cannot be met the Petitioners when the same property was valued in one matter
differently and the said determination has attained finality.

8. A supplementary affidavit has also been filed by the Petitioner in writ petition No. 2541 of
2008 annexing a copy of the application dated 21.11.2008 filed by Hari Mohan Das Agrawal
under Section 31 of the Act requesting the Collector Gorakhpur to give his opinion about the
Stamp duty payable on the instrument for purchase of plot No. 1/2, area 5 acres and giving the
boundary of the said property. Sri Tiwari also contended that determination obtained from
Collector under Section 31 of the Act was in respect to the entire area and not for a smaller
part thereof. Therefore the determination made for the entire area cannot be altered or
changed merely because the property in question has been sold to more than one person with
smaller area.

9. A counter affidavit has been filed on behalf of the Respondents sworn by Sri G.K. Srivastava,
Deputy Commissioner, (Stamp) posted in Headquarter, Allahabad. It is stated that the sale
deeds executed in favour of the Petitioners were referred under Section 33/47-A of the Act
alleging that true stamp duty was not paid. The property situated in Mohalla Bilandpur (Ram
Garh Tal Pariyojna) and was commercial. It was allotted to Hotel Clarks, Varanasi by Gorakhpur
Development Authority. The said Hotel later on sold the property to the Petitioners. The

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Petitioners ought to have applied the rate of Rs. 6,875/- per sq. mtr. prescribed for the said
property. The property situated near the Circuit house. The Respondents have not made any
other change except that the determination was made by the Collector treating the property
residential but noticing the fact that it was a commercial, the rates applicable to commercial
land in the said area have been applied by means of the impugned order, therefore, no
interference is called for.

10. In my view, only two questions need be answered in all these matters emanating from the
rival submissions are:

1. Whether determination under Section 31 of the Act would be

extendable/applicable in its entirety to the Petitioners.

2. Whether Respondents were justified in determining the value of the property at

commercial rates instead of residential rates.

11. I take up the second issue as first. The Respondents in para of the counter affidavit have
said that the property is situated in Civil Lines near Circuit house. This itself is sufficient to
prove commercial potentiality of the property. The whole area was commercial. The
agricultural/residential activities in the said area, as claimed by the Petitioners, is therefore
irrelevant. From the application submitted by Sri Hari Mohan Das Agrawal there is no doubt that
he wanted opinion of Collector under Section 31 of the Act in respect to the entire area of the
plot No. 1/2 stating that in the master plan of Gorakhpur Development Authority the land use
mentioned of the said plot is "local park". The land is situated away 110 Mts. from the main
road but the sub road is about 10 ft. below. The land is agricultural but he wanted to purchase
it for residential purpose. He gave boundary of the plot constituting a single unit as under:

East: Undeveloped land of others

West: Land of M/s Lotus Trans Travels Ltd.

North: Sub road

Sought: Land of others.

12. It is in this context, the determination was made under Section 31 by the A.D.M. vide order
dated 20th March, 2004 expressing his opinion that the market value of the land would be 19
lacs per acre. The location of the land, the nearby other places of importance reflecting on the
value of the property were taken into consideration by A.D.M. while determining value of Rs. 19
lacs per acre, as is evident from order dated 20.3.2004, a copy whereof is on record as
Annexure No. 1 to the writ petition.

13. Whether valuation was determined treating the land in question as residential or
commercial is not clear. In fact in the application dated 21.11.2003, Sri Hari Mohan Das
Agrawal did not disclose any specific purpose for which he intended to purchase the land but he
mentioned the state of affairs vis a vis the land in question existing on that date namely its land
use under Gorakhpur Master Plan is "local park" and the land is agricultural. The A.D.M. in its
order dated 20th March, 2004 clearly mentioned that the plot No. 1/2 Village Bilandpur, Tappa
and Pargana Haveli, Tahsil Sadar measuring 5 acres (20,241.69 Sq.m.) was leased out to M/s
Hotel Clarks and was subsequently made free hold. Its mutation was not given effect to in
revenue records and therefore land use or change of land use as such did not appear to have
been mentioned in revenue records. Tahsildar in his report dated 19th February, 2004 assessed
value of the land in question measuring more than 0.45 decimal at Rs. 15 lacs per acre since
most of the plots at the site were owned by Development Authority and since property is
situated on the mattress road connecting National Highway (Pedleganj) and Circuit house,
hence it was a valuable property. The A.D.M. opined value at Rs. 19 lacs per acre instead of 15
lacs. The said value was approved by Collector under Section 31 on the 9 application made by
Sri Hari Mohan Das Agrawal.

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14. In the appellate order it has been mentioned by Appellate authority that in 1989, land was
allotted and leased to M/s Hotel Clarks for constructing a Five Star Hotel on the said plot.
Obviously, the purpose for which the land was given to M/s Hotel Clarks in 1989 was
'commercial'. The land could not be used for the said purpose and Hotel was not constructed is
not material since it cannot be said that after thirteen years the status and value of the land
would have diminished or altered negatively. But simultaneously it is also evident that on 31st
October, 2002 M/s Hotel Clark was permitted to transfer land for commercial and residential
purposes both. It is furtherance thereto the land in question has been transferred by sale to
these Petitioners and Sri Hari Mohan Das Agrawal and Shobhit Agrawal of A.D. Developers by
M/s Hotel Clarks.

15. Once the appellate authority admits that M/s Hotel Clarks was permitted to transfer the
land in question for residential as well as commercial purposes, this Court find it difficult to
accept that valuation of the land shall be made only on commercial rates and not otherwise.
Moreover, the valuation of the property is not to be made automatically and in a mechanical
manner on the basis of only one or two considerations but it is an assessment made after a
cumulative and consolidated exercise arrived at by considering several relevant factors. How
valuation of the property will be determined to find out whether there is any deficiency in stamp
duty or not under Section 47-A of the Act, statutory rules have been framed in 1997 namely
U.P. Stamp (Valuation of Property) Rules, 1997 (hereinafter referred to as "1997 Rules"). One
or two facts by themselves will not 10 make it conclusive as to whether the property has been
valued correctly or not. The power in the case in hand has been exercised under Section 47-A
of the Act, the condition precedent in order to determine value is that the registering authority
must have reason to believe that the market value of the property subject matter of the
instrument has not been truly set forth in the instrument. When the reference is made by the
Sub-Registrar to the Collector under sub-section 2, the Collector has to determine the market
value of the property which is subject of the instrument. In order to determine market value,
the Collector is bound to take into considerations all relevant factors which necessarily are
taken into account to determine such value otherwise determination ignoring one or more
relevant factors or considering one or more irrelevant factors would vitiate the entire exercise.

16. In an instrument of sale before making reference under Section 47-A of the Act, the
Registrar will examine whether the value, set forth in document, is the minimum value of
property or not. In case the value set forth in the instrument is less than minimum value, there
is a statutory obligation upon him to make reference to Collector even before registering the
instrument. Thereafter the Collector would determine market value on which the stamp duty is
payable. Therefore, the statute makes it obligatory upon the parties to an instrument to set
forth the value of property in transaction atleast minimum value thereof. How the minimum
value shall be determined is provided in Rule 4 of 1997 Rules, which reads as under:

Rule-4. Fixation of minimum rate for valuation of land construction value of non-
commercial building and minimum rate of rent of commercial building.- (1) The
Collector of the district shall biennially, as far as possible, in the month of August, fix
the minimum value per acre/per square meter of land, the minimum value per
square meter of construction of non-commercial building and the minimum monthly
rent per square meter of commercial building situated in different parts of the district
taking into consideration the following facts:

(a) in case of land-

(i) classification of soil

(ii) availability of irrigation facility,

(iii) proximity to road, market, bus, station, railway station,

railway station factories, hospitals and government offices and

(iv) location with reference to its situation in urban area, semi

urban area or country side

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 (b) In case of non-commercial building:

(i) cost of material used in the construction of building

(ii) labour charges

(iii) type of construction, age, and depreciation of building.

(c) In case of commercial building-

(i) prevailing rent in locality and (ii) nature of economic activity

in the locality.

(2) The Collector of the district may suo motu or on an application made to him in
this behalf, on being satisfied about the incorrectness of the minimum value of land
or of the construction of non-commercial building, or the minimum rent of a
commercial building fixed by him under sub-rule (1), for reasons recorded in writing,
revise the same within a period of two years from the date of fixation of minimum
value or rent, as the case may be.

(3) The Collector of the district shall after fixing the minimum value per acre/per
square meter of land, and of the construction of non commercial building and the
minimum rent per square meter of commercial building under sub-rule (1), send a
statement in three part to the Registrar, the first part of such statement shall contain
the division of the district under his jurisdiction, into urban area, semi-urban area
and the country side, second part shall specify the minimum value of land situated in
different parts of the sub-district and the third part shall contains, in the case of non-
commercial building the minimum value of construction and in the case of
commercial building the minimum rent fixed under sub- rule (1).

(4) The Registrar shall supply copies of statement mentioned in sub-rule (3) to the
Sub-Registrars under his control and shall also forward a copy of the same to the
Inspector General of Registration, Uttar Pradesh.

(5) Every Registering Officer shall cause a copy of the above statement to be affixed
on the notice board outside the registering offices.

17. The fact which are to be set forth in an instruction are also provided in Rule 3 of 1997
Rules, which reads as under:

Rule 3. Facts to be set forth in an instrument.- In case of an instrument relating to

immovable property chargeable with an ad valorem duty, the following in addition to
the market value of the property:

(1) In case of land-

(a) included in the holding of a tenure holder as defined in the law relating
to land tenures:

(i) the Khasra number and area of each plot forming part of the
subject-matter of the instrument,

(ii) whether irrigated or unirrigated-the source of irrigation,

(iii) if under cultivation-whether dofasali or otherwise.

(iv) land revenue or rent, whether exempted or not, and

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 (v) classification of soil supported in case of instruments
exceeding twenty thousand rupees in value by the certified
copies or extracts from the relevant revenue records issued in
accordance with laws.

(vi) location, (whether lies in an urban area, semi- urban area

or country side), and

(vii) minimum value fixed by the Collector of the district.

(b) being non-agricultural land:

(i) area of land in square metre,

(ii) minimum value fixed by the Collector of the district,

(iii) location whether lies in urban area or semi- urban or

country side).

(2) In case of grove or garden-

(a) the nature, size, number and age of trees;

(b) annual recorded land revenue or where the grove is not

assessed to any revenue, or is exempt from it, the annual rent
and/or premium, if let out; otherwise the average annual
income which has arisen from it during the three years
immediately preceding the date of the instrument;

(c) area covered by the grove or garden;

(d) location (whether lies in urban, semi-urban, or country

side).

(3) In case of building:

(a) total covered area and open land, if any, square metres,

(b) number of storeys, area and covered area of each storey in

square metres.

(c) whether pukka or katcha construction,

(d) year of construction,

(e) actual annual rent,

(f) annual value assessed by any local body and the amount of
house tax payable thereon; if any,

(g) nature of building, whether non-commercial or commercial,

and (i) in case the building is non-commercial its minimum
value of construction as fixed by the Collector of the district,
and

(ii) in case the building is commercial, its minimum monthly

rent per square metre and covered area fixed by the Collector
of the district, and (iii) location (whether lies in urban, semi-

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 urban or country side).

18. However, this is only with respect to minimum value. The charging provision attracting
stamp duty, refers to 'market value'. Meaning thereby, the duty is payable not on minimum
value but the "market value". No factor has been mentioned in 1997 Rules or the statute to
determine "market value" as such but the procedure is prescribed in Rule 7 which reads as
under:

Rule-7: Procedure on receipt of a reference or when suo motu action is proposed

under Section 47-A.--(1) On receipt of a reference or where action is proposed to be
taken suo motu under Section 47-A, the Collector shall issue notice to parties to the
instrument to show cause within thirty days of the receipt of such notice as to why
the market value of the property set forth in the instrument and the duty-payable
thereon be not determined by him.

(2) The Collector may admit oral or documentary evidence, if any, produced by the
parties to the instrument and call for and examine the original instrument to satisfy
himself as to the correctness of the market value of the subject-matter of the
instrument and for determining the duty payable thereon.

(3) The Collector may:

(a) call for any information or record from any public office, officer or
authority under the Government or local authority;

(b) examine and record the statement of any public officer or authority
under the Government or local authority;

(c) inspect the property after due notice to the parties to the instrument.

(4) After considering the representation of the parties, if any, and examining the
records and other evidence, the Collector shall determine the market value of the
subject matter of the instrument and the duty payable thereon.

(5) If, as a result of such inquiry, the market value is found to be fully and truly set
forth and the instrument duly stamped according to such value, it shall be returned
to the person who made the reference with a certificate to that effect. A copy of such
certificate shall also be sent to the Registering Officer concerned.

(6) If as a result of such inquiry, the market value is found to be undervalued and
not duly stamped, necessary action shall be taken in respect of it according to
relevant provision of the Act.

19. The important aspect which one could gather from a cumulative reading of 1997 Rules
would be that many factors, which are relevant in appreciation or depreciation of the value of a
property are already taken into account while determining minimum rate for valuation of a
property. For example in case of a land, Rule 4 contemplates consideration of classification of
soil, availability of irrigation facility, proximity to road, market, bus station, railway station,
factories, hospitals and government offices and location with reference to its situation in urban
area, semi-urban area or country side etc. If these factors are already noticed and taken into
account while determining minimum value of property, and value set forth in the instrument is
at par or more than minimum value, then in order to arrive at a conclusion that 'market value'
has not been set forth something more than what is already provided and considered in Rule 4
must exist which has to be specifically mentioned by authorities concerned so as to determine
market value which is different and higher than minimum value. It cannot be said that same
factors would multiply the cost every time whenever they are taken into consideration though
while determining minimum value they are already looked into. There may be a case where the
time gap when the minimum value is determined by 16 Collector and when document is being
executed, may have resulted in some changes in the value of property due to local

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development etc. but that must clearly spell out from the order of Collector determining market
value and this determination cannot based solely on conjectures and surmises. It is a serious
thing. It results in depriving a person of his property, i.e., by asking him to pay more stamp
duty. It would be permissible only strictly in accordance with the procedure prescribed in law
and not otherwise. The Stamp Act is a physical statute and, therefore, in a slip shod manner
revenue authorities cannot allowed to ask a person to pay higher stamp duty than what he has
already paid setting forth value of property much more than the minimum value, and according
to parties, market value. To hold a person guilty of mentioning wrong market value is not a
routine matter but the revenue authorities have to apply themselves in a more serious, sincere
and objective manner. The experience of this Court in such matter has shown that revenue
authorities used to work in a routine manner, and, the orders which usually come up for judicial
review largely show either lack of study of relevant provisions by officials responsible for
discharging their function under the statute or lack of sincere application of mind or may be a
deliberate or intentional negligence. It is true that the authorities who are made responsible in
passing the orders under Section 47-A are extremely busy authorities since almost in every
statute its is the Collector, in one or the other manner, who is entrusted with administrative or
quasi judicial power resulting in an over burdened official having lesser time to spare.
Unmindful of these practical aspects, the Government does not appear to be keen to
decentralise these powers resulting in that most of the time the Courts find such orders illegal
and erroneous and the cases are decided against revenue. This causes not only an unnecessary
harassment and dissatisfaction among the common people but also result in delay of revenue
collection by the Government. In interest of all, a pragmatic but a real practical solution is
needed at the earliest as that will also lessen burden on judiciary. Time and again the Courts
are making such observations but it appears that legal department of the Government either
have no time to read and consider these observations in their true perspective or there is
otherwise lack of will for the reasons not known. The end result however, is a total chaos
everywhere.

20. Be that as it may, coming back to the case in hand the Collector in the impugned order has
proceeded by observing that the property was transferred to M/s Hotel Clarks as commercial
property. It has considered some of the aspect in the matter which were already considered
when the determination was made under Section 31 of the Act of the same property but
consideration is not strictly in accordance with 1997 Rules. It is true that a determination under
Section 31 of the Act made in respect to 'A' would not be considered to be binding in respect to
'B' but such determination may be and would constitute a relevant material which could be
taken into consideration in determination of market value under sub section 3 of section 47- A
of the Act. Such determination cannot be brushed aside only by observing that it is not binding
on other parties. It would constitute a relevant material and relevant factor and has to be taken
into account.

21. One of the aspect, which may weigh in favour of the Respondents distinguishing
determination under Section 31 of the Act vis a vis the case of the Petitioners hereat is that the
determination was made treating the entire land of 5 acres as one unit but the land was
actually transferred in a much smaller units. Such determination thus as such may not be
wholly binding yet it constitute a relevant material. It is matter of common knowledge that size
of land constitute a relevant factor in determining market value. A much larger chunk of land
reduces number of purchasers since everybody may not have the capacity to purchase huge
land in a single unit but if the smaller piece of land is to be transferred by sale, it is like plotting
of the lands in smaller piece and may fetch much higher rates. Therefore, this is a major
distinction in not applying determination under Section 31 of the Act as such in the present
case but this does not mean that the said determination as a whole can be ignored or brushed
aside. This Court is not saying that such determination as such ought to be taken as binding but
it constitute a relevant material and therefore had to be considered.

22. In view of the above discussion, I am clearly of the opinion that determination of market
value ought to be made by the Collector afresh in accordance with relevant statute and the
rules. Even though he was not bound by determination made under Section 31 of the Act in
respect to another person but in the present case the determination having been made taking
into consideration all the relevant facts it had a persuasive value and could not have been

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brushed aside entirely.

23. Coming to the second aspect of the matter, I have already 19 touched it. Further this Court
is fortified from a earlier judgment of this Court that determination under Section 31 of the Act
as such would be available to the person at whose instance the same has been made. (See
Darwara Singh v. Board of Revenue MANU/UP/0149/1972 : AIR 1972 All 519. Even if the land
is same and situated at the same place, such determination as such may not be available to
another person but this by itself will not solve the problem. Section 31 talks of an instrument
which would be referred for opinion whether executed or not and whether previously submitted
or not.

24. In this case, the application submitted by Sri Hari Mohan Das Agrawal shows that there did
not exist any instrument at all when he submitted an application on 21.11.2003. The language
of the letter clearly shows that he wanted to purchase the entire land i.e. plot No. 1/2 area 5
acres but there was any instrument or not is not at all mentioned therein. From the order of
A.D.M. passed on the aforesaid application dated 20.03.2004 of Sri Hari Mohan Das Agrawal
also it cannot be said that any instrument was placed before the authority concerned which
contains stipulations and other relevant aspects set out in the instrument relevant for
determining value. At this stage, this Court cannot comment upon the correctness of order
dated 20th March, 2004 since it has attained finality after dismissal of writ petition by this Court
and dismissal of appeal by Apex Court, may be on account of delay. The fact however remains
that the said order as such cannot be said to be binding or the benefit thereof cannot be
extended to the Petitioners since they were not party to the said application. Hence merely for
the reason that the said determination has not been followed by the Collector in the case of the
Petitioners it cannot be said that the impugned orders are vitiated in law.

25. Besides above, it is also well settled that the proceeding under Section 31 of the Act is of
different nature. When the question arose, whether a document is property valued or not and
sufficient stamp duty has been paid or not, the power of Collector under Section 33 read with
47-A of the Act has to be exercised in a different manner as has held in State of U.P. v. Mohd.
Amir Ahmad, AIR 1971 SC 787. The Court said:

The scheme of the Act shows that where a person is simply seeking the opinion of
the Collector as to the proper duty in regard to an instrument, he approaches him
under Section 31. If it is not properly stamped and the person executing the
document wants to proceed with effectuating the document or using it for the
purpose of evidence, he is to make up the duty under section 31 the Collector will
then make an endorsement and the instrument will be treated as if it was duly
stamped from the very beginning. But if he does not want to proceed any further
than the seeking the determination of the duty payable; then, no consequence will
follow, and an executed document is in the same position as instrument which is
unexecuted and unstamped and after the determination of the duty the Collector
becomes functus officio and the provisions of section 33 have no application. The
provisions of that section are a subsequent stage when something more than mere
assessing of the opinion of the Collector is to be done.

26. In view of the above discussion and the finding of the Court in respect to the question No.
2, discussed above, it is evident that two impugned orders dated 31st March, 2005 and 31st
October, 2007 cannot be sustained. The writ petitions are therefore allowed. The impugned
orders dated 31st March, 2005 and 31st October, 2007, impugned in all the writ petitions, are
hereby quashed.

27. However, the matter is remanded to the Collector to redetermine market value of the
property in question under Section 47-A read with Section 33 of the Act in the light of the
observations made above and to pass a fresh order in accordance with law after giving due
opportunity of hearing to all concerned parties.

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