Court No.21
Civil Misc. Writ Petition (PIL) No.35248 of 2010
Jai Singh .............. Petitioner
Versus
State of U.P. and others .............. Respondents
Hon'ble Sabhajeet Yadav, J.
Hon’ble Bala Krishna Narayana, J.
Heard Sri H.R. Misra, learned Senior counsel assisted by Sri
K.M. Misra for the petitioner and learned standing counsel for the
State.
Supplementary affidavit filed today is taken on record.
This is a Public Interest Litigation. The petitioner is a practising
Advocate of this Court for about last 34 years. By this petition, he has
challenged the validity of the provisions of Uttar Pradesh Stamp
(Valuation of Property) Rules, 1997 on the ground that under Rule 4(2)
of the said rules the Collector of the District has been given unbridled
unguided power to determine and revise the Circle Rates of
immoveable property within the territorial limit of the District for
charging Stamp Duty upon the instrument containing the transactions
of conveyance, as such, Rule 4 of said rules suffers from vice of
excessive delegation. It is stated that Rules 1997 does not provide any
guiding principle or the material to be taken into consideration by the
Authority, to whom the power has been delegated under Rule 4 of the
Rules, 1997 to determine/revise the minimum value (Circle Rate) of the
immovable property of the area for the purpose of imposing Stamp
duty. The Government also did not frame separate guidelines fixing the
norms and the principles for evaluating the minimum rate/market value
of the area to be determined by Authority concerned. Thus, the
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Authority/District Magistrate having been conferred unbridled and
unfettered power under Rule 4 to revise the Circle Rate of the area as
such the rule in question is also altra vires the Parent Act. It is stated
that Rule 4(2) of the Rules, 1997 is unconstitutional and invalid on the
ground that the rule making authority, that is the Government cannot
further delegate the District Collector to determine the minimum
value/Circle Rate of the area.
It is stated that earlier to the aforesaid rule, there was another
rule namely U.P. Stamp Rules, 1942. Chapter XV of the said Rules
provided the rules for determining the market value of certain
instrument. Under Rule 341-E of which it was provided that for the
purposes of payment of Stamp Duty, the minimum market value of
immoveable property forming the subject matter of an instrument
referred to under in Clause (c) of 340(1) may be equal to the value
worked out on the basis of average price per square metre prevailing in
the locality on the date of instrument. Whereas under new rules 1997,
no such guidelines or principles is provided for fixation of minimum rate
for valuation of land. The aforesaid rules existing earlier has been
superseded and repealed by 1997 Rules. Therefore, the aforesaid
guiding factor existing under earlier rules have no application under the
new rule 1997 and now it is open for the Collector to fix Circle Rate in
whimsical and arbitrary manner as he likes, therefore, merely on this
ground alone the provisions of said Rules can be struck down by this
Court.
It is stated that the Government policy of converting Nazul land
held by the lease-holders into free-hold contained in various
government orders issued from time to time has resulted in big
colonizers and land- mafias of the area becoming active, inasmuch as
having got nomination by the original lease-holders in their favour, they
got it converted into free-hold in their name converting them into small
plots and constructing multi-storied residential colonies, commercial
complexes, hospitals etc. extracting huge profits out of the same. In
this way, the big colonizers, land-mafias and the persons having lot of
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black-money with the help of higher ups of the local administration
have formed a caucus and succeeded in their illegal design in getting
disproportionate enhancement of the Circle Rate in District Allahabad
particularly in City Allahabad.
It is stated that the Circle Rates revised by the Collector in the
impugned notification is highly exorbitant and the same are not
reflective of the true minimum value of the land of area, inasmuch as
the rates have been enhanced 10 to 15 times based on no justifiable
material or factors to be taken into consideration for determining the
minimum value (Circle Rate) of the land of the area. It is stated that the
impugned notification contains the highest circle rate at Mahatma
Gandhi Marg to the tune of Rs. 27,000/- per sq. metre from High Court
Hanuman Mandir to Hanuman Mandir (Hanumat Niketan). Likewise,
Rs. 24,000/-per sq. metre for the Elgin Road (From Cooper Road
Chauraha to Prayag Sangeet Samiti) and these rates are not based
upon taking into consideration the relevant material for the said
purpose like sale-exemplar of the area, previous transactions, location,
etc. rather, it has been whimsically fixed on account of the impact of
the various transactions of the area carried out through big colonizers,
land-mafias by first getting the land converting into free-hold and
creating multi-stories colonies, complexes etc. over the same. Thus,
the impugned notification is violative of Article 14 of the Constitution of
India.
While demonstrating the arbitrary fixation of the Circle Rates of
immovable properties in urban areas of Allahabad City certain other
notification containing circle rates, earlier fixed by the Collector
Allahabad have also been brought on record by filing supplementary
affidavit in the said writ petition. It is stated that on 1.4.2006 a
notification fixing Circle Rates of urban area of City Allahabad has
been issued for a period of two years but before expiry of said period
another notification fixing further enhanced Circle Rates of the same
urban area has been issued on 11.6.2007 and on expiry of merely nine
months before expiry of even one year what to say of two years
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another notification dated 20.8.2008 enhancing the circle rates of the
same urban areas has been issued again by Collector, Allahabad.
While demonstrating arbitrary fixation of circle rates, it is stated
that in the notification dated 1.4.2006 for residential purposes the
Circle Rates of land of civil area of Allahabad City has been fixed
Rs.8,000/- to Rs.9000/- per sq. meter according to site of land and
width of road where the land is situated and for commercial purposes it
was fixed Rs. 11000/- to Rs. 12000/- but in subsequent notification
dated 11.6.2007 the Circle Rats of the aforesaid area has been
enhanced for residential purposes from Rs. 9000/- to Rs. 10000/- and
for commercial purposes from Rs. 14000/- to Rs. 15000/-. Immediately
thereafter Circle Rates of civil area has been again enhanced for
residential purposes from Rs. 16000/- to Rs. 17000/- and for
commercial purposes from Rs. 18000/- to Rs. 20000/-. It appears that
again vide notification dated 20.8.2008 the circle rates of Nawab Yusuf
Road, Mahatma Gandhi Marg, Sardar Patel Marg and Elgin Road for
residential purposes Rs. 16000/- to Rs.17000/- in preceding year have
been enhanced to Rs. 24000/- Rs.27000/- per sq. meter. Similar
enhancement of Circle Rates have also been shown in respect of other
areas of Allahabad City. At the strength of aforesaid notifications
learned counsel for the petitioner has submitted that for the City
Allahabad, the Collector Allahabad has enhanced the Circle Rates
about 300% within two years four months since 1.4.2006 to 20.8.2008
i.e. about three times of the existing circle rate as on 1.4.2006,
whereas it could be revised biennially (on expiry of two years). The
revisions of circle rates have been made three occasions during short
span of two years four months arbitrarily, without any genuine sale,
exemplars and justifiable materials, despite thereof, learned counsel
for the petitioner told us on the basis of news published in Daily News
Paper “Dainik Jagran” that the Collector Allahabad is going to
enhance circle rate of the District from July, 2010 again.
In view of aforesaid facts and circumstances of the case, the
learned Senior counsel for the petitioner has submitted that the
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aforesaid action of Collector, Allahabad is not merely based on
colourable and/or arbitrary exercise of power rather it is fraud on the
power. It is a case of extortion of money by State functionary from the
people in one hand and on other hand diverting the immovable
property of City Allahabad in the hands of land-mafias and persons
having huge black money. He told us that on account of arbitrary
fixation of circle rate, the common and middle class people are feeling
aggrieved by undue escalation of price of land of City Allahabad and
persons having black-money are investing the money in purchasing the
land for the reason that such person can not deposit black-money in
Bank and the interest rate of which can also not match the escalation
in price of land during said period. In this view of the matter, he has
submitted and prayed for indulgence of this Court to protect Public
Interest by keeping the State machineries within the limits of its
powers.
In our opinion, submissions of learned counsel for the petitioner
have some substance and require serious consideration by this Court.
Since the validity of 1997 has also been challenged in the writ petition,
therefore hearing of the learned Advocate General, U.P. is necessary
in the case. Issue notice to the learned Advocate General, U.P. fixing
16.7.2010.
Learned standing counsel is directed to file counter affidavit
within three weeks on behalf of respondents. The counter affidavit shall
be sworn by the officer of State Government atleast status of Secretary
to the Government of concerned department. While filing said counter
affidavit he shall also file complete compilation of of Government
Orders containing the policy of Govt. for conversion of Nazul lease land
into free-hold land issued by Government from time to time by now.
While filing said affidavit, the Secretary of the Government shall clearly
indicate the person in whose favour the lease land of Nazul can be
converted into free hold and circumstances under which it can be so
converted? Further as to whether the conversion of Nazul lease land
into free hold is permissible into Government Orders in favour of
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nominee of lesee, if so as to whether such policy permits illegal
transaction of sale of property or lease hold rights in favour of
nominees which is otherwise contrary to provisions of law and on
account of such provisions containing such conversion as to whether
the Government is suffering loss of Stamp Duty which could be
otherwise realized by the Government on transfer of lease hold right of
the land in question? And further as to whether on account of these
factors, such provision contained in Government Orders can be held
justified or not? And further as to whether due to such provision the
lease holders of Nazul land are making profit by selling their land to the
nominees by defeating the provisions of Registration Act, Transfer of
property Act and Indian Stamp Act which is not permissible under law?
The Secretary shall further state that if the Government permits the
nominee of lease holders of Nazul land for conversion of Nazul land
into free hold land as to why the occupiers of Nazul lease land can not
be conferred such right of converting Nazul lease land into free hold
land in their favour in our welfare state?
The Collector Allahabad is also directed to file another counter
affidavit sworn by him making specific reply of assertions made in the
writ petition and supplementary affidavit filed by the petitioner. While
filing said counter affidavit the Collector Allahabad shall also verify the
notifications containing the Circle Rates of urban areas of Allahabad
City filed by the petitioner as Annexure No.1 of the writ petition and as
Annexure Nos. SA-1, SA-2 and SA.3 of the supplementary affidavit
filed by the petitioner and state specifically as to whether the Circle
Rates mentioned in the aforesaid notifications are correctly mentioned
in the photostate copy filed by the petitioner or not? If necessary, he
shall file correct copy of notifications containing the Circle Rates of the
Allahabad City allegedly issued on 20.8.2008, 6.11.2007 and 1.4.2006
as enclosed in the supplementary affidavit. Besides the aforesaid
notifications, the Collector Allahabad shall also file the notifications of
Circle Rates of immovable property of urban areas of Allahabad City
preceding the years of 2006. If such notifications were issued earlier in
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2004, 2002 and 2000 and file the copy of notification containing the
Circle Rates of immovable property of Allahabad City alone.
The Collector, Allahabad shall also indicate the names of
Collectors who had issued aforesaid notifications fixing Circle Rates of
Allahabad City as indicated hereinbefore in aforesaid years and their
present place of posting alongwith their full particulars of residence
whether they are working or retired from service.
In the said counter affidavit the Collector, Allahabad shall also file
a comparative chart of Circle Rates fixed in the aforesaid areas for the
land of commercial and residential purposes of Allahabad City
particularly pointing out atleast prominent Mohallas like Civil Lines,
Ashok Nagar, Katra, Mumfordganj, Darbhanga Colony, George Town,
Tagore Town, Colonelganj, Allahapur, Alopibagh, Daraganj, Bairahana,
Tularam Bagh, North and South Malaka, Keydganj, Chowk, Myorabad,
Rajapur, Mehdauri Colony, Govind Nagar Colony, Chhota and Bara
Baghara, Tubewell Colony, Naini, Jhunsi, Fafamau and the aforesaid
areas identified through roads particularly mentioning the Circle Rates
fixed from time to time in respect of civil areas of Nawab Yusuf Road,
Mahatma Gandhi Marg, Sardar Patel Marg, Elgin Road, Kamla Nehru
Road, Sarojani Road, Droumand Road, Stretchy Road, Thornhil Road,
Patrika Marg, Ponappa Marg, Muir Road, Auckland Road, Circular
Road, Minto Road, Stainley Road etc. and other roads like University
Road, Hasimpur, Bank Road and roads passing through George Town
and Darbhanga Kaisal and other localities including Panna Lal Road,
Louder Road, Motilal Nehru Road, C.Y. Chintamani Road, Lidle Road,
Church Lane, Madanmohan Malviya Road, Jawahar Lal Nehru Road,
Hamilton Road or Amarnath Jha Marg and other areas from the
aforesaid notifications issued in aforesaid years, showing the
percentage of increase in circle rates in specific columns. The
Collector Allahabad shall also file sketch map of City Allahabad
indicating names of Road passing through particular Mohalla or
locality.
Besides this the Collector Allahabad is also directed to place
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material alongwith counter affidavit on the basis of which Circle Rates
have been determined by the Collector Allahabad from time to time
while issuing the aforesaid notifications. The aforesaid counter affidavit
shall be filed immediately on the date of expiry of three weeks. The
Collector and A.D.M. Nazul, Allahabad shall also remain present in the
Court in person on the date fixed by this Court i.e. on 16.07.2010.
List on 16.07.2010 as part heard before us.
Registrar General is directed to communicate this order to the
Secretary Finance and Revenue U.P. Govt. Lucknow and District
Magistrate, Allahabad through fax forthwith.
A copy of this order also be given to Learned Chief Standing
Counsel, Sri M.C. Chaturvedi for communication and necessary action
free of costs forthwith.
Dt.18.06.2010
Pk/LJ