Hon’ble S.N. Srivastava, J.—By way of this writ petition, petitioners are challenging order dated 21st October, 2000, passed by the Chief Controlling Revenue Authority, U.P. at Allahabad and the order dated 17.6.1996, passed by the Additional Collector/Additional District Magistrate (Protocol), Varanasi imposing an additional stamp duty of Rs. 18,342-50 and the penalty of Rs. 36,685/-.

2. The facts borne out from the record makes it clear that petitioners, who are real brothers, purchased Plot No. 630, area .24 decimal situated in Village Karnadadi, Pargana Kaswar, Tehsil & District Varanasi. A report was submitted by the Sub Registrar, Gangapur, that the share of both the transferees will come to 0.12 acre each and, therefore, valuation of the land under the sale deed should be assessed treating it non-agricultural land. On the said report, notice was issued to petitioners, who filed their objection pleading therein that the land was purchased for agricultural purposes, assessment was made on market value and stamp duty was paid accordingly. It was further pleaded that both the transferees are real brothers and members of one family and imposition of additional stamp duty treating them separately is highly arbitrary and unwarranted. The Additional Collector, by the impugned order, presuming the petitioners’ land as non-agricultural imposed an additional stamp duty of Rs. 18,342-50 and the penalty of Rs. 36,685/-. Revision preferred by the petitioners was also dismissed.

3. Heard learned Counsel for the petitioners as well as learned Standing Counsel and carefully gone through the materials on record.

4. Learned Counsel for the petitioners urged that the impugned order suffers from error of law in assessing the land in dispute as non-agricultural land and imposition of additional stamp duty as well as penalty are against the provisions of Indian Stamp Act and the Rules framed thereunder. He further urged that presumption drawn by the authorities below is unsustainable in law and the impugned orders are liable to be quashed.

5. Sri Bhola Nath Yadav, learned Standing Counsel, while relying upon Supplementary Counter-affidavit filed by the State, urged that the Collector in exercise of power under Rule 340-A of the Indian Stamp Rules has already fixed Circle Rate and laid down that in case area of the land purchased is less than 0.16 Acre then the land shall be treated as non-agricultural land and the stamp duty shall be calculated for such land treating it as non-agricultural land. He referred Annexure-1 to the Supplementary Counter-affidavit.

6. After carefully considering the materials on record, arguments of learned Counsel for the parties and relevant provisions, this Court is of the view that the findings recorded by the authorities below suffer from error of law apparent on the face of record. The writ petition deserves to be allowed on the ground that according to the order passed by the Collector under Rule 340-A of Stamp Rules, if area of the land purchased is less than 0.16 Acre said transfer is presumed as non-agricultural and stamp duty is accordingly charged. In the present case the land covered under the sale deed is 0.24 Acre and, therefore, under the order of the Collector, the land purchased through the impugned sale deed could not be presumed as non-agricultural land. Transferees are real brothers, who purchased 0.24 Acre land in a village for agricultural purposes is also clear from the sale deed and other materials available on record. The authorities below acted illegally in presuming the land covered under the sale deed as non-agricultural land and assessing as such accordingly on the basis of such presumption.

7. In view of above, impugned orders imposing additional stamp duty and penalty was unwarranted and unsustainable in law. Impugned orders are liable to be quashed on this ground alone. The petitioners are entitled to get refund of the amount deposited under the interim orders of this Court alongwit