Hon’ble Pankaj Mithal, J.—Petitioners are purchasers of two storied building vide registered sale-deed dated 16.2.2009 for a sale consideration of Rs. 40 lacs, but for the purposes of payment of stamp duty petitioners disclosed its market value as Rs. 75 lacs and paid stamp duty accordingly.

2. The authorities under the Indian Stamp Act, 1899 (hereinafter referred to as an ‘Act’), on the report of the Sub-Registrar dated 19.2.2009 drew proceedings under Section 47-A of the Act for determination of deficiency in stamp duty, if any.

3. The Additional District Magistrate (for short ADM) inspected the property on 25.8.2009. On the basis of the above inspection and the report of the Sub-Registrar the authorities held that the property is partly in commercial use and partly is of residential nature. Accordingly, the market value of the ground floor portion of the building was assessed by treating it to be commercial for the reason it happened to be a clinic of a doctor and that of the first floor to be residential in nature. Thus, deficiency in stamp duty was determined and an equal amount of penalty was imposed. Both the amounts were directed to be recovered with interest @ 12.5% per mensum.

4. It is against the aforesaid two orders determining the deficiency in stamp duty and imposing penalty that the petitioners have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India.

5. I have heard Sri S.K. Chaturvedi, learned counsel for the petitioners and Sri Nimai Das, learned Standing counsel for the respondents and with their consent proceeds to decide the petition finally on the basis of the pleadings exchanged.

6. There is no dispute that the property was inspected by the ADM himself on 25.8.2009 in the presence of petitioner No. 1 and the Lekhpal of the area. A sketch map of the location of the property was prepared and placed on record showing shops in vicinity to the ground floor of the building in question. The said inspection was made at the insistence of the petitioners and in their presence. Therefore, the map prepared on the inspection cannot be discarded simply for the reason that it is not accompanied by any narrative or a report when the inspection was made by the authorized officer himself in accordance with Rule 7 of the Uttar Pradesh (Stamp Valuation of Property) Rules, 1997. However, the said inspection map is not conclusive of the fact that the ground floor portion happened to be a commercial establishment or that it existed in a commercial area.

7. It has been stated in the writ petition that under the master plan of the Jhansi Development Authority the area where the building is located has been notified as residential area and therefore no part of the building can be treated as commercial. The averments to this effect made in the writ petition have not been denied by the respondent in the counter-affidavit. Therefore, the Court is left with no option but to treat the area as residential in nature.

8. In the above facts and circumstances the solitary question which arises for consideration is whether the ground floor portion of the building situated in a residential locality and which at one time was being used as a clinic or a pathology laboratory by the Doctor son of the erstwhile owner would be assessable to market value as a commercial property for the purposes of realizing stamp duty on the aforesaid sale-deed.

9. Commercial property has not been defined under the Act but the Rules in Section 2 (d) explains “commercial building” as a commercial establishment or a shop as defined under Sections 2 (4) and (16) respectively of the U.P. Dukan and Vanijya Adhisthan Adhiniyam, 1962 (hereinafter for short ‘Adhiniyam’).

10. In view of the above definition of the commercial building, property which is covered by the definition of commercial establishment or shop as contained in Sections 2(4) and (16) respectively of the Adhiniyam alone shall be assessable to market value as c