Hon’ble Pankaj Naqvi, J.—Heard Sri P.C. Jain, learned counsel for the petitioner and Sri Sanjay Goswami, the learned Additional Standing Counsel.

This writ petition is preferred against the orders dated 13.11.2002 and 8.9.2003, computing/levying stamp deficiency to the tune of Rs. 1,54,700/-, under Sections 33/47-A of the Stamp Act. The petitioner has also sought for declaration that Rule 5 (c)(ii) of the U.P. Stamp (Valuation of the property), Rules 1997, be declared illegal/ultra vires in so far it relates to addition of the market value of the land in the valuation of the commercial building calculated on the basis of its rental value. The petitioner has also sought for mandamus, commanding the respondents to refund Rs. 1,92,546/-, illegally realized from the petitioner under the impugned orders alongwith interest @ 1.5 % per month.

A registered sale-deed dated 1.2.2002 came to be executed in favour of the petitioner in respect of property bearing the Municipal No. 1/133 and 133/1 to 133/4, situate at Civil Lines, Hariparwat Road, Agra, having an area of 143.29 sq. mtrs out of which 133.25 sq. mtrs was covered, for a sale consideration of Rs. 20 lacs which became a subject-matter of dispute under Section 47-A of the Stamp Act, on the basis of the report of the Sub-Registrar concerned, alleging deficiency, on the ground that the minimum rate fixed by the District Magistrate in respect of the land in question is Rs. 7000/- per sq. Mtr, thus recommending the market value at the circle rate of the land at Rs. 10,03,030/- and that of the covered area of 131.25 sq. mtrs (1413 sq. foot), @ Rs 6 per sq. foot per month, amounting to Rs. 25,43,400-, net amounting to Rs. 35,46,430/-, reporting a deficiency of Rs. 1,54,700/-. Upon reference, notice was issued to the petitioner who filed its objections, disputing the correctness of the recommended market value on the premise that the entire property, i.e., land + constructions have been treated as commercial. The Additional Collector (F/R), Agra under the order dated 13.11.2002 was of the view that as the property is situate on MG Marg, Civil Lines, a posh area, stamp has been paid on residential rates, whereas commercial levy is applicable, computing/levying stamp deficiency to the tune of Rs. 1,54,700/- with penalty of Rs. 27,846/- under Section 40-B of the Stamp Act and Rs. 10,000/- as penalty under Section 47-A, net amounting to Rs. 1,92,546/-. The petitioner challenged the order dated 13.11.2002 in Stamp Revision No. 556 which came to be allowed on 8.9.2003 only to the extent it levied penalty of Rs. 10,000/-.

2. It is submitted by learned counsel for the petitioner that the stamp authorities while computing the market value of the property involved under the sale-deed dated 1.2.2002, proceeded to compute the market value of the land as per circle rate, i.e., @ 7000/- sq. mtr. in respect of 143.29 sq. mtrs of land, amounting to Rs. 10,03,030/- and that of the covered area, i.e., 131.25 sq. mtrs (1413 sq. foot), to be commercial, @ Rs. 6 per sq. foot, i.e., Rs. 25,43,400/-, net amounting to Rs. 35,46,430/- with deficiency of Rs. 1,54,700/-, which was in teeth of Section 47-A of the Stamp Act, wherein market value is to be ascertained in respect of the demised property by ascertaining the market value of the land + cost of construction.

3. The learned AdditionalC.S.C, has opposed the submission.

4. It is well-settled that market value under Section 47-A of the Stamp Act is to be ascertained in respect of the demised property on the date of the execution of the instrument, i.e, 1.2.2002 in the instant case.

5. In exercise of powers under Section 27/47-A/75 of the Indian Stamp Act, 1899, Governor has framed the U.P. Stamp (Valuation of property), Rules, 1997. Rule 5 (a) of the 1997 Rules (unamended) relates to calculation of minimum value of land, grove, garden and building.A perusal of Rule 5 manifest that for the purposes of payment of stamp duty, the minimum value of land fo