Point of Law: The matter is remitted to the respondent no.2 or the competent authority who may be seized of the matter, to assess the market value taking into account the monetary consideration reflected in the exemplar deeds aforesaid or any other exemplar deeds, and not on the basis of the minimum rates

JUDGMENT :

1. Heard Shri Rajesh Kumar Mishra, learned counsel for the petitioner and Shri Awadhesh Chandra Srivastava, learned Standing Counsel appearing for the respondents.

2. By means of this petition, the petitioner seeks to challenge the order dated 31.12.2009 passed by the Additional District Magistrate (Finance & Revenue), Moradabad in Case No.407/09 under Section 33/40/47 of the Indian Stamp Act, 1899[Act] whereby, by means of an ex-parte order, deficiency of stamp has been imposed upon the petitioner while relying upon the report dated 16.10.2009 of the Assistant Inspector General of Registration. Further under challenge is the order dated 26.05.2010 passed by the Additional Commissioner (Administration), Moradabad Mandal, Moradabad, whereby the appeal filed by the petitioner under Section 56 of the Act, being Appeal No.74/2009-10, has been partly allowed by reducing the amount of penalty imposed upon the petitioner.

3. The facts as mentioned in the petition are that the petitioner purchased an area of 0.002 hectares from Khasra No.869-Ka, an area of 0.130 hectares from Khasra No.948 and an area of 0.255 hectares from Khasra No.950, totalling 0.387 hectares in Village-Bhogpur, Mithauni, Tehsil & District-Moradabad by means of a sale-deed executed on 27.09.2007, which was registered thereafter. It is stated that the aforesaid land was purchased for agricultural purposes and the stamp duty was paid in accordance with the minimum rates specified by the Collector. The name of the petitioner was also mutated in the revenue records. It is alleged that the respondent no.2 passed the impugned order dated 31.12.2009 without issuance of summons or notice to the petitioner, in which it was held that the plots in question are for residential usage and, therefore, deficiency of stamp duty of Rs.1,38,400/-and penalty of Rs.1,38,400/-alongwith interest at the rate of 1.5% per mensem were imposed. It is stated that on coming to know of the ex-parte order passed by the respondent no.2, an appeal was filed by the petitioner before the Additional Commissioner (Administration) which was partly allowed by reducing the amount of penalty imposed, though no error was found in the order of the respondent no.2 in assessing the land in question as residential.

4. The contention of the learned counsel for the petitioner is that an ex-parte report of the Assistant Inspector General of Registration has been relied upon by the respondent no.2 to record a finding regarding evasion of duty which could not have been relied upon by the authority in view of the judgment of this Court in the matter of Ram Khelawan alias Bachcha v. State of U.P. and another, 2005 (2) AWC 1087. It is further contended that the vendors of the sale-deed in question had sold their entire share of the land on the khasra numbers to the petitioner, and the admitted terms of the habendum clause appearing in the sale-deed reflect that the land in question was bhumidhari over which agricultural activities were being carried on. The learned counsel states that the order of the respondent no.2 was passed ex-parte without affording any opportunity of hearing to the petitioner. It is further contended that the Additional Commissioner (Administration), in the appellate order, has committed an error of law in affirming the order of the respondent no.2 and that neither the penalty nor the deficiency in stamp duty could have been imposed upon the petitioner under the facts and circumstances of the present case.

5. Learned Standing Counsel has opposed the writ petition stating that the report of the Assistant Inspector General of Registration dated 16.10.2009 has referred to three exemplar sale-deeds pertaining to parts of land of those very Khasra numbers that were sold to other persons in which the purpose for purchase was stated to be residential. The contention is that, accordingly, no f