JUDGMENT

Manish Mathur, J.

Heard Mr. R.S. Pandey, Senior Advocate assisted by Mr. Virendra Bhatt, learned counsel for petitioners and learned State Counsel appearing on behalf of opposite parties.

2. Petition has been filed assailing order dated 12.07.2002 passed under section 47A(3) of Indian STAMP ACT 1899 (hereinafter referred to as the Act of 1899) whereby property which is subject matter of instrument of transfer was treated to be residential instead of agricultural and deficiency of stamp duty has been indicated thereupon along with penalty and interest. Appellate order dated 30.09.2002 dismissing Appeal under Section 56 of the Act of 1899 is also under challenge.

3. Learned counsel for petitioners submits that a portion of plot no.582, area 0.15 acre miljumla in the Village in question was purchased jointly by petitioners by means of sale deed dated 27.10.1998. It is submitted that subsequently proceedings under Section 47-A of the Act of 1899 were drawn in pursuance of spot inspection report dated 05.02.2000 and have culminated in passing of impugned orders.

4. Learned counsel for petitioners submits that the entire basis of impugned order dated 12.07.2002 is only assumption without any concrete corroborating evidence to support the same. It is submitted that order assumes the property to have been purchased for residential purpose only on account of fact that a small portion of the plot has been purchased jointly by eight persons who are unrelated and do not belong to the Village in question. It is submitted that the order also is based on the initial spot inspection report indicating residences having been constructed over the property in question. It is submitted that authority concerned has erred in placing reliance only on the spot inspection reports which even otherwise did not pertain to the status of property which is subject matter of instrument of transfer as on the date of execution of instrument. It is submitted that the stamp duty cannot be imposed on the basis of future potentiality of the property. Learned counsel has also drawn attention to impugned appellate order to submit that the findings recorded by authority concerned under Section 47-A of the Act of 1899 has merely been followed by the appellate authority without any independent application of mind and is also on the basis of assumption. Learned counsel has placed reliance on decision rendered by Hon'ble the Supreme Court in State of U.P. and others v. Ambrish Tandon and another, reported in (2012) 5 SCC 566 and a decision of this Court in Ram Khelawan @ Bachchha v. State of U.P. and others reported in 2005 (98) RD 511 to buttress his submissions.

5. Learned counsel appearing on behalf of opposite parties have refuted the submissions advanced by learned counsel for petitioners on the ground that no error has been committed by the Prescribed Authority in passing order impugned under Section 47-A of the Act of 1899 since only a small portion of the property has been purchased jointly by eight persons, which cannot be for the purposes of agricultural and in fact can only be for the purposes of residence. It is submitted that even spot inspection report clearly indicates residential accommodations having been constructed over the property in question by petitioners at the time of spot inspection and therefore the property has been rightly considered to be residential and deficiency of stamp duty as well as penalty has been rightly imposed.

6. Learned counsel has also submitted that the penalty clause was not rightly adhered to by the authority under Section 47-A of the Act of 1899 and that wrong has been corrected by appellate authority enhancing the penalty, which is in consonance with the provisions of the Act of 1899.

7. Learned counsel has also placed reliance on Full Bench decision of this Court rendered in Pushpa Sareen v. State of U.P. and others reported in 2015 (33) LCD 1575 to submit that potentiality of land which is subject matter of in