Saturday, September 4, 2010

Nazul Land and Rate of Stamp duty in Uttar Pradesh

Entry 18 of the second list of the seventh schedule to the Constitution,empowers the Government to legislate on land, i.e. rights over land, land tenure, collection of rents, transfer and alteration of agricultural land, land improvement, etc.
Government land is the land vested in the State Government. It includes nazul

Nazul land* estate land#, land acquired through ceiling$.

The State Government is empowered to dispose off the land in its possession by lease or sale as the case may be. The land revenue comprises receipts from land revenue/tax, rates and cesses on land and other receipts. All the receipts from Government land are deposited in the consolidated fund of the State.

* It is the land confiscated from the jamindars, nawabas, rajas etc. It was neither acquired nor was the cost thereof paid.

# Property which are under the management and administration of Board of Revenue is defined as estate land.

$.Land obtained through ceiling pertains to such land which has been acquired by the Government under the provisions of Urban Land (Ceiling and Regulations) Act, 1976.

The management, administration of Government land and the related activities

The management, administration of Government land and the related activitiesare governed by the provisions of the Uttar Pradesh Nazul Manual, 1949 (hereinafter referred as the Nazul Manual), Government Property Management (Amendment) Rules, 2003, Uttar Pradesh Urban Land (Ceiling and Regulation) Act, 1976 and the Government orders issued from time to time.

The Principal Secretary Avas, Uttar Pradesh is the administrative head of

Government land at the Government level. Chairman, Board of Revenue

(BOR) is the overall incharge of Government land and the district magistrate

(collector) of the respective district is responsible for the management and

administration of Government land.

disposal of nazul land

Under the provisions of the Nazul manual, nazul land can only be leased out.Under the provisions of rule 22 of Nazul manual, lease for nazul land shall not ordinarily be for a period shorter than 30 years in the first instance and shall, in all cases, provide for renewal after expiry of the first and subsequent terms upto a maximum period of 90 years. The granting of lease in perpetuity in respect of any nazul land on any term is prohibited. Rule 67 of Nazul Manual, read with Rule 22, prohibits granting of lease in perpetuity of nazul land. In such cases, where lease was granted in perpetuity or period of lease was not mentioned, a maximum period of 90 years can be considered for lease. Under the above provisions, the nazul land let out on lease for a stipulated period is required to be evacuated as and when the concerned lease terminates. With the introduction of the new Nazul Policy, 1998®, nazul land can be disposed off by way of sale. If any sale deed is executed, cost of land is to be recovered on the basis of market rate and stamp duty as a conveyance.

® The policy provides the guidelines to regularise the possession of

land in unauthorised occupation. But the time frame and procedure to

dispose off nazul land in custody of the Government have not been

prescribed in the policy or by any subsequent Government order.

       Under the provisions of the I. S. Act, stamp duty on an instrument depends upon the substance of the transaction recorded in the instrument and not on any title, description or nomenclature given to the instrument by the executant. (C.A.G. Report 2005-2006 Para 5)
Nazul land is land held by Government in public trust, in perpetuity, the possession of which can be transferred in the form of lease or by sale. The district magistrate of the respective district is the overall incharge of the
Management and administration of nazul land. In Lucknow, the work of
management is entrusted to the Lucknow Development Authority (LDA) and in other places to the nagar nigams/nagar palika parishads. If any sale deed is executed, stamp duty as a conveyance is chargeable.(C.A.G. Report 2005-2006 Para 5)

Under the provisions of the Nazul manual, if any nazul land is transferred by way of sale or lease etc., execution of deed is required and stamp duty is chargeable as a conveyance as laid down in the Indian Stamp Act, 1899. .(C.A.G. Report 2006-2007 Para 4)

• Test check of the revenue records of the Collectorate at Jhansi revealed

that nazul land measuring 4,878 sqm was let out on lease in January 2003

for the consideration money of Rs. 36.32 lakh but no lease deed was

executed. This resulted in loss of stamp duty and registration fee

amounting to Rs. 3.68 lakh.

Rate of Stamp Duty

(Harish Tandon vs State Of U.P. And Anr. 2006 (3) AWC 2829 Para 18 )

As per the Government Order No. 'K.S.V.-5-5808/11-99-500 (80)/98' of Kar Evam Sansthagat Vitta Anubhag-5 dated 11th January, 1999 issued by the Principal Secretary, U.P. Government, the stamp duty amount (registration charges) for registration of the freehold sale deed(s) is payable at the rate of 10% of the freehold charges. The U.P. Government till now has issued various Government Order(s) to continue the rebate of stamp duty amount (registration charges) for the registration of the freehold sale deed(s) without any break and the aforesaid provision for the registration of the freehold sale deed(s) at the rate of 10% of the freehold charges is applicable till date. Since the freehold sale deed(s) of the Nazul Site(s) executed by the District Maglstrate(s) and the Development Authorities particularly the District Magistrate, Allahabad and the Allahabad Development Authority, Allahabad have been/are presently being registered at stamp duty amount (registration charges) of 10% of the freehold charges in accordance with the aforesaid Government Order dated 11 th January, 1999 and its successive Government Order(s), the freehold sale deed(s) of the Nazul Site Nos. 32C, 139 and 139B, Civil Station, Allahabad should also be registered at the stamp duty amount (registration charges) of 10% of the freehold charges.

   All G.O of Nazul Land   was introduced during the pendency of the proceedings and sub judice as Honourable Allahabad H.C held in Harish Tandon vs State Of U.P. And Anr. on 30/3/2006 ( 2006 (3) AWC 2829 D.B)
para 32 . Save and except Government order of the year 1995 no Government order is static. All the Government orders were time to time reviewed irrespective of the facturn that one of such reviewed Government order of the year 1998 was or still is subjudice before the Supreme Court or before the High Court.
Para 42. . The Government orders as reviewed time to time in the year 1998, which is under challenge, and the Government order of the year 2002, which was introduced during the pendency of the proceeding, appear to be prospective in nature.

                                                                classification of deeds
1-   Under the provisions of the Nazul manual, if any nazul land is transferred by way of sale or lease etc., execution of deed is required and stamp duty is chargeable as a conveyance as laid down in the Indian Stamp Act, 1899 (C.A.G Report year 2006-07Para 4.2.9.2)
http://www.cag.gov.in/html/cag_reports/up/rep_2007/rev_chap_4.pdf
2-   Nazul land is land held by Government in public trust, in perpetuity, the possession of which can be transferred in the form of lease or by sale. The district magistrate of the respective district is the overall incharge of the management andadministration of nazul land. In Lucknow, the work of management is entrusted to the Lucknow Development Authority (LDA) and in other places to the nagar nigams/nagar palika parishads. Rule 67 of Nazul Manual, read with Rule 22, prohibits granting of lease in perpetuity of nazul land. In such cases, where lease was granted in perpetuity or period of lease was not mentioned, a maximum period of 90 years can be considered for lease. If any sale deed is executed, cost of land is to be recovered on the basis of market rate and stamp duty as a conveyance is chargeable..(C.A.G. Report 2005-2006 Para 5.5
http://www.cag.gov.in/html/cag_reports/up/rep_2006/rev_chap_5.pdf)
                                         
3- Under the provisions of the IS Act, stamp duty on an instrument depends upon the substance of the transaction recorded in the instrument and not on any title, description or nomenclature given to the instrument by the executant.(C.A.G. Report 2005-2006 Para 5.3
http://www.cag.gov.in/html/cag_reports/up/rep_2006/rev_chap_5.pdf)

                                                                disposal of nazul land

A-Under the provisions of the Nazul manual, nazul land can only be leased out.Under the provisions of rule 22 of Nazul manual, lease for nazul land shall not ordinarily be for a period shorter than 30 years in the first instance and shall, in all cases, provide for renewal after expiry of the first and subsequent terms upto a maximum period of 90 years. The granting of lease in perpetuity in respect of any nazul land on any term is prohibited. Rule 67 of Nazul Manual, read with Rule 22, prohibits granting of lease in perpetuity of nazul land. In such cases, where lease was granted in perpetuity or period of lease was not mentioned, a maximum period of 90 years can be considered for lease. Under the above provisions, the nazul land let out on lease for a stipulated period is required to be evacuated as and when the concerned lease terminates. On 1st December, 1998 a further Government order being No.'2268/9-AA-4-98-704N/97' of Awas Anubhag-4 was issued by the Secretary, U.P.Government. As per such Government order, two categories of freehold charges were fixed as per the land use earmarked in the prevailing Master Plan, for'Residential' at the rate of 40% of the applicable Circle Rate of land(s) andfor 'Non-Residential' at the rate of 60% of the applicable Circle Rate of land(s) and not as per the land usage mentioned in the lease deed or actual usage. The aforesaid Government Order dated 1st December. 1998 also states that a discount of 30% shall be given on the freehold amount where the Circle Rate of land(s) has been amended between 30th November, 1990 and 29th November, 1991 and further a discount of 20% on the freehold charges shall be allowed in case of one time payment.With the introduction of the new Nazul Policy, 1998, nazul land can be disposed off by way of sale. If any sale deed is executed, cost of land is to be recovered on the basis of market rate and stamp duty as a conveyance on circle rate of 1991

B- Hon'ble Supreme Court in V. Karnal Durai v. District CollectorTuticorin and Anr. . it has been held that if during the pendency of an application for grant of a mining lease the rules are amended, the application is to be decided as per the amended rules.
C- Honourable H.C Allahabad in S.N. Lal vs State Of U.P. And Ors. 2007 (2) AWC 1491 held as below
    Para 7-----------further the free hold deed executed in favour of the respondent No. 5 was subject to the final decision in the case of Satya Narain Kapoor v. State of U.P. and Ors. hence it is humbly submitted that the deponent has bona fide followed the order passed by this Hon'ble Court.
   Para 19--------- The officer has acted arbitrarily. He adopted an uncalled for procedure-which reflects upon his integrity. His approach to the case has compelled the petitioner to go through the litigation agony, loss of time, and money apart from harassment.
   Para20-------We mould the relief and set aside the order titled 'Minutes of Proceedings' dated 20.12.2004 and declare that sale deed dated 21.12.2004 (between respondent Nos. 3 and 5) shall remain in abeyance/inoperative till final decision on the question of grant of the freehold in favour of the petitioner; and in case it is decided in the petitioner's favour, the respondent No. 5 shall be entitled to the refund of stamp duty on said sale deed in her favour.
     Para 23. Writ petition stands partly allowed to the extent indicated above with cost-which we quantify at Rs. 25,000 to be paid by respondent No. 1 with liberty to realise it from the officer concerned.
D- All G.O of Nazul Land was introduced during the pendency of the proceedings and sub judice as Honourable Allahabad H.C held in Harish Tandon vs State Of U.P. And Anr. on 30/3/2006 ( 2006 (3) AWC 2829 D.B)
para 32 . Save and except Government order of the year 1995 no Government order is static. All the Government orders were time to time reviewed irrespective of the facturn that one of such reviewed Government order of the year 1998 was or still is subjudice before the Supreme Court or before the High Court.

Para 42. . The Government orders as reviewed time to time in the year 1998, which is under challenge, and the Government order of the year 2002, which was introduced during the pendency of the proceeding, appear to be prospective in nature.



Pendente lite

principle of pendente lite nihil innoventur (pending a litigation nothing new should be introduced) as in Section 52 of the Transfer of Property Act, 1882.

( the matters pending at the Supreme Court.)

State of Uttar Pradesh itself was the appellant at the Supreme Court :-

A- 15-10-1997 High Court in Civil Misc. Writ Petition No. 32605 of 1991, Satya Narain Kapoor v. State of U.P. and Ors.. The High Court held therein, apart from other points, 'nazul' land cannot be converted to freehold land. On the Special Leave Petitions of the State of U. P., the Supreme Court passed ad interim orders on different dates. In effect, the orders of the Supreme Court desire that status quo be maintained.

Date : 23-2-98. These petitions were called on for

hearing today.

ORDER

"Special Leave Granted.

Issue notice in the matter of interim relief.

in the meantime, the operation of the impugned judgment shall stay. It is, however, clarified that the stay order shall not imply that eviction of the lessees can take place on that account. Status-quo, as regards possession, shall be maintained till further orders."

Date : (04/05/98) .... .These petitions were called

on for hearing today

Upon hearing counsel the Court made the following

ORDER

Leave granted.

Status-quo in the meanwhile.



B- 1-12-98 Government Orders as a policy, on general land transfers of lease lands, published in a booklet inviting applications for conversion into freehold. In the booklet, the State have made the following clause.

"In this connection, I have been directed to say that the steps be taken under the aforesaid amendment and modification being made applicable with immediate effect, and the policy should be given wide circulation and publication so that the concerned parties may understand its implied provisions and receive its benefits.

All proceedings for freehold will be subject to the orders being passed by the Hon'ble Supreme Court in S.L.P. No. 1557-59/98 filed by the State of U.P. against the decision of the Hon'ble High Court, dated 15-10-1997 in Writ Petition No. 32605/91, Satya Narain Kapoor v. State Government and Ors.

This order is being issued with the concurrence of the Finance Department under its D.O. No. E-6-2286/Ten-98 Dated 28-11-1998."

C- (Harish Tandon vs State Of U.P. And Anr. 2006 (3) AWC 2829 Para 2)

Originally the writ petition was filed by the petitioner on 27th January, 1999 praying inter alia for quashing the Government order dated 1st December, 1998, suitable order for conversion of land after disposal of S.L.P. No. 1157-59 of 1998 filed by the State before the Supreme Court, and orders as regards valuation, stamp duty, etc

D-26-10-2004 the Supreme Court set aside the judgment and order of the High Court by its judgment and order dated 26th October, 2004 and remanded the matter to the High Court for consideration afresh.

E- 21-03-2007 writ of Satya Narain Kapoor vs State Of U.P. And Ors. accordingly dismissed. Interim order, if any, stands vacated

F- Utilisation of leased land for the purpose other than that set forth Under the provisions of Rule 20 of the Nazul manual, every lease or sale of nazul land at concessional rates under Rule 18 or 19 of the rules shall be subject to the condition that if the land leased or sold is not utilised within a period to be fixed by the State Government or for the purpose for which it was given, the State Government has the power to cancel the lease or sale and
resume possession thereof. C.A.G Report year 2006-07Para 4.2.9.1)
http://www.cag.gov.in/html/cag_reports/up/rep_2007/rev_chap_4.pdf






                            Effect and interpretation Of Pendente lite

1- E. Trust Company v. Kenzie Mann & Co., AIR 1915 PC 106 (2). The quoram at the Privy Council was Viscount Haldance, Lord Shaw, Sir George Farwell, Sir John Edge and Mr. Ameer AH. In this case of matters pending issues in Courts, the Privy Council reflected upon what the duty of the sovereign ought to be. The Privy Council observed that "It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in case of doubt to ascertain the law, in order to obey it not to disregard it." In this matter before the Privy Council, there was a question on the construction of a contract. Thus, on this the Privy Council observed "The proper course in the present case would have been either to apply to the Court to determine the question of construction of the contract, and to pay accordingly ...........". The Privy Council was relying on a case Deare v. Attorney General, (1835) 1 Y & C 197 : 41 RR 237 to reflect at page 110:

"It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a Court of Justice where any real point of difficulty that requires judicial decision has occurred."

Further their Lordships are unable to agree with the Supreme Court of Canada in their opinion of the injunction. Apart from the Crown, the Court had clear jurisdiction over all the parties to the action to restrain them from doing any of the acts complained of; its, order and injunction operates in personam, and compels the party forbidden to do any act whether the receipt of money or the like to refrain from doing it, whoever the other party may be, and whatever his rights may ultimately prove to be. The existence of such a jurisdiction has been part of the equitable jurisdiction of our Courts for centuries, and is necessary in a case like the present for the safe preservation of the subject-matter of the action until the rights of the parties can be finally determined. It is misconception to speak of the order and injunction of the Court in such a case as this was only permissive, it was, of course, interlocutory, not final, but it is binding on all parties to the order so long as it remains undischarged, and although it could not bind the Government not to pay or make the Government reasonable for that obedience to the law which the Court was entitled to expect, the man who received in breach of the order was guilty of a contempt in no way cured by the payment by the Government. Their Lordships are unable to agree with the decision of the Supreme Court which gives the Executive to override the judgment of the Court."

2- Mool Chand Yadav v. R.B. Sujar Co. Ltd., 1983 All WC 121. In this regard, the Supreme Court had laid down the law on the conduct of parties, while a matter is under challenge and an appeal may be pending before a Court. In this case, the Court's attention is drawn to the observation of the Supreme Court that judicial approach requires that during the pendency of an appeal, the operation of an order having serious civil consequences must be suspended.

3- Central Inland Water Transport Corporation Ltd. v. Brojo Nath, AIR 1986 SC 1571 : (1986 Lab IC 1312) to submit that affecting property rights and converting grants into freehold rights will affect a section of society adversely, but give unfair advantage to those who are economically sound. The poor will remain poor and even be edged out from their habitats by the rich. One class has paid ratetable taxes and are rate payers for generations, while strangers will squat and edge out the poor and the rate payers. This policy by these new Government Orders in the face of Supreme Court's status quo orders is inequitable and opposite to public policy and law. The petitioners relied on a passage from the aforesaid judgment of the Supreme Court, which reads at page 1612 (of AIR):

"It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution."

4-Bharat Coking Coal Ltd. v. State of Bihar, 1987 SCC (Supple) 394 : (AIR 1988 SC 127). The Supreme Court observed that the proper course for a party would be in case any party was in doubt, to approach the Court (as the matter was pending before the Supreme Court) to seek clarification, if the party had any doubt on the meaning and effect of the status quo.

5-Shree Chamundi Mopeds Ltd. v. Church of S.I.T. Assocn., AIR 1992 SC 1439 : (1992 AIR SCW 1517). Supreme Court itself made a distinction, while considering the effect of an interim order staying the operation of a judgment or order under challenge. A distinction has to be made between quashing of an order and stay of operation of an order. "quashing of an order results in the restoration of position as it stood on the date of the passing of the order which has to be quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence." Thus, the order of the High Court which has been impugned continues to exist in law and so long it exists it cannot be said that the judgment impugned has been effaced from the record.

2 comments:

  1. Dear Sir,
    I am looking for a GO of UP Govt. regarding Nazul Land wherein a Govt. Authority can acquire a Nazul Land.
    Can you oblige me by guiding me.
    sd/- farooque

    ReplyDelete
  2. Dear sir,
    i want to know about law that government can allot land for educational and other society,and how to apply for that?

    ReplyDelete