9911796707
TMI Blog2015 (5) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority cannot be sustained or supplemented by fresh reasons supplied, in the shape of an affidavit. Impugned order dated 11.02.2013, is set aside. The respondent no.3 will accord full opportunity to the petitioner to present her case, and in that behalf, will follow scrupulously the mandate of Section 47A of the Act and the provisions of 2007 Rules. Respondent no.3, will also make, the relevant inquiry, if found necessary, as provided under Section 47A of the Act. Needless to say, the relevant exercise in this behalf will be completed as expeditiously as possible, though not later than twelve (12) weeks - Decided in favour of appellant. - WP(C) 2907/2013 - - - Dated:- 5-1-2015 - RAJIV SHAKDHER, J. For The Petitioner : Mr Atishi Dipankar, Advocate For The Respondent : Ms Zubeda Begum, Standing Counsel with Ms Sana Ansari, Advocate. JUDGMENT 1. This is a writ petition directed against order dated 11.02.2013 passed by respondent no.3. The petitioner had approached this court in the previous round, at which stage her grievance was that no adjudication had taken place in respect of the document in issue, i.e., the conveyance deed qua which a substantial sum t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly, the RBI gave its approval vide order dated 21.09.1989. 3.5 It appears that one of the co-owners, who owned, approximately, 6.25 percentage of the property, refused to execute a sale deed even though on his behalf an agreement to sell had been executed via a power of attorney holder. Consequently, the petitioner was constrained to file civil suits, whereby, specific performance was sought of the aforementioned agreements to sell. These civil suits were instituted in 1996 and, were registered as suit nos.: 471/1996, 472/1996 and 473/1996. 3.6 Evidently, the co-owners who were defendant in the suits arrived at a compromise, and resultantly, a consent decree was passed in the aforementioned suits, on 22.01.2007. 3.7 As a logical corollary to the above events, the co-owners made an application to the Delhi Development Authority (in short DDA) for conversion of the land, on which the said property had been constructed, from leasehold to freehold. This application was filed with the DDA, on 08.03.2007. Along with the application, the requisite fee for conversion in the sum of ₹ 54,45,731/- was deposited by the petitioner. 3.8 There was an enormous delay of nearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. 6. Mr Dipankar submitted that the impugned order is flawed for the following reasons: (i) The respondent no.3, while dealing with an application for adjudication under Section 31 of the Act, has taken recourse to an amendment which is applicable to the National Capital Territory of Delhi; the amendment in issue being the insertion of Section 47A. Section 47A, which was brought on to the statute book on 02.11.2001, requires a particular procedure to be followed, including grant of reasonable opportunity to the effected party of being heard. The provisions of Section 47A can only be triggered if the registering officer, while registering the instrument in issue, whereby an immovable property is sought to be transferred, has reason to believe that the value of the property in issue, or the consideration, as the case may be, has not been truly set forth in the instrument in issue. It is only upon formation of such an opinion that the registering officer, may, after registering the instrument, refer the matter to the Collector of Stamps for determination of the value or consideration, as the case may be, to enable levy of proper stamp duty. The determination by the Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree was passed in the suits instituted by the petitioner, and therefore, respondent no.3 could not have taken recourse to the circle rates notified thereafter. (v) The delay in the conversion of the property in issue between 08.03.2007 and 05.03.2012, was clearly attributable to the State (as in the DDA) and, therefore, the petitioner could not be made to suffer on that account. The stamp duty levied is expropriatory, in as much as, the petitioner has paid towards stamp duty, an amount, which is more than the total sale consideration paid for purchase of the property in issue. 7. On the other hand, Ms Zubeda Begum, learned standing counsel for the respondents, made the following broad submissions: (i) That the petitioner had not challenged the order of adjudication dated 14.08.2012. By getting the sale deed dated 23.08.2012 executed in her favour, the petitioner, in a sense, had acquiesced to the stamp duty being determined in the matter. This order was passed under Section 31 of the Act. (ii) That Section 31 of the Act was applicable only in respect of those instruments which were not registered, and therefore, by 15.09.2012 (when yet another communication was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record by the respondents. On being queried, I was informed by Mr Dipankar that only an attested challan was issued based on which stamp duty was deposited. albeit under protest by the petitioner. Ms Zubeda Begum could not refute this aspect. No document was shown to me by Ms. Zubeda Begum which would establish the stand taken to this effect in the counter affidavit. (vii) The conversion was allowed and a conveyance deed was executed in favour of the co-owners only on 05.03.2012. (viii) The petitioner, in turn, got a sale deed executed in her favour on 23.08.2012. (ix) The order on the petitioner s application for determination of the stamp duty was passed only on 11.02.2013, after she had approached the court by way of a writ petition, which was disposed of on 07.01.2013. 9. In the background of the above, three things are clear. Firstly, when the application dated 22.05.2012 was made, to respondent nos. 2 and 3, for adjudication, that application was preferred under Section 31 of the Act. Secondly, there was no order of adjudication passed, which is why, the petitioner approached this court by way of a writ petition. The direction issued by this court led to passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3 was required to ascertain not only the fact that the value mentioned in the sale deed was less than the market value, but also that the petitioner had wilfully under-valued the property, with a fraudulent intention to evade proper stamp duty. [See observations in V.N. Devadoss case, made in paragraph 13 at pages 442 and 443, and those, made in the case of Resident Welfare Association, Noida in paragraphs 48 to 51 at pages 731-732] 10.3 Respondent no.3 was, in my view, also required to ascertain the relevant date on which the value of the property in issue had to be determined. In other words, could it be the date on which the three agreements to sell were executed or, the date on which the decree in the aforementioned suits was passed or, even the date on which the sale deed was executed in favour of the petitioner. [See observations made in Resident Welfare Association, Noida in paragraphs 54 to 56 at pages 732-733]. 10.4 None of the above was considered since respondent no.3 chose not to notice the petitioner. Consequently, the impugned order is liable to be set aside and, a de novo hearing, would have to be, accordingly, accorded to the petitioner. 11. In so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Calcutta High Court, whereby the view of Civil Judge, Siliguri had been sustained, which, inter alia required the Sub-Registrar, Siliguri to assess the stamp duty payable, as per the valuation adverted to in the suit as against the market value of the subject property. 12.1 In this context, the Supreme Court observed, based on the provisions of Stamp Act and the Rules framed thereunder, by the State of West Bengal, that the provisions of the Suit Valuation Act, 1887 cannot be employed for the purposes of assessment of stamp duty, and that the registering authority cannot be compelled to follow invariably , the value fixed by the court for the purposes of suit valuation. It is in this context, that the court observed that for the purposes of registration the instrument in issue has to be valued in terms of the market value at the time of execution of the document. 12.2 As indicated above, these observations were made by the Supreme Court in given set facts. The said observations, in my view, can easily be reconciled with the observation made by another Division Bench in the case of Residents Welfare Association, NOIDA. 12.3 Therefore, for the reasons articula ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
