Anjali Sahkari Avas Samiti Ltd. vs State Of U.P. And Others
2013 Latest Caselaw 7332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Reserved on 12.8.2013
 
                                                                                                               Delivered on 9.12.2013
 

 

 
Case :- WRIT - C No. - 47839 of 2005
 

 
Petitioner :- Anjali Sahkari Avas Samiti Ltd.
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Anupam Kulsrehstha,Shashi Nand
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Shri Anupam Kulsrestha, learned counsel for the petitioner and Shri Ravi Shankar Prasad, learned Additional Chief Standing Counsel.

The writ petition has been filed challenging the order dated 8.5.1998 passed by the Additional District Magistrate (Finance and Revenue) Agra, under the Stamp Act.

The proceedings were initiated on the report of the Sub- Registrar dated 4.10.1991. The Additional District Magistrate (Finance and Revenue) Agra respondent no.3 found deficiency of Rs. 10,87,500/- and imposed penalty under Section (40-B) of the Stamp Act to the tune of Rs. 1,12,500/-.

Challenging the order dated 8.5.1998 a revision was filed before the Chief Controlling Revenue Authority, U.P. Allahabad. The revision was dismissed and the order passed by the Additional District Magistrate(Finance and Revenue) Agra, was affirmed.

The brief facts giving rise to the controversy are that the five plots having total area of 6 Bigha, 10 Biswa of Khata No. 603 of village Ghatwasan, Tehsil and District Agra were recorded in the name of Ram Chand son of Godhan, Smt. Ram Katori wife of Mangla, Lekhraj, Prem Singh, Indrajeet sons of Dauji and Smt. Goma Devi widow of Dauji.

The number and area of five plots are as under:-

"The plot no. 77 area 9 Biswa(0-9-0); Plot no. 78 area 6 Biswa (0-6-0); Plot no. 82 area 1 Bigha 13 Biswa(1-13-0), plot no. 115/1 area 3 Bigha (3-0-0) and plot no. 118 area 1 Bigha 2 Biswa(1-2-0) total area 6 Bigha 10 Biswa of Khata No. 603."

Vide registered sale deed dated 3.3.1989 Ram Chandra transferred his 1/3rd share in all the five plots mentioned above excluding the area 13 Biswa 6 Biswansi of plot no. 115/1 to the Rangji Sahkari Avas Samiti Ltd. Smt. Ram Katori also transferred her 1/3rd share in the all the aforementioned plots in favour of Rangji Sahkari Avas Samiti Ltd. by registered sale deed dated 6.2.1989. Similarly vide sale deed dated 6.2.1989, Lekh Raj, Prem Singh and Indrajeet sons of late Dauji and Smt. Goma Devi widow of Dauji transferred their 1/3rd share in all five plots in favour of Rangji Sahkari Avas Samiti Ltd. through their attorney, namely, Rajendra Tiwari son of Raman Lal Sharma. The possession was also transferred and Rangji Sahkari Avas Samiti Ltd. became owner of the total area 5 bigha 16 Biswa 14 Biswansi of five plots of Khata no. 603 of village Ghatwasan, Tehsil and District Agra.

Thereafter Rangji Sahkari Avas Samiti Ltd. by two separate sale deeds of the same date i.e. 7.8.1991 transferred 1 Bigha 2 Biswa of plot no. 118 and 1 Bigha, 13 Biswa of plot no. 82 for a consideration of Rs. 1,10,000/- and 1,65,000/-; respectively in favour of the petitioner. Thus, total area 2 Bigha, 15 Biswa of two plots, namely, plot no. 82 and 118 was transferred in favour of petitioner Anjali Sahkari Avas Samiti Ltd. Agra.

The petitioner moved an application for mutation of its name in the revenue record. It was then transpired that there was some mistake in the sale deed executed by Lekh Raj, Prem Singh and Indrajeet sons of late Dauji and Smt. Goma Devi, widow of Dauji executed on 6.2.1989 in favour of Rangji Sahkari Avas Samiti Ltd. through their attorney. It was found that the sale deed dated 6.2.1989 was executed by their attorney Rajendra Tiwari on the basis of power of attorney dated 4.10.1987 given by Smt. Goma Devi on her behalf and on behalf of her minor sons Lekh Raj, Prem Singh and Indrajeet. In the power of attorney dated 4.10.1987 it was mentioned that attorney holder Rajendra Tiwari can dispose of "one Bigha, Pukhta" out of total 1/3rd share of Smt. Goma Devi and her three minor sons. Thus the power of attorney dated 4.10.1987 was not with regard to the entire 1/3rd share of Smt. Goma Devi and also her three minor sons. Meaning thereby attorney holder Rajendra Singh could have executed sale deed dated 6.2.1989 in favour of Rangji Sahkari Avas Samiti Ltd. only with regard to one Bigha of 1/3rd share of Smt. Goma Devi and others in the above mentioned five plots. In so far as other sale deeds executed by Smt.Ram Katori and Ram Chandra dated 6.2.1989 and 3.3.1989; respectively there was no dispute.

As soon as the said fault came to the knowledge of the petitioner and Rangji Sahkari Avas Samiti Ltd. they entered into a tripartite deed as the fact of transfer of 1/3rd share of Smt.Goma Devi, Lekh Raj, Prem Singh and Indrajeet was admitted and possession had already been transferred to Rangji Sahkari Avas Samiti Ltd. under the deed dated 6.2.1989. In the tripartite deed dated 4.10.1991, Smt. Goma Devi was described as first party, Rangji Sahkari Avas Samiti Ltd, Agra was second party and Anjali Sahkari Avas Samiti Ltd. Agra was mentioned as third party. In the deed dated 4.10.1991 it has been mentioned that first party had transferred her 1/3rd share of total area of five plots mentioned above in favour of second party by sale deed dated 6.2.1989 executed through power of attorney Rajendra Singh. The total sale consideration had been received by the first party and actual physical possession was handed over to the second party by the first party. Thus second party Rangji Sahkari Avas Samiti Ltd. Agra became owner of the entire area of 5 Bigha, 16 Biswa and 14 Biswansi.

It has been mentioned in the deed dated 4.10.1991 that the total area of 2 Bigha 15 Biswa of plots nos. 82, 118 was transferred by two separate registered sale deeds dated 7.8.1989 executed by second party in favour of third party and possession of the same was also transferred. Further, it was mentioned that at the time of execution of sale deed dated 6.2.1989 in favour of Rangji Sahkari Avas Samiti Ltd. Agra, one of owner Lekh Raj became major and as such his consent was required for execution of sale deed. Moreover area which was actually transferred was 1/3rd share of total area 6 Bigha, 10 Biswa of five plots whereas the power of attorney dated 4.10.1987 was with respect of 1 Bigha of 1/3rd share only. In order to correct the mistake in execution of the sale deed dated 6.2.1989 by power of attorney Rajendra Singh with respect to 1/3 share of Smt. Goma Devi and her sons, present deed was written. The clarification as mentioned in the deed dated 4.10.1991 are as under-:

(1)First party had received sum of Rs. 1,55,000/- for their 1/3rd share in five plots of Khata no. 603 vide registered sale deed dated 6.2.1989 and for correction of said registered document, a sum of Rs. 5000/- has been paid to the first party by the third party as third party had purchased two plots, namely, plots no. 82 and 118 from the second party. The present document was being written in order to correct the mistake occurred during the execution of sale deed dated 6.2.1989 in favour of second party, namely, Rangji Sahkari Avas Samiti Ltd. Agra.

(2) As Lekh Raj and Prem Singh have become major and they are well aware of all the transactions. They have accepted the transfer in favour of second party vide registered sale deed dated 6.2.1989 and possession of second and third party over their respective plots;

(3) That the second and third party had all the rights to get their names muted in the revenue records.

(4) That the second party had accepted assignment made by the first party of the remaining area of plots no. 82 and 118 in favour of third party and accepted its right and possession over the same.

(5) That none of the parties will create any dispute with regard to title and possession of the property in question.

(6) That the present deed provides for completing the transaction between the parties by the earlier instrument.

The document dated 4.10.1991 was impounded and was referred to Collector for determination of market value and the duty payable thereon.

Learned counsel for the petitioner after inviting attention of the court to the contents of document dated 4.10.1991 mentioned above in detail submits that the contents of the document dated 4.10.1991(hereinafter referred to as document in question), which was impounded itself suggest that the same was in the nature of supplementary deed to the sale deed executed in favour of Rangji Sahkari Avas Samiti Ltd. dated 6.2.1989 through attorney Rajendra Singh. He further submits that the Sub-Registrar and the Collector as also the revisional authority have erred in law in treating the document in question as deed of sale and not a deed of assignment(Dastwardari) or supplementary deed and further determining the market value of the entire area 6 Bigha, 10 Biswa of five plots sold by three persons vide three registered sale deeds.

Learned counsel for the petitioner further submits that in fact total area of five plots sold by three co-sharers vide registered sale deed was 5 Bigha, 16 Biswa, 14 Biswansi after excluding the area 13 Biswa 6 Biswansi of plot no.115/1 which was not sold by Ram Chandra by the sale deed dated 3.3.1989.

He further submits that authorities below did not consider the provisions of Section 4 of the Indian Stamp Act, 1899, which clearly provides that where, in the case of any sale, mortgage or settlement, several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of one rupee instead of the duty (if any) prescribed for it in that Schedule.

He submits that the principal deed in the instant case was 6.2.1989 which was executed between the first party namely Smt. Goma Devi and her sons and second party namely, Rangji Sahkari Avas Samiti Ltd. Agra. The mistake had occurred at the time of execution of sale deed dated 6.2.1989 and, therefore, subsequent sale deeds dated 7.8.1991 executed in favour of the petitioner, Anjali Sahkari Avas Samiti Ltd. Agra with respect to plots no.82 and 118 were affected.

The document in question was executed between three parties so as to correct the mistake and to avoid confusion in future. The same can only be said to be a supplementary deed executed for completing the transactions between the parties.

He categorically submits that in any case total area of 6 Bigha, 10 Biswa of five plots could not have been considered for the purpose of computing the deficiency in the stamp duty if any. The report of Sub-Registrar that vide document in question dated 4.10.1991, the area 6 Bigha, 10 Biswa of five plots was sold to the petitioner,Anjali Sahkari Avas Samiti Ltd. is totally incorrect. The Additional District Magistrate(F and R) Agra, without examining fault on its own, simply relied upon the report of the Sub-Registrar and impounded the document dated 4.10.1991 without going through the contents of the same. In any case, total area of five plots namely 6 Bigha 10 Biswa was not the subject matter of the document in question. At best he could have impounded the sale deed dated 6.2.1989 executed by power of attorney Rajendra Singh for 1/3rd share of Smt. Goma Devi and her three sons with respect to their 1/3rd share of five plots i.e. 1/3 of total area 6 Bigha, 10 Biswa. Moreover from the documents on record it is clear that petitioner had purchased only two plots no. 82 and 118 total area of which is 2 Bigha 15 Biswa, thus the finding in the order dated 8.5.1998 passed by the respondent no.3 that vide document in question, total area 6 Bigha 10 Biswa was purchased by the petitioner is wholly wrong. While elaborating his arguments he submits that there were three co-owner of five plots who had 1/3rd share each in total area 6 Bigha 10 Biswa . The revisional authority also did not consider this aspect of the matter and simply affirmed the conclusion drawn by the respondent no.3.

Refuting the submissions of the learned counsel for the petitioner, learned Additional Chief Standing Counsel submits that as the right in respect of the property in question was transferred by way of document in question namely deed dated 4.10.1991 executed between three parties including the petitioner. The said deed in fact was rightly considered as sale deed by the authorities below and was impounded. The deficiency in payment of stamp duty was calculated and penalty was imposed.

He submits that the document in question cannot be treated as supplementary deed or deed of assignment as suggested by the petitioner. Moreover petitioner did not produce the sale deed dated 6.2.1989 before the Authority so that contents of two documents could be tallied. On page 5 of the document in question it has been mentioned that the second party had been assigned total area 6 Bigha, 10 Biswa of five plots and third party had been assigned total area of plot nos. 82 and 118 which was purchased by it from the second party namely Rangji Sahkari Avas Samiti Ltd. From the assertions in the documents in question it is clear that sale of total area 6 Bigha, 10 Biswa of five plots was completed by the same and the title of the parties had been transferred and, therefore, the present deed is in fact in the nature of sale deed and cannot be said to be supplementary deed as suggested by the petitioner.

Having heard learned counsel for the parties and perused the record.

Before dealing with the submissions of the learned counsel for the parties this court thinks it proper to discuss the law relating to levy of stamp duty.

A Special Bench of this Court in Stamp Reference under Section 57 of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Act') in the case of Banney Khan Vs. The Chief Inspector of Stamp. U.P., AIR 1976 Allahabad 475 has held that for determining the nature of a document for levy of stamp duty, the provision of this Act alone will be taken into consideration.

In the case of Nand Kumar Agarwal and another Vs. State of U.P. and others reported in 2009 All. C.J. 1198 considering the acknowledged legal position,the guiding principles for applicability of the Stamp Act in respect of particular document are narrated. Paragraphs 12 and 13 of the judgement are as under

"12. It is an acknowledged legal position that there are two guiding principles for applicability of the Stamp Act in respect of a particular document. They are:

(1) The Court is not bound by the apparent tenor of an instrument, it shall decide according to the real nature or substance of the document; and

(2) The duty is on the instrument and not on the transaction.

"13. To answer as to under what article the instrument falls, the first thing to be looked into is the document itself in order to determine the character thereof. Applying the above principle of law, in my considered view, for the purposes of determining the stamp duty, the document should be taken into account and not the transaction. If the said principle is applied on the facts of the present case, on a plain reading of the instrument, evidently it is nothing but a lease deed. It has not been found by any of the authorities below that from the tenor of the document it is other than a lease deed. What would be the effect of a particular statute on such instrument is another question which does not fall within the purview of the Stamp Act."

In paragraphs 15,and 16 of the Judgement of Nand Kumar Agarwal(Supra) this court has observed that the Stamp Act is a taxing statute. It must be construed strictly. In interpreting a taxing statute, the court must look squarely at the words of the statute and interpret them. It must interpret a taxing statue in the light of what is clearly expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.

Keeping in mind the above proposition of law the court has to look to the instrument in question and has to decide the correct recital and subject taken for the purpose of applicability of Stamp Act.

Learned counsel for the petitioner placed reliance upon the Full Bench Judgment of this court in AIR 1972 Allahabad 252, M/s Somaiya Organics India Ltd. and another Vs. Chief Controlling Revenue Authority . In the said case question was whether the other two documents are supplementary deeds within the meaning of Section 4 of the Act and were liable as such to a duty as prescribed under Section 4 of the Act. In the said case one sale deed was executed on 22nd May, 1966 for a sale consideration of Rs.36,64,678/-The recital that the entire property sold was free from charges or encumbrances. Subsequently it was discovered that the recital that the property was free from charges and encumbrances was incorrect and it was recalled that an equitable mortgage with deposit of title deeds had been created in favour of the Punjab National Bank. Pursuant thereto two deeds dated 20th May, 1968 presented before the Sub-Registrar were impounded. The court while answering the question with regard to the subsequent deeds within the meaning of Section 4 of the Act held that the terms for the sale are contained not only in the first deed but also in the two subsequent deeds. The transaction of sale was as such completed by three instruments, namely, the sale deed and the other two deeds both dated 28.10.1968. That being the position, the case clearly comes within the purview of Section 4 of the Act and two documents aforesaid came within the purview of Section 4 of the Act.

The judgement of this court in M/s.Somaiya Organics India Ltd.(Supra) was affirmed by the Apex court though on the question of calculation of correct duty chargeable under the Stamp Act in respect of sale deed dated 20.6.1968 i.e. the first deed.

He further placed reliance of the judgement of Special Bench of the Madras High Court reported in AIR 1975 Madras , 362, The Chief Controlling Revenue Authority Vs. The Madras Refineries Ltd. In the said case three instruments were executed. It was held that the deed of trust and mortgage is the primary document which attracted stamp duty. The judgement of Madras High court in Chief Controlling Revenue Authority(Supra) was affirmed by the Apex Court as reported in (1977) 2 SCC 308.

Placing reliance on these judgements learned counsel for the petitioner invites attention of the court to section 4 of the Act which reads as follows-:

4. Several instruments used in single transaction of sale, mortgage or settlement-(1) Where, in the case of any sale, mortgage or settlement, several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of one rupee instead of the duty (if any) prescribed for it in that Schedule.

(2) The parties may determine for themselves which of the instrument so employed shall, for the purposes of sub-section (1) be deemed to be the principal instrument:

Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments employed.

Having considered the above proposition of law this court finds sufficient force in the argument made by the learned counsel for the petitioner. There is no dispute about the fact that the sale deed dated 6.2.1989 executed by power of attorney Rajendra Singh for 1/3rd share of Goma Devi and her two sons was for a consideration of Rs. 1,55,000/-.On the basis of said registered sale deed dated 6.2.1989, two plots no. 82 and 118 were transferred in favour of the petitioner by Rangji Sahkari Avas Samiti Ltd. who was transferee of the said deed. Both the sale deeds executed in favour of the petitioner are dated 7.8.1991. As there was discrepancy in the earlier sale deed dated 6.2.1989 as such document in question was executed between the parties on 4.10.1991 and was submitted before the Sub-registrar which was impounded. The recital in the document shows that the same was written in order to correct the mistake occurred during execution of the sale deed dated 6.2.1989 in favour of second party namely Rangji Sahkari Avas Samiti Ltd. The possession of 1/3 share of Goma Devi and her sons was handed over to the Rangji Sahkari Avas Samiti Ltd. Further recital is that the deed provides for completing the transaction between the parties by earlier instruments.

Moreover the document in question dated 4.10.1991 was executed between three parties only with regard to share of Goma Devi and her three sons in the entire area of 6 Bigha 10 Biswa of five plots of Khata No. 603.

In view of the same,decision of the Additional District Magistrate (Finance and Revenue) Agra cannot be sustained as document in question was treated as sale deed for transfer of entire area 6 Bigha 10 Biswa of Khata no. 603 which fact is totally incorrect. It is apparent from the record that only area of 2 Bigha 15 Biswa of two plots no. 82 and 118 was transferred in favour of petitioner Samiti by way of two sale deeds dated 7.8.1989. Thus with this angle also, both the Authorities below erred in treating the document in question as sale deed. The conclusion drawn by both the Authorities below cannot be sustained.

As is clear from the record that the principal sale deeds were executed by co-sharers of five plots having total area of 6 Bigha 10 Bishwa. There is no dispute with regard to two registered sale deeds dated 3.3.1989 and 6.2.1989 executed by two co-sharers namely Ram Chand and Smt. Ram Katori, who had transferred their share of five plots in favour of Rangji Sahkari Avas Samiti Ltd. So far as the present deed in question is concerned, the same is only with reference to the third sale deed executed on 6.2.1989 by the attorney Rajendra Singh for share of Goma Devi and her three sons. Thus in result, the principal sale deed was the deed dated 6.2.1989 and the document in question can at best be said to be a supplementary deed whereby the mistakes occurred in the principal deed were corrected so as to complete the transaction between the parties.

Considering the said aspect, Section 4 of the Act will come into play and the principal instrument i.e. sale deed dated 6.2.1989 only shall be chargeable with duty prescribed in Schedule I and the document in question i.e. the supplementary deed shall be chargeable as per the provision of Section 4 of the Act. This court does not find any Article in Schedule I of the Act which exactly covers the deed / document in question.

Learned counsel from the petitioner further submits that the petitioner had already deposited stamp duty as per Section 4 of the Act, therefore, no further stamp duty is required to be paid. Learned Additional Chief Standing counsel does not dispute the said fact.

In the result, the writ petition succeeds and is allowed. The impugned orders dated 8.5.1998 passed by respondent no.3 , Additional District Magistrate(Finance and Revenue), Agra and 28.4.2005 passed by respondent no.2, Chief Controlling Revenue Authority U.P., Agra, are hereby set aside.

Date:9.12.2013/Aks.