Bombay High Court
Shivraya Coop. Hsg. Society And ... vs State Of Maharashtra Revenue And ... on 28 September, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
WPs 3905,4721 & 5284-08 1 Common Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3905/2008
1. Snehaprabha Co-operative Housing Society,
Through its Secretary having its registered
office at Priyadarshani Nagar, Near Regional
Transport Office, Nagpur.
2. Shankar Nanduji Chandekar,
Aged about 50 years, Occupn-Business,
R/o 2/4, Priyadarshani Nagar, Near
Regional Transport Office, Nagpur.
3. Vishram Vasudeo Dharmadhikary,
Aged about 56 years, Occupn-Service,
R/o 1/3, Priyadarshani Nagar, Near
Regional Transport Office, Nagpur. PETITIONERS
-VERSUS-
1. State of Maharashtra, Through its Secretary
for Revenue and Forest Department,
Mantralaya, Mumbai-32.
2. Inspector General of Registrations &
Controller of Stamps, Maharashtra State,
Sadhu Waswani Chowk, New
Administrative Building Pune.
3. Dy. Inspector General of Registrations &
Controller of Stamps, Shivaji Nagar, Nagpur.
4. Joint District Registrar of Registrations &
Controller of Stamps, Shivaji Nagar, Nagpur.
5. The Maharashtra Housing and Area
Development Authority, Through its
Chief Officer, Civil Lines, Nagpur. RESPONDENTS
WITH
WRIT PETITION NO. 4721/2008
1. Shivraya Co-operative Housing Society,
Through its Secretary Suresh Panjabrao Giri,
Aged about 52 years, H.I.G. Building No.B1,
Near Hislop College, Samruddhi
Sankul, Nagpur.
2. Anil S/o Suratlal Chaurasiya,
Aged about 51 years, Flat No.403, H.I.G.
Building No.B1, Near Hislop College,
Samruddhi Sankul, Nagpur. PETITIONERS
WPs 3905,4721 & 5284-08 2 Common Judgment
-VERSUS-
1. State of Maharashtra, Through its Secretary
for Revenue and Forest Department,
Mantralaya, Mumbai-32.
2. Inspector General of Registrations &
Controller of Stamps, Maharashtra State,
Sadhu Waswani Chowk, New
Administrative Building Pune.
3. Dy. Inspector General of Registrations &
Controller of Stamps, Shivaji Nagar, Nagpur.
4. Joint District Registrar of Registrations &
Controller of Stamps, Shivaji Nagar, Nagpur.
5. The Maharashtra Housing and Area
Development Authority, Through its
Chief Officer, Civil Lines, Nagpur. RESPONDENTS
WITH
WRIT PETITION NO. 5284/2008
1. A-1 Cooperative Housing Society,
Through its Secretary/President Madan S/o
Angmuthu Pillay, Aged about years, H.I.G.
Building No.A-1, Near Hislop College,
Samruddhi Sankul, Nagpur.
2. Madan S/o Angmuthu Pillay,
Aged about years, H.I.G. Building No.A-1,
Near Hislop College, Samruddhi Sankul, Nagpur.
3. The Samruddhi Sahniwas Sahakari Gruhnirman
Sanstha Ltd., Nagpur, Through its President/
Secretary Krishnakumar Urkudaji Lanjewar,
Aged about 50 years, H.I.G. Building No.C,
Near Hislop College, Samruddhi Sankul, Nagpur.
4. Krishnakumar Urkudaji Lanjewar,
Aged about 50 years, H.I.G. Building No.C,
Near Hislop College, Samruddhi Sankul, Nagpur.
5. Mansarovar Cooperative Housing Society Ltd.,
Nagpur, Through its President/Secretary
Sanjay S/o Basudeo Bose, H.I.G. Building
No.A-3, Near Hislop College, Samruddhi
Sankul, Nagpur.
6. Sanjay S/o Basudeo Bose,
Aged: Major, R/o H.I.G. Building No.A-3,
Near Hislop College, Samruddhi Sankul, Nagpur. PETITIONERS
WPs 3905,4721 & 5284-08 3 Common Judgment
-VERSUS-
1. State of Maharashtra, Through its Secretary
for Revenue and Forest Department,
Mantralaya, Mumbai-32.
2. Inspector General of Registration And
Controller of Stamps, Maharashtra State,
Sadhu Waswani Chowk, Near
Administrative Building Pune.
3. Deputy Inspector General of Registrations and
Controller of Stamps, Shivaji Nagar, Nagpur.
4. Joint District Registrar of Registrations &
Controller of Stamps, Shivaji Nagar, Nagpur.
5. The Maharashtra Housing and Area
Development Authority, Through its
Chief Officer, Civil Lines, Nagpur. RESPONDENTS
__________________________________________________________________________
Shri Amol B. Patil, counsel for the petitioners in Writ Petition Nos.3905/2008
and 4721/2008.
Shri Pradeep S. Wathore, counsel for the petitioners in Writ Petition No.5284/2008.
Shri Neeraj R. Patil, Assistant Government Pleader for the respondent nos.1 to 4.
Shri Nitin A. Vyawahare, counsel for the respondent no.5.
CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : 29TH JULY, 2022.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 28 TH
SEPTEMBER, 2022.
JUDGMENT (PER : A.S. CHANDURKAR, J.)
The challenge raised in these writ petitions is to the order dated
07.06.2008 issued by the Revenue and Forest Department, Mantralaya,
Mumbai as well as to the Circular dated 09.06.2008 issued by the
Inspector General of Registration and Controller of Stamps, Pune to the
extent the same relate to payment of stamp duty on letters of allotment
and letters of transfer issued by the Maharashtra Housing and Area
Development Authority (for short, 'MHADA') in favour of the members of
Co-operative Housing Societies. For sake of convenience, the facts in Writ
Petition No.3905 of 2008 are being referred to.
WPs 3905,4721 & 5284-08 4 Common Judgment
It is the case of the petitioners that the petitioner no.1 is a Co-
operative Tenant Co-Partnership Housing Society. The petitioner nos.2
and 3 are its members having been issued allotment letters by the said
Society with regard to a high income group housing scheme. According
to the petitioner nos.2 and 3 they had sought allotment of tenements
pursuant to a notice and advertisement issued by MHADA. On being
successful they were issued letters of allotment. The letters of allotment
are dated 21.11.1985 and 26.05.1987 respectively. The housing scheme
is governed by the provisions of the Maharashtra Housing and Area
Development Act, 1976 (for short, 'the Act of 1976') as well as the
Maharashtra Housing and Area Development (Estate management, Sale,
Transfer and Exchange of Tenements) Regulations, 1981 (for short, 'the
Regulations of 1981'). The petitioner nos.2 and 3 contend that all
payments in terms of letters of allotment have been made by them. A
conveyance in favour of the society is required to be issued by MHADA
and till that time the members are entitled to continue as tenants of
MHADA. According to the petitioners they have been informed that
MHADA would not execute sale-deeds in their name and the conveyance
would be issued only in favour of the housing society. Since allotment,
there has been no demand of any stamp duty or other charges either by
the State Government or by any other Authority.
WPs 3905,4721 & 5284-08 5 Common Judgment
2. On 07.06.2008 the Revenue and Forest Department came out with
an Amnesty Scheme 2008 also known as 'Abhay Yojana'. In the said order
it has been stated that the State Government was satisfied that it was
necessary in public interest to reduce the amount of penalty chargeable
under Sections 31(4)(ii), 32A(2) & (4) and 39(1)(b) of the Maharashtra
Stamp Act, 1958 (for short, 'the Act of 1958'). The Scheme was to
operate from 09.06.2008 to 08.09.2008. The documents eligible under
the said Scheme were specified. It was also stated that except the
instruments executed by MHADA, unstamped instruments executed on
plain paper would not be entitled to any benefit under the Scheme.
Pursuant to the aforesaid order, the Inspector General of Registration and
Controller of Stamps issued a Circular indicating the manner in which the
benefit under the said Scheme could be obtained. While indicating the
scope thereof, reference was made to the documents pertaining to
Bungalows, Flats, Shops, etc. of residential/non-residential nature.
Similarly reference was also made to cases where proceedings under
Sections 32A, 33, 33A and 46 of the Act of 1958 were pending. In the
light of this Circular a public notice was issued by the Chief Officer,
MHADA on 07.08.2008. It was informed that persons interested could
take advantage of aforesaid Scheme by submitting all relevant documents
with regard to the documents for which no stamp duty had been affixed.
In the aforesaid backdrop, it is the case of the petitioners that since the
aforesaid Scheme was sought to be made applicable to the documents
WPs 3905,4721 & 5284-08 6 Common Judgment
executed by MHADA in the form of allotment letters, they have
challenged the order dated 07.06.2008 issued by the Department of
Revenue and Forest as well as the Circular dated 09.06.2008 issued by the
Inspector General of Registration and Controller of Stamps to that extent.
3. Shri Amol Patil, learned counsel for the petitioners in Writ Petition
Nos.3905 and 4721 of 2008 referred to the various statutory provisions of
the Act of 1958 as well as the Act of 1976 including the Regulations of
1981 to urge that various Sections mentioned in the Circular dated
09.06.2008 were not at all attracted insofar as the petitioners were
concerned. There had been no adjudication with regard to the letters of
allotment executed in favour of the petitioners. All the allotment letters
were executed within the State of Maharashtra and no instrument was
shown to have been undervalued. In absence of such statutory
adjudication the allotment letters could not have been subjected to the
Amnesty Scheme thus compelling the petitioners to pay the stamp duty
thereunder. The letters of allotment could not be treated to be a
conveyance for the purposes of the Act of 1958. It was only after MHADA
executed a deed in favour of the Co-operative Housing Society that it
could be said that a conveyance had been issued. Reference in that
regard was made to Article 25(d) of Schedule-I to the Act of 1958 to
substantiate the said contention. It was further submitted that though the
allotments in question were made in the year 1987-88 the same were
WPs 3905,4721 & 5284-08 7 Common Judgment
sought to be subjected to payment of stamp duty after almost twenty one
years. In some cases there had been a transfer of the tenements by the
original allottee and despite that stamp duty was being sought even on
earlier transactions that were already complete. It was thus submitted
that when the letter of allotment in favour of original allottee was not
chargeable under the Act of 1958 there was no justification in seeking to
issue a public notice on 07.08.2008 requiring participation of the allottees
in the Amnesty Scheme. To substantiate his contention that there was no
conveyance issued yet in favour of the allottees, reliance was placed on
the decisions in Veena Hasmukh Jain & Another Versus State of
Maharashtra & Others [(1999) 5 SCC 725], Hanuman Vitamin Foods Pvt.
Ltd. & Others Versus State of Maharashtra & Another [(2000) 6 SCC
345] and Kishore K.Shahani & Others Versus State of Maharashtra &
Another [2001(3) Mh.L.J. 724].
It was pointed out that pursuant to the interim orders passed in the
writ petitions the petitioners had paid the stamp duty under the Amnesty
Scheme under protest and subject to final outcome of the writ petitions.
It was thus submitted that the prayers as made in the writ petitions be
granted.
Shri Pradeep Wathore, learned counsel for the petitioners in Writ
Petition No.5284 of 2008 adopted the aforesaid submissions. In addition
it was submitted that the petitioners had paid all the requisite demands
and there were no outstanding dues/service charges that were required to
WPs 3905,4721 & 5284-08 8 Common Judgment
be paid by them. The learned counsel sought leave to delete paragraph 8
in the writ petition wherein it was pleaded that MHADA had got a
tenancy agreement executed in Form VI as per Regulation 20(2) of the
Regulations of 1981. The learned counsel also referred to the decisions in
M/s Terai Tea Company Limited Versus Kumkum Mittal & Others [2019
ALL SCR 2506], Asset Reconstruction Company (India) Limited Versus
M/s Alpha & Omega Diagnostics (India) Ltd. & Others [2017(2) ALL MR
29] and Pandurang R. Kanade & Another Versus The State of
Maharashtra & Others [2018(5) ALL MR 329]. He too prayed for grant of
appropriate relief.
4. Shri Neeraj Patil, learned Assistant Government Pleader for the
respondent nos.1 to 4 opposed aforesaid submissions. He referred to the
affidavit-in-reply filed on behalf of the respondent nos.2 to 4. It was his
submission that even if the documents by which the tenements were
allotted to the petitioners were styled as allotment letters they were infact
in the nature of an agreement for sale of a specific tenement allotted to
such member. What was relevant was the nature of the transaction and
the title given to the document in question would be immaterial. It was
further submitted that various transactions had taken place since the
issuance of the allotment letters and according to him if it was the case of
the petitioners that the documents executed in their favour were not
liable to payment of stamp duty then there was no question of
WPs 3905,4721 & 5284-08 9 Common Judgment
participation in the Amnesty Scheme since the same was voluntary in
nature. The persons having title in the property in question were liable to
pay the requisite duty and hence there was no illegality in the order dated
07.06.2008 or the Circular dated 09.06.2008 to warrant interference by
this Court.
5. Shri Nitin Vyawahare, learned counsel for MHADA also opposed
the writ petition. At the outset, he submitted that though the petitioner
no.1 in the writ petitions was the Co-operative Housing Society there was
no proper authorization in favour of the society to raise the aforesaid
challenges. He too referred to the affidavit-in-reply filed on behalf of the
respondent no.5. According to him, pursuant to issuance of the allotment
letters each member of the Co-operative Housing Society was required to
pay hire purchase charges. He referred to various provisions of the
Regulations of 1981 and submitted that various allottees had not paid the
entire hire purchase installments. Some allottees had not paid service
charges, ground rent as well as the requisite surcharge. Until all such
dues were cleared there was no question of executing any conveyance in
favour of the Housing Society. It was the liability of the person occupying
the tenement to pay requisite stamp duty and hence the allottees could
not contend that they were not liable to pay the stamp duty in any
manner. It was submitted that the writ petitions were liable to be
dismissed.
WPs 3905,4721 & 5284-08 10 Common Judgment
6. In reply, it was submitted by the learned counsel for the petitioners
that in the reply as filed there was no objection raised on behalf of
MHADA to the maintainability of the writ petitions. The same was being
raised at a belated stage. The writ petitions had been filed on the basis of
valid authorization. Reference was made to Regulation 24 of the
Regulations of 1981 to urge that transfer of tenancy was permissible and
there was no illegality committed by the petitioners.
7. We have heard the learned counsel for the parties at length and we
have perused the documents placed on record. Before considering the
challenge as raised it would be necessary to first refer to the order dated
07.06.2008 issued by the Revenue and Forest Department, Mantralaya,
Mumbai. The said order has been issued in exercise of the power
conferred by Section 9A of the Act of 1958. Under the said provision if
the State Government is satisfied that it is necessary in the public interest
to reduce or remit either prospectively or retrospectively the duties or
penalties or both with which any instrument or class of instruments are
chargeable, the same can be done by publishing the requisite rule or order
in the official gazette. The said power therefore can be exercised with a
view to reduce or remit the duties or penalties payable on any instrument.
This is after being satisfied that it is necessary to do so in public interest.
In the order dated 07.06.2008 it has been stated that on being satisfied
that it was necessary in public interest to reduce the amount of penalty
WPs 3905,4721 & 5284-08 11 Common Judgment
chargeable under Sections 31(4)(ii), 32A(2), 32A(4) and 39(1)(b) of the
Act of 1958 with regard to instruments relating to residential or non-
residential units the same was issued. Where the deficit stamp duty was
up to Rupees Twenty Five Thousand the amount payable was Rupees Five
Hundred and where the amount of deficit stamp duty was Rupees Twenty
Five Thousand or more an amount of Rupees One Thousand was payable.
The Scheme was known as Amnesty Scheme, 2008. The terms and
conditions for reduction in penalty to be availed were stipulated and
except instruments executed by MHADA, unstamped instruments were
not entitled for any benefit. It was also provided that documents eligible
under the Scheme for which action under Sections 32A, 33 or 33A had
been initiated or action under Section 46 of the Act of 1958 to recover
dues as arrears of land revenue or cases in which proceedings were
pending before any Court or Authority under the Act of 1958, the same
would be entitled to the benefit of the Scheme. Section 31 of the Act of
1958 relates to an adjudication with regard to stamp duty payable.
Section 32A indicates the manner in which an undervalued instrument of
conveyance is to be dealt with. Section 39 refers to the Collector's power
to stamped instruments that are impounded. Under Section 46 the
manner in which recovery of duties and penalties are to be effected by
way of land revenue has been laid down.
WPs 3905,4721 & 5284-08 12 Common Judgment
8. On the perusal of the order dated 07.06.2008 it becomes evident
that the same is issued only with an intention to reduce the amount of
penalty that is chargeable under various provisions of the Act of 1958 as
quoted therein. Admittedly in the present case there has been no
adjudication as to the amount of stamp duty that is liable to be paid on
the instruments in question. The liability to pay penalty would arise after
an adjudication with regard to determination of proper stamp duty has
been undertaken. The order dated 07.06.2008 will have to be viewed in
that context. In other words, unless there has been the requisite
adjudication as provided under Section 31(4), 32A(2) & (4), 39(1)(b) or
steps with regard to recovery of arrears of stamp duty under Section 46
there would be no occasion to fall within the ambit of the order dated
07.06.2008 to seek reduction in the amount of penalty as imposed. As
stated above the statutory adjudication of the letters of allotment in
favour of the petitioners has yet not been undertaken.
9. Coming to the Circular dated 09.06.2008 issued by the Inspector
General of Registration and Controller of Stamps the same has been
issued to facilitate the working of the Amnesty Scheme, 2008 pursuant to
the order dated 07.06.2008. It also refers to the concession to be given in
the amount of penalty payable. It is pursuant to this Circular that a public
notice was issued by the Chief Officer, MHADA on 07.08.2008 informing
members of public of Amnesty Scheme, 2008 being implemented and the
WPs 3905,4721 & 5284-08 13 Common Judgment
same being in force from 08.09.2008. Perusal of the said public notice
merely indicates that it is by way of intimation to persons interested to
take advantage of the Amnesty Scheme, 2008.
10. Another aspect to be noted is that the general nature of an
Amnesty Scheme is to provide an opportunity to persons interested in
taking benefit of the decision taken by the State Government to reduce or
remit the duty or penalty payable on an instrument. There is no element
of compulsion therein and participation in such Amnesty Scheme is purely
voluntary. The order dated 07.06.2008 or the Circular dated 09.06.2008
as well as the public notice dated 07.08.2008 nowhere indicate any
aspect of compulsion therein by which any person is forced to submit
himself to such Amnesty Scheme. Participation therein is purely
voluntary in nature. In the present case too it has not been indicated that
the petitioners were compelled to submit themselves to the Amnesty
Scheme-2008. The public notice issued by the Chief Officer, MHADA is
merely by way of an intimation to the persons interested to take benefit of
that Amnesty Scheme.
11. It is therefore found that in absence of primary adjudication of the
relevant instruments any aspect as to whether any duty or penalty is
payable thereon cannot be the subject matter of determination in such
manner. Only after there has been some adjudication determining the
WPs 3905,4721 & 5284-08 14 Common Judgment
amount of duty or penalty payable, would the question of participation in
an Amnesty Scheme aimed with reducing the amount of penalty would
arise. It is also found that there is a dispute raised with regard to the
entire dues liable to be paid by the petitioners. While according to the
petitioners all amounts due have been paid by them, the same has been
denied by MHADA in its reply by stating that most of the petitioners have
still not cleared all the necessary dues. This would be another reason that
would not enable the Court to undertake determination of the liability to
pay duty or penalty for the first time in the present proceedings. The
petitioners by raising challenge to the order dated 07.06.2008 and the
Circular dated 09.06.2008 infact are seeking a declaration that they are
not liable to pay any duty or penalty on their respective instruments.
Such determination, in our view cannot be undertaken for the first time in
exercise of writ jurisdiction. The statutory scheme of the Act of 1958
requires such adjudication to be made initially by the Authorities
constituted under the Act of 1958. After such statutory adjudication is
undertaken in which the petitioners are free to deny their liability can a
challenge be raised to the said adjudication if the same is incorrect. We
are therefore not inclined to go into the question as to whether the said
instruments can be termed to be 'conveyance' under the Act of 1958 and
especially in the context of Article 25 of Schedule-I thereto. For these
reasons we find that at present there is no cause of action for the
petitioners to challenge the order dated 07.06.2008 or the Circular
WPs 3905,4721 & 5284-08 15 Common Judgment
dated 09.06.2008 wherein the Amnesty Scheme-2008 is sought to be
operated. We have therefore not gone into the various decisions relied
upon by the learned counsel for the petitioners in that regard.
Examination of that contention would be permissible either during or
after any statutory adjudication is undertaken by the Authorities under
the Act of 1958.
12. Hence for all these reasons we do not find that the challenge as
raised to the order dated 07.06.2008 and the Circular dated 09.06.2008
can be successfully upheld. It is seen that pursuant to the interim orders
passed in the writ petitions, the petitioners have paid some duty under
the Amnesty Scheme-2008 under protest. Such payment would enure to
the benefit of the petitioners who have paid that amount in any future
statutory adjudication that would be undertaken under the Act of 1958.
If in future there is any demand made from the petitioners who have
made such payments under protest the same shall be taken into
consideration in accordance with law. With these observations, the writ
petitions are dismissed. Rule stands discharged leaving the parties to bear
their own costs.
(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)
APTE
WPs 3905,4721 & 5284-08 16 Common Judgment
Signed By: Digitally signed
byROHIT DATTATRAYA
APTE
Signing Date:28.09.2022 17:50
