Bombay High Court
Shri. Kshitij Pravin Desai And Anr vs Chief Controlling Revenue Authority, ... on 2 May, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:20065
901-WP-4838-2017.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4838 OF 2017
1. Shri Kshitij Pravin Desai
Age : 60 years, Occupation -
Service/Agriculturist
Address : Juhu Versova Link Road
Andheri West
Mumbai-400 061
2. Shri Jayant Ruplal Nangia
Age : 60 years, Occupation -
Service/Agriculturist
Address : Silver Oka Co-op Hsg. Soc,
Flat No. 702, B-Wing, Hiranandani Garden
Pawai, Mumbai-400076 ... Petitioners
Versus
1. Chief Controlling Revenue Authority, Pune
Office of the Inspector General of
Registration and Controller of Stamps,
Maharashtra State, Pune Ground Floor,
Administrative Building
Pune-411 001
2. The State of Maharashtra
Department of Ministry of Revenue
Mantralaya
Mumbai ... Respondents
1/16
::: Uploaded on - 02/05/2024 ::: Downloaded on - 03/05/2024 18:04:34 :::
901-WP-4838-2017.docx
Mr. Abhijeet Rane a/w. Ms. Swarta Suryawanshi for the Petitioners.
Ms. M. S. Bane, AGP for the State.
CORAM: GAURI GODSE, J.
RESERVED ON: 25th JANUARY 2024
PRONOUNCED ON: 2 nd MAY 2024
JUDGMENT:
1. This petition challenges an order dated 6 th May 2016 passed by
the Chief Controlling Revenue Authority rejecting the appeal preferred
under Section 53(1A) of the Maharashtra Stamp Act, 1958 ("The
Stamp Act"). The petitioners preferred the said appeal to challenge an
order dated 18th September 2012 passed by the Collector in an
adjudication case under Section 31 of the Stamp Act, calling upon the
petitioners to pay an amount of Rs.7,14,740/- against deficit stamp
duty on the deed of conveyance. Based on a sale permission for the
non-agricultural use of the land for a housing scheme, the deed of
conveyance was executed in favour of the petitioners.
2. Learned counsel for the petitioners submitted that on 9 th
November 2006, the owners executed an agreement for sale in favour
of the petitioners for agricultural land. However, the petitioners were
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unable to register the said agreement. Subsequently, the document
was impounded by an order dated 26 th April 2011 passed in Evasion
Case No. 168 of 2011. Order dated 13 th January 2012 directed the
petitioners to pay an amount of Rs.61,560/- towards deficit stamp duty
and a penalty of Rs.66,377/-. Accordingly, the petitioners deposited the
amount towards the deficit stamp duty and penalty on the document of
agreement for sale dated 9th November 2006.
3. The learned counsel for the petitioners submitted that an
application was filed for sale permission under Section 43 of The
Maharashtra Tenancy and Agricultural Land Acts, 1948 ("the Tenancy
Act"). The sale permission was granted on 1 st August 2012. The
petitioners applied for a zone certificate, which was issued by the Town
Planning and Valuation Department, Alibaug, on 5 th September 2012,
classifying the said land as 'Agricultural Land in G-1 (Green) Zone'.
Thereafter, the sale deed was prepared for the said land and
submitted before the Collector of Stamps for adjudication. By order
dated 18th September 2012, the Collector of Stamps passed an order
under Section 31 of the Stamp Act, and the document was adjudicated
for payment of stamp duty of Rs.7,14,740/-. The petitioners paid the
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amount of stamp duty, and the document was registered on 25 th
September 2012. Thereafter, the petitioners filed an appeal under
Section 53(1A) of the Stamp Act to challenge the adjudication made by
the Collector of Stamps. By order dated 6th May 2016, the said appeal
was rejected by the Deputy Inspector General of Registration and
Deputy Controller of Stamps.
4. The learned counsel for the petitioners submitted that the said
appeal was rejected on an erroneous ground that the appeal ought to
have been filed before the Deputy Inspector General of Registration
and Deputy Controller of Stamps under Section 32B of the Stamp Act.
Hence, this petition is filed to challenge the order dated 6 th May 2016.
The petitioners also prayed for a refund of the stamp duty of
Rs.7,14,540/- paid on the conveyance which was registered.
5. Learned counsel for the petitioners submitted that the petitioners
wanted to register the sale deed; hence, the stamp duty was paid as
per the assessment made on 18 th September 2012. However, the
petitioners realised that the adjudication was wrongly made and
therefore filed the appeal by relying upon Section 50 of the Stamp Act
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and the principles of law laid down by the Hon'ble Supreme Court in
the decision of Commissioner of Sales Tax, U.P Vs Auriaya
Chamber of Commerce, Allahabad. 1 He further submitted that the
petitioners had paid stamp duty on the agreement and, therefore, were
not liable to pay stamp duty again at the time of registration of the
conveyance.
6. Learned counsel submitted that the agreement was already
assessed as 'Agricultural Land' at the time of adjudication of the
agreement for sale dated 9 th November 2006; however, subsequently,
the adjudication is made by the Collector of Stamps by considering the
said land as 'Non-Agricultural Land'. He submitted that at the time of
execution and registration of the deed of conveyance, the status of the
land was 'Agricultural Land', and the status was never changed. He
submitted that since the said land was 'Agricultural Land', permission
was also granted under Section 43, read with Section 63 of the
Tenancy Act.
7. Learned counsel relied upon the order passed granting sale
permission and submitted that the grant of sale permission under
1 (1986) 3 SCC 50
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Section 43, read with Section 63 of the Tenancy Act itself, indicates
that the nature of the land was never changed. Thus, the petitioners,
by filing an appeal, raised objection on the assessment made by the
Collector of Stamps while adjudicating the deed of conveyance by
considering the status of the said land as 'Non-Agricultural Land'. He
then submitted that the petitioners were thus required to pay additional
stamp duty because of the wrong adjudication; hence, the petitioners
are entitled to a refund of the additional stamp duty paid as per the
assessment of the Collector of Stamps and the amount of penalty
imposed by the said adjudication order.
8. Learned AGP supported the impugned orders and submitted that
the petitioners had accepted the assessment made by the Collector of
Stamps, paid stamp duty, and got the document registered. Thus, the
petitioners cannot be termed as an aggrieved party for filing an appeal.
She submitted that the petitioners, not being an aggrieved party
cannot claim benefit by challenging the order after payment of stamp
duty and getting the document registered. She further submitted that
the benefit of the stamp duty paid by the petitioners as per the earlier
adjudication of the agreement for sale is already given to the
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petitioners at the time of adjudication of the deed of conveyance.
9. Learned AGP submitted that at the time of execution of the deed
of conveyance, since the amount of market value was higher than the
amount of consideration for the sale, the petitioners were liable to pay
the stamp duty on the higher value in terms of Section 4 of the Stamp
Act. She thus submitted that no fault can be found in the adjudication
made by the Collector of Stamps and the subsequent order upholding
the adjudication. She thus submitted that there is no substance in the
arguments made on behalf of the petitioners, and they are entitled to a
refund of stamp duty and penalty imposed on the deficit stamp duty.
10. In response to the submissions made by the learned AGP,
learned counsel for the petitioners submitted that the Collector of
Stamps while adjudicating the document for agreement for sale, had
taken into consideration the market value of the land and the amount
of consideration of the document. He relied upon the market value of
the land as referred to by the adjudicating authority as Rs.3,11,500/- at
the time of the adjudication order made on 13 th January 2012.
901-WP-4838-2017.docx
11. He further submitted that the zone certificate issued by the Town
Planning and Valuation Department, Alibaug, on 5 th September 2012,
certifies that the said land is in a green zone. He thus submitted that
once the status of the land never changed, the adjudicating authority
committed serious error in considering the market rate as per the
ready reckoner rates of non-agricultural land for the purpose of
adjudication of the deed of conveyance. He thus submitted that in view
of the incorrect adjudication made by taking into consideration the
valuation of non-agricultural land, the petitioners were required to pay
additional stamp duty. Hence, they are entitled to a refund of the
additional stamp duty paid.
12. I have considered the submissions made by both parties.
Perused the record. A perusal of the impugned order indicates that the
Appellate Authority has examined the basic facts of the case as under:
(i) Petitioners executed an agreement for sale on 9 th
November 2006; however, the document was not registered.
The document was subsequently impounded by an order dated
26th April 2011, and the petitioners were directed to deposit an
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amount of Rs.61,560/- towards deficit stamp duty and a penalty
of Rs.66,377/-. The document dated 9 th November 2006 is styled
as 'Agreement for Sale'.
(ii) On 13th January 2012, the petitioner deposited the amount
of deficit stamp duty and penalty on the document dated 9 th
November 2006.
(iii) Since the petitioners wanted to execute a deed of
conveyance pursuant to the said agreement for sale, they filed
an application for adjudication before the Collector of Stamps,
who decided the application under section 31 of the Stamp Act
on 18th September 2012.
(iv) The document submitted for adjudication was classified as
a document under Section 25(b) of Schedule I of the said Act.
(v) By order dated 18th September 2012, the petitioners were
directed to pay an amount of stamp duty of Rs.7,14,740/- by
giving set off against the stamp duty of Rs.61,560/- already paid
by the petitioners on the agreement for sale. The market value of
the said land was ascertained as Rs.1,55,24,000/-.
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(vi) The petitioners accordingly deposited the adjudicated
amount of stamp duty on 25 th September 2012, and the
document for the deed of conveyance was registered.
13. Aggrieved by the order of adjudication passed on 18 th September
2012, the petitioners filed the appeal before the Chief Controlling
Revenue Authority under section 53(1A) of the Stamp Act. In view of
the contentions raised on behalf of the petitioners, the Appellate
Authority framed points for consideration on the petitioners' right to file
an appeal under Section 53(1A) of the Stamp Act and whether the
petitioners had proved that any excess stamp duty was paid on the
instrument submitted for adjudication.
14. After examining the submissions made on behalf of the
petitioners, the Appellate Authority held that the petitioners had
accepted the adjudication order passed on 18th September 2012 and
got the document registered by paying stamp duty as per the
adjudication order. The Appellate Authority observed that in the order
dated 18th September 2012, the Collector of Stamps indicated that if
the petitioners were aggrieved by the adjudication, an appeal remedy
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is available under section 32(B) of the Stamp Act, which can be filed
within 60 days of the date of the order. However, the petitioners failed
to exhaust the said remedy by filing any appeal under section 32(B) of
the Stamp Act. However, the petitioners accepted the adjudication,
paid stamp duty and got the document registered.
15. The Appellate Authority further observed that the petitioners had
filed an application for adjudication under Section 31 of the Stamp Act,
deposited the stamp duty on completion of adjudication, got the
document registered and thereafter filed the present appeal under
Section 53(1A) of the Stamp Act contending that the petitioners are
aggrieved by the original order of adjudication passed on 18 th
September 2012. Hence, the Appellate Authority held that the
petitioners had no locus standi to file an appeal before the Appellate
Authority to challenge the order of adjudication made on 18 th
September 2012. The petitioners have already accepted and
complied with the order.
16. With regard to the petitioners' contention that an excess payment
was made towards stamp duty, the Appellate Authority held that the
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petitioners, without proving the case on the merits of any excess
payment of stamp duty, filed the appeal on assumptions and
presumptions. Thus, with these observations, the Appellate Authority
rejected the appeal preferred by the petitioner, and therefore, the
original adjudication order passed on 18 th September 2012 was
confirmed.
17. From the perusal of the record, it appears that the agreement for
sale dated 9th November 2006 was executed in favour of the
petitioners and on adjudication, the petitioners had paid stamp duty of
Rs.61,560/-. The said adjudication was made on consideration of the
amount of the agreement, i.e. Rs.10,25,750/- as the same was higher
than the market value of Rs.3,11,800/- as per the ready reckoner rates
for agricultural land.
18. Admittedly, an application was made for permission to sell and
execute the deed of conveyance in terms of the agreement for sale.
The Assistant Collector granted the permission by order dated 1 st
August 2012 passed under Section 43, read with Section 63 of the
Tenancy Act, on certain terms and conditions. A perusal of the sale
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permission indicates that the land is classified as situated in a green
zone 200 meters away from the gaothan. The said order further states
that as per Rule 15.8.1(D) of the Regional Development Control Rules,
it is permissible to construct a single family housing scheme for an
area of 2000 square meters. Hence, permission for sale was granted
for non-agricultural use of the land for a single family housing scheme.
Thus, the permission for sale was granted for non-agricultural use for
the purpose of construction under the said scheme.
19. Thus, at the time of adjudication of the agreement for sale, the
status of the said land was agricultural. However, to execute the sale
deed, sale permission was mandatory under the Tenancy Act. Hence,
an application was made for sale permission, which was granted on
certain terms and conditions, including non-agricultural use of the land
to construct a housing scheme. It appears that by considering the
terms and conditions of the sale permission, the adjudicating authority
has valued the land based on the market value of non-agricultural
land.
20. When under sub-section (1) of Section 31 of the Stamp Act, a
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party brings an instrument to the Collector for an opinion as to the duty
with which it is chargeable, the Collector determines the duty, if any,
with which in his judgment, the instrument is chargeable. Sub-section
(2) of Section 31 permits calling for an affidavit or evidence as deemed
necessary by the Collector to examine the facts and circumstances
affecting the chargeability of the instrument with duty or the amount of
the duty with which it is chargeable. This provision also allows the
Collector to refuse to proceed with the adjudication unless a true copy
of the abstract of the instrument and evidence have been furnished.
Sub-section (3) of Section 31 permits stamp duty assessment by
determining the true market value of such property as specifically
provided in the said provision. Thus, adjudication for assessing the
stamp duty is required to be made by determining the true market
value of the property. Section 2 (na) of the Stamp Act defines "market
value" as under:
"market value, in relation to any property which is subject matter of
an instrument, means the price which such property would have
fetched if sold in open market on the date of execution of such
instrument or the consideration stated in the instrument whichever
is higher"
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21. Thus, adjudication as to proper stamps, done under Section 31
of the Stamp Act, requires determination of the property's true market
value on the date of execution of the instrument to assess the stamp
duty chargeable on the instrument. In the present case, adjudication
under Section 31 of an agreement for the sale of agricultural land was
made based on the market value of agricultural land. Mandatory sale
permission under Section 43, read with Section 63 of the Tenancy Act,
was taken to execute the sale deed in terms of the agreement. The
sale permission was given on certain terms and conditions
enumerated in the order, including non-agricultural use for constructing
a housing scheme. Thus, by examining all the relevant facts and
circumstances, the true market value of the property was determined
for the stamp duty chargeable on the instrument of sale deed.
22. It is not the petitioners' case that the stamp duty was paid under
any protest. Thus, the petitioners accepted the adjudication made
under Section 31 of the Stamp Act, acted on it and registered the sale
deed by paying the stamp duty. Thus, after deriving the adjudication
order's benefit, it was challenged on the ground of a mistake. It is not
disputed that the benefit of the amount of stamp duty paid on the
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agreement for sale is given as a set-off while assessing the stamp duty
on the deed of conveyance. Thus, there is no question of any refund
as prayed by the petitioners. Therefore, in view of the facts of the
present case, the decision in the case of Commissioner of Sales Tax
Vs Auriaya Chamber of Commerce, Allahabad, relied upon by the
learned counsel for the petitioners, is of no assistance to the
petitioners.
23. Thus, there is substance in the submissions made by the learned
AGP. No fault can be found in the reasons and findings recorded in the
impugned orders. There is no manifest error or any illegality in the
impugned orders. The powers under Articles 226 and 227 of the
Constitution of India are equitable and discretionary. In view of the
facts of the case, I do not see any reason to exercise these powers.
The petition is devoid of any merits.
24. Hence, for the reasons recorded above, the petition is dismissed.
[GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2024.05.02
16:58:42
