Veer Bala Gulati vs Municipal Corporation Of Delhi ...
2003 Latest Caselaw 394 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is a resident of K-644, Western Avenue, Sainik Farm, New Delhi and is aggrieved by the assessment order dated 17.2.2003 assessing the said property to tax and fixing the rateable value as also by the impugned notice dated 19.2.2003 making demand on the petitioner in respect of the property in question.

2. It is stated in the writ petition that the petitioner became owner and occupier of the property in question in pursuance to the agreement to sell dated 8.12.1999 for a total consideration of Rs. 24 lakhs.

3. Learned Counsel for the petitioner relied upon the judgment of this Court in CWP No. 4640/2002 titled 'K.T.S. Tulsi v. M.C.D.' decided on 7.1.2003 and contends that property of the petitioner is liable to be assessed to property tax in terms of the said judgment relating to the same area and the principles of parity must also be applied.

4. A reading of the impugned order shows that the petitioner assessed attended to the office of the Joint Assessor and Collector and submitted the requisite documents. The Joint Assessor and Collector asked for the transfer duty for disposal of the pending case, but the same was not submitted by the assessed. It was under these circumstances the assessing authority came to the conclusion that the proposed rateable value is liable to be fixed in terms of the proposal.

5. On a querry being put to the learned Counsel for the petitioner, the learned Counsel states that the petitioner is not willing to pay 5% transfer duty payable to the respondent Corporation, since there is no transfer, which has taken place in terms of Section 147 of the Delhi Municipal Corporation Act, 1957 (hereinafter to be referred to as 'the Act'). Learned Counsel submits that the said section itself stipulates that the Corporation can levy duty on transfer of immovable property and, thus, in the absence of transfer, such duty is not payable. This contention of the learned Counsel for the petitioner is based on the fact that only an agreement to sell has been executed, but the sale deed has neither been executed nor registered. According to the learned Counsel for the petitioner, by reason of the fact that no such sale deeds are being registered in the area in question in view of certain decisions taken by this Court and the Supreme Court dealing with the issue of challenge to the acquisition proceedings in respect to the area in question, no transfer has taken place.

6. Learned Counsel for the petitioner has relied upon a judgment of the Supreme Court in Municipal Corporation of Delhi v. Pramod Kumar Gupta, 43 (1991) DLT 149. The said case dealt with the issue of duty payable on an instrument of sale of immovable property in case of Court Auction Sale where the same was confirmed and certificate to purchaser was issued under Order 21 Rule 94 of the Code of Civil Procedure, 1908. It was held that such an instrument cannot attract the provisions of Section 147 of the Act since the title passed under the auction sale by force of law and transfer becomes final when an order under Rule 92 confirming it is made and the certificate was issued under Rule 94 formally declaring the effect of the same was not extinguishing or creating title.

7. Learned Counsel for the petitioner also referred to the judgment of the learned Single Judge of this Court in Municipal Corporation of Delhi v. Hotu Ram, . This judgment dealt with the issue of difference between 'sale' and 'lease' and it was held that in a lease, there is only partial transfer or demise while the revisionary rights continue to remain with the transferor. It was held that transfer of the property in question was not a 'sale' within the meaning of Section 54 of the Transfer of Property Act, 1882 and consequently no duty could be imposed under Section 147 of the Act.

8. I have considered the submissions advanced by learned Counsels for the parties.

9. The transaction, in the present case, is one of sale and an agreement to sell had been executed, though admittedly the sale deed has not been executed. In terms of the agreement to sell, all rights, title and interest in the land and the structure had been conveyed and full consideration has been received. Vacant possession has also been handed over to the petitioner. It is further stated that the vendor has been left with no right, title, interest, claim or concern of any nature with the said property and that the purchaser has become the absolute owner of the property. The relevant clauses 1 and 2 are as under:

"1. That the Vendor hereby agrees to sell, convey and assign and the Purchaser shall purchase the whole of the property bearing No. K - 644, Sainik Farms/ New Delhi, built on land measuring 700sq.yds., including all the rights titles and interests in the land beneath it and buildings, furnitures, furnishings and fittings therein, for a total consideration of Rs. 24,00,000/- (Rs. twenty-four lakhs only).

2. That the Vendor hereby convenant with the Purchaser that this Agreement for Sale is executed in all its entirety and the Vendor has received all and full consideration of the sale price from the Purchaser/ and has delivered the vacant, peaceful and constructive possession of the said property into the Purchaser. Now the Vendor has been left with NO right, title, interest, claim or concern of any nature with the said property. The Purchaser has become the absolute owner of the said property, fully entitled to sell and transfer the same in any manner, to construct, expand and alter as she deems fit, and the Vendor, her heirs, successors, and assigns shall have no claim, title, interest, etc. whatsoever with the said property."

Clause 5 of the said agreement also provides that all expenses of transfer documentation, stamp and registration of the sale deed shall be paid by the purchaser and that in terms of Clause 7 thereof, the vendor has appointed the purchaser's nominee as General and Special Attorney regarding the said property for carrying out the necessary documentation for registration. Clause 9 of the said agreement further states that the purchaser will not do any act, deed and thing to cancel or revoke the General Power of Attorney, Special Power of Attorney and other documents. Clause 19 of the said agreement also provides as under:

"19. That whenever and wherever the presence of the Vendor will be required by the Purchaser, later on at any stage, for the completion of this transaction then the Vendor shall come forward and execute all the necessary relevant documents, sale deed or any other deed in respect of the said property and to get the same registered with the office of the registering authority, at the cost and expenses of the Purchaser, without demanding any further monetary consideration for appearance for the same."

10. A reading of the agreement to sell, especially the aforesaid clauses, makes it clear that there is a complete sale of the property coupled with possession handed over and the execution of an irrevocable power of attorney. These clauses read together create an interest on the property in favor of the petitioner read with irrevocable power of attorney as held by a Division Bench of this Court in Asha M. Jain v. The Canara Bank and Ors., as under :

"15. The power of attorney sales and their effect has been considered in Kuldip Singh v. Surinder Singh, 76 (1998) DLT 236 = 1999 Rajdhani Law Reporter 20. The learned Single Judge of this Court has observed that power of attorney sales in Delhi is the common mode of sale of immovable property to get over the legislative restrictions of transfer of properties. The power of attorney is for consideration and the bargain is followed by delivery of possession to complete the transaction. Further to prevent arbitrary cancellation, Will and affidavit about renouncing rights are taken.

16. We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied withother documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the present case. These are two General Power of Attorney, Special Power of Attorney and the Will apart from the agreement to sell. One of the General Power of Attorneys is registered. Further the Will is also registered. Thus these are two contemporaneous documents which are registered and they lend authenticity to the date of execution documents. The power of attorneys are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus, there is no doubt that interest has been created in the property in favor of the appellant. Possession is also been handed over. Thus the provisions of Section 53 Aof the Transfer of Property Act would also come into play. ....."

11. The only impediment in execution of the sale deed is stated to be the refusal of the registering authority to execute a sale deed in view of various legal proceedings pending.

12. The aforesaid facts clearly show that the facts of the present case are distinguishable from the ones in Pramod Kumar Gupta's case (supra) and Hotu Ram's cae (supra). In Pramod Kumar Gupta's case (supra), the issue was at what stage the transfer is complete taking into consideration the provisions of Order 21 dealing with Court Auction Sale. Hotu Ram's case (supra) dealt with the distinction between a free-hold property and a leasehold property.

13. In my considered view, the petitioner who has become for all practical purposes and intents the owner of the property in question except execution of the sale deed cannot be permitted to refuse to pay the transfer duty to the respondent Corporation. As and when the sale deed will be permitted to be registered, the petitioner is not called upon to pay this amount twice and at that stage and only the balance amount payable to the registering authority has to be so paid.

14. In my considered view, it is not open to the petitioner to contend that though the petitioner is in occupation of the property and has taken all rights in pursuance to the agreement to sell read with general power of attorney and the special power of attorney, yet the petitioner is not liable to pay the duty under Section 147 of the Act. Thus, in my considered view, the assessing authority was right in calling for payment of the transfer duty, which the petitioner refused to pay.

15. In view of the said position, I do not find any infirmity with the impugned order. Dismissed.

16. It is, however, made clear that in case the petitioner deposits the transfer duty, it will be open to the petitioner to make an application for rectification of the assessment order on the plea raised in the present petition in view of the decision in CWP No.4640/2002, KT.S. Tulsi v. M.C.D decided on 7.1.2003 .

CM No. 3331/2003:

Dismissed.