Chander Bagai & Another vs Govt. Of Nct Of Delhi & Others
2009 Latest Caselaw 3114 Del

                                                      UNREPORTABLE

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         WRIT PETITION (CIVIL) NO. 11523-24 OF 2005


                                  Reserved on : 4th August, 2009.
%                              Date of Decision : 11th August, 2009.

      CHANDER BAGAI AND ANOTHER         ... Petitioners.
                      Through Mr.Sunil Bagai, petitioner in
                      person.

                                VERSUS

      GOVT. OF NCT OF DELHI
      AND OTHERS                         ..... Respondents.

Through Mr. Darpan Wadhwa, Advocate for respondent-GNCT of Delhi.

Ms. Kusum Bhalla, advocate for DDA.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J:

Mr. Chander Bagai and Mr.Sunil Bagai, the petitioners have

filed the present Writ Petition seeking the following reliefs:-

"i) issue appropriate writ, order or directions in the nature of Mandamus directing the respondents to pay a sum of Rs.18,277/- with interest @ 24% p.a. with effect from 14.8.2001;

ii) issue appropriate writ, order or directions in the nature of Mandamus directing the respondents to pay a sum of Rs.1,00,000/- on account of litigation expenses and damages, WPC No.11523-34/2005 Page 1 suffered by the late B.L.Bagai and the petitioners, due to proved malafide, oppressive and capricious acts of the respondents, who are public servants;

iii) issue appropriate writ, order or direction thereby imposing exemplary/special damages in favour of the petitioners and against the respondents for their proved malafide, oppressive, capricious, illegal, arbitrary and unconstitutional acts due to which the petitioners were dragged into the unnecessary and prolonged litigation, lasting for more than five years (from 1998 to 2003);

iv) issue a writ, order or direction to the respondent No.1 to 3 to pay interest on Rs.25,142/- paid by the petitioners as stamp duty on 12.5.2000 at the rate fo 24% p.a. till the date of refund i.e. 13.8.2002;

                   v)     Award the costs of these proceedings in
             favour of the petitioners and against the
             respondents;
                   vi)    issue any other and further orders be

also made as are deemed fit and proper in the facts and circumstances of the case."

2. The husband of petitioner no.1 and father of petitioner no.2, late

Mr.B.L.Bagai had acquired interest in the leasehold rights in the

property/flat no. C-8/8235, Vasant Kunj, New Delhi-110070 from the

original allottee on payment of Rs.3.60 lacs. No sale deed was

executed nor permission from Delhi Development Authority

(hereinafter referred to as DDA, for short)-the lessor was obtained for

the said transfer. The original allottee had executed Agreement to

Sell, receipt, Will, Power of Attorney, etc.

3. On 30th May, 1996, late Mr.B.L.Bagai applied for conversion of

the said flat from leasehold to freehold and made payments including

1/3rd additional amount towards regularization of the transfer made by

the original allottee.

WPC No.11523-34/2005 Page 2

4. On 2nd December, 1997, DDA-respondent no.4 herein issued

an unexecuted conveyance deed form which was required to be

adjudicated and stamped with the proper stamp duty by the Collector

under Section 31 of the Indian Stamp Act, 1899.

5. On 25th March, 1998, late Mr.B.L.Bagai deposited the

unexecuted conveyance deed along with copy of the Agreement to

Sell, etc. for adjudication with the Collector of Stamps. It is stated by

the petitioners that an earlier attempt to deposit the said papers on

17th March, 1998 was made but without success. .

6. By Order dated 6th April, 1998, late Mr.B.L.Bagai was asked by

the Collector to deposit the original Agreement to Sell, Power of

Attorney, etc executed by the original allottee. Aggrieved, late

Mr.B.L.Bagai filed a revision petition before the Deputy

Commissioner, which was rejected by the Order dated 6th June,

1998.

7. Thereupon, late Mr. B.L.Bagai filed a Writ Petition (Civil)

No.3264/1998 in this Court. This Writ Petition was allowed vide Order

dated 4th November, 1999 holding, inter alia, that the conveyance

deed had to be stamped on the basis of the consideration mentioned

therein and accordingly for adjudication of the stamp duty payable on

the conveyance deed, the Collector of Stamps need not hold any

independent enquiry into the market value of the flat/property. It was

held that the unstamped conveyance deed submitted for adjudication

did not mention the sale consideration paid by late Mr.B.L.Bagai to

WPC No.11523-34/2005 Page 3 the original allottee and therefore the said consideration cannot be

added or included to the amount mentioned in the conveyance deed

for computation of the stamp duty. Learned Single Judge while

allowing the Writ Petition followed an earlier judgment of this Court in

Collector of Stamps versus Hem Lata and another 64 (1996) DLT

450.

8. There was delay on behalf of the Collector of Stamps in

complying with the said judgment and late Mr.B.L.Bagai filed a

contempt petition in this Court in May, 2000.

9. While the Contempt Petition was pending, late Mr.B.L.Bagai

made an application for return of the unexecuted conveyance deed to

the Collector of Stamps vide letter dated 4th May, 2000. The Collector

of Stamps did not return the original unexecuted conveyance deed

but issued challans on 8th May, 2000 for payment of stamp duty of

Rs.25,142/-. The challans were issued on the basis of the amount

mentioned by the DDA in the unexecuted conveyance deed without

including the consideration of Rs.3.60 lacs paid by late Mr.B.L.Bagai

to the original allottee. This amount of Rs.25,142/- was deposited by

late Mr.B.L.Bagai on 12th May, 2000 and acknowledgement dated

15th May, 2000 was received.

10. The Collector of Stamps, however, refused to issue duly

stamped unexecuted conveyance deed and on 25th May, 2000, a

time barred Letters Patent Appeal was filed. The Division Bench

WPC No.11523-34/2005 Page 4 issued notice on 10th July, 2000 but no stay order was passed. Thus,

the matter became sub-judice before the Division Bench.

11. During the pendency of the said appeal, late Mr.B.L.Bagai filed

an application for interim relief and directions. The said application

was disposed of on 6th December, 2000, noticing the judgment of the

Division Bench of this Court in Hem Lata (supra) and the fact that

the said judgment was subject matter of appeal before the Supreme

Court. The Court accordingly, passed the following Order :

"Learned counsel for the appellants says that in case the respondents furnishes an undertaking before the Collector of Stamps to the effect that he shall produce the original agreement to sell relating to property being flat No.8235, situated in sector C, Pocket No.8, Vasant Kunj, New Delhi as and when required by the Collector of Stamps and will pay the stamps duty/penalty leviable on the agreement to sell subject to the decisions of the Hon'ble Supreme Court of India in Dr. Hem Lata's case or any other decision pertaining to the issue in question, conveyance deed forms shall be stamped by him. Learned counsel for the respondents states that he shall file undertaking before the collector. On consideration of the submissions of the learned counsel for the parties, we direct that in case the respondents file the aforesaid undertaking before the Collector the conveyance deed for Me shall be stamped by the Collector of stamps in accordance with law."

12. On 23rd January, 2001 the unexecuted Conveyance Deed duly

stamped was issued by the Collector of Stamps.

13. On 31st January, 2001 late Mr.B.L.Bagai submitted the papers

with DDA for execution of the conveyance deed. However, before

WPC No.11523-34/2005 Page 5 the said execution could fructify and could be actually performed, he

expired on 7th February, 2001.

14. The petitioners herein on 22nd June, 2001 submitted papers for

mutation of the flat in favour of petitioner no.1 with DDA. They also

approached Central Vigilance Commission in July 2001. DDA by their

letter dated 19th July, 2001 accepted and approved the mutation of

the flat in favour of petitioner no.1. The new unexecuted conveyance

deed was deposited with the Collector of Stamps on 30th July, 2001.

On 14th August, 2001, the petitioner no.1 was asked to deposit stamp

duty of Rs.40,905/- on the conveyance deed calculated @ 13% of the

sale consideration mentioned in the conveyance deed. On the first

unexecuted conveyance deed stamp duty of Rs.25,142/- was payable

as per the prevailing rate of 8%. The stamp duty rate had been

increased from 8% to 13% w.e.f. July, 2001.

15. The petitioners applied for refund of Rs.25,142/- which had

been paid on the first unexecuted conveyance deed in favour of late

Mr.B.L.Bagai. An amount of Rs.22,628/- was received by them on 5th

March, 2002 after statutory deduction of 10%.

16. The Letters Patent Appeal came up for hearing before the

Division Bench on 17th March, 2003 and was disposed of, recording

as under:-

WPC No.11523-34/2005                                           Page 6
                  "LPA No.308/2000
                 So far as the respondent is concerned

Mr.Sunil Bagai says that his conveyance deed has already been adjudicated for stamp duty and delivered to the respondent. In this view of the matter, the appeal has become infructuous.

Dismissed."

17. The present Writ Petition was filed on 7th April, 2005 claiming

relief of damages and refund of the additional stamp duty paid on

account of increase in stamp duty rates from 8% to 13% w.e.f. July,

2001. There is no doubt that there was delay and to some extent

lassitude and sluggishness had caused the delay in processing of the

application for computation of the stamp duty in the Office of the

Collector at least during the period 4th November, 1999 when writ

petition no.3264/1998 was allowed and the appeal was filed on 25th

May, 2000. However, the appeal filed by Collector of Stamps was not

dismissed inspite of the delay and notice was issued, though no stay

order was passed. Thereafter, late Mr.B.L.Bagai had filed an

application for interim relief on which Order dated 6th December,

2000 was passed,. The said order required late Mr.B.L.Bagai to

furnish an undertaking that he shall pay additional stamp duty/penalty

on the consideration mentioned in the Agreement to Sell and other

documents executed by the original allottee, subject to the decision of

the appeal by the Supreme Court in the case of Hem Lata (supra). It

is admitted that the Collector of Stamps had filed an appeal against

the decision of the Delhi High Court in the case of Hem Lata (supra)

which was admitted and the matter was sub judice before the

WPC No.11523-34/2005 Page 7 Supreme Court. The question in this appeal was whether stamp duty

was payable only on the consideration mentioned in the conveyance

deed but also upon the amount paid to the original allottee for

transfer of his rights to the subsequent purchaser in whose favour

the conveyance deed was being executed. This appeal was

dismissed after examining the provisions of the Stamp Act, 1899 by

the judgment dated 23rd April, 2003. It was held that the two

transactions i.e. transaction between the subsequent purchaser and

the original allottee and the second transaction between the

subsequent purchaser and the DDA for conversion of the leasehold

rights into freehold along with 1/3rd additional amount were two

separate transactions and accordingly Section 28(3) of the Stamp

Act, 1899 was not applicable and the stamp duty payable on the

conveyance deed had to be adjudicated on the basis of the amount

mentioned in the conversion deed as it pertains to DDA holding the

revisionary interest in the land/leasehold property. With the decision

of the Supreme Court, legal issues raised were finally adjudicated

and decided on 23rd April, 2003. In these circumstances, the delay in

computation and execution of the stamp duty, etc. payable on the

conveyance deed was on account of the legal issues and contentions

which required adjudication. These were finally settled only on 23rd

April, 2003 by the Supreme Court. Further the High Court had

entertained the Letters Patent Appeal and thereafter late

Mr.B.L.Bagai had filed an application seeking interim relief and

WPC No.11523-34/2005 Page 8 direction for execution of the conveyance deed, which was disposed

of vide Order dated 6th December, 2000. Thus, delay till the said date,

i.e. 6th December, 2003 is explained and understandable in view of

the legal questions and issues involved relating to computation of

stamp duty on the conveyance deed. No doubt the Letters Patent

Appeal could have been filed earlier and there was delay about six

months in filing of the same but the Division Bench did not dismiss

the appeal on the question of delay and limitation. The appeal was

entertained and even notice was issued.

18. The delay after passing of the Order dated 6th December, 2000

can be explained. Late Mr.B.L.Bagai was required to furnish an

undertaking and after the same was furnished the original

unexecuted conveyance deed was released duly stamped on 23rd

January, 2001. Unfortunately, late Mr.B.L.Bagai expired on 7th

February, 2001. There was delay of about four months on the part of

the petitioners when they applied for mutation in the records of the

DDA on 22nd June, 2001. Mutation was approved on 19th July, 2001

but in the meanwhile, the rate of stamp duty payable on conveyance

deeds was increased from 8% to 13% w.e.f. July, 2001.

19. Thus the delay, after passing of Order dated 6th December,

2000, is attributable to the petitioners, though it is not difficult to

understand the reason why the petitioners took four months to apply

to DDA for mutation after the death of late Mr.B.L.Bagai. The

increase in stamp duty rates was as a result of legislative

WPC No.11523-34/2005 Page 9 amendment, over which neither the petitioners nor the respondents

had any control and the respondents cannot be held liable for the

same.

20. It may be noted that the Letters Patent Appeal was disposed of

on 17th March, 2003, long after the conveyance deed was executed

in favour of the petitioner no.1 in August/September, 2001. The

petitioners did not press for costs at that stage and the Letters Patent

Appeal was dismissed without any order as to costs. The present Writ

Petition was filed, as stated above, in April, 2005.

In view of the aforesaid discussion, I do not find any merit in the

present Writ Petition and the same is dismissed.

There will be no order as to costs.

                                                 (SANJIV KHANNA)
                                                      JUDGE
AUGUST       11, 2009.
P




WPC No.11523-34/2005                                              Page 10