Hero Reality Pvt. Ltd. & Another vs Sub Registrar, Haridwar (Second) & Another

SHARAD SHARMA, J. (ORAL)

Petitioners in the instant Writ Petition has sought the following reliefs:

“(a) Issue a writ, order or direction declaring the action of respondent no. 1, Sub-Registrar, Haridwar (Second) of impounding the

Sale Deed dated 22.06.2018 executed between Petitioner No. 1 and Petitioner No. 2, as illegal, arbitrary and contrary to law.

(b) Issue a writ, order or direction in the nature of mandamus directing the Respondent no. 1, Sub-Registrar, Haridwar (Second) to release the Sale

Deed dated 22.06.2018 executed between Petitioner No. 1 and Petitioner No. 2.

(c) Issue a writ, order or direction in the nature of certiorari quashing the letter dated 18.07.2018 (contained in Annexure no. 7 to this Writ Petition)

issued by Respondent No. 1, Sub-Registrar, Haridwar (Second) as being void and non-est in the eyes of law.

(d) Issue a writ, order or direction in the nature of certiorari quashing the Show Cause Notice dated 27.07.2018 (contained in Annexure No. 8 to this

Writ Petition) issued by Respondent No. 2, Additional Collector (Finance and Revenue), Haridwar as being void and non-est in the eyes of law.

(e) Issue a writ, order or direction directing Respondent No. 2, Additional Collector (Finance and Revenue), Haridwar, to withdraw the Show Cause

Notice dated 27.07.2018 (contained in Annexure No. 8 to this Writ Petition) and thereafter release the Sale Deed dated 22.06.2018 executed between

Petitioner No. 1 and Petitioner No. 2.

(f) Issue a writ, order or direction directing Respondent No. 2, Additional Collector (Finance and Revenue), Haridwar, to withdraw the Show Cause

Notice dated 27.07.2018 (respectively content Annexure No. 8 to this Writ Petition) and thereafter direct the Respondent No. 1, Sub-Registrar,

Haridwar (Second) to release the Sale Deed dated 22.06.2018 executed between Petitioner No. 1 and Petitioner No. 2.

(g) Issue a writ, order or direction declaring that Stamp Duty paid by Petitioners is appropriate and not deficit as per the law laid down by this

Hon’ble Court.

(h) Issue any other writ or direction which this Hon’ble Court deems fit and proper.â€​

Petitioners’ case is that it’s a Company incorporated under the Companies Act with its registered office at the address given in cause title

of petitioner no. 1. The petitioners’ company undertakes the work of development of housing complexes and Industrial Parks.

Its the case of the petitioner that to start a venture in the State of Uttarakhand the petitioner after seeking appropriate permission and same being

granted by the State for developing a industrial park, under Section 154(4)(3)(9)(V) of U.P.Z.A.&L.R. Act of 1950 on 26.02.2007, had purchased

166.125 hectares situated at Village Salempur Mehdood II, Tehsil and District Haridwar by registered sale deed dated 22.06.2018, which was

registered before the Sub-Registrar on 12.07.2018.

For the reasons which has not come on record the petitioner no. 1 decided to sell a small piece of undeveloped land to petitioner no. 2 for which

sale deed for sale of 1565 sq.mts. lying in Khasra No. 1382 of the aforesaid village was sold for consideration of Rs. 50,98,770/-. Its the case of

petitioners that on the said sale deed it had paid stamp duty of Rs. 2,55,000/- as applicable for agricultural land rate as the nature of land described in

the sale deed was recorded as revenue land at the time of purchase. In addition to stamp duty on the deed he also paid sum of Rs. 25,400/- towards

registration charges.

It’s the case of the petitioners that it made a query from the office of the Sub-Registrar regards registration of sale deed dated 22.06.2018, it

could learn that respondent no. 1 had proposed to impound the sale deed under Section 33 of Stamp Act on the ground that same was insufficiently

stamped, as per the Government Order dated 06.06.2014, which contemplated that stamp duty on the sale deed has to be levied on the basis of its

probable future use to which it is to be placed.

The learned counsel for petitioner submits that the very basis of impounding is the Government Order dated 06.06.2014, the same cannot be relied

at that time the reason being the said Government Order stands quashed by the Single Judge of this Court by the judgment dated 31.08.2015 rendered

in Writ Petition No. 366 of 2015, which later stood affirmed by Division Bench vide its judgment dated 18.06.2016 rendered in Special Appeal

No.634Â of 2015. Despite of it the sale deed registered on 12.07.2018 has been impounded by the impugned order dated 18.07.2018 exercising

power under Section 33 read with under Section 47(A). Consequent thereto show cause notice dated 27.07.2018 has been issued to petitioner to make

good the deficiency of stamp, invoking under Section 33/47A/40 kha of Stamp Act. Hence, the Writ Petition. Paragraph nos. 12, 13 & 14 are quoted

hereinbelow:

“12. Rule 4, in our view, clearly does not bear out the case of the appellants. The manner of fixation of the minimum value for land, inter alia, if

provided in Rule 4(1)(a). It provides for the Authority to take into consideration the classification of soil, availability of irrigation facility, proximity to

road, market, bus station, railway station, factories, educational institutions, hospitals and Government offices and location with reference to its

situation in urban area, semi-urban area of country-side. Therefore, the Collector is not as free as it may be thought of in the matter of fixing the

minimum value. The matters, which are relevant and which he is to look into, are specified in Rule 4 in regard to land inter alia. The relevant facts

have all been set out. What is conspicuous by its absence in the aforesaid Rules is any reference to the potential use to which the land may be put to

as a criterion for fixing the minimum value. The elements, which are embedded in Rule 4, are obviously to be referred to with reference to the

situation available at the particular point of time when the minimum value is fixed. It is to be noted that in respect of land, under Rule 5 the rule maker

has further elaborated the manner in which the calculation of minimum value is to be done and that is be it agricultural or non-agricultural land, the

formula supplied under the Rules is to multiply the minimum value fixed by the Collector under Rule 4 to the area of the land and, thus, arrive at the

minimum value. A perusal of Rule 3 also would show that in the statement for the instrument, the aspects, which are relevant on the basis of the

matters referred to in Rule 4, must be mentioned. This enables the Authority to find out whether the value is correctly paid. Even in amendment

brought out by the Uttarakhand Government in 2011, besides empowering the Collector to suo motu revise the rate fixed for reasons to be recorded in

writing, he may revise within a period of two years from the date of fixation of minimum value subject to what is contained in proviso (a). Clause (b)

of the said proviso also enables the Government to suo motu or on application made in writing, amend or reissue the circle rate of any part of the State

or any specific property. We are emphasizing this aspect, as we would think that the Government, acting through its Additional Chief Secretary, would

appear to be bereft of any power to issue an order providing for fixation of stamp duty with reference to the potential use to which the land can be put

to.

The learned Additional Chief Standing Counsel Mr. Anil K. Joshi, in fact, does not have a case as such that the order dated 06.06.2014 is the

product of exercise of powers under Clause (b) of sub-rule (2) of Rule 4 of the Rules. We would think that what is contemplated is the amendment of

the circle rate for the part of the State or in respect of a particular property. The order dated 06.06.2014 does not purport to amend the circle rate

fixed by the Collector, nor does it purport to amend or reissue the circle rate in respect of any specific property. It merely purports to lay down a new

principle, namely, that the stamp duty must be fixed with reference to the purpose for which the land is purchased. A perusal of Section 47-A would

reveal that the said provision can be invoked only if the minimum value, as fixed under the Rules, is not paid. If the minimum value, as fixed in the

Rules, is paid, then there can be no case for invoking the provision against the writ petitioner in this case. The case of the writ petitioner is that the

minimum value, as fixed by the Collector, has been paid. In fact, the learned Single Judge has also in the directions issued left it open to the petitioner

to reply to the show cause and to point out that whatever is payable in terms of the minimum value has been paid. The contention of the learned

Additional Chief Standing Counsel that because permission was granted within the meaning of amendment effected to Section 154 of the Uttar

Pradesh Zamindari Abolition and Land Reforms Act, 1950, the land which is agricultural land will cease to be an agricultural land for the purpose of

calculation of stamp duty, can not be accepted. The future use of the agricultural land cannot convert the land at the time of sale from agricultural land

to commercial land. It is submitted by the learned Additional Chief Standing Counsel Mr. Anil K. Joshi that, in fact, statutory provisions contemplated

vesting of the land for which permission was granted, if it was not utilized for the purpose for which permission was granted within a particular period.

We would think that, that has got nothing to do with the issue as to what stamp duty is to be paid on the purchase of the said land.

Therefore, on the conspectus of the provisions of the Stamp Act and the Rules, we would find that there is absolutely no scope for entertaining the

contention of the appellants that the purpose for which the land will be put to after its purchase, is relevant for deciding the stamp duty. This aspect, as

already noted, is not even part of the matters, which are rendered relevant in view of the provisions of Rule 4, which we have adverted to.â€​

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At this stage this Court is of the view that the petitioner before this Court has challenged the order dated 18.07.2018 as passed by the Sub Registrar

II, Haridwar, II whereby the petitioners’ sale deeds dated 22.06.2018 as registered on 12.07.2018 has been impounded by exercising powers

under Section 47 (A) read with Section 33 of the Stamp Act. The reason which has been assigned by the Sub Registrar for impounding the document

was the impact of the Government Order dated 06.06.2014.

The contention of the learned counsel for the petitioner is to the effect that the very foundation of passing of the order by the Sub Registrar is non-

existing foundation for the reason being the veracity of the said Government Order has been dealt with by the Division Bench of this Court in its

judgment rendered on 18.06.2016, whereby the Government Order dated 06.06.2014 has been quashed. He submits that as a consequence of

quashing of the Government order dated 06.06.2014 there was no justification for the Sub Registrar to pass the impugned order dated 18.07.2018 and

consequent show cause notice dated 27.07.2018.

He submits that during the course of arguments before the Sub Registrar he has placed reliance on the judgment aforesaid as rendered by the

Division Bench but the Sub Registrar did not pay any heed to it and pass the impugned order dated 18.07.2018 rendering judgment to be perverse and

notice dated 27.07.2018 (Annexure 7 and 8 respectively to the Writ Petition).

This Court feels that the proceedings under Section 47 (A) read with Section 33 of the Stamp Act are statutory proceedings, which are

contemplated under the Stamp Act and as against the said order the petitioner has a remedy of Revision available to him under Section 56 of the

Stamp Act.

All the contention pertaining to the impact of the judgment of Division Bench dated 18.06.2016 as well as all the contentions raised by the

petitioner in the present Writ Petition would lie well within the scope of scrutiny under Section 56 of the Stamp Act.

As such this writ petition at this stage is not being entertained but while dismissing liberty is given to the petitioner to raise all the contentions taken

herein in the revision under Section 56. However, at this stage considering the fact that the very basis of the impugned order dated 18.07.2018 being

the Government Order dated 06.06.2014, which stands quashed by the Division Bench of this Court, a slight liberty is granted to the petitioner and

which has to be considered by the Revisional Court also that till the Revisional Court decides the impact of Government Order dated 06.06.2014 and

issue of its existence as consequence of Division Bench judgment, which already stands quashed by the Division Bench judgment dated 18.06.2016, at

admission stage, the petitioner would not be forced upon to comply with the provisions of first proviso of Section 56 of statutory deposit.

Subject to the above observations and the liberty granted thereto, the Writ Petition stands dismissed.

There would be no order as to cost.