( 1 ) CHALLENGE in this group of petitions is to the action of the respondent-authority of demanding stamp duty on the letter of allotments and / or such documents issued by the petitioner-Society to its Members, as conveyance, under the provisions of the Bombay Stamp Act, 1958 [for short, "the Stamp Act"]. ( 2 ) THE petitioners herein are the co-operative housing societies duly registered under the provisions of the Gujarat Co-operative Societies Act, 1961 [for short, "the Act"]. For the purpose of providing residential accommodation to its members, the petitioner-societies purchased lands and thereafter, applied and received development permission from the competent authority for the construction of residential units. Pursuant thereto, the petitioner-societies carried out the construction. 2. 1 It is the case of the petitioners that on inquiry by them, they were told by the respondent-authority that they will have to pay stamp duty on the letters of allotment issued by the petitioner-societies to its members as a 'conveyance' under the provisions of the Stamp Act read with the Schedule thereto. 2. 2 Being aggrieved by the said demand, the present petitions have been filed. ( 3 ) MR. Vimal M. Patel, learned counsel for the petitioners, has submitted that a housing society is formed for the purpose of providing residential accommodation to its members. Between the members and the society inter se, no independent rights are exercised by one against the other and the society is nothing but, an agglomeration of its members, who are the real beneficial owners of the property held in the name of the society. 3. 1 Learned counsel has further submitted that the letter of allotment is an acknowledgment of the right of a member to occupy the dwelling unit as a tenant of the society. Therefore, the right to occupy the premises as a tenant cannot be equated with the ownership rights and consequently, the letter of allotment or similar such document/s, cannot be considered as a 'conveyance', u/s. 2 (g) of the Stamp Act for the purpose of levy of stamp duty. 3. 2 Learned counsel for the petitioner has next submitted that if a member of the society cannot transfer his right, without the consent of the society, then it will amount to double payment of stamp duty inasmuch as, in the first place, the society would have already paid stamp duty while purchasing the land. 3. 3. 2 Learned counsel for the petitioner has next submitted that if a member of the society cannot transfer his right, without the consent of the society, then it will amount to double payment of stamp duty inasmuch as, in the first place, the society would have already paid stamp duty while purchasing the land. 3. 3 Learned counsel for the petitioner has further submitted that the ownership of the lands in question is with the respective societies and that the members are its 'tenants'. The members can only construct the super structure over the said lands, which would be of their ownership. Hence, except the possession of the lands and the use of the premises thereof, nothing in substance is transferred to the members. Therefore, the impugned action of the respondent-authority is bad in law and contrary to the provisions of the Stamp Act. ( 4 ) LEARNED counsel appearing on behalf of the petitioners in the other matters adopt the submissions, which have been advanced by Mr. Vimal M. Patel appearing in S. C. A. No. 17139/2004. Hence, no other submissions are advanced by the petitioners. ( 5 ) MR. Kamal B. Trivedi, learned Advocate General, has submitted that the society and its members have common interest in the land and the building constructed over it. Once the allotment letter is issued in favour of an individual member, the interest in the immovable property, in the form of occupancy and enjoyment, is transferred from the society to its member. Therefore, the demand of stamp duty by the respondent-authority, on the basis of the letter of allotment, is just and legal. 5. 1 Learned Advocate General has relied upon a decision of the Apex Court in the case of Hindustan Steel Ltd. v. M/s. Dilip Construction Company, 1969 (1) S. C. C. 597, wherein, it has been held that the Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument. 5. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of initial defect in the instrument. 5. 2 Learned Advocate General has also relied upon another decision of the Apex Court in the case of Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, AIR 1975 S. C. 1470 and more particularly, on the following observations made in Para-18 therein; "18. . . . . . . . . The only restrictions under section 29 (2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that bye-law 71d says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the Managing Committee but there is nothing to show that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under section 47 (3 ). There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising out of the conjoint effect of section 29, rule 24 and bye-law 9. Section 29 read with rule 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non-member if he consents to be a member and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to think that there is any question of refusal of membership of the Society to a non-member if he is qualified otherwise and makes an appropriate application in which case the transfer of shares will be operative and thus the assignment of the right to occupation will hold good. Further, it is significant that under section 146 (a) of the Act, contravention of sub-section (2) of section 47 is punishable under section 147 of the Act. Contravention of any bye-law is, however, no offence. Further, it is significant that under section 146 (a) of the Act, contravention of sub-section (2) of section 47 is punishable under section 147 of the Act. Contravention of any bye-law is, however, no offence. We, therefore, unhesitatingly, come to the conclusion that this species of property, namely the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability, in furtherance of the interest of commerce. We have seen no fetter under any of the legal provisions against such a conclusion. The attachment and the sale of the property: in this case, in execution of the decree are valid under the law. " 5. 3 Learned Advocate General has relied upon a decision of this Court in the case of Mulshanker Kunverji Gor and Ors. v. Juvansinhji Shivubha Jadeja, 1979 (20) G. L. R. 878 and more particularly, on the following observations made in Para-5 therein; ". . . . . . In case of a "tenant co-partnership society", "shares in a Society" which a member holds appears to be inseverable from the interest in the immovable property which has been allotted to him for his occupation and enjoyment. Looking at it from another angle since the immovable property the land and the house vests in the society, no title is transferred to the purchaser with the transfer of shares, title continues to remain with the society. Right to occupy and enjoy it is transferred by the transfer of his shares by one member to another. . . . . . . . . . . . . . . It is, therefore, clear that in case of a "tenant co-operative partnership society", the transfer of shares necessarily carries with it the transfer of member's interests in the immovable property allotted to him. . . . " 5. 4 Learned Advocate General has next relied upon another decision of this Court in the case of Gordhanbhai N. Vaghela v. Maruti Co-operative Housing Society and Ors. , 2002 (3) GLH 747 and more particularly, on the following observations made in Para-9 therein; ". . . . . . . . . . . " 5. 4 Learned Advocate General has next relied upon another decision of this Court in the case of Gordhanbhai N. Vaghela v. Maruti Co-operative Housing Society and Ors. , 2002 (3) GLH 747 and more particularly, on the following observations made in Para-9 therein; ". . . . . . . . Further in a housing co-operative society, after a person becomes member, a plot or a flat or a tenement is being allotted to him in his capacity as a member and may be that as against the allotment the person concerned when admitted as a member would be required to make payment to the society. However, the allotment of the plot / flat / tenemant to a member in a housing co-operative society is a valuable right and therefore, right to property, even transfer of property and some interest, is created in the property namely, the plot / flat / tenement, as the case may be, on account of such allotment in capacity as member of the society. It may be that technically the society is the owner of the said portion which is allotted to the member, but it cannot be said that the person has no valuable interest in the property. . . . . . " 5. 5 Learned Advocate General has lastly relied upon another decision of the Apex Court in the case of Zoroastrian Co-operative Housing Society Ltd. and Anr. v. District Registrar, Co-operative Societies (Urban) and Ors. , AIR 2005 S. C. 2306 and more particularly, on the following observations made in Para-37 therein; "37. The fact that the rights of a member or an allottee over a building or plot is attachable and saleable in enforcement of a decree or an obligation against him cannot make a provision like the one found in the bye-laws, an absolute restraint on alienation to attract Section 10 of the Transfer of Property Act. Of course, it is property in the hands of the member on the strength of the allotment. It may also be attachable and saleable in spite of the volition of the allottee. Of course, it is property in the hands of the member on the strength of the allotment. It may also be attachable and saleable in spite of the volition of the allottee. But that does not enable the Court to hold that the condition that an allotment to the member is subject to his possessing the qualification to be a member of the cooperative society or that a voluntary transfer by him could be made only to the society itself or to another person qualified to be a member of the society and with the consent of the society could straight away be declared to be an absolute restraint on alienation and consequently an interference with his right to property protected by Article 300a of the Constitution of India. We are, therefore, satisfied that the finding that the restriction placed on rights of a member of the Society to deal with the property allotted to him must be deemed to be invalid as an absolute restraint on alienation is erroneous. The said finding is reversed. " 5. 6 Learned Advocate General has, therefore, submitted that the respondent-authority was completely justified in demanding stamp duty on the letter of allotment issued to the members of the petitioner-societies. Hence, this is not a fit case wherein powers under Article 226 of the Constitution of India could be exercised in favour of the petitioners. ( 6 ) HEARD learned counsel for the respective parties and perused the documents on record. The respondent-authority has demanded stamp duty on the letters of allotment, issued by the petitioner-Society to its members, on the premise that the said "letters of allotment" fall within the definition of 'conveyance' as defined under Section 2 (g) of the Stamp Act. The said Section 2 (g), after the amendment of 2001, reads as under; "2 (g) Conveyance includes (i ). . . . . . . . (ii ). . . . . . . . (iii ). . . . . . . . (iv ). . . . . . . . The said Section 2 (g), after the amendment of 2001, reads as under; "2 (g) Conveyance includes (i ). . . . . . . . (ii ). . . . . . . . (iii ). . . . . . . . (iv ). . . . . . . . (v) any writing or letter of allotment in respect of the premises, given to its members or allottee by a co-operative society registered or deemed to have been registered under the Gujarat Cooperative Societies Act, 1961 or a Corporation or an Association formed and registered under the Bombay Non-Trading Corporation Act, 1959 or the Gujarat Ownership Flat Act, 1973, as the case may be, by which property, whether movable or immovable or any estate or interest in any property, is transferred to or vested in, any other person inter-vivos, and which is not otherwise specifically, provided for by Schedule-I. Explanation-1 : For the purpose of this clause an instrument whereby a co-owner of any property transfers his interest to another co-owner of the property and which is and not instrument of partition shall be deemed to be an instrument by which property is transferred inter-vivos. " ( 7 ) ON a plain reading of the above proviso, it is clear that if by any writing or letter of allotment, in respect of the premises given to its members or allottees by a registered co-operative society, any interest is created in favour of the members or allottees, such a writing or letter of allotment will be covered under the definition of 'conveyance' and will be liable for the imposition of stamp duty. ( 8 ) IT is the say of the petitioners that the lands in question over which the housing societies have been constructed were purchased by it. However, no sale deeds, executed by the original owners in favour of the petitioners, have been produced on record. ( 9 ) IN my opinion, when a housing society issues the allotment letters in favour of its members, with reference to its respective units/shares, an interest in the same will be said to have been created in favour of its members. ( 9 ) IN my opinion, when a housing society issues the allotment letters in favour of its members, with reference to its respective units/shares, an interest in the same will be said to have been created in favour of its members. Even in the case of a tenant co-partnership society or a tenant co-ownership society, where the land is supposed to be owned by the society and upon which houses are constructed by the society for the benefit of its members or by the members themselves, as the case may be and when allotment letter is issued in favour of an individual member, in such cases also, interest in the immovable property to be occupied is always created. ( 10 ) A letter of allotment is an agreement to sell immovable property as the possession of the property is transferred to the purchaser before or at the time of or subsequent to the execution of the letter of allotment. Any transfer after the formation of the society is a transfer of interest of the society to a third party, who, subsequently, becomes a member. In the case of a housing society, the right of occupation and enjoyment of the plot allotted to the member is vested in him. Under the provisions of the Gujarat Co-operative Societies Act, a society and its member/s are independent of each other. Both are mutually exclusive. A society can exist even in the absence of its members and it can include any person as its members. A co-operative society is formed in order to allow its member/s to execute their requirements and to avail the benefits, jointly. which, is not feasible or possible, individually. Therefore, there is no substance in the contention raised by the petitioners that a society and its members are not independent of each other. Thus, in view of the provisions of Section 2 (g) of the Stamp Act, I am of the opinion that the respondent-authority was completely justified in demanding stamp duty on the letters of allotment issued by the petitioner-society to its members. ( 11 ) THE contention raised by the petitioners regarding imposition of double duty is well-founded inasmuch as the payment of stamp duty, on the basis of the letters of allotments, will not apply to the original promoters, who had purchased the lands in question. ( 11 ) THE contention raised by the petitioners regarding imposition of double duty is well-founded inasmuch as the payment of stamp duty, on the basis of the letters of allotments, will not apply to the original promoters, who had purchased the lands in question. Only the subsequent members of the society shall be liable to pay the stamp duty. A letter of allotment is a 'conveyance', within the definition of Section 2 (g) of the Stamp Act, by which right / interest is transferred in favour of the member. Therefore, interest, in any form, in any immovable property, will be covered under the definition of 'conveyance', as defined u/s. 2 (g) of the Stamp Act on the basis of a letter of allotment. ( 12 ) THE rights of a member or an allottee over a building or plot is attachable and saleable in enforcement of a decree or an obligation against him. It is a property in the hands of the member on the strength of the letter of allotment. It may also be attachable and saleable in spite of the volition of the allottee. If any restrictions are imposed by the society, the member has the right to challenge the same. Any such restrictions which may be imposed by the Society shall be deemed to be invalid. Hence, the contention raised by the petitioners that a member of the petitioner-society does not have the right to transfer his interest is devoid of any merits and is, accordingly, rejected. ( 13 ) THE Stamp Act, being a fiscal measure enacted to secure revenue for the State on certain classes of instruments cannot be permitted to be used as a weapon of technicality. I find no illegality or impropriety in the impugned action of the respondent-authority of demanding stamp duty from the members of the petitioner-society on the basis of the letters of allotments. However, the said demand shall be restricted only to the members and not to the original promoters, who had purchased the lands in question and subsequently, constructed the residential accommodations and formed the societies. ( 14 ) BEFORE parting, attention is required to be drawn to the order passed by this Court while admitting the matters; ". . . . . . . ( 14 ) BEFORE parting, attention is required to be drawn to the order passed by this Court while admitting the matters; ". . . . . . . Respondents are restrained from demanding or collecting Stamp duty on the allotment agreement / letter of allotment issued by the petitioner Society to its members as conveyance under the provisions of the Bombay Stamp Act, 1958, till final disposal of this petition, on condition that the office bearers shall pass a Resolution in the Executive Committee of the petitioner Society and will place on record the Resolution that, if ultimately, the petitioner Society fails, the Society shall pay Stamp duty within one month form the date of decision of the Court. . . . . . . " 14. 1 For the foregoing reasons, the petitions are partly allowed. The respondent-authority shall be empowered to demand and collect stamp duty only from the subsequent members of the petitioner-societies and not from the original promoters, who had purchased the lands in question and had constructed the societies. 14. 2 It is expected from the petitioner-societies that they will abide by its Resolution, as referred to in the order reproduced herein above, in letter and spirit. 14. 3 With the above observations, the petitions stand disposed of. Rule is discharged. Interim relief stands vacated.