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2013 DIGILAW 811 (MP)

Ishwar Das Matani v. State of M. P.

2013-07-16

A.K.SHRIVASTAVA

body2013
ORDER The order passed in this petition shall also govern the disposal of connected W.P. No. 6495/2012 (Subhash Matani vs. State of M.P. and others), W.P. No. 6490/2012 (Prabhu Das Matani vs. State of M.P. and others) and W.P. No. 6494/2012 (Rajendra Kumar Matani vs. State of M.P. and others) since a common question is involved in all these petitions. 2. By this petition under Article 226 of the Constitution of India the petitioner is challenging the validity of the impugned order dated 31-1-2008 passed by the Collector of Stamp, Jabalpur (Annexure P-5) which has been affirmed by the Board of Revenue, Gwalior vide its order dated 31-1-2012 (Annexure P-6). 3. The facts necessary for the disposal of this petition lie in narrow compass. Suffice it to say that Jabalpur Development Authority-respondent No. 2 (hereinafter referred to as "the JDA") has executed a compromise deed with respondent No. 3 Hari Mohan Das Tondon and one Akhil Mishra (not arrayed as party) in respect of land Khasra No. 181/9 admeasuring 0.639 Hectare, Settlement No. 660, Patwari Halka No. 25/31 situated at Moza Marhotal, Tehsil and District Jabalpur. The said compromise deed dated 1-10-2007 (Annexure P-1) is a tripartite deed and it was agreed between the parties that the JDA will acquire the aforesaid land of which the third respondent is owner and in lieu of compensation of the aforesaid land the JDA shall execute lease of developed plots equal to 20% of the total area to the owner of the land i.e. the third respondent. Thereafter the third respondent filed an application before the JDA for transfer of lease of developed plot No. 283 admeasuring 3240 square feet received from the said authority as compensation against the acquisition of the land under Scheme No. 14 of the JDA. Eventually, the JDA executed a lease deed in favour of the petitioner in respect to developed plot No. 283 area 3240 square feet on 6-10-2007 (Annexure P-2). 4. Further the case of the petitioner is that the JDA vide its letter dated 19-11-2007 (Annexure P-3) admitted the factum of execution of the lease of the developed plots in favour of the petitioner which has been made against the compensation of the land acquired by the JDA. Thereafter, on 16-10-2007 the petitioner submitted a lease agreement dated 6-10-2007 for registration before the Sub-Registrar, Jabalpur. Thereafter, on 16-10-2007 the petitioner submitted a lease agreement dated 6-10-2007 for registration before the Sub-Registrar, Jabalpur. But, instead of registering the document of lease deed the Sub-Registrar vide its letter No. 306 dated 2-11-2007 referred the matter under section 47A of the Indian Stamp Act, 1899 (in short "the Stamp Act") along with its report to the Collector of Stamp who registered the case and sent the notice to the parties including the petitioner. The petitioner filed reply dated 5-1-2008 (Annexure P-4). The Collector, Stamp vide its order dated 31-1-2008 (Annexure P-5) imposed stamp duty Rs. 93,964/- on market value of Rs. 9,03,500/- and in addition, further directed to pay five times penalty on annual rent (Bhu-Bhatak) of Rs. 1,944/- which comes to Rs. 94,781/- and out of which the stamp duty worth Rs. 1,000/- has been paid at the time when the document was submitted for its registration. Hence, a deficit stamp duty of Rs. 93,781/- and in addition, penalty of Rs. 1,000/- total Rs. 94,781/- has been directed to be paid and deposited within 30 days of the order in the Treasury failing which the said amount shall be recovered as land revenue as per the provisions of the M.P. Land Revenue Code, 1959. An appeal which was filed by the petitioner before the Board of Revenue has also been dismissed on 31-1-2012 (Annexure P-6). Hence, this petition has been filed by the petitioner. 5. The contention of Shri Girish Shrivastava, learned counsel for the petitioner is that the Collector of Stamp as well as the learned Board of Revenue have misinterpreted Articles 33 and 57 Schedule 1A of the Stamp Act (M.P. Amendment). Because, both the authorities ought to have appreciated that absolute right of ownership was not transferred but the land in question was given on lease for a period of 30 years and if that is the position, the stamp duty according to Item No. 33(v) Schedule 1A of the Stamp Act ought to have been assessed, which speaks about the duty as a conveyance (No. 22) for a market value equal to five times the amount or value of the average annual rent reserved and accordingly rightly the document of lease deed (Annexure P-2) was submitted for its registration before the Sub-Registrar along with stamp duty of Rs. 1000/-. 1000/-. It has also been propounded by learned counsel that in similar other cases the JDA has registered the documents on the valuation envisaged under Item No. 33 Schedule 1A of the Stamp Act and therefore, in complete derogation to the Article 14 of the Constitution of India the petitioner is being discriminated and thus, it has been prayed that the impugned order dated 31-1-2008 (Annexure P-5) passed by the Collector, Stamp as well as the impugned order dated 31-1-2012 (Annexure P-6) passed by the Board of Revenue be quashed and a writ of mandamus be issued to register the document of lease deed. 6. The return has been filed by the State of M.P. The contention of Shri Vivek Agarwal, learned Government Advocate is that had the respondent No. 3 (land owner) taken the plots developed by the JDA for his own use then certainly it could have been said that the transaction was not of sale in favour of the JDA vis-a-vis to him, but, the position in this case is quite different. It has also been put forth by him that on the basis of the documents which are placed on record it is apparent that the third respondent assigned his rights to 20% of the developed land in favour of four different persons (i.e. the petitioner of this petition and petitioners of other three connected petitions). According to him, this assignment certainly would have been either through sale, gift or a Will and there is no other mode under the law for transfer of immovable property valuing more than Rs. 100/- under the Transfer of Property Act. Admittedly, the property for which the lease deed has been submitted for its registration would fetch much higher market value of Rs.100/- and therefore, the lease deed executed by JDA in favour of lessee of third respondent (owner of the land) is, in fact, a sale and consideration of which must have gone to the owner i.e. third respondent and not to JDA in the eye of law and therefore, in this light of the proposition the order impugned passed by the aforesaid two authorities cannot be said to be illegal or not in accordance to the law. Hence, it has been prayed that this petition and the connected petitions be dismissed. 7. Hence, it has been prayed that this petition and the connected petitions be dismissed. 7. Having heard learned counsel for the parties I am of the view that this petition and the connected petitions deserve to be dismissed. 8. In the present case, admittedly a tripartite agreement/compromise deed (Annexure P-1) took place on 1-10-2007 by arraying JDA as first party, owner of the land-respondent No. 3 as second party and one Akhil Mishra (who is not party to the petition) as third party whereby the owner of the land (third respondent herein) who has been described as bona fide purchaser and intends to purchase the property through agreement and further agreed that by virtue of agreement dated 2-3-2007 (not filed) the owner of the land (third respondent) transferred his power to sell and execute necessary documents in respect to the land in question to the third party. On going through this document it is further revealed that the JDA has acquired land for the purposes of introduction of the Scheme No. 14 and further in lieu of the compensation the JDA has agreed to demise lease of plots equal to 20% of the total area i.e. 0.639 hectares as developed plots. The total area of 20% developed plots comes about 13765 square feet. Another condition which has been embodied in this document is that the third party to the document namely Akhil Mishra (who has not been arrayed as party to this petition) who has intended to purchase the property from land owner (third respondent), upon his request the JDA shall allot the plot and execute the lease deed in favour of the interested purchaser. Thus, on bare perusal of this document and surrounding circumstances, it becomes luminously clear and it is also not disputed by the petitioner that in lieu of compensation the JDA has agreed to develop the plots equal to 20% of the area 0.639 hectare. Thus, on bare perusal of this document and surrounding circumstances, it becomes luminously clear and it is also not disputed by the petitioner that in lieu of compensation the JDA has agreed to develop the plots equal to 20% of the area 0.639 hectare. According to me, the position would have been altogether different if the owner of the land-third respondent had taken the developed plots from the JDA for his own use then, the transaction between him and the JDA would not have been a sale, but, when the third respondent had assigned his rights to provide 20% of the developed plots in favour of four different persons (petitioner of this petition and petitioners of other connected petitions), the said assignment must be either through sale or gift and therefore, according to me, the Collector of Stamp had rightly arrived at a conclusion that it appears that the actual consideration has already been received by third respondent and upon his insistence, the JDA without any premium had given the disputed land on annual rent value (Bhu-Bhatak) and thus, by concealing the reality in order to cause the revenue loss to the State Government through stamp duty the document has been submitted for registration before the Sub-Registrar. 9. Needless to say that a document must be read in its entirety when the character of a document is in question and one should not get confused from the heading thereof. The real intention of the parties must be gathered from the document itself and the circumstances attending thereto would be also quite relevant particularly when the relationship between the parties are fiduciary. 10. So far as the contention of learned counsel for the petitioner that the lease deed has been registered by the Sub-Registrar executed by the JDA to other lessee in terms of the lease rent as envisaged under section 33 Schedule 1A of the Stamp Act is concerned, suffice it to say that those lease deeds are quite distinguishable looking to the factual scenario of this case. There is nothing on record that out of 20% developed land the lease deed was registered in favour of those lessees. 11. There is nothing on record that out of 20% developed land the lease deed was registered in favour of those lessees. 11. I have gone through the reasonings assigned by the Collector of Stamp in the impugned order dated 31-1-2008 (Annexure P-5) and I find that in order to take out the grain from the chaff the said authority by its microscopic eyes has read the real hidden transaction which took place inter se between the third respondent and petitioner and thus, has rightly directed to pay deficit stamp duty along with penalty. Further I find that the Board of Revenue for the reasons assigned in its order Annexure P-6 rightly concurred with the view of the Collector of Stamp and did not interfere in its order. 12. Ex-consequenti, this petition and the connected petitions are dismissed with no order as to costs. Let a copy of this order be also kept in the record of connected writ petitions.