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2019 DIGILAW 620 (ORI)

Santosh Kumar Nanda v. Odisha State Housing Board

2019-10-21

PRAMATH PATNAIK, SANJU PANDA

body2019
JUDGMENT : Sanju Panda, J. 1. The appellant by means of this Writ Appeal assails the judgment dated 18.04.2019 passed by the learned Single Judge in W.P.(C) No. 12841 of 2016, rejecting the Writ Application filed by the appellant. 2. The learned Single Judge vide judgment dated 18.04.2019 held that the demand of the registering authority is strictly in terms of the provision contained in Rule 2(f)(ii) of The Odisha Stamp Rules, 1952 and he has taken into consideration the decision of the Apex Court in the case of State of Haryana & Others Vs. Manoj Kumar reported in (2010) 4 SCC 350 . 3. Learned counsel for the appellant submitted that the learned Single Judge did not appreciate the provision contemplated under Rule-2(f)(ii) in its proper perspective. Rule-2(f)(ii) of the Odisha Stamp Rules, 1952 mandates that the value of any property, which is the subject matter of conveyance, exchange, gift, partition or settlement by or on behalf of the Central Government or the State Government or any authority or body incorporated by or under any law for the time being in force 'as shown in the instrument'. He has further submitted that as per the said Rule, the Stamp Duty and Registration Fee is payable on the value of the property mentioned in the instrument, i.e. the Lease Deed dated 29.09.1992, which has been supplied by the Respondent No. 1 and not on the Bench Mark Valuation fixed by the District Valuation Committee. He further submitted that the case of State of Haryana and others V. Manoj Kumar has no application to the case of the appellant since in the said case the dispute was between two private individuals and had arisen out of a suit for specific performance of contract. The said judgment was also rendered keeping in view the provisions contemplated under Haryana Amendment to Stamps Act, 1899. In the said decision the Apex Court has discussed the scope of interference by the High Court with the concurrent findings of facts while exercising the jurisdiction under Article 227 of the Constitution of India. In the said case the instrument was referred to the authority under Section 47-A of the Haryana Amendment to Stamp Act, which was applicable to the parties in case where the instrument was undervalued how it will be dealt with the same. In the said case the instrument was referred to the authority under Section 47-A of the Haryana Amendment to Stamp Act, which was applicable to the parties in case where the instrument was undervalued how it will be dealt with the same. Accordingly, the District Collector, Faridabad has given a finding which was confirmed by the appellate authority. Thus the dispute in the present case is that the valuation reflected in the document, which was prepared by the Odisha State Housing Board is to be accepted as the valuation of the land or not. In view of such the same is to be accepted in accordance with Rule 2(f)(ii) of the Odisha Stamp Rules, 1952. 4. In the draft Lease-cum-Sale Deed it has been specifically mentioned that the Stamp Duty and Registration fees are to be assessed on the value of the land and not on the value of the building, since it has been exempted vide Revenue Excise Department Notification No. 55307 dated 30.08.1989. Therefore, the appellant is liable to pay the Stamp Duty and Registration Fees on the value of land mentioned in the instrument, as per the provisions of Rule-2(f)(ii) of the Odisha Stamp Rules, 1952. According to him, it is respondents who are responsible for not registering the lease agreement in the year 1992. Rather they, for the first time, issued letter on 26.11.2015 for the same. Therefore, no fault can be attributed to the appellant. In view of the above, according to him, the order passed by the learned Single Judge needs to be interfered with. 5. Mr. Mishra, learned Additional Government Advocate, on the other hand while supporting the impugned judgment submits that the learned Single Judge, by conjoint reading of the provisions of Rule-2(f)(i) and (ii) and by applying the ratio in the case of Manoj Kumar (supra) has come to the finding that the demand of the registering authority is strictly in terms of the provision of the Rules, 1952 and thus, the same need not be interfered with. 6. The appellant had filed the aforementioned Writ Application challenging the letter dated 13.07.2016 issued by the Sub Registrar, Khandagiri to the appellant indicating therein that the Stamp Duty and Registration Fees will be calculated as per present Market Valuation fixed by District Valuation Committee. 6. The appellant had filed the aforementioned Writ Application challenging the letter dated 13.07.2016 issued by the Sub Registrar, Khandagiri to the appellant indicating therein that the Stamp Duty and Registration Fees will be calculated as per present Market Valuation fixed by District Valuation Committee. It has also been indicated that as per I.G.R. Circular No. 6266 dated 26.09.2011, no registration of a document can be made below the Bench Mark Valuation fixed by the District Valuation Committee. The appellant, therefore, had also prayed to hold that the said Circular dated 26.09.2011 is not applicable to the facts and circumstances of the case of the appellant. 7. Instead of delving into the factual backdrop in detail, which has already been exhaustively narrated by the learned Single Judge in its judgment, in a nut shell, it is the case of the appellant that he was allotted with one HIG house (Plot No. HIG-175) At-Sailashree Vihar, Bhubaneswar-21 under Self Financing Scheme by the Odisha State Housing Board and the possession was handed over on execution of the agreement on 29.09.1992. Since the Odisha State Housing Board ('OSHB' in short), enhanced the cost of the house, despite delayed delivery and defects in the construction, the appellant along with similarly situated persons approached the State Consumer Disputes Redressal Commission, Odisha seeking compensation. By order dated 05.11.1997, the State Commission awarded interest @ 18% per annum for the delayed delivery period i.e. from 31.01.1992 till the actual date of giving possession and also awarded compensation while upholding the price escalation. The OSHB moved the National Commission. The National Commission by order dated 06.12.2006 reduced the rate of interest from 18% to 12% and remanded the matter to the State Commission. The respondent No. 1 filed S.L.P. (C) No. 15214 of 2015 before the Hon'ble Supreme Court challenging the order passed by the National Commission, which was dismissed on 10.07.2015. After dismissal of the Special Leave Petition the State Commission, on remand held that the Respondent No. 1 is liable to pay interest @ 9% per annum, besides compensation for the defects which has been assessed at Rs. 45,000/-. 8. Respondent No. 1 after having complied the order passed by the State Commission, by letter dated 24.11.2015 intimated the appellant to contact the Assistant Administrative Officer (Urban), OSHB-respondent No. 3 for execution of the Lease-cum-Sale Deed of the allotted house. 45,000/-. 8. Respondent No. 1 after having complied the order passed by the State Commission, by letter dated 24.11.2015 intimated the appellant to contact the Assistant Administrative Officer (Urban), OSHB-respondent No. 3 for execution of the Lease-cum-Sale Deed of the allotted house. The appellant met respondent No. 3 and the authority by letter dated 26.11.2015 intimated the appellant to attend his office on 20.12.2015 for execution of the Lease-cum-Sale Deed. In the said letter the copy of the Draft Lease-cum-Sale Deed was also enclosed. Respondent No. 3 also requested the appellant to ascertain the required Stamp Duty and registration charges from the Office of the Sub-Registrar. 9. Thereafter, the appellant wrote a letter on 14.12.2015 to the Sub-Registrar, Khandagiri (Respondent No. 4) requesting him to give the value of the Stamp papers and Registration cost. Since there was no response, the appellant again wrote a letter on 01.07.2016 to respondent No. 4 to confirm the Stamp Duty and registration fees. Respondent No. 4 by letter dated 13.07.2016 intimated that Stamp Duty and Registration Fees will be calculated as per Bench Mark valuation fixed by the District Valuation Committee, in terms of I.G.R. Circular No. 6266 dated 26.09.2011 and no registration of a document can be made below the Bench Mark valuation fixed by the District Valuation Committee. The appellant challenged the said arbitrary action of the respondents in W.P.(C) No. 12841 of 2016, demanding the payment of Stamp Duty and Registration Fee, as per Bench Mark valuation, since the same was in clear violation of Rule-2(f)(ii) of the Odisha Stamp Rules, 1952. 10. Considering the rival submission of the parties and after going through the materials available on record, it appears that the Draft Lease-cum-Sale Deed was supplied by respondent No. 3 for its execution, wherein it was reflected the valuation of the land as per the terms and conditions of the agreement for transfer of the property. It was also specifically reflected in the said Deed that the Government of Odisha have decided that the Stamp Duty and Registration Fees are exempted on the value of the building constructed under Self Financing Scheme vide Revenue and Excise Department Notification No. 55307 dated 30.08.1989 and registration fees vide G.O. No. 55287/R dated 30.08.1989 and whereas such duty and fees on the value of the land are to be borne by lessee. In view of such Government notification, the Stamp Duty is to be assessed as per the Odisha Stamp Rules, 1952. 11. In the present case the Draft Deed was supplied by opposite party No. 1, who is an authority and body corporate coming under the provisions of Rule 2(f)(ii) of the Odisha Stamp Rules, 1952. For better appreciation Rule 2(f)(ii) of the Odisha Stamp Rules, 1952 is extracted herein below: Rule 2(f) 'Market Value' means: the value of any property which is the subject matter of conveyance, exchange, gift, partition or settlement by or on behalf of the Central Government or the State Government or any authority or body incorporated by or under any law for the time being in force as shown in the instrument, (emphasis supplied) In view of the above provision and as there is no ambiguity in the language appearing in the said Rules, the Stamp Duty should have been calculated as per the valuation reflected in the said Draft Lease-cum-Sale Deed and not as per the information given by the Registering Authority. The Registering Authority erroneously issued the notice fixing another valuation which was under challenge and he has no jurisdiction to fix the valuation in view of Section 47-A of the Indian Stamp Act. Accordingly, the same is without jurisdiction and is liable to be quashed. 12. Learned Single Judge has not taken into consideration the aforesaid fact while passing the impugned order as the lease deed was supplied by the Odisha State Housing Board, which is an authority as well as body incorporated as defined under Rule 2(f)(ii) of the Odisha Stamp Rules, 1952. This Court in the case of Gourang Naik Vs. State of Odisha and others reported in AIR 1992 ORISSA 232 considered Section 47-A of the Indian Stamp Act as well as the amendment to the said Act by Orissa Act 25 of 1962 and held that: "xx xx any guidelines the State Government or the Board of Revenue or associated Department of the Government gives to the registering authority regarding the valuation of the land in a particular area is not the last word in the assessment of market value. Therefore, the State Government has not acted rightly in issuing Annexure-1 fixing the market value of the land in Bhubaneswar Master Plan area and requiring the registering officers to stick on to that valuation while considering the valuation of the property under the document and to impound the document and refer the document to the Collector for determination of the market value when the valuation shown in the document appeared to be low compared with the valuation chart shown by the Government which is Annexure 4. The issuance of Annexure A has the tendency of arbitrarily affecting the opinion of the registering authority and thereby interferes with the jurisdiction given to the registering authority under Section 47-A to reach the satisfaction of the property and will guide him to mechanically refer all the documents to the Collector on being impounded, harassing the general public on the basis of this statement regarding market value of land in Bhubaneswar market area when there is no authenticity in its correctness," as such the same was quashed. 13. In the case of Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd., and others reported in (2003) 2 SCC 111 the Apex Court taking into consideration the decision in the case of Haryana Financial Corporation and another Vs. M/s. Jagdamba Oil Mills and another reported in JT 2002 (1) SC 482 held that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In the case of State of Haryana and others (supra) the valuation was determined by the authority having jurisdiction as provided under Indian Stamp Act and the same was confirmed by the appellate authority and the transaction was between two private parties. Thus the principle decided in the said decision is not applicable to the case at hand. 14. In view of the discussions made hereinabove and the settled position of law, we set aside the impugned order passed by the learned Single Judge and direct the respondents to execute the Sale Deed as per the valuation reflected in the Draft Lease-cum-Sale Deed, as expeditiously as possible, on production of certified copy of this Judgment. The Writ Appeal is accordingly allowed.