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2021 DIGILAW 532 (RAJ)

Innovative Buildestates Pvt. Ltd. v. Collector (Stamps), Jaipur Circle-I

2021-03-03

ASHOK KUMAR GAUR

body2021
ORDER : Ashok Kumar Gaur, J. 1. The instant petition has been filed by petitioner-Company with the following prayers:- "It is, therefore, most respectfully prayed that- (i) by issuance of a suitable writ, direction or order, Hon'ble Court may kindly be pleased to restrain the Respondent no. 1 to 3 Authorities from taking any action of seizure/attachment of the entire 'Jalsa Mall' situated at F-124A-127, Malviya Nagar, Apex Circle, Jaipur in order to recover the amount as ordered in the Order dated 20.08.2020 passed by Respondent no. 1 against Respondent no. 4 and 5 and also restrain the Respondent no. 1 to 3 Authorities to not give any instruction(s) to the various offices of Sub-Registrar, Jaipur for not registering the Conveyance Deeds/Sale Deeds/Lease Deeds or any other deeds of the share of Petitioner Company in the said mall. (ii) by issuance of a suitable writ, direction or order, Hon'ble Court may kindly be pleased to direct the Respondent no. 1 to 3 Authorities to seize only those Units/Shops of the 'Jalsa Mall' which is in the share of the Respondent no. 5 and equalling to the value of recovery amount for which, the Petitioner Company is ready to provide details to the Respondent Authorities; (iii) by issuance of a suitable writ, directing or order, Hon'ble Court may kindly be pleased to direct the Respondent no. 1 to 3 Authorities not to take any coercive action against the Petition Company and its share of area in the Mall on account of default of Respondent no. 4 and 5; (iv) Any other appropriate order or direction which this Hon'ble Court may consider just and proper in the facts and circumstances of the case may also kindly be passed in favour of the humble petitioner." 2. The facts, in nutshell, as pleaded in the writ petition, are that the respondent No. 4-M/s. Indo Crystal Pvt. Ltd. was allotted a piece of land by RIICO vide lease agreement dated 23.10.2008 covering a total area of 8152.37 Sq. Mtrs. in Malviya Industrial Area, Jaipur. The respondent Nos. 4 & 5-M/s. Divya Aashirwad Properties Pvt. Ltd. entered into a Collaboration Agreement dated 28.12.2006 for developing the mall over the allotted land and further a Supplementary Deed to the said Collaboration Agreement dated 20.06.2007, was also executed. The Collaboration Agreement/Supplementary Deed was registered by the respondent Nos. Mtrs. in Malviya Industrial Area, Jaipur. The respondent Nos. 4 & 5-M/s. Divya Aashirwad Properties Pvt. Ltd. entered into a Collaboration Agreement dated 28.12.2006 for developing the mall over the allotted land and further a Supplementary Deed to the said Collaboration Agreement dated 20.06.2007, was also executed. The Collaboration Agreement/Supplementary Deed was registered by the respondent Nos. 4 & 5 in the office of the respondent No. 3-the Sub-Registrar, Jaipur-I and the requisite stamp duty, is alleged to be paid by the respondent Nos. 4 & 5. 3. The petitioner-Company has pleaded that the respondent No. 5 started construction of mall in the year 2007 and due to shortage of funds, the respondent No. 5 had to stop the construction of mall and thereafter, the respondent No. 5 contacted the petitioner-Company for joining hands for developing the mall and initially a Joint Venture Agreement was executed between the petitioner-Company and the respondent No. 5 on 09.12.2011 and on the basis of the initial Joint Venture Agreement, the petitioner-Company invested huge funds with man and machinery and started the construction of mall. 4. The petitioner-Company has further pleaded that a registered Joint Venture Agreement was also executed between the petitioner and the respondent No. 5 on 07.08.2012 and the same was registered with the Sub-Registrar, Jaipur-V and the appropriate stamp duty, as levied by the authority, was paid by the petitioner-Company. The petitioner-Company has pleaded that by virtue of the registered Joint Venture Agreement dated 07.08.2012, the petitioner-Company was given a definite share of area in 'Jalsa Mall' and the area of mall was divided among the petitioner-Company and the respondent Nos. 4 & 5 and the petitioner-Company developed the mall by raising the construction upto the 5th floor. 5. The petitioner-Company has averred that it has sold various units/shops/area in the mall to various third party buyers and also executed the registered conveyance deeds in their favour and is also in the process of getting various other pending conveyance deeds/sale deeds executed and registered in favour of other purchasers who had booked their shops/units in the mall earlier. 6. The petitioner-Company has averred that it has sold various units/shops/area in the mall to various third party buyers and also executed the registered conveyance deeds in their favour and is also in the process of getting various other pending conveyance deeds/sale deeds executed and registered in favour of other purchasers who had booked their shops/units in the mall earlier. 6. The petitioner-Company has pleaded that on 05.02.2021, the officials from the office of respondent No. 3 came at the site of the mall with a copy of the order dated 20.08.2020 passed by the respondent No. 1 and handed over a copy of the said order to the authorized person of the petitioner-Company and directed him to either pay the entire amount, as mentioned in the order dated 20.08.2020 or face seizure of the entire mall. The petitioner-Company has submitted that they were surprised to know that the amount as mentioned in the order dated 20.08.2020 was in relation to recovery of some deficit stamp duty, which was not paid by the respondent Nos. 4 & 5 in the year 2007 while executing the Collaboration Agreement and now the respondent Nos. 4 & 5 are nowhere involved in the development and completion of the construction of mall. 7. The petitioner-Company has pleaded that they approached the respondent Authorities and requested them that instead of seizing the entire premises of the mall, they may seize and take into possession the area of the mall which is in the share of the respondent No. 5 or any part of it as they may deem fit, but they should not take the possession of the entire amount, as such their action would drastically affect and jeopardize the rights of the petitioner-Company in the said mall and it would also affect the rights of the subsequent buyers of the petitioner-Company. 8. The petitioner-Company is said to have given a representation of not taking any coercive action against them but when the said representation was not paid any heed, the petitioner-Company says that it was constrained to file the present writ petition to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 9. On 18.02.2021, learned counsel for the petitioner-Company Mr. Anurag Kalavatiya was asked to supply copy of the writ petition in the office of Advocate General. Mr. 9. On 18.02.2021, learned counsel for the petitioner-Company Mr. Anurag Kalavatiya was asked to supply copy of the writ petition in the office of Advocate General. Mr. M.S. Singhvi, learned Advocate General on 19.02.2021 submitted that the writ petition may not be entertained by this Court as the entire action taken of seizure/attachment of the property in question was taken due to the order dated 20.08.2020 passed under Section 51 of the Rajasthan Stamps Act, 1998 (hereinafter shall be referred to as 'the Act of 1998'). The learned Advocate General also submitted that if at all the petitioner-Company has any grievance, the said order should be challenged by way of filing revision under Section 65 of the Act of 1998. 10. Mr. Anurag Kalavatiya learned counsel for the petitioner-Company on 19.02.2021 sought time to seek instruction and the matter was posted on 22.02.2021. On 22.02.2021 learned counsel for the petitioner sought more time to seek instructions and the matter was posted on 02.03.2021. On 02.03.2021, Mr. Anurag Kalavatiya, learned counsel for the petitioner company submitted that his client has instructed him to argue the matter on merits and filing of revision is not an appropriate remedy to challenge the action of the respondents and the matter was heard at length by this Court but learned counsel for the parties sought more time to advance their respective arguments, thus the matter was directed to be listed today. 11. Mr. Anurag Kalavatiya, learned counsel for the petitioner-Company has made following submissions:- 11A. The action of the respondents of taking possession of the entire 'Jalsa Mall', by way of seizure and attachment, is arbitrary and not sustainable in the eyes of law. 11B. The direction of the respondent authorities given in the office of Sub Registrar, Jaipur for not registering the Conveyance Deeds/Sale Deeds/Lease Deeds or any other deeds of the share of the petitioner-Company in the said 'Jalsa Mall' is illegal and beyond the scope of the Act of 1998. 11C. The liability, if any, arises to pay the stamp duty, as per the order dated 20.08.2020, can be fastened on the respondent Nos. 4 & 5 and if they do not make the payment of the same, the said liability cannot be shifted on the shoulders of the present petitioner-Company. 11D. 11C. The liability, if any, arises to pay the stamp duty, as per the order dated 20.08.2020, can be fastened on the respondent Nos. 4 & 5 and if they do not make the payment of the same, the said liability cannot be shifted on the shoulders of the present petitioner-Company. 11D. The document, for which the stamp duty is sought to be levied, is Collaboration Agreement executed in the year 2007 and the petitioner-Company was nowhere in the picture at that time and the petitioner-Company which has executed the Developer Agreement/Joint Venture Agreement in the year 2011 after paying proper stamp duty to the authorities and as such, no liability can be fastened on the petitioner-Company. 11E. The petitioner-Company has not executed any instrument or signed the same and as such, as per the definition provided under Section 2(xiii) of the Act of 1998, the alleged recovery cannot be made from the petitioner-Company. 11F. As per Section 32(g) of the Act of 1998, the liability for paying proper stamp duty is required to be borne under the Act of 1998 by the person executing the instrument and since the petitioner-Company has not executed any instrument or signed the same, it is not liable to pay any stamp duty in pursuance to the order dt. 20.08.2020. 11G. As per Section 34 of the Act of 1998, the petitioner-Company is not a person, from whom duty on an instrument is due or liable under the agreement or under Sections 19, 32 & 33 of the Act of 1998 and if the case does not fall in the said category, the executant of the instrument alone is liable to pay. 12. Learned counsel for the petitioner has placed reliance on the judgment passed by the Madras High Court in the case of Subramaniam Chettiar Vs. Revenue Divisional Officer and Ors. reported in AIR 1956 Mad 454 and a judgment passed by the High Court of Himachal Pradesh in the case Vinod Kant Gautam and Ors. Vs. State Bank of India and Ors. reported in 1993(1) ShimLC 288 . 13. Per contra, learned Advocate General has made following submissions:- 13A. The prayer sought by the petitioner is like seeking a declaration from the Court to decide the share of the petitioner-Company in a particular property and the same may not be done by this Court under Article 226 of the Constitution of India. reported in 1993(1) ShimLC 288 . 13. Per contra, learned Advocate General has made following submissions:- 13A. The prayer sought by the petitioner is like seeking a declaration from the Court to decide the share of the petitioner-Company in a particular property and the same may not be done by this Court under Article 226 of the Constitution of India. 13B. The liability to pay the stamp duty emanates from the order dated 20.08.2020 passed by the Collector (Stamps) under Section 51 of the Act of 1998. The said order needs to be complied with by the parties. 13C. The petitioner-Company, if has any grievance, can file revision under the Act of 1998 and the petitioner-Company is indirectly challenging the order passed by the Collector (Stamps) and any person who feels aggrieved by order of the Collector (Stamps), is free to file revision 65 of the Act of 1998. 13D. The action of the respondent-State is absolutely justified as per Section 56 of the Act of 1998 inasmuch as sub-section (2) of Section 56 of the Act of 1998 provides that all duties, penalties and other sums required to be paid shall be a charge on the property which is the subject matter of the instrument. He submits that the subject matter of the instrument in the present case is land and if any mall or construction is done on the same, the authorities are within their competence to proceed against such property even if it has changed the shape or usage. 13E. Conduct of the petitioner-Company does not make him entitled to seek equitable relief and extraordinary jurisdiction may not be invoked if a person has dishonest conduct. 14. In support of his submissions, learned Advocate General has placed reliance on a judgment of this Court passed in the case of Laxminarain Vs. State & Ors. reported in 1982 WLN (UC) 30. 15. I heard learned counsel for the parties and with their assistance perused the material available on record. 16. This Court finds that the Collector (Stamps) has passed the order dated 20.08.2020 while deciding the application filed under Section 51 of the Act of 1998. The said Authority has come to the conclusion that the Collaboration Agreement dated 20.06.2007 was not properly stamped and as such, reference was made to the Collector (Stamps) exercising his power under Section 53(5) of the Act of 1998. The said Authority has come to the conclusion that the Collaboration Agreement dated 20.06.2007 was not properly stamped and as such, reference was made to the Collector (Stamps) exercising his power under Section 53(5) of the Act of 1998. The said Authority found that on the valuation of the property, the stamp duty was required to be paid along with interest and penalty and the total sum of Rs. 54,48,982/- was liable to be paid. 17. This Court finds that the respondents for implementing the order of recovery of stamp duty, proceeded to attach the property in question and as such, their action cannot be found to be suffering from any legal infirmity. 18. The submission of learned counsel for the petitioner-Company that the petitioner-Company has not executed the document on which now the stamp duty is levied, suffice it to say that the document which was executed between the respondent Nos. 4 & 5 was not found to be properly stamped and as such, the stamp duty has been levied on the document which was entered into between the respondent Nos. 4 & 5. 19. This Court finds that if the petitioner-Company has executed the joint venture agreement subsequently with the respondent No. 5, the liability of the parties before the Collector (Stamps) cannot be absolved or diluted. 20. The submission of learned counsel for the petitioner-Company that the respondents are not authorized in the law to take possession of the entire 'Jalsa Mall', this Court finds that as per Section 56(2) of the Act of 1998, the charge is on the property which is a subject of the instrument. The property on which the charge is created is the land and as such, if any improvement has been made on the said land, the Authorities cannot be stopped to proceed to take action to make recovery or to attach the property. 21. This Court further finds that in view of an order passed by the Collector (Stamps) on 20.08.2020, the Authorities are within their domain to proceed. The entire genesis of the case starts from the order passed by the Collector (Stamps) on 20.08.2020 and any party to the said order or for that matter if the petitioner-Company feels aggrieved, there is a statutory remedy provided under the Act of 1998 and the same could have been availed by the petitioner-Company. 22. The entire genesis of the case starts from the order passed by the Collector (Stamps) on 20.08.2020 and any party to the said order or for that matter if the petitioner-Company feels aggrieved, there is a statutory remedy provided under the Act of 1998 and the same could have been availed by the petitioner-Company. 22. This Court further finds that the prayers sought by the petitioner-Company in the present matter cannot be granted in the writ jurisdiction and as such, the present writ petition being devoid of any merit, stands dismissed. No costs.