Subhash B. Adi, J:

1. Writ Petition No.9023/2008 is directed against the order dated 27/05/2008 passed by the learned I Additional Civil Judge(Senior Division) Dharwad in O.S.No. 175/2007 as violative of Articles 14, 19(1)(g) of the Constitution of India and has also questioned 'the constitutional validity of Section 34 of Article See) of the Schedule to Karnataka Stamps Act, 1957 (hereinafter referred to as the 'Act).

2. In Writ Petition 64748/2009 petitioner has called in question the order dated 14th July, 2009 passed on LA,No. 12 in O.S.No.398/2007 on the file of the learned Principal Civil Judge(Senior Division), Hubli and also constitutional validity of Section 34 clause (a) and Article 5(e) of the Act.

3. In Writ Petition 67011/2009 petitioner has called in question the validity of Article 5(e) and Section 34 Clause(a) proviso of the Act as unconstitutional and also order dated 18/11/2009 passed on LA.No.5 in O.S.NO.214/2004 on the file of the learned Principal Civil Judge(Senior Division), Hubli.

4. In Writ Petition 60874/20 10 petitioner has called in question the order dated 02/02/2010 passed on LANo.6 in O.S.NO. 19/2007 on the file of the learned First Additional Civil Judge(senior Division), Hubli and validity of Article 5(e) and Section 34 clause (a) proviso of the Act.

5. The facts leading to filing of these writ petitions in brief are that, the petitioners have filed a suit for specific performance of contract based on agreement of sale wherein the petitioners claim that in part performance of the contract, they have been put in possession and they have also paid the advance amount. In the said suit, the petitioners sought to get unregistered agreement of sale marked in the evidence. In this regard objections were raised for production of the said document, on the ground that the said document is not duly stamped. Defendants filed an application under Section 34 of the Act seeking impounding of agreement of sale and for recovery of duty and penalty. The learned trial Judge, considering the nature of the tratlsaction and the document, found that the document is not duly stamped and called upon the petitioner to pay the deficit stamp duty and penalty in terms of the provisions of Section 34 of the Act. Since the stamp duty was not paid, the document was inipounded. At that stage, applications were filed by the petitioners seeking the Court to send the original agreement of sale to the District Registrar for impounding and collection of stamp duty and penalty. The said applications were rejected by the learned trial Judge. Hence these, writ petitions are filed questioning the validity of the provisions of the Act and the schedule as stated above.

6. Heard learned Counsel Sri. F.V.Patil, Sri. G.R.Andanimath for the petitioners and R.P. Ugargol, Sri. Arun L. Neelopanth and the learned Additional Government Advocate for respondents.

7. Sri. F.V.Patil, submitted that, the agreement of sale does not amount to conveyance and it is not conveyance within the meaning of Section 2 clause (d) of the Act nor it amounts to an instrument as defined under Section 2(j) of the Act. He referred to charging section and submitted that only the instrument as defined under Section 2 clause (j) is chargeable with a duty. Instrument referred to in Article 5 Clause (e) of the schedule does not come within the meaning of definition of instrument and as such agreement of sale referred to under Article 5(e) is not chargeable document as Section 3 of the Act refers to an instrument within the meaning of definition under Section 2 Clause (j). In this regard he also referred to provisions of Section 54 of the Transfer of Property Act and submitted that definition of sale does not include the agreement of sale or contract. they are not concluded contract, they do not part take the character of sale and it does not amount to conveyance, if it is not conveyance and is not a transfer provisions of Section 3 are not attracted as Section 3 being chargi