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IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar K. Sukumaran, JJ.
The State of Maharashtra and others... Appellants.
Versus
Mahavir Lalchand Rathod and another... Respondents.
Appeal No. 395 of 91 in Writ Petition No. 3693 of 90, A. No. 396 of 91 in W.P. No. 3694 of 90, W.P. No. 2736 of 88, W.P. No. 3020 of 88, W.P. No. 99 of 89, W.P. No. 1365 of 89, W.P. No. 1378 of 89, W.P. No. 1379 of 89, W.P. No. 1411 of 89, W.P. No. 2556 of 89, W.P. No. 2557 of 89, W.P. No. 2558 of 89, W.P. No. 2559 of 89 and W.P. No. 3640 of 89, decided on 13-2-1992.
Advocates appeared :
Miss P.D. Ankalesaria, G.P., for the appellants, is A. No. 395/91, A.P. No. 3964/90, W.P. No. 2736/88, W.P. No. 3020, W.P. No. 99/89, W.P. No. 1365/89,W.P. No. W.P. No. 1378/89, W.P. No. 1379/89, W.P. No. 1411/89, W.P. No. 2556/89, W.P.No. 2557/89, W.P. No. 2558/89, W.P. No. 2559/89, W.P. No. 3640/89.
M.S. Bhandari with Suman Jaia i/b Miss P.D. Ankalessris with S.M. Shah, for the respondents in A. No. 395/91.
M.M. Bhandari, for the respondents in A. No. 395/91, A.P. No. 3964/90.
M/s. Law Charter, for the petitioners, in W.P. No. 2736/88.
Dr. D.Y. Chandrachud, i/b M/s. Maailal Kher Ambalal and Co., for the petitioners, in W.P. No. 3020/88.
Miss Deepa Nula i/b M/s. Dhra Co., for the petitioner, in W.P. No. 99/89.
Sameer Virai, for the petitioners, in W.P. No. 1365/89, W.P. No. 1378/89, W.P. No. 1379/89.
Bhagat i/b M/s. Vasant Co., for petitioners, in W.P. 1411/89.
D.R. Zaiwala i/b. M/s. Shsh and Saghavi, for the petitioners in W.P. 2556, W.P. No. 2557/89, W.P. No. 2558/89, W.P. No. 2559/89.
C.C. Chhaya, for the petitioners, in W.P. No. 3640/89.
Sections 2 (g), 2 (1), Schedule 1, Article 25, Explanation 1-Agreement to sell immovable property covered by word conveyance occurring in Explanation 1.
Said word not used in same sense as understood under Transfer of Property Act. Provision does not suffer from Legislative competence on that ground. No inconsistence existing between Bombay Stamp Act and Transfer of Property Act.
Sections 2 (g), 2 (1), Schedule I, Article 25 Explanation 1-Word Conveyance occurring in Explanation 1.
Such a word covers agreement to sell immovable property. Word not used in same sense as understood under Transfer of Property Act. Provision not suffering from legislative competence on that ground. No inconsistency existing between Bombay Stamp Act and Transfer of Property Act.
Section 33 contemplates prior hearing by authority in case of impounding of documents.
Section 33-Prior to impounding of documents, Section 33 provides for prior hearing by authority.
Schedule I, Article 25, Explanation I-Constitutionality of provision. Held,-Provision not ultra vires of constitution. State Legislature competent to legislate it Explanation 1 covering agreement of sale of flat by Builder Developer.
Schedule, I Article 425, Explanation 1 -Provision not ultra vires Constitution of India-Competent authority to legislate is state legislature-Agreement of sale of flat by Builder Developer-Covered by Explanation 1.
BOMBAY STAMP (DETERMINATION OF TRUE MARKET VALUE OF PROPERTY) RULES, 1981.
Rule 3 and Bombay Stamp Act (60 of 1958), Sections 32A, 69, 70-Notice issued under Rule challenged.
Absence of reference to true market value in Rule 3. Rule 3 not beyond rule making power of State Government. Section 32A being substantive provision empowers determination of true market value in Rule 3 not to vitiate notice issued under that rule.
Rule 3 (i)-No illegality in notice on ground that it is issued without hearing concerned person when no order passed thereon.
Rule 3 (i) and Bombay Stamp Act (60 of 1958), Section 32-Authoritv to issue notice under Rule 3 (i) is Director of Town Planning, Stamp and Valuation.
Rule 3 (i) and Bombay Stamp Act (60 of 1958), Section 32-Notice under Rule 3 (i) challenged.
Authority to issue notice-Held-Director of Town Planning, Stamp and Valuation is authorised to issue notice under Rule 3 (i).
Sections 4, 4-A, Regulation Act (16 of 1908), Sections 17, 49 and Bombay Stamp Act (60 of 1958) Schedule I, Article 25-Scction 4 of 1963 Act neither opposed not inconsistent with Section 49 of Registration Act-Agreement for sale of flat-Dutiable under Bombay Stamp Act-Agreement required to be registered under Section 49 of Registration Act, is a discretionary provision.
Section 4 Bombay Stamp Act (60 of 1958). Sections 32-A(1), 2(g), (1)Purchase of flat from Developer-Execution of agreement in terms of Section 4 of 1963 Act-It, being instrument on sale or an agreement covered under Section 2 (g) or Section 2 (1), falls under Section 32-A (1).
2. At the outset it may be stated that in all these writ petitions the agreements for sale were entered into between the Builders-Developers and the Purchasers of the flats. All these agreements for sale which were executed in terms of section 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963-hereinafter referred to as "MOF" Act are required to be registered under section 17(1) of the Indian Registration Act. The Registering Authority thereafter impounded the documents (Agreements for sale) and sent them to the Superintendent of Stamps under the Bombay Stamp Act, 1958 for appropriate action (See. Exh. C). Issue raised in all these writ petition is as to whether such agreements for sale can be subjected to payment of stamp duty in terms of section 32-A read with Entry 25 Schedule I of the Bombay Stamp Act, 1958.
3. The agreements for sale or agreements of sale in all these matters are almost identical incorporating relevant and material clauses provided under section 4 of the MOF Act. Some of the clauses were although deleted and subtituted by new clauses but substratum of these agreement remain the same in terms of section 4 of MOF Act.
4. For the purpose of this judgment we may set out the averments contained in Writ Petition No. 3693 of 1991 out of which Appeal No. 395 of 1991 arose. Parties will be hereafter referred to by their original description in writ petition.
This writ petition is filed by the two petitioners. Second petitioner is the wife of first petitioner (respondents 1 and 2 respectively in this appeal;). The first respondent is the State of Maharashtra. The second respondent is the Assistant Director, Town Planning, Stamp and Valuation, Bombay. The third respondent is the Sub-Registrar of Assurances, Bombay and the fourth respondent is the Superintendent of Stamps, Bombay (appellants in this appeal). It is averred by the petitioners that on 8th October, 1987 they entered into an agreement for sale of the flat with one M/s. Century Enterprises to purchase a flat No. 1301 in Bhawani Complex Building 'C'. Bhawani Shankar Road, Bombay---400 028. The agreement for sale is annexed to this petition (Exh. A). We will refer to the various terms contained in this agreement at appropriate stage when we deal with the said agreement. This agreement was executed in terms of section 4 of the MOF Act with certain modifications. It was lodged for registration on 3rd of November, 1987 in terms of section 4 of the MOF Act read with section 17(1) of the Indian Registration Act, 1908. The receipt of lodging is at Exh. B. The consideration under this agreement was shown at Rs. 3,75,000/-. Registration fee of Rs. 3,750/- was paid in addition to copying fee and postal charges. The Sub-Registrar of Bombay vide his letter issued sometime in February 1988 communicated to the first petitioner that the said document was impounded and has been sent to the Superintendent of Stamps, Bombay. The petitioner was directed to do needful in the matter in the Stamp Office. T
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