JUDGMENT- Dr. B.P. SARAF, J.:---The writ petitioner along with one Chandrakant Gangaram Hatkar and one P.K. Vasudevan Nair jointly agreed to purchase a plot of land admeasuring 550 sq. meters situated at village Kirol, Taluka Kurla, Bombay, for a consideration of Rs. 25,000/-. The said agreement for sale was executed on 16th October, 1984 and it was lodged for registration on the same day under Sr. No. S-4483/84. The agreement was executed on a stamp paper of Rs. 5/- as at the relevant time the stamp duty under the Bombay Stamp Act, 1958 on an agreement of this type was Rs. 5/- only. There is no dispute in that regard. Subsequently, the petitioner was served with an order dated 24-9-1986 issued by the Deputy Collector Valuation Stamp Duty, Bombay, asking the petitioner to pay the stamp duty applicable to conveyance of immovable property along with penalty. The contention of the Deputy Collector was that the document dated 16-10-1984 lodged for registration by the petitioner was wrongly described as an agreement of sale whereas in effect it was a document of sale. In that view of the matter, according to the Deputy Collector the proper duty payable on such document was the duty applicable to "conveyance of immovable property". The value of the immovable property for that purpose was estimated at Rs. 1,77,000/- and the duty payable thereon after deducting a sum of Rs. 5/- already paid by way of stamp on the agreement of sale was determined at Rs. 22,545/-. Since the documet was insufficiently stamped for registration, in addition to the above amount of stamp duty penalty in the sum of Rs. 45,090/- was also levied and demand in all aggregating to Rs. 67,635/- was raised on the petitioner. On 24th March, 1988 a notice was issued to the petitioner to show cause why the above amount should not be recovered. Aggrieved by the aforesaid order and the notice for recovery, the petitioner has approached this Court by filing the present writ petition.

2. The question that arises for consideration is whether the document in question is an agreement for sale of immoveable property or it is a conveyance of immoveable property. For that purpose, it will be necessary to examine some of the recitals in the said agreement. I have gone through the agreement which is annexed to this petition as Exhibit-A. On a careful consideration of the same, it is clear that it is not only termed as an agreement for sale but, in fact, it is so. Clause 11 of it clearly provides :

"Subject to the completion of marketable title to the properties by the Vendor and no objection certificate if necessary, being obtained from the Competent Authority (sic, by) either of the parties, the Sale Deed shall be registered as and when required by the Purchasers."

It is also stated in Clause 10 that the Vendors shall give a General Power of Attorney in favour of the purchasers or any other person or persons as may be directed by the purchasers for the purpose of management and development of the said land as and when required by the purchasers. In Clause 12 of the agreement, it is further stated that the parties have agreed that the expenses of that agreement and the deed of conveyance and other writings to be executed inclusive of stamp duty, registration charges etc. shall be borne and paid by the purchasers alone. A reading of the above clauses clearly goes to show that by this agreement the vendors have not conveyed the freehold right to the purchasers. No doubt, they have handed over possession and given them certain rights to develop the same. They also agreed to execute power of attorney in favour of the purchasers or their nominees to enable them to carry out the management and other developmental activities. It is, however, clear from Clauses 11 and 12 that after verification of the title of the vendor to the property and obtaining No Objection Certificate etc. from the competent authorities, a sale deed shall be registered, the expenses thereof including the stamp duty

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