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2010 Supreme(Guj) 319
AIR 2011 Guj 6
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
H.K. Rathod, J.
Pravinbhai Motibhai Patel – Appellant
Vs.
Deputy Collector and Anr. – Respondent
Special Civil Application No. 3264 of 2010
Decided On: 27.09.2010
For Appellant/Petitioner/Plaintiff: Satyam Y. Chhaya, Adv.
Headnote:
Constitution of India, 1950 - Articles 226, 227 - Bombay Stamp Act, 1958 Schedule 1, Articles 20, 45(f), Section 33-A -Petitioner has challenged an order passed by Deputy Collector, Stamp Duty Valuation, which was confirmed by Chief Controlling Revenue Authority - Held, Power of attorney itself suggests that irrevocable power of attorney is executed in favour of petitioner in respect to land in question, giving complete power to sell property and also to accept consideration of such sale deed -There is no specific provision that whatever consideration is to be accepted by petitioner is accepted - Section 33(A) is applicable and on that basis Deputy Collector is competent to impound copy of instrument -View taken by both authorities is correct and legal and no interference of this Court is necessary while exercising power under Article 226/ 227 of Constitution of India - Petition dismissed
Certainly. Here are the key points derived from the provided legal document:
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The petitioner challenged an order passed by the Deputy Collector regarding stamp duty and impounding of an instrument, which was confirmed by the appellate authority. The petitioner contended that the power of attorney executed in favor of the petitioner was not coupled with consideration and therefore, Article 45(f) of the Bombay Stamp Act should not apply (!) (!) .
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The power of attorney was executed by the petitioner’s sister-in-law, Smt. Pushpaben, and explicitly gave the petitioner full authority to sell the land and accept consideration, but did not specify that the consideration was accepted on her behalf (!) (!) .
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The authorities held that the power of attorney was irrevocable and amounted to a conveyance deed, making stamp duty applicable as per Article 20 of Schedule I of the Bombay Stamp Act. They reasoned that since the power of attorney conferred authority to sell and accept consideration, it should be treated as a conveyance (!) (!) .
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The petitioner argued that the power of attorney was not executed for consideration and that the consideration did not move from the petitioner to the donor, which would exclude the applicability of Article 45(f). The authorities, however, found that the power gave the petitioner rights akin to ownership and thus justified the stamp duty demand (!) (!) .
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The authorities emphasized that the impounding of the instrument was valid under the relevant provisions, especially since the original instrument was not produced despite multiple notices. They relied on the provisions that permit impounding copies when original documents are not produced after due opportunity (!) (!) .
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The legal interpretation established that an irrevocable power of attorney, especially one executed to secure a proprietary interest, can be deemed a conveyance and attract stamp duty based on the market value or consideration involved (!) (!) .
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The authorities confirmed that the failure to produce the original instrument justified impounding a copy, and the decision to treat the power of attorney as a conveyance was within their jurisdiction. The petition was dismissed, affirming the correctness of the impugned orders (!) (!) .
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Overall, the legal reasoning supports that an irrevocable power of attorney, when executed for consideration or with proprietary interests, is subject to stamp duty as a conveyance, and the procedures for impounding and valuation followed by the authorities are legally valid (!) (!) .
Please let me know if you need a more detailed analysis or specific legal advice based on these points.
H.K. Rathod, J.
1. Heard learned advocate Mr. Satyam Chhaya on behalf of petitioner and learned AGP Ms. Jirga Jhaveri on behalf of respondents - State authorities.
2. In this case, on 15.03.2010, notice was issued by this Court, meanwhile, respondents were directed not to take any coercive steps/action against petitioner. In present petition, petitioner has challenged an order dated 30.06.2009 (07.07.2009) passed by Deputy Collector, Stamp Duty Valuation, Sabarkantha at Himmatnagar, which was confirmed by Chief Controlling Revenue Authority, Gandhinagar.
3. According to petitioner, he is permanently residing at city Himmatnagar from generation. Father of petitioner Motibhai expired leaving behind two sons i.e. the petitioner and his brother Shanubhai Motibhai Patel. Smt. Pushpaben is wife of Shanubhai and she is sister-in-law of petitioner. Smt. Pushpaben was holding land bearing Survey No. 24 paiki of city Himmatnagar, District Sabarkantha admeasuring 31,671.85 sq. mtrs. Said land was converted into non-agriculture land vide order dated 27.05.1996 passed by Collector, Sabarkantha. As per non-agriculture order, out of above referred land, land admeasuring 27,327.85 sq. mtrs. was converted into residential land whereas the land admeasuring 4344 sq. mtrs. was converted for commercial purpose. Smt. Pushpaben has plotted above referred land and total 121 plots for residential purpose and two plots for commercial purpose were earmarked. As per the provisions of law, 3 common plots of 2497.35 sq. mtrs. were earmarked. Provision of Development Plan Roads was also maintained in plots.
4. Since sister-in-law of petitioner Smt. Pushpaben was not in a position to look after day-to-day affair and not in a position to attend the Registrar office for executing sale deeds etc., one power of attorney dated 10.06.1996 was executed in favour of petitioner by Smt. Pushpaben. As per recital of power of attorney, the petitioner donee (agent) was entitled to execute sale deeds and/ or other documents in favour of third party on behalf of donor and also was empowered to receive the amount of consideration on behalf of donor. It is more than clear that power of attorney executed in favour of petitioner was not coupled with consideration. In view of power of attorney executed on 10.06.1996, petitioner has executed different sale deeds in favour of different persons with respect to above referred plots.
5. Recently, in year 2008, petitioner has executed registered sale deeds No. 2367 to 2370 in favour of purchaser in capacity of power of attorney holder. Surprisingly, on 20.09.2008, under purported exercise of power, Deputy Collector, Stamp Duty and Valuation Department, Sabarkantha at Himmatnagar issued show cause notice informing petitioner to show cause as to why payment of order of deficit stamp duties and penalty should not be passed with respect to power of attorney dated 10.06.1996. The show cause notice was duly replied by petitioner. However, ultimately vide order dated 07.07.2009, respondent No. 1 passed order for payment of deficit stamp duties of Rs. 27,18,955/ - and Rs. 3,00,000/ - towards penalty, totaling Rs. 30,18,955/ - against petitioner.
6. Respondent No. 1 - Deputy Collector, Stamp Duty Valuation has held that as per Article 45(f) read with Article 20 of Schedule - I of Bombay Stamp Act, power of attorney is required to be considered as conveyance deed and therefore stamp duty is payable as per Article 20 of Schedule I. Order dated 30.06.2009 (07.07.2009) passed by respondent No. 1 was challenged by petitioner by way of preferring appeal being Appeal No. 28 of 2009 under Section 53(1) of Bombay Stamp Act before respondent No. 2. Respondent No. 2 has also not considered contention raised by petitioner and passed impugned order on 16.01.2010, whereby order dated 30.06.2009 (07.07.2009) is confirmed. According to petitioner, though in show cause notice there was no whisper that document is impounded and respondent No. 1 has not infor
