SATHIADEV J.

In all these writ petitions, the main point relates to the validity of section 2(4) of the Tamil Nadu Act 38 of 1987 by which the Indian Stamp Act, 1899, and the Registration Act, 1908, had been amended. The writ petitioners have sought for a declaration that the amendments are ultra vires, unconstitutional and void. The circular issued by the Inspector-General of Registration, Madras, dated December 9, 1988, is also assailed as illegal and invalid. The averments in the affidavit filed in the first of the writ petitions are referred to hereunder :

The petitioner is engaged in the business of constructing flats in the city of Madras. It sells undivided share of land to prospective builders/purchasers under registered sale deeds. Thereafter, the purchasers build their flats at their own expense. Hitherto, stamp duty was collected only on the value of the undivided share in the land. Consequent to the amendment of the provisions, stamp duty is demanded on the cost of proposed construction of a flat, which is unconstitutional. The consequential circular issued by the second respondent is contrary to the provisions of the Indian Stamp Act. When the transaction pertains to a sale of an undivided share in a land without reference to any building or structure thereon which may come into existence later on, the insistence by the registering authorities upon payment of ad valorem stamp duty at 13% in the city of Madras on the proposed construction is illegal and invalid. The amendments effected are beyond the legislative competence of the State Legislature and Item No. 44 of List III do not authorise enactment of such an amendment. No duty could ever be levied on a property which is not in existence on the date of the execution or registration of the instrument. In essence, it is a tax or duty on the potential value of capital assets, which is not within the powers of the State Legislature. In the absence of guidelines, the certificate of the Assistant Engineer, Public Works Department, which is made conclusive relating to "the cost of the proposed construction" leads to arbitrariness and hence article 14 of the Constitution is violated. When the impugned provisions are violative of the petitioner's right to carry on trade or business in the promotion of flat building, it offends article 19(1)(g) of the Constitution. The duty imposed on a non-existent property is violative of article 300A as well. By the impugned circular dated December 9, 1988, documents are kept pending registration, which is an interference with the powers of the registering authorities and causing considerable inconvenience and loss to owners of properties. The specified assent of the President of India as required under article 254 of the Constitution of India had not been obtained. By the illegal action of the respondents, as the petitioner's business has virtually come to a standstill, it had filed the present writ petition.On behalf of the first respondent-State, counter-affidavit is filed in W. M. P. No. 882 of 1989 in W. P. No. 603 of 1989, etc., batch. It contains 40 pages out of which the cause title covers 31 pages. During the past three decades, it had learnt as to in what manner counter-affidavits are to be filed in writ miscellaneous petitions, and yet, what it had done is an unwanted exercise. As for the contents of the counter-affidavit, it is far from satisfactory. After referring to the manner in which sale deeds were executed prior to the amendment, it is claimed that, after inspections were made by departmental officers of the lands involved in the sale deeds, it was found that only the undivided share in the lands were being conveyed, even though flats were fully constructed and ready for occupation. It is only to curb the suppression of this fact that the impugned circular was issued. The documents relating to sale of undivided share of lands were kept for the purpose of inspection but, in obedience to the directions of the