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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K.Ilanthiraiyan, J.
M/s.Ceebros Hotels Pvt.Ltd. - Petitioner
Versus
The State of Tamilnadu, Rep. by its Secretary, Commercial Taxes/Registration Fort St.George, Chennai and ors. – Respondents
WP.No.13001 of 2016 and WMP.Nos.11355 & 11356 of 2016 and WMP.Nos.29542 of 2016, 27533 of 2019 & 19040 of 2021
Decided On : 20-10-2021
Constitution of India, 1950 - Article 226 - Indian Stamp Act, 1899 - Section 33A - Article 23 - Registration Act, 1908 - Section 80A, 80-A (1), 80- A(3) - Banking Regulation Act, 1949 - Section 44A - Companies Act, 1956 - Section 394 (2) - Transfer of Property Act - Section 100 – Power of High court to issue writs - Recovery of deficit registration fees - Whether petitioner company is liable to pay deficit stamp duty and registration fees with regards to scheme of amalgamation registered vide document between fourth and fifth respondents and M/s.Atlantic Hotels Private Limited - Whether purchasers had made due enquiries, failure of which would amount to willful abstention or gross negligence, are questions of fact and law, that requires to be dealt independently, on case to case basis - Court has power to issue a Writ of Mandamus but duty bound to exercise such power, where Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of Government or has exercised such discretion malafide, or on irrelevant consideration. (Para 13).
Findings of Court – One of conditions for exercising power under Article 226 for issuance of a mandamus is that court must come to conclusion that aggrieved person has a legal right, which entitles him to any of rights and that such right has been infringed - In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by State or any public authority, could be enforced by issuance of a writ of mandamus, Mandamus means a command - It differs form writs of prohibition or certiorari in its demand for some activity on part of body or person to whom it is addressed - Mandamus is a command issued to direct any person, corporation, inferior courts or government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in nature of a public duty - A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by common law to do a particular act - In order to obtain a writ or order in nature of mandamus, applicant has to satisfy that he has a legal right to performance of a legal duty by party against whom mandamus is sought and such right must be subsisting on date of petition - Duty that may be enjoined by mandamus may be one imposed by Constitution, a statute, common law or by rules or orders having force of law.
Result – Writ petition allowed.
ORDER :
This writ petition is filed to issue a Writ of Certiorarified Mandamus calling for records on the file of the third respondent in Check Slip No.1/2016 dated 31.03.2016 and quash the same as unconstitutional, illegal, invalid, arbitrary and without jurisdiction and also being contrary to the provisions of the Indian Registration Act, 1908 and Stamp Act and consequently forbearing the Respondents 1 to 3 from initiating any further proceedings thereof.
2. The property comprised in RS.No.1619/1, Block No.50 bearing new No.3, old No.2 situated at Montieth Road, Egmore, Chennai admeasuring 30 grounds and 1800 sq.ft. (hereinafter called as 'subject property') was owned by S.R.Y. Sivarama Prasad Bahadur by the partition deed dated 08.08.1960. It was allotted to S.R.Y.Padmanaba Prasad Bahadur and sold out by registered sale deed dated 15.07.1972 vide document No.3913 of 1972 to M/s.Hotel Atlantic Private Limited. Subsequently, M/s.Hotel Atlantic Private Limited was changed to M/s.Atlantic Hotels Private Limited and amalgamated with S.Chand and Company Limited, S.Chand Hotels Private Limited and S.C.Hotels Tourist Deluxe Private Limited and Shaara Hospitalities Private Limited and S.Chand Properties Private Limited i.e. fourth and fifth respondents herein. The petitioner is being a property developer had negotiations with fifth respondent to purchase the subject property for total sale consideration of Rs.142 crores. Accordingly, the petitioner purchased the subject property by the registered sale deed dated 19.09.2013 registered vide document No.2308 of 2013 on the file of the third respondent. After purchase, the petitioner was issued patta by the Tahsildar, Egmore.
2.1 The scheme of amalgamation was sought to be registered and the same was kept pending vide document No.P3 of 2013 on the file of the third respondent on the query raised by the third respondent as to whether the order of this Court CP.No.167 of 2011 dated 14.09.2012 would attract stamp duty. The second respondent had issued clarification to the third respondent dated 22.04.2013 and clarified that as per the order of the Delhi High Court, it is not liable to pay any stamp duty and only a registration fee of 1% around Rs.44.19 lakhs alone was paid and document was registered and released vide document No.914 of 2013 on the file of the third respondent. Thereafter, the petitioner has presented the sale deed on 19.09.2013 and the same was duly registered vide document No.2308 of 2013. In order to develop the said property, the petitioner has applied for planning permission and after approval constructed 168 residential flats. So far 124 persons have purchased their respective flats and registered their respective sale deeds and construction agreements. All the documents were released without any demur or protest. However, on 31.03.2016, the third respondent issued the impugned check slip alleging the under valuation in document No.914 of 2013 and citing Section 33A of the Indian Stamp Act and Section 80A of the Registration Act, thereby called upon the petitioner to pay deficit stamp duty and registration charges when the petitioner presented the sale deed and construction agreement for registration.
3. Mr.Abdukumar Rajarathinam, the learned counsel for the petitioner would submit that though the first respondent passed a Bill dated 31.05.2012 in LA.No.20/2012 as that at present there is no provision in the Indian Stamp Act, 1894(Central Act II of 1899), for levy of stamp duty on transfer of properties made to facilitate amalgamation or reconstruction of companies by the orders of the High Court under Section 394 of the Companies Act, 1956 or under the order of the Reserve Bank of India under Section 44A of the Banking Regulation Act, 1949 in respect of Banking Companies, the Government have therefore decided to amend the Indian Stamp Act, 1899 so as to provide for levy of stamp duty on the above mentioned transfer of properties to augment the State Exchequer. However,
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