2012 Supreme(P&H) 643

IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice A.N. Jindal
C.W.P. No.16227 of 2009
Amritpal Singh
v.
Chandigarh Administration & Ors.
{Decided on 10/05/2012}

Transfer of Property--Requirement of 'No Objection Certificate before effecting sale of free hold properties not legal--Directions to Registering Authorities issued.

Headnote:(A) Capital of Punjab (Development and Regulation) Act, 1952--The requirement to seek 'No Objection Certificate' unless it is so incorporated in the Rules, is illegal in respect of the property sold or allotted on free hold basis--But at the same time, the Registering Officer is duty bound to verify that the executant is genuine and has interest in the property sought to be transferred--Chandigarh (Sale of Sites and Building) Rules 1960--Transfer of Property Act, 1882.

       There is no Rule/Clause which empowers the Administration to seek 'No Objection Certificate' from its transferees, when the title and interest in the land or the building stands transferred without any encumbrance on receipt of the entire sale consideration--Even the model deed of conveyance contained in Form 'B' in the 1960 Rules, has no clause, which require 'No Objection Certificate' from the Chandigarh Administration. (Para 18)

       (B) Chandigarh (Sale of Sites and Building) Rules, 1960--Requirement of 'No Objection Certificate before effecting sale of free hold properties not legal--Directions to Registering Authorities issued--Capital of Punjab (Development) and Regulation Act, 1952.

       (i) That the requirement of 'No Objection Certificate' from the Chandigarh Administration before effecting sale of the free hold properties is not supported by the Act or the Rules framed thereunder.

       (ii) The Registering Authority is duty bound to examine; whether the Power of Attorneys are being executed for consideration--If the Authorities are satisfied that it is for consideration, the Power of Attorney shall not be registered unless the proper stamp duty is affixed thereon.

       (iii) If the proper stamp duty is not paid on a Power of Attorney executed on and after 15.11.2007, the Registering Authority shall refuse to register the document on the basis of such attorney at any subsequent stage unless proper stamp duty is affixed thereon in accordance with law.

       (iv) The Chandigarh Administration may re-examine Rule 17(10) of the 1973 Rules contemplating unearned increase, as well the restriction to sell the properties before the expiry of specific years, as the root-cause of malice of Power of Attorneys sales.

       (v) The Chandigarh Administration to frame Rules to maintain and update the property records in the manner mutations are sanctioned in respect of non urban properties under the Punjab Land Revenue Act, 1887 or such other procedure, which is fair, reasonable and transparent. (Para 32)

       (C) Capital of Punjab (Development and Regulation) Act, 1952--Sale through power of attorney--Validity of--There may be cases where in spite of bona fide enquiries, the Sub Registrar is not able to make out; whether the power of attorney is for consideration--But if on the basis of such power of attorney, an instrument for sale is presented for registration, the Sub Registrar will be competent to hold an enquiry at any subsequent stage into the nature of transaction and to return a finding that such power of attorney was for consideration and, therefore, cannot be made basis for registration of an instrument unless the deficiency in such case made good in accordance with law--Capital of Punjab (Development and Regulation) Building Rules, 1952--Chandigarh (Sale of Sites and Building) Rules 1960--Transfer of Property Act, 1882.

       Now coming to the present case, the petitioner has obtained Power of Attorneys for consideration, as it is evident that the petitioner has entered into an agreement to sell in respect of 30% and 20% shares--Such power of attorneys executed after 15.11.2007 is for consideration and have to bear, the stamp duty as a conveyance--If such instruments have been so stamped, the Sub Registrar is bound to register the sale deeds else such power of attorneys cannot be acted upon unless the deficiency in the stamp duty is made good in accordance with law--The petitioner or any other attorney holder or the prospective purchaser cannot be permitted to evade the payment of stamp duty under the guise of execution of power of attorney--The present writ petition is disposed of in the manner recorded above. (Para 33)