The legal status of the superstructure over land and the payment of Stamp Duty on the value of the superstructure under Self-Financing Schemes.

A.K. Yog, J.

Above Writ Petition, listed along with along with several other petitions on the statement made by the learned counsels appearing for respective parties that since sole question of law, arising in all these cases is one and identical in all respect hence they be decided together. As desired by the learned counsels for the parties, appearing in these cases, facts of each individual case need not be stated.

2. Petitioners are allotees of flats under various Self-Financing Schemes floated by U.P. Avas Evam Vikas Parishad, Lucknow/Regional Offices in various districts of the State of U.P. (called 'Parishad') as well as Development Authorities constituted under Urban Regulation of Building Operation Act (called Authority).

3. There is no dispute either in the Schemes floated by Parishad or the Authority that land in question belong to said Parishad/Authority. Applications were invited from the persons desiring to have allotment and finally to purchase residential flats on certain terms and conditions, relevant schemes including deposition of 'estimated price' of allotted flats as per schedule/revised schedule. Since availability of flats under those Self-Financing Schemes fell short, the applicants were subjected to an accepted mode of allotment through lottery to determine priority and observance of terms and conditions of the scheme.

4. For sake of convenience, we shall refer to the record of Writ Petition No. 25486 of 2003, Lokendra Kumar Tyagi and Ors. v. State of U.P. and Ors.

5. Copy of the Brochure, containing terms and conditions of allotment of Self-Financing Scheme, called 'Vasundhara Complex, Ghaziabad”, is Annexure 1 to this Writ Petition. The Brochure in question comprised of maps indicating details of the flats to be constructed, the plinth area, seize of rooms, Kitchen, Toilet, both on ground floor and other floors. It also declared registration fee in instalment, schedule, etc. It also mentioned expected date of start of construction and expected date of completion of flats.

6. Registration and allotment under the scheme contemplates 'terms and conditions' of surrender of allotment and to withdraw from the scheme.

7. Reference may be made to Clauses 8.6 and 9.2 and 10.4 of the said Brochure- which read:

^^8-6 fuekZ.k ds i'pkr foØ; ewY;] {ks=Qy vkfn esa deh ;k c<ksrjh gks ldrh gS ftldk lek;kstu vfUre Hkqxrku ds le; fd;k tk;sxkA

9-2 fdlh Js.kh fo'ks"k ds fy;s bl ;kstuk esa iathd`r lHkh vkosnd iathdj.k fu;e 7-2 ds izkfo/kkuksa ds vuqlkj lerqY; le>s tk;saxs rFkk ;Fkk lEHko ;g iz;kl fd;k tk;sxk fd bl ;kstuk esa iathd`r lHkh O;fDr;ksa dks vkokl miyC/k djk;k tk;sA Hkouks@nqdkuksa dk uEcj vkoaVu ykVjh Mk }kjk fd;k tk;sxkA ykVjh Mk ds iwoZ iathd`r O;fDr;ksa }kjk Mkys tkus ls iwoZ fu/kkfjr vof/k esa fyf[kr lgefr fn;s tkus ij miyC/k fLFkfr ds vuqlkj xzqfiax dh lqfo/kk nh tk ldrh gSA xzqfiax o ;k nks ls vf/kd Hkouksa dh gks ldrh gSA

10-4 ;fn vkoaVh }kjk leLr vkSipkfjdrk;sa iw.kZ djds Hkou dk dCtk 6 ekg esa ugha fy;k tkrk gS rks mldk iathdj.k dh /kujkf'k dk 20 izfr'kr dk dj fujLr dj fn;k tk;sxk] 'ks"k /kujkf'k fcuk O;kt dj nh tk;sxhA**

8. Clause 10.4 clearly prescribes that possession of the flat/shop shall be given to the allottees on their making requisite deposits after relevant coveyance/title-deed is executed and allottee failing to take possession within 6 months of letter intimating to take possession, registration was liable to be cancelled and registration amount, after deducting 20% without payment of interest.

9. The allottees (petitioners before us) are required to pay Stamp Duty on the value of the land (owned by the Parishad/Authority and also on the value of the 'superstructure'/flat.

10. According to the petitioners, demand for Stamp Duty on the deed of conveyance/title deed, which is to be executed in favour of allottees by Parishad/Authority is unjustified. Petitioners claim that they are not liable to pay Stamp Duty on the value of the superstructure/flats inasmuch as they had already paid the cost t