O R D E R

% 30.04.2013

1. In this writ petition the following two prayers have been made:

(a)Issue a writ of certiorari and after calling for the relevant records of the impugned circular quash the illegal circular bearing no. F.1(92)Regn.Br./Div.Com./2012/298 dated 27/4/2012 issued by respondent no. 2 as violative of petitioner’s Fundamental Rights guaranteed under Article 14 and 19(1)(g) of the Constitution and also the said circular is against the judgment of the Supreme Court delivered in “Suraj Lamp & Industries (P) Ltd. (2) vs State of Haryana” reported in (2012) 1 SCC 656 and the relevant laws and/or;

(b)Issue a writ of mandamus or an appropriate writ, order or direction in the nature of mandamus and direct the respondent- department to forthwith register the sale deed;....”

2. The brief facts and the background in which the writ petition has been filed are as follows:

2.1 The petitioner company entered into a collaboration agreement dated 11.09.2011 with one Mrs. Rani Puri, owner of the immovable property situate at A-1/81, Masjid Moth, Panchsheel Enclave, New Delhi (hereinafter referred to as the said property).

2.2 It appears that the said Mrs Puri, in pursuance to the aforementioned collaboration agreement, executed a General Power of Attorney (GPA) dated 11.11.2011, in favour of the petitioner. The GPA was duly registered and stamped, in accordance with the provisions of the Delhi Stamp Duty Amendment Act, 2001.

2.3 Apparently, Mrs Puri also executed a Will dated 11.11.2011. To be noted, the Will refers to Mr Anil Khanna, the director of the petitioner company. As per the said Will 25% of the undivided, indivisible and impartible ownership rights in the land, on which the said property has been built, is to devolve on Mr Anil Khanna, on the death of Mrs Puri. The said Will has, evidently, been registered with the Sub-Registrar-V, Delhi.

2.4 On 27.04.2012, respondent no.2, i.e., the Divisional Commissioner, Govt. of NCT of Delhi, issued the impugned circular.

3. The petitioner being aggrieved by the contents of the said circular approached this court by way of the captioned petition under Article 226 of the Constitution of India, to lay challenge to the same.

4. Learned counsel for the petitioner submits that, the circular dated 27.04.2012 is contrary to the judgment of the Supreme court passed in the case of Suraj Lamp & Industries (P) Ltd. vs State of Haryana (2012) 1 SCC 656. Particular emphasis in this regard has been laid on the observations made by the Supreme Court in paragraph 27 of the said judgment. It is further submitted that there is no impediment in the Sub- Registrar registering a genuine GPA and/or an agreement to sell. It is in this regard that, reliance is placed on the observations made in paragraph 27 of the judgment of the Supreme Court in Suraj Lamp & Industries (P) Ltd.

5. On the other hand, learned counsel for the respondents submits that, the transaction, which has been entered into between the petitioner company and the original owner, i.e., Mrs Puri, seeks to evade stamp duty and, therefore, there is a resistance by the Sub-Registrar, in registering the document.

5.1 Mr Mohammad, learned counsel for the respondents, submits that the transaction between the owner, Mrs Puri, and the petitioner company, i.e., the builder, is sought to be concluded on payment of stamp duty at the rate of 3% , whereas it ought to be subjected to stamp duty at the rate of 6%, which is the rate applicable to a transaction of sale.

5.2 It is the contention of Mr Mohammad that the transaction between the owner Mrs Puri and the petitioner company, i.e., the builder, is in effect a transaction of sale and hence the resistance to registration of the document. Mr Mohammad says that based on the Power of Attorney, the petitioner company, which is a builder, is obviously going to sell those portions of the super-structure to prospective buyers, which fall within its share. It is stated that the rate of stamp duty, on these sale(s) wil