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2009(3) Supreme 730
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. Arijit Pasayat and Tarun Chatterjee, JJ.
M/s. Residents Welfare Association, Noida — Appellant(s)
versus
State of U.P. & Ors. — Respondent(s)
Civil Appeal No. 4367 of 2000
Decided on : 15-04-2009
AIR 1972 SC 898; (1996) 1 SCC 609 – Relied upon.
(b) Transfer of Property Act, 1882 –Sections 54 and 105 – In case of a lease, there is a partial transfer and the right of reversion remains with the lessor – In case of a sale, however, there must be an absolute transfer of ownership – Transfer to the members of the association was an assignment of the leasehold rights – Hence the document in question was, in fact, a lease. (Para 17)
AIR 1965 SC 590 – Relied upon.
(c) Transfer of Property Act, 1882 – Section 105 – Lease deed specifically providing for a right of reversion to the land and appurtenances thereto including buildings, on the termination or expiry of the lease – Thus the buildings and all other appurtenants attached to the land become a part of the assigned transfer through lease and not a separate sale. (Para 20)
(d) Transfer of Property Act, 1882 – Section 3 – When an immovable property such as land is transferred by way of assignment of lease, all appurtenances thereto attached to the earth such as buildings and fixtures thereto would also stand assigned. (Para 21)
(e) Transfer of Property Act, 1882 – Sections 54 and 105 – Nomenclature of a document cannot be said to be determining factor in deciding whether a particular deed or document was a lease or a deed of assignment. (Para 23)
AIR 1977 SC 500 – Relied upon.
(f) Indian Stamp Act, 1882 – Article 63, Schedule 1-B – It would apply in case of a transfer of lease by way of an assignment – Article 23 applies in case of a conveyance by way of sale – In case of an assignment, the duty that would be payable is the same duty as conveyance for a consideration equal to the amount of the consideration for the transfer – Duty is not calculated on the market value but on the amount of consideration mentioned in the deed itself – It was not open to the registering officer to embark upon an enquiry into the market value of the land or the building. (Paras 24 and 25)
(g) Indian Stamp Act, 1899 – Section 47 A applies in case of an outright sale – The document being a lease deed the appellant cannot be charged with evading stamp duty. (Para 26)
(h) Indian Stamp Act, 1882 – Article 63, Schedule 1-B – Where the property could not be registered due to no fault of the transferee and where the consideration was frozen earlier, the relevant date for calculation of market value and the stamp duty is the date on which the consideration was frozen – Question of determination of the market value does not arise at all in case of an assignment of lease. (Paras 27 to 29)
AIR 1997 Mad 296 – Cited with Approval.
Facts of the case :
1. New Okhla Industrial Development Area allotted lands to several Co-operative Housing Societies by execution of lease deeds with such Co-operative Group Housing Societies in respect of the lands allotted to them. The said lease deeds contain various restrictions on the transfer of leasehold rights
2. The lease deeds also contained another clause, which stipulated that such lease deeds must be compulsorily registered with the sub-Registrar. Noida is the lessor, the co-operative societies are the lessees, members of the cooperative societies are sub-lessees and the present appellants are the assignees.
3. Some of the members of the association executed the relevant transfer deeds with the lessees which were in essence and in reality deeds for transfer of the lease by way of assignments by the original lessees in favour of the members of the association.
4. The officials of the respondent no. 3 informed that the stamp duty to be fixed on the documents should be as applicable to conveyance under Article 23 of the Schedule 1-B of the Stamp Act, on the basis of the current market value of the plot along with the constructed portion thereon and for which reference to the present notified rates for Noida would be taken, as indicative of the market value.
5. Challenging this decision of the Sub-Registrar, a Writ Petition was filed which was dismissed.
Finding of the Court :
The alleged document is therefore a transfer of the assignment of lease and not an outright sale of its appurtenants.
Result : Appeal disposed of.
Key Points: - (!) (!) - (!) (!) - (!) (!) (!)
JUDGMENT
Tarun Chatterjee, J.—
1. This appeal by special leave is directed against the judgment and order dated 27th of May, 1999 of the Division Bench of the High Court of Allahabad in Writ Petition No 38748 of 1997 whereby, the Division Bench of the High Court had dismissed the Writ Petition filed by the appellants above named.
2. The relevant facts leading to the filing of this appeal, as emerging from the case made out by the appellant may be summarized as follows:-
New Okhla Industrial Development Area (in short “Noida”) allotted lands to several Co-operative Housing Societies by execution of lease deeds with such Co-operative Group Housing Societies in respect of the lands allotted to them. The said lease deeds contain various restrictions on the transfer of leasehold rights which, interalia include:
1) Restrictions on the transfer without prior consent of the Noida authorities by transfer memorandum.
2) Construction of buildings on such leasehold lands had to be made within a stipulated period from the date of allotment failing which the leases of the respective Co-operative housing societies were liable to be resumed by the Noida authorities.
3. The lease deeds also contained another clause, which stipulated that such lease deeds must be compulsorily registered with the sub-Registrar. It may be clarified that Noida is the lessor, the co-operative societies are the lessees, members of the cooperative societies are sub-lessees and the present appellants are the assignees.
4. The appellant is the Resident Welfare Association, Noida, (hereinafter called the “Association”). The members of the association executed various agreements for transfer of leasehold rights with the co-operative societies and its members from 1988 onwards. Each of the agreements for transfer of leasehold rights entered into by the members of the association with the lessees and the sub-lessees were registered with the Office of the Sub-Registrar, Noida. It may be kept on record that from 1984 to June 1997, Noida authorities were injuncted by the Civil Court from issuing transfer memorandums for grant of permission for transfer of leasehold rights. The order of injunction was operative from 1988 and continued almost throughout the State of UP till July 1997. It may also be kept on record that the agreements for transfer of leasehold rights were denoted as agreements of sale. The various transactions entered into by the members of the association may be categorized in three different heads:
1) By the agreements of transfer entered into and possession taken over on payment of most or all of the consideration due and such agreements being duly registered with the Office of the Sub-Registrar, Noida on payment of stamp duty charges at half of the stamp duty payable on a conveyance for the consideration set forth in the agreement in accordance with Article 5 (b)(1) of Schedule 1-B to the UP Stamp Act,
2) By the agreements entered into and possession not taken under the agreements, but later the said agreements were duly registered with the Sub-Registrar, Noida,
3) In both the above mentioned categories, the agreements for transfer were either for a plot of land on which construction was made thereafter by the assignees (members of the association) of the leasehold property out of their own funds or the agreements for a plot of land along with the building constructed thereon. Thus in some cases, as noted hereinabove, the plots were purchased along with small construction which was later demolished and the assignees constructed new building after obtaining new sanction plans using their own funds.
5. On 1st of July, 1997, a public notice was issued advertising that Noida authorities shall issue transfer memorandums with respect to the transfer of plots in question upon terms and conditions including payment of transfer premium. Upon issuance of the said notice, various members of the association applied for and obtained transfer memorandums from Noida author
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