Punjab-Haryana High Court
State Of Punjab And Others vs The Guru Angad Dev Cooperative House ... on 20 November, 2013
Author: Gurmeet Singh Sandhawalia
Bench: Gurmeet Singh Sandhawalia
RSA No.3366 of 2000 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.3366 of 2000
Date of decision: 20.11.2013
State of Punjab and others ...Appellants
Vs.
The Guru Angad Dev Cooperative House Building Society Ltd.
...Respondent
CORAM: HON'BLE MR.JUSTICE GURMEET SINGH SANDHAWALIA
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Present: Mr. P.S.Grewal, Deputy Advocate General, Punjab
for the appellants.
Mr.Satinder Khanna, Advocate for the respondent.
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G.S.SANDHAWALIA, J. (Oral).
1. The present Regular Second Appeal has been filed by the State/appellants-defendants against the judgment and decree dated 28.11.1997 whereby suit for permanent injunction filed by the plaintiff was decreed and they were restrained from recovering a sum of ` 1,82,330/-from the society on the basis of demand notice of recovery dated 10.7.1987. The appeal filed by the State was dismissed by the Addl. District Judge, Ludhiana on 1.12.1999.
2. The case of the plaintiff-society in nutshell is that vide recovery notice dated 10.7.1987, a sum of ` 1,82,330/- was claimed by the State on the ground that it had purchased land in village Daad, Tehsil and District Ludhiana vide sale deeds pertaining to the year 1986. It was pleaded case of the plaintiff that the Punjab Government vide its notification dated 13.9.1948 had granted remission regarding payment of stamp duty to all the cooperative societies registered under the Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -2- **** Punjab Cooperative Societies Act, 1961 in case of the sale deeds, which were executed by the members of the plaintiff-society in favour of the plaintiff society. Accordingly, there was no occasion to demand the stamp duty and there was no illegality or irregularity in the said sale deeds. The demand had been raised on objection raised by the Accountant General (Audit), Punjab. Once the sale deeds had been registered, the Sub-Registrar became functus officio and ceased to have any jurisdiction or control over the same. The amount was being demanded as arrears of land revenue by seeking the arrest of the Directors of the society.
3. The suit was resisted by the appellants-State and it was pleaded that the Accountant General, Punjab had pointed out that there was deficiency in payment of stamp fee and the said department had not been impleaded as party. The factum of notification regarding remission of stamp duty was admitted but the plea taken was that vide notification dated 7.7.1961 it was clarified that society and its members were entitled to exemption in respect of the instrument pertaining to the business of the society and not with regard to other activities of the members of the society. Accordingly, it was pleaded that the demand was justified.
4. On the basis of the pleadings of the parties, the trial Court framed the following issues:-
"1. Whether the plaintiff society is exempted from the payment of stamp duty and the plaintiff is entitled to the injunction prayed for ?OPP
2. Whether notice U/s 80 CPC has been served on the Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -3- **** defendants before filing the suit?OPD
3. Whether the suit is bad for non-jooinder of parties?OPD
4. Whether the suit is not maintainable?OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD
6. Relief."
5. After taking into account the submissions made, the trial Court came to the conclusion under issue no.1 that the land was situated out side the municipal limits as admitted by DW-1-Surinder Kaur, clerk of the Sub Registrar Office and, therefore, the plaintiff-society was exempted from payment of stamp duty and the same was not payable as per notification dated 13.9.1948. The evidence of PW-1-Amarjit Singh was taken into consideration to record a finding that the society was purchasing the land and plots for construction of houses and that was its business. Accordingly, issue no.1 was decided in favour of the plaintiff and the plaintiff-society was held exempted from payment of stamp duty. On issue no.2, it was held that matter was of urgent nature and there was no requirement of serving notice under Section 80 CPC. The other issues were not pressed and accordingly the same were decided against the defendants. The suit was decreed and the defendants were restrained from recovering the said amount.
6. The appeal filed by the State did not meet any success and same was dismissed. Resultantly, the present Regular Second Appeal has been filed.
Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -4- ****
7. Counsel for the appellants-State has submitted that findings recorded by the Courts below are not justified since there was no proof that the plaintiff-society was doing the business of sale and purchase of plots and, therefore, it was not entitled for the exemption of stamp duty as per notification dated 7.7.1961.
8. Counsel for the plaintiff-respondent on the other hand justified the findings recorded by the Courts below and submitted that there was no question of law arising for consideration.
9. After hearing the counsel for the parties and perusing the record, it would transpire that the State issued demand notice to deposit ` 1,82,330/- and threatened the members of the society with arrest without issuing any show cause notice as to how they are liable to pay the stamp duty inspite of the fact that earlier notification had been issued on 13.9.1948 whereby Cooperative Societies were exempted from payment of stamp duty. The sale deeds Ex. D1 to Ex. D4 executed by the members of the society were brought on record by the defendants and admittedly it was proved that the same were executed by the members of the society and also finding was recorded that the land was out side the urban limits, therefore, the plaintiff-society was entitled to benefit of exemption. The fact that the sale deeds had been executed by the members in favour of the society was also proved on record and as per notification dated 7.7.1961, exemption of stamp duty was allowed to the instruments executed by or on behalf of any society registered under the Act and also on the instruments executed by an official or member of any such society in respect of the business of the society.
Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -5- **** Vide notification dated 9.2.1962, the benefit of exemption was withdrawn pertaining to cooperative house building societies which were in urban areas. Thus, the plaintiff-society was still entitled to the benefit of exemption as admittedly there is nothing on record to show that the sale deeds were executed within the municipal limits. Rather it was admitted by DW-1-Surinder Kaur, witness appearing on behalf of the State that the land was outside the municipal limits. Merely because an audit objection had been raised by the Accountant General, Punjab would not be a ground to issue notice demanding payment of stamp duty and recovering the same by issuing arrest warrants by invoking the provisions of the Punjab Land Revenue Act, 1887.
10. This Court in Jagdish Vs. State of Haryana and others 2011 AIR (Punjab) 89 has examined the provisions of the Indian Stamp Act,1899 and held that once the stamp duty was paid, the Sub- Registrar becomes functus officio and ceases to have any jurisdiction or control over the same. The impounding of sale deed could have been done at the time of registration of sale deed and notices demanding the amount were without jurisdiction on the basis of some audit objection. The relevant paras read as under:-
"7. Proximity of the agricultural land with the residential area does not change the nature of the land and thus the impugned order is totally perverse and is liable to be set aside. The other contention of the petitioners is that the action of the Sub Registrar and the Collector is otherwise without any jurisdiction. Section 47-A permits the Collector Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -6- **** to re-determine the value of the land on the reference being made by the Sub Registrar at the time of registration of the document. Once the document is registered and delivered to the vendee, neither the Sub Registrar has any authority to make a reference nor the Collector has any jurisdiction to re-determine the value of the land and the stamp duty/registration fee.
8. It is not in dispute that the land is recorded as agricultural land in the revenue record. This revenue record was part of the sale deed. The petitioner has paid the stamp duty on the rates determined by the Collector for such agricultural land. Merely on the basis of some audit objections the Sub Registrar proceeded to make reference that too after 5 months of registration of document. As a matter of fact the Collector became functus officio after registration of the document and ceases to have any jurisdiction or control over the same. The action of the Sub Registrar proposing to make reference to the Collector is totally illegal and without any competence. The action of the Collector in taking cognizance of such a reference is also without jurisdiction. This issue has been considered by this Court in Civil Revision No. 3530 of 1995 titled as State of Punjab v. Beant Singh and others, wherein following opinion was expressed.
"Sub Section (1) of Section 47-A of the Act clearly Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -7- **** provides for reference to the Collector as soon as the Registering Officer registers the document and is of the opinion that the value fixed for determining the stamp duty is less than the market value. The Collector on receipt of the reference is required to determine the market value, after affording reasonable opportunity of being heard in terms of sub section (2) of Section 47-A of the Act. In the present case, this procedure was not adopted. The Registering Officer, after registration of the documents handed over the same to the vendees and it is only thereafter that he made the reference to the Collector. Sub-section (3) of Section 47-A of the Act further empowers the Collector to initiate proceedings either on the receipt of the reference from the Inspector General of Registration or Registrar of a District appointed under the Registration Act, 1908 in whose jurisdiction, the property is situated or on the receipt of the report of the audit by the Comptroller & Auditor General of India or by any other authority authorized by the State Govt. or suo motu, within a period of three years from the date of registration of the instruments. In the present case, the Collector initiated the proceedings on reference being made by the Registering Officer after he had handed over the Kumar Pardeep 2013.11.26 09:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA No.3366 of 2000 -8- **** document to the vendee. None of the situation contemplated under sub-sections (1) or (3) of Section 47-A has been adopted. The appellate authority has rightly allowed the appeals. I find no merit in these revision petitions which are accordingly dismissed."
9. The present controversy is squarely covered by the aforesaid judgment."
11. Accordingly, this Court is of the opinion that the findings of the Courts below are findings of fact. Even in the grounds of appeal no question of law has been framed by the State and from the facts summarised above this Court is of the view that no question of law much less substantial question of law arises for consideration and the present appeal is, accordingly, dismissed. The judgments and the decrees of the Courts below are upheld.
20.11.2013 (G.S.SANDHAWALIA)
Pka JUDGE
Kumar Pardeep
2013.11.26 09:30
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh