Karnataka High Court
The State Of Karnataka vs Vivekananda M Hallur on 3 June, 2013
Equivalent citations: 2013 (4) AKR 9
Bench: K.L.Manjunath, L.Narayana Swamy
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF JUNE 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
WRIT APPEAL NO. 1023 OF 2009 (GM-ST/RN)
&
WRIT APEPAL NOs. 1324 & 1325/2009 (GM-ST/RN)
BETWEEN:
1. State of Karnataka
Represented by its
Principal Secretary to
Government
Revenue Department
M.S. Building
Bangalore.
2. The Inspector General of
Registration & Commissioner
Of Stamps, K.R.Circle
Bangalore
3. The Sub-Registrar
Bangalore North Taluk
Bangalore. ...APPELLANTS
(By Sri. M. Keshava Reddy, AGA)
AND:
1. Vivekananda M. Hallur
Aged 48 years
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S/o Mallikarjun A Hallur
Door No.28A, 12th Cross
Mahalakshmi Layout
Bangalore - 560 086
2. P. Sharadamma
Aged about 60 years
D/o M.H. Puttanna
No.593/4, 8th Main
M.C. Layout, Vijayanagar
Bangalore
3. T. Lakkaiah
Aged 65 years
S/o Late Thimmaiah
No.762, 5th Main
8th Cross, Magadi Chord Road
Vijayanagar, Bangalore
4. N. Susheelamma
W/o K.S. Ramachandra
No.102, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
5. Ramesh Hegde
No. 355, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
6. Vijayalakshmi Premnath
No. 133, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
7. V. Subbalakshmi
No.160, Teachers Colony
Jakkasandra, Koramangala Post
Bangalore - 560 034
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8. Joseph Ronald Roche
No. 199, Teachers Colony
Jakkasandra
Koramanagala Post
Bangalore - 560 034
9. S.V. Rama Sastry
No.244, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
10. Shashi Srinivasa
No.557, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
11. Rose Mary Royan
No.2, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
12. U.K. Sarojini
W/o M.P. Janardhana
No.431, Teachers Colony
Jakkaandra
Koramangala Post
Bangalore - 560 034
13. Benedicta D'Souza
W/o L.V. Henry
No.164, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
14. S. Krishnaswamy
No.380, Teachers Colony
Jakkasandra
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Koramangala Post
Bangalore - 560 034
15. Shashikala
W/o M.D. Prakash
No.352, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
16. H.K. Sheshadri
No.256, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
17. R. Gowramma
No.343, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
18. R.X. Jayamani
W/o J. Philip
No.49, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
19. N. Narasa Reddy
No.228, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
20. Srinivasa Reddy
No.260, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
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21. Philomena Julia Pinto
No.78, Teachers Colony
Jakaksandra
Koramangala Post
Bangalore - 560 034
22. Sheela Rangaswamy
No.127, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
23. K.T.N. Kumar
No.55, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560 034
24. Theresa B. Goueas
No.227, Teachers Colony
Jakkasandra
Koramangala Post
Bangalore - 560034
...RESPONDENTS
(By Sri. Srivatsa, Sr. Counsel for
Sri. T.Krishna, Adv., for R4 - 24,
Sri. Ajay Kumar Patil, Adv., for R1-3)
These writ appeals are filed under Section 4 of the
Karnataka High Court Act praying to set aside the order
passed in the writ petition No. 42529.2011 dated
07.06.2012.
These appeals coming on for Hearing this day,
MANJUNATH J, delivered the following:-
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JUDGMENT
These appeals were earlier dismissed by this Court without condoning the delay. Therefore, the matter was taken up by the appellants before the Hon'ble Supreme Court. The Hon'ble Supreme court by its order dated 07.12.2012, allowed the Civil Appeal Nos.8803- 8805/2012 holding that the co-ordinate Division Bench of the High Court was required to condone the delay and consider the merits of the matter in relation to the provisions of the Karnataka Stamp Act, 1957. Therefore, the matters are listed for final hearing.
2. The facts leading to these appeals are as hereunder:-
The writ petitioners are the members of a Sangha known as Kendra Upadhyayara Sangha (R), Bangalore South Taluk. This Sangha was formed and registered in the year 1968 with the sole object of providing residential sites to its members and the teachers are the members of the Sangha. The layout was formed by the Sangha at Nagarbhavi village, Yeshwanthpura hobli, -7- Bangalore. Sites were allotted to its members on lease cum sale basis. Accordingly, lease cum sale agreement was executed in the year 1989-90. Based on the sale consideration shown under the lease cum sale agreement, stamp duty and registration fees were collected by the Sub-registrar. The members of the Sangha were also entitled to obtain absolute sale deed on fulfilling the terms and conditions of the allotment. Thereafter, the writ petitioners presented the absolute sale deed for the registration which was duly executed by the office bearers of the Sangha.
The concerned Sub-registrar, relying upon Section 2(mm) of the Karnataka Stamp Act, 1957, collected the stamp duty from the writ petitioners considering the market value of the property conveyed to them on the date of the presentation of the document. Accordingly, registration fee was also collected.
Thereafter, the writ petitions were filed to declare the collection of the stamp duty and registration charges by the Sub-Registrar on the execution of the -8- sale deed was illegal and without authority of law and issue direction to refund the stamp duty and registration fee payable by the writ petitioners along with the along with the interest at 24% p.a. The learned Single Judge relying upon Artcle 5(e) of the Karnataka Stamp Act allowed the writ petition directing the Registrar to refund the stamp duty collected by him on the sale deed presented by the writ petitioners and to calculate the registration fee payable on the basis of the registration table applicable to the absolute sale deed considering them as supplementary deeds and refund the same with interest within three months from the date of receipt of a certified copy of the order.
Aggrieved by the order of the learned single Judge, the present appeals are filed.
3. Sri.M.Keshava Reddy, learned Govt. Advocate contends that the learned single Judge has committed serious error in not considering the effect of Section 2(mm) of the Act. According to him, he has no quarrel -9- with regard to interpretation of Article 5(e) of the Act. According to him, the learned single Judge was required to consider the case of the parties considering the provisions of Section 2(mm) r/w Article 5(e) of the Act. Further, he contends that if the learned single Judge has considered both the provisions, he would not have allowed the writ petitions. In the circumstances, he requests this Court to examine Section 2(mm) r/w Article 5(e) of the Act altogether and allow the writ appeals.
4. Sri.Srivatsa, learned senior counsel appearing for the impleading applicants submit that the sale deed executed by the Sangha in favour of the writ petitioners could not be treated as a separate document, since the Sangha had executed the lease cum sale agreement at that point of time, the stamp duty was collected based on the sale consideration paid by the writ petitioners which was the market value. He further submits that once the stamp duty had been collected on the market value, as the possession of the property was delivered to the writ petitioners, the question of considering Section
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2(mm) of the Act does not arise and such document has to be considered as a supplementary document to the lease cum sale agreement. Therefore, he contends that the learned single Judge is justified in granting relief to the writ petitioners.
5. Taking us through Note-7 of the table of registration fee made under Section 78 of the Registration Act, 1908 contends that the sub-registrar is required to collect registration fees in accordance with that and that the learned single Judge cannot be found fault with in granting the relief.
6. Having heard the learned counsel for the parties, the only point to be considered in these appeals is, whether any error is committed by the learned single Judge in granting relief to the writ petitioners without considering the effect of Section 2(mm) of the Act and whether Section 2(mm) would apply to the absolute sale deed presented pursuant to the lease cum sale agreement executed earlier?
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7. The facts of these cases are not in dispute for the following reasons;
That the writ petitioners are the members of the Sangha. Sangha has formed layout. Sites were allotted to them long back. As per the terms and conditions of the agreement, lease cum sale deed were executed by the parties paying stamp duty as applicable on the date of presentation of the lease cum sale deed. But the question arises for our consideration is, whether the stamp duty has to be paid on the market value as on the date of presenting the sale deed irrespective of the stamp duty collected by the sub-registrar considering the sale consideration on the lease cum sale agreement or not and whether the absolute sale deed presented for registration pursuant to lease cum sale agreement can be recorded as primary or supplementary document?
8. In order to appreciate the rival contentions, it would be appropriate for us to consider certain provisions of the Karnataka Stamp Act and so also the table of schedule concerning collection of registration
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fees framed pursuant to Section 78 of the Indian Registration Act.
Section 2(mm) reads as hereunder:-
"Market Value" in relation to any property, which is the subject-matter of an instrument, means the price which such property would have fetched, in the opinion of the Deputy Commissioner or the Appellate Authority or the Chief Controlling Revenue Authority, if sold in open market on the date of execution of such instrument or the consideration stated in the instrument, whichever is higher.
Provided that notwithstanding anything contained in this Act or in the Articles, in respect of an instrument executed by or on behalf of or in favour of the State Government or the Central Government or a local authority or other authority constituted by or under any law for the time being in force or a Body incorporate wholly owned or controlled by the Central Government or the State Government the market value of the property shall be the value of
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consideration for such conveyance as set forth in the instrument.
Article 5(e) reads as hereunder:-
Description of Proper stamp duty
Instrument
Art.5 Agreement or [its
records or]
Memorandum of an
Agreement -
(e) If relating to sale of
immovable property
wherein part
performance of the
contract
(i) possession of the Same duty as a
property is delivered conveyance (No.20) on
or is agreed to be the market value of the
delivered without property.
executing the
conveyance
(ii) possession of the 0.25 rupee for every one
property is not hundred rupees or part
delivered thereof on the market
value equal to the
amount of
consideration]
9. On combined reading of these two provisions of law, it is clear to us that whenever an instrument is presented for registration, it is the duty of the sub- registrar to collect the stamp duty considering the market value on the date of presentation of the document. Only exception in regard to the document executed by and/or on behalf of or in favour of the State
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Government or the Central Government or a local authority or other authority constituted by or under any law for the time being in force, or controlled by the Central Government or the State Government, the market value of the property shall be the value of consideration for such conveyance as set forth in the instrument.
10. Admittedly, lease cum sale agreements were executed by the parties in the present case between 1987-90. During relevant period, Section 2(mm) was not there under the Karnataka Stamp Act. It has been substituted by Act No.8 of 2003. It has come into force with effect from 01.04.2003. If Section 2(mm) was not there on the date of presentation of the sale deed, we would have certainly appreciate the order of the learned single Judge in granting relief to the writ petitioners.
11. We have no quarrel over the interpretation of Article 5(e) of the Karnataka Stamp Act, because, if a party has already paid the stamp duty under Section 5(e), there is no question of collection of stamp duty
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again by the sub-registrar. But, unfortunately, in the instant case, the learned single Judge without considering Section 2(mm), by considering only Article 5(e) of the Act has given relief to the petitioners. After 1.4.2003, Section 2(mm) and Article 5(e) are to be read and consider together and each of the provisions cannot be read in isolation. Therefore, we are of the opinion that an error is committed by the learned single Judge in granting relief to the writ petitioners.
12. So far as other point raised by learned counsel for the respondents are concerned, there is a basic difference between the stamp duty payable by the party under the Karnataka Stamp Act and registration fee payable by the party when a document is presented for registration. Registration fee is altogether different from payment of stamp duty. Stamp duty is different from registration fee. Registration fee would be collected by the sub-registrar for the service rendered by him. It will always commensurate with the service extended to a party. So far as payment of stamp duty is concerned, it is more in the nature of tax and not fee and therefore,
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we have no quarrel with the points raised by the learned senior counsel for the respondents in regard to collection of registration fee is concerned. Registration fee has to be collected as per the table pursuant to Section 78 of the Indian Registration Act.
13. The last point to be considered by us is, whether the document presented by the writ petitioners is a deed conveyance or to be considered as supplementary deed or it has to be considered as a primary document?
14. So far as this point is concerned, even if the lease cum sale agreement was executed earlier, a party will not get any title unless and until it is considered as conveyance under the absolute sale deed. Absolute sale deed cannot be considered as supplementary document. On the contrary, it has to be considered as primary document. Therefore, we cannot accept the arguments advanced by the learned counsel for the respondents.
15. In the result, these appeals are allowed. The order of the learned single Judge in directing the
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appellants to refund stamp duty and registration fee paid by them at the time of the writ petitioners presenting the absolute sale deed for registration is hereby set aside.
16. The additional respondents who are not parties before this Court had approached the Hon'ble Supreme Court along with the application in the civil appeals. Therefore, the applications are ordered to be considered by this Court pursuant to the order passed by the Hon'ble Supreme Court while deciding the matter on merits. As a matter of fact, the case of the impleading applicants has not been considered by the learned single Judge because their writ petitions were disposed of following the order called in question in these appeals. Though the judgment of this Court is squarely made applicable to the impleading applicants are concerned, they have also questioned the levy of penalty and interest. Since the said point is yet to be considered by the learned single Judge, it is always open for them to make necessary applications
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for recalling of the order and dispose of their writ petition on merits and in accordance with law.
17. With the above observations, the applications filed by the impleading applicants are disposed of.
18. At this stage, it is brought to our notice, pursuant to the order of the learned single Judge, the stamp duty collected by the Sub-registrar has been refunded to some of the writ petitioners. If it is so, it is for the respondents 1 to 3 to redeposit the amount with interest at 9% from the date of receipt of the said payment till the date of deposit before the concerned sub-registrar. Parties to bear their costs.
Sd/-
JUDGE Sd/-
JUDGE Srl.