Chattisgarh High Court
Ms S K Industries vs State Of Chhattisgarh And Others on 11 June, 2012
Author: Abhay Manohar Sapre
Bench: Abhay Manohar Sapre
HIGH COURT OF CHATTISGARH AT BILASPUR
W A No 427 of 2011
Ms S K Industries
...Petitioners
Versus
State of Chhattisgarh and others
...Respondents
! Mr H B Agarwal Senior Advocate with Mrs Meera Jaiswal Counsel for the appellant
^ Mr M P S Bhatia Dy Government Advocate for the State
CORAM: Honble Mr Justice Abhay Manohar Sapre & Honble Mr Justice Manindra Mohan Shrivastava
Dated: 11/06/2012
: Judgement
ORDER
( 11.06.2012) WRIT APPEAL UNDER SECTION 2 (1) OF CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH) ACT, 2006.
The following order of the Court was passed by Abhay Manohar Sapre, J.
Heard.
(2) The appellant herein was the private respondent No.1 of Writ Petition (C ) No.1375 of 2010 before the Writ Court and being aggrieved by the impugned order dated 27.07.2011 passed by the writ Court (Single Judge ) in the aforementioned writ petition has preferred this appeal under Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006.
(3) By the impugned order, the learned Single Judge allowed the writ petition filed by the State against the appellant and in consequence set aside the order dated 29.9.2009 passed by the Board of Revenue and restored that of the Collector of Stamps dated 3.3.2009.
(4) So the question that arises for consideration in this writ appeal is whether the learned Single Judge was justified in allowing the writ petition filed by the State and in consequence was justified in setting aside the order of Board of Revenue impugned in the writ petition and restoring that of the order passed by the Collector of Stamps?
(5) Out of the controversy involved, a short question that arises for consideration is, whether Collector of stamps was justified in demanding additional stamp duty of Rs, 73,106/-and Rs. 100/- by way of penalty from the appellant on the lease deed in question which originally stood in the name of appellant's late father as its lessee?
(6) One Santosh Khaitan had applied to State (industry department) for grant of some land by way of lease for setting up of his small industry in industrial area of Durg District. The industry department granted the lease of plot number 48/E in Industrial Area Sikolabhata Durg measuring around 12000 Sq feet for a period of 30 years for setting up of an industry. This lease deed was accordingly executed and registered with the Collector of Stamps on 10.4.1997 in accordance with the provisions of the Stamp Act, 1889 (for short `the Stamp Act') read with Registration Act on proper stamp duty payable on such lease. The lessee i.e. Santosh Khaitan then set up his industry by and under the name M/s S.K. Industries as its proprietor on the said land and since then had been carrying on his business on the land demised to him.
(7) On 6.8.2008, Santosh Khaitan (lessee) died. The appellant being his son applied to the industry department for substitution of his name in place of his father's name in the lease deed and also for substitution of his name at all places in the records of the department as lessee of the said land. He contended that consequent upon the death of his father, the business which he was carrying on the land demised to him including lease hold rights have devolved upon the appellant by operation of law and hence it is necessary to make an amendment in lease deed in the form of what is essentially called correction in the lease deed which presently stands in the name of his father. The Collector of Stamps before whom the lease deed, was presented for making this amendment/ correction in the form of substitution of appellant's name in place of his father took the view that such amendment /correction in the lease deed was not permissible unless the appellant (son) had paid in the first instance an additional stamp duty of Rs, 73,106/- and further penalty of Rs. 100/- on such lease deed.. In other words, the Collector of Stamps vide order dated 03.03.2009 declined to substitute the name of the appellant in place of his late father i.e. original lessee in the lease deed as also the amended deed as according to him after the death of original lessee - Santhosh Khaitan, a new lease had come into existence in the name of new lessee (appellant) in relation to the land in question and hence it would attract a fresh stamp duty as also the penalty for execution of such lease deed. The appellant did not accept this order of the Collector of Stamps, and felt aggrieved, filed a revision before the Board of Revenue questioning its legality and correctness.
(8) The Board vide order dated 29.09.2009 allowed the revision and set aside the order of the collector of Stamps. In the opinion of the Board, it was not a case of fresh lease as was being contended by the collector of stamps and nor was it a case where any additional stamp duty was payable on such so-called amended lease deed presented by the appellant for substitution of his name in place of his late father.
(9) The State felt aggrieved of this order filed the writ petition out of which this appeal arises. The Writ court allowed the writ petition and while setting aside of the order passed by the Board of Revenue restored that of the Collector of Stamps. It is against this order; the appellant (son) has felt aggrieved and filed this appeal.
(10) This is what the learned Single Judge while allowing the writ petition held.
1. By this petition under Article 226 of the Constitution of India the petitioner/State has challenged the legality and propriety of the order dated 29.09.2002 (Annexure P/1) passed by the Board of Revenue in Revenue Revision Case No.R.N.05/S.A./B-103/11/09, whereby the Board of Revenue has reversed the order dated 3.3.2009 passed by the Collector of Stamps, Durg in Revenue Case No.48/B-103/2008-09.
2. I have heard learned counsel for the parties, perused the order impugned, order dated 3.3.2009 passed by the Collector of Stamps, Durg and other documents filed on behalf of the petitioner/State.
3. Originally the land was lease out to Santosh Khaitan. After death of Santosh Khaitan his son Jitendra Khaitan has filed application for amendment of his name in aforesaid lease. By order dated 3.3.2009 the Collector of Stamps, Durg arrived at a finding that this would be new lease deed, therefore, stamp of Rs.73,106/- and penalty of Rs.100/- would be necessary. Aforesaid order has been reversed by the Board of Revenue on the ground that there is no change in the name of lessee.
4. After death of Santosh Khaitan his son Jitendra Khaitan was at liberty to apply for fresh lease deed or for change of his name on the basis of succession along with other LRs of Santosh Khaitan, but instead of applying for amendment in revenue record or record of right Jitendra Khaitan has filed application for amendment of the documents, which is not permissible under the law.
5. By passing order dated 3.3.2009, the Collector of Stamps, Durg has not committed any illegality, but while reversing the order dated 3.3.2009 passed by the Collector of Stamps, the Board of Revenue has committed illegality.
6. Consequently, the writ petition is allowed.
Order dated 29.9.2009 passed by the Board of Revenue is hereby quashed. No order asto costs."
(11) Having heard the learned Counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and while setting aside of the impugned order of the learned Single Judge (writ court) dismiss the writ petition filed by the State and in turn uphold the order of the Board of Revenue impugned in the writ petition.
(12) In our considered opinion, on the undisputed facts emerging from the record, it was not a case of creation of fresh lease in favour of appellant which could attract any additional stamp duty as was being demanded by the Collector of Stamps by invoking the provisions of the Stamp Act. Indeed, it was a simple case of correction of name by deleting the name of original lessee (Santosh Khaitan) who expired during currency of lease and in his place substituting the name of his son - appellant herein who had succeeded to the estate of his father by devolution under the provisions of the Hindu Succession Act. The lease in question on its execution had created interest in favour of original lessee during its subsistence period in relation to the land and being in the nature of estate and capable of being devolved on his heirs as per provisions of the Hindu Succession Act, the same was devolved on the appellant as Class I heir by operation of law. The appellant had thus every right to ask the State and all its authorities to correct the record of the department including the lease in question by deleting name of the deceased and substituting his name. Since appellant was one of the legal representative of deceased as his son, and no other person (legal representatives) had come forward for substitution of their names, the name of the appellant had to be substituted in place of his deceased father as lessee in the record relating to the land including in the lease deed in question.
(13) In our considered opinion and that apart, it was not disputed that firstly the original lease had not come to an end i.e. it was for the period of 30 years and this leased period had not expired on the date of death of original lessee - Santosh Khaitan. In other words, the original lease was very much in force when lessee died leaving behind his legal representative (appellant) to succeed to his estate including the interest in the lease in question. Secondly, all the rights and interest attached to this lease in favour of lessee, devolved upon the legal representative of deceased lessee by virtue of provisions of the Hindu Succession Act. Thirdly, the appellant being the son of deceased had succeeded to the estate of deceased including the interest in the leasehold rights of the land in question as lessee by operation of law. Fourthly, the appellant had only asked for insertion of his name as lessee in place of original lessee (his late father) in the original lease deed in the form of correction/amendment. Fifthly, the appellant had not asked for execution of new lease deed nor had asked for any change in the original terms and conditions of the lease deed. In other words, the appellant only wanted his name to be substituted as lessee in place of his father who was the original lessee because no lease could continue in the name of dead person. Sixthly, even if the appellant had not asked for substitution of his name in the lease deed yet he was entitled to be nomenclatured as "lessee" after the death of his father under the law in relation to the lease in question as legal representatives of deceased lessee; and, lastly it was neither a case of transfer of running business by the owner /lessee of the land to any third person during his life time for consideration for such transfer between the two willing purchaser and buyer attracting the rigour of stamp duty and registration etc under the Stamp Act and Registration Act and nor it involved any money transaction between the deceased father and his son involving any voluntary transfer of assets for consideration but it was a case of devolution of interest brought about by operation of law consequent upon the death of original lessee without there being any volition of the parties to the deed.
(14) It is for all the aforesaid reasons we are of the considered view that the lease in question which was presented before the Collector of Stamps by the appellant for correction / amendment / substitution of his name in the original lease deed did not require any stamp duty much less stamp duty as demanded by the Collector of Stamps in his order because it did not amount to transfer of any assets or leasehold rights for consideration as voluntary transaction.
(15) Indeed if any authority is needed in support of the view that we are taking then we can profitably refer to the decision of Supreme Court reported in the matter of Prasad Technology Park (P) Ltd. v. Sub Registrar and others, (2006) 1 SCC 473. It is in this case, their Lordships held that mere change of name in the lease deed does not attract any payment of stamp duty as it does not tantamount to any transfer per se . This is what was held by their Lordships.
"13. Execution of an instrument which would attract payment of stamp duty in terms of Article 5(d) of the Act must involve transfer of the property or otherwise a right or liability may inter alia be created, transferred, etc., as envisaged in Section 3 thereof. Once it is held that the supplementary agreement is neither a deed of lease nor a deed of sale within the meaning of Section 105 or Section 54 of the Transfer of Property Act, as the case may be, Article 5(d) of the Schedule to the Act will have no application. If Article 5(d) has no application, indisputably the residuary clause contained in Artice 5(i) would have. The appellant admittedly paid the stamp duty in terms thereof."
(16) In the light of foregoing discussion and keeping in view the law laid down by the Supreme Court in the aforequoted decision, we cannot uphold the view taken by the Learned Single Judge when he allowed the writ petition filed by the State and set aside the order of the Board of Revenue. Indeed, the writ Court did not examine the issue in light of the well settled principle which governed the issue nor appreciated the factual undisputed controversy involved in the case and thereby committed error of law requiring this Court to interfere.
(17) It is a settled principle of law relating to payment of Stamp duty and registration of any document under the provisions of the Stamp Act and Registration Act that only those documents require registration and payment of stamp duty which are specified in the Acts. Equally well settled principle of law is that unless the execution of any document results in transfer of any right, title and interest in any immovable property by the act of the parties in lieu of consideration i.e. price, for such transfer, the document can not be subjected to payment of stamp duty and registration as a document of sale/transfer as defined under the Transfer of Property Act. .
(18) In view of foregoing discussion, the impugned order is held as not legally sustainable and is thus liable to be set aside. The appeal thus succeeds and is allowed. The impugned order is set aside .As a consequence, the writ petition filed by the State out of which this appeal arises fails and is accordingly dismissed. As a result, the order passed by the Board of Revenue which was impugned in the writ petition is upheld.
(19) No costs JUDGE