Andhra HC (Pre-Telangana)
Vidya Nagar Housing Co-Operative ... vs State Of Andhra Pradesh And Others on 24 February, 1995
Equivalent citations: AIR1995AP223, 1995(1)ALT620, AIR 1995 ANDHRA PRADESH 223, (1995) 1 APLJ 176, (1995) 1 ANDH LT 620, (1995) 1 LS 265
ORDER
1. The petitioner is a House Building Co-operative Society registered under the provisions of the Hyderabad Cooperative Societies Act, 1951. In this writ petition the petitioner society has sought for declaration that the action of the third respondent-- Sub-Registrar of Stamp and Registration, Hyderabad in keeping the sale deed dt. 16-11-1992 pending adjudication under S.47A of the Stamp Act, 1899, for short 'the' Act', as illegal and void. It has further sought for a writ of mandamus to the respondent to release the document of sales executed on 16-11-1992 by the Additional Chief Judge-cum-Special Judge for SPE and ACB cases in pursuance'of the decree for specific performance in O.S. No. 560/85, dated 11-1-1989 in favour of the petitioner society and to permit the petitioner-society to execute and register the sale in favour of its members as directed by the Government in G.O. Ms. No. 583 dt. 9-7-1991.
2. The petition averments disclose that the petitioner-society was established for providing house sites to its members and to help its members in obtaining loans from the Government and the Andhra Pradesh Cooperative Housing Federation, One Sri Yousuff Ali Khan had certain urban property in Jamisthanpur, Vidyanagar, Musheerbad village. Sri Yousuff Ali Khan submitted a declaration under S. 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 for short 'the ULC Act' and the Special Officer and the Competent Authority prescribed under the ULC Act had dealt with the same in C.C. No. 2457/76. He had a total extent of 16,015 sq. meters and an extent of 9.366 sq. nits, comprised in Survey Nos. 2 and 3 Musheera-bad village was determined to be excess land. The Government issued G.O. Ms. No. 4270, dt. 10-9-80 enabling the surplus land-holders to alienate the excess lands under the Urban Land Ceiling to sell to genuine Co-operative Societies. This order was later superseded by the Government order G.O. Ms. No. 136 dt. 28-1-1981. In the said G.O. dt. 28-1-1981 the surplus land holders can sell excess land to the Housing Co-operative Societies on certain conditions. One of the conditions was that the excess land holder should sell the excess land to the Co-operative Housing Societies as per the scheme framed by the Government in which rates were fixed for each zone. The aforementioned land fell in the Zone No. III and the rate payable by the Government for the excess land to the landholders was Rs. 7/- per sq. ratter. Under G.O.Ms. No. 136, the excess land-holders could sell the land for rate not exceeding five times more than the rate fixed by the Government for that particular zone. Late Yousuff Ali Khan had entered into an agreement with the petitioner society on 17-11-1980 undertaking to sell 5,042 sq. meters of excess land to the petitioner society at the rate of Rs. 35/- per sq. mtr. Originally, this land was earmarked by the Municipal Corporation of Hyderabad for recroational purpose and the petitioner society made efforts and submitted representations to the Government for change of land use and at its instance, the said area was converted from recreational zone to residential zone vide G.O.Ms. No. 261, Municipal Administration dt. 16-3-1982.
3. Yousuf Ali Khan submitted an application to Government for exemption under S. 20(1)(a) of the ULC Act. Yousuff Ali Khan died on 17-1-1982 before the application filed by him for exemption was decided by the Government. In the interregnum the Government imposed a blanket ban on -granting exemptions to Co-operative Housing Societies, and that led to the filing of several writ petitions in this Court by the Co-operative Societies. The writ petitions were allowed by the Division Bench of this Court and the Government was directed to deal with the applications for exemptions of each society on merit. The State appealed against the judgment of the Division Bench of this Court before the Supreme Court and that appeal was pending before the Supreme Court up to the year 1991. In the meanwhile, the successors of late Yousuff Ali Khan, according to the petitioner, tried to encroach upon some of the land occupied by the society and. the society filed O.S. No. 560/85 for specific performance of agreement of sale entered into by late Yousuff Ali Khan in favour of the petitioner society on 17-11-1980. That suit was decreed by the Civil Court. One of the conditions of the decree was that the petitioner-society should deposit balance of consideration within three months from the date of the decree to obtain exemption from the Government under S.20(l)(a) of the Urban Land Ceiling Act. Therefore, the petitioner-society approached the Government for grant of exemption and the Government issued G.O.Ms. No. 583, Revenue (UC-II) department dt. 9-7-1991 granting exemption to the successors of late Yousuff Ali Khan to sell the excess land of 5,042 sq. meters in favour of the petitioner society. The said Government Order also stipulated a condition that the society in its turn should execute and register the sale in favour of its 16 members mentioned in the annexure to the said Government Order within three months from the date of registration of the land in favour of the petitioner society by the landholders. The time granted by this Government Order was further extended up to 8-1-1993. In terms of the decree the sale deed was executed by the Additional Chief Judge-cum-Special Judge for SPE and ACB cases on 13-11-1992 and the same was presented for registration before the third respondent Sub-Registrar on 16-11-1992. The third respondent had kept the registration pending informing the petitioner that the basic value register showed a market value of Rs. 450/-per sq. yard and the petitioner society had to pay stamp duty and registration charges on the basis of the market value then prevailing. Obviously the third respondent acted under S. 47A of the Act and decided to refer the matter to the Collector for ascertainment of true market value of the property. At that juncture, the present writ petition was filed in this Court seeking the reliefs referred to above. This Court in W.P.M.P. No. 19424 of 1992 filed in W,P. No. 15369 of 1992 made an interim order directing the respondents to release the sale deed dt. 16-11-1992, executed by the Additional Chief Judge-cum-Special Judge for SPE and ACB cases with an endorsement on the said sale deed that it is released subject to the result in the writ petition and further subject to the petitioner society undertaking to produce the sale document as and when the same was required by the respondent. The Court also imposed the condition that the petitioner should not create any charge or interest by using the said document. Further, by a subsequent order, this Court directed the petitioner to furnish bank guarantee in respect of the difference of the stamp duty. It is stated at the Bar that that direction was also carried out by the petitioner society.
4. Heard the learned counsel for the parties. Sri Suryaprakasa Rao, the learned counsel for the petitioner firstly contended that having regard to the fact that the Government itself by its proceedings in G.O.Ms. No. 583 dt. 9-7-1991 fixed the price at Rs. 35/- per sq. meter for the land to be sold, the third respondent Sub-Registrar acted in excess of the jurisdiction vested in him under S. 47 A of the Act. Elaborating this submission Sri Suryaprakasa Rao pointed out that this fixation of price at the rate of Rs. 35/- per sq. meter was done by the Government in exercise of the power conferred upon it by S. 20 of the ULC Act, and in pursuance of the directions issued by the Government of India under S. 36 of the said Act and therefore, it should be held that the fixation of the price at a particular rate by the Government is statutorily fixed and, if that is so, it is not open for the third respondent-Sub-Registrar to treat such fixation of price by the Government as an "under valuation" so as to invoke his discretionary power under S. 47 A of the Act. Sri Suryaprakasa Rao, the learned counsel for the petitioner next contended that in order to attract the provisions of sub-section(1) of S.47A of the Act the Sub-Registrar should satisfy himself that the market value of the property which is the subject matter of an instrument presented before him has not been truly set forth in the instrument and the failure to set forth the true market value of the property is deliberate and in the present case there was absolutely no material whatsoever before the third respondent to satisfy himself on the aforementioned two counts and his action was based on subjective satisfaction and not on appreciation of any objective consideration. These are the two main points urged by the learned counsel to assail the action of the third respondent.
5. On behalf of the respondents 1 and 2 and the respondent No. 3 counters are filed. In the counters it is claimed by the respondents that during the relevant time the basic value register showed the then prevailing rate at Rs. 450/- per sq. yard in the locality in which the land in question is situate and also on the basis of the information gathered by them by conducting a local inspection as per the rules. Pointing out this claim of the respondents Sri Suryaprakasa Rao contended that the Sub-Registrar committed an irregularity and illegality placing reliance solely on the entries made in the basic value register and placing reliance on the decisions of this Court in-- M/s. Sagar Cements Ltd., Mattampalle v. State of Andhra Pradesh, 1989 (3) ALT 677; P. Sasidhar v. Sub-Registrar, Hayatnagar, Ranga Reddy District, contended that the market value of the property cannot be determined solely on the basis of the entries made in the basic value register. Sri Suryaprakasa Rao also placed reliance on the decision of the Division Bench of the Madras High Court reported in M/s. Park View Enterprises v. State of Tamil Nadu, AIR 1990 Mad 251 to contend that S.47A of the Act does not empower the Sub-Registrar to hold an enquiry and adjudicate upon the correct stamp duty to be paid and S. 47A only enables him to prima facie find out whether to his belief the market value of the property is properly stated or not and if for any reason the Sub-Registrar has reason to believe that the market value is not stated correctly the only course left open to him is to register the document and then follow the procedure prescribed under S. 47A of the Act and under no circumstances the Sub-Registrar can delay the registration of the instrument presented before him for registration.
6. On the other hand the learned Government Pleader for Revenue pointed out that the writ petition is misconceived and not maintainable. Elaborating this argument the learned Government Pleader pointed out that the document in question was presented before the Sub-Registrar on 16-11-1992 for registration. The same day the third respon-dent-Sub-Registrar, being of the opinion that the correct market value was not stated in the instrument, calculated the market value and called upon the petitioner to pay the deficit stamp duty. At this stage and on the same day the petitioner objected to the determination of the market value by the Sub-Registrar and gave a letter to him on the same day which is produced at page 63 of the material papers of the petitioner. The petitioner requested the Sub-Registrar to keep the document pending and to refer the issue for determining the correct market value to the Collector as provided under S. 47A of the Act. The learned Government Pleader would contend that the petitioner, having requested the Sub-Registrar to keep the document pending and to refer the dispute to the Collector for determination, is estopped from making grievance before this Court against the action of the Sub-Registrar. He would contend that the petitioner cannot be permitted to approbate and reprobate. The learned Government Pleader after referring to the provisions of S. 47A of the Act would contend that the view taken by the Division Bench of the Madras High Court cannot be said to be a good law in view of the clear and unambiguous language employed by sub-sec. (1) of S.47 of the Act. Meeting the argument of the learned counsel for the petitioner that the determination of the market value of the property cannot be solely on the basis of the basic value register, he would submit that though the determination of the market value could not be solely on the basis of the basic value register as held by this Court and other Courts in number of decisions, it cannot be said that the rate shown in the basic value register cannot be treated as wholly irrelevant or extraneous for the purpose of the Sub-Registrar forming an opinion that the market value of the property which is the subject matter of an instrument placed before him has not been truly set forth in the instrument. He would also highlight that the impugned action itself is not the end and it is only a beginning for further action to be taken by the District Collector to determine the correct market value of the property.
7. Section 47A of the Stamp Act reads thus :
47-A. Instruments of conveyance etc., under-value how to be dealt with:
(1) Where the registering officer appointed under the Registration Act, 1908, while registering any instrument of conveyance, exchange, gift, partition, settlement or release (has) reason to believe that the market value of the property which is the subject-matter of such instrument has not been truly set forth in the instrument he may, keep pending such instrument and refer the matter to the Collector for determination of market value of such property and proper duty" payable thereon."
8, The language of sub-section (1) of Section 47A of the Act, in my considered opinion, is quite clear, precise and does not admit any ambiguity or repugnancy. Subsection (1) of Section 47A grants a discretionary power to the registering officer to keep an instrument presented before him pending and refer the matter to the Collector for determination of market value of such property, if he has reason to believe that the market value of the property which is the subject-matter of the instrument presented before him has not been truly set forth in the instrument. Sub-section (6) of Section 47A in a way defines the term 'market value' for the purpose of the Act. It declares that market-value of any property shall be estimated to be the price that the property in question would have fetched or would fetch if sold in the open market on the date of execution of the instrument. The combined reading of provisions of sub-section (1) and sub-section (6) of Section 47A makes it very clear that the registering officer has the necessary power granted by law to keep the instrument presented before him for registration pending and to refer the matter to the District Collector for determination of market value. But, this power is subject to a rider or a condition that he could invoke this discretionary power only when he is of the opinion or believes that the market value of the property which is the subject-matter of an instrument presented before him has not been truly set forth in the said instrument. Therefore, the question which arises for consideration is whether the third respondent Sub Registrar had reason to believe or in other words whether he had formed an opinion that the market value of the property in question had not been truly set forth in the instrument present before him on 16-11-1992. The argument of Sri Suryaprakasa Rao is that since the counters filed on behalf of the respondents make it very clear that the Sub-Registrar formed the opinion solely on the basis of the rates shown in the basic value register and since market value of a property cannot be determined solely on the basis of the basic value registers as held by this court in M/s. Sagar Cements Ltd., Mattampalle v. State of Andhra Pradesh, (1989 (3) Andh LT 677) and P. Sasidhar v. Sub-Registrar, Haytnagar, Ranga Reddy District (supra), it could not be said that the decision of the Sub-Registrar to initiate the discretionary power under Section 47A was based on considerations which are germane to the lawful exercise of that power. But this argument is not acceptable to the Court. It is true that while determining the market value of the property the authorities cannot form their decision solely on the basis of basic value register as held by this court in the aforementioned decisions. But the question is whether for the formation of an opinion and belief on the part of the registering officer, taking into account the rates shown in the basic value register could be said to be totally irrelevant and extraneous. The same decisions of this Court which are cited and referred to above would clearly indicate that the rates shown in the basic value registers are certainly relevant consideration, though not sole consideration for determination of the market value of a property. If that is so, there was nothing wrong on the part of the Sub-Registrar in taking into account the rates shown in\the basic value register for the limited purpose of satisfying himself and taking further action contemplated under Section 47A of the Act. As already pointed out the impugned action is not an end in itself. It is beginning of an end. The disptue necessarily has to go before the District Collector for determination and the District Collector is bound to determine that issue after compliance with the provisions of the rules framed under the Act and after giving an opportunity to the affected interest the petitioner Society herein.
9. Adverting to the other argument of Sri Suryaprakasa Rao that since the Government itself has statutorily fixed the market value at which the property could be sold i.e., Rs. 35/-per sq. meter it is incompetent for the Sub-Registrar to go beyond such a determination. It should be noted at the outset that when the Sub-Registrar initiated the impugned action he acted in pursuance of a power granted to him by a statute. Therefore the only question to be considered by this Court is whether the Sub-Registrar acted beyond the scope of his power granted under sub-section (1) of Section 47A of the Act. In deciding this question necessarily the Court cannot ignore the provisions of sub-sectton (6) of the same section also. If these two sub-sections are read together the only conclusion which can be arrived at is that the Sub-Registrar has necessarily to satisfy himself before Register- ' ing a document that the market value of the property in question is truly stated in the instrument presented before him. A power statutorily granted to an authority created by it cannot be so interpreted as to dilute its intendment, efficacy and operation. If any limitation or fetter is to be found on such power statutorily granted then, such limitation or fetter is necessarily to be found in the statute itself or in the Constitution. Further, the court does not find any merit in the submission of the learned counsel for the petitioner that the rate of Rs.35/- per sq. meter fixed by the Government was fixed statutorily. It should be noted at the outset that the ULC Act itself does not fix the rate. Assuming that in pursuance of the power granted to the appropriate Government under Section 20(1) of the ULC Act, this rate of price was fixed, then, at the most it will be delegated legislation but not a parent legislation itself. Therefore it is incredible to state and contend that a delegated legislation made by virtue of a power granted by the ULC Act could control and limit the power statutorily granted to the Sub-Registrar of Stamps and Registration under Section 47A of the Act.
10. Before concluding the decision of the Division Bench of the Madras High Court cited before me by the learned counsel for the petitioner in support of his submission, is required to be noted. With utmost respect and necessary reflection I am not persuaded to accept that view as the correct view. When sub-section (1) of Section 47A of the Act in clear terms arms the Registering officer to keep an instrument presented before him for registration pending and further providing reference of such dispute to the District Collector for determination and adjudication, the Court by way of interpretation or construction cannot say that under no circumstances the Sub-Registrar or the Registering authority can delay the registration and if such an interpretation is placed on the provisions of sub-section (1) of Section-47 A of the Act, in my humble and considered opinion, it will tantamount to the Court legislating. The language of sub-section (1) of Section 47A of the Act is quite clear, precise and unambiguous and does not admit of any meaning other than the meaning that the Sub-Registrar can keep an instrument presented before him for registration pending and refer the dispute to the District Collector for determination of market value, if he has reason to believe that the market value of the property which is the subject-matter of such instrument has not been truly set forth in the instrument. For the foregoing reasons, 1 do not find any justifiable ground to interfere in this matter.
11. Added to this by way of an interim order made by this Court the instruments are already- released to the petitioner society subject to certain conditions. Ends of justice will be met by directing the District Collector to dispose of the dispute within a period of two months from the date of receipt of a copy of this order, in strict compliance with the rules framed under the Act.
12. In the result and for the foregoing reasons, the writ petition is dismissed. However, the District Collector is directed to dispose of the dispute referred to him by the Sub-Registrar of Stamps and Registration within two months from the date of receipt of a copy of this order, in strict compliance with the rules framed under the Act. No costs.
13. Petition dismissed.