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Judgment
Akil Kureshi, J.—The petition is directed against an order dated 20.9.1994 passed by the Collector of Stamp Duty Valuation Department, Vadodara, as upheld by an order dated 19.11.1998 passed by the Chief Controlling Revenue Authority of the State Government in an appeal filed by the petitioner herein.
Briefly stated facts of the petition are as follows:
2.1 A piece of land bearing survey No. 291 and 292 of village Vasna Saiyad admeasuring 7319 sq. mtrs.(here-in-after referred to as ''the said land'') was of the ownership of the heirs of deceased Motibhai Kalyanbhai who are respondents No. 5 to 7 herein. With introduction of Urban Land (Ceiling and Regulation) Act (here-in-after referred to as ''the ULC Act''), the said land was liable to be declared as excess vacant land and consequences thereof as contemplated under the ULC Act were to follow. Original land owners however, applied to the competent authority u/s 21 of the ULC Act to permit them to continue to hold the land for the purpose of developing dwelling units for weaker section of the society.
2.2 By an order dated 30.8.1998, such scheme for the weaker section of the society u/s 21 of the ULC Act was sanctioned. The order records that the land is otherwise liable to be declared surplus u/s 4(1) of the ULC Act. The land owners however, declared that they wish to construct dwelling units for the members of the weaker section of the society. They have obtained permission of the competent authority for such construction which is in consonance with the master plan. They have undertaken to abide by the conditions contained in Schedule I-A. On the above premises, the authority granted permission u/s 21 of the ULC Act to the land owners for construction of dwelling units for members of the weaker section of the society on certain terms and conditions. One of the conditions was that upon completion of the construction, it would be open for the Government to purchase the units at the fixed price. Till the construction is over, the land owners will not be allowed to sale the land or gift, transfer or in any other manner convey the same. Upon completion of the construction, the land owners shall have to give advertisement in the newspaper and allot the units on the price fixed. It was under these terms and conditions that Section 21 scheme was sanctioned by the competent authority.
2.3 It is however, the case of the petitioner society that the petitioner society carried out the construction under the authority given to it by the land owners and upon completion of the construction, entered into the sale deed dated 23.9.1993 transferring only the land at the price of Rs. 1,41,807.01 ps. and also affixed proper stamp duty thereupon accordingly. The stamp duty authorities however, were of the opinion that the stamp affixed on the said document was deficient. After issuing notice and hearing the petitioner, the Collector of Stamp Duty passed his impugned order dated 20.9.1994 demanding additional stamp duty of Rs. 2,62,450/- along with fine of Rs. 25,000/- from the petitioner. This was on the basis that according to the Collector for the cost of superstructure of Rs. 2,87,450/-, no stamp was affixed.
2.4 The petitioner appealed against the order of the Collector. The appeal however, came to be disposed of by an order dated 19.11.1998, whereby there was partial modification of the reduction of penalty from Rs. 25,000/- to Rs. 250/-. These orders are under challenge before this Court in the present proceedings.
Appearing for the petitioner, learned advocate Shri Bhatt raised following contentions:
1) By the sale deed dated 23.9.1993, all that was transferred was the land. The superstructure was put up by the society and the authorities therefore, could not have demanded additional stamp duty.
2) The clarification issued by the Government also permitted such a modality. Reliance was placed on certain guidelines which will be referred to at a later stage.
3) Each individual Unit would be allotted to different members of the society involving different prices. The Collector cannot force the society to enter into a composite sale deed. The individual sale deed would be effected in favour of individual members upon eventual sale.
4) That the order passed by the Collector is a non speaking order and suffers from non application of mind.
5) Certain material though demanded by the petitioner was not supplied thereby resulting into breach of principles of natural justice.
On the other hand, learned AGP Shri Devang Vyas supported the order under challenge and contended that:
1) the scheme itself envisages that construction would be carried out by the land owners.
2) Section 21 read with Rule 11-A of the Urban Land (Ceiling and Regulation) Rules 1976 read with Schedule I-A makes it amply clear that the ownership of the land does not get transferred till the construction is carried out by the land owner himself.
3) He also referred to guidelines and submitted that demanding of additional stamp duty is justified.
Having heard the learned advocates appearing for the parties, it may be recorded at the outset that so far as price of the land and cost of construction is concerned, there is no dispute at all. The land price and cost of construction is regulated by the scheme and neither side, has any dispute about such quantification. What is in dispute is whether by sale dated 23.9.1993, it was only the title of the land which was transferred to the society or the superstructure as well.
As noted, the chief contention of the society is that the society having put up the construction at its own cost and efforts, had purchased only the land from the original owner through the sale deed. To my mind the contention beggs the question.
Section 21 of the ULC Act provides that notwithstanding the provisions under the ULC Act, a Competent Authority may declare that land which is otherwise excess would not be excess land for the purpose of permitting the land owner to continue to hold such a land for the purpose of construction of dwelling units for the accommodation of the weaker section of the society subject to certain terms and conditions as may be prescribed.
As noted, it is not in dispute that but for sanction of the scheme, land was excess in hands of land owners and was liable to be declared so u/s 4 of the ULC Act. Any sale thereof, was prohibited u/s 6 of the ULC Act. Only upon an application made by the land owners, to permit them to construct dwelling units for the accommodation of the weaker section of the society, land was permitted to be held by the land owners for the said specific purpose. Such permission was subject to certain terms and conditions. Such conditions were contained in the sanctioned order as also conditions contained in Schedule I-A were incorporated therein. The land owners had approached the authorities showing their desire to carry out such construction. Approved plans were also produced. Condition of order u/s 21 would reveal that the entire construction was to be carried out by the land owners. Taking any other view would amount to permitting the land owners to transfer the land separately from the construction. It would be even otherwise wholly impermissible looking to the scheme of the ULC Act.
It is true that the Government has been issuing certain guidelines for facilitating carrying out such construction and to remove certain difficulties which may be faced. However, none of these guidelines permit the land owners to transfer only the land or to throw the burden of carrying out construction on the ultimate consumer namely the member of the weaker section of the society. Under the circular dated 19.3.1979, while permitting construction of dwelling units to be carried out by Housing Cooperative Society, it is made amply clear that the land owners will retain the land till the dwelling units are constructed and transferred to the individual buyers who are the members of the Housing Society. To avail of such guidelines, it is also made necessary that land owners and the Housing Society should execute an agreement which will provide that the owner shall on completion of the construction of the dwelling units transfer the land and dwelling units to the members of the society.
Considering all the above aspects of the matter, neither under the Scheme nor the provisions of Section 21 read with Rules made therein, nor under any guidelines relied upon by the petitioner, it was open for the land owner to transfer only the land and not the superstructure thereon. Even if the superstructure was put up by the Cooperative Society, it was only the task of the original land owners which the society was undertaking for greater convenience, to implement the scheme. Neither Section 21 nor the scheme envisages that the land owners shall completely shift the burden of construction on some other agency. It was primarily the duty of the land owners to carry out such construction and may be for smoother operation of the scheme, task may have been entrusted to some other agency, nevertheless, it was the legal obligation of the land owners under the scheme which they had voluntarily undertaken and u/s 21, which was being performed by the society. By no legal fiction, can it be construed that under the sale deed in question, it was only the land which was transferred from the land owners to the society and not the superstructure thereon. Considered from any angle, such interpretation would be impermissible. It would amount to permitting the land owners to sale the land which was other-wise liable to be declared excess and sale thereof was prohibited under the ULC Act.
It is true that order passed by the Collector is not elaborate and may not have taken into account certain contentions raised by the petitioner. However, only on that count when I find that otherwise the order is legal, the proceedings need not fail.
The contention that certain material was not made available to the petitioner also would not be fatal to the order under challenge since all factual aspects are admitted and legal contentions have been examined.
The contention that the Collector cannot insist on composite sale also is devoid of merits. It is the society which has entered into the sale deed with land owners wherein component of superstructure which is being passed on, as held by the authorities below and as confirmed by me in this order which has not been reflected and not covered by the stamp duty paid. Once this document is properly stamped, it is always open for the society to in turn govern the rights, title and interest of the individual members and such internal arrangement, has nothing to do with question of appropriate stamp to be affixed on the sale deed in question.
Under the circumstances, petition is dismissed. Rule is discharged. Interim relief stands vacated.