Kulbir Raj Arora and Others vs State of Haryana and Others

Sanjay Kishan Kaul, C.J.—The petitioners seek to impugn a communication dated 28.4.2006 from the State of Haryana addressed to various authorities on the ground that it is allegedly an administrative order which is requiring the respondents not to register sale deeds executed through duly constituted power of attorney. The petition was admitted on 7.8.2006 and the operation of the impugned letter was stayed to the extent it sought to ban sale of properties through GPA. However, it was made clear that the requirement of No Objection Certificate (NOC) to be obtained as was specified in the letter would not be effected.

So far as the issue of NOC is concerned, it is stated to be in conformity with the requirement contained in Section 7(A) of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as ''the Act''). Learned counsel for the petitioners does not dispute the applicability of the Act or the requirement of obtaining an NOC u/s 7(A) of the said Act provided the pre-requisites of the same are satisfied. In this behalf, learned counsel while referring to the aforesaid section has emphasized that one of the pre-requisites is that it pertains to the urban area as may be notified specifically by the Government from time to time for purposes of this section. He submits that as per the counter affidavit filed by the respondents, the area in question is not one where the Government has notified the same u/s 7(A) of the said Act. This position is not disputed by the learned counsel for respondents and thus, there is really no lis on this issue.

As far as the issue of use of power of attorney for sale transaction is concerned, the submission of the learned counsel for the respondents is that the letter dated 28.4.2006 is in the nature of an advisory and does not repeal nor is in conflict with any statutory provision of any enactment. It is submitted that the basic purpose of this circular was to put various authorities to caution that transactions which evade stamp duty through the mode of execution of Agreement to Sell, GPA, SPA, Will instead of a transfer document ought not to be encouraged to be accepted and thus, a GPA with that motive should not be registered. The legal principle qua this aspect infact is no more res-integra in view of the judgment of the Hon''ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another,

Learned counsel for the petitioners on the other hand submits that the aforesaid cannot be an impediment to registration of a sale deed through a duly constituted attorney in view of the observations of the Hon''ble Supreme Court in State of Rajasthan and Others Vs. Basant Nahata, and Amritpal Singh Vs. Chandigarh Administration and others, ). It has been elucidated that a distinction has to be carved out in cases where a power of attorney is being executed for consideration and the objective is to evade the stamp duty payable on the conveyance document.

We once again find from the submissions of the learned counsels for the parties that there is effectively no lis though there may be different perception of the understanding of the circular in question. What is sought to be curtailed and prohibited is a power of attorney which is effectively for consideration with the object of same evading stamp duty payable on a conveyance document and is even accompanied by a Agreement to Sell, SPA and Will. It is not as if power of attorney per-se is prohibited to be executed and registered if it is utilized for executing a conveyance deed duly stamped.

The petitions accordingly stand disposed of in the aforesaid terms. A photocopy of this order be placed on the connected case files.