MADHYA PRADESH HOUSING BOARD vs Rajesh Mandioi

MADHYA Pradesh Housing Board -petitioner herein, which was the opposite party before the District Consumer Disputes Redressal Forum, Bhopal (hereinafter referred to as the District Forum'' for short) has filed the present Revision Petition.

THIS Order shall dispose of the above noted three Revision Petitions.

BY the impugned Order, the State Commission has disposed of a number of Appeals filed by the petitioner -Housing Board but since we are concerned with only three Revision Petitions, we shall be referring to the facts giving rise to these Revision Petitions only. Shortly stated, the facts of the case are:

IN pursuance to the advertisement issued by the petitioner, Mr. Rajesh Mandioi, Mr. S.D. Gupta and Ajay Singh, respondents in these Revision Petitions, filed applications for purchase of Junior HIG House in Sector -C, Ayodhya Nagar, Bhopal under Self Financing Scheme. The scheme provided that the purchaser would be required to get the sale deed registered of the plot only and not that of the super structure. The common grievance of these complainants was regarding sub -standard and defective construction of the houses by the petitioner -Housing Board and further deficiency of the Housing Board in the matter of delay in construction and delivery of houses which made these complainants to get the registered sale deed executed for the super structure as well and pay stamp duty and registration fee. Apparently, earlier under some notification of the State Government, execution of the sale deed and registration thereof in respect of super structure of the houses allotted under the self financing scheme was exempted. According to the complainant, by the time the delivery of houses was made to them, the said notification was withdrawn as a result of which they were required to pay the registration fee and the stamp duty on the land value of the plot as well as the super structure constructed thereon. The District Forum allowed the complaint and awarded a compensation of Rs. 25,000 to each of the complainants.

AGGRIEVED against the Order passed by the District Forum, the petitioners as well as the Housing Board filed Appeals before the M.P. State Consumer Disputes Redressal Forum, Bhopal (hereinafter referred to as the State Commission'' for short). By the impugned Order, the State Commission has reduced the compensation for the sub -standard and defective construction of houses to Rs. 20,000. Further, it was held that it was not a case of unfair trade practice but of late construction and delivery of houses, which deprived the respondent allottees of the benefit of exemption granted earlier by the State Government. Accordingly, it was held that ends of justice would be served by requiring the petitioner -Housing Board to pay to the respondents/complainants, the amount required to be spent by them in purchase of stamp paper and the registration fee.

THESE Revision Petitions came up for hearing before a Bench presided over by Hon''ble Mr. Justice M.B. Shah, as he then was, on 13.5.2005. The following Order reads as under: "Considering the reasons recorded in para 5 of the Order of the State Commission, in our view, the Impugned Order passed by the State Commission does not call for any interference. If officers of the Housing Board are inefficient or concerned engineers have committed mistakes in supervising the work, it would be open to the Housing Board to recover the amount awarded by the District Forum/ State Commission from the concerned officers. This would be in conformity with the laid down by the Apex Court in M.K. Gupta v. Lucknow Development Authority, III (1993) CPJ 7 (SC)=(1994) Vol. 1 SCC 243. Impugned Order does not call for any interference. However, with regard to the registration charges and stamp duty only, issue notice to the respondent returnable on 17.8.2005."

IN view of the above Order, the Revision Petition is confined only to the question of registration charges and stamp duty only. It is not in dispute before us that, as per the advertisement dated 31.1.1999, the respondents were required to pay registration fee and stamp duty on the value of the plot only and not that of the super structure constructed on the plot. Counsel for the petitioner contends that the State Government has erred in holding that the notification withdrawing the exemption for chargeability of the super structure on the plot was issued subsequent to the issuance of the advertisement. He has drawn our attention to the notification dated 22.6.1998, which reads as under: "No. B -4 -17 -94 -C.T. -5(22) -In exercise of powers conferred by Clause (a) of Sub -section (1) of Section 9 of the Indian Stamp Act, 1899 (No. II of 1899) and in supersession of this Department Notification No. 2851 -B -6 -17 -C.T. -V -87, dated the 30th May, 1992, the State Government hereby reduces/remits the rates of stamp duty chargeable on the instruments of sale executed by Madhya Pradesh Housing Board, Vikas Pradhikaran, Primary Cooperative Housing Societies and Madhya Pradesh Co -operative Housing Federation Ltd., in relation to the houses/departments constructed under Self Financing Scheme, subject to the following conditions, namely: (a) The chargeable stamp duty shall be exepted/reduced to the extent of 100 percent, 50 percent and 25 percent for the categories of houses/departments of Economically Weaker Section, Low Income Group and Middle Income Group respectively. No exemption/reduction shall be granted to cases of High Income Group Houses / apartments.

(b) This exemption/reduction shall be limited only to original allottees under the Self Financing Scheme.

(c) For the purpose of Clause (a), except the Primary Co -operative Housing Societies a necessary certificate shall be given by the said executing institutions, and in relation to the Primary Co -operative Housing Societies an affidavit shall be given by the concerning Co -operative Society.

Explanation -For the purpose of this notification, the words "Houses/apartments of economically weaker sections, Low Income Group and Middle Income Group mean such houses/apartments whose maximum plinth area and plot area shall not exceed - Category of housing Maximum Plinth Area (sq.M.) Maximum plot area (sq.M.) (1) (2) (3) Economically Weaker Sections 30 60 Low Income Group 48 96 Middle Income Group 85 199 By order and in the name of the Governor of Madhya Pradesh K.P. SETHIA, Addl. Secy."

(Emphasis supplied)

IT may be noted that this notification was issued prior to the issuance of the advertisement by the petitioner dated 31.1.1999. By this notification, the State Government has reduced the stamp duty chargeable on the instrument of sale deed executed by the Madhya Pradesh Housing Board, Vikas Pradhikaran, Primary Co -operative Housing Societies and Madhya Pradesh Co -operative Housing Federation Ltd. in relation to the houses/apartments constructed under self financing scheme. It exempted/reduced the stamp duty to the extent of 100 percent, 50 percent and 25 percent for the categories of houses/apartments of Economically Weaker Sections, Low Income Group and Middle Income Group, respectively. It further provided that no exemption/reduction shall be provided to High Income Group Houses/apartments. The respondents have purchased Junior High Income Group houses on which no exemption was available. No doubt, in the advertisement, the petitioner -Housing Board had given to the prospective buyers an assurance that they would be required to pay registration fee and stamp duty on the purchase of value of the plot only and not of the super structure built on the plot. The question that arises is whether it would operate as an estoppel against the petitioner from charging registration fee and stamp duty as provided under the Stamp Act, 1899. The Board could not have extended any promise/assurance contrary to the provisions of the statute or the statutory notification issued by the State Government. Any advertisement issued in violation of the provisions of the statute/notification, would be void ab initio and would not bind the Board. Some of the purchasers of the High Income Group plots had challenged the vires of the notification issued by the State Government withdrawing the exemption from payment of registration fee and stamp duty charges on High Income Group houses by filing Writ Petition No. 5025 of 2002 in the High Court of Judicature at Jabalpur (Madhya Pradesh) (hereinafter referred to as the High Court'' for short). Single Judge of the High Court dismissed the aforesaid Writ Petition which has attained finality. In the aforesaid case, the Counsel for the petitioner contended that: "...Possession of the houses were obtained on the understanding that they have to pay the stamp duty only on the value of the plot and not on the value of construction. Board is relying on the notification (P.1) to realize the stamp duty on the value of plot and also on the value of construction. The action is illegal and arbitrary, respondents are bound by promissory estoppel and cannot realize stamp duty on the cost of construction."

Repelling the following contention of the petitioner, it was held: "The Board could not have extended any promise contrary to the provisions of statute or statutory notification issued by the State Government from time -to -time as the Board has no such authority to grant exemption from stamp duty. Any assurance made in scheme (P.4) issued on 28.7.99, no such promise or assurance could have been given as Board had no authority, it cannot be said to be binding as to the stamp duty, from time -to -time, fixed and realized under the orders of State Government, thus, doctrine of promissory estoppel is not at all attracted as person in authority has not made any promise, the Board has no authority to make any assurance with respect to payment of stamp duty. Consequently, it cannot be said that Housing Board was bound by the assurance made in circular (P.4), whatever stamp duty is payable, is according to notification (P.1) dated 22.6.1998, the date of execution of sale deed is material, stamp duty has to be paid with reference to the date of execution of sale deed."

(Emphasis supplied)

A perusal of the said paragraph would show that the High Court has held that the Board was not bound by the assurance given contrary to the notification dated 22.6.1998 withdrawing the exemption to pay the requisite registration charges on the High Income Group houses. The impugned Order passed by the State Commission runs counter to the observations made by the High Court in the aforesaid writ petition. We respectfully agree with the view taken by the High Court in the aforesaid case.

ACCORDINGL Y , we set aside the Order of the State Commission to the extent it directs the petitioner to pay the amount required by the complainants to be spent on purchase of stamps, execution of sale deeds and registration thereof in respect of superstructure. The amount spent on execution and registration of lease deed of the plot area shall have to be borne by the purchaser -complainants. The Revision Petitions are disposed of in the above terms. Parties to bear their own costs. R.P. disposed of.