Santosh Kumar Nanda vs Odisha State Housing Board & Others

Biswanath Rath, J

This writ petition has been filed seeking quashing of the letter dated 13.07.2016 vide Annexure-7 and also seeking a direction to hold the circular

dated 26.09.2011 vide Annexure-8 is not applicable to the case at hand.

Short background involved in the case is that the “Odisha State Housing Board†hereinafter in short called as “O.S.H.B†floated an

advertisement for allotment of houses under Self Financing Scheme. In the process and considering an application for allotment by the petitioner, the

petitioner has been allotted with one HIG house under the Self Financing Scheme at a provisional cost of Rs.2,50,000/-. The petitioner was handed

over with possession of the constructed house over Plot No.HIG-175 measuring an area 45’X60’ at Phase-VII, Chandrasekharpur, Sailashree

Vihar, Bhubaneswar on 29.09.1992 at a total cost of Rs.3,42,999/-, including the cost of the land under the Self Financing Scheme of 1989. The

possession was handed over with the execution of an Agreement with the Opposite Party No.1, on 29.09.1992.

Challenging the enhancement of the cost of the house, defects in construction and for the delay in delivery of the house by the opposite party no.1

the petitioner filed complaints before the State Consumer Disputes Redressal Commission, Orissa hereinafter in short called as “State

Commission†claiming compensation for delay in delivery, enhancement in cost and defects in construction and compensation for the mental agony.

The State Commission by order dated 5.11.1997 upheld the escalated cost of the building but awarded interest @18% for the delayed delivery of the

possession, from 31.01.1992 to the actual date of possession and also allowed compensation towards the defects in the respective houses besides

awarding litigation cost of Rs.5,000/- against the opposite party no.1. The opposite party no.1 challenged the order passed by the State Commission in

the National Commission. The National Commission in the process interfering in the impugned order while reducing the interest towards delay in

delivery from 18% to 12% remanded the matter to the State Commissioner for fresh adjudication with regard to the defects in each of the houses

allotted to the complainants and to have a fair estimated expenditure which might have been required to be spent for repairing the defects. Challenging

the order of the National Commission, the opposite party no.1 preferred Special Leave Petition before the Hon’ble Supreme Court, which was

dismissed on 12.07.2007. As a consequence of remand, the State Commission ultimately deciding the matter afresh on the aspect of estimated

expenditure for rectifying the defects came to hold that the estimated cost would be between Rs.45,000/- to Rs.55,000/-individually. The State

Commission also held that the complainants will be entitled to interest @9% per annum on the said amount, from the date of delivery of possession to

them and opposite party no.1 was directed to make the payment by 31.12.2007, failing which the rate of interest would be 14% per annum. This order

was again involved in appeal in the National Commission. The appeal was dismissed with modification of the interest but however, with cost of

Rs.25,000/- to be paid in each case. The judgment of the National Commission was considered in Civil Appeal No.15214 of 2015 and the Civil Appeal

was ultimately dismissed on 10.07.2015. Upon finality of the matter the petitioner met the opposite party no.3 and requested him to take steps for

execution of the Lease-cum-Sale Deed. The opposite party no.3 by his letter intimated the petitioner to attend his office on 20.12.2015 for execution

of Lease-cum-Sale Deed and asked the petitioner to ascertain the value of the Stamp fees to be purchased for the purpose of registration form the

Office of the Sub-Registrar. By communication dated 26.11.2015 pursuant to receipt of the letter vide Annexure-5, the opposite party no.3 wrote a

letter to the opposite party no.4 and requested him to intimate the value of stamp papers and other registration cost for execution of the deed. There

was no response for some time but ultimately, the opposite party no.4 vide letter dated 13.07.2016 intimated the petitioner that the stamp duty and

registration fees for execution of the lease deed will be calculated as per the present benchmark value fixed by the District Valuation Committee and

no registration of the document can be made below the benchmark valuation fixed by the District Valuation Committee.

Referring to the provision at Rule 2 (f) of the Orissa Stamp Rules, 1952 learned counsel for the petitioner contended that the value for the purpose

of registration should be the value of the property mentioned in the installment, in the event of a conveyance is being made by either by the Central

Government or the State Government or by any government body. Learned counsel for the petitioner further referring to the letter dated 10.03.2014 of

the I.G.R., Odisha submitted that the same has also support to the claim of the petitioner. It is, at this stage of the matter, learned counsel for the

petitioner again taking this Court to the Notification No.55307 dated 30.08.1989 declaring the lessee to bear the stamp duty and fees on the value of

the land, claimed that the registration fees should be confined to the value of the land alone. It is, in the premises, Sri Barik, learned counsel for the

petitioner submitted that charging of the stamp duty by the registering authority is in contravention of the provision at Rule 2(f)(ii) of the Rules,1952

and therefore, sought for a direction from this Court to the opposite party no.4 to charge stamp duty for registration purpose taking into account the

valuation of the land mentioned in the agreement to be Rs.47,196/- and not as per the present market value and following the benchmark value

conducted recently.

In the premises of harassment by the registering authority in filing this writ petition, learned counsel for the petitioner prayed this Court for setting

aside the communication dated 13.07.2016 vide Annexure-7 as well as the circular dated 26.09.2011 vide Annexure-8 and further also sought for a

direction to the opposite parties to execute the Lease-cum-Sale Deed in favour of the petitioner within a stipulated period.

Pursuant to the notice a counter has been filed by the opposite party no.4 resisting the plea taken by the petitioner. Shri S.N. Mishra, learned

Additional Government Advocate referring to the plea in the counter affidavit of the opposite party no.4 while strongly disputing the contentions raised

by the petitioner submitted that the communication dated 13.07.1986 find place at Annexure-7 is strictly in accordance with the instructions of the

Office of the opposite party no.2. Shri S.N. Mishra, learned Additional Government Advocate further taking this Court to the decision of the

Hon’ble Apex Court in the case of State of Hariyana & Ors. versus Manoj Kumar as reported in (2010) 4 SCC 350 submitted that the stand of

the State-opposite party gets the support of the judgment of the Hon’ble Apex Court.

Shri S.N. Mishra, learned Additional Government Advocate further taking this Court to the provision at rule 2(f) of the Rules, 1952 contended that

there is no illegality or infirmity in charging of the stamp duty as the charging is strictly in terms of the provision of law. Further, taking this Court to the

document vide Annexure-A/4, Shri S.N. Mishra, learned Additional Government Advocate justified the charging. By taking support of the instruction

of the Board of Revenue vide Annexure-4, Sri Mishra, submitted that it becomes clear here that the guideline by the Board of Revenue vide

Annexure-4 has not been challenged by any person and the same is operating in the field as of now.

Now coming to consider the allegation and the counter allegation of the respective parties giving applicability of the Rule 2(f)(ii) of the Rules, 1952,

this Court finds, the provision at Rule 2(f) of the Rules, 1952 reads as follows:

“2. Definitions- In this rule, unless, there is anything repugnant on the subject or context-

(f) “Market valueâ€​ means-

(i) the value of any property estimated to be the value which in the opinion of the Collector or the appellate authority, as the case may be, would have fetched or

would fetch, if sold, in the market on the date of execution on the instrument;

(ii) the value of any property which is the subject matter of conveyance, exchange, gift, partition or settlement by or on behalf of the Central Government or the State

Government or any authority or body incorporated by or under any law for the time being in force as shown in the instrument.â€​

Reading of the above, this Court finds, the market value means, the value of any property estimated to be the value which in the opinion of the

Collector or the appellate authority, as the case may be, would have fetched or would fetch, if sold, in the market on the date of execution.

Similarly reading the sub-rule (ii) of rule-2 (f) of Rules, 1952, this Court finds, the rule again prescribes the value of any property which is the subject

matter of conveyance, exchange, gift, partition or settlement by or on behalf of the Central Government or the State Government or any authority or

body incorporated by or under any law for the time being in force as shown in the instrument and this Court here observes that both the above

provisions are to read conjointly and cannot be read independently.

For the admitted position involved herein, this Court finds, the instrument sought to be transferring the land along with the building in favour of the

petitioner, appears to have been on the basis of the transaction in the year 1992. In the meantime, the parties have faced several litigations. This Court

from the factum involving the litigation undertaken in the meantime, finds, the litigations involves the claim on the enhancement of cost of house, the

defect in construction and compensation for delay delivery and from the orders involved herein passed by the different courts at different level

including the Hon’ble Supreme Court, this Court again finds, enhancement of the cost of house has been declined and confirmed by all the forums

and refused to be entertained by all the forums. The dispute between the parties continued so far it relates to compensation for delay delivery, to the

enhancement in the cost and defects in the construction and further compensation for mental agony. This Court here observes, value indicated in the

agreement for transfer of the property sought to be executed by way of registration remain intact, but involving a value put therein in the year 1992

and the document sought to be executed in the year 2015 as the instrument has not been executed as of now. It is not known as to why the execution

of the lease deed has taken so much time, particularly keeping in view that there was no difficulty in the execution of the lease deed even in the year

1992.

Looking the I.G.R circular vide Annexures-6 & 7, this Court finds, both the circulars are strictly in terms of the rule 2(f)(ii) of the Rules, 1952.

Therefore, this Court finds, there is no infirmity in either of the letters vide Annexures-6 & 7. Board of Revenue even though issued a circular to

govern the field in the year 2012 as at Annexure-A/4, but the same appears to be based on a judgment of the Hon’ble Apex Court in the case of

State of Hariyana & Ors. versus Manoj Kumar as reported in (2010) 4 SCC 350. The I.G.R. circular being based on the direction of the Hon’ble

apex Court and further, as this Court finds, since it is in consonance with the rule quoted hereinabove, there is no fault in the said circular. In such

view of the matter, this Court finds, there is no difficulty in the asking of the opposite party no.4 for additional stamp for registration of the execution

deed between the parties in terms of the market value prevailing at the relevant point of time. It is here reading the provision at rule2(f)(II) of the

Rules, 1952 and considering the claim of the petitioner that the land value could alone have been considered for registration purpose, the opposite party

no.4 can maximum claim stamp duty on the market value of the land. This Court here finds, the petitioner here sought to execute the agreement

between the parties involving both the land as well as the building standing therein. Looking to the document at Annexure-1 an agreement for lease of

houses, this Court finds, the value put therein @ of Rs.3,42,000/- as a whole was depending on the cost of the land and the property at the relevant

point of time in the year 1992. This Court here observes that nothing prevented the parties to register the lease agreement in the year 1992. No

reasonable explanation coming-forth in asking the authority to register the lease agreement after so much delay. This Court also finds, the demand of

the opposite party is in terms of rule(2)(f)(II) of Rules, 1952. It is, at this stage of the matter, taking into account the decision of the Hon’ble apex

Court in the case of State of Hariyana & Ors. versus Manoj Kumar as reported in (2010) 4 SCC 350 this Court finds, the Hon’ble Apex Court

dealing with almost similar situation through paragraph no.29 to 35 more particularly through the discussions vide paragraph nos.33, sets aside the view

of the High Court involved therein to accept the value indicated in the instrument therein. This Court finds, this decision of the Hon’ble Supreme

Court supports the stand of the State/Revenue.

This Court however, while holding that the demand of the registering authority is strictly in terms of the provision contained in rule 2(f)(II) of Rules,

1952 and the same has also support to the decision of the Hon’ble apex Court indicated hereinabove, but however, keeping in view that the

opposite party no.1 asking the petitioner vide its letter dated 24.11.2016 to contact the Asst. Admn. Officer (Urban), Odisha State Housing Board for

execution of the lease-cum-sale deed of the allotted house, the petitioner met the opposite party no.3 immediately thereafter to take steps for

execution of the lease-cum-sale deed and for the pendency of the litigation in this Court for three year, this Court directs the registering authority to

register the instrument applying the benchmark value prevailing in the year 2015-16. The writ petition though stands dismissed but however, with the

direction made hereinabove.

It is also clarified here that if there is any dispute in between the petitioner and the opposite party no.1 regarding delay in execution and such party

should bear the additional stamp cost, it would be open to the petitioner to get the instrument registered on the basis of the benchmark value for the

year 2015-16 and raise such dispute for realization of balance stamp before appropriate forum for consideration of the competent court/authority

involving an issue fixing the responsibility of such additional burden providing opportunity to both parties.

The writ petition stands dismissed but however, subject to the observation and direction made hereinabove.

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