Spartacus Flat Owners Co-Operative Society Limited, Bangalore vs Government of Karnataka and Others

Anand Byrareddy, J.—These petitions are listed before this Court by virtue of a judgment of a Division Bench in Writ Appeal No. 2483 of 2010 and Writ Appeal Nos. 2167 to 2169 of 2011, dated 25-6-2012 Karnataka Lokayukta, Bangalore Vs. Canara Union Co-Operative HSG Society Limited, Bangalore and Others, The Division Bench has taken a view that the contention of the writ petitioners before this Court as to whether the amendment by Act No. 6 of 2001 to Section 38 of the Karnataka Co-operative Societies Act, 1959, which excluded the application of Section 17(1)(b) and 17(1)(c) of the Indian Registration Act, 1908, was not considered by its order. The Amendment Act, which is produced at Annexure-C to the writ petitions is as follows.-

Short title and commencement.-- (1) This Act may be called the Karnataka Stamp Certain Other Law (Amendment) Act, 2001.

(2) It shall come into force with effect from the First day of April, 2001.

Substitution of Section 3-B.-- For Section 3-B of the Karnataka Stamp Act, 1957 (Karnataka Act 34 of 1957) (hereinafter referred to as the ''principal Act''), the following shall be deemed to have been substituted with effect from the First day of April, 1998 namely.-

3-B. Certain instruments chargeable with additional duty.-- (1) Any instrument of conveyance, exchange, settlement, gift or lease in perpetuity of immovable property chargeable with duty u/s 3 read with articles of the schedule shall, for a period of four years effective from the First day of April, 1998 be chargeable with additional duty at the rate of five per cent on such duty chargeable on such instrument of conveyance exchange, gift, settlement and lease in perpetuity for the purpose of equity investment in the infrastructure Development Corporation (Karnataka) Limited and Bangalore Mass Rapid Transit Limited in the proportion of 67:33 respectively.

(2) The additional duty chargeable under sub-section (1) shall be in addition to any duty chargeable u/s 3.

(3) Except as otherwise provided in sub-section (1) provisions of this Act, shall so far as may be apply in relation to the additional duty chargeable under sub-section (1) as they apply in relation to the duty chargeable u/s 3.

Amendment of Section 9.-- In Section 9 of the principal Act, in clause (a), in sub-section (1), after the third proviso, the following proviso shall be inserted, namely.--

Provided also that the State Government may in public interest reduce or remit by notification, the stamp duty payable on any instrument to be specified therein executed by or in favour of Rajiv Gandhi Housing Corporation in connection with implementation of housing programme for the economically weaker sections and special occupational categories both in rural and urban area except for Indira Avas Yojana, for the purpose of providing residential facilities with capital investment by the State Government and loan borrowed from Housing and Urban Development Corporation.

Amendment of Schedule.-- In the schedule to the Principal Act.-

(1) in Article 1, in clause (i), in sub-clause (b), in column (3), the following shall be inserted, namely.--

Subject to a maximum of Rupees One thousand.

(2) in Article 5, in clause (f), for the entries in column (3), the following shall be substituted, namely.--

Five rupees for every hundred rupees or part thereof on the market value of the property which is the subject-matter of agreement.

(3) in Article 6, in clause (1), in sub-clause (a), in item (v), in column (3), for the figures 50, the following shall be substituted, namely.--

Rs. 50 subject to a maximum of Rs. 50,000-00.

(4) in Article 10, for the entries in column (3), the following shall be substituted, namely.--

Five hundred rupees for every rupees ten lakhs or part thereof.

(5) in Article 20, in clause (1), the first proviso shall be omitted;

(6) in Article 28, for clause (b), including the explanation, the following shall be substituted, namely.-

(b) Where the donee is a member of the family of the donor Rupees one thousand

Explanation.-- Family in relation to the donor for this purpose means husband, wife, son, daughter, daughter-in-law and grandchildren.

(7) in Article 30, in clause (1).-

(i) in sub-clause (a), in item (iii), in the entries under column (3), for the words "a market value", the words "the amount or value" shall be substituted;

(ii) in sub-clause (a), in item (vi), in column (3), for the words, figures and brackets "Bond (Article No. 12)", the words, figures and brackets "Conveyance (Article 20(1))" shall be substituted;

(iii) in sub-clause (b), in item (ii), in column (3), for the words, figures and brackets "Bond (Article No. 12), the words, figures and brackets "Conveyance (Article 20(1))" shall be substituted;

(iv) in sub-clause (c), in clause (ii), in column (3), for the words, figures and brackets "Bond (Article No. 12)", the words, figures and brackets "Conveyance (Article 20(1))" shall be substituted.

(8) in Article 45, for clause (b), including the explanation, the following shall be substituted, namely.-

(b) Where the release is between the family members Rupees one thousand

Explanation.-- Family in relation to a person for the purpose of clause (b) means husband, wife, son, daughter, father, mother, brother, sister, wife of a predeceased son and children of a predeceased son or predeceased daughter.

(9) in Article 48, in clause (A), including the explanation, for sub-clause (ii), excluding the exemption, the following shall be substituted, namely.-

(ii) Where the disposition is for the purpose of distributing the property of the settler among the members of his family. Rupees one thousand

Explanation.-- For the purpose of this sub-clause family in relation to settler means husband, wife, son, daughter, daughter-in-law and grand children.

Amendment of Karnataka Act 11 of 1959.-- In the Karnataka Co-operative Societies Act, 1959 (Karnataka Act 11 of 1959), in Section 38, at the end, the following shall be inserted, namely.--

Provided that the exemption from compulsory registration of instrument shall not apply to instrument which is intended to transfer or in effect transfers the right, title or interest in immovable property executed by or in favour of House Building Co-operative Societies, registered under this Act.

This Bench had on the face of it opined that having regard to the State Government, having taken a stand before a Division Bench in Writ Appeal No. 3883 of 2003, wherein a decision of a learned Single Judge of this Court holding that the said amendment was with retrospective effect, had been carried in appeal, the State Government had filed a memo to declare that having regard to the objects and reasons to introduce the amendment, the amendment would take effect only from the date of amendment and it is with prospective effect. The writ appeal had been allowed after recording the memo. Therefore, the question was answered in favour of the petitioners in the writ petitions before this Court, while referring to the memo that was recorded by a Division Bench. However, the said order having been challenged in the above appeals, the Division Bench has taken a view that this Court had not entered upon the real question as to whether the amendment was with prospective or retrospective effect and therefore, the order did not disclose the reasoning on which it was held to be prospective.

It is true that this Court has not entered upon the question as to whether it was prospective or retrospective, because the issue was settled before the Division Bench. If the Division Bench which has now remanded the matter is of the opinion that this Bench was required to go into the question and failed to do so, it is clarified that it is willful, as in the opinion of this Bench, it is not necessary. It is further submitted that the order in favour of the petitioners was not at all in challenge before the Division Bench in some of the connected writ petitions. Notwithstanding that, the Division Bench has thought it fit to remand the entire order, merely, because, the said writ petitions were connected with the petitions in which a challenge was made. In any event, this is immaterial. The petitions are allowed in terms of the earlier order of this Court dated 16-6-2009.