ADITYARAJ BUILDERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These Petitions all raise a common question of law under the Maharashtra Stamp Act 1958. All of them relate to Stamp Duty sought to be levied on what are called Permanent Alternate Accommodation Agreements ("PAAA"). Typically, these are executed by a developer with individual members of housing societies or other persons already in occupation and whose houses are being redeveloped. As we shall presently see, these agreements follow a pattern. The society enters into an agreement, often called a Development Agreement ("DA") or a Redevelopment Agreement with a developer. That DA has two parts. One part is the construction of new homes for existing society members or occupants. The second part is the construction of what are called free sale units which the developer can put to sale in the open market. Sometimes, but not always, individual society members also sign the DA. Equally, there are many cases where the society executes the DA with the developer, but individual members do not. Those individual members are still members of the society and the society acts on their behalf.

(2.) There is no dispute that the DA is to be stamped. The issue is the demand by the stamp authority that the individual PAAAs for members or existing occupants must also be stamped on a value reckoned at the cost of construction. This overlooks a fundamental aspect, viz., that existing members and occupants are not in any sense 'purchasers' of the areas to which they are entitled in law on reconstruction. This may be an area equivalent to what they earlier occupied or, by operation of law, maybe slightly more. If a society member or occupant purchases from the developer any additional area, then again it is not contentious that this additional area purchased by a member must be assessed to stamp duty. The Petitioners all make the point that so far as the existing area (or the area to which the members are entitled) is concerned, there is in fact no "purchase" at all. They are being provided new accommodation in lieu of earlier accommodation. In any case, the DA has already been stamped and covers all tenements or units to be constructed for the purposes of individual members of the society. There can be no question of stamping or of a levy of stamp duty twice for the same transaction. The other argument also raised is that for the purposes of the stamp, the PAAA is never independent of the DA. There are other dimensions to this argument which we will consider shortly.

(3.) On 9/12/2021, in Writ Petitions now numbered as Writ Petition No. 4575 of 2022, Writ Petition No. 4609 of 2022 and Writ Petition No. 4580 of 2022, we issued Rule and then made the following order.