JAYENDRA DHARAI DASSANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner No. 3 is a Co-operative Housing Society registered In the year 1947 under the Co-operative Societies Act, 1925 and secured a large piece of land at Juhu Vile Parle Development Scheme The land was sub-divided into several housing plots for the purpose of leasing out to the members. The objects of the Society, as set out in the bye-laws duly certified by the Deputy Registrar of Co-operative Societies, are to carry on trade of building and buying, selling, hiring, letting and developing the land in accordance with the Co-operative principles. One Chitra Chandrakant Sanghavi and her sons Deepak and Kaushik Sanghavi were members of petitioner No. 3 Society and by an Indenture of lease executed on January 8, 1965, the Society leased plot of land bearing No 64 in favour of Sanghavis, The lease was for a period of 999 years and the consideration was Rs. 11,198, A copy of the lease agreement between the Society and Sanghavis is annexed as Ex. A to the petition. The document was presented for registration on January 8, 1965 and was duly registered under the provisions of the Indian Registration Act. Clause 14 of the lease agreement prescribed that the lessee will not assign, underlet or part with possession of the demised plot at any time during the period of lease without the written consent of the Society. It further prescribed that the consent will not be withheld by the Society in the case of a responsible and respectable tenant being registered as member of the Society. Clause 14 further provided that in respect of every permitted disposition or devolution of or dealing with the demised plot, the lessee shall pay to the Society half the amount or value of any premium or other consideration received by the lessee from the purchaser or transferee or undar-lessee. The lessee was also required to pay half the extra amount received from the transferee over and above the capital cost with Interest thereon at 61/4% per annum to the limit of 1/3rd of the capital cost.

(2.) On July 26, 1972, Sanghavis, with the consent of the Housing Society, assigned the leasehold rights in favour of petitioners Nos. 1 and 2 by a deed of assignment. Prior to the execution of the deed of assignment, petitioners Nos. 1 and 2 were enrolled as members of the Housing Society. The Housing Society had also received from Sanghavis an amount of Rs. 34,623 as and by way of transfer charges as contemplated by Clause 14 of the lease deed between Housing Society and Sanghavis. A copy of the deed of assignment between Sanghavis and petitioners Nos, 1 and 2 is annexed as Ex. B to the petition and the said document indicates that the purchase price was settled at Rs. 86,530. Though the assignment deed was executed by Sanghavis in favour of petitioners Nos. 1 and 2, the Housing Society respondent No. 3 was joined as a confirming party and the Housing Society admitted that the assignees have become the members of the Housing Society and by deed of assignment have become owners of the plot. The deed of assignment was presented for registration In the Office of the Sub-Registrar, Bombay IV on July 26, 1972 and the parties to the agreement, i. e. Sanghavis aud petitioners Nos. 1 and 2, and the confirming party i. e. Housing Society petitioner No. 3 appeared before the Sub-Registrar and admitted the execution of the deed. The deed of assignment was not registered for some time as the Income Tax certificate under Section 230A of the Income Tax Act was not produced by the assignors-Sanghavis. After the production of the Income Tax certificate, the document was registered on July 31, 1978 and was returned to petitioners Nos. 1 and 2. It is required to be stated at this juncture that stamp duty was not paid on the deed of assignment, nor the registration charges on the strength of Government notification dated March 22, 1939.

(3.) On November 17, 1981, the Sub-Registrar addressed letter to the Hon. Secretary of the Housing Society pointing out that the Inspector General of Registration, Pune, had noted that the deed of assignment is chargeable with stamp duty of Rs. 9,440 and the registration fee of Rs. 882 and called upon the Housing Society to approach the Collector for adjudication and payment of stamp duty and registration fees. The Secretary of the Housing Society advised petitioners Nos. 1 and 2 in respect of the demand made by the Superintendent of Stamps. Thereafter, large correspondence took place between the petitioners and the Superintendent of Stamps and the Sub-Registrar wherein the petitioners were claiming that the document in question was not chargeable with any stamp duty, nor the petitioner are required to pay any registration charges. The Superintendent of Stamps and the Sub-Registrar, on the other hand, claimed that the document in question was chargeable with stamp duty under Article 25B{1) of Schedule I of the Bombay Stamp Act, 1958. On June 8, 1982, the Sub-Registrar informed ths Secretary of the Housing Society that unless the registration fee of Rs. 882 is paid within one month, steps would be taken to recover the same as arrears of land revenue under Section 80A of the Indian Registration Act. Thereafter on August 2, 1982. petitioner No, 1 received a notice issued by the Recovery Officer of Government Dues, Bombay-respondent No. 2-under the provisions of Section 267 of the Maharashtra Land Revenue Code, 1966 demanding payment of Rs. 9,440 and the sum of Rs. 2 towards notice charges within 20 days of the receipt of notice and threatened to attach the moveable and immoveable properties of petitioners and to sell the same under Section 267 of the Land Revenue Code In case of failure to comply with the demand, the petitioners tried to approach the Collector of Bombay, being the Chief Controlling Revenue Authority, but the Collector declined to entertain the appeal On the ground that the appeal against the action taken by the Recovery Officer and the Superintendent of Stamps is not maintainable. The petitioners thereafter filed the present petition under Article 226 of the Constitution of India in this Court on August 25, 1982.