PALLISHREE MOHANTY Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition has been filed for issuance of a writ in the nature of Mandamus to direct the Collector, Cuttack (OP No.3) to register the General Power of Attorney (for short, 'GPA') (Annexure-4) and issue certificate in terms of Sec. 32 of the Indian Stamp Act, 1899 (for short, 'Stamp Act').

(2.) Briefly stated, the relevant facts for proper adjudication of this case are that Plot No.1B/16 in Sector-10 of Abhinaba Bidanasi, Cuttack (for short, 'the case land') was allotted in favour of the Petitioner vide Allotment letter No.6321 dtd. 27/3/2002 (Annexure-1) and delivery of possession of the same was made by the Cuttack Development Authority (for short, 'CDA') in her favour vide order No.1319 dtd. 14/1/2003 (Annexure-2). After approval of the plan, a two storied building has already been constructed over the case land. The Petitioner at present is staying in United States of America (USA). Due to certain compulsions, the Petitioner is not in a position to come to India frequently for which she executed a GPA in the name of her husband, namely, Sri Himansu Sekhar Mohanty in respect of the case land on 16/8/2013 (Annexure-4) before the Assistant Consular Officer, Consulate General of India at New York. In spite of repeated requests of the Petitioner, lease deed in respect of the case land was not executed in her favour for which the Petitioner through her GPA filed W.P.(C) No.7018 of 2019, which was disposed of on 8/4/2019 with a direction to the Secretary, CDA (OP No.2) to dispose of the application of the Petitioner for execution of the lease deed in respect of the case land within a period of one month from the date of receipt of certified copy of the said order. However, the Secretary CDA (OP No.2), vide his letter No.6697/CDA dtd. 11/5/2019 (Annexure-4 series) intimated the attorney of the Petitioner, namely, Sri Himansu Sekhar Mohanty that since the GPA was executed outside India, i.e., at New York by the Petitioner, it was required to be registered before the competent authority, namely, District SubRegistrar, Cuttack. Hence, he was requested to register the document/instrument and submit the same before the CDA for taking further action on the application. It is further contended in the writ petition that the Petitioner and her family members are suffering from acute financial stringency and the Petitioner is also required to repay some personal loans for which she has taken financial assistance from a prospective purchaser of the case land, namely, Abinash Samal. As the deed of transfer could not be executed within a reasonable time and in the meantime two years have already elapsed, the prospective purchaser is pressing hard to return the advance money, but the Petitioner is not in a position to repay the same.

(3.) The Opposite Party No.3, Collector and District Magistrate, Cuttack filed his counter affidavit stating inter alia that under Sec. 31 of the Stamp Act, the Collector is required to determine the duty, if any, to be paid on the instrument only when a person applies for the same. When an application is brought to the notice of the Collector under Sec. 31 of the Stamp Act, the Collector shall certify by endorsement on such document that the stamp duty (stating the amount) with which the instrument is chargeable has been paid under Sec. 32 of the Stamp Act. The Petitioner, in the instant case, has not filed any application as required under Sec. 31 of the Stamp Act. Had it been submitted in terms of Sec. 31 of the Stamp Act it could have been adjudicated and considered for issuance of certificate under Sec. 32 of the said Act. It is further contented that proviso (b) to Sub-sec. (3) of Sec. 32 of the Stamp Act envisages that it is not obligatory on the part of the Collector to endorse any instrument executed out of India and brought before the Collector after expiration of three months from the date of its first receipt in India. The certificate issued under Sec. 32 of the Stamp Act shall be recognized under Sec. 33 of the Indian Registration Act, 1908. But, due to non-compliance of the aforesaid provision of the Stamp Act, the case of the Petitioner needs no consideration and a prayer is made for dismissal of the writ petition.