High court orders dated 30.04.2013
Harjeet Narang
(Querist) 05 May 2013
This query is : Resolved
Attaching the Latest High Court Order dated 30.04.2013. Per this order, now the property can be sold on GPA and Agreement to Sell.
It looks that the Lease Hold Property can now be sold out on GPA and Agreement to Sell, But not sure how then the Supreme Court orders dated 10.11.2011 in Suraj Lamp Industries case would be adhered.
My friends, Please provide your input.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 4585/2012 and CM No. 9515/2012
PACE DEVELOPERS AND PROMOTERS
PVT LTD ..... Petitioner
Through: Mr Rajiv Dutta, Sr. Adv. with Kumar Dushyant Singh, Adv.
versus
GOVT. OF NCT THROUGH ITS SECRETARY
AND ORS ..... Respondents
Through: Mr Shariq Mohammad, Adv. for R-1 and 2 with Mr Sanjiv Kumar, Sub-
Registrar, Hauz Khas.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
30.04.2013
1. In this writ petition the following two prayers have been made:
(a) Issue a writ of certiorari and after calling for the relevant records
of the impugned circular quash the illegal circular bearing no.
F.1(92)Regn.Br./Div.Com./2012/298 dated 27/4/2012 issued by respondent
no. 2 as violative of petitioner?s Fundamental Rights guaranteed under
Article 14 and 19(1)(g) of the Constitution and also the said circular is
against the judgment of the Supreme Court delivered in ?Suraj Lamp and
Industries (P) Ltd. (2) vs State of Haryana? reported in (2012) 1 SCC 656
and the relevant laws and/or;
(b) Issue a writ of mandamus or an appropriate writ, order or direction
in the nature of mandamus and direct the respondent- department to
forthwith register the sale deed;....?
W.P.(C) 4585/2012 Page 1 of 6
2. The brief facts and the background in which the writ petition has
been filed are as follows:
2.1 The petitioner company entered into a collaboration agreement dated
11.09.2011 with one Mrs. Rani Puri, owner of the immovable property
situate at A-1/81, Masjid Moth, Panchsheel Enclave, New Delhi
(hereinafter referred to as the said property).
2.2 It appears that the said Mrs Puri, in pursuance to the
aforementioned collaboration agreement, executed a General Power of
Attorney (GPA) dated 11.11.2011, in favour of the petitioner. The GPA
was duly registered and stamped, in accordance with the provisions of the
Delhi Stamp Duty Amendment Act, 2001.
2.3 Apparently, Mrs Puri also executed a Will dated 11.11.2011. To
be noted, the Will refers to Mr Anil Khanna, the director of the
petitioner company. As per the said Will 25% of the undivided,
indivisible and impartible ownership rights in the land, on which the
said property has been built, is to devolve on Mr Anil Khanna, on the
death of Mrs Puri. The said Will has, evidently, been registered with
the Sub-Registrar-V, Delhi.
2.4 On 27.04.2012, respondent no.2, i.e., the Divisional Commissioner,
Govt. of NCT of Delhi, issued the impugned circular.
3. The petitioner being aggrieved by the contents of the said circular
approached this court by way of the captioned petition under Article 226
of the Constitution of India, to lay challenge to the same.
4. Learned counsel for the petitioner submits that, the circular dated
27.04.2012 is contrary to the judgment of the Supreme court passed in the
case of Suraj Lamp and Industries (P) Ltd. vs State of Haryana (2012)
1
W.P.(C) 4585/2012 Page 2 of 6
SCC 656. Particular emphasis in this regard has been laid on the
observations made by the Supreme Court in paragraph 27 of the
said judgment. It is further submitted that there is no impediment in
the Sub-Registrar registering a genuine GPA and/or an agreement to sell.
It is in this regard that, reliance is placed on the observations made in
paragraph 27 of the judgment of the Supreme Court in Suraj Lamp and
Industries (P) Ltd.
5. On the other hand, learned counsel for the respondents submits
that, the transaction, which has been entered into between the petitioner
company and the original owner, i.e., Mrs Puri, seeks to evade stamp duty
and, therefore, there is a resistance by the Sub-Registrar, in
registering the document.
5.1 Mr Mohammad, learned counsel for the respondents, submits that the
transaction between the owner, Mrs Puri, and the petitioner company,
i.e., the builder, is sought to be concluded on payment of stamp duty at
the rate of 3% , whereas it ought to be subjected to stamp duty at the
rate of 6%, which is the rate applicable to a transaction of sale.
5.2 It is the contention of Mr Mohammad that the transaction between
the owner Mrs Puri and the petitioner company, i.e., the builder, is in
effect a transaction of sale and hence the resistance to registration of
the document. Mr Mohammad says that based on the Power of Attorney, the
petitioner company, which is a builder, is obviously going to sell those
portions of the super-structure to prospective buyers, which fall within
its share. It is stated that the rate of stamp duty, on these sale(s)
will be 6%. It is, therefore, Mr Mohammad?s contention that, the same
rate of stamp duty should also apply to the first leg of the
transaction, which is, the transaction entered into
W.P.(C) 4585/2012 Page 3 of 6
between the owner Mrs Puri and the petitioner company, i.e., the builder.
6. Having heard the learned counsels for the parties, in my view, some
of the assertions made by the learned counsel for the respondents, at
this stage, are premature. There is, as a matter of fact, no order
passed by the respondents refusing registration of any document. The
concern of the respondents, that the transaction is not genuine, is not
borne out from any order of the respondents. What the court is called
upon to examine, therefore, at this juncture, in substance, is the
validity of the circular dated 27.04.2012, issued by respondent no. 2.
The grievance of the petitioner, in particular, is directed towards the
following directions contained in the circular dated 27.04.2012 issued by
respondent no. 2:
?....Therefore, it is again clarified to all the Registrars/ Sub-
Registrars, that on the basis of a GPA, a Will, and Agreement to Sell,
collectively or separately in respect of an immovable property, a
conveyance cannot be executed i.e. no transfer of property will take
effect until unless a clear sale deed is executed and duly registered by
the executants in the office of the Registrar/ Sub-Registrar.
Therefore, it is advised that all the Registrars/ Sub Registrars shall
follow their instructions while discharging their functions under the
Registration Act 1908.?
6.1 A bare reading of the aforesaid extract would show that the
respondents have issued across the broad a directive to all Registrars
and Sub-Registrars not to register any conveyance vis-a-vis an immovable
property which is based on a GPA, Will or Agreement to Sell. In my view,
this direction clearly misconstrues the observations of the Supreme Court
made in paragraph 27 of the judgment in the case of Suraj Lamp and
Industries (P) Ltd. The said observations being relevant are
extracted
W.P.(C) 4585/2012 Page 4 of 6
hereinbelow:
?....27. We make it clear that our observations are not intended to in
any way affect the validity of sale agreements and powers of attorney
executed in genuine transactions. For example, a person may give a power
of attorney to his spouse, son, daughter, brother, sister or a relative
to manage his affairs or to execute a deed of conveyance. A person may
enter into a development agreement with a land developer or builder for
developing the land either by forming plots or by constructing apartment
buildings and in that behalf execute an agreement of sale and grant a
power of attorney empowering the developer to execute agreements of sale
or conveyances in regard to individual plots of land or undivided shares
in the land relating to apartments in favour of prospective purchasers.
In several States, the execution of such development agreement and powers
of attorney are already regulated by law and subjected to specific stamp
duty. Our observations regarding ?SA/GPA/Will transactions? are not
intended to apply to such bona fide/ genuine transactions...?
6.2 Quite clearly, the Supreme Court has not said that in no case a
conveyance can be registered by taking recourse to a GPA. As long as
the transaction is genuine, the same will have to be registered by the
Sub-Registrar. There is distinctly a specific reference to the fact
that, a person may enter into a development agreement with a land
developer or builder for development of a parcel of land or for
construction of apartments in a building, and for this purpose a power of
attorney empowering the developer to execute sale agreements, can be
executed.
7. Therefore, in my view, the directions contained in the impugned
circular dated 27.04.2012, are quite contrary to the observations made by
the Supreme Court in Suraj Lamp and Industries (P) Ltd. Accordingly, the
same W.P.(C) 4585/2012 Page 5 of
6
are set aside.
8. It will, however, be open to the respondents to examine the
genuineness of the transactions which are reflected in the document(s)
filed, at the time of registration of conveyance. In case the Sub-
Registrar comes to a conclusion that the transaction is not genuine, as
would be expected, he would call upon the persons/ entity presenting the
document(s) to explain their case and thereafter, if not convinced, pass a speaking order as to why the documents is/are not liable to be
registered.
9. The writ petition is disposed of in terms of the aforesaid
directions.
Dasti.
RAJIV SHAKDHER, J
APRIL 30, 2013
kk
W.P.(C) 4585/2012 Page 6 of 6
$ 2
R.K Nanda
(Expert) 05 May 2013
consult local lawyer with papers.
ajay sethi
(Expert) 05 May 2013
the judgement is clear . as per suraj lamp judgement power of attorny cn abe executed in favour of close family relatives . further SC has held that development agreement are not covered within perview of said judgement . HC merely reinforces said judgement . it further states that no speaking order has been passed by registrar . if registrar wants to reject registration it should give reasons for same . read para 8 of said judgement carefully
Raj Kumar Makkad
(Expert) 14 May 2013
The impugned judgment is in consonance with the judgment of supreme court so nothing is new.
