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TMI Blog2009 (4) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... by transfer memorandum. 2) Construction of buildings on such leasehold lands had to be made within a stipulated period from the date of allotment failing which the leases of the respective Co-operative housing societies were liable to be resumed by the Noida authorities. 3. The lease deeds also contained another clause, which stipulated that such lease deeds must be compulsorily registered with the sub-Registrar. It may be clarified that Noida is the lessor, the co-operative societies are the lessees, members of the cooperative societies are sub-lessees and the present appellants are the assignees. 4. The appellant is the Resident Welfare Association, Noida, (hereinafter called the "Association"). The members of the association executed various agreements for transfer of leasehold rights with the co-operative societies and its members from 1988 onwards. Each of the agreements for transfer of leasehold rights entered into by the members of the association with the lessees and the sub-lessees were registered with the Office of the Sub-Registrar, Noida. It may be kept on record that from 1984 to June 1997, Noida authorities were injuncted by the Civil Court from issuing transfer m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was required to be filed with the Noida authorities within a period of 60 days failing which, the Noida authorities would be entitled to cancel such transfer and impose a penalty for revalidation of the transfer memorandum. It is at this stage appropriate that condition no. 4 of the transfer memorandum may be produced for the proper understanding of the dispute in this case: "The transferee will submit a certified copy of transfer deed to be duly registered with Office of the Sub-Registrar, Noida within 60 days from the date of issue of this memorandum. This transfer deed is required to be signed by the person who has signed the transfer application. The transferee of the transfer deed executed by power of attorney holder of the transferor after 30th September 1997 shall be liable to pay additional transfer charges as per policy of the Authority. If the transferor/transferee fails to execute and register the transfer deed within 60 days from the date of this memorandum then this transfer memorandum shall be required to be revalidated subject to payment of penalty at transferring rate applicable from time to time (present pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstructions were made after the possession was delivered to the members of the association, stamp duty could not be levied on the buildings so constructed, as they were not the subject matter of transfer between the sub-lessees and assignees. 4) Market value of the lands could not be calculated on the date of agreement to sell but the same can be calculated on the date of execution of the conveyance deed. 9. Based on the aforesaid findings, the Division Bench of the High Court rejected the Writ application of the appellant. 10. Feeling aggrieved by the judgment of the Division Bench of the High Court, the association had filed this special leave petition, which on grant of leave was heard in the presence of the learned counsel for the parties. 11. We have heard the learned counsel appearing for the parties and have carefully examined the materials on record. Having done that the pivotal questions that need to be decided in this appeal, as were decided by the High Court are as follows: 1) Whether the condition precedent to pass an order under section 47 A of the Stamp Act, as amended by the State of Utta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in accordance with the said rules and return the instrument for presenting again in accordance with section 23 of the Registration Act, 1908. (b) When the deficit stamp duty required to be paid under clause (a), is paid in respect of any instrument and the instrument is presented again for registration, the registering officer shall certify by endorsement thereon, that the deficit stamp duty has been paid in respect thereon and the name and the residence of the person paying them and register the same. (c) Notwithstanding anything contained in any provision of the Act, the deficit stamp duty may be paid under clause (a) in form of impressed stamp containing such declarations as may be prescribed. (d) If any person does not make the payment of deficit stamp duty after receiving the order referred to in clause (a) and present the instrument again for registration, the registering officer shall, before registering the instrument, refer the same to the Collector for determination of the market value of such property and the proper duty payable thereon. (2) On receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector shall also require along with the deficit stamp duty or penalty required to be paid under clause (ii) of sub section (4), the payment of a simple interest as a rate of one and a half per mensum on the amount of deficit stamp duty calculated from the date of execution of the instrument till the date of actual payment. (4B) The amount of interest payable under sub section (4A) shall be added to the amount due and also deemed for all purposes for the amount required to be paid. (4C) Where the realization of the deficit stamp duty remains stayed by any order of any court or any authority and such order is subsequently vacated, the interest referred to in sub section (4A) shall be payable also for the period during which the order or stay remained in operation. (4D) Any amount paid or deposited by, or recovered from, or refundable to, a person under the provision of this Act, shall first be adjusted towards the deficit stamp duty or penalty outstanding against him, and the excess, if any shall then be adjusted towards the interest, if any, due from him & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the registering authority finds that the market value of the property presented for registration is higher than the one shown in the document, in that case, the registering authority after presentation of such instrument and before accepting the document for registration would ask the person liable to pay the required stamp duty, to pay the deficit amount as computed on the basis of the minimum value determined in accordance with the rules and return the instrument for presenting the document again in accordance with Section 23 of the Registration Act. Again a close look at Sub-Section (2) of Section 47 A reveals that in case such an officer has reason to believe that the market value of the property has been under valued, he shall refer the same to the Collector but only after registering the same. Even for the sake of argument, if we assume that Section 47 A is applicable in the present case, then also it is apparent that in the current scenario, the registering authority could not register the said instrument before referring it to the Collector which has been mandated under the Act. For the further illustration of this point, we may refer to the decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering this, it becomes essential for us to determine the nature of the deed. 16. "Sale" has been defined under section 54 of the Transfer of Property Act. Although the Indian Stamp Act 1899 has not included the definition of "sale", Section 2, sub-section (10) of the Act defines "conveyance" as including a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred intervivos and which is not otherwise specifically provided for by Schedule 1-A or Schedule 1-B, as the case may be. "Lease" has been defined under section 105 of the Transfer of Property Act and also in section 2 sub-section (16) of the Indian Stamp Act 1899. According to section 2 sub section (16) of the Indian Stamp Act, "Lease" means a lease of immovable property and includes a Patta, a kabuliyat or any instrument by which tolls of any description are let, any writing on an application for lease intended to signify that the application is granted and finally any instrument by which mining lease is granted in respect of minor minerals as defined in clause (e) of section 3 of the Mines and Minerals (Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said. The rent to be demanded was again not stipulated as consideration for the grant of the right to enjoy the land but expressly in consideration of granting freedom from liability to pay assessment." [Emphasis supplied] 19. The High Court in the present case decided that the document given for registration contained a composite deed of lease as well as a deed of sale. Therefore, both Article 63 as well as Article 23 of the said Act would apply. We cannot agree with these observations of the Division Bench of the High Court. As mentioned earlier, the said document consists of a single deed of assignment of lease. The Division Bench construed the transfer of the land as an assignment of lease whereas the transfer of the building appurtenant thereto to be through a deed of sale. It appears to us that the High Court has clearly not interpreted the true essence of the lease deed executed between the lessor and the lessees. The learned counsel appearing on behalf of the appellant has brought to our notice that the said lease deeds categorically provided that not only the land but the appurtenants attached thereto are also governed by its covenants as per para "k" of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises shall be re-allotted and the lessee/ sub lessee may be paid such amounts as may works out in accordance......." 20. Therefore, the only question which comes to our mind is that if the lessee or the sub lessee has an absolute right over the constructions constructed by him and he can transfer it by an out right sale and not through an assignment of lease as contended by the Noida Authorities, the lease deed would not have provided for such a clause wherein the Noida authorities have a right over the buildings and the appurtenants on the land in case of any failure of the sub-lessee to remove such constructions at the time of re-entry. Thus the said lease deed specifically provides for a right of reversion to the land and appurtenances thereto including buildings, on the termination or expiry of the lease. It is thus clear that the buildings and all other appurtenants attached to the land become a part of the assigned transfer through lease and not a separate sale. 21. Moreover section 3 of the Transfer of Property Act states that when an immovable property such as land is transferred by way of assignment of lease, all appurtenances thereto attached to the earth such as bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Article 63 that it would apply in case of a transfer of lease by way of an assignment and Article 23 applies in case of a conveyance by way of sale. Article 63 in clear terms mentions that in case of an assignment, the duty that would be payable is the same duty as conveyance for a consideration equal to the amount of the consideration for the transfer. Thus it is clear that the duty is not calculated on the market value but on the amount of consideration mentioned in the deed itself. It is expedient to have a look at the Stamp Acts as applicable to the State of Tamil Nadu and Union Territory of Pondicherry for elaborating our point made above. From the Stamp Act of Tamil Nadu and Pondicherry, we find that Article 63 as applicable to the same provides that in case of assignment by way of lease, the duty that would be payable is the duty as a conveyance for a market value equal to the amount of the consideration for the transfer. Therefore, it is clear that in these areas, a clear intention has been expressed that duty should be payable for a market value equal to the amount of the consideration for the transfer whereas if we refer Article 63 as applicable to the State of UP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if Section 47 A of the Act would have applied, the registering officer would have no jurisdiction to refer it to the Collector since there was never any intention on the part of the appellant to undervalue the property. 27. Having decided the aforesaid questions raised in this case, we now proceed to deal with the question as to the date of determination of the consideration mentioned in the document. The respondents contended that the consideration mentioned should be the market value of the property on the date of execution of the deed and not on the date when the agreement to sell the land was executed. The appellants on the contrary argued that the relevant date in order to calculate the consideration would be the market value on the date when the agreement to transfer the land was entered and registered. We have heard the argument of the parties and referred to various cases dealing with this matter. In this regard, we would like to observe that there cannot be a straightjacket formula devised for determining the same. It would depend on the various facts and circumstances of a particular case. In situations where the delay is caused on the part of a party intentionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered earlier due to no fault of the members of the associations and when their consideration was frozen earlier. Concerns can be raised that since Article 63 of the Act deals with stamp duty to be levied on the consideration set forth in an assignment by way of transfer of lease, and not on the market value of the property to be transferred, it can be misused and remedy would not be available under Section 47 A to determine the market value of the property. This has to be taken care of by the concerned Legislature and incorporate suitable safeguards to prevent such misuse. For this purpose, reference can again be made to the Stamp Acts of the State of Tamil Nadu and Union Territory of Pondicherry as applicable to these areas where it has been specifically mentioned in Article 63 that in case of an assignment by way of transfer of a lease, the duty which would be payable is the same duty as a conveyance for a market value equal to the amount of the consideration for the transfer. Thus it is clear that there is an express intention on the part of the legislature in these areas to charge the stamp duty on lease deeds according to the prevalent market value unlike the Stamp Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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