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2020 SCC OnLine Bom 1059 : (2021) 1 Bom CR 606
In the High Court of Bombay
(BEFORE B.P. COLABAWALLA, J.)
Goisu Realty Private Limited … Petitioner;
Versus
State of Maharashtra and Others … Respondents.
Writ Petition (L) No. 2880 of 2020
Decided on October 5, 2020
Advocates who appeared in this case:
Mr. V. Sridharan, Senior Counsel a/w Mr. Gopal Machiraju & Mr.
Sriram Sridharan, for the Petitioner.
Mr. Manish Upadhyay, AGP for the Respondents-State.
The Judgment of the Court was delivered by
B.P. COLABAWALLA, J.:— Rule. Respondents waive service. With the
consent of parties, rule made returnable forthwith and heard finally.
2. By this Writ Petition, the Petitioner seeks to challenge the order
dated 13th August, 2020 (for short the “impugned order”), passed by
Respondent No. 3 (Collector of Stamps, Andheri). The impugned order
th
has sought to stamp an instrument of Lease dated 9 June, 2020 (for
short the “said Lease Deed”), executed between the Petitioner and
the Mumbai Metropolitan Region Development Authority (for short
“MMRDA”) in the same manner as an instrument of conveyance. The
Lease was in respect of plot No. C-65, admeasuring 12,486 sq. mtrs.,
bearing CTS No. 4207/C/65, situated at Village Kolekalyan, Taluka
Andheri, Mumbai Suburban District (for short the “said property”)
owned by the MMRDA. This Lease was for a period of 80 years
commencing from 9th June, 2020. It is the contention of the Petitioner
that the impugned order is ex-facie and patently illegal and is a result
of complete non-application of mind and is, therefore, liable to be set
aside.
3. The Petitioner is a company incorporated under the Companies
Act, 2013 and is engaged in the business of real estate development.
Respondent No. 1 is the State of Maharashtra and Respondent No. 2 is
the Inspector General of Registration and Controller of Stamps and the
Chief Revenue Controlling Authority appointed under the Maharashtra
Stamp Act, 1958 (for short the “Stamp Act”). Respondent No. 3 is the
Collector of Stamps, Andheri, who has passed the impugned order and
Respondent No. 4 is the Joint Sub-Registrar, within whose jurisdiction
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the aforesaid Lease Deed dated 9th June, 2020 is required to be
registered under the provisions of the Registration Act, 1908.
4. The facts in the present case are really undisputed. The MMRDA is
the owner of the said property. On 8th March, 2019, MMRDA issued an
advertisement with the information that it proposes to invite bids, inter
alia, for transferring the said property by way of lease, as per the terms
and conditions stipulated in that regard. Pursuant to this
th
advertisement, an E-Tender dated 4 May, 2019 was floated by
MMRDA. The reserve price (i.e. the minimum price fixed by MMRDA),
was Rs. 3,44,448/- per sq. mtr. of built-up area, which aggregated to
Rs. 2238,91,20,000/-. On 6th June, 2019, the Petitioner submitted its
bid for taking on Lease the said property for an auction price equal to
the reserve price. The Petitioner was the sole bidder. The bid of the
th
Petitioner was scrutinised and the tender was concluded on 12 June,
th th
2019. Thereafter, the MMRDA, at its 148 meeting held on 8 July,
2019, by Resolution No. 1507, approved allotment of the said property
to the Petitioner on a leasehold basis, as per the terms and conditions
mentioned therein. The premium fixed by MMRDA for Lease of the said
property was equal to the reserve price of Rs. 2238,91,20,000/-. This
entire lease premium has admittedly been paid by the Petitioner to the
MMRDA on the dates, which are more particularly set out in the Lease
Deed.
th
5. On the execution of the Lease Deed, on 10 June, 2020, the
Petitioner paid an amount of Rs. 100,75,10,400/- towards the stamp
duty under Article 36(iv) read with Article 25(b) of Schedule I and
Section 2(na) of the Stamp Act. Thereafter, on 12th June, 2020 the
Petitioner filed Adjudication Case No. ADJ/1100900/224/2020 before
Respondent No. 3, under Section 31, for adjudication of stamp duty
payable on the Lease Deed. According to the Petitioner, it had paid the
correct amount of stamp duty and, therefore, requested that the Lease
Deed be appropriately endorsed under section 32 of the Stamp Act.
6. Though, the Stamp Authorities accepted the amount of Rs.
2238,91,20,000/- as the true market value of the said property, it
calculated the stamp duty at 5% of 100% of the market value of the
said property, instead of calculating it at 5% of 90% of the market
value as per Article 36(iv). In fact, this was put forth before the Stamp
Authorities by even filing written submissions on behalf of the
Petitioner. However, as stated earlier, the stamp authorities were of the
opinion that stamp duty ought to be paid at 5% of 100% of the market
value of the said property and not at 5% of 90% (of the market value of
the said property), and hence, proceeded to pass the impugned order
dated 13th August, 2020, under which, the Petitioner was asked to
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make an additional payment of stamp duty of Rs. 11,19,45,600/-. It is
this order that the Petitioner challenges in the present Writ Petition.
7. In this factual backdrop, Mr. Sridharan, the learned Senior
Counsel appearing on behalf of the Petitioner, submitted that there is
no dispute that the market value of the said property for the purposes
of the Stamp Act is Rs. 2238,91,20,000/-. He further submitted that
the entire consideration/lease premium has already been paid by the
Petitioner to MMRDA. This, according to Mr. Sridharan, is the largest
direct investment made in the State of Maharashtra. He further
submitted that there is no dispute that the rate of stamp duty is to be
calculated at 5%. He submitted that the only dispute in the present
case was whether the stamp duty of 5% ought to be calculated on the
basis of 90% of the market value or 100% of the market value of the
said property. According to Mr. Sridharan, the position in law is very
clear that the stamp duty of 5% (in the present case) has to be
calculated on the basis of 90% of the market value of the said property.
In support of this submission, he relied upon Article 36 (iv) of Schedule
I of the Stamp Act read with Article 25(b) thereof. Relying upon these
provisions, Mr. Sridharan submitted that there was no scope for the
stamp authorities to levy stamp duty at the rate of 5% on 100% of the
market value of the said property. Mr. Sridharan further submitted that
this issue is no longer res integra and is covered by the decision of this
Court (Nagpur Bench) in the case of Ambuja Cements Limited v. The
State of Maharashtra [Writ Petition No. 976 of 2015, decided on 4th
June, 2020]. Mr. Sridharan, therefore, submitted that the Writ Petition
be allowed and the impugned order be set aside.
8. On the other hand, Mr. Upadhyay, the learned AGP appearing on
behalf of the Respondents, submitted that a perusal of Explanation I
below Article 36(iv) clearly reveals that any consideration in the form of
premium or money advanced or to be advanced or security deposit, by
whatever name called, shall for the purpose of market value, be treated
as consideration passed on. Relying upon this Explanation, Mr.
Upadhyay submitted that if any consideration in the form of premium
or security deposit paid is higher than the market value, then the entire
amount of consideration agreed between the parties, needs to be taken
into consideration and has to be charged on that basis, namely, at
100%. He, therefore, submitted that the impugned order levying
additional stamp duty of Rs. 11,94,56,000/- is fully justified and
requires no interference by this Court under Article 226 of the
Constitution of India.
9. I have heard the learned counsel for the parties at length and I
have perused the papers and proceedings in the present Writ Petition
along with the affidavit in reply dated 3rd October, 2020 filed by
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Respondent No. 3. Article 25 deals with a conveyance and reads as
under:—
25. CONVEYANCE (not being a
transfer charged or exempted
under Article 59)-
On the [true market value] of
the property which is the
subject matter of the
Conveyance,-
(a) if relating to movable property 3 per cent of the market value of
the property;]
(b) if relating to immovable
property situated,-
(i) within the limits of any 5 per cent of the market value
Municipal Corporation or any of the property.
Cantonment area annexed to it
or any urban area not
mentioned in sub-clause (ii).
(ii) within the limits of any 5 per cent of the market value of
Municipal Council or Nagar the property.
Panchayat or Cantonment area
annexed to it, or any rural area
within the limits of the Mumbai
Metropolitan Region Development
Authority, or the Influence Areas
as per the annual statement of
rates published under the
Bombay Stamps (Determination
of True Market Value of Property)
Rules, 1995.
(iii) within the limits of any 4 per cent of the market value of
Grampanchayat area or any such the property.
area not mentioned in sub-clause
(ii)
(c) if relating to both movable The same duty as is payable
and immovable property. under clauses (a) and (b).
(da) if relating to the order of the 10 per cent of the aggregate of
High Court under section 394 of the market value of the shares
the Companies Act, 1956 or the issued or allotted in exchange or
order of the National Company otherwise and the amount of
Law Tribunal under sections 230 consideration paid for such
to 234 of the Companies Act, amalgamation:
2013 or confirmation issued by Provided that, the amount of
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the Central Government under duty, chargeable under this
sub-section (3) of section 233 of clause shall not exceed,-
the Companies Act, 2013 in (i) an amount equal to [5 per
respect of the amalgamation, cent] of the true market value of
merger, demerger, arrangement the immovable property located
or reconstruction of companies within the State of Maharashtra of
(including subsidiaries of parent the transferor company; or
company) or order of the Reserve (ii) an amount equal to 0.7 per
Bank of India under section 44A cent, of the aggregate of the
of the Banking Regulation Act, market value of the shares issued
1949 in respect of amalgamation or allotted in exchange or
or reconstruction of Banking otherwise and the amount of
Companies. consideration paid, for such
amalgamation, whichever is
higher:
Provided further that, in case of
reconstruction or demerger the
duty chargeable shall not exceed,
-
(i) an amount equal to [5 per
cent] of the true market value of
the immovable property located
within the State of Maharashtra
transferred by the Demerging
Company to the Resulting
Company; or
(ii) an amount equal to 0.7 per
centum of the aggregate of the
market value of the shares issued
or allotted to the Resulting
Company and the amount of
consideration paid for such
demerger, whichever is higher.
Exemption
Assignment of copyright under
the Copyright Act, 1957 (IXV of
1957)
[ [Explanation I.] - For the
purposes of this article, where in
the case of agreement to sell an
immovable property, the
possession of any immovable
property is transferred [or agreed
to be transferred] to the
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purchaser before the execution, or
at the time of execution, or after
the execution of, such agreement
then such agreement to sell shall
be deemed to be a conveyance
and stamp duty thereon shall be
leviable accordingly:
Provided that, the provisions of
section 32A shall apply mutatis
mutandis to such agreement
which is deemed to be a
conveyance as aforesaid, as they
apply to a conveyance under that
section : Provided further that,
where subsequently a conveyance
is executed in pursuance of such
agreement of sale, the stamp
duty, if any, already paid and
recovered on the agreement of
sale which is deemed to be a
conveyance, shall be adjusted
towards the total duty leviable on
the conveyance.]
[Provided also that where proper
stamp duty is paid on a
registered agreement to sell an
immovable property, treating it as
a deemed conveyance and
subsequently a conveyance deed
is executed without any
modification then such a
conveyance shall be treated as
other instrument under section 4
and the duty of one hundred
rupees shall be charged.]
[Explanation II * * *]
[Explanation III. - [(i)] For the
purposes of clause (da) the
market value of shares,-
(a) in relation to the transferee
company, whose shares are listed
and quoted for trading on a stock
exchange, means the market
value of shares as on the
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appointed day mentioned in the
Scheme of Amalgamation or when
appointed day is not so fixed, the
date of order of the High Court;
and
(b) in relation to the transferee
company, whose shares are not
listed/or listed but not quoted for
trading on a stock exchange,
means the market value of the
shares issued or allotted with
reference to the market value of
the shares of the transferor
company or as determined by the
Collector after giving the
transferee company an
opportunity of being heard.]
[(ii) For the purposes of clause
(da), the number of shares issued
or allotted in exchange or
otherwise shall mean, the number
of shares of the transferor
company accounted as per
exchange ratio as on appointed
date.]
10. As can be seen from Article 25(b), a conveyance (not being a
transfer, charged or exempted under Article 59), if relating to
immovable property situated within the limits of any Municipal
Corporation or any Cantonment area annexed to it or any urban area
not mentioned in sub-clause (ii), then stamp duty would be levied at
5% of the market value of the property.
11. Article 36 deals with a lease and reads as under:—
36. Lease, including under
lease or sub-lease and any
agreement to let or sub-let or
any renewal of lease,-
Where such leave purports to
be -
(i) for a period not exceeding five The same duty as is leviable on a
years. conveyance under clause (a), (b)
[or (c)], as the case may be, of
article 25, on 10 per centum of
the market value of the property.
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(ii) for a period exceeding five The same duty as is leviable on a
years but not exceeding ten conveyance under clause (a), (b)
years, with a renewal clause [or (c)], as the case may be, of
contingent or otherwise. article 25, on 25 per centum of
the market value of the property.
(iii) for a period exceeding ten The same duty as is leviable on
years but not exceeding twenty- the conveyance under clause (a),
nine years, with a renewal clause (b) [or (c)], as the case may be
contingent or otherwise. of article 25, on 50 per centum of
the market value of the property.
(iv) for a period exceeding The same duty as is leviable
twenty-nine years or in on a conveyance under clause
perpetuity, or does not (a), (b) or (c), as the case may
purport for any definite period, be, of article 25, on 90 per
or for lease for period centum of the market value of
exceeding twenty-nine years, the property.];
with a renewal clause
contingent or otherwise.
Explanation I. - Any
consideration in the form of
premium or money advanced
or to be advanced or security
deposit by whatever name
called shall, for the purpose of
market value be treated as
consideration passed on.
Explanation II. - The renewal
period, if specifically mentioned,
shall be treated as part of the
present lease.
Explanation III. - For the purpose
of this article, the market value,
for the instruments falling under
section 2(n)(iii) (Toll
Agreements) and article 5(g-e)
(Hire Purchase agreement), shall
be the total contract value and
they shall be chargeable to duty
same as under clause (a) of
article 25.
12. As can be seen from this provision, a lease, including an under
lease or sub-lease and any agreement to let or sub-let or any renewal
of lease, where such lease purports to be for different periods, then
accordingly stamp duty is calculated as if it is a conveyance under
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clauses (a), (b) or (c), as the case may be, of Article 25. In the present
case, considering that the lease is for a period of 80 years, the same
would be governed by Article 36(iv), which clearly stipulates that if a
lease is for a period exceeding 29 years or in perpetuity, or does not
purport to be for any definite period, or for lease for a period exceeding
29 years, with a renewal clause contingent or otherwise, then the duty
leviable would be the same duty as is leviable on a conveyance under
Clauses (a), (b) or (c), as the case may be, of Article 25, on 90 per
centum of the market value of the property. A plain reading of Article
36(iv) read with Article 25(b) would clearly show that the stamp duty
that would be payable by the Petitioner in the present case, would be
5% of 90% of the market value of the said property. This is absolutely
clear from the unambiguous language of Article 25(b) read with Article
36(iv). I, therefore, find that Mr. Sridharan is correct in his submission
when he submits that the stamp authorities have proceeded on a
completely wrong premise to charge stamp duty on 100% of the
market value which is clearly contrary to the statute. I must mention
that the reliance placed by the statutory authorities on Explanation I
below Article 36(iv) is wholly misconceived. Explanation I below Article
36(iv) stipulates that any consideration in the form of premium or
money advanced or to be advanced, or security deposit, by whatever
name called shall, for the purpose of market value, be treated as
consideration passed on. In other words, the premium, that is
mentioned in a lease deed or a security deposit mentioned in a lease
deed will be treated as a consideration for the purposes of market
value. This does not derogate from the fact that in a lease exceeding 29
years, the stamp duty leviable thereon would be as if it is a conveyance
under Clauses (a), (b) or (c), as the case may be, of Article 25, on 90
per centum of the market value of the said property. Once Explanation
I is read in this context, then the reliance placed by the Respondents
on the said Explanation is wholly misconceived.
13. Strangely, in the impugned order, Respondent No. 3 comes to
the conclusion that in the present case, as the property is owned by
MMRDA, the market value of the said property cannot be decided and,
therefore, as mentioned in the impugned order, the amount of Rs.
111,94,56,000/- becomes due towards stamp duty which is calculated
at the rate of 5% on the total amount of premium of Rs.
2238,91,20,000/- (100% of the market value) and thereafter proceeds
to levy additional stamp duty of Rs. 11,19,45,600/-. I find this
approach and reasoning of the stamp authorities to be wholly contrary
to law. It seeks to make a distinction between a property owned by the
Government or its instrumentality (in the present case ‘MMRDA’) on the
one hand and a private property on the other. In law, there is no such
distinction carved out. Thereafter, the logic sought to be used in the
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impugned order is that since the premium paid is higher than the
market value of the said property as per the ready reckoner, stamp
duty ought to be levied on the full amount, i.e. 100% and not at 90%
as contemplated under Article 36(iv). When I inquired from Mr.
Upadhyay to point out any provision in law, which would permit the
stamp authorities to make these distinctions, he was unable to do so. I
am, therefore, clearly of the view that the order passed by Respondent
No. 3 is wholly perverse and contrary to the unambiguous and clear
language of Article 36(iv) read with Article 25(b) of the Stamp Act.
14. I must mention that this issue is no longer res integra and has
been considered by another learned single Judge of this Court (sitting
at the Nagpur Bench) in the case of of Ambuja Cements Limited v. The
State of Maharashtra [Writ Petition No. 976 of 2015, decided on 4th
June, 2020]. Though, in the facts of that case, the renewal of lease
agreement was for 20 years and, therefore, the same would be covered
by Article 36(iii), the ratio of this decision is squarely applicable to the
facts of the present case and would not only bind me but also the
Respondents herein. The relevant portions of this decision read as
under:—
“19. Admittedly in the instant case the renewal lease agreement
is of 20 years and therefore the same would be covered by Article 36
(iii) of the BSA. Indeed the Chief Controlling Revenue Authority/R-4,
in the impugned judgment has held so, and this position is not
disputed by anyone. What is disputed by the petitioner and taken
exception to is the finding rendered by the respondent no. 4, that
the stamp duty is required to be paid on the entire consideration and
not on 50% of the market value and so also the mode and manner of
calculating the market value and not applying Sec.27 of the BSA to
the renewal lease.
20. In so far as the reason for not following the mandate of Article
36(iii) of the BSA for levying the duty on 50% of the market value is
concerned, the reasonings thereof, are found in paras 5.1 to 5.6 of
the impugned judgment. A perusal of the same clearly demonstrates
that the only reason for holding that the stamp duty is payable on
the entire market value so calculated by the Revenue, as stated in
para 5.6 is as under:
“5.6 Non-Applicant's contention is that as per Article 25 read
with 36 stamp duty is chargeable only on the 50% of market
value of property as the lease period is 20 years.
The same is not accepted for the main reason that the article
36 provides for the percentage of market value to be taken for
calculation depending on period of lease. In the present case,
Government Department being party executing document, has
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determined amount of premium; therefore it does not warrant
determination of market value in routine as required otherwise.
Thus, the amount predetermined by parties being one of
Government Department, the same is taken as market value and
the said value as a whole needed to be considered.
Therefore, aforesaid contention of Non-Applicant is not
accepted as the amount for levy of stamp duty has to be taken at
full value of premium as it is the actual amount being paid. The
50% rule can be applied if the market value of property is
calculated.”
21. The entire reasoning is as lopsided as it can be. On the one
hand the respondent no. 4 says that the market value is not
calculated and therefore the 50% rule cannot be applied and on the
other says that the stamp duty is to be levied on the full market
value. That apart, there does not appear to be any distinction in
Article 36 BSA in respect of a lease or its renewal being executed by
a Government Department and one executed by a private party, so
as to enable the respondent no. 4, to deviate from the rule of
charging stamp duty on 50% of the market value. No discretion of
whatsoever nature is vested in the Stamp Officer or its appellate
Authority in not applying the dictum of Article 36(iii) BSA for
determining the stamp duty upon the instrument, that too, on any
so called basis of one executed by the Government and one executed
by a private party. The language of Article 36 BSA does not permit
such power or leeway in the Stamp Officer or his appellate authority.
Thus once the nature of the Instrument is clear, and it is held that
the Instrument falls within a particular Article, no discretion is
vested in the Authorities to vary or change the manner of calculating
the stamp duty as is enumerated in the Second Column against the
relevant Article. The second Column of Article 36(iii) of the BSA does
not depend in what mode or manner the market value is to be
calculated. It simply speaks that the proper stamp duty leviable
would be 50% on the market value and nothing else. Thus the
respondent no. 4, clearly erred in law in not applying the mandate of
the second column of Article 36(iii) of the BSA on the basis that the
document was one executed by the Government and the impugned
judgment is not sustainable on this count alone.”
15. As can be seen from the ratio of this decision, the controversy
raised in the present Petition is squarely covered by the decision of this
Court in the case of Ambuja Cements Limited (supra). I, therefore, find
that the impugned order is wholly unsustainable.
16. I must mention that though in the affidavit in reply the
Respondents have raised the plea of an alternate remedy, namely, that
the Petitioner has an alternate remedy to file an appeal under Section
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32 of the Stamp Act, the same has expressly not been pressed by the
learned AGP. I am therefore not dealing with the issue of alternate
remedy in any detail, especially considering that there is already a
judgment of our Court [in the case of Ambuja Cements Limited
(supra)] that covers the issue raised in this petition and which would
be binding on the stamp authorities.
17. In view of the foregoing discussion, rule is made absolute and
the impugned order dated 13th August, 2020 passed by Respondent
No. 3 is quashed and set aside. Considering that the impugned order is
now set aside and the stamp duty of Rs. 100,75,10,400/- [calculated at
5% on 90% of the market value (Rs. 2238,91,20,000/-)] has already
been paid, respondent No. 4 is directed to admit registration of the
th
Lease Deed dated 9 June, 2020, executed between MMRDA and the
Petitioner, if it is otherwise found in order.
18. The Writ Petition is disposed of in the aforesaid terms. In the
facts and circumstances of the case, there shall be no order as to costs.
19. This judgment shall be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned shall act on
production by fax or e-mail of a digitally signed copy of this judgment.
———
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