Case Law Details
Supreme Court in Suraj Lamp and Industries (P) Ltd. (2) vs State of Haryana reported 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.
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 are set aside.
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.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 4585/2012 and CM No. 9515/2012
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Reproduced comment (missing) is HERE >
On the first blush, the write-up one just now happen to stumble on, if read in isolation, to one’s understanding, instead of being of help in at all bringing about any clarity, merely rendered the already obtaining confusion, worse confounded.
Be that as it should, it is the concluding paragraph which appears to set out the finally conceded correct understanding of the SC verdict.
In case any of those legal cum property experts but truly competent were to entertain any doubt or reservation, should come out openly with a well reasoned opinion, for the benefit of the concerned public / the common good.
The wheel of confusion surrounding the SC verdict, despite it being loud and clear, it appears, has come a full round; Reproduce below, the comment posted elsewhere:
The referred write-up commented on is RIGHT HERE>
financialexpress.com/news/govt-uturn-gpa-okay-for-property-registration/1145275
Impromptu:
To one’s recollection, this is not-a-commonly-come-across instance; that is, only rarely, that a HC has been obliged to give its own reading and interpretation of certain ‘observations’ made in a SC judgment. In the nature of things, therefore, it can only be expected that the issue against the validity of the impugned circular, wholly or partly, would require be clarifying and finally ruling by the SC itself.
In the interim, however, going by one’s own individual understanding, the entire controversy, in substance (thought not brought out in so many words), that is begging for clarity, is cantered or revolves on the basic question as to whether, for stamp duty purpose, both (a) the chargeable rate, and (b) more importantly, the chargeable value, under an ‘agreement to sell’ have to be taken to be the same as those required to be taken under a ‘sale agreement’ (final conveyance).
For this purpose, the relevant portion of the observations of the SC, as cited by the HC itself, seems to provide a helpful clue; that reads, : “…In several States, the execution of such development agreement and powers of attorney are already regulated by law and subjected to specific stamp duty…” .
One’s reasonable and honourable guess/presumption is that, what the SC had in mind are those States which have, by an amendment of the Stamp Duty Act , made it a uniform rate. For instance, Karnataka has provided a uniform/ same rate both for ‘first instrument of conveyance’ (i.e. ‘agreement to sell’ ) and ‘conveyance’ (i.e. ‘sale deed”).
Nonetheless, the moot but finer point that has , so far as one could see, been left open un-clarified, presumably unwittingly – anyway has no readily available categorical answer, – is this: What is ‘the value’ to which the uniform rate , even if so has been prescribed, is required to be applied. In other words, the imponderable is, – could ‘the value’ CHARGEABLE also be taken to be the same both for ‘agreement to sell’ and ‘sale deed’?
Left to oneself, being guided by own logical and sound reasoning, the answer to the seemingly intriguing poser can be no difficult; but only an emphatic “NO”. Subject, of course, leaving it to the law experts (including those of the Government) at large; who are supposedly expected to examine in-depth and strive to come to a subjective and truly acceptable conclusion; more so, ideally, to share it, with concerned others, for further deliberation before, and to the end of, putting into statutory effect , so as to serving a common and altruistic purpose.
(Unedited; may be contd.)