Adarsh Sahkari Grih Nirman Swawlambi Society Ltd. having its office at 6S 3rd Phase v. 1.The State of Jharkhand 2.Principal Secretary, Department of Registration, Govt. of J
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 553 of 2022 Adarsh Sahkari Grih Nirman Swawlambi Society Ltd. having its office at 6S 3rd Phase, Adarsh Nagar, Sonari North, PO & PS Sonari, Jamshedpur, District East Singhbhum represented through its Chief Executive, namely, Yog Nandan Yadav, aged about 80 years, son of late R.P. Yadav, resident of H.No. 12, 1st Phase, Adarsh Nagar, PO and PS Sonari, Jamshedpur, District ......Appellant East Singbhum (Pin-831011) Versus 1.The State of Jharkhand 2.Principal Secretary, Department of Registration, Govt. of Jharkhand having office at Project Building, PO & PS Dhurwa, District Ranchi (Pin-834004) 3.Inspector General, Registration, Department of Registration having office at Project Building, PO&PS Dhurwa, District Ranchi (Pin-834004) 4.Registrar, Cooperative Societies, having office at Pashupalan Bhawan, 3rd and 4th Floor, Khunti Road, Hesag, PO & PS Hatia, District Ranchi (Pin-834003) 5.Assistant Registrar, Jamshedpur Circle, Jamshedpur, PO&PS Jamshedpur, District East Singbhum --------------- ... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the State : Mr. Atanu Banerjee, Advocate Ms. Sugandha Khalkho, Advocate : Mr. Anish Kumar Mishra, AC to Sr. SC-I ---------------
Decision
O R D E R 02nd August 2023 I.A. No. 6799 of 2023 This application has been filed under section 5 of the Limitation Act for condoning the delay of 107 days in filing the present Letters Patent Appeal. 2. Having been satisfied of the cause shown by the appellant, the delay of 107 days in filing LPA No. 553 of 2022 is condoned. 3. 4. I.A. No. 6799 of 2023 is allowed. LPA No. 553 of 2022 Adarsh Sahkari Grih Nirman Swawlambi Society Ltd. (in short, Society) is aggrieved by the order dated 11th July 2022 passed in WP(C) 2 LPA No. 553 of 2022 No. 2623 of 2009. 5. By the aforesaid order dated 11th July 2022 the challenge laid by the Society to the instructions contained in Memo No. 494 dated 20th February 2009 has failed. 6. The order dated 11th July 2022 passed in WP(C) No. 2623 of 2009 reads as under : “.............. Mr. Mrinal Kanti Roy, learned counsel has submitted, that unnecessarily the role of Assistant Registrar, Co-operative Society has been made during registration of the property of a co-operative society. Ms. Priyanka Bobby, learned AC to G.A.-I for the State has opposed the prayer and submitted, that respondent nos.3 and 4 have filed counter-affidavit. The reason for passing the impugned order has been explained in Para-8 of the counter-affidavit dated 11.02.2014 on behalf of Respondent No.3, which may profitably be quoted hereunder :- “8.That it is humbly stated and submitted that without the recommendation of Assistant Registrar Corporation/Co-operative Societies, the exemption of Stamps duty under section 9A of Stamp Act and registration fees under section 9A of Stamp act on the registration of deeds relating to the Cooperative Society was not to be allowed. The petitioner's plea is that by this letter a new tier has been created which shall unnecessary create hurdle in the way of registration of document and breed corruption.” Ms. Priyanka Bobby, learned AC to G.A.-I has thus, submitted that the impugned order may not be interferred by this Hon’ble Court. Considering the rival submissions of the parties and looking into the facts and circumstances of the case, it appears that such recommendation is necessary in view of the Stamp Act, particularly under Section 9-A of the Stamp Act, as such, this Court is not inclined to interfere with the same, Accordingly, the instant Writ Petition stands dismissed” 7. Memo No. 494 dated 20th February 2009 issued by the Principal Secretary, Department of Registration containing the impugned instructions is extracted below: lafpdk la[;k 1@fu0fo0 1079@08----------------------A >kj[k.M ljdkj fuca/ku foHkkxA izs"kd] lsok esa] Jh lq/khj izlkn] iz/kku lfpo] fuca/ku foHkkx] >kj[k.M] jkaphA lHkh ftyk voj fuca/kd] lHkh voj fuca/kd fo"k; %& lg;ksx lfefr;ksa ds }kjk fuca/ku gsrq izLrqr foys[k esa eqnzkad ,oa fuca/ku jkaph] fnukad----------------------- 2009 3 LPA No. 553 of 2022 'kqYd esa ifjgkj ds fy, fn'kk funsZ'k fn;s tkus ds laca/k esaA egk'k;] mi;qZDr fo"k; ds laca/k esa dguk gS fd Hkkjrh; eqnzkad vf/kfu;e dh /kkjk 9A ds v/khu fucaf/kr lg;ksx lfefr;ksa }kjk Hkw ,oa lEifÙk;ksa ds gLrkarj.k ds fy, fuca/ku gsrq izLrqr foys[k esa eqnzkad ,oa fuca/ku 'kqYd esa iw.kZ ifjgkj izkIr gSA bldk vuqfpr ykHk u mBk;k tk lds blfy, vfuok;Z gksxk fd vki lqfuf'pr dj ysa fd& lgdkjh lfefr;ksa ds fuca/ku ds ekeysa esa NwV ¼ifjgkj½ rHkh ns; gksxk 1- tc ;g ekeyk lgk;d fuca/kd] lg;ksx lfefr ds }kjk vuq'kaflr gksA 2- djsaxsA bl rjg dh vuq'kalk ds vHkko esa NwV ¼ifjgkj½ ns; ugha gksxkA fuca/kudÙkkZ bl rjg dh vuq'kalk izkIr dj ftyk voj fuca/kd dks izLrqr d`i;k bls vR;ko';d le>k tk;A fo'oklHkktu g0@& iz/kku lfpo fuca/ku foHkkx] >kj[k.M] jk¡phA Kkikad& izfrfyfi& lHkh lgk;d fuca/kd] lg;ksx lfefr;k¡] >kj[k.M dks lwpukFkZ ,oa vko';d dk;kZFkZ izsf"krA fnukad&---------------------- Kkikad&494 izfrfyfi % lHkh mik;qDr] >kj[k.M dks lwpukFkZ ,oa vko';d dk;kZFkZ izsf"krA fnukad&20-02-2009 g0@& fuca/ku foHkkx] >kj[k.M] jk¡phA g0@& fuca/ku egkfujh{kd] fuca/ku foHkkx] >kj[k.M] jk¡phA English translation File No. 1/Ni.Vi. 1079/08 …………../ Government of Jharkhand Department of Registration From, To, Sri Sudhir Prasad, Principal Secretary, Department of Registration, Jharkhand, Ranchi. All the District Sub-Registrar, All Sub-Registrar. Ranchi, Dated ………… 2009 Sub:- Regarding issuing guidelines for exemption of stamp duty and registration fee in respect of the deed produced for registration by the Co-operative Societies. Sir, I am to say in connection with above noted subject that there is full exemption in stamp duty and registration fee u/s 9A of Indian Stamp Act in respect of deed produced by the registered Co-operative Societies for registration of transfer of land and properties. In order to prevent its undue advantage, it shall be essential to ensure that - In case of registration of the Co-operative Societies, the exemption 1. shall be admissible when such case is recommended by the Assistant Registrar, Co-operative Society. 2. After receiving such recommendation, the person seeking registration shall produce it before the District Sub-Registrar. The exemption shall not be admissible in absence of such recommendation. It should be treated as most urgent. Yours faithfully 4 LPA No. 553 of 2022 Sd/- Dated ………………… Principal Secretary Department of Registration, Jharkhand, Ranchi Memo No. …….. Copy:-All Assistant Registrar, Co-operative Societies, Jharkhand for information and necessary action. Sd/- Inspector General of Registration Department of Registration, Jharkhand, Ranchi Memo No. 494 Copy:-All Deputy Commissioners, Jharkhand for information and necessary action. Sd/- Inspector General of Registration Department of Registration, Jharkhand, Ranchi Dated 20.02.2009 8. Mr. Anish Kumar Mishra, the learned AC to Sr. SC-I states that the instructions issued by the Principal Secretary, Department of Registration in Memo No. 494, Cooperative Societies are intended to eliminate the cases of undeserving claims for the benefit of exemption from registration fee under the Indian Stamp Act. 9. The Society has pleaded that it is entitled for exemption by virtue of the proviso to section 9-A inserted by the Bihar (Amendment) Act, 1988 in the Indian Stamp Act, 1899 and therefore the sale deed in its favour for acquiring the landed property is required to be registered without registration fee. 10. Section 9-A inserted by the Bihar (Amendment) Act, 1988 reads as under: “9-A. Notwithstanding anything contained in any rule or orders under clause (a) of section 9 reducing or remitting the duty on an instrument or class of instruments inforce immediately before the date of commencement of this section, any instrument, so far as it relates to premises of a Co-operative Society registered or deemed to be registered under any law relating to the Co- operative Society for the time being in force, executed by or on behalf of or in favour of such society or by an officer or member in favour of another and relating to business of such society shall be chargeable with duty under this section read with articles indicated in Schedule 1-A.” Provided that an instrument relating to mortgage of property by a Housing Co-operative or a member thereof to be registered in favour of the Bihar State Housing Co-operative Federation Limited or the Bihar State Rural Housing Co-operative Federation Ltd. or any financing institution for the loan to be taken from the said Federation or institution shall not be chargeable with duty: Provided further that an instrument relating to tranfer of premises by a Co-operative Society to be registered in favour of its members shall not be chargeable with duty: 5 LPA No. 553 of 2022 Provided also that an instrument to be registered by the Bihar State Housing Co-operative Federation Ltd. or the Bihar State Rural Housing Co-operative Federation Ltd. for the loan to be taken by it from a financing institution including the Life Insurance Corporation of India and a Commercial Bank shall not be chargeable with duty: Provided further also that an instrument to be registered in favour of a registered Co-operative Society by any of its members or by another registered Co-operative Society or any of its members for loan upto Rs. 50,000/- (Rupees fifty thousand) to be taken for any purpose other than purchase of land shall not be chargeable with duty. Explanation – For the purpose of this section, the word 'premises' means any land or building or part of a building including any flat, apartment, tenement, shop or warehouse therein and includes, (i) gardens, grounds and out houses, if any, appertaining to such building or part of a building, and (ii) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof.” 11. The main contention raised on behalf of the Society is that the instructions contained in Memo. 494 dated 20th February 2009 would impinge upon the powers of the Registering Authority under the Registration Act, 1908 which is a Central legislation and therefore by issuing an executive instruction the Department of Registration, Government of Jharkhand cannot put an additional condition for registration of a Cooperative Society. 12. Under section 34 of the Registration Act, 1908, the Registering Authority has limited powers to make enquiries as to the persons executing the deed or their representatives, assignee, or agents. Under this provision, the Registering Authority shall also make enquiries as to whether or not instrument/deed is properly stamped and verified. Now whether a Cooperative Society has been validly registered under the Societies Registration Act and it satisfies the conditions for exemption under section 9-A inserted by the Bihar (Amendment) Act, 1988 are the matters with respect to which an enquiry by the Registering Authority is not contemplated under the Registration Act, 1908. The instruction dated 20th February 2009 issued to the Assistant Registrar of the Cooperative Societies is intended to simplify the process and is, in fact, in the benefit of the Cooperative Societies. 13. Therefore, the submission raised on behalf of the appellant that the instructions dated 20th February 2009 is an additional restriction imposed 6 LPA No. 553 of 2022 on the powers of the Registering Authority cannot be accepted. 14. Having regard to the aforesaid discussion, we do not find any merit in this Letters Patent Appeal and, accordingly, LPA No. 553 of 2022 is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 2nd August 2023 Tanuj/N.A.F.R