The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK Laxminarayan Mahasuar W.P.(C) No. 29422 OF 2022 …. Petitioner Mr. Rama Prashan Dash, Advocate -versus- District Sub-Registrar, Puri and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No. 3. 1.
Decision
ORDER 18.01.2023 This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition prays for a direction to the District Sub-Registrar, Puri-Opposite Party No.1 to accept the stamp duty of Rs.1,000/- for registration of the power of attorney executed in favour of one, Bivab Developers Pvt. Ltd. (for short ‘the developers’). 3. Mr. Dash, learned counsel submits that the Petitioner is not in a position to develop the land himself. Hence, he executed a power of attorney in favour of the developers (not made party to the writ petition) to develop the land and to act as an attorney on his behalf. Amongst other, as per Clauses-5 and 6, the Petitioner has authorized the developers to do the following: Institutions/Banks “5. That the said attorney holder shall represent on my behalf before PKDA, Puri, Municipality Authorities, ORERA, Police and Government and semi Govt. Departments and Financial for advances/loans in connection with development and construction upon the said land stated in the schedule and shall prepare, execute, sign agreement and / or file all papers, plans, application/petitions for the said purpose and do all acts, deeds and things as may be necessary for the said purpose and in the same connection in my name and on my behalf. 6. To apply for and obtain quotas and to procure cement, steels, bricks and other building materials which Page 1 of 4 // 2 // may be required for development and construction of the said scheduled premises/land as out authorized representative and sign all papers for the said purpose in his own name as my constituent attorney and to represent my before all authorities for the said purpose in my name and on my behalf.” 4. It is his submission that since the Petitioner is neither delivering the possession of the property to the developers nor any consideration amount is paid to act as a power of attorney, the Petitioner is required to pay a stamp duty of Rs.1,000/- only as per Article 48 (f) of the Indian Stamp (Odisha Amendment) Act, 2021 (for short ‘the Act’). When the deed of power of attorney is presented before the District Sub-Registrar, Puri, it has levied a stamp duty of two percentum of the market value of the property, which is illegal and arbitrary. Hence, this writ petition has been filed seeking for aforesaid relief. 5. Mr. Mishra, learned Additional Standing Counsel referring to the counter affidavit filed by Opposite Party Nos.1 and 3 submits that Clause-f of Article 48 of the Act is not applicable to the case of the Petitioner. It is Clause (g) of Article 48 of the Act, is applicable, which is reads as under: “(g) When given to a promoter or developer by whatever name called, for construction or development of any immovable property situated the State of Odisha. in Two percentum of amount value of consideration or market such value property which is higher: of that Provided if proper stamp duty is paid on agreement development under clause (bb) of article- 5 executed between the same parties and in respect of same property then the Page 2 of 4 proper stamp duty under this clause shall be one thousand rupees.” 6. Hence, the Petitioner is required to pay the stamp duty of two per centum on the deed of power of attorney for its registration. Moreover, no deed of power of attorney is now available with the District Sub-Registrar, Puri for being registered. Hence, the writ petition is also premature. He, therefore, submits that contention of Mr. Dash, learned counsel for the Petitioner is not sustainable and the writ petition is liable to be dismissed. 7. Upon hearing learned counsel for the parties and on perusal of the Clause-5 of the power of attorney quoted (supra), it is apparent that amongst other, the principal (Petitioner) had authorized the developers to represent him before PKDA, Puri Municipality Authorities, ORERA, Police and Government and semi Govt. Departments and Financial Institutions/Banks for advances/loans in connection with development and construction upon the land more fully stated in the schedule of the said power of attorney. Clause-6 of the power of attorney authorizes the developers to apply for and obtain quotas and to procure cement, steels, bricks and other building materials, which may be required for development and construction over the said schedule premises/land. Thus, it is clear that the developer has been authorized for construction and development over the land, more fully, described in the schedule of deed of power of attorney itself. 8. Clause (f) of Article 48 of the Act reads as follows: Page 3 of 4 “(f) when given for consideration and authorizing the person other than the family members as Attorney any to immovable property situated in the State of Odisha. sell Two percentum of the amount of consideration or such market is property higher.” whichever value of 9. On a bare perusal of the provision, it is manifest that Clause (f) of Article 48 of the Act has no application to the case at hand. Clause (g) of Article-48 of the Act is applicable to the instant case as the Power of Attorney deed is executed in favour of the developer for construction and development and no development agreement has yet been executed between the parties. The Petitioner is liable to pay two per centum of the amount of value of consideration or market value of such property, which is higher, as stamp duty. Hence, the contention of Mr. Dash, learned counsel for the Petitioner to the effect that his case is covered under Clause (f) of the Article 48 of the Act is not sustainable. 9. As such, the writ petition being devoid of any merit stands dismissed with an observation that the if the Petitioner deposits the deed of power of attorney in original along with required stamp duty as per Clause (g) of Article 48 of the Act observing all the formalities, the District Sub-Registrar, Puri-Opposite Party No.1 shall do well to consider the same for registration in accordance with law. 10. As requested by Mr. Mishra, learned Additional Standing Counsel, a copy of this order be handed over to him for communication and compliance. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4