Trinath Maharana v. State and others), which was communicated to the
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 36331 of 2022 Trinath Maharana …. Petitioner Miss Deepali Mahapatra, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel Mr. Dayananda Mohapatra, Advocate (for Bhubaneswar Development Authority) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 08.02.2023 2. 1. This matter is taken up through Hybrid mode. 2. Petitioner in this writ petition seeks to assail the order dated 15th November, 2022 (Annexure-4) passed by Inspector General of Registration, Odisha, Cuttack-Opposite Party No.3 in compliance of the direction of this Court in W.P.(C) No.12994 of 2022 (Trinath Maharana Vs. State and others), which was communicated to the Petitioner vide letter No.4206 dated 16th November, 2022. 3. Grievance of the Petitioner in this writ petition is with regard to refund of excess stamp duty collected by Opposite Parties, more particularly Sub-Registrar, Khandagiri-Opposite Party No.4, while registering the lease-cum-sale deed executed by the Bhubaneswar Development Authority (BDA) in favour of the Petitioner in respect of the land and core house, i.e., MIG-78 at Pokhariput, Phase-I, BDA Colony, under Bhubaneswar tahasil. 4. Miss Mohapatra, learned counsel for the Petitioner submits that pursuant to an advertisement published by the Page 1 of 7 // 2 // BDA, Petitioner applied for lease of the aforesaid Core house at MIG-78 along with appertaining area. On deposit of consideration money amounting Rs.4.00 lakh, the lease deed was executed. The document was registered on 24th February, 2020 before Opposite Party No.4. At the time of registration, the registering authority assessed the stamp duty as per the cost of the land, i.e., Rs.48,96,766.00 taking into consideration the benchmark value prevailing on the date of registration. Accordingly, the Petitioner deposited stamp duty of Rs.97,936/-. It is the case of the Petitioner that since the cost of the land was Rs.4 (four) lakh, as reflected in the lease deed, stamp duty of Rs.8,000/- was to be levied for registration of the lease-cum-sale deed. It is her submission that only after payment of full consideration amount of Rs.4.00 lakh, the possession of the property was handed over to the Petitioner. Thereafter, the Petitioner by investing money completed the construction and is residing therein. 4.1 Relying upon the ratio in the case of Santosh Kumar Nanda Vs. the Odisha State Housing Board represented through its Secretary and others (W.A. No.241 of 2019 decided on 21st October, 2019), Miss Mahapatra, learned counsel submits that the Petitioner is liable to pay stamp duty as per the cost of the land shown in the instrument in view of Rule-2 (f) (ii) of the Odisha Stamp Rules, 1952 (for short, ‘the Stamp Rules’). She also refers to the conclusion arrived at in the said Writ Appeal, wherein the Hon’ble Division Bench of this Court held as under:- “14. In view of the discussions made hereinabove and the settled position of law, we set aside the impugned order passed by the learned Single Judge Page 2 of 7 // 3 // and direct the respondents to execute the Sale Deed as per the valuation reflected in the Draft Lease-cum-Sale Deed, as expeditiously as possible, on production of certified copy of this judgment. The Writ Appeal is accordingly allowed.” 4.2 Taking into consideration the ratio decided in the case of Santosh Kumar Nanda (supra) and discussing the matter in
Legal Reasoning
detail, this Court in W.P.(C) No.8942 of 2021 (Smt. Amita Rout Vs. Odisha State Housing Board and others disposed of on 31st March, 20210) directed as under:- “It is keeping all the above in view, this Court finds the stamp duty involving the registration of instrument based on lease-cum-sale deed entered into between (sic) the parties at a particular rate and particular time will be the value for the registration purpose. It is in the circumstance, this Court in disposal of the Writ Petition while reiterating the settled position of law through the above judgment directs the opposite party nos.1 and 2 in the event the instrument is placed for registration by this petitioner, the Registering Authority shall register the same on the face value of the lease-cum-sale deed involved herein by accepting the stamp duty on the value as indicated therein by completing the entire exercise within a period of seven days. For number of cases coming to this Court on this aspect, the IGR of the State is directed to issue necessary communication to all the Registrars and Sub- Registrars of the State to follow the above direction in future registration of this nature at lease to avoid flowing of such cases to this Court.” 5. In view of the settled position of law as stated above, the Petitioner submitted an application to the Inspector General of Registration, Odisha-Opposite Party No.3 (IGR) on 21st September, 2022 for refund of excess stamp duty collected from him. But, it was not paid any heed. Hence, the Petitioner filed W.P. (C) No.12994 of 2022, which was disposed of on 13th September, 2022 with the following direction: Page 3 of 7 // 4 //
Decision
“7. In view of the above, this Court disposes of the writ petition with a direction to the IGR, Odisha, Cuttack-Opposite Party No. 3 to take a decision on the representation of the Petitioner dated 24th December, 2021 (Annexure-2) as expeditiously as possible, preferably within a period of four weeks from the date of production of certified copy of this order and result thereof shall be communicated the Petitioner forthwith. Excess stamp duty, if any, collected from the Petitioner at the time of registration of Lease-cum-Sale Deed dated 24th February, 2020(Annexure-1) shall also be refunded to him within a period of four weeks thereafter.” to 6. It is her submission that in W.P.(C) No.8942 of 2021, the lease-cum-sale deed was not registered by the time the Writ Petition was disposed of. Thus, keeping in mind the same, the said Writ Petition was disposed of on 31st March, 2021, relevant portion of which quoted hereinabove. However, the IGR without applying his mind and by misconstruing the position of law passed the impugned order under Annexure-4, stating that since the Petitioner suo-motu deposited the stamp duty, he is not entitled to any refund. It is her submission that while disposing the writ petition in W.P.(C) No.8942 of 2021, this Court had taken into consideration the observation made in the case of Santosh Kumar Nanda (supra). Thus, the IGR should have followed the ratio/observation decided/made in Santosh Kumar Nanda (supra) and refunded the excess stamp duty. She, therefore, prays for setting aside the impugned order and to refund the excess stamp duty to the Petitioner forthwith. 7. Mr. Mishra, learned ASC referring to the observation of this Court in W.P.(C) No.8942 of 2021 as well as averments of counter affidavit, submits that direction in the said writ petition was with regard to lease-cum-sale deed to be produced subsequent to the said order. Thus, no application for refund of Page 4 of 7 // 5 // stamp duty in respect of registration of the lease-cum-sale deed, which was registered prior to the decision of this Court in W.P.(C) No.8942 of 2021, should be entertained. It is his submission that in view of the decision in W.P.(C) No.8942 of 2021, many application for refund of stamp duty of Lease-cum- Sale deeds registered in the year 1998 onwards have been filed and are pending before IGR. If the interpretation made by Miss Mahapatra, learned counsel for the Petitioner, is accepted, it will be difficult on the part of the State Government to refund the said amount. Since the impugned order was passed in compliance of the direction made in W.P.(C) No.12994 of 2022, which was passed in the light of the order passed in W.P.(C) No.8942 of 2021, the IGR has committed no error in rejecting the application of the Petitioner for which the writ petition is liable to be dismissed. In view of the direction of this Court in W.P.(C) No.8942 of 2021, Board of Revenue has issued the Circular No.5921 dated 1st December, 2021 instructing all Registering Officers of the State to apply the principle settled in the said order of this Court to all transactions subsequent to the said order. In the instant case, the transaction in question was made much before issuance of the aforesaid instruction. Thus, the same may not be applied retrospectively extending the benefit of refund of stamp duty to the Petitioner. 8. Mr. Mohapatra, learned counsel for BDA submits that, no registration fee is leviable when an alienation or transfer made by the BDA to an allottee. The allottee is required to pay stamp duty @ 2% of the consideration mentioned/reflected in the lease deed itself. He, therefore, submits that the Petitioner in the instant case is not required to pay any registration fee. Page 5 of 7 // 6 // 9. Taking into consideration the submission made by lerend counsel for the parties, this Court finds that in the case of Santosh Kumar Nanda (supra), the Hon’ble Division Bench of this Court, taking into consideration the relevant provisions as well as case law, directed the Odisha State Housing Board (respondent therein) to execute the sale deed as per the valuation reflected in the draft lease-cum-sale deed. Thus, it is clear that the Petitioner is required to pay the stamp duty at the rate of 2% on the value reflected in the lease-cum-sale deed, which is paid to the BDA. The lease deed in question was executed on 24th February, 2020, which is much after the judgment, passed in Santosh Kumar Nanda (supra). Thus, the ratio decided therein, is squarely applicable to the instant case. But the IGR-Opposite Party No.3, while taking decision pursuant to direction of this Court in W.P.(C) No.12994 of 2022, misinterpreted the observation made in W.P.(C) No.8942 of 2021. It failed to consider the ratio decided therein, which was passed relying upon the ratio decided in the case of Santosh Kumar Nanda (supra). It ought to have read the order passed in W.P.(C) No.8942 of 2021 in the light of the ratio decided in Santosh Kumar Nanda (supra). 10. Thus, the impugned order passed under Annexure-4 is not sustainable and is accordingly set aside and the matter is remanded back to by IGR-Opposite Party No.3 to consider the application of the Petitioner keeping in mind the ratio decided in Santosh Kumar Nanda (supra) and applying the principle decided therein to the effect that the Petitioner required to deposit the stamp duty as per the valuation reflected in the lease-cum-sale deed, i.e., R.4.00 lakh, which has already been Page 6 of 7 // 7 // paid to the BDA. Furthermore, the ratio decided in Santosh Kumar Nanda (supra) shall be applicable to all instruments presented after the date of the judgment passed therein, i.e., 21st October, 2019. In the instant case, lease-cum-sale deed was executed on 24th February, 2020. Hence, IGR-Opposite Party No.3 is required to take a decision in the matter of refund of excess stamp duty, if any, as expeditiously as possible, preferably within a period of one month from the date of production of certified copy of this order. 11. With the observation and direction, as aforesaid, the writ petition is allowed to the aforesaid extent. 12. As requested by Mr. Mishra, learned ASC, a copy of this order may be made over to him for communication and compliance. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 7 of 7