1. In all these writ petitions, the main point relates to the validity of Section 2(4) of Tamil Nadu Act 38 of 1987 by which the Indian Stamp Act, 1899 and the Registration Act. 1908 had been amended. The writ petitioners have sought for declaration that the amendments are ultra vires, unconstitutional and void. The circular issued by the Inspector General of Registration, Madras dated 9-12-1988 is also assailed as illegal and invalid.
2. The averments in the affidavit filed in the first of the writ petitions are referred to here under :
Petitioner is engaged in the business of constructing flats in the city of Madras. It sells undivided share of lands to prospective builders-purchasers under registered sale deeds. Thereafter, purchasers build their flats at their own expenses. Hitherto stamp duty was collected only on the value of the undivided share in the land. Consequent to amended provisions, stamp duty is demanded on the cost of proposed const ruction of a flat, which is unconstitutional. The consequential circular issued by second respondent is contrary to the provisions of the Indian Stamp Act. When the transaction pertains to a sale ol an undivided share in a land without reference to any building or structure thereon which may come into existence later on, the insistence by the Registering Authorities to pay ad valorem stamp duty at 13% in the City ol Madras on the proposed construction is illegal and invalid. The amendments effected are beyond the legislative competence of the State Legislature, and Item 44 of List III does not authorise enactment of such aft amendment. No duty could ever be levied on a property which is not in existence on the date of the execution or registration of the instrument. In essence, it is a tax or duty on the potential value of capital assets, which is not within the powers of the Stale Legislature. In the absence of guidelines, the certificate of the Assistant Engineer, Public Works Department, which is made conclusive relating to "the cost of the proposed construction" leands to arbitrariness, and hence Art. 14 of the Constitution is violated. When the impugned provisions are violalive of the petitioner's right to carry on trade or business in the promotion of flat building, it offends Art. 19(1)(g) of the Constitution. The duty imposed on a non-existent property is vio-lative of Art. 300-A as well. By the impugned cireulardated 9-12-1988. documents are kept pending registration, which is an interference with the powers ol the Registering Authorities and causing considerable inconvenience and loss to owners of properties. The specified assent of the President of India as required under Art. 254 ol the Constitution of India had not been obtained. By the illegal action of the respondents, as petitioner's business has virtually come to a stand still, it had filed the present writ petition.
3. On behalf of the first respondent-State, counter-affidavit is filed in W. M. P. No. 882 of 1989 in W. P. No. 603 of 1989 etc. hatch. It contains 40 pages out of which the cause title covers 31 pages. During the past three decades, it had icarnt as to in what manner counter-affidavits are to be filed in writ miscellaneous petitions, and yet, what it had done is an unwanted exercise. As for the contents of the counter-affidavit, it is far from satisfactory. After referring to the manner in which sale deeds were executed prior to the amendment, it is claimed that after inspections were made by Departmental officers of the lands involved in the sale deeds, it was found that only the undivided share in the lands were being conveyed, even though flats were fully constructed and ready for occupation. It is only to curb the suppression of this fact, the impugned circular was issued. The documents relating to sale of undivided share of lands were kept for the purpose of inspection, but in obedience to the directions of the Court, they are being registered, tilt December, 1988, sale deeds presented for undivided share of land with relevant stamp duty on its value were being registered. After referring to two types of transactions adopted by promoters of flats, who ultimately give possession certificate when the purchaser of land takes possession of appartmcnt; it is claimed that what is attached is part of the land and passes with it on transfer without express mention in the deed, and therefore, the building also will have to be valued for the purpose of stamp duty. If there is no building and only a vacant land is sold as undivided share, stamp duty is demanded only on value of land. The documents are detained as per Section 35 of the Indian Stamp Act, and therefore, the interim orders passed require to be vacated.
4. Additional counter-affidavit was filed on behalf of second respondent in W. P. No. 603 of 1989 etc. batch of cases. It is not known as to how a Law Officer in the office of the Inspector-General of Registration could succar to an affidavit, instead of the Inspector-General of Registration himself, which is invariably the practice, when he is impleaded as a party to a proceeding. Law Officer could only advice and cannot take a decision, and for administrative decisions itaken by the Inspector-General of Registra-tion, he cannot be the deponent of an affidavit on his behalf. It is stated therein that assent of the President of India was oblaincd on 24-9-1987, and therefore, the amendments cannot be at tacked on the ground of repugnancy with any Central law nor they are violative of Arts. 14, 19(1)(g), 21, 265 and 300-A of the Constitution of India, as alleged in the affidavit. It is always open to State Legislature to include one more category in Schedule 1 and it would not be proper to import the principles of sales-tax on works contract in relation to impugned Art. 5 of the Stamp Act, and hence, it is neither a tax nor a duty on properly or wealth. It is not a colourable exercise of power as alleged. It is only a duty imposed on the instrument. Art. 5(1) clearly contemplates instruments relating to the cases where the vendor has executed or is to execute a sale deed in respect of an undivided share in the land and proposes to construct for and on behalf of the purchaser or by proposed purchaser of the land. When sanctioned plan is obtained in the name of the owner of the land, the building which comes up on it shall be treated as property of the land owner. The expressions "vendor", "vendee", "sold", etc., should be understood in the proper context of conveyancing and if it is so understood, it will clearly apply not only to cases where sale deed in respect of undivided share in the land had been executed but also where the agreement to sell such share in the land had been executed. The impugned provisions are in no manner affected by Explanation to Section 17 of the Registration Act. It is also claimed :
"It is further submitted ihat under the provisions of the Stamp Act, inter alia instruments dealing with two types of cases, broadly speaking, are being covered. Firstly, where there is a building on a land and the entire land atone is sought to be sold without reference to the building, the authorities concerned arc entitled to proceed under S. 27 read with S. 47-A and S. 64 etc. of the Stamp Act by applying Section 8 of the Transfer of Property Act. The second type of cases is where the owner of land agrees to sell or sells an undivided share in the land on the express understanding, that he would construct the superstructure for the purchaser. Under the second category the concerned authorities are entitled to invoke Art. 5(i) of the Stamp Act."
There is no discrimination between cases where land with fully constructed flat is sold, and an agreement under Art. 5(i) is entered into in the first instance followed by registration of sale deed later on. Levy of 1% as registration charges is justified by claiming that the Department renders various services by preservation of documents, by issue of Encumbrance Certificates even after several decades, etc. and the amount spent on the Department has correlation with the amount collected by way of fee. As Head of the Department, the impugned circular having been issued by the Inspector-General of Registration, there was no interference with the powers of the Registering authorities as claimed by petitioner. When the procedure adopted is consistent with the provisions of the Registration and Stamp Act and the Rules framed therein. Unless ownership of the building and the land are with the same person, no ownership right could he claimed only relating to building when the land belongs to another. After denying all the contentions put forth, it is prayed that the writ petitions deserve to be dismissed.
5. Mr. Sudaravaradan, learned counsel for some of the petitioners, has put forth the following contentions :
Article 5(i) of Schedule I to the Indian Sf amp Act (hereinafter referred to as the Act) lacks legislative compelence; that it is vio-lative of Arts. 14, 19, 21 and 300-A of the Constitution: that it would not come within Entry 44 of List III of 7th Schedule to the Constitution; and that the circular dated 9-12-1988 is beyond the powers of the Inspector-General of Registration under Section 69 of the Registration Act.
6. Before dealing with the points, he has relied upon the following Sections for a fuller comprehension of the extensive submissions made by him. Section 2(10)
of the Act defines "conveyance" as follows :-
"Conveyance" includes a convcyanec on sale and every instrument by which property, whether movable or immovable, is transferred inter vivocs which is not otherwise specifically provided for by Schedule I:"
Section 2(14) defines, "instrument" as follows :--
Instrument includes every document by which any right or liability is, purports to be created, transferred, limited, extended, extinguished or recorded".
Section 3 is the charging section which states that instruments indicated in the schedule to the Act shall be chargeable with proper duty, and Art. 5(i) as amended by Tamil Nadu Act 38 of 1987 is one of the Articles which deals with certain kind of agreements which are now made chargeable to stamp duty and also compulsorily registrable under S. 17(1)(f) of the Registration Act. Section 17 of the Act deals with the obligation to stamp instru-ments, and it is as follows :--
"All instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution."
Section 29 states as to who has to pay the stamp duty in the absence of agreement to the contrary. Section 31 pertains to adjudication as to proper stamp duty by the Collector, who has the power to require the parties to the instrument to produce evidence to prove all the facts and circumstances affecting the chargeabtlity of the instrument with duty and may refuse to proceed upon any such application until such abstract and evidence have been furnished. Section 33 deals with impounding of instruments when produced as evidence in a public office or court, and if it appears that the instrument is not sufficiently stamped, it could be impounded. Sec. 47-A introduced by T. N. Act 24 of 1967 and later partly amended by T. N. Act 42 of 1981, enables a registering authority, if he has reason to believe that the market value of the properly, which is the subject matter of conveyance, exchange or gift, release of benami right of settlement has not been truly set forth, then he has to register the instrument and refer the same to the Collector for fixing the correct market value of such property and for proper duty payable thereon. Collector hassuo motu powers within two years from the dale of registration of any instrument to reopen the matter and ascertain the correct market value and collect duty thereon. The challenged provision in Art 5(i) dealing with "agreement or memorandum of agreement" is to the following effect :--
"If relating to construction of a house or building including the multi-unit house or building by the vendor on land sold by such vendor and containing stipulation that such land together with such house or building or multi-unit house or building so constructed shall be held either individually or jointly by the vendee of such land,
i. When the land is situated within the cities of Madras, Madurai and Coimbatore and Municipal Towns of Salem and Tiruchira-palli.
ii. When the land is situated in any other area.
Explantion : For the purpose of this clause --
i. "Multi-unit house or buildings" shall mean only block or building having not less than live floors, flats or apartments as the case may be :
ii. "cost of the proposed construction" means the cost as mentioned in the agreement or the cost as adopted lor the purpose of estimation by the public works Department of the Government for the area concerned, whichever is higher and for this purpose a certificate from the Assistant Engineer of the public Works Department of the Government oft he area concerned regarding the cost of the proposed construction shall be attached along with the agreement for the purpose of execution. Such certificate shall be conclusive proof of the cost of the proposed construction".
In the Registration Act, Section 17(1) (f) as amended by T. N. Act 38 of 1987 reads as follows :
"instruments of agreement relating to construction of multi-unit house or building on land held by several persons as referred to in clause (i) under Article 5 of Schedule 1 to the Indian Siamp Act, 1899 (Central Act II of 1899)".
7. Learned counsel Mr. Sundarava-radan, submits that Section 3 being a charging Section, in relation to Art. 5(i) it would apply only in such of those instances in which there is an immovable properly in existence, and that there could be in law no agreement to transfer a building or superstructure which was not in existence on the date of the Thirteen rupees for every Rs. 100 or part thereof of the cost of the proposed construction of house or building or of any flat or apartment within such multi-unit house or agreement
Twelve rupees for every Rs. 100 or part thereof the cost of the proposed construction of house or building or any flat or apartment within such multi-unit house or building which is the subject-matter of the agreement. The concept of transfer of title regarding any movables to come into existence is no doubt provided in the Sale of Goods Act. There could be a law regarding transfer of ownership in goods which are to come into existence in future; but in so far as immovable properties are concerned, unless the building is in existence, any agreement to transfer any interest in a building which is yet to come into existence, cannot be charged to duty. The type of transaction contemplated under Art. 5(i) "is a works contract', and in view of the decision in State of Madras v. G. Dunkerly & Co., , a works contracted cannot be broken into component parts, because in law "there cannot be an agreement relating to one of property and sale as regards another" "for the sale of goods", there must be an agreement between the parties for the sale of the very goods in which the property eventually passes" and that in a building contract, the agreement between Ihe parties is that, the contractor should construct a building according to the specification contained in the agreement, and in consideration therefor receives payment as provided therein, and in such an agreement there is neither a contract to sell the materials used in the construction, nor does property pass therein as movables.
Learned counsel Mr. Sundaravaradan, would also contend that the building which comes up on the land is an accrection to il, and i( vests in the other party not as a result of the contract, but as a part owner of the land. By reading the judgment in extenso he contends that an agreement to put up a building, cannot result in transfer of any interest in the superstructures yet to be crrccled and that when a share in the land alone is conveyed by the owner of the land, which had no doubt put up the building pursuant to the agreement by entering into different terms and conditions, it would not result in such an agreement being made chargeable to duty. If it is to be treated as a transfer of property, there is no legislative competence to bring about this amendment by the State Legislature.
8. In Dunkerley & Co. v. State of Madras AIR 1954 Mad 1130, it was held by a Division Bench of this court that laws, which impose a tax on sales, being tax laws, are subject to strict construction, and that sale of goods is not an executory contract but an executed contract and the transfer of property in the goods is for a price i.e., for money consideration, It may be either existing goods or future goods. Building contracts are always considered in law as entire and indivisible contracts in the sense that the complete fulfilment of the promise by one party is a condition precedent to the right of the other to call for fufilment of any part of the promise by the other and there is no clement of sale of the materials in a building contract and the contract is one, entire and indivisible. As regards the property in the materials, it passes to the owner of the land not by virtue of the delivery of the materials as goods, but because they are fixed in pursuance of the contract to build, and along with the corpus, which ultimately results by the erection of the superstructure, the materials also pass to the owner ol the land. This ease dealt with, as to what is a works contract, in relation to Madras General Sales Tax Act, 1939.
9. Chief Controlling Revenue Authority v. Sudarsanam Pictures, is a decision of the Full Bench of this Court, which dealt with an agreement relating to film trade, and the question which arose for consideration was, whether such an instrument is a mortgage with possession coming under Art. 40(a) of Schedule I to the Act or an agreement. It was observed :
"If there can he no transfer in Praesents of property not in existence, there can be no creation of a right over, or in respect of such property....."
For the purposes of the Act, it was held that the effect of the instrument has to be examined at the time of the execution, whether in fact there is an operative transfer of mortgage on the execution of the instrument and by virtue of the instrument. It was further held, that the instrument in question is only an agreement.
10. In Ditcham v. Miller AIR 1931 PC 203 which dealt with a deed of assignment which purported to assign an estate or interest which was not in existence at the time of the instrument, it was held :
".....But, so regarded it was at law quite inoperative inasmuch as the estate of interest which it purported to assign had at the date of the deed no existence, and it is well-settled that neither at law nor in equity can the assignment ol such an interest operate according to its satenor".
Learned Counsel submits that it is not based on the agreement, rights of parties could be worked out, but only in equity. He then relies on Munusami v. Thirunavukkarasu , but it has no relevance relating to concept of immovable property because it was a decision devoted to a case where notice had been served as required under Section 112 of Madras Act 1 of 1908.
11. Relating to legislative competence, he refers to J. K. Jute Mills Co. v. State of U. P. , which could be of no
assistance for holding that the Tamil Nadu Legislature did not have the competence to make these amendments, because it was held therein :
"..... As the power of a Legislature to enact 'a law with reference to a topic entrusted to it being thus unqualified, subject only to any limitation imposed by the Constitution, in the exercise of such a power, it will be competent for the Legislature to enact a Law, which is either prospective or retrospective....."
12. He would then refer to Builders Association of India v. Union of India which went into the question of constitutional validity of the Constitution (forty-sixth Amendment) Act, 1982 in and by which Art. 366(29-A) was introduced to define "tax on the sale or purchase of goods" to get over the decision in Gannon Dunkerley's Case . Since in that decision it was held, that a works
contract was an indivisible contract and the turnover of the goods used in execution of the works contract could not therefore become eligible to sales-tax, the amendment had to be made, and it was held as valid. Yet, learned counsel Mr, Sundaravaradan, would submit that the rationale of the earlier decision of the Supreme Court in Gannon Dunkerley's Case that works contract is indivisible still continues, and it is only for the purpose of Sales-tax by introducing a definition in Art. 366(29-A), the imposition of sales-tax having been sanctified, and the Supreme Court having not held thaf a works contract is indivisible (divisible); the impugned amendment in Art. 5(i) is against the decision of the Supreme Court in , which still
holds the field relating to the law on works contracts. He would also submit lhat there is bound to arise uncertainties relating to the assessment of the proposed cost of construction, the nature of construction and whether it is a multi-unit house or building, etc. By referring to K.A. Abbas v. Union of India, , it is
claimed that if a law is vague, then of the language permits, the construction to be put upon it must be in accordance with the intention of the Legislature, but however, if the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty, and if lakes away the guaran-teed freedom, then it offends the Constitution.
13. Yet another point taken by him is that, when classification is feasible relating to houses and buildings subjected to duty, depending upon as la whether they are used for residential purposes or non-residential purposes, whether they are rented out or sold in instalment basis, etc. etc., and when Legislature fails to so classify, then such a section is liable to be struck down; and for this purpose, he relies upon the decisions reported in K. T. Moopil Nair v. Slate of Kerala , N.M.C.S. & W. Mills v. Ahmedabad Municipal
Corporation, and State of Kerala v. Haji K. Haji K. Kutty Naha , These decisions deal with instances
wherein, failure to classify would not only lead to indefiniteness, but the purpose for which the enactment is made would also be defeated. In the earliesl of the decisions, it was held lhat inequality is writ large on the Act and is inherent in the very provisions of the taxing Section. In the next decision, it was held that the flat rate method was held to result in inequalities, as there had been no classification of factories of any rational basis. In the last of the decisions, it was held that the Legislature has failed to take into account the nature of construction, the purpose for which it was used, it's situation it's capacity for profitable user and other relevant facts which have a bearing on taxation, and therefore, adoption of the floor area of buildings as the basis irrespective of all other consideralions, results in inequality and hence, refusal to make rational classification in some cases would operale as denial of equality. Therefore, none of these decisions would be of any avail to claim that in the instant case when agreements of a particular nature are made chargeable to duty, there should have been still fined classifications by laking into account factors which (when) in its' legislative wisdom it was thought that such an attempt is uncalled for, when the intention is only to make agreements of a particular kind alone being made chargeable to duty irrespective of the purposes for which the building may be put to use. As for the cost of construction to be arrived at based on P.W.D. Classification, he would submit that the hooks used by the said Department arc not available to the public and much worse is that the certificate issued by the Asst. Engineer is made conclusive proof. In the context of Section 4 of the Evidence Act, if an arbitrary determination is to be made as conclusive proof, it would lead to unquestionable power being exercised by an authority, who should never be entrusted with such a power. There being no provision for appeal or revision against any erroneous assessment of cost of proposed construction', it is an arbitrary provision, which is liable to be struck down. Lastly by referring to Section 17(1) of Registration Act, he would again emphasise the point that the building should exist at the time of the agreement in view of the use of the words "if the property to which they relate is situate in a district" in Section 17(1) of the Act. Once compulsory registralion of an instrument is demanded at a time when there is no building in existence, it leads to inexactitude, and power is to be exercised contrary to the known principles of law pertaining to transfer of interest in properly. While concluding his submissions, by referring to the circular issued by the Inspector-General of Registralion, he states that he had interfered with the quasi-judicial functions of the Registrar, and he had direcled the Deputy Inspector-General of Registration to carry out the functions of the Registrar, which is contrary to the provisions of the Registration Act and the Rules framed thereunder. To assail this circular as illegal, he refers to the decision in the Board of Revenue, U.P. v. Sardarni Vidyawati in which the Supreme Court held that, when the provision of an Act is silent, the duty to act judicially may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted and the pharaseology used and other indicia afforded by the statute. Dealing with the scope of Section 56(2) of the Indian Stamp Act, it was held that the Collector was performing the duties, which would be of a quasi-judicial nature. When a G.O. was issued by the Government relating to allotment of marks under Motor Vehicles Act, 1939, it was held that such a G.O. fetters the independent discretion of the quasi-judicial authority, and therefore, such a G.O. cannot be taken into account. It was in B. Rajago'pala v. S.T.A. Tribunal which was relied upon in this
decision, it was held that no doubt Seclion 43-A of the Motor Vehicles Act confers Power on Government to issue administrative orders, but if any direction to the Tribunal will have to be dealt with the quasi-judicial manner, then it is invalid.
14. In A.I.A. Firm v. CIT (102 ITR 622) a Division Bench of this could held that no circular of the Central Board of Taxation in Income-tax matters could ever fetter the, judicial discretion of the authorities administering the Act.
15. Learned Counsel Mr. Vedantham Srinivasan by referring to certain English decisions and Halsbury's Laws of England, would claim that property is a complex bundle of rights inhering in a person or to a thing, and it would consist of rights of ownership, possession, enjoyment, etc.., and may result in creation of limited or total estate capable of being transferred. What docs not exist can never be transferred. What does not exist can never be transferred in praesenti, particularly with regard to immovable properties. No person, who does not have any legal interest in an existing immovable property can never be compelled to transfer it in favour of another person, as could be done in respect of future goods, which arc movable in nature. The concept of transfer of interest in non-existing goods under the Sale of Goods Act cannot be imported in relation to immovable properties. Lack of registration would not invalidate transfer, but for certain legal incidences to occasion as and when rights therein are to be agitated in Court of Law or agreement is to be enforced and the like. In this context, he would touch upon Section 53-A of the Transfer of Property Act and Section 49 of the Registration Act, and claim that, in respect of immovable properties unless building exists on the date of the execution of the instrument, by making an agreement under Art. 5(i) of the Act as eompulsori-ly rcgisterable under Section 17(1)(f) of the Registration Act, it cannot be claimed that the essential incidents of transfer of rights in the property had passed in favour of the vendee, which is the expression used in Art. 5(i). Indian Stamp Act and Registration Act are procedural in nature. Tn spite of being aware of Delhi Apartment Ownership Act 1984 and the Maharashtra Act 5 of 1984 halfhearted and ununderstandable amendments have been brought about, which are injected with vagueness and uncertainties in implementation, leading to a high degree of arbitrariness which would be much worse than what is presently happening in Sub-Regis-trar's Offices, when documents are presented for registration. He would submit that, even to-day no document gets registercd by following the prescribed procedure known to law, and if the procedure now envisaged in the amending Act has to be implemented, it would lead to more corruption, because the certificate of the P.W.D. Assistant Fngineer having been given the status of conclusive proof, and as to what is a multi-unit house or building having not been precisely explained; as now being experienced by persons like that of petitioners in the hands of the registration authorities, it would only lead to unjust enrichment by persons in-charge of the affairs of the Department, He then submits that construction of a building is a works contract, and that Section 8 of the Transfer of Property Act cannot he relied upon while Art. 5(i) is invoked. This being a colourable legislation, it is liable to be struck down. He refers to certain passages extracted herein.
16. In sergeant of Stamp Duties (5th Edition) (Page 107), in dealing with the topic "Separate Contracts for conveyancing of lands and buildings to be erected", the law as obtaining in England is as follows : --
"(iv)(b) If, at the date of contract, a house has been wholly or partly erected by the purchaser or lessee or by an person on his behalf the consideration or apportioned consideration for the house wholly or partly created will not normally form part of the consideration, for the sale or lease and accordingly will not be liable to ad valorem duty."
17. F.ncyclopaedia of Forms and Procedure (Vol. 184th Edition Page 334 Para 670) reads as follows :
"Conveyances of building land." Difficult questions as to stamp duty arise in the case of conveyances of building sites where at the date of the contract for sale no house has been erected or a house has been partly erected on the site which constitutes or is included in the subject matter of the sale, and at the dale of Ihe conveyance a house has been wholly or partly erected on the site, and there arc separate contracts relating to the conveyance and for the buildings to be erected. The question has been the subjecl of a number of decisions, and is also the subject of a statement from the Board of Inland Revenue."
18. By rerering to the amendment made to Seclion 17 of the Registration Act, he contends that, if a document is not registered, parties take the risk. No Registrar would ever compel registration of an instrument executed between the parties. The duty of Registrar is only to find out on the face of the document aboul it's nalure, and not to go behind it and find out the intention of the parties. Under Seclion 35 of the Registration Act, he has limited duty to perform, and when parties to document appear in person and admit execution of the documenl; he is obliged in law to straightway carry out the registration. If it is an instrument which would come under Section 47-A of the Act, and he has reason to believe that the markel value of the subject-matter is not correct, then under that Section, first of all he has to register the document and refer it to the Collector for determing the market value. Therefore, the impugned circular issued clearly goes beyond the statutory prescriptions, which the Inspector-General of Registration is bound to follow under the Act. For several months withholding of instruments presented for registration has led to considerable inconveniences and monetary loss to parties. It is not open to the Registering authorities to interpret the document. Impounding of a document under Section 33 of the Act, would arise only in certain circumstances. As to how and what procedure to be followed, Sections 58 to 60 of the Registralion Act slate as to what a Registrar will have to do, when an instrument is presented to him. The quantum of fee collected for issue of copies is challenged, on the plea that any thing and everything required to be done, are being done by parties, without being carried out by the authorities, and hence the fee demanded is illegal. He refers to para 656 at page 435 of Vil. 44 of 4th Edition of Halsbury's Laws of England, which is as follows : --
"A conveyance on sale of building plot may present difficulties of assessment where a building has been erected by the time the conveyance is executed. Where the builder is the vendor but the building contract is ex pressed to be conditional on the completion of the purchase of the site, the consideration paid lor building (as distinct from the site) does not attract duty, even though the builder may have begun to build before completion. If the builder is not also the vendor, the consideration paid for the building does not attract duty even where the landowner and the builder habitually act together. If, however, there is in substance a contract to purchase the plot with the building on it (even though the contract is constituted by separate documents), the consideration for the building attracts duty."
19. Before concluding, be would refer to Kimbers & Co. v. Inland Revenue Commr. 1936 I KB 132 in which to was held that, when a vendor of land contracts to build a house and sell, it was not a contract for sale of a house and the land on which it stood, but constituted as separate transactions; they being a contract of sale of land and a contract to build a house thereon, and therefore, the duty to he imposed is only upon land and not on the value of the building to come up. as per the Stamp Act, 1891 applicable to immovable properties. On interpreting the contract of sale involved therein, it was held that there are two distinct contracts, one absolute and the other conditional in nature.
20. Narasimhaswami v. Venkatalingam AIR 1927 Mad 636 (FB) holds that the deciding a document as to whether it requires registration or not, one has to take the document as a whole and construe it with reference to its terms and not what might have been the intention of the parties. By referring to Section 4 to 6 and 17 of the Act, he point out that the choice is left to the parties to choose as to which one of them will be the principal instrument, and it highest duty is paid on the principal instrument, then on the other instrument, as per Section (1) the duty could be only Rs. 5/-. If an instrument is drafted as to come within two or more of the descriptions in Schedule 1, then it is chargeable only with the highest of such duty. After referring to the Delhi Apartment Ownership Act and the Maharashtra Act 1984 be too submits that, in spite of a substantial number of M.L.As. from this State having gone to these places and submitted a report, the amendment which is now challenged, has turned out to be a colourable exercise of power without comprehension of the mischief which the objects and reasons claims to remove, and in fact, the amendment has brought about greater complications by its vagueness and indefinite ness and whieh would lead to arbitrary functioning by registering authorities.
21. Mr. V. Narayanaswami. learned counsel relies on Jugalkishore Saraf v. Raw Cotton Co. Ltd. 1955 Mad WN 421 : (AIR 1955 SC 376) in which the Supreme Court while dealing with Section 8 of Transfer of Property Act, held that if does not operate to pass any future property, for that section passes all interest which the transferor can then i.e. at the date of the transfer pass. If for any reason by any provision of Law, statutory or otherwise, interest in property passes from one person to another, there is a transfer of property by operation of law. Section 2(14) having defined an "instrument" as one by which "any right or liability is, or purports to be created, transferred. limited, extended, extinguished or recorded." Unless the building is in existence, an agreement in the nature contemplated under Art. 5(1) could not be treated as an instrument under the Act. Earlier an agreement to transfer immovable property did not require any registration, and even now, if parlies do not desire to have it registered, the transaction would not become illegal, hut it cannot he enforced in a Court ol law unless it is registered; and therefore, the Registrar cannot compel the parties to register such an instrument, when it is summoned by him, for registration of a sale deed confined to the transfer of an interest only in land. When the assent of the President was not obtained as required under Art. 254(2), in view of the decision in Jamalpur Gram Panchayat v. Malwinder Singh, . the amendment is invalid. He submits that it is not enough for the State to simply claim that an assent was obtained on 24-9-1987, unless it makes known as to on what aspects it sought for assent, and whether the aspeets on which it had sought for assent are relevant for the purposes of engrafting Art. 5 (1) in the Act. In the decision cited by him, it was stated that the President has at least to be apprised of the reason, why his assent is sought, if. there is any special reason for doing so. If it is sough! and granted in general terms, so as to be effective for all purposes, then different consideration may legitimately arise. When assent is obtained for a specific purpose, then its efficiency would be limited to that purpose alone and cannot be extended beyond it. It was a case in which the assent had been obtained for the express purpose of Art. 31-A, and therefore, it was held that it is not capable of automatic transformation into assent for the purpose of Art. 254(2). Hence, learned counsel Mr. Narayanaswamy, submits that, unless the assent obtained is pertinent to the nature of the amendments now effected, and this burden the State having not discharged, it is a colourable pieec of legislation without legislative competence, and hence liable to be struck down.
22. Lastly, he relies upon M/s Doypack Systems Pvt. Ltd. v. Union of India, to put forth a claim that the object and
reasons could be looked into as an aid to understand the scope and applicability of the Sect ions in an Act. In para 41 therein it is stated as follows :--
"It has to be reiterated, however, that the objects and reasons of the Act should be taken into consideration in interpreling the provisions of the Statute in case of doubt......"
Hence, by referring to the objects and reasons found in the amending Act, it is claimed that when the Legislature had thought that it is bringing about an amendment to curb the loopholes relating to 'conveyance," it had wrongly engrafted the amendment as Part of Art. 5 instead of Art. 23. When the pith and substance is made out, it has to be either struck down as illegal, or read as part of Art. 23, so that the duplicity of collection of duty in two stages at the same rate, one being treated as an agreement and the other as a conveyance, could be avoided.
23. Mr. D. Raju, learned counsel appearing for some of the pelitioners, after referring to Section 3 of the Act, which is the charging section, submits that the statutory duty of Registrar on presentment of an instrument is to register the document and thereafter send for valuation, if he docs not accepts the markcl value. He relies upon the Sections referred to by learned Counsel Mr. Vedan-tham Srinivasan and contends that, when it is the Collector who will have to look into the valuation, the impugned circular cannot direct the Deputy Inspector-General of Registration to find out the market value. Section 47-A cannot apply to instruments which would come under Art. 5(i), because that Section deals with only five types of instruments. Except when the owner of the land enters into the agreement and constructs a building on his own, and thereafter as vendor transfers interest to the vendee, which are expressions used in Art. 5(i), no other kind of transaction wherein interest only in the land is conveyed, the authorities could take into account the value of the building. In law, it is open to the owner of aland to either lease out the property or grant a licence for use of it; and on the strength of such a permission, a building could come up by the licensee investing his funds subject to terms and conditions agreed to between the parties. It is not necessary for a building to be constructed, that the owner of the land should also be the owner of the building. Having used the word 'together' in Art. 5(1); in such of those cases where the owner of the land is not the owner of the building, this Act. would have no applicability.
relied upon to show that "the Revenue authorities could not ignore the terms of the document which was before them for adjudication and based their decision on the terms of some other collateral instrument." Even if an agreement had existed between the parties relating to the construction being put up; when the instrument presented to the registering authorities is confined to transfer of interest in of a share of his rights in the land; the registering authorities cannot and should not took into any other instrument to find out the nature of the document beyond what the instrument itself speaks.
25. Mr. Radhakrishnan, learned counsel appearing for some of the petitioners, after referring the the stand taken by the State in para 6 of the counter-affidavit, would straightway point out that Section 8 of the Transfer of Property Act could have no applicability at all in a case where the building is not owned by the landlord. If he does not own the whole or part of a build ing, he cannot convey it and hence he cannot he compelled to pay stamp duty and convey it by the registering authorities by relying on Art. 5(i). Merely because a building has come up in his property, it cannot be treated in law as a factor to impose duty upon it's value because under licence he may allowed superstructure to come up subject to certain legal terms and conditions, in which event, the person who had raised superstructure is alone the owner of the superstructure.
26. Bishan Das v. Stale of Punjab , after referring to the decision reported in Narayan Das v. .latindra Nath AIR 1927 PC 135, it was held by the Supreme Court as follows :--
".....These decisions show that a person who hona fide put up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner ot the land by the application of the maxim quicquid plantalur solo, solo cedit. It is, therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the Slate....."
27. A Division Bench in Katihar Jute Mills Ltd., v. Calcutta Match Works AIR 1958 Pat 131 holds as follows :
"Generally any sale of a building without any specific relerencc to the land whereon it stands cannot necessarily convey the land along with it and what is provided in S. 8 of the Transfer of Properly Act as to easement cannot apply to the land on which the buildings stand, for there is no easement in law which gives any exclusive and unrestricted use of land, and if the grant is exclusive and unrestricted, it beyond all questions passes the ownership of the land".
He further submits that in such of these instruments wherein there is no element of building being transferred, and in spite of a specific recital to that effect therein; the authorities have not registered the documents but retained the documents in view of the impugned circular, and that the parties to the documents have suffered considerably by failure of authorities to understand their obligations under the Act, and as to what proper procedure to be followed relating to registration of documents. By entering into an agreement with the licensor i.e. with permission of the purchaser of a share in the land, the the erstwhile owner as licensee having put up an apartment or a flat or a building thereon, licensor is then real owner of the superstructure, and therefore, the concept of trans-fer never arises. Section 5 of the Transfer of Property Act states that it happens only when "a living person conveys property, in present or in future, to one or more other living persons or to himself and one or more other living persons, and "to transfer property "is to perform such act." Then Section 6 of the Transfer of Property Act states that property of any kind may be transferred, except as otherwise provided in that Act or by any other law for the time being in force. Hence, when the owner of the land is not the owner of the superstructure, to treat it as a deeming transfer by him in favour of another, by a person who has acquired no right whaisoever therein, is not only high-handed but absolu-tely illegal. A Registrar cannot go beyond what is stated in the instrument, as held in Bapiraju v. Dist. Ragistrar, (FB). It is not for him to find out other intentions of the parties. He could only look into the recitals and decide as to under which of the articles of the Stamp Act, the document would come.
28. Mr. Mohan Parasaram, learned counsel submits that unless the owner of the land has an interest in the building already come up or yet to come up, he cannot be callec upon to convey any interest in the future immovable property. As for Section 47-A of the Act is concerned, he laid emphasis on the words "subject matter of conveyance, etc." and contends that when the subject matter is not a building but only a land being conveyed under an instrument, the registering authorities are bound to register the document, and if they have any doubt about the market value of the land, they can proceed under Section 47-A, il the document is one of conveyance or of anyone of the other four types mentioned therein. Before doing so, first of all Registrar will have to register the document. He cannot withhold of it, as presently done in innumerable eases. He also refers to the Explanation to Section 17(2) of Registration Act, and submits that, with its continued existence. Section 17(1)(f) could not co-exist. In obtaining assent, whether this aspect had been placed before the President will have to be clarified by the Stale. Merely because an instrument of sale or mortgage and the like had been executed between the parties, it would not result in the registering authorities compelling the parties to register their documents. They lake the risk of the consequences of non-registration, if circumstances arise. Otherwise the transactions, in law, exist as between the parties.
29. Mr. S. G. Prabakaran, had claimed that discrimination is practised when an agreement relating to the same property is executed under Art. 5(i), and a conveyance is then made under Art. 23; because the rate of duty payable would be more under Art. 5(i) and lurther when the option is left to the parties under Section 4(1) to pay the highest duty of the two employed in a transaction; depending upon the methodology adopted, when different duties become payable by this amendment, it leads to discrimination. Though Art. 5(i) makes an attempt to explain as to what is a multi-unit house or building; in amending the Registration Act, it is only agreements pertaining to "multi-unit house or building on land," which requires registration and not in respect of other types of building, which would come under Art. 5(i) of the Act. He stales that having used the expression "house or building" alongside "multi-unit" and in the light of the explanation given, building with flats or apartments less than five, would not come under Art. 5(i) of the Act and Section 17(1) (f) of the Registration Act will not apply. This has resulted in vagueness, and the reference by incorporation being only partial, it would only lead to arbitrariness, if the amendments are allowed to stand as they are. When the circular clearly stales that Art. 5(i) relates to conveyance of property, and when read with the objects and reasons which also proceed on the same basis; the pith and substance of the amendment pertains only to "conveyance" in Art. 23, and not to treat it as an agreement. After referring to the Maharashtra and Delhi Acts, he states that if the intention of the Legislature was to plug the loopholes, it should have resorted to sueh comprehensive legislations and not by amending the two Acts in such a clumsy manner.
30. As for learned counsel Mr. Shantha-kumar is concerned, he has only challenged the circular, and claims that it proceeds on the basis that when conveyances are made Art. 5(i) applies, whereas it only relates to agreements, and that withholding of the instruments submitted for transfer of a share in the land ought not to have been done, without being registered as stalutorily required.
31. Learned counsel Mr. K. G. Vasu-dcvan, submits that, even in respect of agreements entered into prior to 1-1-1988, if a sale is now effected of a share in the land, the agreements are being summoned, and that authorities cannot claim duty on those agreements. There is no power conferred on the Registrar to examine title or ownership of the properties, and the inspection being made to fix the value of the built up properties is illegal, and that too by an authority who is not named in the Act.
32. Mr. P. S. Venkatasubramanian, learned counsel for some of the petitioners, would refer to Rule 19 in the rules framed under Section 69 of the Registration Act, and contend that the superintending power of the Inspector-General of Registration under the said section cannot go to the extent of issuing instructions, which are contrary to the provisions of the Act and the Rules. He further submits that the Sub-Registrar is not subordinate to the Inspector-General of Registration, and only the Inspector is subordinate to him. His further submission is that, until 24-4-1968, under the Stamp Act as it then stood. Registrar can only look into the consideration as stated in the document. It was by amending T.N. Act 24 of 1967, the concept of market value was inducted under Section 47-A and that could he done only in respect of five categories of instruments mentioned therein. As to what is the subject matter, it is for the party to decide, hut value alone-could be looked into by the Collector. If the value is not correct, then the Collector alone can correctly decide the market value and fix the duty payable thereon, and not by the Deputy Inspector-General of Registration, as stated in the said circular. Even now, as to what is the subject-matter of the instrument, it is only for the party to decide. If they choose to have an instrument executed only pertaining to a certain aspect, even though they may have rights and obligations relating to other aspects connected with the property, the Registering authority could look into the subject-matter of the instrument alone as presented before him and assess as to what is the proper duty payable thereon. As between two parties, there may he several transactions or in respect of a particular transaction, they may choose to execute at different stages different instruments. They may agree to get only some of them registered initially and postpone the registration of other instruments, depending upon future developments. If they agree to transfer only a share in the immovable property viz.. the land, over which a building has come up or to come up as per any other agreements entered into between them, it is not for the Registering authorities to compel the parties to pay stamp duty on those instruments Value of a property over which there is no intention to convey any interest therein between parties cannot be taken into account. When the owner of the land had permitted his property to he used under an agreement for putting up a building or a multi-house unit and the like, and the same having been done at the cost of the other party, and when that agreement having not been brought for registration, but when only the instrument which conveys a share in the land is presented; the Registering authorities are bound to register the sale deed, to the extent required as between the parties, by valuing only the land or share of the land as described in the document.
33. Learned Advocate-General in countering these points, would first submit that a legislative enactment could be questioned only on three grounds; they being (1) Legislative competence; (2) infringement of fundamental right; and (3) violative of any of the provisions of the Constitution of India. In support of this submission, he refers to the decision reported in T. Venkata Rcddy v. State of A.P., in which dealing with enactment of an Ordinance, it
was held :
".....It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it.....".
Courts would not enquire into the propriety of the exercise of the legislative power or the motives behind the enactment or whether it had applied its mind to the provisions of a statute before passing it, and therefore, the propriety, expediency and necessity of a legislative act are for the determination of the legislative authority. Regarding competency to enact these amendments, he refers to the following entries.
"Entry 91 of List I. Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.
Entry 63 of List II. Rates of stamp duty in respect of document other than those specified in the provisions of List I with regard to rates of stamp duty.
Entry 44 of List III. Stamp duties other than duties or fees colleclcd by means of judicial stamps, but not including rates of a stamp duty.
Fntry 6 of List III. Transfer of property other than agricultural land; registration of deeds and documents."
By referring to these entries, he submits that the Legislature has the competence to legislate on rates of stamp duty and classify the instruments which require registration. He produces before Court the assent granted by the President on 24-9-1987 for passing of I amil Nadu Act 38 of 1987. On the plea of violation of Arts. 14 and 19 of the Constitution as put forth, he refers to the decision reported in Sk. Madar v. Slate of A.P., in which while dealing with the Motor Vehicles Taxation Aet, it was held that it being a compensatory measure, imposition of tax on passengers is valid. In Malwa Bus Service (Pvt) Ltd. v. State of Punjab, it was pointed out that a fiscal legislation is subject to Art. 14, but certainly State can adopt reasonable classification of persons and things in imposing tax liabilities, and a law of taxation cannot be termed as being discriminatory, because different rates of taxation are prescribed in respect of different items, provided it is possible to hold that the said items belong to distinct and separate group and reasonable nexus exists between the classification and the object to be achieved, and that the mere fact that a tax falls heavily on certain goods or persons would not make it invalid.
33A. In Twyford Tea Co. v. Kerala State. it was held that the burden of proving discrimination is always heavy, and heavier still when a taxing structure is under attack, and it is on a person complaining discrimination. The burden is proving not possible "inequality" hut hostile "unequal" treatment". Unless it is conclusively established that persons equally circumstaneed have been treated unequally and vice versa, a taxing structure cannot be held invalid. He makes a passing relerence to M/s. Sodhi Transport Co. v. State of U.P. , but it is not necessary to deal with it in detail lor the purpose of Arts. 14 and 19.
M/s. Sleelworth Ltd. v. State of Assam 1962 Supp. (2) SCR 589 is rather more categoric in holding that it is for the Legislature to decide as to what article it should tax and what articles it should not tax, and if U decided to impose tax on certain articles it thought necessary, that was a question of policy into which Courts cannot enter and in such circumstances per se there is no discrimination. Unless it be shown that the tax incidence has resulted in unreasonable restriction on the right to carry on trade, it cannot be held as violativc of Arts. 14 and 19(1)(f) of the Constitution. As to how a taxing structure should be looked into, in Ganga Sugar Corpn. v. State of U.P., , it was observed as follows :--
"Even so, taxing statutes have enjoyed more judicial indulgence. This court has uniformly held that classification for taxation and the application of Article 14, in that context, must be viewed liberally and meticulously......"
34. Khyerbari Tea Co. v. State of Assam, holds :
"It is, of-course, true that the validity of tax laws can be questioned in the light of the provisions of Arts. 14, 19 and Art. 301, if the said tax directly and immediately imposes a restriction on the freedom of trade; but the power conferred on the Court to strike down a taxing statute, if it contravenes the provisions of Arts. 14, 19 or 301 has to be exercised with circumspection, bearing in mind that the power ot the Slate to levy taxes for the purpose of governance and for carrying out its welfare activities is a necessary attribute of sovereignty and in that sense it is a power ol paramount character. But where the C'ourt is satisfied that the impugned Act imposed unreasonable restrictions on the fundamental rights of the citizens, conferred unbridled power on the appropriate authorities, introduced unconstitutional discrimination and in consequence, amounted to a colourable exercise of legislative power, such a taxing statute can properly be regarded as purely confis-catorv and the power of the Court can be legitimately invoked and exercised."
In Khandige Sham Bhat v. Agrl. I.T. Officer, AIR 1963 SC 591, it was pointed out that Legislature in its sincere attempt to meet a difficult situation in making a law can adopt any one of the diverse methods open to it, and the method adopted cannot be said to be either unreasonable or arbitrary, and if it worked fairly well on all similarly situated, though some hardship may be caused to some in the implementation of the law which is inevilable in every taxation law, such a method will have to be adopted.
35. In Gopal Narain v. State of llttar Pradesh, ,
dealing with the scope of Art. 14, it was held that it does not forbid geographical classification, provided the difference between the geographical units has a reasonable relation to the object sought to he achieved, and that selecting part of the municipality within which to levy a tax is not an arbitrary power. Hence, he submits that, when the Indian Stamp Act is a taxing statule, as to what kind of agreement requires to be stamped at what rate is a legislative policy, and so long as the nexus is made out between the concerned instrument and the imposition of tax, the impugned Article is not violative of the Constitution.
36. The next contention put forth by him is that, when a building is put up by an agreement-holder, it shall be deemed as an accretion to his land, and in law, the owner of the land automatically becomes owner of the superstructure. Under S. 8 of the Transfer of Property Act read with S, 2(10) of the Act, a transfer of property passes forthwith to the transferee all the interests which the transferer is then capable of passing in the properly including things attached to earth i.e. building. Section 3(26) of the General Clauses Act defines "immovable properly" as including things attached to the earth. Therefore, unless a legal right in the land and building conveyed in favour of the person putting up the building, no building could be transferred without rights in the land when building would be imbedded in the earth and becomes an immovable property, which is claimable by an agreement-holder. In support of this plea, he would first refer to the decision reported in Leon Gon Kyu v. MG. MG. Gyi. AIR 1933 Rang 24, wherein after referring to S. 8 of the Transfer of Property Act, the learned Judge held, that unless a different intention is expressed or necessarily implied, the presumption is that, when a land is transferred by a deed of gift, the building situated thereon also stood transferred. A learned Judge of the Bombay High Court in Maclod v. Kisson. ILR 30 Bom 250, took the view lhat when Transfer of Property Act makes no distinc-tion between free-hold and lease-hold property for the purpose of the rule of law embodied in Ss. 8 and 70 of the Act, a theatre creeled by the mortgagors on the land after the execution of the mortgage deed was in the absence of a contracts to the contrary, is included in the mortgage. It was held that these sections reproduce the English law, which is "that all things which are annexed to Ihe properly mortgaged are part of the mortgage security, and, therefore, the deed need contain no mention of structures or fixtures, unless a contrary intention can be collected from the deed." In Balram Singh v. Ganga Singh, (93 Ind Cas 287 : (AIR 1926 Oudh 358), it was held that, if a zemindar sells his zemindari share in a village, it must be presumed that he sells the property including his share in the ahadi, which means that the house built thereon also gets transferred, because there are no words in the deed under consideration showing an intention to retain or exclude the house.
37. A Full Bench in Fitrat Hussain v. Kiaqat Ali, AIR 1939 All 291, held in dealing with S. 8 of the Transfcr of Property Act that the title to trees and shrubs passes with the transfer of proprietary rights in the land.
A Division Bench in George v. South Indian Hank in. , held that :
"A building is a thing attached to the earth, A house being imbedded in the earth is immovable properly and when land is transferred by way of mortgage, buildings erected upon it pass by necessary implication to the transferee."
It was also pointed out therein that it was not claimed that there was a separate title deed for the building.
39. A Division Bench in B. N. Murthy & Sons v. V. Suguna, , held that even though the title deposited relates
only to land, if there were any superstructures on it at the time the deposit was made then an equitable mortgage would be crcaled both with regard to the land as well as the structures thereon.
40. I.T. Commr. v. Bhurangya Coal Co., , dealt with an instance wherein there are two parts in a deed of agreement of sale, and the first part included building and structures and the second part consisted of movables including machinery, trucks, pipes, motor cars and the like. It was observed :
"..... No doubt, fixtures attached to the land will pass on a sale of the land under S. 8, Transfer of Property Act, but that is subject to any different intention which is expressed or necessarily be implied in the document....."
It was then held that the two parts of the agreement cannot be treated as dealt with together, because intention was to sell the fixtures as movables. Relying on these decisions, he submits that any building over the land could only belong to the owner of the land. He also refers to certain provisions in the Tamil Nadu Town and Country Planning Act, 1971 and the forms prescribed therein which are to the effect that the owner of the property will have to make an application for grant of permission to put up buildings and the like. Then dealing with the grievance that sale deeds which would not come under Art. 5(i) are kept back without registration for months together, he points out that the concept of market value was introduced under S. 47-A by the stale to be assessed by the Collector, and guideline value having been fixed for each area, the registering authorities have the jurisdiction to find out whether the entire property involved in the instrument had been properly valued or not; and even if for any reason it be held that S. 47-A cannot be invoked under S. 27, facts affecting duty have to be set forth in the instrument, and read with R. 3(3) of the Tamil Nadu Prevention of Under Valuation of Instrument Rules, 1968, and hence the registering officer has a right to elicit from the parties regarding any particulars or information to assess the proper value, and therefore the circular issued is intended to further the provisions of the Indian Registration Act and the Indian Stamp Act, and therefore, no exception could be taken to such a circular being issued by the Inspector-General of Registration; and under S. 69, he having overall powers, it cannot be said that he had interfered with any quasi-judicial functions of any one of his subordinate authorities, and therefore, the circular is valid.
41. As for the construction to be put on Art. 5(i), he has more than one submission to make; they being; to properly understand it's scope, it will be necessary to read the word "sold" as "to be sold", and that the expressions "vendor" and the "vendee" have been used only to mean "seller" and "buyer" between whom the agreement had been executed; and that the agreement contemplated therein is not one which results in transfer of any interest in any immovable property and that it is only an agreement to construct a building. Only the owner of the land or his authorised agent can legally apply for a building plan. In all these cases, the application for permission to construct a building had been made only by the owner or his authorised agent, and the building plans were sanctioned only in the names of the owners or lands and hence, it should be construed that the construction of the building was being of done by the owners of lands. Even in a case wherein under the agreement if the vendee puts up a construction by engaging a builder, since the owner of the land obtains the sanctioned plan in his name, he could alone legally be said to have constructed the building. As for the expression "land sold by such vendor", as already submitted, he would state that it has to be construed as "lands to be sold or land agreed to be sold", because after execution of the sale deed conveying title, no occasion would arise for making a stipulation that the land "together" with the building proposed to be constructed should be held individually and jointly, and that the words "so constructed" have to be read as "to be constructed" as the transaction pertains to an agreement to construct a building. He submits that any construction to be put on these provisions should not render the provisions void, even assuming that any other construction is possible, because unless the construe-tion which is put forth by the lawmaker is hound to lead to absurdities, the law as made has to be upheld. As for the contention that the fee claimed for issue of copies is not commensurate to services rendered the facts and figures supplied in the supplemental affidavit go to show that it is well within the permissible limits as held in Delhi Municipality v. Mohd. Yasin, , and
42. In replying to these arguments, each one of the Counsel had put forth further submissions to contend that, if the amended provisions are to continue to remain in statute hook, it will lead only to arbitrariness and a sea of uncertainty, as held in K.A. Abbas v. Union of India, , in implementing those provisions. In an
ununder-standable manner the provisions having been drafted and passed by the Legislature, retention of these sections in the statute books would only lead to disorderly implementation of these provisions to the prejudice of the citizens.
43. Mr. Vedantham Srinivasan by referring to Thangammal v Murugammal, , would claim that the building which is yet to come up or already come up or partly coming up could be treated only as movable, for the purposes of an agreement to construct a building. Now that the State had clearly come out with the stand that, what is contemplated under Art. 5(i) is not a conveyance, but only an agreement, and that it does not result in transfer of interest in immovable property, but only an agreement to construct a building; then such a building could be treated only as a movable property. As far reliance placed on S. 108(h) of Transfer of Property Act, he would refer to Arumugham v. Tiruvalluva Nainar Temple, ,
which dealt with an order of Court for removal of fixtures under the Presidency Small Causes Court Act, and held that, at the time of recovering possession, it is open to the tenant to claim that he would remove the superstructures, and that the bailiff could be directed to remove them, even-if the tenant does not voluntarily remove the superstructure. Hence, he submits that Section 108(h) of Transfer of Property Act deals with the forfeiture of the right of the tenant, in the event of himself not removing the superstructure, and that this decision recognises that he is the owner of the superstructure which he had put up on land belonging to another i.e. the lessor. That means the owner of the superstructure could be different person from the owner of the land. After referring to the types of agreements entered into by the Housing Board which adopts identical procedure as followed by petitioners, and as most of the middle class people are affected by being called upon to pay 13% at the time of agreement and again at 13% at the time of conveyance under Art. 23; he submits that it is an onerous burden to be put upon less fortunate persons, who with their hand labour expect to own a house property during their lifetime. He refers to Graies on Statute Law (6th Edition page 30)
..... It is, however, a very serious matter to hold, that where the main object of a statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of law. It may be necessary for a court of justice to come to that conclusion, but their Lordships hold that nothing can justify it except necessity, or the absolute intractability of the language used."
Legislation by reference :
.....Legislation by reference is usually the out come, not of negligence, ignorance, or incapacity in the draftsman, but of the foibles of Parliament, and is excused on the ground that it lessens political difficulties and simplifies the process of getting bills through committee by lessening the area for amendment."
After referring to the "theory of impracticability," he points out that the learned Advocate-General was not correct in claiming that only the owner of the land could apply for building premission, because in every form it is stated that it could be done by owner of the land or the applicant. His more sub-stantial contention is in referring to S. 49 of TN Act 35 of 1972, which nowhere refers to the word owner of the land making the application, and it states that "any person" can make an application to the appropriate planning authority and ask for permission to carry out development on any land or building. After referring to the decision reported in Board of Revenue, Madras v. Narasimhan, (FB), which holds that what is not
disclosed in the instrument cannot be looked into by the registration authorities, which is the same view taken in Chief Controlling Revenue Authority v. K. Manjunatha Rai, (SB), he concludes by stating that the impugned amendments are thoughtless amendments, without the Stale understanding the concept of law relating to property.
44. Mr. Mohan Parasaran, by referring in Sales Tax Commr. v. Modi Sugar Mills, , and State of Punjab v. Jullunder Vegetables Syndicate, , submits that there cannot be a
presumption relating to a taxing statute and what is clearly expressed will have to be understood by the plain language used therein, and that a Court cannot make out a definition. He therefore submits that the attempt made by the learned Advocate-General to read certain words differently from what they are, and to introduce certain words to make the words understandable is not permissible in a taxing statute like the Stamp Act. He refers to the two Division Bench decisions of this Court in Venkatasub-biah v. Thirupurasundari, and
M.A. Kadir v, Dt. Collector, Kanya-kumari, , to claim that the maxim "quic quid inaedificatur sole, sole credit" has no application to this Country, because it is a rule of considerable antiquity. It was also held that a uniform view had been taken that English doctrine of fixtures as to building would not apply, and that the party who builds on another's land should be allowed to remove those materials.
45. Bapiraju v. District Registrar, Sri-kakulam,
(FB), is relied upon to show that it is the true character of the document which must be looked into by the Registrar by the manner of writing used therein, and he cannot go behind to find out the intention of the parties.
46. Mr. Venkatasubramaniam, has come out with more than one revelations by claiming that S. 27 of the Act cannot be relied upon for assessing the market value, because it only speaks about the duty of the parties to make a full and true statement of all the facts and circumstances affecting the chargeability of any instrument and in particular about the consideration of the market value; and in the event of contravention, the only remedy available is to initiate action under S.
64. In respect of agreement, S. 47-A cannot be invoked. In R. 3 (3) particulars to be furnished are with reference to any information appearing on the subject, and to examine any records kept with any public officer or authority, and hence he cannot make a roving inquiry to go behind the document and find out whether (here are any other documents in existence between the parties or not. S. 17(1)(f) cannot co-exist with S. 17(2)(b) read with it's Explanation, and therefore, incongruity sets in, and hence indefiniteness and misconception of laws are made out. In enacting an amendment, Legislature cannot make a law, without being conscious of what it had already enacted, and bring into existence contradictory provisions, which leads to uncertainties in the implementation of the provisions of the enactment. As for the circular issued, the Inspector-General of Registration has to confine himself only to the Registration Act, and he cannot issue any instruction relating to what should or should not be done under the provisions of the Indian Stamp Act, because it is for the Chief Controlling Revenue authority under the Act to issue appropriate instructions regarding assessment of market value, etc.
47. Mr. Sundaravaradan, learned counsel in his turn, refers to State of Punjab v. Jullundur Vegetables Syndicate, ,
Janapadasabha, Chhinwara v. C.P. Syndicate, ,
Baidyanatha Ayurved Bhavan v. Excise Commr. U.P., ,
and Commr. S. T. U.P. v. Parson Tools & Plants, Kanpur, , to claim that there could be no engrafting, adding or implanting any words in a taxing statute apart from the plain language used therein, and that deficiencies should not be made good. Art. 5(i) therefore deals with only works contracts which cannot be subjected to duty, because it dealt with an indivisible transaction, consistently held by the Supreme Court.
48. In the concluding stages, learned Advocate-General would state that the word 'held' as found in Art. 5(i) and S. 17(1)(f) of Registration Act, should not he read as 'owned', hut as possessed by the concerned parties.
49. The foremost point to be dealt with is, whether the amended provisions in the two enactments by T.N. Act 38 of 1987 is violative of Arts. 14, 19 and 301 of the Constitution of India. It is only learned counsel Mr. Sundra-varadan, who had laid stress on this point. In short, his submission is that, the provisions are vague, and uncertain; and if implemented it will lead to "a sea of uncertainty", and therefore, it is just and proper to strike down the amending Act. As for legislative competence, learned counsel Mr. Vedantham Srinivasa joins hands with him and claims that, when only rates of stamp duty could be deatl with under the Entry 63 of List II, there is no power to bring in to existence a classification to Schedule I of the Act, The relevant lour entries in the 3 Lists having been already extracted in para 33, and the assent of the President having been obtained on 24-9-1987 by placing before him the extent to which amendments are being carried out; the nature of submissions made in this regard does not invite any serious consideration. The file relating to grant of assent is produced before Court and it shows that the President had been apprised of the proposed bill and as to the circumstances under which the need has arisen to obtain his assent. This is not a case, as held in Gram Panchayat Jamalpur v. Malvinder Singh,
the assent had been obtained for a specific purpose, whereas the legislation goes beyond the expressed purpose. It was pointed out there that, an assent under Art. 254 is not a matter of idle formality and that President has to be apprised of the reason as to why his assent was sought and if there is any special reason for doing so, it must be stated. The series of decisions relied upon by the learned Advocate-General above referred to, pertain to Arts. 14 and 19 and go to show that it is open to the State to classify groups and categories for the purposes of transactions and so long as they are put in a particular group or category, and equally or uniformly treated, no invalidity arises. In matters of taxation, the Court has to permit greater latitude to the discretion of the Legislature, as held in Ganga Sugar Corpn. v. State of U.P., . As to what articles or groups or categories of persons are to be taxed, it is a policy decision as held in Gopal Narain v. State of Uttar Pradesh, and M/s. Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589.
50. The Legislature having the exclusive power to make the laws relating to subjects enumerated in List II and to the extent permissible as found therein relating to subjects enumerated in List III, in the context of the relevant entries above referred in para 33, this is certainly not a case wherein the State Legislature has no competence to enact the amending Act in relation to the Stamp Act and the Registration Act. There is no claim made that these amendments have infringed any of the fundamental rights of the citizens or violated of any the other provisions of the Constitution.
51. Yet N.M.C.S. & W. Mills v. Ahme-dabad Municipality, is relied upon by petitioners to claim that when a
flat rate method is adopted without proper classification, Art. 14 is violated. It was a case wherein floor area was adopted for determining rent for fixing rateable value under Bombay Act 59 of 1949, and it was held that, such a method is violative of Art. 14, because it was felt that it would give rise to inequalities, as there had been no classification of the factories on any rational basis. More important therein was that, as per the provisions of the Act, it was the duty of the Municipality to determine the rateable value of each land and building comprised in each of the textile factories. Hence, the claim that under Art. 5(i), different categories of buildings would suffer the incidence of same duty and therefore Art. 14 is violated cannot be accepted; because the incidence of duty is on the type of agreement under the said Art and there is no question of any Other method adopted for collecting duty, contrary to what are found in the Act. as done in that decision.
52. Khandige Sham Bhat v. Agrl. I.T. Officer AIR 1963 SC 591 is relied upon to claim that taxation law cannot claim immunity from the equality clause and that a taxation statute should not be arbitrary and oppressive. In the same decision it has been held that, the Court would not meticulously serutinise the impact of tax burden on different persons or interests, and if more and one method is available for assessing tax, and if the Legislature selects one out of them, then the Court would not strike down such a provision, it was a case in which to get over a different situation, the Legislature had io make a law adopting one of the diverse methods open to it, and hence the Court, by taking an over alt picture, held that the impugned provisions of Kerala Act 11 of 1959 were not unreasonable and therefore not liable to be struck down.
53. Reliance is also placed on K. T. Moopil Nair v. Stale of Kerala which held that the taxing statute is not wholly
immune from attack on the ground of violation of Art. 14. It was pointed out thereunder that the Courts are not concerned with the policy underlining the taxation statute, .mil if reasonable classification is adopted by the Legislature of persons or properties and group them into different categories and subject them to different rates of taxation. such a classification would not be open to attack on the ground that the burden results in many unequal incidences of tax. Different kinds of properties may be subjected to different rates, but so long as there is a rational basis, Art. 14 would not be invoked. Yet another decision on the same line relied upon by them is Khyerbari Tea Co. Ltd. v. State of Assam , wherein it was reiterated that a taxation law can be questioned as violativc of Arts. 14, 19 and 301, and that the Courts would act with circumspection, bearing in mind that the power of the State to levy tax for the purpose of governance and for carrying out it's welfare activities is a necessary attribute of sovereignly, and in that sense, it is a power of paramount character. Only if unreasonable restrictions bordering discriminaiion is palpably made out, the Court can act. In V.V.R. Varmav. Union of India , it was pointed out that it is for the
Legislature to determine the objects on which lax shall be levied and the rates thereof. In Twyford Tea Co. Kerala State , on the question as to on whom the burden of proving discrimination lies adding to taxation statutes, it was held that ground is heavier and heavier still, when a taxing statute is under attack and it is on the person complaining discrimination, the burden lies. It was further pointed out that, when the Legislature applies an uniform rate after equalising matters between diversely situated persons, the object for which a particular legislation is undertaken becomes relevant, in upholding it's validity.
54. In the light of these pronouncements, when the Legislature's competence is made out, and when the Legislature has the power to classify a group or class of persons, who would be liable to pay duty, and in the exercise of the valid power, the Legislature having enacted Article 5(i), to make certain kinds of agreements to be subjected to a rate of duty, and the nature of transaction covered by it being a distinct one; neither Article 14 nor 19 nor 301 is in any manner violated.
55. Mr. Sundaravaradan, learned counsel, made an attempt to claim that, in a matter of this nature, where classification is required, and when the Legislature had failed to classify the kinds of buildings relating to which agreements are entered into; it offends Article 14, and in this direction, be relied on three decisions. The first one is K.T. Moopil Nair v. State of Kerala, wherein, on a
complete analysis of the provisions of Travancorc-Cochin Land Tax Act, 1955, it was found that inequality is writ large in the Act and is inherent in the very provisions of the taxing section and that the Act does not lay down any principle or policy, for guidance of the exercise of discretion by the Government in respect of selection contemplated by Section 7 and, therefore, it was held that failure to classify in a matter of such a nature offends Article 14. The next decision is N.M.C.S. & W. Mills v. Ahmedabad Municipality in
which in respect of Rule 9(b) framed under Bombay Provincial Municipal Corporations Act, a flat rate method according to floor area was applied in fixing the annual value of textile factories for property-lax and it was held that, applied indiscriminately it was sure to give rise to inequalities in the absence of rational classification on factories. The last of the decisions is Stale of Kerala v. Haji K. Kutty , wherein it was pointed out that, in enacting the Kerala Buildings Tax Act, no attempt at any rational classification was made by the Legislature because in imposing tax, the nature of construction, the purpose for which it is used, it's situation, it's capacity for profitable user and other relevant circumstances, whichever have a bearing on matters of taxation, have not been taken into account, and only the floor area of the building having been adopted as the basis, irrespective of all other considerations; it resulted in Arlicle 14 being violated.
56. An attempt was made by some of the learned counsel to claim that the multi-house or building, as explained in Explanation (1), would lead to confusion in the application of the provisions of the impugned Article and that buildings with three or four storeys are not covered by Art. 5(i), and therefore there being indefiniteness, in the absence of proper classification of the buildings; the impugned Article is hit by Article 14. This contention fails to take note of the fact that the intention is to impose a duty on an agreement for construction of a building, which may be a house or a building. This expression of multi- unit or house or building, has acquired a commercial meaning among promoters of buildings with several flats or apartments, and hence, the need for classification as felt in' the abovesaid three decisions does not exist in the instant case.
57. Therefore, for all the reasons stated above, the impugned Art. 5(i) of the Stamp Act is not violative of Articles 14, 19(1)(g), 21 and 301 of the Constitution of India.
58. The second point to be considered is, as to how a taxing statute will have to be construed. In Supdt. of Stamps v. Breut and Co. AIR 1944 Bom 325 (SB), in dealing with Stamp Act, it was held that, if there is a doubt as to the meaning of the Stamp Act, it must be construed in favour of the subject, because a tax cannot be imposed without clear and express words for that purpose. The language of the Act must be read most beneficially for the subject- In I.T. Commr., Bombay v. Provident Investment Co. Ltd. , in dealing with the Income-tax Act, it was observed that, in construing fiscal statutes and in determining the liability of a subject lo tax, one must have regard to the strict letter of the law and the true legal position arising out of the transaction in question. I.T. Officer, Kanpur v. Mani Ram which is again a decision on the Income-tax Act, holds that, it is not permissible to contend that words which are not used in a Statute must be read into it to find out the intention of the Parliament, and that Section 18A (3) required to be read in its ordinary sense, as including every kind of assessment including an assessment under Section 23-B of the Act. Sales Tax Commr. v. Modi Sugar Mills holds the following view :
"In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency."
M/s Steelworth Ltd. v. State of Assam, 1962 Supp. (2) SCR 589 holds that, when the object of the Amendment Act was to raise revenue and when it is for the Legislature to decide as to what articles it should not tax, and if it had taken a decision to impose tax on certain articles it thought necessary; it being a policy decision, the plea of discrimination would not arise in such instances. Gopal Narain v. State of U.P., also reiterates that, it is not for the
Court to enter into the domain of speculation with a view to cover up an obvious deficiency in a legislation, unless the intention is clearly discernible on a fair reading of the relevant provisions of the Act. As to what should be the proper approach to be made to find out the intention of the law maker, Narayana-swami v. Pannersejvam, holds that, the first thing to he done is to find out the language used in the relevant provision, and the logical corollary is the resultant effect of a liberal interprcation, and if a clear provision is not made to meet a particular instance, then il is for the Court to act or modify words used in the statutory provision. Courts would depart from this rule, only to avoid a patent absurdity.
59. Stamp Act, being a fiscal enactment, in the context of the categoric pronouncement found in these decisions; Art. 5(i) will have to be read by understanding the plain language used therein, and applying it only to such of those instances, which Legislature had thought fit to apply by making provision for imposing duty and also making it compul-sorily registrable. It is not possible to accept the contentions of the learned Advocate-General to read it in the manner in which he wanted fo add words and understand certain words used therein in a different manner, as staled earlier. In Art. 5(i) the word 'sold' having been used in the past tense, his at tempt to read it as 'to be sold' is therefore not permissible, because it will certainly change the entire basis of the Art. as framed. Again he had pleaded that the words 'vendor' and 'vendee' used therein will have to be understood as 'seller and "buyer", hut these words have acquired aconnotation in legal parlance meaning that one who sells and property, especially immovable property or interest therein is a vendor, and one who buys such a property is a vendee. After the property is sold, the parties in such a transaction are characterised as vendors and vendees. Having used the word 'sold', the parties to such a. transaction have been described therein with appropriate expressions, and hence they cannot be substituted by the words "seller" and "purchaser". Equally is the other plea that the| words "so construed" in the latter portion will have to be read as "To be construed" cannot be accepted. If it is to be accepted, it would then completely change the meaning of the impugned Act. One of the Counsel claimed that, for a proper interpretation, the objects and reasons could be looked into, but it is most unhelpful to the State, as would be pointed out later on. Hence, the impugned Article will have to be read without adding any words other than what are found therein. Hence, on this point, by relying on preponderance of authorities of the Supreme Court above referred to, it is held that the impugned Article will have to be read by ascribing to the words used therein the ordinary meaning, because circumstances do not warrant implanting any words to make out the real intention of the law-maker.
60. The third point is whether a building is an immovable property or a movable property, Mr. Vedanlnam Srinivasan, learned counsel submits that since of State claims that an agreement to construct a building is taxable and registrable, il relates to a building yet to come into existence or may be one which had partly come into existence and hence it is an agreement relating to movable property. His contention is that, when materials arc piled up for constructions for a building to come up pursuant to the agreement, they are only movables. To strengthen this plea, he refers to Thangammal v. Murug-ammal , where the learned Judge in dealing with the
Presidency Small Cause Courts Act, held that a superstructure removable in execution of a Small Cause Court decree is deemed lobe moveable property, because before the lermi- nation of tenancy, the tenant may lawfully remove the superstructure before the landlord takes possession. The discussion in the judgment had been confined to the provisions of the said Act and does not deal with the concept of what is an 'immovable property'. As to whether a building is a movable property or an immovable property should not have resulted in an issue being raised herein, because a comparative consideration of the definitions of "immovable property "as found in the General Clauses Act, Transfer of Property Act and Registration Act, had been done in Board of Revenue v. A, M. Ansari . It has been held in Paragraph 9, as follows :
"The expression 'immovable property' is not defined in the Stamp Act but is defined in Section 3 of ihc Transfer of Property Act, Section 2(6) of the Registration Act and Section 3(16) of the General Clauses Act. An idea as to the meaning of the expression can also be gleaned from Section 2(7) of the Sale of Goods Act. According to learned Counsel for the appellants, it is the definition of "immovable property" as given in Section 3(26) of the General Clauses Act that has to be applied in determining whether the agreements in question fail within the definition of 'lease' or not".
A close study of the above definitions show that, it is the creation of an interest in immovable property or a right to possess it, that distinguishes a lease from a licence. Hence, if any building is embedded in the earth it is an immovable property. There is no definition of the same in the Stamp Act. But, in view of Section 3(26) of the General Clauses Act, the meaning given therein would be applicable with reference to this Act, and therefore, the agreement to construct a building deals with a transaction relating to an immovable property to come into existence.
61. The fourth point which is of considerable importance is, whether anything fixed to the soil earth becomes automatically the property of the owner of the land or the superstructure could be owned by a different person? This point has taken the Counsel appearing for both the parties decisions of antiquity (Sic). It is strenuously pleaded by the learned Advocate-General that, if any superstructure is erected over the land belonging to a person, then in the eye of law, the owner of land becomes the owner of the superstructure. Petitioners' counsel contend that the maxim relied upon by the learned Advocate-General is one of antiquity and obsolete in law and has no application in India and that ownership in land could be with one person and that the superstructure could be owned by another, provided there is a legal relationship between them. It may originate by granting him a permission, which in law means licence, or may be the resultant effect of a long lease granted by the owner for putting up the superstructure etc. Learned Advocate General relies upon ancient decisions of the English Courts as in AIR 1923 PC 189, AIR 1931 PC 203 but no attempt is made to refer to any decision of the English Courts, on this side of the century, No decision of the latter half of this Century had been produced to show that such maxim any longer survives in England. When statutory provisions have been made relating to rights over properties, goods and the like in this Country, and when parties to transactions have the right to stipulate legally enforceable terms and conditions as between them, a doctrine of this nature is inapplicable in this Country. The Tamil Nadu City Tenants' Protection Act confers right upon the tenant who had put up the superstructure at his own eost, to demand the owner of the land to sell it to him, in the event of an ejectment suit filed against him. Section 4 therein enables a landlord who succeeds to take the superstructure by paying its cost. The lessee who acquires only an interest to enjoy the land as found in Section 105 of the Transfer of Property Act is thus enabled to put up a structure over the lands of the lessor. By the construction coming up, the lessor cannot claim ownership in the building. What is required is only the existence of certain legal relationship between the parties and no more. Hence, all the counsel appearing for the petitioners have vehemently opposed the reliance placed by the learned Advocate General on the maxim, "quic quid insodi-ricatur solo solo cedit". It means that, whatever is affixed to the soil belongs to the soil. i.e. if A builds on B's land, the building becomes the properly of B. Claiming that this maxim will have to apply in the instant case, in relation to the agreements entered into between the parties when high rise buildings are constructed, the learned Advocate, General would refer to Narayan Das v. Jatindra Nath, 54 Ind App 218 : (AIR 1927 PC 135). It was a case in which the respondent's father was the proprietor of a parcel of land on which he had put up a house at his cost. The land was sold for arrears of revenue and the appellant as auction purchaser secured a sales certificate. The land was acquired under the Land Acquisition Act and compensation for the superstructure was fixed and this amount was claimed by the auction purchaser and he was referred to the Civil Court to get a decision. It was held that the Government's sale for arrears of land revenue was limited and therefore the ownership of the building did not pass to the auction-purchaser by reasons of the revenue sale. In arriving at the said conclusion, it was held as follows :
"......having special regard to the view held in India respecting the separation of the ownership of build ings from the ownership of the land, and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it and is subjected to the same rights of property as the soil itself....."
In the previous but three paragraphs, a reference was made to the aforesaid English maxim and it was stated that, there was a concession by the counsel that this maxim has at the most only a limited application in India. It is this concession found therein that the learned Advocate-General relied upon to claim that once such a maxim is applicable and specific provisions having been made in Sections 63-A and 108(2) and Section 8 of the Transfer of Property Act relating to passing of ownership in properties erected on somebody else's land under certain circumstances like mortgaged and leases, wherever a building is put up on the land belonging to another, pursuant to an application made to the concerned authority under the Tamil Nadu Country and Town Planning Act, claiming to be the owner; whatever be the terms agreed to between the parties, irrespective of them, in law, the owner of the land becomes the 'owner of the building'.
62. The paragraph above extracted clearly shows that such a maxim was not recognised by the Privy Council as applicable to India, It is stated that "having special regard to the view already in India respecting the separation of the owner of the building with the owner of the land and to the recognition by the Courts in India that there is no rule of law that whatever is affixed or built on the soil becomes a part of it and is subject to the same rights of the property as the soil itself. Hence such a maxim is inapplicable in India. Rather, the decision proceeds on the basis that it is inapplicable in India, and the concession by the counsel therein was the outcome of a misunderstanding of the law obtaining in this Country. N. C. Maclrod v. Kisson Vithal Singh, (1906) ILR 30 Bom 250 is a decision by the learned Judge observing that the Transfer of Property Act makes no distinction between freehold and leasehold property for the purposes of Sections 8 and 79 of the Act and that in this respect, the Act reproduces the English law, which is that all things which are annexed lo the property mortgaged are part of mortgage security and the deed need contain no mention of structures or fixtures, unless a contrary intention can be collected from the deed. The other decision is Balram Singh v. Ganga Singh, AIR 1926 Oudh 358, wherein the learned Judge held that if a Zamindar transfers his Zamindari share in a village it may be presumed that he sells the property including his share in the abadi which means the house standing thereon. It was pointed therein that there are no words in the deed under consideration showing the intention to retain or exclude the house in suit. It was also taken note of, about his desire that his sister's sons should get everything owned and possessed by him. It was by having regard to all the facts and circumstances and the contents of the deed, it was held that the transferee acquired rights in the building as well. This decision does not lay down any principle of law on this aspect, but based on the facts and circumstances of that case, and on interpretation of the deed, it was held that the house is included in the deed. He would then pass on to Bishan Das v. State of Punjab. , which refers to the decision of the Privy Council and it is slated as follows :
"It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolule rule of law of this country..... a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser nor would the buildings so constructed vest in the owner of the land...."
He would respectfully submit that sections 63-A, 108(h) and 8 of the Transfer of Property Aet had not been placed before the Court to show that the principle behind this maxim could be invoked; because it has been statu-torily recognised with particular reference to mortgages and leases. Section 63-A deals with improvements on mortgaged properly by the mortgagee, and in the absence of contract to the contrary, upon redemption, except as to what arc provided in sub-section (2), other improvements belong to the mortgagor. Section 108(h) states that the lessee may, even after the determination of lease, remove when he is in possession of the property leased to him, but not afterwards, of things which he has attached to the earth. Hence, when he fails to remove before the termination of the lease any superstructure, the owner of the land becomes the owner of the superstructure. This also is subject to the contract or local usage to the contrary. By relying upon these decisions and the two sections it is submitted that the concept that the owner of the land becomes the owner of the building as it conies up, is recognised in this country and, therefore, in law. building being an immovable property, ownership of it cannot he with a different person from that of the owner of the land. Even these two sections relied upon by him are confined to only two kinds of transactions, and clearly stale that parties to these transactions may contract to the contrary. As to why section 63-A came to be passed; in Md. Mohideen Rowther v. Mohd. Mohideen Rowther it was observed
that "the object of the restriction is to prevent the mortgagee from improving the properly in such a way as to make it utterly impossible for the mortgagor with his means lo redeem it". Looking into the covenants involved therein, it was held that the parties have agreed to the mortgagee being enlilled to the costs of the improvements and, therefore, he is entitled to be paid the cost of the works carried out by him, before the mortgagor redeems the property. A reference is also made to Fitrat Husain v. Liaqat Ali, (F)(AIR 1939 All 291). wherein while dealing with Seclion 8 of the Transfer of Property Act. it was held that the title to trees and shrubs passes with the transfer of proprietary rights in the land. This decision is relied upon to stress that Section 8 of Transfer of Property Act, contemplates as to what legal rights passed, when a property is transferred with right, title and interest in immovable property It begins by stating "unless a different intention is expressed or necessarily implied" and, therefore, the concept Ihat the owner of the superstructure could be different from the owner of the land, is recognised and applied in India. It is important to bear in mind that only whatever interest that the transferor was then capable of passing in the property could pass and what he does not own can never be transferred. When the basic question is whether the owner of the land possesses ownership right in the building; Section 8 could be of no assistance to sustain the claim of the learned Advocate-General. It does not advance the proposition that, if any building comes up over the lands owned by a person, he automatically becomes the owner of the property. In this context a reference could be made to Seclion 51, which deals with a bona fide holder under a defective title improving an immovable property in good faith, and when dispossessed, he would be entitled to the value of the improvements made by him. Rather, the Transfer of Property Act pro-ceeds on the basis that in law ownership of a building is different from ownership in the land, and that land and building could be owned by different persons in the eye of law. Therefore, reliance placed on Sections 8, 63-A and 108(h) does not in any manner advance the propositions put forth by the learned Advocate General.
63. Rather, Advocates appearing for the petitioners have relied on the decisions undermentioned to show that this obsolete maxim has no application in India. Mr, Mohan Parasaran, learned counsel would straightway refer to a Division Bench decision of this Court in Venkatasubbiah v. Thirupurasun-dari, wherein after
referring to Section 63 of the Transfer of Property Act, it was held categorically,
"There is no substance in this contention. This maxim -- whatever is affixed to the soil belongs to the soil is a rule of considerable antiquity and has been held to be inapplicable in this Country."
In India the view has been uniformly taken that the English doctrine of fixtures as to buildings would not apply and that the party who builds on another's land should be allowed to remove the materials".
As already referred to in Bishan Das v. State of Punjab , it was held that it is well settled that the maxim, what is annexed to the soil goes with the soil has not been accepted as an absolute rule of law in this Country, another Division Bench of this Court in M. A. Kadar v. Dt. Collector Kanyakumari
expresses the same view. Being bound by these decisions, this Division Bench does not see any valid ground made out for accepting the plea of the learned Advocate General, that basic for (Sic) such a maxim Article 5(i) will have to be understood and implemented.
64. Before parting with this point, it will he necessary to refer to the undermentioned decisions relied upon by learned counsel for petitioners, as to how far the Sections in the Transfer of Property Act relied upon by the Stale cannot be understood in the manner in which it is put forth by it. The Division Bench in C. V. Gokulapathy v. K.R.V. Sarma in dealing with Section 51 of the said Act, had pointed out that the rights of the lessee are under Section 108, and the Section 51 relates to improvements made by a bona fide holder under a defective title, and a lessee cannot rely upon it. and his right under Section 108 is circumscribed to what is contained therein, and unless there is a contract or local usage to the contrary, he could claim ownership in the superstructure, if he exercised his rights when he is in its occupation. Hence, the defendants therein were given three months time to remove the superstructure and hand over vacant possession to the plaintiff. This decision shows that ownership could be with different parties relating to superstructure and land. In dealing with Section 108(h) a learned Judge of this Court in K. Arumugham Naicker v. Sri Thiru-valluva Nainar Temple held that, when adecree is passed for vacant possession of land, it will be made effective by directing removal of superstructure, because such a power of removal is incidental, necessary and an ancillary power to the power to direct to delivery of possession of the property under the Presidency Small Cause Courts Act. Deokinandan A. Aghorennath Banerji ILR 24 Pat 268 : (AIR 1945 Pat 400) holds that in the absence of any reservation found in the document on partition, as the mortgagors were allotted the land on which the house then stood, the security or mortgage created would include both the house and the land : this decision also thus recognises that the parties even to a mortgage transaction could differently deal with rights in the land separately, from the rights over the superstructure, if their intention is made clear in the instrument. Relying on this decision, the petitioners succeed in showing that, even in the case of a mortgage. or a lease or any transaction relating to transfer of interest in property it is open to parties to convey only such of those rights or interests which they choose to transfer and that when an owner of land only intends to transfer his rights therein, either as a whole or partly, he cannot be compelled to part with his rights in the superstructure, if any, if he intends to deal with it separately. They also succeed in the contention that, ownership in land and ownership in superstructure could be with different persons; provided there is a legal relationship existing between them as! parties to a contract. Entry into the properly by the owner of the superstructure must be after obtaining the lawful consent of the owner of the land. Whether the superstructure is of a temporary or permanent character, it is material relating to its ownership and merely because it gets erected on the land of another, automatically the owner of the land does not become the owner of the superstructure; if the intention of the parties is olherwise. Section 8 of the Transfer of Property Act only deals with a right which the transferor had and when capable of passing in the property on the date of transfer which would get transferred to the transferee, if no contra intention is expressed or necessarily implied. When the owner of the land is not the owner of the building, this section cannot be relied upon. With these conclusions, this point is decided against the respondent.
65. The fifth point is, whether non-existing property could be the subject matter of transfer. This contention was argued at length by Advocates for petitioners, because they initially proceeded on the basis that Article 5(i) deals with the transfer of interest in immovable property and, therefore, unless the property is in existence, it could not form the subject matter of an instrument of transfer; and secondly on the plea that this impugned article should have found its place under Article 23, and if it is so, a future property cannot be transferred. This contention does not assume any importance, in view of the stand taken by the learned Advocate-General that the impugned article is only "an agreement to construct a building" and not even an agreement to sell. Yet, to the limited extent the decisions relied upon are referred to herein. Annada Mohan v. Gour Mohan AIR 1923 PC 189 is to the effect that under Seelion 6(a) of the Transfer of Property Act, it does not permit a person having expectations to succeed to an estate as heir, to transfer the expectant benefits, because, in essence, it is an attempt to transfer a chance. Jugal-kishore Sarap v. Taw Cotton Co. Ltd. 1955 Mad WN 421 : (AIR 1955 Mad 376) relied upon by Mr. Narayanaswami, learned counsel for some petitioners, shows that, Section 8 of the Transfer of Property Act does nut operate to pass any future property, for that section passes all interests which the transferor had been i.e. on the date of transfer. In Moti Ram v. Khyali Ram, , it was held that a transfer could be only of
specific property which is in existence, but agreement to transfer can be of future property and equally, there could be an agreement to assign interest in future. A Division Bench of this Court in dealing with a transaction in film trade and with reference to Section 2(17) of the Stamp Act in Chief Controlling Revenue Authority v. Sundar-sanam Pictures, held that, if Article 40(a) and (b) are to apply, then the mortgage must be over a right or in respect of a specified property, which is then in existence, and that a purported transfer of property not in existence at the time of the contract can only operate as a contract put forth in future. It was then observed as follows :
".....As will be seen presently it is settled law that while a transfer of property may take place not only in the present, but also in the future, the property must be in existence at the time of the transfer, for an instrument to be a deed of transfer.....The conveyance may be in present or in future, but the conveyance should be of properly in existence. A purported transfer of property, not in existence at the time of the contract, can only operate as a contract to be performed in future....." (page 669).
66. Since the impugned Article does not deal with transfer of interest in immovable property whether a building which is not in existence could be transferred or not need not be further gone into; except for recording the point taken and the decisions relied upon by the respective counsel.
67.The next point will be as to what principles must be borne in mind, in interpreting the impugned article. In dealing with the question as to whether a particular document is a lease or licence, in Associated Hotels of India v. R. N. Kapoor, , the approach made was to hold that the substance of the agreement that matters and not the form, for otherwise, clever drafting can camouflage the real intention of the parties. The real test is the intention of the parties about the nature of the transaction, and this will have to be ascertained from the terms of the document. In dealing with the same Act in Bapiraju v. Dist. Registrar, (FB), in
conjunction with Section 8 of the Transfer of Property Act, it was held
"It is well settled that the construction of the terms of the document cannot be an authority for the construction of another document as each case depends on the terms of the document in that particular case".
Already, the decision in I.T. Officer, Kanpur v. Mani Ram, had been referred to which holds that words cannot be read into a tax-enactment, and a subsequent Act offers no useful guide to the meaning of another Act which came into existence before the latter one was ever framed. Yet another decision, which has been referred to, is the one in Narayanaswami v. Panneerselvam, , in which in Paragraphs 10 and 20, the earlier
decisions had been referred to, to point out that any omissions in an enactment cannot be made good, and Courts will depart from the normal rule of plain meaning or literal construction, only if the interpretation arrived at results in patent absurdity; and that Courts should try to harmonise the various provisions in the Act, hut certainly would not stretch the words used by the Legislature to fill up gaps or omissions. In M/s. Doypack Systems Pvt. Ltd. v. Union of India, , it was pointed out that, 'contemporanea
expositio' is a well settled principle or doctrine, which applies only to the construction of ambiguous language in old statutes, and it is not applicable to modern statutes. Reference was made therein to Maxwell 13th Edition, page 269. Hence, in ascertaining the intention of the Legislature as to what kind or kinds of agreements it had chosen to subject to payment of duty under Art. 5(i); the plain meaning of the words used, will have to be applied and more so, as earlier held, Stamp Act being a taxing Statute, strict interpretation is inescapable.
68. One more point remains to be considered, before resorting to construing the impugned provision. It is the contention of the learned Counsel, Mr. Sundaravaradan, that it is a works contract which had been subjected lo duty, and in the context of the two pronouncements of the Supreme Court, it is an indivisible transaction, and hence, it cannot be subject to any taxing measure, i.e., either to sales tax or stamp duty or regis- tration charges, and the like. Though he had put forth extensive arguments and repealed this contention more than once; this is a point advanced on the premise that the impugned Article deals with transfer of interest in an immovable property which is yet to come into existence. Now that it has been made clear by the respondent/State that it is only an agreement to construct a building; how far these two decisions are relevant are considered hereunder.
69. State of Madras v. Dunkerley & Co., dealt with
the levy of sales tax under the Madras General Sales Tax Act on what are called as "Works Contracts". After making particular reference to the words "sale of goods" in Entry 48 in List II, it was held as under :
"But we are concerned here with a building contract, and in the case of such a contract, the theory that it can be broken into its component parts and as regards one of them it can be said that there is a sale must fail both on the grounds that there is no agreement to sell materials as such, and that property in them does not pass as movables.
To sum up, the expression 'sale of goods' in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant lo that agreement. In a building contract which is, as in the present case, one enlire and indivisible and that is its norm there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale.
.....But our duty is to interpret the law as we find it, and having anxiously considered the question, we are of opinion that there is no sale as such of materials used in a building contract, and that the Provincial Legislatures had no competence to impose a tax thereon under Entry 48."
The next decision is Builders Association of India v. Union of India rendered by Supreme Court relating to works contract after Constitution (Forty-Sixth Amendment) Act, 1982. It was held that after this amendment, works contract which was indivisible one, is by legal fiction altered into a contract which is divisible into one for sale of goods and the other for supply of labour and service. It was then held that it is not correct to say that the properties that are transferred to the owner in the execution of a works contract are not the goods involved in the execution of the works contract, but a conglomerate, that is the entire building that is actually constructed. It was also observed therein as follows :
"Even after the decision of this Court in the State of Madras v. Cannon Dunkerley & Co. (Madras) Ltd. , it was quite
possible that where a contract entered into in connection with the construction of a building consisted of two parts, namely, one part relating to the sale of materials used in the construction of the building by the contractor to the person who had assigned the contract and another part dealing with the supply of labour and services, sales tax was leviable on the goods which were agreed to be sold under the first parl. But sales tax could not be levied when the contract in question was a single and indivisible works contract......"
This observation was made in view of what had been held in para 48 of which is extracted hereunder.
"To avoid misconception, it must be stated that the above conclusion has reference to works contracts, which are entire and invidi-sible, as.the contracts of the respondents have been held by the learned Judges of the Court below to be. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at page 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for works done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell, from the agreement to do work and render service and to impose a tax thereon cannot be questioned, and will stand untouched by the present judgment."
Hence his contention that in both the decisions it has been held that the works contract is indivisible, overlooks this important conclusion arrived at by the Supreme Court that sales-tax could be imposed on the component relating to supply of materials, if separable. The two decisions have least impact, in so far as the Stamp Act is concerned, because under the Stamp Act, pertaining io the nature of instruments as defined in Section 2(14), Stamp duty could be collected and Schedule I therein contains a description of various kinds of instruments. Article 9 deals with "Apprenticeship deed", which includes "every writing relating to service or tuition of any apprentice clerk or servant, placed with any master to learn any profession, trade or employment." Therefore, the services extended could be taken into account, for purposes of stamp duty. It is immaterial whether it is a composite document or one which contains both the elements of service and supply of goods separately, because both the elements in the agreement as such can be subjected to d uty. The concept of sale of service is alien for the purposes of Sales-tax Act. Hence, in the case of agreements which pertain to both supply of services and materials being subjected to duty under this Act is quite permissible. Regarding the character and nature of the instrument, which invite the applicability of Article 5(1), the charging section is Section 3, and the kinds of instruments found in Schedule I are chargeable to duty. Service agreements are subjectable to stamp duty as found in Art. 9. Hence a works contract, which comes within the ambit of Art. 5(i) is chargeable to duty under Section 3 of the Act. Hence, this point is decided against the petitioners.
70. One other point put forth by petitioners is that Art. 5(i) deals with transfer of interest in immovable property and, therefore, it should be read as part of Art. 23, because in the objects and reasons, loop-holes which were intended to be plugged were with reference to the conveyance of ownership of apartment by promoter to respective owner by treating it as agreement. It is claimed by them that, in pith and substance, what is intended under the Article is to convey the rights in immovable property and that it had been wrongly included by the legislature in Art. 5, instead of making it as part of Art. 23 which alone deals wilh conveyance. Misplacing could not take away the intendment of the Article, and when the resultant effect is a double levy of duty, one under Art. 5(i) and again under Art. 23; it is illegal and oppressive. In the objects and reasons, the relevant portion is as follows :
"The conveyance of the ground with a joint ownership, for all apartment owners is registered and stamp duty paid accordingly. But the conveyance of ownership of each such apartments/units by the promoter to the respective owner is treated as "agreement'. As 'agreements' need not be registered under the Registration Act, 1908 (Central Act XVI of 1908) no stamp duty is paid therefor. To plug this loophole for evasion of stamp duty and registration fee and to ensure that no distinction is allowed in payment of stamp duty on conveyance of properties, it is proposed to provide that the duty on the agreements relating to construction of a multi-unit house or building on land held or to be held by several persons, be levied at the rates specified in clause (i) under Art. 5 in Schedule 1 and also that such agreements should be registered compulsorily."
Reliance is placed on M/s. Doypack Systems Pvt. Ltd. v. Union of India wherein it is held :
"The objects and reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt."
Learned Advocate-General submits that this article neither deals with the transfer of interest in immovable property nor it deals with agreements to sell immoveable property, but it is confined only to agreements to construct buildings. In interpreting the words in a Section, the contents of objects and reasons cannot be looked into and the plain meaning as intended by the Legislature will have to be ascertained from the words used in the statue, and the objects and reasons could be looked into for finding out what mischief is sought to be remedied by the proposed amendment and how it is proposed to tackle the situation on hand. The word 'conveyance' used in objects and reasons cannot be equated to 'Conveyance' as would come under Article 23, there had been no misplacing, as claimed by the petitioners. It is an indisputable fact that, in the objects and reasons, 'conveyance' of ownership of each apartment/unit by the promoter to the respective owner is treated as agreement. Care ought to have taken in avoiding such an error, because the respondent still pleads that the impugned Article does not deal wilh conveyance at all. "Conveyance" has been defined in Section 2(10) of the Stamp Act, as including a conveyance on sale, and every instrument by which properly, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1. When an amendment is brought forth in relation to this Act, the use of this word could not have been casually done by the Government, in moving the legislature for amending the provisions. The emphasis laid by petitioners that objects and reasons would be relevant for construing sections in an enactment cannot be countenanced because it has been repeatedly held that they cannot bring out the real intendment of the words used in the enactmenl. It must be remembered that, whatever might have been the object of the Government in placing a proposed amendment before the Legislature it ultimately decides on how to make the law, and the Act passed could be far different from what the Government had thoughl of, in introducing the bill. During the course of the discussion of the Bill in the Legislature, decisions may be taken to radically change a Bill or to effect marginal changes which are necessary, consequent to the discussions held in the Legislature. What may ultimately emerge out as Act could be far different from what are spelt out in the objects and reasons. That was why it has been held that the words used in a particular section of an Act will have to be understood by ascribing its proper meaning; without being guided by what are found in the objects and reasons. It could be looked into to find out as to what mischief is sought to be remedied and how the Government proposed to get over the situation faced by it by seeking to amend the law. Hence, the word 'conveyance' found in objects and reasons could not be the ground, to treat the impugned Article, as part of Article 23.
71. As to whether Art. 5(i) deals with an agreement to sell or only an agreement to construct a building here again petitioners' counsel had vociferously claimed that it deals with an agreement to sell a building to come up or had already come up partly; and as framed, it brings into existence anomalous agreements and. therefore, unless the building is in existence, such a provision is illegal. If it is to be const rued as a conveyance, as claimed by them, then an agreement of this nature should result in transfer of right, title and interest in favour of the person, who contracts to buy the flat. Then there will be no need to execute a sale deed to him. Unless 'conveyance' as found in Section 2(10) takes place and a transfer of interest in immovable property takes place; it would not be proper to treat the impugned article, as part of Article 23. It is not even an agreement of sale but only a works contract. Along with the amendment to the Stamp Act. Section 17(1) of the Registration Act had been amended and in the light of the words used therein, and read with section 17(2)(v) and the explanation to it; it could not be treated as an agreement to sell or that it tantamounts to conveyance. This aspect will be dealt with later on, while dealing with the amendment to the Registration Act. As more than once pointed out. since the respondent State had claimed that it is only an agreement to construct a building; on this point, it is held that Article 5(i) deals with neither an agreement to sell, nor with conveyance.
72. Now, to take up the scope and ambit of Art. 5(i); it deals with agreements, wherein the owner of a land had sold to another or more than one. containing a stipulation that such land sold by him together with the building so constructed by him, shall be held, either individually or jointly, by the other ori others. The words "on land sold" refer to a; transaction which had already taken place Having used past tense, it is not permissible, as pleaded by the learned Advocate-General, to read these words as "on land to be sold". It is when an owner of land either sells the whole of it or part of it, and thereafter enters into an agreement relating to construction of a build-ing of the nature described therein with a stipulation that such land sold together with the building to be held by the other party to the agreement, Article 5(i) would become applicable. The words 'together with such house' are referable to the building which the vendor of the land agrees under the agreement to construct on "such land", which he had already sold to the agreement holder, which may be either part or a share in it or the whole! of it. As for the words 'so constructed shall be held', eventhough the learned Advocate-General here again would attempt to read it as 'to be so constructed', on what has been pointed out above relating to interpretation, it is not permissible to read it so, because that would destroy the real intendment of this Act. The words "so constructed shall be held "only mean that the owner of the land, who agrees to put up the building; on so contructing it as per the agreement, would then allow the agreement-holder to hold it. As for the word 'hold', the learned Advocate-General would submit that it relates to a right to take possession, when a building is constructed, as per the agreement. If the word "hold" is to be understood as resulting in ownership, it would make it a conveyance, which is not at all the intendment of this Article. It is only referable to securing possession on the construction of the building to the extent of covering the area agreed to between the parties. Regarding the expression "together", it means that the vendor of land, after sale of land or a share in the land while entering into an agreement to construct the building, agrees to a stipulation that on so constructing the building or part of building, he would deliver possession of such land together with the concerned portion of the building or the entire building as the case may be. In spite of having sold the land or a share in the land, it is by virtue of the agreement to construct the building, he retains possession of what he had sold under the sale deed, and therefore agrees to deliver possession of "such land together with such house or multi-unit house so con-structed." Hence, what this Art. deals with is confined to a particular kind of transaction: wherein the primary requirement is that the owner of land must have sold a share of his right, title and interest in the land to the other party to agreement.
73. After executing a conveyance of this nature, the owner of the land (Vendor) enters into an agreement relating to construction of a building with the vendee, i.e.. the part owner of the land, undertaking that he would put up the conduction, and on the building apartment so constructed, he would deliver possession of that portion of the building as agreed to between parties. The erstwhile owner of that portion or share in the land, secures a right to put up the building, as proposed by him. The need for executing sueh an agreement arises, because in a case where the owner of land proposes to put up 12 flats, either with his own money or on money given by the agreement-holders; at the time w;hen he sells one-twelfth share therein and is yet to sell the other shares: he continues to be the owner of 11 12th share in the land. He does not want to part with possession of that portion of the property belonging to him. Therefore, under the agreement, he retains possession and control over the entire land till the building is constructed. Thereafter, he enters into agreements with different parties and executes sale deeds, only confined to the respective shares in the land belonging to him. As far as the building is concerned : he assumes the role of a Contractor to construct the building, on funds supplied by the vendees, who had since become part owners of the proportionate share of the land. Having lost his right over that share in the land by the sale effected confined to land alone, it is only under the agreement, he secures the right to be in possession, till the building is completed. As soon as the building is 'so constructed', he agrees to deliver possession, either individually or jointly to the vendees of the land. He may happen to hold one of the flats apart- ments or choose to invest his funds in some portion of the building and retain as it's owner. In so far as the superstructure is concerned, vendees contribute their funds to the erstwhile owner of the land, who had assumed the role of a 'building contractor' and carries out work, like what is called a 'works contract'. It is such a building contract, when entered into, invites the application of Article 5(i), Hence it does not result in transfer of interest in any immovable property. In so far as the land is concerned, already the right, title and interest of that share had been transferred to the vendee. As far as the 'built-up' portion is concerned, as a Contractor having accomplished the building contract, Vendor of land delivers possession of it as per the agreement to the vendee, who had invested his money in the construction of the flat apartment in the building. Therefore, the building contractor (erstwhile owner of the land) had not acquired any ownership rights in that portion of the building, which he had agreed to construct under the agreement and, therefore, the aspect of transfer does not arise at all.
74. Learned Advocate-General had submitted that, this Article contemplates three aspects, they being (1) agreement to construct a building, (2) it must be put up by the owner of the land and (3) land and building must then belong to the owner ot the land. It is the last one, which cannot be accepted, because of the kind of words used in the Article, which had been analysed, as above. A reading of this Article in the manner done, does not lead to any absurdity or vagueness or indefiniteness in it's application. It may be that several abuses are occasioning relating to construction of multi-unit buildings by promoters, but the Legislature having thought of containing it by confining it to instances wherein the owner of the land becomes a contractor of the building; the Court would not read into such a provision, to get rid of all evils, or mal practices resorted to by promoters. The mischief which is sought to be remedied having been restricted to a limited kind of transaction; the existence of comprehensive legislations made in Delhi or Maha-rashtra need not be taken into account by Court. It is entirely left to the wisdom of the Legislature to enact a comprehensive legislation to plug every loop-bole or confine to a limited abuse alone. Paragraph 4 in the objects and reasons reads as if the amendment would plug the loophole. It is not uncommon to find claims being made of enactments being ushered by the Government to bring reforms, but when Acts arc enacted they contain exemptions or relaxations, which stand in the way of removing the mischief altogether. Even though public may expect far reaching reforms to be carried out. the Legislature in it's wisdom may restrict the scope of the enactment only to some aspects. Hence, even though there may be and in fact there are several kinds of instruments entered into by promoters in putting up multi-storeyed buildings: the Legislature by this amendment had confirmed the regulatory measure only in such of those instances, where the owner of the land becomes the building contractor. He may get it accomplished by engaging other agencies to put up the building: but under the agreement, he assumes the responsibility for the construction of aflat or apartment in the building. He may put up the construction by the contribution of funds by the vendees, in which event, he would not become the owner of that portion of the superstructure but if he erects any portion of the building out of his own funds or by securing loans from anybody else; the building being an immovable property and interest in that portion having been acquired by him; on the day when he sells a share of his interest in the land, the superstructure also belongs to him, and therefore, it he chooses to convey only an interest in the land; his rights in the superstructure would not get transferred by delivery of possession, unless a conveyance in that regard is executed later on, if it's value exceeds Rs. 100-. This aspect would depend upon the facts and circumstances of each case. As for the scope of Art. 5(i), as pointed out above, it is confined to only one kind of transaetion, in which the owner of the land must also become the contractor for the building and who agrees to deliver possession of that portion of the building put up at the cost of the vendee of the land.
75. It is the contention of the learned Advocate-General that it is only the owner of the land who can make an application for construction of the building under The Tamil Nadu Town and Country Planning Act, 1971. and therefore when the owner of the land makes an application for construction of the building, he must be deemed to be the owner of the building. He relies upon Forms A and B under S. 49 of the Act. which has to he signed by the owner of the land, and also to the statement which will have to be made in Form B, stating that the applicant is the owner of the land which he wants to develop. If there is any contravention, he would be held responsible. As for Form A, it deals with an application for planning permission for laying out land for building purposes. He claims therein that he is the owner of the land, and wants to divide it into building sites. He states in the concluding portion that he is the owner of every part of the land. Certainly, this form has no relevance, so far as the building is concerned. As for Form B, it is an application for planning permission to develop land and building, other than those covered in Form A. Here again, in the concluding portion, he states that he is the owner of the land; but in this form, because it is stated that the signature of the owner of the land and building is to be affixed, it is contended by him that it must be treated that he is the owner of the building. This is a far-fetched contention which cannot be entertained because the forms themselves contemplate that they could be signed by any "applicant". It is not the form which could guide the relationship between the parties, because S. 49 nowhere uses the word 'owner of land or building'. It only states that "any person" intending to carry out any development of any land or building, shall make an application to the appropriate planning authority in such form, containing particulars accompanied by such documents as may be prescribed. Ownership in a particular property, whether movable or immovable, is depended upon the facts and circumstances of each case. As applicant for grant of permission, he may be held liable for contraventions. This Act nowhere deals with ownership rights relating to buildings or lands. It does not control ownership rights. The object of the Act is "to provide for planning the development and use of rural and urban lands in the State of Tamil Nadu and for purposes connected therewith." Hence, as found in the Transfer of Property Act. parties to a transaction of immovable property could always enter into any kind of legal relationship, in the manner in which they choose to do. It is entirely left to the discretion of the owner of the land to part with his rights in the land, either in favour of one or many. He may permit another person to put up the superstructure on his land, at his own cost. He may lease out the land for 100 years or more and permit the lessee to put up the superstructure at his own cost. Subject to these rights, he may convey interests in the land to another person. Equally, a person who had put up the superstructure may convey his rights in the superstructure to another person, with the rights acquired by him from the owner of the land. Once a legal relationship exists between the owner of the building and the owner of the land, the ownership in each of them could be with different persons, as already stated more than once. But, if the owner of the land puts up any construction over the land with his own funds, then it is no doubt open to him to sell only his interests in the land; but acquisition of right, title and interest in the superstructure exceeding Rs. 100/- in value having vested in him, it cannot get transferred, unless it is conveyed by another instrument i.e., sale deed and duty paid under Article 23 of the Act. It tantamounts to a conveyance of interest in immovable property and could not be achieved by mere delivery of possession, after sale of only a share of interest in the land.
76. The next point relates to amendment of Section 17(1) of the Registration Act. The amendment effected is as follows: --
"Section 17(1)(f) : instruments of agreement relating to construction of multi-unit house or building on land held by several persons as referred to in clause (i) under Article 5 of Schedule 1 to the Indian Stamp Act. 1899 (Central Act II of 1899)."
Here again, every counsel for the petitioners strenuously contends that, when S. 17(1) deals with immovable property which is in existence; an agreement relating to a construction yet to come up. cannot be made part of S. 17(1) of the Registration Act. It is not in serious dispute that under the Registration Act, it is open to the Legislature or the Parliament, as the case may be, to make any instrument as compulsorily registerable. Here again, what is contended is that, there has been a misplacement done by the Legislature. If it had chosen to put this as Section 17(4). it could have been differently approached. When all the sub-clauses of Section 17(1) pertain only to immovable property and when instruments must relate to a property situated in a District; unless it is in existence, an agreement in respect of a property which is to come into existence in future, cannot be made compulsorily registerable. It is not necessary to reiterate the contentions relating to existing property, future property and the like; which have been already dealt with. Section 17(1)(b) states that non-testamentary instruments which purport or operate to create, declare, where present or future, any right, title whether vested or contingent, in immovable property is registerable. Therefore, to claim that what is to come into existence in future cannot be the subject matter of an agreement and that too a works contract, is not acceptable. Article 5(i) deals with a building contract, and it is in relation to a land which is situate on the date of the agreement in the concerned District and, therefore, when the building to come up is an immovable property, which would be embedded in the land situate within that District, there was no illegality in incorporating the amended provision, as part of S. 17(1). What is then contended is that when S. 17(2)(v) read with Explanation, deals with an agreement to sell and does not require registration; by introducing S. 17(1)(f), an incongruity had set in. This argument could be entertained, if only Article 5(1) agreement is to be construed as an agreement to sell. Once it is held that it is a building contract; neither Section 17(2)(v) nor Explanation to it. would have any relevance. Hence, no invalidity is, perceivable relating to S. 17(1)(f) of the Registration Act.
77. The next line of attack made by petitioners is on the circular issued by the Inspector-General of Registration. Madras, on 9-12-1987, directing the concerned Sub-Registrars, to withhold certain kinds of instruments which would come under the Amendment Act 38 of 1987 and to send the same to the Deputy Inspector General for Registration who would make a direct inspection of the concerned property and direct the concerned Sub-Registrar as to whether it could be registered or not. In the event of any deficit stamp duty, it is only after collect ing it, the document could be registered. Several contentions have been put forth and in particular Mr. B. Shanta Kumar. learned counsel and Mr. P. S. Venkatasubramaniam, learned counsel, have raised serious objections about the authority of the Inspector General to intercept registration of documents, and as to how he had interferred with the quasi-judicial functions of subordinate authorities and, therefore, it is liable to be struck down. Mr. Vedantham Srinivasan. learned counsel denounces the circular as a blatant abuse of the power by that Authority: and Mr. Radhakrishnan would add to it by stating that by detaining documents for several months and by the inaction of the Authorities the concerned parties have monetarily suffered and manifold disadvantages have ensued by the impugned circular.
78. The first point on this aspect is to find out as to what are the duties of a Registrar under the Registration Act, when a document is presented for registration. Part VI of the Registration Act deals with 'presenting documents for registration'. Section 34 deals with enquiry before registration by the Registering Officer. Mr. Vedantham Srinivasan, learned counsel, and others would state that under Sections 34 and 35, the Registrar has to see. whether the document has been presented in the manner prescribed under the Act and by a person authorised to present it and whether it had been presented before the proper officer, and whether it had been executed by the person by whom it is purported to have been executed so that he could satisfy about the identify of the person appearing before him; and once these requirements are satisfied, he is bound to register the document, except on the grounds mentioned in Section 35(3) or under the provisions of any other law which have been made supplemental to the Registration Act. It is certainly not within the domain of the Sub-Registrar to decide whether the document satisfies the requirements of a particular law or whether the recitals are proper or whether any other parties are interested in the transact ion etc. If all the executants of a deed admit execution before the Registrar, then he has no right to go behind the recitals found in the deed. If the document is not properly stamped he could only forward the document to the Collector; after impounding the same. All Sub-Registrars having been notilied as Collectors as defined under Section 2(9) of the Stamp Act; after carrying out registration; for deficit stamp duty, if any. under the Stamp Act. action could be taken for recovery of the deficit stamp duty. Therefore, the directive in the circular to stop the registration is opposed to the provisions of the Registration Act. This Court in Venkataswami Aiya In Re has held :
'... Although the Registrar before whom a document is presented for registration cannot embark on the independent enquiry regarding the value of the property, yet he has power under Section 35 of the Stamp Act, to refuse registration if the document is not duly stamped: from which it would seem to follow that he can require the person seeking registration to furnish the particulars required for the calculation of the duty payable.'
Therefore, the contention that the Registrar cannot withhold the registration of the document, if proper stamp duty is not paid is not acceptable.
79. The next contention is that, the Sub-Registrar is a quasi-judicial authority and. therefore, no instruction could be issued to him pertaining to his powers of registering a document under Part VI of the Registration Act. This act of the Sub-Registrar is only an executive work. He does not decide a lis between the executants. As will be shown hereunder. he has got limited functions to discharge. Sections 34 and 35 pertain to what he can do. relating to registration of a document. If every aspect pertaining to registration is duly complied with by the executants of documents: on proper presentation: his only act is to affix the seal and carry out the registration procedure. He does not pass a considered order. A contention was raised that he is a court under Section 195, Cr.P.C. It was held that he does not act as a Court vide Venkatachala In re ILR 10 Mad 154 and Achaiya v. Gangayya, (1892) ILR 15 Mad 138 (FB). Therefore under S. 69(1)(j) with Inspector General of Registration is conferred with power to regulate the proceedings of Registrars and Sub-Registrars, he has the necessary jurisdiction to direct the Sub-Registrars to bear in mind the Amendment Act. which had been ushered in. Such an executive direction is not to a quasi-judicial Authority.
80. Mr. Sundaravaradan learned counsel, has relied on N. Transport (P) Ltd. v. T. N. Traders (P) Ltd., AIR 1965 Mad 473: which dealt with the issue of a Government Order by the Government, containing certain directions relating to issue of stage carriage permits, and since the concerned authorities being the Regional Transport Authority and the Appellate Tribunal, they discharged quasi-judicial functions, it was considered as an interference with the quasi-judicial functions by an executive fiat. In A. I. A. Finn v. C.I.T. , it was
held that circulars issued by Central Board of Revenue in respect of judicial powers exercised under the Income-tax Act, would feller the judicial discretion of those functionaries in administering the Act. The concerned circular therein was declared as not binding upon the concerned quasi-judicial functionaries. Mr. Venkatasubramaniam, learned counsel, had claimed that it is not for the Inspector-General of Registration to deal with matters arising out of the Stamp Act, and it is only the Chief Controlling Authority under the Stamp Act who could deal with the requirements of deficit stamp, if any. and that such an authority functions as a quasi-judicial authority. It was held in Board of Revenue, U.P. v. Sardaram Vidyawati, , that when
the Collector gels a doubt in his mind regarding the construction of an instrument and as to what provisions of the Act are applicable he refers the matter to the Chief Controlling Authority who has to decide the matter judicially and would thus be a quasi-judicial authority. Another oft quoted decision in B. Rajagopala Naidu v. State Transport Appellate Tribunal. Madras, . which dealt with the
same G.O. as considered in N. Transport (P) Ltd. v. T. M. Traders (P) Ltd.. AIR 1965 Mad 473 and which interfered with quasi-judicial functions of Tribunals under the Motor Vehicles Act. These decisions have no relevance, once it is found out that the tunctions of a Sub-Registrar for purposes of registration are purely administrative in nature and he does not discharge any quasi-judicial functions.
81. The other content ion is that, the Sub-Registrar or a Registrar has no jurisdiction to go behind the document and find out the intention ol the parties and his only duty is to look into the nature of document presented with reference to the words used therein and, therefore, under the Act. no provision having been made for the inspection ol properties or to enable the Registering Authority to find out whether there arc any other instruments executed between the parties and to probe as to whether the building belongs to the owner of the land. etc. the impugned circular is opposed to the provisions of both the enactments. The following decisions are relied upon to show as to how a Registrar cannot go behind a document. A Full Bench in Narasimaswami v. Venkatalingam. AIR 1927 Mad 636, opined that in deciding whether a document requires registration or not. one has to take the document as a whole and const rue it with reference to the terms therein, and not to find out as to what might have been the intention of parties. In C. E. Co. v. C. C. Revenue Authority. (FB), though no
reference is made relating. to what a Registrar could do it was held that to make a document liable to stamp duty, as a mortgage deed, it is noi enough if the document purports to effect a transfer, but it must 'transfer'. This is relied upon to contend that it is the terms oi the document which should be looked into and what is the intention of the parties cannot be gone into by the Registrar. In Board of Re\enue. Madras, v. Narasimhan. (FB), it was pointed out that the true scope of the rule of substance prevailing over the form with reference to a document chargeable to stamp duty, is that the recitals therein should not be lost sight of merely because the parties gave a particular description of the nature of the document and that Revenue cannot say that the object of the transaction was to achieve a purpose not disclosed in the document and therefore, should be deemed to be that, which it is not. Board of Revenue v. Dr. Manjunatha Rai. (SB), held that revenue authorities cannot ignore the terms of the document presented before them and choose to base their decision on terms of some other collateral instrument. Chief Controlling Revenue Authority v. Dr. K. Manjunatha Rai, ATR 1977 Mad 10 (SB), is again an apposite decision on the point taken, and it was held thereunder that, what name parties give to an instrument would not be decisive or even indicative of the nature of the instrument for the purposes of stamp duty, but that would not mean that the Registering Authority is empowered to go behind the recitals in the terms of the document before it and hold that the object of the transaction was something different from what the document discloses and therefore the document should be deemed to be that, which it is not. The Supreme Court in Madras Refineries Ltd. v. Chief Controlling Revenue Authority, Board of Revenue, , relied upon the decision in Limmer Asphalte Paving Co. v. IRC, (1872) LR 7 Exch 211, wherein it was stated :
In order to determine whether any, and if any, what stamp duty is chargeable upon an instrument the legal Rule is that the real and true meaning of the instrument is to be ascertained, that the description of it given in the instrument itself by the parties is immaterial, even although they may have believed that its effect and operation was to create a security mentioned in the Stamp Act. and they so declared.'
the Supreme Court then opined that the above appears to be the correct statement of the law.
82. Section 3 of the Act is the charging section, which compels payment of stamp duty in respect of instruments, described in Schedule I to the Act. Section 17 states that all instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of the execution. Sections 4, 5 and 6 deal with more than one instrument involved in a single transaction and relate to distinct matters and coming under several descriptions in Schedule I and as to what could be done under such circumstances Section 27 enjoins upon the parties to the instrument to disclose the consideration and the market value and all other facts and circumstances affecting the chargeability of the instrument with duty and that they shall be fully and truly set forth in the instrument. Section 47A introduced by Tamil Nadu Act 24 of 1967 and amended by T. N. Act 42 of 1981 Act, deals with certain kinds of documents, and if undervalued, how they are to be dealt with. The decisions referred to in the previous paragraphs are to the effect that it is not open to the Registering Authority to go behind the recitals and terms in the instrument produced for registration and find out as to what is the object of the transaction and whether the said transaction between the parties was something different from what the document discloses. Their power to fix the proper stamp duty on the document, does not go to the extent of discharging the functions of a Court, which could, by taking into account all the surrounding circumstances and the nature of document and the conduct of the parties and the terms agreed to between them, etc. could determine the intention of the parties under a document. This right is not conferred upon the Registering Authority. He could only find out, whether the executants who appear before him are the persons who have executed the document and on going through the document find out under what description in Schedule 1 it could be classified, and what proper stamp duty is payable thereon. As far as valuation is concerned, if it is a document which comes under Sec. 47A; and if he finds that the market value has not been properly set forth in the instrument, his first duty is to register the instrument and then refer such a document to the Collector for determining the correct market value and recover the proper duty payable thereon. In respect of any other instrument listed in Schedule I, Sec. 47A procedure cannot be followed.
83. It is no doubt obligatory on the part of the parties to the instrument to disclose fully and trully the consideration and the market value of the instrument relating to its chargeability and in the event of contra-vention. the course open is to prosecute the person under Sec. 64 of the Act. For instruments not covered by S. 47A this is the available recourse. None of the sections ever confer upon him any authority to go behind the terms of the document and find out as to what arc the other transactions which have been entered into between the parties to an instrument. Learned Advocate-General refers to Rule 3(3) of the Tamil Nadu (Prevention of Undervaluation of Instruments) Rules. 1968. which reads as follows :
The registering officer may. for the purpose of finding out whether the market value has been correctly furnished in the instrument make such enquiries as he may deem fit. He may elicit from the parties concerned any information bearing on the subject and call for and examine any records kept with any Public Officer or authority.'
Mr. Venkatasubramaniam, learned Counsel, would point out rightly, that, what he could ask tor is confined to the chargeability of the instrument and beyond the transaction covered by it. he has no jurisdiction whatsoever to demand production of documents, which are not referable to the instrument at all. What- ever particulars he could call for the (sic) confined only to the value pertaining to the nature of interest dealt with in the document and no more. Apart from the aspect of market value; as new other aspect, he has jurisdiction to call for particulars or summon production of documents. If he is to call for and examine any records, it could be only with reference to what any public office or authority may be keeping, and not what the parties are having. He would rather submit this rule will have reference only to Sec. 47A which was amended with effect from 24-4-1968 and not relating to any other section.
84. Even this rule makes it quite clear that the inquiries could be confined only relating to the market value of the property involved in the instrument and no other. As far as Sec. 27 is concerned, by the introduction of the words "and the market value", it could be only with reference to chargeability of the property involved in the instrument. If parties to the transaction choose to confine the transfer of interest, only relating to a share in the land: the power conferred on the Registering Athority. would be with reference to what are, found in Sec, 47A read with Ss. 27 and 64: and after registering the document, forward the same to the Collector for determining the correct market value of the share of land involved in the instrument. So long as the instrument is an instrument of conveyance, and when a share in the land is conveyed the statutory duty cast upon the Registrar is to register the document and forward it to the Collector for determination of market value of share of land and no other. The decision in Venkataswami Aiya In re. , above referred to, would
have no application. Wherever S. 47A applies. Sec. 47A deals with instruments of conveyance, exchange, gift, release of benami right or settlement. If instruments of any one of these descriptions as found in Schedule I is produced for registration, and if the Registration Authority considers that the property chargeable to stamp duty had not been properly valued, his first duty which is a statutory duty, is to register the instrument and refer it to the Collector for determining the market value of that property, which is sought to be conveyed. If the correct market value of that property is not set forth in the document as required under Sec. 27, apart from the payment of the deficit stamp duty, which will be determined by the Collector under Sec. 47A(2). the parties to the instrument could be prosecuted under Sec. 64 of the Act. It is interesting to note that even a person engaged in the preparation of an instrument is liable to be prosecuted under Sec. 64(f) of the Act. It is only in respect of such of these instruments which do not come within the conspectus of Sec. 47A. if the proper stamp duty is not paid, as held in Venkataswami Aiya. In re , the Registering Authority can stop the registration and demand payment of proper duly. After the introduction of S. 47A, R. 3(3) being subject to the said section, it cannot empower the Registering Officer to hold an enquiry and adjudicate the correct stamp duty, and it could only enable him to prima facie find out whether to his belief the market value of the property is not properly stated has any substance or not. He has no power to adjudicate upon the market value of the property and delay the registration of the instrument. The rule only enables him to satisfy whether the proper value is given, so that, he may register the document. But, if particulars are not forthcoming or that he has reason to believe suo motu that the correct market value is not stated, thereafter the only duty is to register the document and follow procedure in S. 47A. He cannot delay the registration of the instrument of the kinds covered bv Sec.47A. Equally he has no right to go behind the terms of the document and find out whether the parties have entered into any other agreement or any other transactions. Equally, he has no jurisdiction to inspect the property. The role of the Collector is to find out the market value relating to the chargeability of the instrument and he has to go by the terms of the document regarding the nature oi the transaction. Hence, the impugned Circular is contrary to the provisions of the Act, when it directs the Registering Authorities that when sale deeds relating to sale of an undivided share in land come for registration, they must be kept pending and copies of them to be sent to the Inspector-General of Registration, and that the Deputy Inspector-General of Registration will inspect the properties and decide whether it comes under Amendment Act 38 of 1987 and he will find whether there has been any suppression of facts relating to the consideration of market value as required under Sec. 27, and communicate necessary orders to the concerned Registrar, so that shortlall notice in stamp duty could be collected and then only the documents should be registered. Therefore, this Circular in pith and substance deals with documents relating to 'Conveyance' which would en me under Art. 23 of Schedule 1 to the Act and in respect of them, as stated earlier, in view of the Sec. 47 what the Inspector-General of Registration had directed is opposed to the provisions of the Act. He has not understood the difference between Arts. 5(i) and 23 i.e. an agreement to construct a building is different from a conveyance of land. He had not issued this circular relating to agreements under Art, 5(i) which is impugned in this writ petition, though it is referred to therein inappropriately. Therefore, the impugned circular is struck down, as invalid and inoperative.
85. Learned Counsel for all the petitioners had made a grievance that for months together, the documents presented for registration had not been registered. Undoubtedly what the concerned Registering Authorities had done is consequent to the misguided approach made by the Inspector-General of Registration, Hence, if the concerned Registering Authority believes, suo motu or on calling for certain particulars and 'prima facie' arrives at the conclusion that the correct market value is not reflected relating to the share of the land sold under the concerned sale deeds, the said documents will have to be straightway registered and forwarded to the Collector, as directed under Sec. 47A of the Act.
86. At this juncture it would be necessary to refer to the decision of the Supreme Court in Himalaya House Co. Ltd. v. Revenue Authority, , on the scope of Section 27 as it stood without the words 'and the market value'. It was held that there is no provision in the Stamp Act empowering the Revenue to make an indpendent enquiry of the value of the property conveyed to determine the duty chargeable. The instrument which came up lor consideration was a lease deed. Where the full and truthful statement required to be put forth is about the consideration or about the market value, the Revenue would, therefore, have no right to make any independent enquiry, unless it is specifically provided for it. Such a provision is found under Sec. 47A, in respect of only certain kinds of instruments one of them being conveyance and when the impugned circular is dealing with conveyance of an undivided share in the land, except in the manner as provided therein, the Registering Authorities cannot make any other independent enquiry.
87. Before concluding, certain other submissions made will have to be brought on record, though they cannot have any impact on the conclusions hitherto spelt out. Mr, S.G. Prabhakaran, learned Counsel claims that discrimination is writ large by imposing duty, in respect of the same transaction, in that, if a share in the land is sold without an agreement as contemplated under Art. 23 only 13 per cent duty will be payable, whereas if it is preceded by an instrument under Art. 5(i) an additional 13 per cent will have to be paid. When each instrument is of a different character, and if parties choose to transact in a different manner, it will not be a ground to strike down Art. 5(i) on such plea of discrimination. It is then claimed that in amending the Registration Act, only multi-unit house or building having been referred to; in respect of the house or building, which is not a multi-unit house or building, the liability to register such agreements will not be there. By reference by incoporation only a partial application having been made of Art. 5(i) it has led to indefiniteness and vagueness in understanding the amended provisions and W'hich in turn will lead to arbitrary functioning by different Registering Authorities in the implementation of the impugned provisions. Vagueness is writ large in the explanation about multi-unit house or building and. therefore, Art. 5(i) has to be struck down as a whole.
88. Art. 5(i) slates that the construction to be put up by the owner of the land, who had sold his share, can be a house or a building, which will include the multi-unit house or building. Therefore, if any super-structure is to be erected under the works contract entered into between the parties, ii would fall within the scope of this Article. The expression 'multi-unit house or building' having acquired a commercial meaning in relation to multi-storyed constructions coming up in these days at the instance of promoters, they are also included as part of Art. 5(i). Hence, even if less than five floors are constructed, such a building contract would come within the scope of Art. 5(i). Therefore, the plea about vagueness or arbitrariness, and that what is explained as multi-unit house or building cannot be understood by parties, cannot be entertained.
89. Mr. Sundaravaradan, learned Counsel, would state that these provisions lead to 'a sea of uncertainly' in their implementation, and relies on K. A. Abbas v. Union of India, , which deals with provisions ot Cinematograph Act, wherein it was held that the direction issued by the Central Government under S. 5B(2) is void for vagueness. It was emphasised therein as follows :
"The real rule is that if a law is vague or appears to be so, the Court must try to construe it, as far as may be. and language permiting, the construction sought to be placed on it, must be in accordance with the intention of the Legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the Legislature and advances the purpose of legislation, is to be preferred. Where, however, the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to ollend the Constitution."
Once it is held that Art. 5(i) is confined to only one type of works contract, wherein the vendor of a share of the land, enters into building contracts, and the superstructure is put by the contribution of the vendees; then alone if an instrument ot that nature i.e. an agreement to construct a flat and appartment in a building is produced for registration, the stamp duty as found under Article 5(i) becomes payable. Therefore, there is no question of any 'Sea of uncertainty' existing in this provision.
90. Another contention put forth is regarding Explanation (ii) of sub-section (i) to Art. 5. It deals with the "Cost of proposed construction" by rehing upon established P.W.D. calculations and it states that the certificate of the Assistant Engineer is con-clusive proof of the cost of the proposed construction. A sound and reasonable basis if arrived at, in determining cost, it could be never held as improper. The cost of construction arrived at by P.W.D., had stood the test of time and found approval in multitude of transactions in which that department had been involved. All over the Country, Governments depend upon sch calculations as settled by P.W.D. and therefore, when dependence is to be based on such sound calculations, it cannot be characterised as an unscientific method or an illegal one.
91. On the plea that a certificate issued by the Assistant Engineer is to be held as conclusive proof; it is left to the law-maker to decide as to what could be conclusive proof under certain circumstances. Section 4 of the Evidence Act deals with conclusive proof, and to avoid delayed registration and to prevent harassment of parties, when the Legislature's intent is to make a certification issued by the named Authority based on sound principles of calculation as conclusive proof, such a provision cannot be struck down. The likelihood of abuses being committed cannot be a ground to strike down the said provision of law. Of course, the safeguard invariably made is to provide for an appellate forum, but failure to provide an appellate forum in a statute cannot be a ground to strike down a provision, which makes certification of an authority conclusive to sub-serve certain purposes under the Act. The object being for an early determination of the cost of construction covered by the agreement and to avoid protracted litigation on this aspect, certificate of the Assistant Engineer, is made as conclusive proof by the Legislature.
92. Mr. K. G. Vasudevan, learned Counsel, points out that agreements entered into prior to 1-1-1988 cannot be subjected to payment of duty at present rate. Under the amended Act. if only parties to such an agreement entered into after 1-1-1988 produce it for registration, the stamp duty is payable under Art. 5(i), The Amendment Act has not been made retrospective, either expressly or impliedly. Hence it is applicable only in respect of agreements, entered into subsequent to 1-1-1988, because duty payable is with reference to the date of execution of the instrument as per Sec. 17. Hence, agreements executed prior to the Amendment Act 38 of 1987, cannot be subjected to stamp duty, beyond what was payable prior to that date, nor could it be compelled to be registered.
93. Yet another plea put forth by petitioners is that, the Registering Authorities before whom conveyance of undivided share in land is produced for registration cannot compel production of agreements which are unconnected with an undivided share sold in the land, which alone is chargeable to duty under Art. 23, and that by summoning construction agreements they cannot impose the stamp duty under Art. 5(i) on such agreements and insist upon registering them. Undoubtedly, it is entirely left to the parties, either to register or not to register the instrument. If they do not choose to register the document, the consequences are spelt out in Sec. 49 of the Registration Act. Even thereunder, the proviso is to the effect that an unregistered document affecting immovable property could be received as evidence of a contract in a suit for specific performance, or as evidence of part-performance for the purpose of Sec. 53A of the Transfer of Property Act, or as evidence of any collateral transaction not required to be effected by registered instruments. Therefore, failure to register a document which is compulsorily registrable under Sec. 17(1) of the Registration Act, disables the effectiveness of the document only to the extent provided in that section and not otherwise. It suffers certain handicaps as in Sec. 35 of the Act. Therefore, on the Registering Authority under R.3(3) getting at an agreement which would come under Art. 5(i) or even the Collector on coming across such an agreement when he assesses the market value under S. 47A(2) of a share of land sold under a sale deed; cannot compel the parties to register such agreements. Hence an agreement covered by Article 5(i) and which is not registered and proper stamp duty not paid thereon, would suffer the disability as known to law. No provision is made either in the Stamp Act or in the Registration Act, to compel parties to an instrument to register it.
94. Mr. Radhakrishnan, learned Counsel, has produced a specimen form adopted by his clients, which gives three schedules. The first schedule describes the entire extent of the land owned by the owner of the land, the second one deals with the share therein which he has conveyed under the deed and the third one bears the caption that the super-structure existing thereon is not being convened. He points out that the superstructure had come up by the investments made by the vendee of the land, and the vendor of the land having not acquired any ownership rights in the superstructure, the parties clearly state that they do not intend to treat it as part of the sale transaction. In spite of it, such documents are also detained without registering them. If the market value relating to land is not correctly given, he submits that the procedure under Sec. 47A could be followed, so that parties could get the documents registered on time. His submissions are in accord with the existing provisions of the Act. and hence refusal to register was improper. Other steps could follow, if circumstances warrant.
95. One more contention is that, by introducing Sec, 17(1)(f), compulsory registration is confined only to agreements in which land is held by several persons, whereas Art, 5(i) deals with a land held by 'a person' who conveys a share of his interest in the land and thereafter enters into a building contract. This again shows that sufficient care had not been taken in drafting the amended provisions, nor in formulating the objects and reasons. Learned Advocate-General was put to an unenviable position in meeting more than one point like this taken by several counsel in the course of lengths arguments. The only manner of reconciling to this situation, is to rely on the words "as referred to in clause (i) under Article 5". Hence it is to be construed that the words 'several persons', though inappropriate and rellects bad drafting, had not led to invalidating the provision. Uncertainties develop out of such bad drafting. This could be resolved by holding that whatever instrument which would fall within the ambit of Art. 5(i), are the documents or instruments, which would come within the ambit of Sec. 17(1)(f) of the Registration Act.
96. One more contention put forth is that the levy of 1% as registration fees on the sale consideration, is not commensurate with the services rendered by the Registration Department because even the copy to be kept in the Registry is to be typed and supplied by the executant to the document on a special stamp paper purchased by parties, for which such a fee is charged, and hence the same is unjustified, unconstitutional and at worst it can only be nominal say Rs. 5/- or less but not exceeding Rs. 100/- as laid down by the Supreme Court in Chief Commissioner of Delhi v. Delhi Cloth & General Mills Ltd., . In the counter-affidavit filed by second
respondent in W.P. No. 603 of 1989, etc., it is stated that the Department incurs considerable expenditure in preservation of registers relating to documents, and issue Encumbrance Certificates even after several decades, and that a sizable number of staff members have been appointed for registration purposes, and their salary had gone up steeply in recent years, whereas percentage of registration charge had remained static. There is a fair amount of correlation between the services rendered and the charges levelled, and the amount collected is deposited to the credit of consolidated Fund, Registration of document is done to help the public for assuring their genuineness and authenticity with reference to a point of time and to discover the documents ;existing relating to properties which they deal with, and therefore, the nominal 1% charged based on sale consideration of the document, is quite reasonable. Though the required particulars were not incorporated as part of the counter-affidavit, learned Advocate-General had placed before Court a statement of Receipts and Expenditure of the Registration Department: which shows that receipts for 1987-88 was Rs. 19.23 Crores and for 1988-89 receipts was Rs. 22.81 Crores and expenditure was Rs. 11.43 Crores expenditure was Rs, 10.34 Crores. In Delhi Municipal. Corpn. v. Mohd. Yasin, , after
referring to the earlier decisions in Swamiji v. Commr. Hindu Religious and Charitable Endowments Department. and Southern
Pharmaceutical and Chemicals Trichur v. State of Kerala. , it was held that the primary object and the
essential purpose must be distinguished from its ultimate or incidental results or consequences, which is the true test for determining the character of the levy, and that is undergoing a transformation, and a Court would not assume the role of a cost-Accountant, and it would not be expedient to weigh too meticulously the cost of the services rendered etc. against the amount of fees collected so as to evenly balance the two. What is after all required is a broad correla-tionship. and quid pro quo in the strict sense is not the one and only true index of a fee. Hence, the figures furnished go to show that the percentage evolved is nominal and had remained static for years, and at a time when quite often the salary structure of the staff is being steeply increased, it cannot be but held that this levy of fee is just and reasonable.
97. Therefore, the conclusions arrived at are as follows:
1. The impugned provisions of the Stamp Act and the Registration Act are valid, though badly drafted.
2. When a sale deed with a clear intention that only a share in the land is conveved, and that there is no transfer of interest between the parties in relation to the building, if any, found thereon; then the chargeability to stamp duty could be confined only to the market value of the share of the land and no other, Art. 23 alone will apply.
3. Registering authorities have no power to compel the parties to such a sale deed to register any agreement entered into between them for constructing a flat / apartment in the building, and which would fall under Art. 5(i).
4. In respect of such of those instruments which fall under Art. 23; Art. 5(i) cannot be applied, as it covers a different kind of transaction.
5. It is only when the parties to an agreement to construct a flat apartment in a building or the whole building as covered by Art. 5(i) chooses to present it for registration, the stamp duty as prescribed thereunder could be demanded, and not otherwise. Art. 47 A procedure cannot be followed. Only Art. 27 read with S. 64 are applicable.
6. It is entirely for the parties either to get an instrument which falls under Art. 5(i) to stamp it as prescribed or to have it registered as required under S. 17(1)(f) of the Act. It is open to them to take the risk of the legal consequences, in not following the provisions of these two enactments.
7. When a sale deed conveying only a share in the land is produced; and if the Registering authority has reason to believe that it's market value furnished is not correct, he has no jurisdiction or authority to hold an enquiry and decide as to what is the stamp duty payable thereon. R. 3(3) only enables him to arrive at a 'prima facie' assessment, whether the market value furnished in the sale deed could be relied upon to proceed with the registration. If he opines that the market value is not correct; the statutory duty cast upon him is to register and send it to Collector to follow the procedure under S. 47A.
8. Except the Collector, no Authority of the Registration Department in any other capacity, could fix the market value and decide upon the proper stamp duty payable in respect of any instrument covered by S. 47A.
9. The impugned circular of the second respondent dated 9-12-1988 is declared as illegal and invalid.
10. Levy of Registration fee at 1% is valid.
11. Article 5(i) could be applied only in respect of an agreement to construct a building or part of building is entered into between a vendor of the land who had already sold a portion or a share of his interest in the land or the entire land to the other party to the agreement, and thereafter the vendor of the land agrees to be the building contractor for the vendee for a portion or for entirety oi a building. Futher on the construction so put up as agreed to. the vendor of land further agrees to deliver the land and that portion of the building or the entire building, as the case may be, to the vendee of the sale deed, relating to land already sold to him. Unless all these ingredients are found in such an instrument, which comes into existence after the sale of land or share in land; Art. 5(i), cannot be invoked. Any instrument which does not contain all these ingredients, would be outside the scope of Art. 5(i).
12. An agreement under Art. 5(i) does not result in transfer of interest in immovable property, be it land or building or together. It is confined only to "an agreement to construct a building", and in essence, it is only a works contract.
13. Unless an instrument under Art. 5(i) is properly stamped and registered, it cannot be produced in evidence in a Court as per S. 35 of Stamp Act or legal rights thereunder cannot be enforced, as between the parties.
14. If parties to an agreement under Art. 5(i) get it stamped and registered; and later on if they enter into a conveyance of an interest in building or part of building to the extent as agreed to between the parties; stamp duty will be payable under Art. 23 on the value of concerned superstructure, and that document will have to be duly registered under S. 17(1) of the Registration Act.
15. When a conveyance under Art, 23 is entered into between two parties in respect of a share in the land, its registration cannot be refused on the ground that an agreement which would come under Art.5(i) exists as between them, and that it had not been duly stamped or registered.
16. On reading of the objects and reasons for passing of the Amendment Act 38 of 1987, the impression gained is that, the amendments effected are far short of the loopholes which require to be plugged, and a more rigorous comprehensive legislation than enacted in Delhi and Maharashtra is required to be enacted expeditiously, without any power of exemption in the Government to relax any of those provisions under any circumstance.
98. Hence such of those writ petitions in which the only relief claimed is for declaring the impugned provisions in Tamil Nadu Act 38 of 1987 as illegal and invalid is concerned. are dismissed. Such of those writ petitions where apart from this relief, a prayer for quashing the circular dated 9-12-1988 of the Inspector-General of Registration is concerned, are partly allowed. The other writ petitions. in which the only prayer is to quash the said circular dated 9-12-1988, are allowed, Dependant upon the nature of the relief prayed for in each writ petition, with the directions above given, each writ petition is accordingly ordered. No costs.
99. Order accordingly.