Telecom Employees Co-Operative Vs the Deputy Commissioner of

TELECOM EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LIMITED, HAVING ITS OFFICE AT NO.23 (1ST FLOOR) NEHRUNAGAR MAIN ROAD, BEHIND REDDY PETROL BUNK, SHESHADRIPURAM, BENGALURU - 560 020 REPRESENTED BY ITS AUTHORISED DIRECTOR SRI. C.V. MANJUNATHA S/O SRI. VENKATA NARASIMAIAH C S AGEDA BOUT 64 YEARS RESIDING AT NO.14/1 14TH MAIN ROAD, PALACE GUTTAHALLI, BENGALURU - 560 003.

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…PETITIONER

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(BY SRI. K.N. PHANEENDRA, SR. ADVOCATE FOR SRI. VIVEK ANAND ANTHONY BRITTO, ADVOCATE)

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AND:

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THE DEPUTY COMMISSIONER OF STAMPS AND DISTRICT REGISTRAR, GANDHINAGAR DISTRICT, NO.17, MARUTHI PLAZA 2ND MAIN ROAD, VYALIKAVAL EXTENSION

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HC-KAR

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BENGALURU - 560 003.

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THE SUB-REGISTRAR YELAHANKA TALUK OFFICE BUILDING YELAHANKA

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BENGALURU - 560 064.

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TEH SUB-REGISTRAR GANDHINAGAR D C'S OFFICE COMPOUND KEMPEGOWDA ROAD, BENGALURU - 560 009.

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THE SUB-REGISTRAR JALA, BENGALURU- HYDERABAD ROAD, CHIKKAJALA, BENGALURU - 562 157.

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THE SUB-REGISTRAR KACHARAKANAHALLI NAGAWARA, BENGALURU - 560 045.

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…RESPONDENTS

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(BY SRI. MAHANTESH SHETTAR, AGA)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED ORDERS PASSED BY THE R-1 IN PROCEEDINGS DATED 11.01.2017 IN RESPECT OF DOCUMENT REGISTERED AS NO.4136/2009-10 AND OF THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU PASSED IN APPEAL NO.314 OF 2017 DATED 20.01.2018, VIDE ANENXURES-T AND U RESPECTIVELY AND ETC.,

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HC-KAR

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL ORDER

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In this writ petition, petitioner is assailing the proceedings before respondent No.1 and the order passed by the Karnataka Appellate Tribunal, Bengaluru, as per Annexures-T and U respectively. The relevant facts for adjudication of this writ petition are that the petitioner-Co-operative Housing Society had purchased land to an extent of 1 acre 15 guntas including 6 guntas of A Kharab in Sy.No.53/2 at Papanahalli Village, Jala Hobli,

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Bangalore North Taluk, as per the registered Sale Deed at Annexure-A to the writ petition from the erstwhile owners for a valuable consideration.

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It is also stated that one M/s Rasasri Developers Private Ltd has joined as a confirming party in

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favour of the petitioner. The petitioner's-Society intended to develop the scheduled property and sell the individual sites to its members. The Sale Deed dated 17.03.2010 at Annexure-A is produced. It is also stated that, the petitioner has paid the requisite Stamp Duty at the time of registration of the Sale Deed produced at Annexure-A to the petition.

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It is further stated in the petition that, the Competent Planning Authority-BIAAPA has passed an order dated 13.06.2012 at Annexure-G by releasing 60% of the total extent of land claimed by the petitioner for the purpose of development and remaining 40% was released as per the order dated 25.03.2015 at Annexure-J.

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It is also stated in the writ petition that, the Inspector, IGR & CS of Stamps received a private complaint that the petitioner has evaded the Stamp Duty, at the time of registration of the registered Sale Deed at Annexure-A and pursuant to the said complaint, the IG of

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the Stamps and Registration has forwarded the complaint addressed by the private complainant to the Deputy Commissioner for Stamps to take decision in the matter as per Annexure-L. The Deputy Commissioner by Tippani at Annexure-L, intimated to the IGR for Stamps that the proceedings cannot be taken under Section 45A of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'the Act') as the registered Sale Deed at Annexure-A is executed beyond two years. However, an observation has been made in the said Tippani that action would be taken under Section 46A of the Act. Pursuant to the same, respondent No.1 has taken suo motu action against the petitioner and passed the impugned order dated 11.01.2017 and same was confirmed by the Karnataka Appellate Tribunal in Appeal No.314/2017 at Annexure-U. Being aggrieved by the same, the petitioner has presented this writ petition.

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I have heard Sri.K.N.Phaneendra, learned Senior Counsel on behalf of Sri.Vivek Anand Anthony

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Britto, learned counsel for the petitioner, Sri.Mahantesh Shettar, learned Additional Government Advocate for the respondents.

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Sri.K.N.Phaneendra, learned Senior Counsel

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appearing for the petitioner invited the attention of the Court to the registered Sale Deed dated 17.03.2010 at Annexure-A, in which the property has been purchased by

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the petitioner's-Society to distribute the same to its members and the appropriate Stamp Duty has been paid as per the guidelines of the immovable properties and buildings for registration in Bangalore (Urban) District, as per the notification dated 14.10.2005.

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Sri.K.N.Phaneendra, learned Senior Counsel

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further contented that the respondent authorities have no authority to initiate suo-motu proceedings under Section 45A of the Act, as the registered Sale Deed has been

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made prior to period of two years from initiation of action. However, the action taken by the respondent-authorities

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to initiate action under Section 46A of the Act is

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impermissible in law, as there is no suppression of material by the petitioner at the time of the execution of the registered Sale Deed at Annexure-A and accordingly, sought for interference of this Court.

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It is further argued by the learned Senior

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Counsel appearing for the petitioner that by referring to the Memorandum of Understanding dated 09.04.2005 at Annexure-K, wherein the said document was seized by the respondent-authorities, wherein the said Memorandum has been made in respect of the Sale Deed that may be made in favour of the respective allottees after the completion of the development of the land in question by the developer and therefore, the action of the respondents under Section 46A of the Act is premature and therefore, it is contented by the learned Senior Counsel for the petitioner that, the provision contained under Section 46A of the Act cannot be pressed into service in the present circumstances.

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It is also argued by the learned Senior Counsel

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for the petitioner by referring to Section 30(q) and 30(z) of the Act and submitted that, the impugned orders passed by respondent No.1 at Annexure-T is to be considered only in the future when the Sale Deed has been executed by the petitioner-Society in favour of its members and therefore, sought for interference of this Court.

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Per contra, Sri.Mahantesh Shettar, learned AGA appearing for the respondent vehemently contended that the petitioner-Society has committed a fraud by suppressing the Memorandum of Understanding dated 09.04.2005 at Annexure-K, wherein the price in respect of the respective sites have already been fixed at Rs.250/per sq. ft for actual site area. However, in the view of the said suppression of the document i.e., the Memorandum of Understanding by the petitioner would make way for invoking Section 46A of the Act and therefore, sought for dismissal of the writ petition and as such, learned AGA

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also reiterate the statement made in the statement of

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objection.

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In the light of the submission made by the

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learned counsel appearing for the parties, the question to be answered in this petition is with regard to whether the petitioner has suppressed the Memorandum of Understanding at Annexure-K at the time of the execution of the registered Sale Deed as per Annexure-A with the original land owners and further whether same would relate to invoking the provision under Section 46A of the Act. It is not in dispute with regard to the fact that the petitioner-Society has purchased the land from the erstwhile landowners as per Annexure-A for the purpose of distribution of sites to its members. Undoubtedly, the schedule to the Annexure-A makes it clear that the land in question is a undeveloped converted residential purpose and therefore, it is to be taken into consideration that as on the date of the registration of the Sale Deed at Annexure-A, land is undeveloped, however, the land is a

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converted land. It is also not in dispute that the Competent Planning Authority-BIAAPA has released 60% of the sites as on 13.06.2012 and remaining 40% of the sites have been released on 25.03.2015. It is to be noted

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that only after the release of the sites by the planning authority, the petitioner's-Society has to distribute the sites to its members and at the time of the sale deeds that

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may be executed by respective allottees from the petitioner's-Society, the stamp duty be payable by the respective allottees to the respondent authorities. The said event will be in future and therefore, the respondentauthorities have committed an error in interfering with the

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stamp duty which has been paid by the petitioner as per Annexure-A by looking into the complaint filed by a private individual and thereby wrongly invoked Section 46A of the Act. It is pertinent to mention here that as on today until

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the sites have been developed at the instance of the developer as mentioned in the Sale Deed wherein the developer is also Confirming Party to the Sale Deed and

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after the completion of the development of the sites, the petitioner's society has to distribute the sites to its members. The said aspect is a future event and at that time again the registered Sale Deeds will have to be made

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by the respective allottees with the petitioner's-Society.

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In that view of the matter, I find force in the submission made by the learned Senior Counsel appearing for the petitioner that, respondent No.1 has erroneously invoked Section 46A of the Act and conducted an enquiry as per Annexure-D and directed the petitioner's-Society to pay the requisite stamp duty as per the order dated 11.01.2017 at Annexure-T. The said Order is further confirmed by the Karnataka Appellate Tribunal without considering the fact with regard to the levy or non-levy of the stamp duty under Section 46A of the Act. Therefore, I am of the view that, the writ petition requires to be allowed and accordingly the impugned orders passed by respondent No.1 at Annexure-T dated 11.01.2017, and the

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order dated 20.01.2018 passed by the Karnataka

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Appellate Tribunal at Annexure-U are hereby quashed.

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It is further clarified that since the writ petition is allowed, as the petitioner herein has deposited 30% of the demand amount as per the order dated 06.08.2019 passed by this Court before the registry and therefore, Registry is directed to refund the same to the petitioner

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forthwith. It shall be refunded to the petitioner after due

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identification.

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SD/(E.S.INDIRESH) JUDGE

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rv List No.: 1 Sl No.: 0 CT: BHK

Telecom Employees Co-Operative v. the Deputy Commissioner of

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Telecom Employees Co-Operative v. the Deputy Commissioner of

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