JUDGMENT
Viney Mittal, J.
1. The present writ petition under Articles 226 and 227 of the Constitution of India has been filed by Abhishek Cooperative Housing Society (hereinafter referred to society), challenging the orders dated September 24, 1999 passed by the Collector, Indore, order dated April 30, 2001, passed by the Additional Commissioner (Revenue), Indore, whereby the appeal filed by the petitioner-society was dismissed and the order dated July 26, 2001 passed by the Board of Revenue, whereby the second appeal filed by the petitioner-society, was also rejected.
Facts.
2. Four separate sale deeds, each for purchase of 9801 square feet of land, were executed on May 5, 1997, registered on May 7, 1991 in favour of the petitioner-society. The petitioner-society relied upon a notification No. 7731155-VI-R dated October 4, 1980, issued under Section 9 of the Indian Stamp Act, 1899 (hereinafter referred to as Act), whereby instruments executed in favour of a Primary Cooperative Housing Society for acquisition of the land for housing purposes had been exempted from payment of stamp duty, claimed exemption from payment of stamp duty on the said four sale deeds. Accordingly, at the time of execution and registration of sale deeds, no stamp duty was paid by the petitioner-society. Subsequently, a complaint was made to the Collector, Indore, by one Mahavir Gupta, whereby it was pointed out that the aforesaid notification had been misused by the petitioner-society and a large scale evasion of stamp duty had been practiced. The complainant also brought to the notice of the Collector that the land in question had in fact been sold by the petitioner-society to six persons only, when there were at least 42 eligible members for allotment of the land and the aforesaid six purchasers had utilized the land in question for constructing a big commercial complex. The complainant also brought to the notice of the Collector that the exemption notification applied to a cooperative housing society, which acquired the land for housing purposes only for allotment to its members, but since the petitioner-society had purchased the land in question and had sold the same for raising the construction of a commercial complex, therefore to such a transaction, exemption notification was not applicable. The complainant also informed the Collector that the land in question, even otherwise, had wrongly been evaluated in the sale deeds.
3. On receipt of the aforesaid complaint, the Collector issued show cause notices to the petitioner-society. The petitioner-society chose to remain absent and no replies were filed. The Collector held an enquiry into the matter. In the aforesaid enquiry, it was found by the Collector that the notification in question, exempting a housing society from payment of stamp duty, was not applicable to the case of the petitioner-society, in as much as, the petitioner-society had never acquired the land in question for the purposes of housing, but had acquired the same for the purposes of raising a commercial complex thereupon. The Collector also sought information from Indore Development Authority with regard to the valuation of the land in question. On holding an enquiry into the matter, it was found by the Collector that the land in question had been under-valued also and the proper market value had not been reflected in the sale- deeds. On coming to the aforesaid conclusion, vide an order dated September 24, 1999, the Collector held that the petitioner-society was not entitled to exemption from stamp duty and having not paid the stamp duty, had actually evaded the payment thereof. It was further held that the market value of the purchased land was Rs. 1200/- per square feet and the same had been under valued by the society. A demand of Rs. 64,35,908/- was raised against the petitioner-society. The order of the Collector has been appended as Annexure P-6 with the present petition.
4. The petitioner-society filed an appeal against the order of the Collector. The appeal filed by the petitioner- society was also dismissed by the Additional Commissioner vide order dated April 30, 2001, Annexure P-7. A second appeal filed by the petitioner-society has also been dismissed by the Board of Revenue vide order dated July 26, 2001, Annexure P-8.
5. The orders Annexure P-6, P-7 and P-8 are the subject matter of challenge at the hands of the petitioner- society before this Court.
6. I have heard Shri G.M. Chaphekar, learned Senior counsel for the petitioner-society and Shri A.S. Kutumbale, learned Additional Advocate General for the respondents and with their assistance, have also gone through the record of the case.
7. Shri G.M. Chaphekar, learned Senior counsel for the petitioner-society has vehemently argued that under the provisions of Section 47A(3) of the Indian Stamp Act, 1899, a Collector had absolutely no jurisdiction to examine as to whether the exemption had rightly been granted to the petitioner from payment of the stamp duty or not and as such while passing the order Annexure P-6, the Collector could not have gone into the fact as to whether the notification dated October 24, 1980 was in fact applicable to the petitioner-society, while executing four conveyance deeds or not. Shri Chaphekar has also referred to the provisions of Section 47-A(3) of the Act to contend that the only jurisdiction which the Collector under the said provision had, was to examine an instrument to find out as to whether the market value reflected therein had been correctly indicated or not. Thus, maintains learned Senior counsel, that the order passed by the Collector was clearly in excess of his jurisdiction and as such all the proceedings taken under the provisions of the Act by the Collector are without jurisdiction and as a consequence thereof, the appellate order passed by the Additional Commissioner and second appellate order passed by the Board of Revenue are also liable to be set aside.
8. In support of the aforesaid contention, learned Senior counsel has placed reliance upon a Full Bench judgment of this Court in the case of Vimalchand v. State of M.P. and Ors. 1979 MPLJ 734.
9. On the other hand, Shri A.S. Kutumbale, learned Additional Advocate General has refuted all aforesaid contentions raised on behalf of the petitioner-society. Shri Kutumbale has argued that when the Collector had been conferred a power under Section 47-A(3)of the Act, to examine as to whether the market value of the property had been correctly reflected in a conveyance deed or not, then obviously, in a case wherein the purchaser claimed exemption from payment of such stamp duty, the power was inherent in the Collector to examine the question as to whether such an exemption was infact available or not. Shri Kutumbale has also referred to the notification relied upon by the petitioner-society and has pointed out that the said notification was only applicable to a housing society, when the land had been acquired for housing purposes, but in the present case, since the land in question had been acquired not for housing purposes, but for sale to some of its members, by the petitioner-society, for constructing a commercial complex, therefore, the exemption under the said notification was not available to the petitioner-society. Shri Kutumbale has also referred to minutes of the meeting dated January 7, 1997, of the general body of the petitioner- society. The said minutes have been appended as Annexure R-3 with the reply of the respondents. My pointed attention has been drawn to an Agenda Item No. 10 of the said minutes, wherein it was decided by the general body of the petitioner-society, that the land in question be sold to six members, named in said proceedings, for raising a commercial complex therein. On that basis, Shri Kutumbale argues that no exemption was available for acquiring such a land by the petitioner-society. The learned Senior counsel also points out that the information supplied by IDA to the Collector specifically pointed out to the gross inadequacy of evaluation of market value in the sale-deeds by the petitioner-society.
10. I have duly considered the rival contentions raised by the learned Senior counsel for the parties.
11. At the outset, it would be advantageous to reproduce the relevant extract of the notification dated October 24, 1980 as follows:
Notification No. 773-1155-VI-R, dated the 24th October, 1980.-In exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (No. II of 1899), the State Government hereby with effect from the 1st November, 1980 remits in the whole of the State of Madhya Pradesh proper stamp duty chargeable in respect of,
(1) instruments of value not exceeding seven thousand and five hundred rupees relating to matter with respect to which the State legislative has power to make laws and executed by or on behalf of any primary Cooperative Housing Society for the time being registered or deemed to be registered under the Madhya Pradesh Co-operative Societies Act, 1960 (No. 17 of 1961), or by any officer or member thereof and relating to the business of such society;
(2) instruments executed in favour of the Primary Cooperative Housing Society registered or deemed to be registered under the Madhya Pradesh Co-operative Societies Act, 1960 (No. 17 of 1961), for acquisition of land for housing purposes;
x x x x
x x x x
x x x x
12. A perusal of the aforesaid notification, grating exemption to a housing society, for acquisition of land from payment of stamp duty, shows that the said exemption was only available to a Primary Cooperative Society, and for acquisition of land by such society for housing purposes only. Thus, if the land was acquired by a Primary Cooperative Housing Society for a purpose other than housing, such an exemption was not available. A perusal of the minutes of the meeting, Annexure R-3 of the general body of the petitioner-society held on January 7, 1997, shows that it was decided by the petitioner-society to allot the land to six members for raising a commercial complex. It was only after the said decision had been taken on January 7, 1997 that the four sale deeds in question were executed and registered on May 7, 1997. Thus, at the time of purchase of the land in question, the petitioner-society had already taken a decision that the land in question would not be utilized for housing purposes, but would be sold for raising construction of a commercial complex. In these circumstances, it is apparent that the exemption made available to a Cooperative Housing Society through notification dated October 24, 1980, could not be availed of by the petitioner-society, while purchasing the land in question through four sale deeds. In my considered view, while claiming of aforesaid exemption, the petitioner-society had, in fact, wrongly availed of the said exemption and as a matter of fact, had failed to pay the stamp duty, which it was bound in law to pay. Thus, the Collector (Stamp) under the provisions of Section 47-A(3) of the Act was wholly within his jurisdiction to examine the question as to whether the stamp duty on conveyance deeds had rightly been paid or not. The said question was in fact inherent to determination of the correct market value of the property sought to be conveyanced. Even otherwise, the Collector while holding the enquiry had come to a positive finding of fact that the property in question had even otherwise been wrongly assessed and the correct market value had not been reflected.
13. I have also gone through the judgment of the Full Bench in Vimalchand’s case (supra) relied upon by the learned Senior counsel for the petitioner-society. In my considered view, the controversy in question in that case was entirely different from the controversy involved in the present case. In the aforesaid case, the question before the Full Bench was as to whether an instrument which was treated to be a deed of settlement and stamp duty paid thereupon on that basis, could be held to be a gift deed by the Collector, under the provisions of Section 47A(3) of the Act. However, in the present case, when the exemption from payment of stamp duty had been claimed by the petitioner- society on the ground that no duty was payable because of the notification of exemption and the Collector came to the conclusion that the said notification was not even applicable to the land purchased by the petitioner-society for commercial purposes, then obviously, it was really not only a determination of the market value but was also a question of evasion of stamp duty by the petitioner-society.
14. In these circumstances, I am of the view that the judgment in Vimalchand’s case (supra) relied upon by the learned Senior counsel for the petitioner-society is not applicable.
15. The findings of fact recorded by the Collector have been upheld by the Additional commissioner and the Board of Revenue, when the appeal and second appeal filed by the petitioner-society have been rejected. On facts, as well in law, I do not find any justification to take a different view from the view taken by the aforesaid authorities.
16. Before parting with this order, it may be noticed that an attempt has also been made to challenge the proceedings before the Collector on the ground that in the aforesaid proceedings no notice had ever been served upon the petitioner-society.
17. I am afraid that even the aforesaid contention raised on behalf of the petitioner-society cannot be accepted. The appellate Authority, as well as the Board of Revenue, have also examined the question of due service on the petitioner- society and have come to the conclusion that before passing the order, the petitioner-society had been duly served in the matter but had chosen not to file any reply. The proceedings were duly conducted by the Collector. All aspects have been gone into.
18. In this view of the matter, I do not find any ground to exercise the extraordinary writ jurisdiction of this Court in favour of the petitioner-society. The petitioner-society appears to have evolved a methodology to evade the stamp duty, when a huge junk of land had been purchased by it for further sale to six members for constructing a commercial complex. Thus, the present petition is totally devoid of any merit.
19. No other point has been urged.
20. In view of the aforesaid discussion, I do not find any merit in the present petition. The same is dismissed.
21. C.c. as per rules.