IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 25606 of 2007 Between: 1 Smt.Nikhat Parveen, W/o.Sri Vikaruddin Ali Khan, H.No.3-6-527,Street No.7, Himayathnagar,Hyderabad 2 Sri Mohd. Shujaddin Ali Khan, S/o.Mohd. Vikaruddin Ali Khan, H.No.3-6-527,Street No.7, Himayathnagar,Hyderabad 3 Sri Mohd. Saifuddin Ali Khan, S/o.Mohd. Vikaruddin Ali Khan, H.No.3-6-527,Street No.7, Himayathnagar,Hyderabad 4 Sri Mohd. Ziauddin Ali Khan, S/o.Mohd. Vikaruddin Ali Khan, H.No.3-6-527,Street No.7, Himayathnagar,Hyderabad 5 Sri Mohd.Fakhruddin Ali Khan, S/o.Mohd. Vikaruddin Ali Khan, H.No.3-6-527,Street No.7, Himayathnagar,Hyderabad 6 Sri Vikaruddin Ali Khan S/o.Qutubuddin Ali Khan, S.No.3-6-527 Street, No.7, Himayathnagar,Hyderabad ..... PETITIONERS AND 1 The Dist Registrar,Hyderabad Dist Having its office at Bazarghat,Hyderabad 2 The Joint Collector,Hyderabad Dist Having their office at Nampally Stn,Road,Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ in the nature of Mandamus or other order or direction declaring that the ﬁnal notice dt.27-5-2005 issued by the Respondent No.1 as Designation and Authorized oﬃcer under Section 27 of Indian Stamps Act demanding to pay DSD,DTPT and DRF as determined in respect of document No.1565/2004,1566/2004,1567/2004 and 1758/2004 treating as commercial property without jurisdiction or authority of law, illegal, arbitrary and violative of principles of natural justice . Counsel for the Petitioners:MR.DAMODAR MUNDRA Counsel for the Respondents: GP FOR REVENUE The Court made the following : ORDER: This writ petition is ﬁled by the petitioners questioning the ﬁnal notice dated 27.5.2008 issued by the 1st respondent – District Registrar, Hyderabad under Section 27 of the Indian Stamps Act, 1899 (for short ‘the Act’) demanding to pay Diﬀerential Stamp Duty, DTPT and DRF as determined in respect of document Nos.1565/2004m 1566/2004, 1567/2004 and 1758/2004 by treating the subject matter of property as a commercial one. It is the case of the petitioners that they acquired the property bearing Municipal No.3-6-527, admeasuring 2830 sq.yards situated at Street No.7, Himayatnagar, Hyderabad, under three registered sale deeds. Thereafter, they entered into a development agreement for the purpose of construction of multi-storied residential complex over the said premises and accordingly, Development Agreement-cum-Power of Attorney was registered before the Sub-Registrar, Hyderabad. While the matters stood thus, the petitioners were served with a notice by the ﬁrst respondent – District Registrar, Hyderabad, dated 22.08.2004, stating that the property is situated in a commercial area and, therefore, they have to pay deﬁcit stamp duty at commercial rate of Rs.12,000/- per sq.yard as against Rs.8,000/-per square yard on which the property was registered before the Sub-Registrar. It is stated that the ﬁrst respondent issued four separate notices to the petitioners on 22.1.1999 under Rule 4(b) and Section 27 of the Act directing the petitioners to pay the deﬁcit stamp duty totaling to 20,94,790/ alleging that they have not set forth the facts and circumstances eﬀecting chargeability of the instrument as required under Section 27 of the Act and thus committed the oﬀence of under valuation by suppression of facts, which is punishable under Section 64 of the Act. To the said notices, it is stated that the petitioners submitted their reply on 04.10.2004 and 10.05.2005 stating that there is no suppression of facts as alleged in the notice. Thereafter, the impugned ﬁnal notice is issued by the ﬁrst respondent to which also, the petitioners submitted their explanation/reply on 08.06.2005 narrating all the facts. Thereafter, no orders were passed. While the matters stood thus, in December, 2006, the petitioners have obtained Encumbrance Certiﬁcate, which shows that certain amount is outstanding, and therefore, they submitted a representation, dated 12.12.2006 to the ﬁrst respondent requesting him to pass appropriate orders in the matter to enable them to take steps under Section 47-A of the Act. Since there was no response to the said representation from the authorities, the present writ petition is filed. Heard the learned counsel for the petitioners and the learned Government Pleader for Revenue. Pursuant to the notice issued by this Court on 3.12.2007, the ﬁrst respondent ﬁled a counter-aﬃdavit stating that during the course of inspection, it was found that the subject matter of property is in a commercial area and it was being utilized for commercial purpose and, therefore, the market value of the said premises has to be worked out @ Rs.12,000/- per sq.yard, whereas the market value adopted at the time of registration was Rs.8000/- per sq.yard treating the same as in a residential area. As such, there was deﬁcit stamp duty to the tune of Rs.20,94,790/- in respect of all the registered documents and accordingly notices were issued to the parties concerned. But, the parties failed to pay the deficit stamp duty and get the oﬀence compounded under Section 70 (1) of the Act. Therefore, they have initiated action by ﬁling a criminal case in the Court of I Additional Chief Metropolitan Magistrate, Hyderabad. As the parties failed to pay the deﬁcit stamp duty even after issuance of several notices, the Joint Sub-Registrar had made an entry in the records indicating that a sum of Rs.20,94,790/- is due to be recovered from the parties concerned, in view of the instructions issued by the ﬁrst respondent, and therefore, the action of the Joint Sub-Registrar is correct and is in accordance with the rules and regulations issued from time to time. It is mainly contended by the learned counsel for the petitioners that the petitioners have not committed any irregularity while submitting the document for registration. As the property in question is situated in a residential area, treating the same as a commercial one without considering the explanations submitted by the petitioners is illegal. Even as per the HUDA plan and the permission granted by the Municipal Corporation, the property is shown in a residential area and, therefore, treating the same as located in a commercial area and directing the petitioners to pay the deﬁcit stamp duty is not proper. When the matter was listed on 18.09.2008, this Court granted time to the learned Government Pleader for Revenue to enable him to know whether there is any ﬁnal order passed by the authorities taking into consideration the explanation submitted by the petitioners. Today, on instructions, the learned Government Pleader submitted that no ﬁnal orders were passed after considering the explanations submitted by the petitoners. But, it is submitted that the respondents after taking into consideration the explanations submitted by the petitioners only passed the final order and issued the final notice. However, a perusal of the ﬁnal notice does not indicate consideration of any of the replies or explanations submitted by the petitioners. In these circumstances, the Writ Petition is allowed and the ﬁnal notice issued by the respondents is set aside. However, it does not preclude the authorities to pass appropriate orders afresh, taking into consideration the explanation submitted by the petitioners. There shall be no order as to costs. _________________ N.V.RAMANA, J. Dated:19.09.2008 msv