CIVIL WRIT JURISDICTION CASE No.3732 OF 1992 *** In the matter of an application under Articles 226 and 227 of the Constitution of India *** National Bank for Agriculture and Rural Development, Regional Office at Maurya Lok Complex, Block B, 1st and 5th Floor, Dakbunglow Road, Patna 800001 being its Head office at Sterding Centre, Dr. Annie Besant Road, Warli, Bombay, through its Deputy General Manager, Shri R.K. Rastogi, Son of Shri Behari lal Rastogi, residing in S.303 Udaygiri Apartment, Police Station Kotwali, District Patna………………………Petitioner Versus 1. The State of Bihar through its Chief Secretary, 2. Inspector General Registrar, Government of Bihar 3. District Sub-Registrar, Patna ……….Respondents For The Petitioner: Mr. Chittaranjan Sinha, Sr.Advocate with Mr. Sanjeet Kumar, Advocate For The Respondents: Mr. Ram Bilash Mahto, A.A.G.8 With Mr. Ramadhar Tiwari, A.C.to A.A.G. 8 *** P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH *** Jayanandan Singh, J. Heard learned senior counsel for the petitioner and learned counsel for the State. 2. Petitioner-Bank, which is a body corporate established under Section 3 of the National Bank for Agriculture and Rural Development Act, 1981, has filed this writ application for a direction to the respondents to grant remission in paying stamp duty - 2 - and ad valorem registration charges on the sale deed executed in its favour by M/s Jagat Sahakari Grih Nirman Samiti Limited (hereinafter referred to as “the Society”), a Co-operative Housing Society, registered under the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as the “Act”). 3. Case of the petitioner is that petitioner-Bank was admitted as an associate member of the said Society by its resolution dated 30.10.1990. By dint of an associate member, it was entitled to all the rights and privileges of a member of the Society. Subsequently, the Society by a resolution decided to transfer some of its property to the petitioner for which a sale deed (Annexure-2) was executed by the authorised representative of the Society on 10.01.1992. The said sale deed was presented before the District Sub Registrar, Patna for its registration. An objection was raised by the office of the District Sub Registrar with regard to deficiency in the stamp duty and court-fee stamps paid on the deed. On account of such objection, the District Sub Registrar, Patna refused to accept the same and the same was returned. Thereafter the said sale deed was again presented before the District Sub Registrar along with a letter of the Manager of the Bank - 3 - requesting the District Sub Registrar to accept the same for registration. This time also, the District Sub Registrar refused to accept the same for registration on the ground that petitioner being an associate member of the Society was not entitled to remission in terms of second proviso to section 9 A of the Indian Stamp Act. Petitioner, being aggrieved by the same, has moved this Court through this writ application with the aforesaid prayer. 4. When the case was taken up on 06.05.1992, after hearing the parties, the same was admitted for final hearing. However, the Court directed respondent no.3 i.e. District Sub Registrar, Patna to get the sale deed (Annexure-2) registered on payment of nominal registration charges which are being charged on sale deeds executed by the Society in favour of its members which was made subject to the result of the case. 5. Learned Senior Counsel for the petitioner submits that, as per the amended Bye-laws of the Society, there is no distinction between a member and an associate member of the Society except that an associate member has not been granted right to vote in the general body meeting of the Society. He submits that for all other purposes, members and - 4 - associate members of the Society are at par with each other. He referred to the original Bye-Laws 4 (a) of the Society and new Bye-Laws 4(a) substituted in terms of the decision of the general body meeting dated 25.9.1988 and submits that by this amendment provision was made in the Bye-Laws for inducting both members and associate members in the Society with only rider that an associate member shall not have power to vote in the general body meeting. He submits that it has been made clear in specific terms that, except for this rider, they shall be governed by all the terms and conditions of the society equally. 6. Learned senior counsel for the petitioner refers to definition of „member‟ and „associate member‟ as contained in clauses (f) and (fff) of Section 2 of the Bihar Co-operative Societies Act, 1935 and submits that definition itself makes it clear that for all intent and purposes, a nominal or associate member has to be treated as a member for „such privileges or rights of a member of a society, and who shall be subject to only such liabilities of a member, as may be specified by the Bye-Laws‟. He submits that this definition shows that distinction, if any, between member and associate member could be laid down by the Bye-Laws itself and not otherwise. If - 5 - the Bye-Laws of the Society does not make any distinction between a „member‟ and „associate member‟ and puts them at par in respect of all rights and privileges of a member of the society, no third party can treat them as distinct for the purposes of entitlement of any right or privilege as a member of the society. He submits that this being the legal position, an associate member shall also be entitled to remission in payment of stamp duty as provided for a member in terms of proviso to Section 9A of the Indian Stamp Act,1899. In this context, he drew the attention of this Court to a judgment dated 31.03.2010 rendered by a Bench of this Court in CWJC NO.14365 of 2002 (The Dream Co-operative House-Construction Society Ltd. Vrs. The Registrar, Co-operative Societies, Bihar, Patna & ors.) wherein, in context of definition of „member‟ and „associate member‟ as contained in said clauses (f) and (fff) of Section 2 of the said Act, this Court has held that a nominal or associate member has also to be held to be a member of the society whenever the content so requires since the definition itself is in terms of a member. In the circumstances, he submits that petitioner-Bank was not required to pay stamp duty and ad valorem court-fee for registration of the document in its favour by the - 6 - society. 7. Counter affidavit has been filed in the case by the respondents. In the counter affidavit, in sum and substance, a stand has been taken to the effect that proviso to Section 9A of the Indian Stamp Act talks of a member only and, therefore, only a member of a co-operative society is exempted from payment of stamp duty on an instrument of transfer of any premises executed by the co-operative societies in his favour. Learned counsel appearing for the respondents submits that Bye-laws of the Society itself has made a distinction between members and associate members by depriving associate members from voting in general body meeting. Therefore, he submits that associate members of the society cannot be treated at par with members of the society and, hence, they cannot be held to be entitled for exemption from payment of stamp duty on an instrument in terms of second proviso of Section 9A of the Indian Stamp Act. 8. It is true that said second proviso of section 9 A of the said Act does not talk of an associate member. It mentions only about a member of the society who is held to be exempted from payment of stamp duty on any instrument of transfer of any premises executed by a cooperative society in his - 7 - favour at the time of registration. This provision is a general provision in the Central Act. The intent and purpose of this provision is to exempt from payment of stamp duty on an instrument of transfer of any property between the society and its members. The definition of „nominal‟ or „associate member‟ of a society as contained in clauses (f) and (fff) of Section 2 of the Bihar Co-operative Socialites Act shows that the Legislature itself has put an associate member at par with the member of the society for all purposes. It has clearly been provided that distinction, if any, between an „associate member‟ and a „member‟ could be made only by the concerned Co- operative Society itself by specifying the same in its Bye-Laws. Thus, if Bye-Laws of the Society itself provides that an associate member will be at par with a member of the society for all rights and privileges, no third person or any outside agency can make that distinction creating any disadvantage to an associate member of the society because of his such status. The Bye-Laws of the present society shows that, except for voting rights, an associate member has been given all rights and privileges of a member of a society and all the conditions which may be applicable to the member of the Society have been made applicable to him. - 8 - Therefore, the present Society itself is treating an associate member of the Society at par with a member of the Society for all purposes. If the Society treats them as such, the respondents are not entitled to treat them differently so as to create any disadvantage to such associate member on account of his status as such. In the said judgment relied upon by learned senior counsel for the petitioner, after discussing various provisions of law and examining right of an associate member with regard to a dispute under Section 48 of the Bihar Co-operative Societies Act, the Bench has concluded thus :- “In the said circumstances, a nominal or associate member has also to be held to be a member of the society whenever the content so requires since the definition itself is in terms of a member.” (Emphasis supplied) 9. Thus, it already stands held that whenever the content so requires, an associate member has to be treated as a member of the society unless and until a distinction is made by the society itself among them in its Bye-Laws as provided in Clause (fff) of Section 2 of the Bihar Co-operative Societies Act. 10. In the circumstances, it is held that the District Sub Registrar was not justified in raising any objection in registration of the sale deed, as presented by the petitioner, for want of - 9 - stamp duty and ad valorem court-fee on the same. The writ application is, therefore, allowed. Since in terms of the interim order of this Court dated 06.05.1992, the sale deed must have been registered, this Court would only hold that the same has to be treated as validly registered by the office of the District Sub-Registrar, Patna, and all other concerned, if otherwise there are no defects in the same. (Jayanandan Singh, J.) Patna High Court, Patna The 29th June, 2010 N.A.F.R. (B.T.)