IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Contempt Petition No.

of 2010

In
Civil Appeal No. 3625/2006
IN THE MATTER OF
Army welfare Housing Organization Flat owners welfare Sanstha, Noida
Applicant/ Respondent
Versus
1. New Okhla Industrial Development Authority
Through Its Chief Executive Officer Shri Mohinder Singh
Sector 6, Noida -201301
2. State of U.P. through
DIG (Registration) Shri Vijay Dev Sharma
NOIDA, U.P.
3. Sub registrar -I
Sri M.K. Sagar,
Sector 33, NOIDA
U.P.
4. Sub Registrar -III
Shri Jatinder Nath Singh
Sector 33, NOIDA
U.P.

Appellant /Contemnor

And in the matter of

An application for initiating contempt proceedings against the contemnors
above named for Willful Violation of the directions given by this Honble
Court in paras 26 & 32 of the order dt. 10.9.10 passed in Civil Appeal
No. 3625/2006
To
The Honble the Chief Justice of India
And His other companion justices of the
Supreme Court of India
The Humble petition of the applicant above named
Most respectfully Showeth
1.

That the applicant above named is filing the present petition for initiating contempt
proceedings against the contemnors /appellants named above for violation of the
order dt. 10.9.10 passed in Civil Appeal No. 3625/2006 by this Honble Court wherein
this Honble Court while allowing the appeal of the contemnors/ appellants in para 32
(50)of the judgment directed that no penalty or extra charges would be made payable
by the applicant allottees if they execute the tripartite deed within six months from

the date of the judgment. The applicant submits that inspite of the clear direction
given by this Honble Court in para 32(50) of its judgment, the state of U.P. is
charging the stamp duty on the basis of valuation of property to be sub leased at new
circle rates i.e. Rs.25,000/- per sq. Metre plus Rs 2 lacs for covered car parking.

2.

That due to inflated demand of stamp duty which is over 10 times of the due amount,
the members/ allottee of the applicant Sanstha have not been able to execute the
sub- lease deeds as per the directions of this Honble Court vide its order dt. 10/9/10

3.

That the applicant/respondent is a society

1860 and was formed

registered under Societies registration Act,

to progress administrative or legal actions as deemed

necessary to safeguard the interest of members . The members are the allottees of
Army Welfare Housing Organization (AWHO)

formed to develop housing for its

members on Self Financing basis.

4.

That after the handing over of possession of the

dwelling units by AWHO, when the

sub lease deed, as per the terms of main lease deed, was sought to be executed, the
contemnor/appellant

no.

created

Tripartite

deed

titled

Sale

Deed

for

Superstructure of Residential Unit and Sub Lease Deed for Land and directed the
AWHO

5.

to get it executed by flat owners/ allottee members of AWHO.

That the applicant members aggrieved by the unlawful act of the contemnor/appellant
and AWHO to execute Tripartite Deed, filed

writ petitions

before the Honble High

Court of Allahabad.

6.

That the Honble High Court of Allahabad while allowing the writ petition of the
applicant vide its order dt. 14/10/04 observed that the allottee members, as owners
of

flats/apartments built from the contributions made by these persons cannot be

compelled to purchase it from the society. It amounts to compelling a full owner of

the flat/apartment to purchase the property already owned by him, from the society
of which he is a member and to which he had contributed for purchase of land and for
construction of building. Such a transfer will be fictitious and involuntary and thus a
void transaction under the Indian Contract Act. It will be neither a sale under section
54 nor a lease under section 105 of transfer of property Act, 1882

7.

That aggrieved by the judgment and order dt. 14/10/04, the appellant/contemnor
filed petitions before this Honble Court which were granted in appeals. This Honble
court vide its order dt. 10/9/10 allowed the appeals of the appellant /contemnor and
set aside the judgment & order dt.14/10/04 passed by the Honble High court of
Allahabad. However, the Honble Court while allowing the appeals of the appellant in
para 26 of the judgment held that transfer of land cum super structure would be by
way of a sub lease from the lessor ie. NOIDA to the lessee which is the AWHO to the
sub-lessee who are the individual allottee, by way of a stamped and registered
document. This Hon'ble Court further in para 32(50) of the judgement directed that;

in the light of the fact that this has been a long drawn litigation and involves
primarily serving and retired personnel of the armed forces, we direct that if the
sub lessees execute tripartite deeds as per the requirement of NOIDA within a
period of six months from today, no penalty or extra charge would be made
payable by such allottees.
(
8.

That the applicant submits that inspite of clear directions by this Honble court in
para 26(43) to transfer land cum superstructure by way of sub lease through a

extra charge ,the appellant/Contemnor are demanding stamp duty, calculated on the basis
of

New circle rate, which provides for valuation of property to be registered at Rs

25,000 per sq metre plus Rs 2 lakhs if there be a car garage .

9.

That the petitioner submits that this Honble Court, in the case of Resident Welfare
Association, NOIDA Vs. State of U.P. & ors. (2009) 14 SCC 716 has held that a lease
deed was executed by the lessor in favour of society and its members. The lessor i.e.
NOIDA Authority had entered into the lease agreement with the societies and its
members being lessees and sub lessees respectively and sub lessees further entered
into the agreement with the association. Such being positions, it is clear that the
documents in question presented for registration before the registering officer was a

lease and the transfer to the members of association as an assignment for lease hold
right. The demised land was merely an enjoyment of land and not transfer of
ownership by sale. This Honble Court further observed that it is not a sale attracting
Art.23 of Stamp Act, 1899 (As applicable in UP)

and hence section 47- A is not

applicable as it applies only to the outright sale. Thus duty on deed of assignment to
be calculated as lease in terms of Art. 63 (Schedule 1 B) on the amount of
consideration shown in the deed it self and not on the market value of land or
construction thereon.

10.

That the applicant submits that the lease deed in the present case specifically provides
for a right of reversion to the land and appurtenances thereto including the
superstructure on the termination or expiry of the lease.

It is clear that the building

and all other appurtenances attached to the land become a part of the assigned
transfer through lease and not a separate sale. In case of sale there is an absolute
transfer of ownership and not some rights only as in case of a lease.
11.

That the petitioner submits that the state of U.P. being a respondent in the aforesaid
case the execution of sub-lease deed for sale of superstructure of residential unit and
sub lease of land, and also the demand and imposition of stamp duty calculated and
charged on the basis of New circle Rate amounts to an indirect penalty/extra charge
and hence violation of this Honble Courts directions in the judgment and order dt.
10.9.2010. Thus it is clear from the aforesaid directions of this Honble Court that the
registered document has to be a sub lease deed, and not sale deed of superstructure.
It is pertinent to mention at this stage that the appellant are treating the sub lease
deed as sale and accordingly demanding stamp duty on the basis of existing circle
rate.

12.

That Brig. D.P. Chopra, vice President of the applicant Sanstha

met the DIG

(Registration) Shri Vijay Dev Sharma,Sub registrar 1 & Sub registrar 2, NOIDA and
he was informed by them that the stamp duty on the sub lease deed will be calculated
as per Article 35 of Schedule 1 B and charged on the basis of New circle rates i.e. Rs.
25,000/- per sq. meter plus Rs. 2 lacs for car garage. An English translated copy of
the New circle rate of NOIDA is annexed hereto as Annexure A-1.

13.

That the applicant further submits that since they were successful before the Honble
High Court and in the appeals filed by the appellant there was no stay of the orders
passed by the Honble High Court , the applicant/ allottee should be liable to pay the
stamp duty on the consideration amount paid by them to their society i.e. the AWHO
for lease premium of allottees share of land and cost of construction

of the

superstructure ,which was also levied on those who have executed Tripartite

deed

during 1999-2003. It is further submitted that Stay was granted by the Honble High
Court

on 12 Sep 2001 directing that :

respondent No 3 shall not ask the petitioner and members of the Army
Welfare Housing Organization to execute the impugned Tripartite deed and no
action shall be taken against them for not executing the Tripartite deed

14.

That the applicant most respectfully submits that due to

the

inflated stamp duty

demand far beyond the due amount members of applicant sanstha have not been able
to execute sub lease deeds as per the order dt. 10.9.2010

15.

That from the aforesaid facts it is clear that the appellant have committed

willful

contempt of the direction of this Honble Court as given in paras 26 and 32 of the
judgment & order dt. 10.9.2010 and for violating the direction of this Honble the
contemnor appellant are liable to be duly punished.
Prayer
It is therefore most respectfully prayed that this Honble Court may be pleased to :i)

initiate suo moto contempt proceeding against the contemnor/appellant for their
willful violation of the direction of this Honble Court passed in the order dt.
10/9/2010

ii)
iii)

Punish the contemnors for gross and willful contempt committed by them ;
direct the appellant/contemnor to amend the tripartite sub-lease deed and replace the

expression sale of super structure by sub-lease of superstructure

iv)

restrain the appellant/contemnor not to charge stamp duty on the basis of existing

circle rate
v)
vi)

extend time granted for execution of sublease deed from six months to one year;
pass such other order and orders as this Honble Court may deem fit & proper in the

circumstances of the case.

Filed by

Abha R.Sharma
Advocate for the applicant
Filed on

01.12.2010