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How can we is­sue guide­lines deal­ing with each and ev­ery type of trans­ac­tion? There are no broad guide­lines that will cover all sorts of gen­uine GPA trans­ac­tions. It is com­pli­cated,” says a se­nior rev­enue of­fi­cer, re­quest­ing anonymity.

Asked if the depart­ment would ap­peal, Dharam Pal, di­vi­sional com­mis­sion (rev­enue), says, “We are ex­am­in­ing the order and have asked for sug­ges­tions from the le­gal depart­ment. It will take ap­prox­i­mately 15 days to come up with a fi­nal con­clu­sion. It’s not ap­pro­pri­ate on my part to com­ment on any­thing at this stage.”

Ex­am­in­ing gen­uine­ness

Since the high court has asked the sub-regis­trar to ex­am­ine the gen­uine­ness of the trans­ac­tions of Pace De­vel­op­ers and the prospec­tive buyer, le­gal ex­perts are di­vided on the is­sue of whether this is a gen­uine GPA trans­ac­tion or a ‘GPA sale’.

“When plot owner Rani Puri ex­e­cuted a GPA in favour of Pace De­vel­op­ers, the lat­ter paid 3% stamp duty for its reg­is­tra­tion. Now when the com­pany is sell­ing the floor to a prospec­tive buyer, the gov­ern­ment is earn­ing 6% stamp duty on that from the buyer, too. There is no eva­sion of stamp duty and so it’s a gen­uine GPA trans­ac­tion and the sub-regis­trar should reg­is­ter it,” says Ra­jiv Dutta, se­nior SC ad­vo­cate, who ar­gued the mat­ter in the high court on be­half of Pace De­vel­op­ers.

“Had Pace De­vel­op­ers ex­e­cuted an­other agree­ment of sale/GPA/will in favour of the prospec­tive buyer, then it would have amounted to GPA sale but this is not the case,” adds Dutta.

In the Su­raj Lamp vs Haryana case, the SC had very cat­e­gor­i­cally held that “A per­son may en­ter into a de­vel­op­ment agree­ment with a land de­vel­oper or a builder for de­vel­op­ing the land ei­ther by form- ing plots or by con­struct­ing apart­ment build­ings and ex­e­cute an agree­ment of sale and grant a power of at­tor­ney em­pow­er­ing the de­vel­oper to ex­e­cute agree­ments of sale or con­veyances in re­gard to in­di­vid­ual plots of land or un­di­vided share in the land re­lat­ing to apart­ments in favour of the prospec­tive pur­chaser.”

Ku­mar Dushyant Singh, an­other SC lawyer, draw­ing a par­al­lel be­tween the case be­fore the high court and the SC judg­ment, says, “The Supreme Court has al­ready de­cided this point. The court says that if the de­vel­oper has a GPA from the owner he can en­ter into agree­ment of sale or con­veyance with a prospec­tive buyer.”

Con­trary to Dutta’s view, other lawyers hold that since Pace De­vel­op­ers, by virtue of hav­ing a GPA, be­comes merely an agent of the prop­erty owner, he can en­ter into an agree­ment of sale with a prospec­tive buyer but can­not ex­e­cute a sale deed.

“By ex­e­cut­ing a sale deed and re­ceiv­ing the pro­ceeds thereof, Pace De­vel­op­ers acts as the owner, which it is not. Only a ti­tle holder is en­ti­tled to re­ceive the pro­ceeds of sale in a gen­uine trans­ac­tion and not the agent. In my opin­ion, Pace De­vel­op­ers can get a clear ti­tle only by pay­ing the re­main­ing 3% stamp duty, (it has al­ready paid 3% at the time of reg­is­ter­ing the GPA). Other­wise the reg­is­tra­tion of the same is li­able to be re­fused,” says Mo­ham­mad.

Now it is up to the sub-regis­trar to de­cide whether the sale deed should be reg­is­tered or re­fused.

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