ANIL RAMKISAN SIKCHI AND ANOTHERversusTHE STATE OF MAHARASHTRA OTHERS

2026:BHC-AUG:37106
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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                              WRIT PETITION NO.8240 OF 2014

                1.   Shri. Anil S/o. Ramkisan Sikchi
                     Age 64 years, Occu. Business

                2.   Smt. Ujwala w/o. Anil Sikchi
                     Age 59 years, Occu. Household
                     Both R/o. Plot No.01, Padampura,
                     Station Road, Near Dumir Hospital,
                     Aurangabad                                 ..   Petitioners

                           Versus

                1.   State of Maharashtra
                     Through its Principal Secretary,
                     Revenue and Forest Department,
                     Mantralaya, Mumbai

                2.   Deputy Inspector General of Registration
                     and Deputy Controller of Stamps
                     Aurangabad Division, Aurangabad

                3.   Collector of Stamps,
                     Collector Office Premises,
                     Aurangabad                                 ..   Respondents

                                          AND
                              WRIT PETITION NO.7242 OF 2014

                1.   Shri. Arun s/o. Ramkisan Sikchi
                     Age 60 years, Occu. Business

                2.   Smt. Brijlata w/o. Arun Sikchi
                     Age 58 years, Occu. Household
                     Both R/o. Plot No.01, Padampura,
                     Station Road, Near Dumir Hospital,
                     Aurangabad                                 ..   Petitioners

                           Versus

                1.   State of Maharashtra
                     Through its Principal Secretary,
                     Revenue and Forest Department,
                     Mantralaya, Mumbai
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2.     Deputy Inspector General of Registration
       and Deputy Controller of Stamps
       Aurangabad Division, Aurangabad

3.     Collector of Stamps,
       Collector Office Premises,
       Aurangabad                                  ..    Respondents


Mr. Ameya J. Bhat, Advocate for Petitioners;
Mr. P. P. Dawalkar, A.G.P. for Respondents


                           CORAM :          SACHIN S. DESHMUKH, J.
                           DATE         :   18-08-2026


JUDGMENT :-

1.     Rule. Rule made returnable forthwith.        By consent, heard

finally.


2.     The petitioners have raised challenge to the order of

respondent No.3 Collector of Stamps, Aurangabad and eventual

order of appellate authority i.e. respondent No.2 – Deputy

Inspector of Registration and Deputy Controller of Stamps,

Aurangabad, endorsing the same.


3.     Since a common issue is involved in the petitions, the same

are taken together for consideration.


4.     The petitioners are husband and wife in the petitions,

wherein petitioner No.1/husband executed a power of attorney in

favour of petitioner No.2/wife and the same was duly registered

upon payment of requisite stamp duty.
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5.    It is, thereafter, a communication dated 28.08.2013 was

issued to the petitioners to pay deficit stamp duty and registration

charges.    Upon the representation made by the petitioners, the

communication-cum-order under challenge was rendered against

petitioner by respondent No.3.


6.    Aggrieved by the same, the petitioners presented an appeal

before respondent No.2. However, same has been rejected by the

order under challenge, directing the petitioner to pay the deficit

stamp duty under Article 25 (b) of the Schedule - I of the Bombay

Stamp Act, 1958 (for short, “Act of 1958”).


7.    Being dis-satisfied with the respective orders, the petitioners

are before the Court under Article 226 and 227 of the Constitution

of India.


8.    Mr. Bhat, learned counsel for the petitioners submits that the

orders under challenge are unsustainable.      The petitioners have

already paid the stamp duty applicable as per Section 48 of the

Act of 1958.    The authorities below failed to consider that for

applying stamp duty under Article 5(g-a) or Article 48 (g) of the Act

of 1958, the powers are to be conferred with the Promoter or

Developer, whereas, petitioner No.2 was granted the power to

engage a Developer or execute a development agreement.             As

such, petitioner No.2 cannot be regarded as a Promoter or

Developer to invoke additional stamp duty.           As such, the
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authorities have wrongly interpreted the power of attorney in

question. Accordingly, prayed to allow the petitions.


9.    The learned A.G.P. for the respondents opposed the petitions

supporting the orders under challenge, and prayed to dismiss the

petitions, contending that the power of attorney in question are in

effect, development agreements based upon the powers conferred

upon petitioner No.2. As such, the same attracts the stamp duty

under Article 25 (b) of the Schedule - I of the Act of 1958.


10.   In support, the learned A.G.P. relies upon the judgment of

this Court in the case of Suhas Damodar Sathe versus The

State of Maharashtra and another, Writ Petition No.8030 of

2017, dated 11.03.2025.


11.   Heard the submissions from the litigating sides and perused

the record, particularly, the power of attorney/s.       By the said

instruments, the petitioner No.1/husband has authorized the

petitioner No.2/wife in respect of the undivided share of the

property, to engage a developer, issue power of attorney in favour

of such developer and undertake other incidental acts for the

development and/or sale of the property.


12.   The authorities below have treated the said instruments as

the development agreements and have demanded the stamp duty

under Article 25 (b) of the Schedule - I of the Act of 1958.
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13.   At this juncture, it would be apt to reproduce the observation

in the case of Suhas Damodhar Sathe (supra), which reads as

under;

      “31. It is well settled that, the character of an
      instrument for the purpose of levy of stamp duty is
      determined by the substance of the transaction rather
      than its form. The legal test is whether, through the
      agreement, there is a present transfer of a right, title,
      or interest in immovable property so as to bring it
      within the sweep of the definition of a "conveyance."
      The guiding judicial precedents, have laid down that if
      the agreement vests in the grantee a bundle of rights
      approximating those of an owner, particularly the right
      to further transfer, develop, or deal with the property,
      the same shall be considered a conveyance for the
      purposes of stamp duty. In the present case, the
      developer’s comprehensive rights—coupled with the
      owner’s receipt of the entire consideration and the
      handover    of    actual   possession—      cannot      be
      characterized merely as a "development arrangement"
      falling outside the purview of a conveyance.”



14.   In view of the aforesaid precedent, the principal question

that arises for consideration is whether the instrument executed

by the petitioner No.1/husband in favour of petitioner No.2/wife,

though styled as a Power of Attorney, is liable to stamp duty under

Article 25 (b) of the Schedule - I of the Act of 1958, having regard

to the nature and extent of the powers conferred thereunder.
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15.   It is well settled that, for determining the stamp duty

payable on an instrument, the Court is required to examine the

substance and legal effect of the instrument and not merely the

nomenclature assigned to it. The description of an instrument as a

“Power of Attorney” cannot, by itself, be determinative where the

operative clauses confer substantive rights and powers in relation

to immovable property. The nomenclature of an instrument is not

determinative of its true legal character. The Court is required to

examine the substance and cumulative effect of the powers

conferred by the instrument.


16.   In the present case, the power of attorney executed by the

petitioner No.1/husband in favour of petitioner No.2/wife, confers a

comprehensive and exclusive authority in respect of the undivided

share in the subject property. Such authorization is not merely to

represent the principal before governmental or other authorities,

but it also authorities to identify and negotiate with a developer,

execute a development agreement, appoint or authorise a

developer, obtain building permissions and sanctioned plans, sell

or otherwise transfer the property, execute agreements and

conveyancing    documents      in       favour   of   purchasers,   receive

consideration and undertake all acts necessary in relation to the

property, with the acts performed by her being expressly declared

to be binding upon the principal.
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17.   The cumulative effect of these authorisation demonstrates

that the instrument confers upon the attorney comprehensive

authority to develop, transfer and also deal with the property.

However, merely the wife is not described in the nomenclature as

a “developer” cannot, by itself, determine the applicability of the

statutory provision. The instrument has to be examined in the

context of the authority actually conferred by it and text conferring

such authority confers the document with in sweep of conveyance.


18.   Article 48(g) specifically deals with a power of attorney given

to a promoter or developer, by whatever name called, for

construction on, development of, or sale or transfer of immovable

property and prescribes stamp duty at the rate applicable to a

conveyance under Article 25. Thus, where an instrument falls

within Article 48(g), Article 25 operates as the statutory measure

of the stamp duty payable on such instrument. The demand of

stamp duty with reference to Article 25 therefore cannot be

rejected merely on the ground that the instrument is styled as a

power of attorney.


19.   The fact that the power of attorney also authorizes the wife

to sell the property and receive consideration does not take the

instrument outside the development-related provision. On the

contrary, the power of sale, when read cumulatively with the

powers to develop the property, appoint a developer, execute
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development documentation and receive consideration, forms part

of the comprehensive commercial authority conferred upon the

attorney.


20.   The further circumstance that the petitioners have already

paid stamp duty under Article 48 does not, by itself, establish that

the proper stamp duty payable under the applicable clause of

Article 48 has been discharged. Article 48 contains distinct

statutory categories for different kinds of powers of attorney,

including powers of attorney authorizing sale or transfer and

powers of attorney given for development purposes. The mere

reference to Article 48, without establishing the particular clause

under which duty was paid and the basis on which such duty was

computed, cannot conclude the matter in favour of the petitioners.


21.   In the facts of the present case, having regard to the

authority conferred upon the wife to develop, commercially deal

with, sell and transfer the petitioner's interest in the property, the

instrument cannot be treated as a power of attorney attracting

only the limited duty contended for by the petitioners. The

demand of duty with reference to Article 25, as contemplated by

the   applicable   development-related    provision   of   Article   48,

therefore does not suffer from the jurisdictional error as alleged in

the petition.


22.   Accordingly, both the writ petitions stand dismissed.
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23.   Rule stands discharged.


24.   The petitioners shall be liable to pay the deficit stamp duty

as determined by the competent authority in accordance with law,

after giving credit for the stamp duty already validly paid on the

instruments.




                                [SACHIN S. DESHMUKH, J.]



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