Kerala High Court
Chokkantakath Ali vs The Sub Registrar on 20 June, 2011
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935
WP(C).No. 8374 of 2013 (V)
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PETITIONER(S):
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CHOKKANTAKATH ALI, AGED 38 YEARS,
S/O.MOIDEEN BAVA, CHOKKANTAKATH (H),
NEAR T.B. HOSPITAL, P.O. PONNANI SOUTH-679 586.
BY ADV. SRI.K.K.MOHAMED RAVUF.
RESPONDENT(S):
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1. THE SUB REGISTRAR,
SUB REGISTRAR'S OFFICE,
PONNANI P.O., PONNANI NAGARAM-679 583.
2. THE REVENUE DIVISIONAL OFFICER,
TIRUR-676 101, MALAPPURAM DISTRICT.
BY GOVT. PLEADER MR.MANOJ P.KUNJACHAN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-03-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 8374 of 2013 (V)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE ASSIGNMENT FORM ISSUED UNDER RULE 9(2)
OF THE LAND ASSIGNMENT RULE IN APPENDIX II.
EXT.P2 COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE
OFFICER, PONNANI FOR THE YEAR 2005-06, 2009-2010, 2010-2011
AND 2012-2013.
EXT.P3 COPY OF THE BUILDING TAX RECEIPT ISSUED BY THE
PONNANI MUNICIPALITY.
EXT.P4 COPY OF THE NOTIFICATION UNDER SECTION 28A OF THE
STAMP ACT.
EXT.P5 COPY OF THE COMMON JUDGMENT DATED 20/06/2011 IN
W.P.(C)NO. 13455/2011 AND 13458/2011 OF THIS HONOURABLE
COURT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
P.R. RAMACHANDRA MENON J.
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W.P.(C) No. 8374 of 2013
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Dated, this the 25th day of March, 2013
JUDGMENT
Refusal to register the document executed in favour of the petitioner for the reason that fair value of the property has not been fixed under Section 28A of the Kerala Stamp Act and for wrongly showing the nature of the property in Ext. P4 notification issued as 'Government Property' is the subject matter of challenge in this writ petition.
2. The property having an extent of 10 cents comprised in Resurvey No. 2/2C4 of Ponnani Municipality was assigned in the name of one Mr. Abdullakutty in the year 1995 as borne by Ext. P1 assignment proceedings. Pursuant to the assignment of the property as above, the assignee was enjoying the property with absolute ownership, exclusive possession, clear and marketable title, also remitting the basic tax as borne by Ext. P2 series receipts.
W.P.(C) No.8374 of 2013 : 2 :
3. It is pointed out that the aforesaid assignee put up a residential building in the property, bearing the present number as 46/99 of the Ponnani Municipality and building tax is being paid in respect of the said building, as borne by Ext. P3 series receipts. The assignee happens to be the brother- in-law of the petitioner. It is stated that the petitioner has now purchased half right in the property from his brother-in- law for valuable sale consideration. When the document was taken to be registered, the request was refused to be accepted by the first respondent, stating that, the property was described as 'Government property' in Ext. P4 notification issued under Section 28A of the Kerala Stamp Act 1959, which made the petitioner to approach this Court by filing the present writ petition.
4. The learned counsel for the petitioner submits that the description of the property in Resurvey No. 2/2C4 of Ponnani Municipality as 'Government property' in Ext. P4 notification issued by the second respondent, is nothing but a mistake and that the actual nature of the property is W.P.(C) No.8374 of 2013 : 3 : discernible from Exts. P1 to P3 assignment deed/tax receipts. The mistake, if at all any in Ext. P4 notification has necessarily to be corrected by the second respondent and the lapse/fault in this regard cannot place any hurdle on the owner of the property in enjoying the same. The position was brought to the notice of the first respondent with reference to Exts. P1 to P3, when the petitioner was told that the fair value of the property was not fixed in respect of the said survey No. and as such, it cannot be registered. Non fixation of the fair value is not a ground at all for not causing the property to be registered, if the conveyance is otherwise proper in all respects; submits the learned counsel. It is also pointed out that, in similar circumstance, interference has been made by this Court directing the Registering Authority to cause registration to be effected, notwithstanding non-fixation of fair value, as per Ext. P5 judgment in W.P.(C) No. 13455 & 13458 of 2011, and submits that the petitioner is also entitled to have similar relief.
5. Heard the learned Government Pleader as well, who W.P.(C) No.8374 of 2013 : 4 : submits, with reference to the materials on record, that, in Ext. P4 notification issued by the second respondent, the property comprised in Resurvey No. 2/2C4 is shown as 'Government property'. But the fact remains that the property in the said survey No. was assigned by the competent authority in favour of the person by name Abdulla Kutty, as early as on 03.02.1996 and that basic tax has been accepted from the assignee, as borne by Ext. P2 series. It is also brought on record that the assignee has constructed a residential building and that tax is being remitted to the concerned local authority, as borne by Ext. P3 series tax receipts. The petitioner has purchased 'half right' in the property covered by Exts. P1 to P3 and the dispute is in respect of non-registration of the said conveyance, referring to entry in Ext. P4 notification.
6. It is true that Section 28A of the Kerala Stamp Act enables the second respondent to fix 'fair value' of the property coming under his jurisdiction. The procedure and cause of action are stipulated under the Kerala Stamp W.P.(C) No.8374 of 2013 : 5 : (Fixation of Fair Value of Land) Rules, 1995. The entries in Ext. P1 assignment deed and Ext. P2/P3 tax receipts do not suggest anything as to the nature of the property as 'Government land'. If this be the position, not fixing the fair value of the property in Ext. P4 notification and the entry made therein, describing the land in Re Survey No. 2/2C4 as 'Government property' cannot be correct at all and the mistake, if at all any, has necessarily to be corrected by the second respondent, who issued Ext. P4 notification. Similarly, the non fixation of fair value for the property in the area cannot be a ground for refusing to effect registration of the conveyance and any conveyance sought to be effected by the parties concerned to the extent, it is liable to be registered under the Registration Act, is to be registered in tune with the relevant provisions of the Registration Act/Rules. If the fair value of the property has not been fixed in terms of Section 28A of Kerala Stamp Act, read with sub-rule (7) of Rule 3 and Rule 4 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, it is always open for the second respondent to W.P.(C) No.8374 of 2013 : 6 : get the mistake corrected, by fixing the fair value of the property and cause the deficit stamp duty, if any, recovered from the persons concerned. In other words, the course open in such circumstances is by way of Section 45A or 45B, as the case may be, of the Kerala Stamp Act, which are extracted below:
"45A. Instrument not bearing stamp of sufficient amount as per fair value of land how to be dealt with.- (1) Notwithstanding anything contained in this Act, the registering officer shall, while registering an instrument transferring any land, other than an instrument of partition, settlement or gift among the members of a family, chargeable with duty verify whether the value of land or the consideration set forth in the instrument is the fair value of that land.
(2) Where on such verification, the registering officer is satisfied that the value of the land or the consideration set forth in the instrument is not less than the fair value of the land, he shall duly register the instrument.
(3) Where, on verification the registering officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under section 28A, he shall, by order, direct the payment or proper stamp duty on the fair value of the land W.P.(C) No.8374 of 2013 : 7 : fixed under section 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, the instrument shall be duly registered.
(4) Any person aggrieved by an order under sub-
section (3) may, within thirty days from the date of that order, appeal to the Collector within whose jurisdiction the land is situate.
(5) The Collector shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act in that behalf and his decision thereon shall be final.
45B. Instruments under valued how to be dealt with.- (1) If the Registering Officer, while registering any instrument transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration as the case may be, and the proper duty payable thereon.
(2) On receipt of a reference under sub-section (1), the collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, by order, determine the value of the property or the consideration and the duty aforesaid, and the deficient W.P.(C) No.8374 of 2013 : 8 : amount of duty, if any, shall be payable by the person liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature.
(3) The Collector may, suo motu, within two years from the date of registration of any instrument not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration, as the case may be, and the duty payable thereon, and if after such examination, he has reason to believe that the value or consideration has not been truly set forth in the instrument, he may determine the value or consideration and the duty aforesaid in accordance with the procedure provided for in sub-section (2); and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature.
(3A) xxxxxxxxx
(4) Any person aggrieved by an order of the
Collector under sub-section (2) or sub-section (3) may appeal to the District Court within whose jurisdiction the property transferred is situate.
(5) An appeal under sub-section (4) shall be filed within thirty days of the date of the order sought to be W.P.(C) No.8374 of 2013 : 9 : appealed against.
(6) The District Court shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act."
From the above, it is clear that non fixation of the fair value of the property cannot be a reason to refuse registration of conveyance and the document has necessarily to be registered, if the same is otherwise valid and proper in all respects. It is open for the concerned respondent to rectify the mistake by way of appropriate proceedings and to collect deficit stamp duty, if any, by pursuing the course as provided under Section 45A/45B of the Kerala Stamp Act (as the case may be). This Court also finds support in this regard from Ext. P5 judgment.
7. In the above facts and circumstances, the first respondent is directed to register the concerned document, on satisfying the requirement under the relevant provisions of the Registration Act/Rules. The second respondent is directed to take steps to effect necessary correction in Ext. P4 notification, in respect of the land covered by Exts. P1 to P3; W.P.(C) No.8374 of 2013 : 10 : giving the correct description. It is open for the second respondent to fix the 'fair value' in respect of such property. Once the fair value is fixed as above, it is open for the first respondent to pursue appropriate proceedings for realization of the deficit stamp duty, if any, from the petitioner. The registration sought for to be effected in the name of the petitioner, shall be subject to the liability to satisfy the deficit stamp duty, if any, on the basis of fair value to be fixed as above. The first respondent shall complete the proceedings for registration, at the earliest, at any rate, within 'one week' from the date of presentation of the document. The second respondent shall complete the other proceedings mentioned above within 'three months' from the date of receipt of a copy of this judgment.
The Writ Petition is allowed. No cost.
Sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd.