Kerala High Court
N.P.Raman Kutty vs District Collector Civil Station on 25 February, 2015
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939
WP(C).No. 34428 of 2016 (C)
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PETITIONER(S):
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1. N.P.RAMAN KUTTY
SON OF LATE KESAVAN NAMBAIR NALISSERY PATTATH,
VADAKKUM MURI P.O, TRISSUR PIN- 680 570.
2. SUSHAMMA SUNDAR,
WIFE OF LATE N.P NARAYANANKUTTY, XXX/A140/12,
SREE MUKAMBIKA APARTMENTS,
NEXT TO POST OFFICE POONKUNNAM, THRISSUR 680 002.
BY ADVS.SRI.L.RAM MOHAN
SRI.M.AUBREY ABRAHAM ISAAC
RESPONDENT(S):
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1. DISTRICT COLLECTOR CIVIL STATION,
THRISSUR 680 001.
2. SUB COLLECTOR , CIVIL STATION
CIVIL STATION 680 001.
R1-R2 BY GOVERNMENT PLEADER SRI. M. R. DHANIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sdr/-
WP(C).No. 34428 of 2016 (C)
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APPENDIX
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PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO P3/2010
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 25-02-2015 IN WRIT PETITION
(CIVIL)NO 12504/12
EXHIBIT P3 TRUE COPY OF THE PARTITION DEED NO 2447/1/15 OF ANTIKKADU
SRO.
EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 14-12-2015 SUBMITTED
BEFORE THE RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 15-2-2016 IN WPC 2300/16
EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 16-08-2016
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 07-10-2016
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
PA TO JUDGE
sdr/-
CR
Devan Ramachandran, J.
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W.P.(C)No.34428 of 2016 C
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Dated this the 12th day of July, 2017
JUDGMENT
Allowance for used, spoiled and rendered unfit stamps are provided in Chapter V of the Kerala Stamp Act, 1959. The District Collector is authorised thereunder to make such allowances with respect to the specified and enumerated instances, for availing allowance, shown in Section 47 of the Act, subject to the time lines prescribed in Section 48 for making applications for such reliefs.
2. The facts presented in this case would, at first glance, cause suspicion that the applications for relief under Section 47, made by the petitioners, is beyond the time fixed in Section 48 but the petitioners assert it to be otherwise, relying on the second proviso to the said Section, which they predicate is an exception to the WPC 34428/16 2 general time line, which can be invoked for reasons caused due to unavoidable circumstances.
3. The facts presented here are very peculiar and a decision on the countervailing contentions would depend on its clear understanding. The most essential of the factual circumstances are as below:
4. The petitioners in this writ petition say that the first petitioner and his the brother late Narayanankutty were the co-owners and in joint possession of a property having an extent of 3.22 acres in Sy.No.1037/2 of Anthikkadu SRO. They submit that after the death of Narayanankutty his share devolved on the second petitioner, who is his wife and on their major children by name Sindhu and Sujith. The petitioners assert that for the benefit and welfare of the family, the first petitioner, along with his deceased brother, had decided to partition the said property and that for such purpose a partition deed was executed and produced for registration before WPC 34428/16 3 the competent authority. A copy of the said partition is produced as Exhibit P1.
5. The petitioners say that on account of an inadvertent error, which occurred at the time of preparing Exhibit P1, in addition to the above property, an extent of 2.23 acres comprised of in Sy.No.1037/2, which is exclusively owned by the first petitioner, also happened to be included in the partition deed. It appears that when Exhibit P1 deed was submitted for registration, the Sub Registrar impounded the same on the ground that, since it includes a property owned individually and exclusively by the first petitioner, it will have to be deemed as a conveyance of sale under Section 2(d) of the Kerala Stamp Act ('the Act' for short) and that the stamp duty ought to have been remitted as per Schedule 29 of the Act. The documents, the petitioners say, were thereafter sent by the Sub registrar to the District Registrar for valuation of the stamp duty, who appear to WPC 34428/16 4 have passed an order directing the first petitioner and Narayanankutty to remit an amount of Rs.6,06,950/-, along with a fine of Rs.1,000/-, treating Exhibit P1 as a conveyance under Section 2(d) of the Act.
6. This led to the first petitioner and his brother late Narayanankutty to challenge the order of the District Registrar by filing W.P.(C)No.12504/2012, pending which Narayanankutty died and the second petitioner came on record as his legal heir. The said writ petition was disposed of by Exhibit P2 judgment wherein this Court quashed the order issued by the District Registrar impounding the document as also the order of determination of the stamp duty and penalty and directed the District Registrar, Thrissur to release the partition deed impounded so as to enable the petitioners to register a rectification deed. In the judgment, the word 'rectification' was incorrectly shown as 'ratification' and therefore, as per order dated 30.06.2015 it was corrected.
WPC 34428/16 5
7. The petitioners say that after obtaining the certified copy of Exhibit P2, they approached the Sub Registrar for executing a rectification deed, when they became aware that Exhibit P1 partition deed had not been registered and that it had been impounded even before such registration. The petitioners have, therefore, executed a fresh partition deed on 12.10.2015 with respect to the property jointly owned by the first petitioner and late Narayanankutty but excluding the individual property owned by the first petitioner. A copy of this new partition deed has been produced as Exhibit P3. The petitioners say that when the new partition deed was executed, they made an application before the District Registrar to refund the registration fee and the stamp duty of Rs.3,11,100/- paid by them while presenting Exhibit P1 partition deed. A true copy of the said application dated 14.12.2015 has been produced as Exhibit P4. When this application was not considered, the WPC 34428/16 6 petitioners filed W.P.(C)No.2300/2016, which was disposed of by this Court through Exhibit P5 judgment directing the Sub Registrar and the District Collector to take steps for disposal of the application of the petitioners.
8. The petitioners submit that subsequently the Sub Registrar refunded the entire registration fee but that the District Collector issued no orders for refund of the stamp duty charged on Exhibit P1. They say that they, therefore, filed Con.Case (C)No.1032/2016, which led to the District Collector to issue notice to them to appear before him for a hearing relating to their application for refund of the stamp duty. They say that they had, thereafter, filed Exhibit P7 affidavit before the District Collector explaining the delay in executing Exhibit P3 partition deed and why they had not approached the said authority earlier than Exhibit P4 praying for return of the stamp duty paid on Exhibit P1. The petitioners submit WPC 34428/16 7 that in spite of all these, the first respondent District Collector caused Exhibit P8 order to be issued through the Sub Collector, the second respondent herein, rejecting the petitioners' application and holding that the stamp duty on Exhibit P1 cannot be refunded, since it was not made within the period stipulated under Section 48 of the Act. The petitioners have challenged this order as being illegal and issued without proper application of mind, singularly referring to the specific provisions contained in Sections 47 and 48 of the Act, which they claim permits such refund.
9. I have heard Sri.Ram Mohan L., learned counsel for the petitioners and the learned Government Pleader for the respondents.
10. The pleadings on record would show that exhibit P1 partition deed was presented for registration on 14.06.2010 and that it was impounded immediately thereafter, because it included a property belonging WPC 34428/16 8 individually to the first petitioner, the authorities, therefore, holding it to be a sale deed rather than a partition deed. The petitioners executed Exhibit P3, which is a new partition deed, only on 17.10.2015. As per the provisions of Sections 47 and 48 of the Act, an application for allowance for spoiled stamps shall be made within the period specified in Section 48.
11. The unravelling of the points of departure, between the petitioners on one hand and the official respondents on the other in this writ petition, would require an understanding of the prescriptions in Sections 47 and 48 of the Act providing for allowance for spoiled stamp and prescribing time frames for making applications for such in its full import and I, therefore, extract these two Sections as under:
"47. Allowance for spoiled stamps.- Subject to such rules as may be made by the Government as to the evidence to be required, or the enquiry to be made, the Collector may, on application made, within the period prescribed in Section 48, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in WPC 34428/16 9 the cases hereinafter mentioned, namely:-
(a) the stamp on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;
(b) the stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto;
(c) the stamp used for an instrument executed by any party thereto which-
(1) has been afterwards found to be absolutely void in law from the beginning;
(2) has been afterwards found unfit, by reason fo any error or mistake therein, for the purpose originally intended;
(3) by reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed;
(4) for want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended;
(5) by reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose;WPC 34428/16 10
(6) becomes useless in consequence of the transaction intended to be thereby effected, being effected by some other instrument between the same parties and bearing a stamp of not less value;
(7) is deficient in value and the transaction intended to be thereby effected has been effected by some other instrument between the same parties and bearing a stamp of not less value;
(8) is inadvertently and designedly spoiled, and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped;
Provided that, in the case of an executed instrument, no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled.
Explanation.- The certificate of the Collector under Section 32, that the full duty with which an instrument is chargeable has been paid, is an impressed stamp within the meaning of this section.
48. Application for relief under Section 47 when to be made.- The application for relief under Section 47 shall be made within the following periods, that is to say-
(1) in the cases mentioned in Clause )(5), within two months of the date of the instrument;
(2) in the case of a stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled;WPC 34428/16 11
(3) in the case of a stamped paper in which an instrument has been executed by any of the parties thereto, within six months after the date of the instrument or, if it is not dated, within six months after execution thereof by the person by whom it was first or alone executed:
Provided that-
(a) when the spoiled instrument has been for sufficient reasons sent out of the State, the application may be made within six months after it has been received back in the State.
(b) when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the application may be made within six months after the date of execution of the substituted instrument."
12. As per Section 47 above, the District Collector is enjoined to make allowance for the impressed stamps spoiled in the specified instances thereunder, on applications being made for it; while Section 48 prescribes that such applications will have to be made within the periods appointed herein. Relying on the two provisions above, the respondents have, in Exhibit P8, taken a stand that the period between presentation of WPC 34428/16 12 Exhibit P1 for registration, namely 14.06.2010 and the date of registration of Exhibit P3, namely 12.10.2015, is more than six months and, therefore, that the application for allowance for spoiled stamps relating to exhibit P1 cannot be entertained.
13. The petitioners, however, maintain that as per proviso (b) to Section 48 of the Act, when an instrument which has been substituted by another, such instances being provided for under Section 47(c)(6), could not be cancelled within the period of six months due to unavoidable circumstances, such application may be made within six months after the date of execution of the substituted instrument. They contend that Exhibit P3, which is a substituted instrument, was executed on 12.10.2015 and that Exhibit P4 application for refund was made on 14.12.2015, which is within six months of the execution of the substituted document. The petitioners say that the delay between the date of presentation of WPC 34428/16 13 Exhibit P1 and the date of execution of Exhibit P3 was unavoidable and therefore, that the mandate of proviso
(b) to Section 48 of the Act would squarely apply.
14. In support of their above assertion, they submit that after Exhibit P1 was submitted for registration, they were under the impression that it was so registered. They also say that on the document being impounded by the competent authorities, they were asked to pay large amounts towards stamp duty, constraining them to file W.P.(C)No.12504/2012, which was disposed of only on 25.02.2015 by Exhibit P2 judgment. According to them, they received the copy of the judgment only on 24.03.2015 and that since a correction was required therein, they filed I.A.No.8170/2015, which was allowed only on 30.06.2015. The petitioners assert that the corrected copy of the judgment was received only on 27.07.2015 and that only when they approached the authorities for rectification of Exhibit P1, as permitted by WPC 34428/16 14 the directions in the judgment, that they became aware that Exhibit P1 had not, in fact, been registered, thus necessitating registration of a new document, namely Exhibit P3. The delay between the date of presentation of Exhibit P1 and registration of Exhibit P3, according to the petitioners, was on account of the pendency of the writ petition and because of the reasons recorded above.
15. However, in Exhibit P8 the respondents have rejected these contentions of the petitioners relying on Section 48 of the Act and stating that Exhibit P4 application has been made much beyond the time permissible for refund or allowance of the spoiled stamps.
16. I have considered Exhibit P8 order, which is impugned in this writ petition. Exhibit P4 application of the petitioner was rejected relying solely on Section 48, which prescribed a period of six months within which time such application had to be made. It also refers to the proviso (b) to Section 48 relating to substitution of WPC 34428/16 15 document and delay on account of unavoidable circumstances and has recorded that the delay occasioned in this case cannot be deemed to be unavoidable. Pertinently, Exhibit P8 does not say why such authority has entered into such a finding except that it is stated that the delay between the year 2010 and 28.05.2015 cannot be held to be for unavoidable circumstances.
17. As I have recorded above, Exhibit P1 was presented on 14.07.2010 and it was impounded by the authorities immediately thereafter and orders were issued by the competent Sub Registrar directing them to remit Rs.6,06,950/- as stamp duty along with a fine of Rs.1,000/-. Against the said order the petitioner filed W.P. (C)No.12504/2012, which was disposed of by this Court by judgment dated 25.02.2015. The petitioners say that they received the certified copy only on 24.03.2015 and that subsequent to correction in the judgment effected by WPC 34428/16 16 this Court on 30.06.2015, it was received back only on 27.07.2015. They specifically contend that only thereafter, they could have approached the authorities and that only then they became aware that Exhibit P1 had not been registered. They maintain that they have, thereafter, registered Exhibit P3, a fresh partition deed, on 12.10.2015. They state that Exhibit P4 application was made thereafter within a period of six months on 15.12.2015 and that the entire delay in doing so had been properly explained in Exhibit P7.
18. I find considerable force in the submissions made by the petitioners. The delay between the date of presentation of Exhibit P1 and filing of Exhibit P4 has been clearly and cogently explained by the petitioners and the fact that substantial part of this delay was on account of the pendency of the writ petition filed by them and the rest being on account of the correction required in the judgment of this Court in W.P.(C)No.12504/2012, it WPC 34428/16 17 would certainly make it unavoidable circumstances. The provisions of proviso (b) to Section 48 would, therefore, apply and the petitioners would certainly be entitled to the reliefs sought for in this writ petition.
19. I am strengthened in my view by a judgment of this Court Wilson Chakkappan v. Tahsildar, Aluva (2012 (3) KHC 804), where this Court had found that when the facts would show such unavoidable circumstances, which caused delay in making the application for refund of the spoiled stamps, proviso (b) to Section 48 would stand attracted, as per which an application can be made during six months after the date of execution of the substituted instrument.
20. In this case, as per the counter affidavit filed on behalf of the respondents, Exhibit P4 application has been made by the petitioners within a period of six months after Exhibit P3 substituted document had been executed.
WPC 34428/16 18
In such circumstances, I see to reason to deny relief to the petitioners and I, therefore, quash Exhibit P8 order and consequently direct the respondents to refund the stamp duty of Rs.3,11,100/- to the petitioners. This shall be done by the respondents without any further delay but no later than three months from the date of receipt of a copy of this judgment.
This writ petition is thus disposed of.
Devan Ramachandran, Judge tkv