Kerala High Court
Kannur District Ex-Service Men Multi ... vs The Sub Registrar on 5 March, 2020
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
WP(C).No.18574 OF 2013(V)
PETITIONER:
KANNUR DISTRICT EX-SERVICE MEN MULTI PURPOSE
CO-OPERATIVE SOCIETY LTD.No. C-1009
REPRESENTED BY ITS SECRETARY,
PAYANGADI,
KANNUR DISTRICT.
BY ADVS.
SRI.M.SASINDRAN
SRI.PRADEESH MATHEW
RESPONDENTS:
1 THE SUB REGISTRAR,
PAYANGADI-670 303,
KANNUR DISTRICT.
2 THE DISTRICT REGISTRAR (GENERAL),
KANNUR-670 001.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY,
DEPARTMENT OF REGISTRATION,
SECRETARIATE,
THIRUVANANTHAPURAM. 695 001.
GP - SRI. RENIL ANTO KANDAMKULATHY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.18574/2013(V) 2
JUDGMENT
Dated this the 5th day of March, 2020 The petitioner, a Co-operative Society seeks to set aside Exts.P5 and P6 and command the respondents to release Ext.P2 Jenmam Deed after proper registration without insisting for payment as ordered in Exts. P5 and P6. The petitioner also seeks to declare that the Ext.P2 Jenmam Deed executed by the petitioner is eligible for exemption in accordance with S.R.O. 75/60 read with Section 40 of the Kerala Co-operative Societies Act, 1969.
2. The petitioner states that the business of the petitioner- Society includes purchasing of land for its members to construct houses and developing such land. After construction the petitioner-Society transfers the land to its members by way of sale. In connection with this business, the petitioner-Society executed a Jenmam Deed assigning 2 plots of land in favour of one of its members. The plots 1 and 4 were transferred in WP(C).No.18574/2013(V) 3 accordance with a resolution passed by the petitioner on 20.04.2013.
3. The petitioner claims that, being a Co-operative Society, the petitioner is entitled for exemption from stamp duty on Ext.P2 Deed in accordance with the exemption granted by the Government by virtue of S.R.O. 75/60. Relying on the said Government Order, the District Registrar of Kasaragod has provided exemption from remitting stamp duty, to Kasaragod District Co-operative Society in similar circumstances. The petitioner is also entitled to a similar treatment. However, to the surprise of the petitioner-Society, the second respondent issued Ext.P5 order holding that, Ext.P2 Deed is not exigible for exemption of duty and an amount of Rs. 1,87,500/- plus fine of Rs.500/- has to be remitted by the petitioner.
4. The petitioner states that, their application was rejected based on a judgment of this Court in W.P.(C) No.2377 of 2009. The facts on which the said judgment was delivered are totally different. In the petitioner's case, transfer of land and execution of instrument by the petitioner is in relation to the business of the WP(C).No.18574/2013(V) 4 petitioner-Society as laid down in its by-laws. Therefore the petitioner society is eligible to get remission of stamp duty, contended the learned counsel for the petitioner.
5. I have heard the learned counsel for the petitioner and the learned Government Pleader.
6. A Full Bench of this Court considered the eligibility of Co-operative Societies for remission of stamp duties in Sub Registrar, Palakkad and Others v. Kerala State Co-operative Consumers Federation Ltd., Kochi [2015 (1) KLT 443]. After considering the entire legal aspects, the Full Bench held as follows:
1) SRO No. 75/60 issued under S.35 of the TC Act and S.30 of the Madras Act is saved by virtue of S.110(2) of the Kerala Act only to the extent it is not inconsistent with the provisions of the Kerala Act.
2) SRO No. 75/60 should be understood within the limitations of S.110(2) and S.40(1)(a) of the Kerala Act.
3) "The benefit of remission of stamp duty is available only in respect of instruments executed by or on behalf of a society or by an officer or member thereof and instrument so executed should be relating to the business of the society."WP(C).No.18574/2013(V) 5
4) The benefit of remission can be claimed by the society only if, but for such remission, the society, an officer or the member as the case may be, would have been liable to pay such stamp duty.
(emphasis supplied)
7. From the Full Bench judgment, it is clear that the benefit of remission is allowed in respect of documents executed by or on behalf of the society or by its officer or member. In cases were societies purchase properties, in view of Section 55 of the Transfer of Property Act, since the execution of the instruments is not by the society but by the vendor of the property, the requirement of execution of the instruments by or on behalf of the society as provided in Section 40(1)(a) of the Kerala Stamp Act, 1959 and sub-clause 1(a) of S.R.O. 75/60 is not satisfied. In the petitioner's case, it is evident that the benefit of remission is sought in respect of documents executed by the Society and such execution of documents are in the course of the business of the society.
8. In the circumstances, Ext.P5 order of the 2nd respondent is set aside. The consequential Ext.P6 order passed by the 1st respondent is also set aside. The 2nd respondent is WP(C).No.18574/2013(V) 6 directed to re-consider the issue in the light of the Full Bench judgment in Sub Registrar, Palakkad and Other v. Kerala State Co-operative Consumers Federation Ltd., Kochi reported in [2015 (1) KLT 443] and the Division Bench judgment in State of Kerala V. Chethala Government Servant Co-operative Bank Ltd. [2020 (1) KLT 245]. To enable the 2nd respondent to pass an order as directed above, the petitioner shall serve a certified copy of the judgment in this writ petition along with the aforesaid two judgments of the Full Bench and Division Bench. The 2 nd respondent shall pass consequential order within a period of one month from the date of receipt of a copy of this judgment.
The benefit of interim order passed by this Court on 01.08.2013 will continue to enure to the benefit of the petitioner till a decision is taken by the 2nd respondent.
Sd/-
N. NAGARESH JUDGE SR WP(C).No.18574/2013(V) 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ANNEXURE ADDED TO ITS BYE LAW DATED 18.12.2008.
EXHIBIT P2 A TRUE COPY OF THE JENMAM DEED EXECUTED BY THE PETITIONER DATED 07.6.2013.
EXHIBIT P3 A TRUE COPY OF THE ORDER NO.G-2- 4717/2012 DATED 26.12.2012 ISSUED BY THE DISTRICT REGISTRAR, KASARAGOD.
EXHIBIT P4 TRUE COPY OF THE SRO NO.75/60.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.G1-4169/2013
DATED 28.6.2013 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE IST
RESPONDENT DATED 3.7.2013.
SR //True Copy// PA to Judge