Kerala High Court
Respondents vs Appellant on 18 June, 2009
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
MONDAY, THE 19TH DAY OF MARCH 2012/29TH PHALGUNA 1933
OP(C).No. 488 of 2010 (O)
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CMA.88/2008 OF ADDL.DISTRICT COURT, KOTTAYAM
PETITIONER(S): RESPONDENTS
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1. THE STATE OF KERALA REP. BY DISTRICT
COLLECTOR, KOTTAYAM.
2. THE DISTRICT REGISTRAR(GENERAL), KOTTAYAM.
3. THE SUB REGISTRAR, KOTTAYAM ADDITIONAL.
BY ADV. GOVERNMENT PLEADER SMT.SAREENA GEORGE
RESPONDENT(S): APPELLANT
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THOMAS VADAKKEMANNIL JACOB,
S/O.CHACKO ABRAHAM,VADAKKEMANNIL HOUSE, ANGADI KARA
ANGADI VILLAGE,REP.BY POWER OF ATTORNEY HOLDER
DILEEP E.ALEX, ERUTHICKAL, PUTHANANGADI
KOTTAYAM, PO 686 001.
BY SRI.SREELAL N.WARRIER
BY SRI.B.RAGHUNANDANAN
BY SMT.A.SREEKALA (VAIKOM)
BY SMT.GANGA A.SANKAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2012,
ALONG WITH O.P.(C) NO.537 AND 2010 AND OTHER CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.488/2010
APPENDIX
PETITIONERS' DOCUMENTS :
EXT.P1 : COPY OF THE APPEAL FILED BY THE RESPONDENT.
EXT.P2: COPY OF THE JUDGMENT DATED 18.6.2009 OF THE DISTRICT COURT,
KOTTAYAM.
RESPONDENT'S DOCUMENTS :
NIL
//TRUE COPY//
P.A. TO JUDGE
K.T.SANKARAN, J.
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O.P.(C) Nos.488 & 537 of 2010,
W.P.(C) Nos.23588, 23761,
23828 & 24013 of 2010
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Dated this the 19th day of March, 2012
JUDGMENT
These Writ Petitions are filed challenging the order passed by the Additional District Judge, Kottayam, in C.M.Appeals filed against the orders passed by the District Registrar (General), Kottayam under Section 45B of the Kerala Stamp Act.
2. The respective respondent in the Writ Petitions are the purchasers under various sale deeds. The Sub Registrar registered the documents and referred the matter under Section 45B of the Kerala Stamp Act on the ground that the market value of the respective properties was not shown in the documents. The District Registrar held that undervaluation was made and the parties were directed to pay additional stamp duty. Those orders were challenged before the District Court in the C.M.Appeals referred to above. O.P.(C) No.488/10 & conn. cases 2 The learned District Judge held that the orders passed by the District Registrar are contrary to law and set aside those orders. The orders passed by the learned District Judge are under challenge in this Writ Petitions.
3. O.P.(C) No.37 of 2010 was filed challenging the order in C.M.A.No.70 of 2008 on the file of the court of the Additional District Judge, Kottayam. C.M.A.No.70 of 2008 was disposed of by the learned Additional District Judge along with eight other connected cases. A learned Single Judge of this Court dismissed C.M.A.No.70 of 2008 holding that the order passed by the Additional District Judge was legal and proper. It was held thus :
"15. The learned Government Pleader would argue that the word 'value' appearing in Sec. 45B is the market value and the District Collector is empowered to go into the question whether the amount set forth in a document for registration is less than the market value or not. Even by stretch of imagination, such a meaning cannot be attributed to the word 'value' made mention of in Section 45B of the Act. There can be no quarrel against the proposition that the registering officer shall always have the power to refer the O.P.(C) No.488/10 & conn. cases 3 instrument to the Collector under Section 45B(1) if he has reason to believe that the value or consideration has not been truly set forth in the instrument. This Court in Rahim Baker v. Sub Registrar (2001(3) KLT S.N.18, Case No.24) has held that the parties cannot escape from the clutches of this provision. Had it been the legislative intention to see that stamp duty is levied on the market value, the same would have been reflected in Section 45B. If the word 'value' which appears in Section 45B is interpreted to mean as market value, Section 28A of the Act would become redundant. The legislature intended, that for the purpose of imposition of stamp duty, a fair value has to be fixed. That is the reason why Section 28A has been introduced. However, as observed earlier, there may be circumstances where the actual consideration passed would be more than the fair value fixed under Section 28A. In such circumstances the parties shall not be allowed to defraud the State Revenue by showing a lesser value or consideration in the instrument. In order to remedy such situations, powers are given under Section 45B for a reference to the Collector. Section 45B also envisages suo motu action by the Collector. That being the case, the market value of the property cannot have any bearing on the question. The material to determine whether stamp duty levied is proper or not is the consideration which actually passed. So, when a reference is made under Section 45B, the Collector has to decide the true consideration which passed O.P.(C) No.488/10 & conn. cases 4 by virtue of the document under consideration and if on such enquiry, it is found that the true consideration which passed is more than what is stated in the document, the District Collector can levy duty. Under no circumstance the District Collector can take into account the market value of the property involved. Only on satisfaction that something more than what was stated as consideration in the document has passed from one party to other is the District Collector justified in directing to pay additional stamp duty. Assessment of stamp duty on the basis of market value is not at all envisaged by the legislature and a direction to pay stamp duty on the market value is incompetent as it is without jurisdiction and is liable to be interfered with."
In view of the judgment in O.P.(C) No.37 of 2010, I am of the view that all these Writ Petitions are liable to be dismissed. Accordingly, the Writ Petitions are dismissed.
K.T.SANKARAN JUDGE csl