Remanded

Sebastian v. the Sub Registrar

Kerala HC7 Nov 2016WP(C)/33895/2014

Case brief

AI extract

What is this about?

The Court set aside an order refusing registration of a sale deed without an inquiry into the land's actual nature. It directed a fresh inquiry by the Revenue Divisional Officer to determine the correct land classification before deciding stamp duty liability.

What did the court decide?

The impugned order dated 25.11.2014 was set aside; matter remanded to the District Collector/R.D.O. for fresh inquiry into the nature of the land.

Sebastian Vs the Sub Registrar — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938

¶5

WP(C).No. 33895 of 2014 (J)

¶6

PETITIONER(S):

¶7

SEBASTIAN, S/O. JOSEPH,AGED 59 YEARS, RESIDING AT MATHALIKKUNNEL HOUSE, THIRUVAMBADY, KOZHIKODE TALUK, KOZHIKODE.

¶8

BY ADVS.SRI.A.SUDHI VASUDEVAN (SR.) SRI.V.V.PADMANABHAN SRI.JOSE JONES JOSEPH

¶9

RESPONDENT(S):

¶10

1. THE SUB REGISTRAR

¶11

THIRUVAMBADY, THIRUVAMBADY P.O., KOZHIKODE.

¶12

2. THE TAHSILDAR KOZHIKODE TALUK, KOZHIKODE - 673 001.

¶13

3. THE DISTRICT COLLECTOR, KOZHIKODE- 673 001.

¶14

4. THE DISTRICT REGISTRAR GENERAL, KOZHIKODE - 673 001.

¶15

R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

¶18

WP(C).No. 33895 of 2014 (J)

¶19

APPENDIX

¶20

PETITIONER(S)' EXHIBITS

¶21

EXHIBIT-P1:TRUE COPY OF THE JENMAM SALE DEED DATED 07/11/2014 EXECUTED BY MARYKUTTY THOMAS IN FAVOUR OF THE PETITIONER. EXHIBIT-P2:TRUE COPY OF THE GAZETTE NOTIFICATION DATED 14/12/2009. EXHIBIT-P3:TRUE COPY OF THE PROCEEDINGS DATED 25/11/2014 OF THE 4TH RESPONDENT. EXHIBIT-P4:TRUE COPY OF THE JUDGMENT DATED 09/08/2012 IN W.P(C) 17516/2012 EXHIBIT -P5:COPY OF DEED NO. 795/1985 OF SUB REGISTRAR'S OFFICE, KODANCHERRY, KOZHIKODE.

¶22

RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.S. TO JUDGE

ALEXANDER THOMAS, J.

==================

W.P.(C).No. 33895 of 2014

¶29

==================

¶30

Dated this the 7^th day of November, 2016 J U D G M E N T

¶31

The case set up by the petitioner is that he had purchased an extent of 38.15 ares of unsurveyed landed property situated within Ward No.15 of Thiruvambadi Panchayat, Thiruvambadi amsom, Thamarassery taluk, Thiruvambadi sub district, situated in Kozhikode Revenue District, as per Ext.P-1 sale deed dated 7.11.2014 executed by one Smt.Marykutty Thomas, who is the owner of the said property, in favour of the petitioner. According to the petitioner, the said unsurveyed property within the limits of ward No.15 of Thiruvambadi Panchayat has been categorized as “ hill tract property ” as per Entry No.51 of Ext.P-2 fair value notification issued under Sec.28A of the Kerala Stamp Act, 1959, whereby the fair value of the said land has been fixed @ Rs.7,410/- per are. Entry No.30 of Ext.P-2 shows that surveyed property (survey No.146) in Ward Nos.6, 7, 8 and 15 of Thiruvambadi Panchayat have been classified as “ hill tract with road access ” wherein also the fair value

¶32

W.P.(C).33895/14 - : 2 :-

¶33

is shown as Rs. 7,410/- per are. The petitioner had taken steps to execute Ext.P-1 sale deed by setting forth the value of the property @ Rs.7,410/- per are in tune with serial No.51 of Ext.P-2 notification. But that when Ext.P-1 sale deed was presented for registration by the petitioner and the previous owner of the property, Smt.Marykutty Thomas, the 1^st respondent registering authority (Sub Registrar, Thiruvambadi, Kozhikode district) had refused to register the document holding that the consideration shown is not correct. The petitioner would contend that the 1^st respondent can refuse to register a document under Sec.45A(3) of the Kerala Stamp Act, 1959, only if the consideration set forth in the document is less than the fair value shown by the Government under Sec.28A of the Kerala Stamp Act, 1959. It is contended by the petitioner that as per the mandate of Sec.45A(2), if 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, then he shall duly register the instrument and that he has no discretion to refuse the registration of the document. But that the 4^th respondent has illegally passed the impugned Ext.P-3 proceedings dated 25.11.2014, whereby he has refused to register

¶34

W.P.(C).33895/14 - : 3 :-

¶35

Ext.P-1 sale deed, even though the consideration shown therein would fully reflect the notified fair value shown as per serial No.51 of Ext.P-2 notification. It is pointed out that the 1^st respondent has taken into consideration the irrelevant aspects, while passing the impugned Ext.P-3 rejection order. It is in the light of these aspects that the petitioner has instituted the aforementioned Writ Petition (Civil) with the following reliefs:

¶36

(i) Issue a writ of certiorari and quash Ext.P-3 order dated 25.11.2014 of the 4^th respondent, so as to secure the ends of justice.

¶37

(ii) Issue a writ of mandamus or any other appropriate writ direction or order directing the 1^st respondent to register the Ext.P-1 sale deed forth with, so as to secure the ends of justice.

¶38

and

¶39

(iii) Such other relief's as this Hon'ble Court may deem fit and proper in the circumstances of the case.”

¶40

The petitioner has also filed an additional affidavit,

¶41

whereby he has also produced the previous document of the property, which gave title to the present owner, Smt.Marykutty Thomas, as Ext.P-5. The official respondent has filed a counter affidavit dated 12.2.2015 in this matter, wherein it is essentially stated that, on verification of the previous document pertaining to Ext.P-1, it is found that the type of land was shown as “parambu” (Malampradesham). But that in the property description thereto,

¶42

W.P.(C).33895/14 - : 4 :-

¶43

there is no mention of hill tract. Further that in the previous document, the type of land is mentioned as “ parambu ” and that the type of land has been changed from parambu (Malampradesam) in the current deed. That from these facts, it cannot be inferred that the land mentioned comes under the classification, “ hill tract with road access ”. Thus the stamp duty for the above deed has been determined by taking the fair value of the classification, “ garden land with road access ”. It is further pointed out in para 4 of the counter affidavit that the value of the land was calculated to be Rs.27,70,100/- by considering fair value of Rs. 72,610/- per are for ward No.15. That thus the requisite stamp duty is @ 6% of the consideration, which comes to Rs.1,66,210/- and that thus the impugned Ext.P-3 order dated 25.11.2014 has been issued to the petitioner to remit a deficit stamp duty of Rs.1,48,710/- by deducting an amount of Rs. 17,500/- which has already been paid, etc.

¶44

Heard Sri.A.Sudhi Vasudevan, learned Senior Counsel instructed by Sri.N.Praveesh, learned counsel appearing for the writ petitioner and Sri.Saigi jacob Palatty, learned Senior Govt. Pleader appearing for the respondents.

¶45

W.P.(C).33895/14 - : 5 :-

¶46

The rival contentions raised in this case would be better appreciated in the light of the relevant provisions of Sec. 28A as well as Sec.45A of the Kerala Stamp Act, 1959. Sec.28A of the Act was inserted by the Kerala Finance Act, 1994, by which, the Revenue Divisional Officer (R.D.O) concerned has been empowered to fix the fair value of the lands situate in the area of his jurisdiction, for determining the stamp duty chargeable at the time of registration of instruments involved in the lands. As Ext.P-1 sale deed dated 7.11.2014 has been presented for registration as per application dated 19.11.2014, which is referred to in the impugned Ext.P-3, the amendment introduced as per sub sections 1A and 1B with effect from 1.4.2014 is also applicable. Sec.28A as it stands after the amended provisions incorporated therein with effect from 1.4.2014, reads as follows:

¶47

"Sec.28A. Fixation of fair value of land.- (1) Every Revenue Divisional Officer shall, subject to such rules as may be made by the Government in this behalf, fix the fair value of the lands situate within the area of his jurisdiction, for the purpose of determining the duty chargeable at the time of registration of instruments involving lands.

¶48

(1A) Subject to such rules as may be prescribed, the fair value of land fixed under sub-section (1) may be revised by the Revenue Divisional Officer every five years or earlier if so directed by the Government, if in the opinion of the Government any substantial change of the fair value of land has taken place.

¶49

(1B) Notwithstanding anything contained in this Act or the

¶50

W.P.(C).33895/14 - : 6 :-

¶51

Rules made thereunder, the Government may, by notification published in the Official Gazette, make an increase of a fixed percentage in the fair value of land fixed as per sub-section (1), from time to time, before revision is made under sub-section (1A) and the value so increased shall be deemed to be the fair value of the land.

¶52

(2) The Revenue Divisional Officer shall, in fixing the fair value of a land under sub-section (1), have regard inter alia to the following matters, namely:-

¶53

(a) development of the area in which the land is situate such as the commercial importance, facilities for water supply, electricity, transport and communication;

¶54

(b) proximity of the land to markets, bus stations, railway stations, factories, educational institutions or other institutions;

¶55

(c) the geographical lie of the land, the nature of the land such as dry, waste, wet or garden land, fertility, nature of crop, yielding capacity and cost of cultivation; and

¶56

(d) such other matters as may be provided in the rules made under this Act.

¶57

(3) The fair value of land fixed under sub-section (1) and the revised fair value of land fixed under sub-section (1A) shall be published in such manner as may be provided in the rules made under this Act.

¶58

(4) Any person aggrieved by the fixation of fair value under sub-section (1) or the revision of fair value under sub-section (1A) may, within one year of its publication under sub-section (3), appeal to the Collector.

¶59

Provided that the Collector may admit an appeal preferred after the said period of one year if he is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.”

¶60

Sec.45A of the Act confers certain powers on the

¶61

registering officer and the said provision has been introduced by Act 19 of 1994. Sec. 45A of the Act reads as follows:

¶62

W.P.(C).33895/14 - : 7 :-

¶63

"Sec.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, chargeable with duty verify whether the value of land or the consideration set forth in the instrument is the fair value of that land.

¶64

(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.

¶65

(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 of proper stamp duty on the fair value of the land fixed under Section 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, he shall duly register such instrument and certify by endorsement on the instrument under his seal and signature that proper stamp duty has been charged and paid.

¶66

(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.

¶67

(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.”

¶68

As per the amended provisions contained in Sec.28A(1), every Revenue Divisional officer is obliged to fix the fair value of the land situated within the area of his jurisdiction, for the purpose of determining the duty chargeable at the time of registration of instruments involving lands. As per Sec.45A(1), it has been stipulated that the registering authority while registering the instrument transferring any land, other than an instrument of partition, settlement or gift among the members of a family,

¶69

W.P.(C).33895/14 - : 8 :-

¶70

chargeable with duty, verify whether the value of land or the consideration set forth in the instrument is the fair value of that land. Further sub section (2) of Sec. 45A mandates that 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. Further it is to be noted that Sec.45B may not have much application

¶71

on the admitted facts in this case. Both sides would submit that based on the facts which led to the impugned Ext.P-3 order, this case does not in any manner involve the applicability of Sec.45B.

¶72

The specific case set up by the petitioner as can be seen from Ground “G” of the W.P.(C). is that the property involved in Ext.P-1 sale deed is a unsurveyed hill tract property, which comes in Ward No.15 of Thiruvambadi Panchayat, is fully covered by serial No.51 of Ext.P-2 fair value notification and that the property is in fact a hill tract with road access and that therefore the finding in the impugned Ext.P-3 order that the property is a “garden land with road access” in Ext.P-3, that too, without conducting any inquiry, is arbitrary and illegal.

¶73

Whereas the case set up by the 1^st respondent in the

¶74

W.P.(C).33895/14 - : 9 :-

¶75

impugned Ext.P-3 is that the property involved in Ext.P-1 will not come within the classification “hill tract property with road access”. Further that as per the previous document, the land was not shown as hill tract property, but was shown as parambu (garden land) and therefore, the relevant fair value that is that which relates to “garden land” in ward No.15 of the Thiruvambadi Panchayat as per the fair value notification.

¶76

The learned Government Pleader would further point out

¶77

that even as per the case set up by the petitioner, as per Ext.P-5, previous document in question, wherein two separate items of properties were conveyed to the petitioner's predecessor (Smt.Mary Thomas) and that it is only the first item of the property, which is shown as “ÈOßMxÎÜÕÞøJßW Äàø dÉµÞø¢ Øßißºî ÕØñá 20.23 Ares .”, whereas serial No.2 of the property conveyed in Ext.P-5 is described only as “æÄæAÈOßMxßW ÄàødÉµÞø¢ Øßißºî 4 ¯. 50 æØ. W Õ¿AáÍÞ·¢ µßÝAáÉ¿ßEÞù ÄàVJ 1.611 æÙµí¿V" and it is Sl.No.2 property of Ext.P-5 previous deed which is conveyed by Ext.P-1.

¶78

But the respondents have not produced the fair value notification, in which fair value has been notified for “garden land with road access” in ward No.15 of Thiruvambadi Panchayat. It is

¶79

W.P.(C).33895/14 - : 10 :-

¶80

only stated in para 4 of the counter affidavit that the fair value of “garden land with road access” properties in ward No.15 of Thiruvambadi Panchayat has been shown as Rs. 72,610/- per are, as per serial No.933 of the fair value notification. Moreover, this incomplete ground has not even been referred to in the impugned Ext.P-3 order. Still further, it is the respondents who have not denied the contention raised by the petitioner that the impugned

¶81

Ext.P-3 order was passed without giving the petitioner any opportunity of being heard in the matter and that the same was passed without conducting any inquiry regarding the actual nature of the land, with reference to its ground realities.

¶82

In the light of these aspects, it is only to be held that the impugned Ext.P-3 order is liable to be interfered with and the matter is to be remitted to the 4^th respondent District Registrar for consideration of the matter afresh.

¶83

Sri.A.Sudhi Vasudevsan, learned Senior Counsel, instructed by Sri.N.Praveesh, learned counsel appearing for the writ petitioner is correct in contending that a proper inquiry is necessary in the matter, wherein the nature of the land, with reference to the actual ground realities, should be ascertained and it should be

¶84

W.P.(C).33895/14 - : 11 :-

¶85

clearly determined as to whether the land covered by Ext.P-1 is “hill tract with road access” property (unsurvey) as per serial No.51 of Ext.P-2 fair value notification or whether it is “garden land with road access” unsurveyed property in ward No.15 of Thiruvambadi Panchayat, as contended by the 4^th respondent. In the light of these aspects, it is ordered that the 2^nd respondent District Collector will ensure that the abovesaid fact finding should be made by the Revenue Divisional Officer (R.D.O) of the area concerned, within whose jurisdiction the land in question is situated. The R.D.O will be at liberty to ensure that a proper inquiry is conducted through one of the competent subordinate officials and it should be ascertained with reference to Ext.P-5 document, whether the land covered by Ext.P-1 is hill tract with road access, unsurveyed property coming within ward No.15 of Thiruvambadi Panchayat or whether it is a “garden land with road access” unsurveyed property coming within ward No.15 of Thiruvambadi Panchayat. The copy of the inspection report should be made available to the petitioner. Thereafter, the Revenue Divisional Officer may consider the said inspection report and will determine whether the land in question would come within hill tract with road access in unsurveyed property within ward No.15

¶86

W.P.(C).33895/14 - : 12 :-

¶87

of Thiruvambadi Panchayat or whether it is garden land with road access unsurveyed property in ward No.15 in Thiruvambadi Panchayat. Before an actual decision is so taken by the Revenue Divisional Officer, the petitioner will be given an opportunity of being heard in the matter and it is only thereafter that the R.D.O. should submit necessary report determining the abovesaid issue and the said report so submitted by the Revenue Divisional Officer should be conveyed to the 4^th respondent District Registrar. Upon receipt of the report so submitted by the Revenue Divisional Officer concerned, the 4^th respondent District Registrar will pass necessary orders in the matter after affording an opportunity of being heard to the petitioner, and conveying his decision to the 1^st respondent for proceeding further in the matter. The entire process in that regard should be completed by the Revenue Divisional Officer as well as the 4^th respondent District Registrar, within an outer time limit of 2 months from the date of production of a certified copy of this judgment.

¶88

The office of the Advocate General will ensure that a copy of the judgment is forwarded to the Revenue Divisional Officer of the area concerned for necessary compliance. The petitioner will

¶89

W.P.(C).33895/14 - : 13 :-

¶90

also be at liberty to produce a certified copy of this judgment before the Revenue Divisional Officer and the 4^th respondent for further compliance.

¶91

With these observations and directions, the Writ Petition (Civil) stands finally disposed of.

¶92

sdk+

¶93

Sd/ALEXANDER THOMAS, JUDGE

¶94

///True Copy///

¶95

P.S. to Judge

Sebastian v. the Sub Registrar

Case brief

What is this about?

What did the court decide?

Sebastian v. the Sub Registrar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

T.Rakhesh Vs C.P.Ramaraja Prema Prasad

Jessy v. Cherian Vs P.Ushadevi

Thayath Parakke Mariyam Vs the District Collector, Kannur

Mohan Thomas Vs M/S.Etham Foloriex Limited

S.R.Baiju Vs the General Manager

Jose Vs State of Kerala