Allowed

Kozhikode Bhavana Nirmana v. the Commissioner for Land

Kerala HC13 Mar 2024WP(C)/23061/2014

Case brief

AI extract

What is this about?

A housing co-operative society challenged refusal to register sale deeds executed on white paper to its members without stamp duty, claiming exemption under a 1960 government notification. Following a Full Bench decision, the court held the society was exempt when executing as vendor and allowed the writ petition.

What did the court decide?

Declaration that the society is entitled to exemption from stamp duty under Clause 1(a) of Ext.P1 notification for instruments executed by it in favour of its members.

Kozhikode Bhavana Nirmana Vs the Commissioner for Land — Cooperative Societies | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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WEDNESDAY, THE 13^TH DAY OF MARCH 2024 / 23RD PHALGUNA,

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1945

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WP(C) NO. 23061 OF 2014

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PETITIONER/S:

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1 KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM LIMITED NO.F 867, ERANHIPALAM.P.O., KOZHIKODE, REPRESENTED BY ITS SECRETARY.

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2 CHOVALLOOR KRISHNAN KUTTY S/O.K.V.SANKUNNI WARRIER, MEMBER NO.A 929, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.44, ERANHIPPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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3 GEORGE THOMAS, S/O.KOYIPPURAM THOMAS, MEMBER NO.A 3685, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.9, KOYIPPURAM, ERANHIPPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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4 K.P.CHITHRA, D/O.KARUNAKARAN, MEMBER NO.A 1148, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.7, CHITHRANJALI, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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5 MARY THOMAS, D/O.LATE KADAKKAL POTHEM THOMAS, MEMBER NO.A 1243, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.38, MAYFLOWER, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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6 DR.K.G.LAKSHMI, H/O.MANKAVU PUTHENPURAYIL GOPINATHAN, MEMBER NO.A 4410, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, SRELEKSHMI, NEAR TELEPHONE EXCHANGE, BEYPORE, KOZHIKODE-673 015.

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WP(C) NO. 23061 OF 2014

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7 P.V.BALAKRISHNAN, S/O.SANKARAN NAMBIAR, MEMBER NO.A 941, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.27, KRISHNA, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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8 P.M.SAYED ABDULLA, S/O.ABDURAHIMAN, MEMBER NO.A 745, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.10, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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9 AYILLATHU KUTIERI ANURAJ S/O.EDAVAN PAZHAYAVEETTIL KUNJIRAYARAPPAN NAMBIAR, MEMBER NO.A 3615, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.46, GEETHAM, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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10 K.P.KUTTIKRISHNAN NAMBIAR S/O.CHENEPRATHU CHATHOTHU ACHUTHAN NAMBIAR, MEMBER NO.A 529, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.6, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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11 M.K.UNNIKRISHNAN

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S/O.MADHURAVANAM KRISHNA KURUP, MEMBER NO.A 937, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.16, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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12 K.M.JAYARAJ, S/O.KOLARATHU PAYYANADAN KUNHIKANNAN, MEMBER NO.A 919, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT PLOT NO.39, ERANHIPALAM HOUSING COLONY, P.O.ERANHIPALAM, KOZHIKODE-673 006.

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13 E.MURALEEDHARAN S/O.EDAKKODE BHASKARAN, MEMBER NO.A 4281, KOZHIKODE BHAVANA NIRMANA SAHAKARANA SANGHAM, RESIDING AT NARAYANA MANDIRAM, MAKKADA DESOM, P.O.MAKKADA, KAKKODI, KOZHIKODE-673 617.

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WP(C) NO. 23061 OF 2014

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BY ADV SRI.P.C.SASIDHARAN

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RESPONDENT/S:

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1 THE COMMISSIONER FOR LAND OFFICE OF THE LAND REVENUE, THIRUVANANTHAPURAM.

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2 THE DISTRICT REGISTRAR GENERAL OFFICE OF THE DISTRICT REGISTRAR, KOZHIKODE (DISTRICT COLLECTOR, KOZHIKODE).

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3 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, WEST HILL, KOZHIKODE.

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OTHER PRESENT:

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SRI. T.K. SHAJAHAN -SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 23061 OF 2014

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“CR”

JUDGMENT

The above writ petition is filed with the following

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prayers;

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“i) Declare that the society is entitled for exemption from paying stamp duty as provided in Exhibit-P1 Government Order in relation to the instruments executed by it to its members and hence there is no justification in not registering Exhibits-P2, P2(a), P2(b), P2(c), P2(d), P2(e), P2(f), P2(g), P2(h), P2(i), P2(j) and P2(k) respectively sale deeds on the ground of remittance of stamp duty;

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ii) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the 2nd respondent to register the sale deed presented by the petitioner society relating to the transaction with its members without insisting to pay stamp duty by extending the stamp duty exemption as provided in Exhibit-P1;”

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The first petitioner is a primary Housing

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Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act (for short, “the Act”) and the Rules framed thereunder. Other petitioners are the members of the society. According to the petitioners, some of the main objectives of the society are the purchase of land, construction of buildings therein and transfer of the same to its members etc. While so, for the purpose of establishing a housing colony, viz., Eranhipalam Housing Colony and Kairali Apartments, at Eranhipalam in Kozhikode district, for the

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WP(C) NO. 23061 OF 2014

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benefit of its members, the society acquired land and allotted plots to its members along with houses/flats constructed therein. In terms of the byelaw of the society, the registration of sale deed in favour of its members can be done only after paying the entire amount due to the society. Accordingly, petitioners 2 to 13 made a request for execution of sale deed in their favour on full payment of the value and submitted documents to be registered, in white papers since the society got exemption from paying stamp duty in terms of Ext.P1 notification. However, though the documents were received by the registering authority, they were kept pending. Thereafter, the petitioners were informed that the non registration is on the ground of non remittance of stamp duty. According to the petitioners, in terms of Section 40 of the Act, the government issued Ext.P1 notification, GO(MS) No.795/1960/Agrl. (SRO No.75/1960) dated 08.10.1960, enabling the society to transfer properties to its members by submitting documents in white papers, against which no objection was raised by the authorities till recently. It is alleged that the society being a housing society, acquisition of land, construction of building therein and transfer of the same to its members etc. are the

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WP(C) NO. 23061 OF 2014

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business of the society as provided in its byelaw. It is aggrieved by the non registration of the documents, the petitioners have come up before this Court with this writ petition.

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The second respondent filed a counter affidavit, contending that remission of stamp duty can be allowed only if the liability to pay such stamp duty is on the co-operative society; however, in the case in hand, since the society is the executant and as per Section 30 of the Kerala Stamp Act, 1959, the purchaser is liable to pay stamp duty for a deed of conveyance, the society cannot claim exemption from stamp duty taking advantage of Section 40 of the Act. Therefore, it is contended that the petitioners are not eligible for stamp duty exemption in respect of the documents in question, taking advantage of Section 40(a) of the Act. It is pointed out that the impounded documents numbered as P.5/2014 to P.16/2014 have been registered on the basis of an interim order of this Court. Therefore, they prayed for a dismissal of the writ petition.

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I have heard the learned counsel for the petitioners and the learned Senior Government Pleader.

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WP(C) NO. 23061 OF 2014

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The issue involved in this case is whether any instrument executed by or on behalf of the society or by an officer or member thereof and relating to the business of such society is entitled for exemption from stamp duty. For a proper adjudication of the issue, it is relevant to refer to Clause 2 of the byelaw of the society, as extracted in the memorandum of the writ petition, wherein the objects of the society have been recited, which reads thus;

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“Clause 2

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(i) To provide residential house to the members,

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(ii) Buy, or acquire land or mortgage, lease exchange gift or by acquisition under the Land Acquisition Act for the time being in force.

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(iii) Layout land as house sites, roads, parks, play grounds, schools, hospitals, water works, markets, post office and construct residential houses and other social amenities.

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(iv) Construct or cause to be constructed buildings or other work of common utility to the society.

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(v) Hold, sell, mortgage, lease out on hire or on hire purchase system, or otherwise dispose of land, house sites, buildings and all other properties movable and immovable as may be necessary for carrying out the object of the society.

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(vi) Establish and maintain social, recreative, educational public health or medical institutions for the benefit of the members.

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(vii) Raise funds required for the activities of the society;

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(viii) Repair, alter or otherwise deal with the building of

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WP(C) NO. 23061 OF 2014

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the society;

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(ix) Do all things necessary as expedient for the accomplishment of the aforesaid objectives and for the welfare of the members.”

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On a reading of Clause 2 of the byelaw, it is seen

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that the objects of the society include buy or acquire land or mortgage or hold or sell properties etc. Therefore, it is clear that purchasing land, constructing buildings thereon, and selling residential units to the members of the society are nothing, but, the business of the society, it being a housing society. On an analysis of Clause 2(v) of the byelaw, undisputedly, one of the objectives of the society is to hold, sell, mortgage, lease out on hire or on hire purchase system or otherwise dispose of land, house sites, buildings, and all other properties movable and immovable as may be necessary for carrying out the object of the society. It is discernible from Clause 2 of the byelaw that the functioning of the society itself would come within the expression “business purpose” as contemplated under Clause 1(a) of Ext.P1 notification. Thus, on a conjoint reading of Clause 1(a) of Ext.P1 notification and Clause 2(i) to 2(ix) of the byelaw, there is no room for doubt that the nature of the activity of the society would fall under

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WP(C) NO. 23061 OF 2014

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the expression “related to the business” provided under Clause 1(a) of Ext.P1.

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The issue as to whether a registered society is entitled for exemption of stamp duty was decided by a Full Bench of this Court in Sub Registrar, Palakkad & Others v. Kerala State Co-operative Consumers Federation Ltd., Kochi [2015 (1) KHC 17], wherein the question that arose for consideration was with regard to the scope of the notification, SRO No.75/1960 dated 08.10.1960, issued by the Government of Kerala, providing for remission of stamp duty payable under the Kerala Stamp Act, 1959 in respect of instruments executed by or on behalf of any registered Co-operative Society or by any officer or member of such society and relating to the business thereof. It was held therein that in cases where societies purchase properties, it is not entitled for remission of stamp duty and only when the society executes the document as a vendor, the exemption is applicable.

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Admittedly, the society executed the documents in favour of its members. Hence, the judgment rendered by this Court in Sub Registrar, Palakkad (supra), squarely applies to

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the facts of this case. As held in Sub Registrar, Palakkad (supra), the benefit of remission of stamp duty is available only in respect of the society or by an officer or by member of such society and relating to the business thereof. Therefore, following the decision in Sub Registrar, Palakkad (supra), I am of the opinion that the petitioners are entitled to get exemption from payment of stamp duty as provided under Clause 1(a) of Ext.P1 notification.

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Therefore, the writ petition is allowed. It is declared that the society is entitled to get exemption from paying stamp duty as provided under Clause 1(a) of Ext.P1 notification in respect of the instruments executed by the society in favour of its members.

Sd/-

SHOBA ANNAMMA EAPEN

JUDGE

bka/-

WP(C) NO. 23061 OF 2014

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APPENDIX OF WP(C) 23061/2014

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PETITIONER EXHIBITS

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P1- TRUE COPY OF THE GOVERNMENT ISSUED G.O(MS)NO.795/1960/AGRL.(SRO NO.75/60) DATED 08.10.1960.

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P2- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 2ND PETITIONER.

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P2(A)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 3RD PETITIONER.

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P2(B)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 4TH PETITIONER.

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P2(C)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 5TH PETITIONER.

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P2(D)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 6TH PETITIONER.

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P2(E)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 7TH PETITIONER.

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P2(F)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 8TH PETITIONER.

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P2(G)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 9TH PETITIONER.

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WP(C) NO. 23061 OF 2014

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P2(H)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 10TH PETITIONER.

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P2(I)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 11TH PETITIONER.

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P2(J)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 12TH PETITIONER.

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P2(K)- TRUE COPY OF THE SALE DEED DRAWN IN WHITE PAPER IN FAVOUR OF THE 13TH PETITIONER.

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P3- TRUE COPY OF THE RECEIPT.

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P3(A)- TRUE COPY OF THE RECEIPT.

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P3(B)- TRUE COPY OF THE RECEIPT. P3(C)- TRUE COPY OF THE RECEIPT. P3(D)- TRUE COPY OF THE RECEIPT. P3(E)- TRUE COPY OF THE RECEIPT. P3(F)- TRUE COPY OF THE RECEIPT. P3(G)_ TRUE COPY OF THE RECEIPT. P3(H)- TRUE COPY OF THE RECEIPT. P3(I)- TRUE COPY OF THE RECEIPT.

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P3(J)- TRUE COPY OF THE RECEIPT.

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P3(K)- TRUE COPY OF THE RECEIPT.

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WP(C) NO. 23061 OF 2014

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P4- TRUE COPY OF THE JUDGMENT IN W.P[C]NO.20164/2010.

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P5- TRUE COPY OF THE INTERIM ORDER ISSUED BY THIS HONOURABLE COURT IN W.P[C]NO.31202 OF 2013.

Kozhikode Bhavana Nirmana v. the Commissioner for Land

Case brief

What is this about?

What did the court decide?

Kozhikode Bhavana Nirmana v. the Commissioner for Land

Case brief

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