CHETTIANKANDY ABDUL BASHEER v. SUB REGISTRAR, OFFICE OF THE SUB REGISTRY, MEPPAYUR; KOZHIKODE DISTRICT REGISTRAR (GENERAL); THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938** ## **WP(C).No. 21236 of 2011 (D)** ## **----------------------------** ## **PETITIONER :** **-----------------------** **CHETTIANKANDY ABDUL BASHEER, S/O. IBRAHIM, AGED 38 YEARS,TRADER,** **RESIDING AT MOORIKANDIYIL, KOZHUKKALLOR VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE BY AGENT & POWER OF ATTORNEY HOLDER, C.K.IBRAHIM, S/O.MOIDEEN,AGED 64 YEARS, RESIDING AT 'ABHAYAM',KOZHUKKALLUR VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.** **BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY** **RESPONDENT(S):** **----------------------------** ## **1. THE SUB REGISTRAR,** **OFFICE OF THE SUB REGISTRY OFFICE, MEPPAYUR. PIN-673 307** **2. THE DISTRICT REGISTRAR (GENERAL), KOZHIKODE. PIN-673 001** **3. THE STATE OF KERALA-WITH ADDRESS FOR SERVICETHE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001** ## **BY GOVERNMENT PLEADER SRI.MANZOOR ALI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.21236/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE DEED OF POWER OF ATTORNEY** - **P2 COPY OF THE DEED OF ASSIGNMENT 8TH OCTOBER 2010.** - **P3 COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, MEPPAYUR DATED 14/9/10** - **P4 COPY OF THE CERTIFICATE EXPLAINING THE MISTAKE BY VILLAGE OFFICER, MEPPAYUR DATED 30/11/10** - **P5 COPY OF THE 'THETTUTHEERPADHARAM'' IN FAVOUR OF THE SON OF THE WRIT PETITIONER DATED 20TH DECEMBER 2010.** - **P6 COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 5/4/2011** - **P7 COPY OF THE PROCEEDINGS BY THE 2ND RESPONDENT DATED 13/6/11** ## **RESPONDENT'S EXHIBITS:** ## **NIL** **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **P.V.ASHA J.** **-------------------------------------------W.P.(C) No.21236 of 2011 ---------------------------------------------** Dated this the 19[th ] day of May, 2016 ## **J U D G M E N T** This writ petition is filed challenging Ext.P7 order passed by the District Registrar by which the petitioner was directed to remit a sum of Rs.1,59,000/- towards stamp duty and Rs.1,000/- as penalty for registration of Ext.P5 rectification deed, treating it as a sale deed. 2. The writ petitioner submits that he purchased 1.688 Ares of property as per Ext.P2 document on 08.10.2010. There occurred certain mistakes in the description of the property in respect of side measurements i.e measurement on the northern fringe was wrongly shown as 17.30M against the correct measurement of 15.75M. Similarly the measurement on western side was shown as 15.80M as against 17.2M. North south measurement on eastern fringe was shown as 12.25M instead of 8.3M and north south measurement on the eastern fringe was shown as 8.15M instead of 11.5M. Similarly there occurred a mistake in the resurvey sub 2 ## **W.P.(C) No.21236 of 2011** division also, which was shown as 19/10B instead of 19/14B. According to the petitioner this mistake occurred on account of Exts.P3 possession certificate issued by Village Officer on 14.9.2010 in favour of the vendor. He has produced Ext.P4 possession certificate issued by the same Village Officer, Meppayur, in favour of petitioner, in respect of 1.688 ares of property. In this possession certificate, the Village Officer has certified that the resurvey subdivision number shown in document no. 2887/2010 of Meppayur Sub registry Office (Ext P2 sale deed) as 19/10B is incorrect and that the correct no. is 19/14B. In these circumstances a rectification deed Ext.P5 was executed between the vendor Sri. Ashraff and the petitioner on 20.12.2010, to incorporate the corrections in the side measurements and the subdivision number. Petitioner submits that there is no variation in the total extent of the land covered by the rectification deed. Ext.P2 as well as Ext.P5 document relates to 1.668 Ares of property. 3 ## **W.P.(C) No.21236 of 2011** 3. When the document was presented for registration, the 1[st] respondent Sub Registrar forwarded the same to the District Registrar, along with his remarks that Ext.P5 has to be treated as a fresh sale deed since there was difference in the survey subdivision number and in the measurements of the property. The District Registrar thereupon issued Ext.P6 notice stating that due to variation in the total extent and measurements, there occurred structural alteration for the property involved in the transaction and therefore the document Ext.P5 can only be treated as a fresh sale deed for which stamp duty has to be remitted. By Ext.P6 notice dated 5.4.2011 of the District Registrar, petitioner was asked to show cause why he should not remit stamp duty of Rs.1,59000/- and penalty. Even though the petitioner submitted a representation pointing out that there has not been any material alteration or variation in total extent of land and requested that the same may be treated as rectification deed, his representation was rejected as per Ext.P7 directing him to remit a sum of Rs. 1,59,000 towards 4 ## **W.P.(C) No.21236 of 2011** stamp duty and a sum of Rs.1000/- towards penalty. 4. The respondent filed a counter affidavit stating that in Ext P5 deed, there is variation in the resurvey sub division and side measurements effecting structural alteration of the land and variation in total extent of land also. Therefore it is stated that Ext.P5 deed can only be treated as a fresh sale deed for which stamp duty is liable to be remitted. 5. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 6. Though the respondents have stated that there is difference in total extent of land in Ext.P5 document, it is seen that the extent of land involved is shown as 1.688 ares itself in both Ext.P2 sale deed and Ext.P5 document, as seen from the schedule of the documents. The correction sought to be effected with respect to side measurements appears to be in describing the sides and variation in the measurements appears to be negligible. The total extent of the land continues to remain without change and the boundaries of the property mentioned in 5 ## **W.P.(C) No.21236 of 2011** both the cases are one and the same. As far as the alteration in sub division number is concerned, the Village Officer has already issued Ext.P4 certificate saying that the sub division number shown in Ext.P2 document is wrong. At any rate it is seen from the counter affidavit, that petitioner was not heard before passing Ext.P7 order. In the above circumstances the 2[nd] respondent shall reconsider the matter as to whether these minute variations in Ext.P5 amounts to structural alteration, which requires stamp duty again. 7. In the above circumstance it is only just and proper that the District Registrar passes fresh orders taking into consideration of the measurements and the total extent of property as well as the Sub Division number shown in the Ext.P5 deed with reference to Ext.P2 deed, Exts.P3 and P4 possession certificates issued by the Village Officer. The petitioner relies on the judgment of this Court in **Jihas v. District Registrar** [2012 (3) KLT 194] wherein this Court directed to treat the document therein as rectification deed, where correction was sought 6 ## **W.P.(C) No.21236 of 2011** to be made on account of a mistake in the number of the Flat. 8. In these circumstances the order Ext P7 is set aside and the second respondent is directed to consider the issue afresh after considering all the contentions raised by the petitioner, in the light of the judgments relied on by the petitioner after affording an opportunity of hearing to petitioner and to pass orders afresh within a period of two months from the date of receipt of copy of the judgment. The petitioner will be free to be represented by his power of attorney or counsel and to produce necessary materials in support of his claim. Sd/- **P.V.ASHA, JUDGE.** AS/23/5/16