Favourite Homes Le Royale Luxury Apartments - Owners Association v. State of Kerala & Ors.

W.P.(C).No.19311/2022 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 1[ST] DAY OF AUGUST 2023/10TH SRAVANA, 1945** **WP(C) NO. 19311 OF 2022** ## **PETITIONER:** **FAVOURITE HOMES LE ROYALE LUXURY APARTMENTS - OWNERS ASSOCIATION, REG. NO. TVM/TC/155/2022, KUNNUKUZHY, PALAYAM, THIRUVANANTHAPURAM- 695 035, REPRESENTED BY ITS SECRETARY.** **BY ADVS. SRI K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI BRIJESH MOHAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **2 THE DISTRICT REGISTRAR (GENERAL), REGISTRATION DEPARTMENT, THIRUVANANTHAPURAM- 695 023.** **3 THE TAHSILDAR, TALUK OFFICE, CHANGANASSERY TALUK OFFICE, CHANGANASSERY, KOTTAYAM- 686 101. BY SMT.DEEPA V, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.11.2022, THE COURT ON 01.08.2023 DELIVERED THE FOLLOWING:** W.P.(C).No.19311/2022 -2- ## **T.R. RAVI, J.** ## **-------------------------------------------** **W.P.(C)No.19311 of 2022** **-------------------------------------------Dated this the 1[st] day of August, 2023** ## **JUDGMENT** Petitioner is a registered association of flat owners under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act,1955. M/s.Favorite Constructions Pvt. Ltd. constructed 74 apartments and handed over the keys to the occupants as per Ext.P2 notice dated 18.09.2021. The construction was by a joint venture, including the property owners, who are six in number. The property owners also have to join the execution of the sale deeds. By Ext.P3 order, the Government had offered concessional rates of stamp duty for instruments of conveyance relating to flats/apartments based on the total consideration including the value of the undivided share of land, provided the transfer takes place within 6 months from the date of allotment of house number by the Local Authority. The question involved in this writ petition is whether the petitioner association is entitled to claim the concessional duty with respect to the sale deeds to be executed to the allottees of W.P.(C).No.19311/2022 -3- the flats/apartments in the project. 2. The Corporation of Thiruvananthapuram issued Ext.P4 order allotting TC numbers to the apartments in question, on 23.3.2022. For claiming the concessional rate of stamp duty, the sale deeds should be executed within 6 months after the numbering of the building, that is, by the end of June, 2022. One of the owners of the property Sri Simon Philip, expired on 26.2.2022 leaving behind a minor son. The above fact, which was not within the contemplation of either the seller or the buyers, complicated the issue, since the documents which had been got ready for execution, could not be executed without getting a guardianship certificate with respect to the minor son, who also inherited to the rights of the deceased Sri Simon Philip. An application OP(GW)No.53/2022 was filed by the mother of the minor son, Master Rison Philip Simon on 24.3.2022, well within the period available for claiming the concessional rate of stamp duty. A true copy of the petition has been produced as Ext.P5. An application for a legal heirship certificate had been applied for on 18.4.2022 by the widow of the deceased, as is evidenced by Ext.P6 receipt. Apprehending delay in the completion of legal procedures and issuance of final orders in Ext.P5 application, the petitioner preferred Ext.P10 representation before the W.P.(C).No.19311/2022 -4- Government on 26.5.2022, seeking an extension of the period of 6 months, since the claim for concessional rates could not be processed, for no fault of the buyers or the sellers, but due to delay in obtaining orders from the Court. On 15.6.2022, this Court directed the 1[st] respondent to take a decision on Ext.P10 on or before 28.6.2022. By Ext.P11 order dated 27.6.2022, the request has been rejected by the 1[st] respondent. The petitioner has thereafter amended the writ petition raising a challenge against Ext.P11 order as well. The above facts are not in dispute. 3. A counter affidavit has been filed by the respondents justifying the rejection of Ext.P10 application. The petitioners pointed out an instance where the period of 6 months had been extended owing to the second phase of the lockdown relating to Covid-19 pandemic. However, Ext.P11 order does not deal with any of the aspects pointed out in Ext.P10 petition, while requesting for extension of the period. The order only says that the Government has examined the matter in detail and decided to reject the request. 4. Heard Sri Jaju Babu, Senior Advocate, instructed by Smt.M.U.Vijayalakshmi, on behalf of the petitioners and Smt.Deepa V., Government Pleader on behalf of the respondents. 5. The fact that the buildings were numbered on W.P.(C).No.19311/2022 -5- 1.1.2022 is not in dispute. It is not disputed that one of the land owners, who was to join the execution of the conveyance deed died on 26.2.2022, soon after the numbering of the building. There is also no dispute that an application for the appointment of the mother as guardian of the minor son of the deceased had been filed on 24.3.2022, three months before the expiry of the date till which the concession was available. It is also evident that the final orders were issued on Ext.P5 application for guardianship certificate on 30.7.2022, as seen from Ext.P12. It is also seen from Ext.P13 that the Legal heirship certificate applied for on 18.04.2022 was issued by the 3[rd] respondent only on 27.08.2022. Had there been no delay in disposing of Ext.P5 application by the Court and Ext.P6 application by the 3[rd] respondent, the petitioners would have been able to execute the documents well before the end of June, 2022, availing of the concessional rates. The above fact also cannot be disputed. The petitioners had also approached this Court well before the period of concession ended. This Court had directed the 1[st] respondent to consider the representation submitted by the petitioners in the above set of admitted facts. It can thus be seen that there was no negligence or laches on the part of the sellers or the buyers in making the claim for concessional rates of stamp duty that had W.P.(C).No.19311/2022 -6- been offered by the government. 6. The Senior Counsel relied on the line of decisions of the Hon’ble Supreme Court from **Jang Singh vs. Brij Lal [AIR 1966 SC 1631]** and **Sarah Mathew vs. Institute of Cardiovascular Diseases [(2014)2 SCC 62]** , to submit that the act of Court shall not prejudice any person. Reliance is placed on the decision of the Hon’ble Supreme Court in **Rajeev Nohwar v. Chief Controlling Revenue Authority Maharashtra State Pune & Ors. [2021 SCC OnLine SC 863]** , wherein the claim for refund of the value of e-stamp paper, which was not used, which had been disallowed on the reason of delay in making the claim, was allowed by the Hon’ble Supreme Court, setting aside the judgment of the High Court of Bombay. The court held that the prolonged proceedings before the NCDRC should not prejudice the claimant, who had no control over the judicial delays. 7. It is thus well settled that the act of the Court shall not prejudice anybody. It is based on the said principle that the Hon'ble Supreme Court in **Rajeev Nohwar (supra)** condoned the delay in making the claim for refund of the value of the e- stamp paper in a case where there were prolonged proceedings before the NCDRC. In the case on hand, a benefit that was W.P.(C).No.19311/2022 -7- available to the petitioners could not be availed of for reasons which were not within the control of the petitioners. The petitioners could not have known that one of the owners would die soon after the numbering of the building. They also could not have anticipated the delay on the part of the Court and the revenue authorities for the issuance of certificates which would facilitate the execution of the sale deeds by the legal representative of the deceased. These aspects have been highlighted in Ext.P10 representation. However, none of these aspects have been considered while issuing Ext.P11 order. As a matter of fact, Ext.P11 does not contain any reason, and it is only stated that the Government has decided not to extend the period for execution of the documents in the case of the petitioners. In the light of the facts disclosed and admitted, the petitioner is entitled to succeed in this writ petition. Ext.P11 order is set aside. The 1[st] respondent is directed to reconsider Ext.P10 representation in the light of the observations made above and the judgments referred above and extend the benefit of the concessional rate of stamp duty to the petitioners. Necessary orders shall be issued within two weeks from the receipt of a copy of this judgment. The petitioners shall be W.P.(C).No.19311/2022 -8- permitted to present the documents for registration within three weeks after orders are passed by the 1[st] respondent and communicated to the petitioners, and if the documents are so presented, necessary action shall be taken to register the same. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C).No.19311/2022 -9- ## **APPENDIX OF WP(C) 19311/2022** ## **PETITIONER'S EXHIBITS** - **Exhibit P1 TRUE COPY OF THE REGISTRATION CERTIFICATE VIDE NO. TVM/TC/155/2022 OF THE PETITIONER ASSOCIATION AND LIST OF MEMBERS OF ASSOCIATION.** - **Exhibit P2 TRUE COPY OF THE NOTICE TO THE OCCUPANTS REGARDING THE HANDING OVER OF KEYS ON 18.09.2021 THROUGH EMAIL.** - **Exhibit P3 TRUE COPY OF THE NOTIFICATION VIDE NO. SRO.337/2010 REGARDING THE DUTIES- DOCUMENTS RELATING TO FLATS/APARTMENTS.** - **Exhibit P4 TRUE COPY OF THE ORDER VIDE NO. R 35/22390/22 DATED 23.03.2022 OF THE THIRUVANANTHAPURAM CORPORATION.** - **Exhibit P5 TRUE COPY OF THE ORIGINAL PETITION OP(GW) NO. 53/2022, FILED BY REETHA JOHN BEFORE THE HON'BLE DISTRICT COURT, THIRUVANANTHAPURAM.** - **Exhibit P6 TRUE COPY OF THE RECEIPT DATED 18.04.2022 FROM PAIPPAD VILLAGE OFFICE EVIDENCING THE FILING OF THE APPLICATION FOR HEIRSHIP CERTIFICATE.** - **Exhibit P7 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO. 94/2010 DATED 30.03.2010.** - **Exhibit P8 TRUE COPY OF THE GOVERNMENT ORDER G.O(P) NO. 100/2020/TAXES DATED 05.08.2020.** - **Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 21.08.2015 IN CIVIL APPEAL NO. 2246 OF 2006 OF THE HON'BLE SUPREME COURT.** - **Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 26.05.2022 SUBMITTED BY THE PETITIONER ASSOCIATION BEFORE THE 1ST RESPONDENT (ALONG WITH THE POSTAL RECEIPT).** - **Exhibit P11 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.513/2022/TAXES DATED 27.06.2022.** - **Exhibit P12 TRUE COPY OF THE ORDER DATED 30.07.2022 IN OP(G&W) NO.53/2022 OF THE COURT OF ADDL. DISTRICT JUDGE IV, THIRUVANANTHAPURAM.** - **Exhibit P13 TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE VIDE NO.C2-3472/2022/K.DIS DATED 27.08.2022 CERTIFIED BY THE 3RD RESPONDENT.** - **RESPONDENTS'S EXHIBITS : NIL**