John George v. State of Kerala and Revenue Divisional Officer, Kottayam

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 7TH DAY OF AUGUST 2018 / 16TH SRAVANA, 1940** **WP(C).No. 26780 of 2018** **------------------------** ## **PETITIONER:** **-----------** **JOHN GEORGE, S/O.K.C. JOHN, KOTHAPLACKAL HOUSE, ANIKKADU VILLAGE, KOTTAYAM.** **BY ADV.SRI.A.K.HARIDAS** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA,** **REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LAND REVENUE, THIRUVANANTHAPURAM - 695 001.** **2. REVENUE DIVISIONAL OFFICER, KOTTAYAM - 686 001.** **BY GOVERNMENT PLEADER SMT.A.C. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 26780 of 2018 (V) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **---------------------** **EXHIBIT P1 : A TRUE COPY OF THE APPLICATION DATED 25.7.2018. EXHIBIT P2 : A TRUE COPY OF THE POWER OF ATTORNEY DATED 18.11.1982. EXHIBIT P3 : A TRUE COPY OF THE AFFIDAVIT DATED 25.7.2018. EXHIBIT P4 : A TRUE COPY OF THE ORDER OF R.D.O., KOTTAYAM DATED 30.7.2018.** **RESPONDENTS' EXHIBITS: NIL ---------------------** **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 07.08.2018.** ## **ALEXANDER THOMAS, J. ======================== W.P(C).No.26780 of 2018** ## **=========================** Dated this the 07[th] day of August, 2018 ## **JUDGMENT** The prayers in this Writ Petition (Civil) are as follows: - _“(i) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent to Stamp the Ext P2 Power of Attoney as per Stamp Act; and_ - _(ii) To grant such other and further reliefs as this Hon'ble court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.A.K.Haridas, learned counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondents. 3. It is the case of the petitioner that he has submitted Ext.P-2 Power of Attorney dated 18.11.1982 executed by him in the year 1982, for stamping the instrument as per the provisions of the Stamp Act before the 2[nd] respondent-RDO, Kottayam. It is stated that Ext.P-2 Power of Attorney was executed by the petitioner in favour of his brother (John John), while the petitioner was in Dubai, U.A.E and the said document has not been properly stamped. That Ext.P-2 Power of Attorney was duly endorsed by the Indian Consulate in Dubai and the petitioner has submitted Ext.P-1 application dated 25.07.2018 for stamping as per the provisions of the Stamp Act. There were some overwriting in W.P(C).No.26780 of 2018 2 Ext.P-2 Power of Attorney and the petitioner has filed an affidavit explaining the circumstances under which the overwriting has happened to be made in the said Power of Attorney. The 2[nd] respondent-RDO has rejected the request of the petitioner as per Ext.P-4 order dated 30.07.2018 on the ground that the time limit stipulated in Sec.18 of the Kerala Stamp Act, 1959 for stamping of instruments executed out of India has expired long ago. It is the case of the petitioner that the said stand of the 2[nd] respondent is legally incorrect and untenable and is against legal position, wellsettled in that regard by a judgment of the Division Bench of this Court in Writ Appeal No.2148/2016 dated 14.08.2017. Sec.18 of the Stamp Act, 1959 reads as follows: _“_ _**18. Instruments executed out of India.** -(1) Every instrument chargeable with duty executed only out of India may be stamped within three months after it has been first received in the State of Kerala._ _(2) Where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector who shall stamp the same, in such manner as the Government may by rules prescribe, with a stamp of such value as the person so taking such instrument may require and pay for.”_ Sec.33 of the said Act, dealing with the examination and impounding of instruments provides as follows: W.P(C).No.26780 of 2018 3 _“_ _**33. Examination and impounding of instruments.** - (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same._ _(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed: Provided that-_ - _(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;_ - _(b) in the case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf._ _(3) For the purposes of this section, in cases of doubt, the Government may determine-_ _(a) what offices shall be deemed to be public offices; and_ _(b) who shall be deemed to be persons in charge of public offices.”_ ## Sec.37 of the Stamp Act stipulates as follows: _“ -_ _**37. Instruments impounded how dealt with.**_ _(1) When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence or when he is a registering officer to register such instrument upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Collector an_ W.P(C).No.26780 of 2018 4 _authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf._ _(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.”_ ## Sec.39 of the said Act which deals with the Collector's power to ## stamp instruments impounded, provides as follows: _“_ _**39. Collector's power to stamp instruments impounded.** -(1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, he shall adopt the following procedure:-_ - _(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable, as the case may be;_ - _(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of ten rupees:_ _Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section._ _(2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein._ _(3) Where an instrument has been sent to the Collector under sub-section (2) of Section 38, the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.”_ ## Sec.41 of the said Act reads as follows: W.P(C).No.26780 of 2018 5 _“_ _**41. Endorsement of instruments on which duty has been paid under Sections 34, 39 or 40.** -(1)When the duty and penalty, if any, leviable in respect of any instrument have been paid under Section 34, Section 39 or Section 40, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof and the name and residence of the person paying them._ _(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:_ _Provided that-_ _(a) no instrument which has been admitted in evidence upon payment of duty and a penalty under Section 34 shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;_ _(b) nothing in this section shall affect Order XIII, Rule 9 of the First Schedule to the Code of Civil Procedure, 1908.”_ 4. A similar situation has been dealt with in the judgment dated 14.08.2017 rendered by the Division Bench in Writ Appeal No.2148/2016 in the case in _**Thomas C.Kunjachan v. Revenue Divisional Officer**_ , reported in 2017(3) KLT 989, wherein it has been held that Sec.33 of the Act clearly provides that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the W.P(C).No.26780 of 2018 6 same to the Collector. The document having been impounded, Sec.34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But Sec.39 of the Act clearly authorises the Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences under Sec.41 of the Act would follow and it becomes valid instrument for all purposes thereafter. The Division Bench in that case was constrained to comment that the RDO, who should have been aware of these provisions, being the notified Collector under the Kerala Stamp Act, who had abdicated his duty in that case and that instead of sticking to hyper technicalities, he should have indicated to the party therein that the document which is not properly stamped was required to be impounded and could have asked him to remit the stamp deficit and pay the penalty and once that was done, the instrument gets its validity again. Accordingly, the Division Bench of this Court directed the RDO to impound the document as and when presented before him and ensure payment of deficit duty and penalty and immediately endorse the same and returned the document to the appellant so that further inconvenience is avoided. It was declared that the document so W.P(C).No.26780 of 2018 7 endorsed would then be a valid document for all legal and practical purposes in terms of Sec.41 (2) of the Act. The said judgment of the Division Bench of this Court in _**Thomas C.Kunjachan's case**_ (supra) reads as follows: _“The writ petitioner/appellant along with his mother resides in the United States of America. They have some properties in the State of Kerala. The mother being old, she had, in the State of Texas, USA, executed a Power of Attorney in favour of the appellant in respect of certain properties. This Power of Attorney executed in the USA had endorsement of the Indian Consulate in the U.S. On the strength of the Power of Attorney, the appellant executed several transfer deeds in respect of the properties in India._ _2. It appears that in relation to certain transactions, when the said Power of Attorney was produced before the State Bank of Travancore, Punalur Branch, the appellant was informed that it is not duly stamped and accordingly it cannot be acted upon. The appellant then approached the first respondent, the Revenue Divisional Officer, Kollam, who is the Collector as defined under Section 2 (c) of the Kerala Stamp Act, 1959 ('the Act' for short), seeking an adjudication whether it is properly stamped or not. The first respondent merely stated that the Power of Attorney could not be stamped as it was time barred. It is this decision that has been challenged before this Court._ _3. We may first refer to Section 18 of the Kerala Stamp Act. It appears that it is with reference to sub-section (2) thereof that the Revenue Divisional Officer held that the three months' period having expired nothing could be done. Section 18 of the Act reads thus :_ _"_ _**18. Instruments executed out of India** .-(1) Every instrument chargeable with duly executed only out of India may be stamped within three months after it has been first received in the State of Kerala._ _(2) Where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector who shall stamp the same, in such manner as the Government may by rules prescribe, with a stamp of such value as the person so taking such instrument may require and pay for."_ _We may notice here that the normal rule regarding time of_ W.P(C).No.26780 of 2018 8 _stamping an instrument is specified in Section 17 of the Act. It is to be stamped before or at the time of execution. Section 18 is an exception in relation to instruments executed outside India. It provides for stamping within three months of being first received in India._ _4. We may, however, point out that Section 33 of the Act clearly provides that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the same to the Collector. The document having been impounded, Section 34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But when comes to Section 39 of the Act, which clearly authorises the Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences under Section 41 of the Act would follow and it becomes a valid instrument for all purposes thereafter._ _5. We are indeed surprised that the Revenue Divisional Officer, who should have been aware of these provisions, being the Collector under the Act, has abdicated his duty. Instead of sticking to hyper technicalities, he could very well have indicated to the writ petitioner/appellant that the document being not duly stamped, was required to be impounded and could have asked him to remit the stamp deficit and pay the penalty. Once that was done, the instrument gets its validity again. But instead he chose to keep quiet and dragged the petitioner to the corridors of this Court. The only consequence is that time and money of everybody including this Court has been wasted._ _6. However, in view of the aforesaid statutory scheme, we would direct the first respondent/Revenue Divisional Officer, Kollam to impound the document as and when presented before him and ensure payment of deficit duty and penalty and immediately endorse the same and return the document to the appellant so that further inconvenience is avoided. The document so endorsed would then be a valid document for all practical purposes in terms of Section 41(2) of the Act, which provision was not brought to the attention of the learned Single Judge. We, therefore, are constrained to set aside the judgment of learned Single Judge and thus allow the appeal with the aforesaid directions.”_ 5. Accordingly, following the abovesaid line of reasonings and directions rendered by the Division Bench of this Court, it is W.P(C).No.26780 of 2018 9 ordered that the impugned Ext.P-4 order will stand set aside. It is for the petitioner to produce the original of Ext.P-2 Power of Attorney before the 2[nd] respondent-RDO, Kottayam, who will then take step to impound the document as and when presented before him and will ensure payment of deficit stamp duty and penalty and immediately endorse the same and return the document to the petitioner. It is further ordered that the document so endorsed would then be valid document for all legal and practical purposes in terms of Sec.41(2) of the Act. The petitioner will produce the certified copy of this judgment before the 2[nd] respondent-RDO, Kottayam for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/08.08.18