Moideen v. District Collector, Malappuram & Sub Registrar, Edakkara, Malappuram (W.P. Nos. 7670/2013 and connected cases)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935 WP(C).No. 7670 of 2013 (G) ------------------------------------------ PETITIONER(S): -------------------------- MOIDEEN, AGED 51 YEARS, S/O.ABDU HAJI, PUTHALAVAN, PULPATTA.P.O. EDAKKARA. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): ---------------------------- ## 1. THE DISTRICT COLLECTOR, MALAPPURAM. 676 501. ## 2. THE SUB REGISTRAR, EDAKKARA, MALAPPURAM. 676 509. BY SR.GOVERNMENT PLEADER SRI. VINCENT K.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-03-2013, ALONG WITH WPC. 7723/2013 AND OTHER CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7670 of 2013 (G) ------------------------------------------ ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------------------------- EXHIBIT P1- COPY OF THE SALE DEED PRODUCED FOR REGISTRATION BEFORE THE 2ND RESPONDENT ON 15.3.2013. EXHIBIT P2- COPY OF THE LETTER NO.C-32/2013 DTD. 16.3.2013 OF THE 2ND RESPONDENT. EXHIBIT P3- COPY OF THE INFORMATION NO.RTI-06/13, 07/13, 08/13 DTD. 07.03.2013 OBTAINED FROM THE VILLAGE OFFICER. EXHIBIT P4- COPY OF THE NOTIFICATION OF FAIR VALUE OF KURAMBALANGODE VILLAGE. RESPONDENT(S)' EXHIBITS : NIL -------------------------------------------- // TRUE COPY // P.A. TO JUDGE DSV/- ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013** ......................................................................... **Dated this the 23[rd] March, 2013** ## **J U D G M E N T** The issue involved in all these Cases is one and the same i.e. whether the second respondent is justified in requiring the petitioners to satisfy stamp duty in the manner as specified therein, reckoning the fair value of the properties as Rs.25000/per Are. Such a step is taken by treating the properties under _Sl.No.483_ of the Gazette Notification No.515(16) dated 06.03.2010 fixing the fair value, in place of fair value taken by the petitioners, referring to the entry at Sl.No.514 of the Gazette Notification dated 06.03.2010 at the rate of Rs.5000/- per Are, applicable to the entry -'Hill tract without road access'. 2. The case of the petitioners, as projected in the writ petitions is that, different extent of properties were purchased by the petitioners, as borne by Ext.P1 title deeds. But, when the deeds were taken up for registration, they were refused to be registered by the second respondent stating that the stamp duty **2** ## _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ paid was inadequate and that the fair value in respect of the said properties stood already fixed at Rs.25000/- per Are. The position was let known to the petitioners by proceedings dated 16.03.2013. The petitioners contend that the Village Officer has certified, as per Ext.3, that the fair value of the 'un-surveyed properties' in the category- **'** _**Hill tract without road access** '_ has been fixed at Rs.5000/- per Are. 3. The petitioners have produced copies of the Gazette Notification as Ext.P4 (in all cases), referring to the fair value in respect of the lands comprised in un-surveyed portions categorised as ' **Hill Tract without road access'** at Rs.5000/per Are, at Sl.No.514. In the above circumstances, the only course open for the second respondent is to have Ext.P1 deeds registered and if necessary, to have the documents impounded and sent to District Collector for further steps. 4. The learned Government Pleader submits that the idea and understanding of the petitioners is quite wrong and misconceived. It is stated that the course and proceedings **3** ## _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ applicable to the instant case is provided under Section 45A of the Kerala Stamp Act; while the course sought to be pursued by the petitioners is with reference to Section 45B. It is submitted that the two provisions are distinct and separate. The course to be pursued in these cases is under Section 45A (3) and it was accordingly, that the matter was considered in view of the fact that the properties involved in these cases are having clear road access, leading to Ext. P2 communication issued to the petitioners. It is also pointed that, if at all the petitioners are aggrieved of the same, they are having an effective alternative remedy by way of appeal, as provided under Section 45A(4). For the purpose of convenience, 45A and 45B are extracted below. ... _._ _**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, other than an instrument of partition, settlement or gift_ _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ **4** _among the members of a family, chargeable with duty verify whether the value of land or the consideration set forth in the instrument is the fair value of that land._ _(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._ _(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 or 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, the instrument shall be duly registered._ _(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._ **5** ## _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ _(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._ ## _**45B. Instruments under valued how to be**_ _**dealt with** .- (1) If the Registering Officer, while registering any instrument transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration as the case may be, and the proper duty payable thereon._ _(2) On receipt of a reference under sub-section (1), the collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, by order, determine the value of the property or the consideration and the duty aforesaid, and the deficient amount of duty, if any, shall be payable by the person_ _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ **6** _liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature._ _(3) The Collector may, suo motu, within two years from the date of registration of any instrument not already referred to him under sub-section (1), call for and examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration, as the case may be, and the duty payable thereon, and if after such examination, he has reason to believe that the value or consideration has not been truly set forth in the instrument, he may determine the value or consideration and the duty aforesaid in accordance with the procedure provided for in sub-section (2); and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty and, on the payment of such duty, the Collector shall endorse a certificate of such payment on the instrument under his seal and signature._ _(3A) xxxxxxxxx_ _(4) Any person aggrieved by an order of the Collector under sub-section (2) or sub-_ _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ **7** _section (3) may appeal to the District Court within whose jurisdiction the property transferred is situate._ _(5) An appeal under sub-section (4) shall be filed within thirty days of the date of the order sought to be appealed against._ _(6) The District Court shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act._ 5. During the course of hearing, it is brought to the notice of this Court by the learned Counsel for the petitioners that a Division Bench of this Court had occasion to consider the scope of the said provisions and that in view of the decision reported in **2010(3) KLT 1005** _**(Pareekkutty vs. Sub Registrar**_ ) the petitioners are entitled to succeed. 6. On going through the said decision, this Court finds that the distinction between the above two provisions have been clarified by the Bench. It has been held that, if the registering authority is of the opinion that the stamp duty is deficit having regard to the fair value of the land fixed under S.28A of the **8** ## _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ Stamp Act, he should pass an order in terms of S.45A(3) of the Act directing payment of proper stamp duty on the fair value of the land and if it is remitted within a period of 'seven' days from the date of the order, he shall register the instrument. It is further made clear that, if the registering authority is of opinion that the stamp duty paid is not sufficient having regard to the actual value of the land, which is higher than the fair value, he must state his reasons for such conclusion and refer it to District Collector under S.45B after duly registering it. 7. This Court finds that the said decision does not come to the rescue of the petitioners, to have issuance of a writ of mandamus to cause the documents to be registered. The factual position and pleadings reveal that there is a disputed question of fact. When the petitioners contend that the fair value of the property is only Rs.5000/- per Are, as borne by Ext.P4, for the reason that the property is on a Hill Tract having no road access, the respondents contend that the property is a 'Garden land' having road access; that the property has been caused to be **9** ## _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ transferred in a clandestine manner; that reference to prior deeds is very much necessary; and that the fair value of such type of properties has already been fixed as Rs.25000/- per Are. 8. This, of course, has to be considered on the basis of the relevant facts, proceedings and evidence and such fact adjudication is possible only at the hands of the appellate authority and not under Article 226 of the Constitution of India. In the above circumstance, this Court finds that the petitioners are to be relegated to avail the statutory remedy as provided under Section 45A(4). Interference is declined and the writ petitions are dismissed, however without prejudice to the rights and liberties of the petitioners to pursue the appellate remedy before the first respondent, as provided under the statute. If any such appeals are filed by the petitioners within 'two weeks' from the date of receipt of a copy of the judgment, the same shall be considered and appropriate orders shall be passed in accordance with law, after affording an opportunity of hearing to the petitioners at the earliest, at any rate, within four weeks **10** _**W.P. © No. 7670, 7723, 7967 7999, 8007, 8008, 8025, 8174, 8187 AND 8191 OF 2013**_ from the date of receipt of such appeals. All the writ petitions are disposed of as above. **P.R.RAMACHANDRA MENON JUDGE** lk