M.R. REGHUCHANDRA BAL v. DISTRICT COLLECTOR, THIRUVANANTHAPURAM & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** ## **WP(C) NO. 32029 OF 2013** **PETITIONER:** **M.R REGHUCHANDRA BAL AGED 61 YEARS S/O. LATE RAGHAVAN NAIR, RESIDING AT ASHRAMA, TC 23/491/00, KADAP.ATHALA LANE, PIPINMOODU, KOWDIAR P.O., THIRUVANANTHAPURAM. BY ADV SRI.AYYAPPAN SANKAR** ## **RESPONDENTS:** **1 DISTRICT COLLECTOR COLLECTORATE, CIVIL STATION, KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM. 2 SUB REGISTRAR KANJIRAMKULAM SUB REGISTRAR'S OFFICE, KANJIRAMKULAM P.O., THIRUVANANTHAPURAM. 3 VILLAGE OFFICER VILLAGE OFFICE, KANJIRAMKULAM. BY ADV GOVERNMENT PLEADER SRI. JUSTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2021, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.32029 OF 2013** **2** ## **JUDGMENT** ## **Dated this the 27th day of July 2021** This writ petition has been filed challenging Ext.P6 order of the District Collector, disposing of an appeal filed under provisions of Section 45A (4) of the Kerala Stamp Act, 1959. The brief facts are that the petitioner entered into certain transaction with his sister in respect of three items of properties. The registering authority initiated proceedings under Section 45A (3) of the Stamp Act on the premise that sufficient stamp duty had not been paid with reference to the fair value fixed in terms of Section 28A of the Stamp Act. The petitioner therefore filed Ext.P4 appeal before the District Collector, Thiruvananthapuram, challenging the fixation of fair value in respect of the properties in question. The District Collector had issued Ext.P6 order on the appeal, rejecting the same. 2. The learned counsel for the petitioner **WP(C).No.32029 OF 2013** **3** submits that a reading of Ext.P6 shows that the District Collector has proceeded only on the basis of the report filed by the concerned Village Officer and has not considered the specific grounds raised in Ext.P4 appeal. He also submits with reference to the judgment of this Court in **Faizal Babu v. State of Kerala and others [2017 (5) KHC 24],** that even if the fair value fixation under Section 28A has not been challenged initially, it can also be challenged through an appeal under Section 45A (4) of the Stamp Act. He specifically refers to Paragraphs 2 and 4 of that judgment. Paragraphs 2 and 4 of the judgment of this Court in Faizal Babu (supra) reads as under:- “2. There are two modes of challenge in fixation of the fair value of the land; one is in terms of Section 28A of the Act, which has to be done in a time bound manner and; the other is an inbuilt mechanism as referred under Section 45A of the Act. It is to be noted that there may be a situation where at the time of notification under Section 28A, the person like the petitioner may not have the interest to object the fixation of the fair value of the land. The interest of such persons is protected in terms of Section 45A. This is so clear from Section 45A(5). It is referred that the Collector shall hear and dispose of the appeal in such a manner as **WP(C).No.32029 OF 2013** **4** prescribed under the Act and the Rules framed thereunder. It is to be noted that under Section 45A, in fact, particularly refers to the deficiency of stamp duty in comparison with the fair value of the land. Section 45A, therefore, deals with instruments not bearing stamp based on the fair value of the land. It is quite different from Section 45B. Section 45B refers to the instrument undervalued by not showing the actual consideration. 4. The Government also framed rules for dealing with the matters coming under Section 45A of the Act. These Rules are called Kerala Stamp (Fixation of Minimum Value of Land for Registration of Instruments by Registering Officer) Appeal Rules, 1990. The said Rules provide the manner in which the Collector has to dispose of the appeal. It is to be noted that in terms of Rule 4 of the above Rules, the Collector has to conduct an enquiry. The enquiry is conducted to verify the correctness or legality or propriety of the decision in the matter. Therefore, the Collector has every power to review the fixation of fair value and modify it in an appeal filed under Section 45A(4) of the Act. If the fair value cannot be varied in terms of the appeal filed under Section 45A, there is no point in conferring such power with the District Collector. Therefore, apart from the powers under Section 28A, the Collector has also powers under Section 45A to vary the fair value fixed in respect of the land. But, this right can be availed only by such persons, who could not be considered as aggrieved at the time of the publication of the fixation of the fair value under Section 28A. It is to be noted that an outer limit time is fixed for challenging such fixation of fair value in terms of Section 28A.” The learned counsel for the petitioner also submits that a Division Bench of this Court in **WP(C).No.32029 OF 2013** **5** ## **Kuriakose v. District Collector, Kottayam [2020 (3)** **KHC 375],** has laid down the parameters for fixation of fair value and that these parameters should have been kept in mind by the 1[st] respondent - District Collector while considering Ext.P4 appeal. 3. The learned Government Pleader on the other hand refers to the counter affidavit filed by the District Collector and states that the fair value fixation in respect of the items of properties in question is completely justified and there was no reason for the District Collector to review or modify the same. It is also submitted that the fixation of fair value under Section 28A of the Stamp Act, was never challenged and refers to Ext.R1(a) notification to show that the fair value in respect of the properties in question had been fixed as Rs.1,40,000/- (Rupees One Lakh Forty Thousand only) per Are. Reference is also made to Ext.R1(b) – Sketch to show that the properties in question are lying very close to the Kanjiramkulam **WP(C).No.32029 OF 2013** **6** Junction and that the location of the property justifies the fixation of fair value as in Ext.R1(b). 4. On a consideration of the rival contentions, I am of the opinion that Ext.P6 order is liable to be set aside. Ext.P6 order has been issued on the sole basis of a report submitted by the concerned Village Officer. A just and fair adjudication requires that a copy of the said report be served to the petitioner, so that he may be able to file his objection to the same. It is a specific case of the petitioner that the report which was relied upon in the order passed by the District Collector was never served on him. Secondly, Ext.P6 does not show that the contentions taken by the petitioner in Ext.P4 appeal have been considered by the District Collector. Still further, a reading of the counter affidavit also shows that the District Collector has proceeded on the basis that the fixation of the fair value under Section 28A was never challenged and it was not open to be challenged through an appeal under Section 45A (4) of **WP(C).No.32029 OF 2013** **7** the Stamp Act. It is clear from the law laid down by this Court in Faizal Babu (supra) that the petitioner was well within his rights to challenge the fixation of fair value, even in an appeal filed under Section 45A(4) of the Stamp Act. I am in respectful agreement in the view taken by the Court in Faizal Babu (supra). In the result this writ petition is allowed. Ext.P6 order will stand set aside. Ext.P4 appeal will consequently stand restored to the file of District Collector, Thiruvananthapuram. The District Collector Thiruvananthapuram, will afford an opportunity of hearing to the petitioner on Ext.P4 appeal, after providing a copy of the report of the Village Officer referred to in Ext.P6 to the petitioner. The District Collector, Thiruvananthapuram, while disposing of the appeal will keep in mind that the law laid down by this Court in Faizal Babu (supra) and in Kuriakose (supra). Ext.P4 will be reconsidered in the manner indicated above within a period of three months from the date of **WP(C).No.32029 OF 2013** **8** receipt of a certified copy of this judgment. Till such time as fresh orders are passed on Ext.P4, as above, any demand in terms of Exts.P3 series shall be kept in abeyance. This writ petition is allowed in the manner indicated. VPK **Sd/GOPINATH P. JUDGE** **WP(C).No.32029 OF 2013** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 : COPY OF THE REPRESENTATION DTD.15.3.2011 SUBMITTED BY PETITIONER TO 2ND RESPONDENT.** **EXHIBIT P1(A): COPY OF THE REPRESENTATION DTD.15.3.2011 SUBMITTED BY PETITIONER TO 2ND RESPONDENT.** **EXHIBIT P1(B): COPY OF THE REPRESENTATION DTD.15.3.2011 SUBMITTED BY PETITIONER TO 2ND RESPONDENT.** **EXHIBIT P2 : COPY OF THE RECEIPT DTD.15.3.2011 ISSUED BY 2ND RESPONDENT FOR RS.20,423/-.** **EXHIBIT P2(A): COPY OF THE RECEIPT DTD.15.3.2011 ISSUED BY 2ND RESPONDENT FOR RS.20,422/-.** **EXHIBIT P2(B): COPY OF THE RECEIPT DTD.15.3.2011 ISSUED BY 2ND RESPONDENT FOR RS.15,830/-.** **EXHIBIT P3 : COPY OF THE ORDER DTD.15.3.2011 BEARING NO.19/2011 ISSUED BY 2ND RESPONDENT UNDER SECTION 45 A(3).** **EXHIBIT P3(A): COPY OF THE ORDER DTD.15.3.2011 BEARING NO.20/2011 ISSUED BY 2ND RESPONDENT UNDER SECTION 45 A(3).** **EXHIBIT P3(B): COPY OF THE ORDER DTD.15.3.2011 BEARING NO.21/2011 ISSUED BY 2ND RESPONDENT UNDER SECTION 45 A(3).** **EXHIBIT P4 : COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE 1ST RESPONDENT DTD.6.2.2011.** **EXHIBIT P5 : COPY OF THE NOTICE DTD.22.12.2012 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P6 : COPY OF THE ORDER DTD.2.3.2013 ISSUED BY 1ST RESPONDENT MECHANICALLY REJECTING EXT.P4 APPEAL.** **WP(C).No.32029 OF 2013** **10** **EXHIBIT P7 : COPY OF THE NOTICE DTD.5.7.2013 ISSUED BY 2ND RESPONDENT.**