Rajan K.K v State of Kerala and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946 ## WP(C) NO. 24498 OF 2014 ## PETITIONER: ## RAJAN K.K W-76, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN682028. BY ADV ## SRI.R.PARTHASARATHY ## RESPONDENTS: - 1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. - 2 THE INSPECTOR GENERAL OF REGISTRATION VANCHIYOOR P.O., TRIVANDRUM, PIN-695 035. - 3 THE DISTRICT REGISTRAR GENERAL OFFICE OF THE DISTRICT REGISTRAR (GENERAL), ERNAKULAM SOUTH, COCHIN, PIN-682 011. - 4 THE SUB REGISTRAR EDAPPALLY, OFFICE OF THE SUB REGISTRAR, EDAPPALLY, AIMS P.O., COCHIN, PIN-682 041. - 5 FEDERAL HOUSE CONSTRUCTION CO-OPERATIVE SOCIETY LTD. REPRESENTED BY ITS SECRETARY, GEORGE P.MATHAI, FLAT NO.104, FEDERAL GARDENS PULINCHODE, ALUVA WEST, ALUVA P.O., PIN-683101, ERNAKULAM DISTRICT. WP(C) NO. 24498 OF 2014 : 2 : BY ADVS. SRI. DHEERAJ, GOVERNMENT PLEADER SRI.MARTIN D.ALUMKARA (R4) SRI.MOHAN IDICULLA ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 24498 OF 2014 : 3 : ## JUDGMENT The petitioner is a member of the Federal House Construction Co-operative Society, the 5[th] respondent, a Society registered under the provisions of the Kerala Cooperative Societies Act, 1969. The Society was incorporated with the object of acquiring land by purchase, mortgage, lease, license, exchange, or gift for its members, to construct or cause to be constructed buildings or other works of common utility to the Society or its members, to build or cause to build residential house, flats or buildings or structures for the Society or its members and allied matters. 2. The Society purchased the land having a total extent of 99.20 Ares in Ernakulam District for WP(C) NO. 24498 OF 2014 : 4 : construction of residential apartments for its members, as part of its business. The Society also obtained Building Permit No.KRP2/44/205 whereby the Corporation of Cochin granted permission for construction of two multistoried residential apartment blocks named ‘Federal park’ in the said land. After the construction of the apartments, the petitioner, who is a member of the 5[th] respondent Society, applied for allotment of an apartment and he was allotted his respective apartment. When the petitioner approached the 4[th] respondent, the Sub Registrar, Edappally for registration of sale deed, he was informed that the sale deed can be registered only on payment of stamp duty under the provisions of Kerala Stamp Act, 1959, or the petitioner shall obtain orders from this Court. The petitioner submits that as per WP(C) NO. 24498 OF 2014 : 5 : Ext.P2 Government Order dated 08.10.1960, the 5[th] respondent Society is exempted from payment of stamp duty and therefore the 4[th] respondent ought to have registered the sale deed of the petitioner's apartment without insisting for payment of stamp duty. Accordingly, the writ petition is filed for directing the 4[th] respondent to register the sale deed of the apartment of the petitioner executed by the 5[th] respondent Society, without insisting on payment of stamp duty. 3. Heard Sri. Parthasarathi, the learned Counsel for the petitioner, Sri. Dheeraj, the learned Government Pleader for respondents 1 to 4 and Sri. Mohan Idiculla Abraham for the 5[th] respondent. 4. The question as to whether a member of the society executing document in his own capacity is WP(C) NO. 24498 OF 2014 : 6 : entitled for the benefit of remission of stamp duty was set at rest by the Hon’ble Supreme Court in Kerala Land Reforms & Development Co-operative Society Limited v. District Registrar (General) and Another [2022 KHC 7093]. The Apex Court held that, Sale Deed executed by members in favour of the society or by the society in favour of respective member in their own capacity or in the capacity of a guardian of a minor shall not be entitled to the benefit of remission of stamp duty as it is available only in respect of instruments executed by or on behalf of the society. Paragraphs 8 and 9 of the said judgment read as follows:- “8. From the aforesaid, it is apparent that the instruments executed by a member in his own capacity or/and in the capacity of a Guardian of a minor, which was in clause WP(C) NO. 24498 OF 2014 : 7 : 1(a) of SRO 75/60 is missing insofar as S.40 of the Kerala Act. 1969 is concerned. S.40 of the Kerala Act, 1969 further provides that only in cases where, but for such remission the society, officer or member, as the case may be, would be liable to pay such stamp duty. As per S.40 (1)(a), the stamp duty chargeable under the Kerala Act, 1959 in respect of any instrument executed by or on behalf of a society or by an officer or member thereof and relating to the business of such society and in cases where, but for such remission the society, officer or member, as the case may be, would be liable to pay such stamp duty, there shall be remission of stamp duty. Thus, as clause 1(a) of SRO 75/60 is inconsistent with the relevant provisions of the Kerala Act, 1969, more particularly S.40 thereof, the said order is not saved and cannot be said to be deemed to have been issued under the Kerala Act, 1969 (S.110(2) of the Kerala Act, 1969) as has been WP(C) NO. 24498 OF 2014 : 8 : contended on behalf of the appellants. Therefore, considering the express provision contained in S.40(1)(a) of the Kerala Act, 1969, a member of the society executing the document in his own capacity or in the capacity of a Guardian or a minor shall not be entitled to the benefit of remission of stamp duty. 9. In view of the above and for the reasons stated above, the appellants herein shall not be entitled to the benefit of remission of stamp duty on the instruments /sale deeds in question. Such instruments/sale deed in question cannot be said to be executed by or on behalf of a society or by an officer or member thereof relating to the business of the society. We are in complete agreement with the view taken by the Full Bench of the High Court.” 5. In view of the law laid down by the Hon’ble WP(C) NO. 24498 OF 2014 : 9 : Supreme Court in the above judgment, the petitioner is not entitled for the relief sought for in the writ petition. The petitioner is a member of the 5[th] respondent society. He has approached the Sub Registrar for registration of the apartment in his own name and not on behalf of the society. In the said circumstances, the petitioner is not entitled to seek exemption or remission from payment of stamp duty. This Court, on 22.09.2014, passed an interim order directing the 4[th] respondent to register the document which is the subject matter of the writ petition without insisting for payment of stamp duty, subject to the result of the writ petition. In view of my finding that the petitioner is liable to pay the stamp duty in respect of the document in question, it will be open to WP(C) NO. 24498 OF 2014 : 10 : the 4[th] respondent to demand and recover the stamp duty from the petitioner. Writ petition is disposed of. Sd/- MURALI PURUSHOTHAMAN JUDGE SRJ WP(C) NO. 24498 OF 2014 : 11 : ## APPENDIX OF WP(C) 24498/2014 PETITIONER EXHIBITS EXHIBIT P 1 TRUE COPY OF THE BYE-LAWS OF THE FEDERAL CO-OPERATIVE HOUSING SOCIETY LTD.DT.NIL. - EXHIBIT P 2 TRUE COPY OF THE GO(MS)795/60/AGRL., DT.810-1960 ISSUED BY THE GOVERNMENT OF KERALA. - EXHIBIT P 3 TRUE COPY OF THE ORDER OF R3 DT.20-6-2012. - EXHIBIT P 4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT, DT.5-6-2013 IN WPC 22670/2012. - EXHIBIT P 5 TRUE COPY OF THE ORDER OF A DIVISION BENCH OF THIS HON'BLE COURT, DT.27-8-2013 WA 1248/2013. EXHIBIT P 6 TRUE COPY OF THE INTERIM ORDER, OF THIS HON'BLE COURT DT.25-8-14 IN WPC 22125/14.