Saithu Kunju A. M. v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ## **`WP(C) NO. 7174 OF 2023`** ## **`PETITIONER:`** ``` SAITHU KUNJU A. M.,AGED 62 YEARS S/O IBRAHIM MYTHEEN, AAKOTHU HOUSE, VELLORKUNNAM VILLAGE, MUVATTUPUZHA TALUK., PIN - 686669 ``` ``` BY ADVS. P.M.RAFEEK U.NIDHIN SARA JOHN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001`** - **`2 DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD., PIN - 682030`** - **`3 REVENUE DIVISIONAL OFFICER MINI CIVIL STATION, MUDAVOOR P.O, MUVATTUPUZHA., PIN - 686669`** - **`4 SUB TREASURY OFFICER CIVIL STATION, MUDAVOOR P.O, MUVATTUPUZHA., PIN - 686669`** - **`5 INSPECTOR GENERAL OF REGISTRATION OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, EX-MAYOR R BALAKRISHNAN NAIR RD, NEAR DISTRICT COURT, VANCHIYOOR, THIRUVANANTHAPURAM, KERALA., PIN - 695035`** - **`6 DISTRICT REGISTRAR DISTRICT REGISTRAR OFFICE, 3RD FLOOR, PERIMBILLY BUILDING, MAHATMA GANDHI RD, SHEOYS, ERNAKULAM., PIN - 682011`** WP(C) No.7174 of 2023 2 - **`7 SUB REGISTRAR SUB REGISTRAR OFFICE, MUVATTUPUZHA P.O, MUVATTUPUZHA, ERNAKULAM., PIN - 686671`** - **`8 SHAMS,S/O IBRAHIM, AGED 54, KUNJIKUDIYIL, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK.,PIN - 686673`** - **`9 MYTHEEN FATHIMA, W/O SHAMS, AGED 49, KUNJIKUDIYIL, KAVUMKARA KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK., PIN - 686673`** - **`10 PETER JONES VARGHESE, S/O VARGHESE,`** - **`AGED 50 YEARS NO. 5-128, KOTTIYAL KUDI, SANTHAPURAM, AGASTEEWARAM, KANNIYAKUMARI, TAMIL NADU., PIN - 629201`** ## **`SR.GP JUSTIN JACOB`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ``` - **`16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** WP(C) No.7174 of 2023 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) No.7174 of 2023 .................................................................** Dated this the 16[th] day of February, 2024 ## **JUDGMENT** The above writ petition is filed seeking a direction to the 3[rd] respondent to refund the value of Rs.1,80,160/- deposited by the petitioner as per Ext.P1 for e-stamp bearing serial no.ES00067214324451139E and Department Reference no.620T500234101 and for a direction to respondents 5, 6 and 7 to refund the registration fee of Rs.45,140/deposited to the account of 7[th] respondent as per e-challan bearing reference no.120215112021000006. Learned counsel for the petitioner submits that while this writ petition was pending consideration, the registration fee paid by the petitioner has been disbursed to him and therefore he is not pressing prayer no.3. 2. It is averred in the writ petition that the petitioner has entered into an agreement to purchase 64.31 Ares of land situated in survey nos.1146/1K/39/7, 1146/1K/9/5, 1146/1K/39/6, 1146/1K/9/4 and 1146/1K/39/8 of Mulavoor Village of Muvattupuzha Taluk from respondents 8 and 9, which they obtained as per Deed nos.6411/2011, 2454/2012 and 4307/2013 of Muvattupuzha S.R.O. Accordingly for preparing, executing and registering the sale deed with respect to the said property the petitioner purchased non-judicial stamp paper from the 4[th] respondent for an amount WP(C) No.7174 of 2023 4 of Rs.1,80,160/- on 15.11.2021 bearing e-stamp serial no. ES00067214324451139E and Department Reference no. 620T500234101. The petitioner also remitted Rs.45,140/- to the account of 7[th] respondent as registration fee for registering the said sale deed as is evident from Ext.P1. After purchase of the stamp paper, Ext.P2 deed dated 15.11.2021 was prepared and the same was sent to United Kingdom where respondents 8 and 9 are settled, in order to engross their signature in the document and accordingly they have placed their signature in the document and sent it back for complying with other formalities including the registration and for that purpose they have authorized the 10[th] respondent as their power of attorney holder. In the meanwhile, the petitioner met with financial stringency and was unable to arrange the entire balance sale consideration to be paid to respondents 8 and 9. As a result, Ext.P2 deed could not be registered. Thereafter, a series of meditation was effected and ultimately a decision was taken to register a sale deed for purchase of a lesser extent of land owned which will worth the amount which was already paid and readily available with the petitioner and accordingly, Ext.P3 sale deed was executed after paying separate stamp duty and registration fee and the registration formalities were completed. Petitioner, an illiterate layman, could not make a claim for return of the stamp duty and registration fee once remitted for the incomplete execution of an unregistered deed. Later Ext.P5 application was filed before the Tahasildar, Muvattupuzha requesting for refund of the stamp WP(C) No.7174 of 2023 5 duty of Rs.1,80,160/-. The said application was rejected as per Ext.P6 stating that the request for refund of the stamp duty was not filed within six months from the date of purchase and therefore, the request cannot be entertained. The question as to whether the petitioner is entitled for refund of the stamp duty paid in respect of the unregistered deed. Petitioner submits that it is true that Ext.P2 unregistered deed is dated 15.11.2021 and Ext.P3 registered deed is dated 07.04.2022 and Ext.P5 application for refund of the stamp duty was filed only on 09.07.2022. 3. Section 47 of the Kerala Stamp Act, 1959 (hereinafter referred to as “Act”) deals with allowance for spoiled stamps which prescribes that the Collector, on an application made within the period prescribed in Section 48 and if he is satisfied as to the facts, make an allowance for impressed stamps or e-stamps spoiled. Section 48 of the Act speaks about when an application for relief under Section 47 should be made. Section 48(2) of the Act mandates that in case of a stamp paper in which an instrument has been executed by any of the parties thereto the application has to be submitted within six months after the date of the instrument. Going by the said provision, the application for refund of the stamp duty has to be submitted within six months from the date of Ext.P2, ie., 15.11.2021. 4. Petitioner relying on Proviso (b) to Section 48 of the Act submits that when, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within WP(C) No.7174 of 2023 6 the aforesaid period, the application may be made within six months after the date of execution of the substituted instrument. On the basis of Proviso (b) to Section 48 of the Act petitioner would submit that he could make an application within a period of six months after the date of execution of the substituted instrument and since Ext.P3 substituted instrument is dated 07.04.2022, Ext.P5 application for refund of the stamp duty which is filed on 09.07.2022 is well within the period of six months prescribed therein and therefore the stand taken by the 3[rd] respondent in Ext.P6 is against law. Petitioner relies on the judgment in **Raman Kutty N.P. and another v. District Collector, Thrissur and another, 2017 (4) KHC 755** wherein in paragraph 19 this Court held as follows: _“19. I am strengthened in my view by a judgment of this Court Wilson Chakkappan v. Tahsildar, Aluva (2012 (3) KHC 804), where this Court had found that when the facts would show such unavoidable circumstances, which caused delay in making the application for refund of the spoiled stamps, proviso (b) to Section 48 would stand attracted, as per which an application can be made during six months after the date of execution of the substituted instrument.”_ Petitioner also relies on the decision of this Court in **Wilson Chakkappan v. Tahasildar, Aluva, 2012 (3) KHC 804** wherein it is held that if a person was prevented to apply for refund within six months from the date of execution due to unavoidable circumstances and when a fresh sale certificate was executed, stamp duty can be ordered to be refunded within a period of six months from the date of execution of fresh sale certificate. WP(C) No.7174 of 2023 7 5. Heard the learned Government Pleader also. Learned Government Pleader submits that since Ext.P5 application for refund was filed only on 09.07.2022, the same has been filed beyond the period of six months stipulated as per Section 48 of the Act and therefore, the stamp value cannot be refunded. In view of the categoric declaration of law as stated above and taking into consideration the fact that Ext.P3 substituted instrument was executed on 07.04.2022 and Ext.P5 application for refund of stamp duty was filed on 09.07.2022, I am of the view that the application submitted by the petitioner is well within the time prescribed as per Proviso (b) to Section 48 of the Act. Therefore, petitioner is entitled to the relief sought for. Therefore Ext.P6 order is set aside with a consequential direction to the 3[rd] respondent to refund Rs.1,80,160/- deposited by the petitioner as per Ext.P1 for e-stamp bearing serial no. ES00067214324451139E and Department Reference no. 620T500234101 within a period of two months from the date of receipt of a copy of the judgment. With the abovesaid direction the writ petition is allowed. **Sd/-** **VIJU ABRAHAM JUDGE** cks WP(C) No.7174 of 2023 8 ## **`APPENDIX OF WP(C) 7174/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE E-CHALLAN DATED`| ||`12/11/2021 SHOWING THE PURCHASE OF NON-`| ||`JUDICIAL STAMP PAPER WORTH RS. 1,80,160/-`| ||`AND REMITTANCE OF REGISTRATION FEE OF RS.`| ||`45,140/-.`| |`Exhibit P2`|`TRUE COPY OF THE UNREGISTERED DEED DATED`| ||`15/11/2021.`| |`Exhibit P3`|`TRUE COPY OF THE SALE DEED NO. 2154/2022`| ||`DATED 7/04/2022 OF MUVATTUPUZHA S.R.O.`| |`Exhibit P4`|`TRUE COPY OF THE POWER OF ATTORNEY DATED`| ||`26/04/2022 EXECUTED BY THE RESPONDENTS 8`| ||`AND 9 IN FAVOR OF THE 10TH RESPONDENT.`| |`Exhibit P5`|`TRUE COPY AN APPLICATION DATED 09/07/2022`| ||`LODGED BY THE PETITIONER TO THE`| ||`TAHASILDAR, MUVATTUPUZHA.`| |`Exhibit P6`|`TRUE COPY OF THE ORDER DATED 19/09/2022`| ||`ISSUED BY THE 3RD RESPONDENT.`| |`Exhibit P7`|`TRUE COPY OF THE APPLICATION DATED`| ||`23/02/2023 LODGED BY THE PETITIONER`| ||`BEFORE THE RESPONDENTS NO. 7.`| |`Exhibit P8`|`TRUE COPY OF THE JUDGMENT DATED 7/10/2015`| ||`IN W.P.C NO. 27720/2015 OF HON'BLE HIGH`| ||`COURT OF KERALA.`| |`Exhibit P10`|`TRUE COPY OF JUDGMENT DATED 22/06/2012 IN`| ||`W.P.(C) NO.29027/2011 OF THIS HON'BLE`| ||`COURT.`| |`Exhibit P9`|`TRUE COPY OF THE JUDGMENT DATED`| ||`20/06/2019 OF THIS HON'BLE COURT IN`| ||`WP©NO.9207/2019.`|