Thomas Daniel S/O E.S. Daniel v. Revenue Divisional Officer, Adoor & Sub Registrar, Konni

WP(C) NO. 15095 OF 2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945** ## **WP(C) NO. 15095 OF 2015** ## **PETITIONER/S:** THOMAS DANIEL S/O.E.S.DANIEL, ILLIRIKKAL HOUSE, KONNI, PATHANAMTHITTA DISTRICT-689691. BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SRI.THOMAS T.VARGHESE ## **RESPONDENT/S:** 1 THE REVENUE DIVISIONAL OFFICER ADOOR-689645. 2 THE SUB REGISTRAR KONNI-689691. BY ADVS. GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI.RIYAL DEVASSY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15095 OF 2015 2 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C.) No. 15095 of 2015 -------------------------------------Dated this the 15[th] day of January, 2024** ## **JUDGMENT** The above writ petition is filed with following prayers : “ (i) issue a writ of certiorari or any other appropriate writ or direction calling for the records resulting in Exhibit P4 and P5 letters, scrutinize and quash the same (ii) issue a writ of mandamus or any other appropriate writ or direction to the 2nd respondent to file copy of Exhibit P2 sale certificate in Book No. 1 without insisting for payment of any stamp duty; (iii) pass such other orders, interlocutory or otherwise, which are deemed fit and proper in the interest of justice; and (iv) allow this Writ Petition with costs.” [SIC] 2. The property having an extent of 48.30 ares comprised in re-survey No.353/1 in block No.1 of V-Kottayam Village in Konni Taluk in Pathanamthitta District was sold in revenue sale on 27.06.2014 and it was bid in auction by the petitioner for the highest bid amount . It is the case of the WP(C) NO. 15095 OF 2015 3 petitioner that he remitted the entire purchase price. The auction sale of the property in favour of the petitioner was confirmed by the 1[st] respondent by order dated 07.10.2014 as evident by Ext.P1. It is further submitted that as per Sec. 56(1) of the Kerala Revenue Recovery Act, 1968, after confirmation of the sale, the Collector has to register the immovable property sold in the name of the person declared to be the purchaser and he shall execute and grant a certificate of sale bearing his seal and signature to the purchaser. As per Kerala Revenue Recovery Rules, 1968 the certificate of sale of immovable property as per Sec.56 of the Act has to be issued in Form No. 18. Ext.P2 is the certificate of sale of immovable property issued in favour of the petitioner. Ext.P3 is the tax receipt issued to the petitioner by Village Officer, V-Kottayam Village. 3. According to the petitioner, Sec. 89(4) of the Registration Act, 1908 every Revenue Officer granting a certificate of sale to the purchaser of immovable property sold in public auction shall send a copy of the certificate to the WP(C) NO. 15095 OF 2015 4 Registering authority within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situated and such officer shall file the copy in his book No.1. In accordance with the mandate in Sec.89(4), the 1[st] respondent sent copy of Ext.P2 sale certificate to the 2[nd] respondent for filing the copy in his book No.1. The grievance of the petitioner is that no action was taken by the 2[nd] respondent for filing copy of Ext.P2 sale certificate in book No.1 in spite of repeated requests made by the petitioner. It is submitted that the 2[nd] respondent refused to file copy of Ext.P1 sale certificate in book No.1 stating that the stamp duty payable as per Article 16 of the Schedule of the Kerala Stamp Act, 1959 has not been remitted. The 2[nd] respondent as per Ext.P4 directed the petitioner to remit the stamp duty payable as per Article 16 on Ext.P2 sale certificate for taking further action. By Ext.P5, the 2[nd] respondent called upon the 1[st] respondent to intimate him as to whether stamp duty as per Article 17 has been collected and as to whether any order exempting payment of stamp duty had been passed. WP(C) NO. 15095 OF 2015 5 4. It is submitted that the petitioner contacted the 1[st] respondent requesting clarification from him regarding Exts.P4 and P5 letters issued by the 2[nd] respondent. It is submitted that the 1[st] respondent clarified to the petitioner that no stamp duty was payable for filing Ext.P2 sale certificate in Book No.1 as per Section 89(4) of the Registration Act. It is submitted by the petitioner that, as per section 17(2)(xii) of the Registration Act make it clear that, nothing contained in clause (b) and (c) of section 17(1) is applicable to any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. Hence, it is submitted that, there is no necessity for registration of Ext.P2 sale certificate by remitting stamp duty provided in Article 16 of the Schedule of Kerala Stamp Act and what is required is only to file copy of Ext.P2 sale certificate in Book No.1 as provided in Section 89(4) of the Registration. The case of the petitioner is that the 2[nd] respondent is refusing to file a copy of Ext.P2 sale certificate in Book No.1 and he is insisting for registration of Ext.P2 sale certificate by WP(C) NO. 15095 OF 2015 6 remitting stamp duty as provided in Article 16 of the Schedule of the Kerala Stamp Act. Hence this Writ Petition. 5. Heard counsel for the petitioner and the Government Pleader. 6. The counsel for the petitioner reiterated the contentions raised in the writ petition. The Government Pleader takes me through the counter affidavit filed by the 2[nd] respondent, in which, it is stated that as per Section 36 of the Kerala Stamp Act, the Inspector General of Registration in his General Memorandum No.R.R.4-25995/15 dated 12.09.1995 directed that, all Sub Registrars should verify and not file any copy of sale certificate sending for filing under Section 89(4) of the Registration Act, if its original is not duly stamped or not recorded on the copy of that. 7. This Court considered the contention of the petitioner and the respondents. After hearing the petitioner and the Government Pleader, I am of the considered opinion that, when the statute prescribed certain things to be done in certain manner, the Inspector General of Registration cannot WP(C) NO. 15095 OF 2015 7 issue General Memorandum against the statutory provisions. The point raised by the petitioner is considered by the Apex Court in **Shanti Devi L. Singh v. Tax Recovery Officer and Others** [(1990)3 SCC 605] the relevant portions are paragraphs 6 and 9 and the same are extracted hereunder: ‘6. The first of the above questions is directly answered by S. 89 of the Indian Registration Act, 1908. This section provides for the procedure to be followed in certain situations; in particular, in cases where sales are effected either by courts under the Code of Civil Procedure or by revenue officers in pursuance of a revenue recovery certificate. Under S. 89(2), every court granting a certificate of sale of immovable property under the Code of Civil Procedure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such certificate is situate. Sub-section (4) of S. 89 makes a similar provision in respect of immovable properties sold by public auction by a revenue officer who issues a certificate of sale in pursuance of the auction. The WP(C) NO. 15095 OF 2015 8 sub-sections further provide that when the copy of the certificate of sale is so received, such "registering officer shall file the copy or copies; the case may be, in his Book No. 1." So far as sales for recovery of income-tax are concerned, rule 21 of the ITCP rules, quoted earlier, makes a like provision requiring the concerned T.R.O. to send a copy of the certificate of sale to the registering officer concerned. A doubt may arise whether the expression ‘revenue officer' in S.84(4) of the Registration Act includes a T.R.O.; and, if not, whether, without an appropriate amendment of S. 89 (2) or (4) of the Registration Act, the mere framing of a rule by the Central Board of Direct Taxes under the Income-tax Act, 1961 will be sufficient to oblige the registration officer to file a copy of the certificate of sale sent to him by the T.R.O. in his Book No. 1. In our opinion, there is no need to read the term 'revenue officer' in any restricted sense and that it is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income-tax demand. We are therefore clear that, in the present case, the registration officer has to act in terms of S. 89(4) of the Indian Registration Act read with rule 21 of the ITCP rules. This is to file the copy of the certificate of sale received by him WP(C) NO. 15095 OF 2015 9 ## from the T.R.O. in his Book No. 1. 9. There are thus some differences between the two procedures and this aspect has been touched upon in some very early decisions under the Registration Act, 1877: vide, Fatteh Singh v. Daropadi, Siraj-un-nissa v. Jan Muhammad, Masarat-un- nissa v. Adit Ram. Reference may also be made to Premier Vegetable P. Ltd. v. State. We need not, however, consider for the purposes of this case whether filing and registration mean one and the same thing for all purposes and what the legal effect of these differences is. For, though the processes are different, the purchaser at a court or revenue sale is under no disadvantage because of the lack of registration. The certificate of sale itself not being a compulsorily registrable document: vide s. 17(2)(xii), the transfer of title in his favour is not vitiated by the non- registration of the certificate. The copy of the certificate filed in Book No. 1 contains all the relevant details. These details are reflected in the indices maintained under s. 55 which are open to inspection to all persons. (We may point out here that S. 55(2) only refers to memoranda filed but it seems clear, particularly in the light of various State amendments, that the index to Book No. 1 should WP(C) NO. 15095 OF 2015 10 also contain the details of copies of document filed by him). These requirements are sufficient to ensure that any person intending to purchase or deal with the property is put on notice about the principal contents of the certificate of sale provided he inspects the relevant book and/or index. It is sufficient to say, for the purposes of this case, that all that the Sub-Registrar required to do is to file the copy of the certificate in Book No. 1 and no more. He does not have to copy out the certificate or make any other entries in Book No. 1.’ 5. Similarly, the Apex Court in **Esjaypee Impex Private Limited v. Assistant General Manager and Authorized Officer, Canara Bank** [(2021)11 SCC 537] observed like this: ‘We are of the view that the mandate of law in terms of Section 17(2) (xii) read with Section 89(4) of the Registration Act, 1908 only required the authorised officer of the bank under the SARFAESI Act to hand over the duly validated sale certificate to the auction purchaser with a copy forwarded to WP(C) NO. 15095 OF 2015 11 the registering authorities to be filed in Book I as per Section 89 of the Registration Act.’ 6. In the light of the above principle, I am of the considered opinion that the writ petition is to be allowed. Therefore, this Writ Petition is allowed in the following manner: - a) Exts.P4 and P5 are quashed. - b) The 2[nd] respondent is directed to file copy of Ext.P2 sale certificate in Book No.1 without insisting for payment of any stamp duty, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. ## **P.V.KUNHIKRISHNAN JUDGE** SKS Sbna/ WP(C) NO. 15095 OF 2015 12 ## **APPENDIX OF WP(C) 15095/2015** PETITIONER EXHIBITS EXT.P1 : TURE COPY OF THE ORDER NO.C2/5305/2014 ISSUED BY R1 DT.7-10-2014. EXT.P2 : TURE COPY OF THE CERTIFICATE OF SALE ISSUED BY THE R1 DT.7-1-2015. EXT.P3 : TURE COPY OF THE RECEIPT ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER, V KOTTAYAM VILLAGE DT.20-2-2015. EXT.P4 : TURE COPY OF THE LETTER NO.90/15 ISSUED BY THE R2 TO THE PETITIONER DT.184-2015. EXT.P5 : TURE COPY OF THE LETTER NO.95/15 ISSUED BY THE R2 TO THE R1 DT.27-4-15.