WP(C) No. 10511 of 2014

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 15TH DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 WP(C) NO. 10511 OF 2014`** ## **`PETITIONERS:`** - `1 GEORGE JACOB` - `E-116, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `2 O.M.PAUL` - `W-84, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `3 MOHAN P.ABRAHAN` - `E-71, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `4 ALEXANDER A.P.` - `W-156, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `5 T.N.PRASAD W-154, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `6 MATHEWKUTTY AUGUSTINE` - `E-115, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `7 LOVELY P.THOMAS` - `W-32, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `8 M.NAZIMUDEEN W-114, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `9 V.C.JACOB` - `W-41, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN,` ``` PIN-682028. ``` - `10 SUNNY M.JOSEPH` ``` W-22, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` - `11 JOSEPH CYRIAC` ``` W-31, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` - `12 JOHNY JOSE` ``` W-31, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` ``` 13JACOB EAPEN.K. W-92, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` - `14 JOEMON JOHN` ``` W-185, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` - `15 M.P.JOSEPH` ``` E-21, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028. ``` - `16 GEORGE AUGUSTINE W-151, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` - `17 RITA JOSEPH W-182, FEDERAL PARK, VENNALA, ERNAKULAM, COCHIN, PIN-682028.` ``` BY ADV ``` ``` SRI.R.PARTHASARATHY ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, ``` ## `THIRUVANANTHAPURAM, PIN-695001.` - `2 THE INSPECTOR GENERAL OF REGISTRATION VANCHIYOOR P.O., TRIVANDRUM, PIN-695035.` - `3 THE DISTRICT REGISTRAR GENERAL OFFICE OF THE DISTRICT REGISTRAR (GENERAL), ERNAKULAM SOUTH, COCHIN, PIN-682011.` - `4 THE SUB REGISTRAR EDAPPALLY, OFFICE OF THE SUB REGISTRAR, EDAPPALLY, AIMS P.O., COCHIN, PIN-682041.` - `5 FEDERAL HOUSE CONSTRUCTION CO-OPERATIVE SOCIETY LTD.` - `REPRESENTED BY ITS SECRETARY, GEORGE P.MATHAI, FLAT N-104, FEDERAL GARDENS PULINCHODE, ALUVA WEST, ALUVA P.O., PIN-683101, ERNAKULAM DISTRICT.` ``` BY ADVS. ``` ``` SRI.MARTIN D.ALUMKARA ``` ``` SRI.MOHAN IDICULLA ABRAHAM ``` ``` SR GP SRI JUSTIN JACOB ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN HEARD ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 10511 OF 2014 ``` 4 ## **J U D G M E N T** 1. Petitioners approached this Court with the following prayer: “Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to register the sale deeds of the apartments of the petitioners executed by the 5[th] respondent Society, without insisting on payment of stamp duty thereon, expeditiously, at any rate within a time frame that may be fixed by this Hon'ble Court.” 2. Aforementioned prayer is made on the basis of the fact that petitioners are members of fifth respondent, Federal House Construction Co-operative Society Ltd. ('Society', for short), duly registered under the provisions of Kerala Co-operative Societies Act, 1969 ('Act', for short) by assigning registration No.E-962. The Society was ``` WP(C) NO. 10511 OF 2014 ``` 5 incorporated with the object to acquire land by purchase, mortgage, lease etc. for its members to construct or cause to construct buildings or other works of common utility and to build or cause to build residential houses, flats or buildings or structures for the Society or its members and allied matters. Society purchased land measuring 99.20 Ares situated in Survey Nos.77/2A, 77/1A, 77/1B, 76/16-A2 and 76/16-B of Vennala Kara, Edappally South Village, Kanayannur Taluk, Ernakulam District as per registered sale deed Nos.490/2005, 1580/2005, 3933/2005, 802/2006 and 532/2007 of Sub Registrar's Office, Edappally for constructing residential apartments for its members as part of its business. Building permit dated 20.7.2005 was also obtained from Corporation of Kochi for construction of two multi storied residential apartment blocks named as 'Federal Park'. After completion of the aforesaid apartment blocks, petitioners who are members of the Society, applied for ``` WP(C) NO. 10511 OF 2014 ``` 6 allotment of apartments. One of the members, who was allotted an apartment, presented sale deed for registration before the fourth respondent, Sub Registrar, Edappally, but was returned on the ground that it required stamp duty under the provisions of Kerala Stamp Act, 1959. 3. Learned counsel appearing on behalf of the petitioners submitted that as per the powers conferred under sub-Sections (1) and (2) of Section 35 of Travancore-Cochin Co-operative Societies Act, 1951 and sub-Sections (2)(a) and (2)(b) of Section 30 of the Madras Co-operative Societies Act, 1932 and in supersession of all notifications issued on the subject, Government of Kerala vide Order dated 8.10.1960, Ext.P2, published in gazette notification dated 18.10.1960, exempted remittance of stamp duties to the extent indicated in each case therein. 4. The Act enacted and published in gazette notification dated 11.4.1969 came into force on 15.5.1969. ``` WP(C) NO. 10511 OF 2014 ``` 7 Section 110 of the Act relates to repeal and savings. Section 110(2)(i) of the Act provides that notwithstanding the repeal of Madras Co-operative Societies Act, 1932 and TravancoreCochin Co-operative Societies Act, 1951 and without prejudice to provisions of Sections 4 and 23 of Interpretation and General Clauses Act, 1125, all appointments, rules & orders made, notifications & notices issued and suits & all other proceedings instituted under any of the Acts hereby repealed shall, so far as may be, deemed to have been respectively made, issued and instituted under the Act. 5. Government Order dated 8.10.1960, Ext.P2, directed that stamp duty, registration fees and fees for encumbrance certificate payable under the Kerala Stamp Act shall be remitted to the Co-operative Societies, meaning thereby that a registered Co-operative Society is not liable to pay stamp duty under the Kerala Stamp Act in respect of instruments executed by it in relation to its business. ``` WP(C) NO. 10511 OF 2014 ``` 8 Exemption from payment of stamp duty has already been covered by a Single Bench decision of this Court in **Federal House Construction Co-operative Society Ltd.** v. **State of Kerala [2013(3) KLT 643].** This Court relying on the aforesaid decision **,** vide interim order dated 8.4.2014 directed the respondents to register the sale deed without insisting for payment of stamp duty. 6. On the other hand, learned Government Pleader as well as the counsel representing the Society did not deny the decision in **Federal House Construction Co-operative Society Ltd.** (supra). 7. I have heard learned counsel for the parties and appraised the paper books and the judgments and of the view that there is no force on merit. 8. In the appeal filed against the judgment supra, the Division Bench referred the matter to the Full Bench of this Court. On examination of provisions of the Kerala Co- ``` WP(C) NO. 10511 OF 2014 ``` 9 operative Societies Act Full Bench held that the benefit of remission of stamp duty is available only in respect of the instruments executed by or behalf of the society or by an officer or member thereof and the instrument so executed should be relating to the business of the society. Benefit of remission can be claimed by the society only if, but for such remission, the society, an officer or the member as a case may be, would have been liable to pay such stamp duty. The aforementioned question also was taken up before hon'ble Supreme Court in **Kerala Land Reforms and Development Co-operative Society Limited Vs. District Registrar General and another (2022 KHC 7093)** whereby, noticing the provisions of the Kerala Co-operative Societies Act 1969, it was held that the sale deeds executed by members in favour of the Society or by the Society in favour of the respective members, if in their own capacity or in the capacity of a guardian of a minor, shall not be entitled ``` WP(C) NO. 10511 OF 2014 ``` 10 to the benefit of the remission of stamp duty as it is available only in respect of instruments executed by or on behalf of the Society. 9. In the case in hand all the petitioners who are the members of the Society have approached the Registrar for registration in their own name, not on behalf of the society. In this circumstances they will not be entitled to seek exemption /remission from the payment of the stamp duty. The refusal to register the sale deed for want of stamp duty by the respondent is perfectly legal and justified. Writ petition stands dismissed. **Sd/-** **AMIT RAWAL JUDGE** VV ``` WP(C) NO. 10511 OF 2014 ``` 11 ## **`APPENDIX OF WP(C) 10511/2014`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1COPY OF THE BYE-LAWS OF THE FEDERAL CO- OPERATIVE HOUSING SOCIETY LTD. ``` ``` EXHIBIT P2COPYOFG.O.(MS)795/60/AGRL.DATED 8.10.1960, ISSUED BY THE GOVERNMENT OF KERALA. ``` ``` EXHIBIT P3COPY OF THE ORDER OF THE 3RD RESPONDENT, DATRED 20.6.2012. ``` ``` EXHIBIT P4 ``` ``` COPY OF THE JUDGMENT OF THIS HONOURABLE COURT, DATED 5.6.2013, IN WRIT PETITION NO.22670/2012. ``` ``` EXHIBIT P5COPY OF THE ORDER OF A DIVISION BEHCH OF THIS HONOURFABLE COURT DATED 27.8.2013, WRIT APPEAL NO.1248/2013. ``` ``` EXHIBIT P6 ``` ``` COPY OF THE INTERIM ORDER, OF THIS HON'BLE COURT, DATED 12.3.2014, IN WPC.NO.7078/2014(M). ```