Mehaboob.M.S vs The District Registrar (General)
2021 Latest Caselaw 14987 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
                  THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
           FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                              WP(C) NO. 1341 OF 2021
PETITIONER:

                  MEHABOOB.M.S.
                  AGED 54 YEARS
                  S/O SHOUKATH ALI, DARUL MIJAS, THEKKUMBHAGOM CHERRI,
                  KOTTAPPURAM VILLAGE, KOLLAM TALUK.

                  BY ADVS.
                  MINI GANGADHARAN
                  SMT.ASWATHI S. KUMAR



RESPONDENTS:

       1          THE DISTRICT REGISTRAR (GENERAL)
                  THIRUVANANTHAPURAM, OFFICE OF THE DISTRICT REGISTRAR
                  (GENERAL), THIRUVANANTHAPURAM-695 013.

       2          THE SUB REGISTRAR,
                  VARKALA, VARKALA, P.O.VARKALA TALUK-695 121.

       3          ISSATH THAJ,
                  AGED 33 YEARS
                  S/O THAJUDEEN, THAJ MAHAL, EDAVA DESAM, EDAVA VILLAGE,
                  VARKALA TALUK-651 311.

 ADDL.R4          THE DISTRICT COLLECTOR, TRIVANDRUM
                  (THE ADDITIONAL 4TH RESPONDENT IS SUO MOTU IMPLEADED AS
                  PER THE ORDER DATED 16/07/2021 IN WP(C) 1341/2021)

                  BY ADVS.
                  SMT.SHEEJA.C.S., GOVERNMENT PLEADER
                  SMT.R.SUDARSANA




THIS       WRIT    PETITION   (CIVIL)   HAVING    COME   UP   FOR   ADMISSION   ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.1341/2021
                                           2

                  P.V.KUNHIKRISHNAN, J
            -------------------------------
                 W.P.(C)No.1341 of 2021
           --------------------------------
           Dated this the 16th day of July 2021

                                   JUDGMENT

The above writ petition is filed with the

following prayers:

"i) Issue a writ of Certiorari quashing

Ext.P5 order issued by the 1st

respondent.

ii)Issue an Order directing the 2nd

respondent to register the deed for

curing the defect occasioned in Sale Deed

No: 1019/2019 of Varkala Sub Registry in

normal fees normally imposed for the

registration of Deeds for curing defects.

iii) Such other reliefs this Hon'ble

Court may deem fit and proper to grant in

the facts and circumstances of the case."

2. The grievance of the petitioner is

that, Ext.P1 is the copy of a rectification

deed produced by the petitioner before the 2nd

respondent requesting to register the same.

But according to the petitioner, the 2nd WP(C) NO.1341/2021

respondent refused to accept the same.

Thereafter the petitioner directly approached

the 1st respondent and invited Ext.P5 order.

Challenging Ext.P5 order this writ petition is

filed.

3. Heard the learned counsel for the

petitioner, the learned Government Pleader and

the learned counsel for the 3rd respondent.

4. Section 45A of the Kerala Stamp Act,

1959 reads as follows:

"[45A. Instrument not bearing stamp of sufficient amount as per fair value of land how to be dealt with. -

            (1)          Notwithstanding                    anything
            contained          in      this              Act,         the
            registering          officer           shall,        while
            registering               an                  instrument

transferring any land, other than an instrument of partition, settlement or gift among the members of a family, chargeable with duty verify whether the value of land or the consideration set forth in the instrument is the fair value of that land.

(2) Where on such verification, the registering officer is satisfied that the value of the land or the WP(C) NO.1341/2021

consideration set forth in the instrument is not less than the fair value of the land, he shall duly register the instrument.

            (3)     Where,           on     verification             the
            registering          officer         finds       that    the
            value         of         the        land         or       the
            consideration             set        forth        in     the
            instrument          is    less        than       the     fair

value of the land fixed under section 28A, he shall, by order, direct the payment of proper stamp duty on the fair value of the land fixed under section 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, the instrument shall be duly registered.

(4) Any person aggrieved by an order under sub-section (3) may, within thirty days from the date of that order, appeal to the collector within whose jurisdiction the land is situate.

(5) The Collector shall hear and dispose of the appeal in such manner as may be prescribed by rules made under this Act in that behalf and his decision thereon shall be final.]"

5. Section 45A (3) of the Stamp Act says

that where, on verification the Registering

Officer finds that the value of the land or the WP(C) NO.1341/2021

consideration set forth in the instrument is

less than the fair value of the land fixed

under Section 28A, he shall, by order, direct

the payment of proper stamp duty on the fair

value of the land fixed under Section 28A

within a period of seven days from the date of

the order and on payment of the deficit stamp

duty, he shall duly register such documents and

certify by endorsement on the instrument under

his seal and signature that proper stamp duty

has been charged. Section 45A (4) of the Stamp

Act says that, any person aggrieved by an order

under sub-section (3) may within 30 days from

the date of that order, appeal to the

Collector, within whose jurisdiction the land

is situated. Admittedly, no order is issued by

the registering authority in accordance with

Section 45A (3) of the Stamp Act. Hence, the

petitioner directly approached the 1st

respondent. The 1st respondent is not the

appellate authority. The additional 4th WP(C) NO.1341/2021

respondent is the appellate authority.

6. A counter affidavit is filed by the 1st

respondent. The learned Government Pleader

submitted that the petitioner without

approaching the 2nd respondent directly went to

the 1st respondent and that is why the order

under Section 45A (3) was not issued.

7. In such circumstances, according to me,

the petitioner can challenge the order u/s

45A(3) as per the procedures in the Kerala

Stamp Act, 1959. For that limited purpose, I

think Ext.P5 order can be set aside. I make it

clear that, I have not considered the matter on

merit. The authority concerned is free to

consider the issue in accordance to law.

8. Therefore, this writ petition is

disposed with the following directions:

i. The 2nd respondent is directed to issue

the order in accordance to Section 45A (3) of

the Kerala Stamp Act, within two weeks from the

date of receipt of a copy of this judgment. WP(C) NO.1341/2021

ii. The petitioner is free to challenge

that order before the additional 4th respondent

in accordance to Section 45A(4) of the Stamp

Act.

iii. If the appeal is received by the

additional 4th respondent, the additional 4th

respondent will dispose the appeal as

expeditiously as possible, at any rate, within

two months from the date of receipt of a copy

of this judgment, after hearing the petitioner

and the affected parties.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO.1341/2021

APPENDIX OF WP(C) 1341/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF SALE DEED NO 1019/2019 DATED 26.4.2019 OF VARKALA SUB REGISTRY IN FAVOR OF THE PETITIONER

EXHIBIT P2 TRUE COPY OF TAX RECEIPT FOR AN EXTENT OF 7.90 ARES IN RESURVEY NO 118/7-A-1 AND 118/7 IN FAVOR OF THE PETITIONER ISSUED FROM EDAVA VILLAGE

EXHIBIT P3 TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 21.8.2019 ISSUED FROM VATRKALA SRO

EXHIBIT P4 TRUE COPY OF PETROL/DIESEL/DEALER AGREEMENT FOR CORPORATION OWNED/LEASED OUTLETS DATED 10.12.2019 ENTERED BETWEEN THE PETITIONER AND HINDUSTAN PETROLEUM

EXHIBIT P5 ORIGINAL PROCEEDINGS OF THE DISTRICT REGISTRAR (GENERAL), THIRUVANANTHAPURAM DATED 10.12.2020 REQUIRING THE PETITIONER TO REMIT STAMP DUTY OF RS 1,28,000/- IN ACCOUNT HEAD 0030-103-98

RESPONDENTS EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE