A.Balagopalan vs Inspector General Of ...
2021 Latest Caselaw 9632 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 TUESDAY, THE 23RD DAY OF MARCH 2021 / 2ND CHAITHRA, 1943

                    WP(C).No.6306 OF 2021(K)


PETITIONER:

               A.BALAGOPALAN
               AGED 56 YEARS
               SON OF LATE C.K.ARAVINDAKSHA MENON, ADVOCATE,
               RESIDING AT C.C.40/596, DURBAR HALL ROAD,
               M.G.ROAD P.O., ERNAKULAM, KOCHI-682016.

               BY ADV. SRI.K.SANEESH KUMAR

RESPONDENTS:

      1        INSPECTOR GENERAL OF REGISTRATION
               OFFICE OF THE INSPECTOR GENERAL OF
               REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM,
               PIN-695035.

      2        DISTRICT REGISTRAR,
               ERNAKULAM, OFFICE OF THE DISTRICT REGISTRAR,
               2ND FLOOR, PERUMPILLY BUILDINGS, OPPOSITE
               MAHARAJAS COLLEGE GROUND, ERNAKULAM, KOCHI-
               682011.

      3        SUB REGISTRAR,
               ERNAKULAM SUB REGISTRARS OFFICE, 2ND FLOOR
               PERUMPILLY BUILDINGS, OPPOSITE MAHARAJAS
               COLLEGE GROUND, ERNAKULAM, KOCHI-682011.

               R3 BY GOVERNMENT PLEADER
               SMT A.C.VIDHYA - GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.6306 of 2021

                                2

                          JUDGMENT

The petitioner, who is the owner in possession of 4.21 Ares

of land comprised in Sy.No.702/2-4-2 of Ernakulam Village, with

residential building situated therein, bearing door No.62/3501

(old door No.40/595), has filed this writ petition under Article

226 of the Constitution of India, seeking a writ of certiorari to

quash Ext.P7 order dated 15.12.2020 of the 3 rd respondent Sub

Registrar, demanding additional stamp duty and registration fee

applicable to commercial plots, for Ext.P5 gift deed. The

petitioner has also sought for a writ of mandamus commanding

the 3rd respondent to register Ext.P5 gift deed without imposing

additional stamp duty and registration fee, as demanded in

Ext.P7 order.

2. On 10.03.2021, when this writ petition came up for

admission, the learned Government Pleader sought time to get

instructions.

3. On 16.03.2021, the learned Government Pleader

pointed out that against Ext.P7 order, the petitioner can file an

appeal under Section 72 of the Registration Act, 1908. Per

contra, the learned counsel for the petitioner submitted that WP(C)No.6306 of 2021

Ext.P7 order can be challenged in an appeal filed under sub-

section (4) of Section 45A of the Kerala Stamp Act, 1959.

4. A statement has been filed by the 3rd respondent Sub

Registrar, opposing the reliefs sought for in this writ petition.

5. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the respondents.

6. Section 45A of the Kerala Stamp Act deals with

instrument not bearing stamp of sufficient amount as per fair

value of land. As per sub-section (3) of Section 45A, 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,

he shall duly register such instrument and certify by endorsement

on the instrument under his seal and signature that proper stamp

duty has been charged and paid. As per sub-section (4) of

Section 45A, any person aggrieved by an order under sub-section

(3), may, within thirty days from the date of that order, appeal to WP(C)No.6306 of 2021

the Collector within whose jurisdiction the land is situate. As per

sub-section (5) of Section 45A, 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.

7. In view of the provisions under Section 45A of the

Kerala Stamp Act, an appeal under sub-section (4) of Section

45A can be filed against an order passed by the registering officer

under sub-section (3) of Section 45A. For the 3 rd respondent Sub

Registrar to pass such an order, the petitioner has to present

Ext.P5 gift deed before the said respondent after paying all fees

payable on presentation of such document, as provided under

Section 80 of the Registration Act, 1908.

8. The learned counsel for the petitioner would submit

that the petitioner shall present Ext.P5 gift deed before the 3 rd

respondent Sub Registrar, as provided under Section 80 of the

Registration Act.

9. Having considered the pleadings and materials on

record and also the submissions made by the learned counsel on

both sides, this writ petition is disposed of, leaving open the legal WP(C)No.6306 of 2021

and factual contentions raised by the petitioner, with the

following directions;

(i) Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall present Ext.P5 gift deed before the 3rd respondent Sub Registrar for registration, after complying with the requirements under Section 80 of the Registration Act.

(ii) On such presentation of Ext.P5 gift deed, the 3 rd respondent Sub Registrar shall pass an appropriate order, in exercise of his powers under sub-section (3) of Section 45A of the Kerala Stamp Act, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of two weeks from the date of presentation of that document.

(iii) In case the petitioner is feeling aggrieved by the said order passed by the 3 rd respondent, he has to avail the statutory remedy of appeal as provided under sub-section (4) of Section 45A of the Kerala Stamp Act.

Sd/-

ANIL K. NARENDRAN JUDGE

yd WP(C)No.6306 of 2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF PARTITION DEED BEARING NO.3167/2018 OF THE S.R.O., ERNAKULAM DATED 10.08.2018.

EXHIBIT P2 TRUE COPY OF CORRECTION DEED BEARING NO.103/2019 OF THE S.R.O., ERNAKULAM DATED 14.01.2019.

EXHIBIT P3 TRUE COPY OF THE BASIC TAX PAID RECEIPT IN RESPECT OF THE PROPERTY COVERED BY EXHIBIT P1 AND P2 DATED 08.09.2020.

EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX PAID RECEIPT IN RESPECT OF THE PROPERTY COVERED BY EXHIBIT P1 AND P2 DATED 04.08.2018.

EXHIBIT P5 TRUE COPY OF THE UNREGISTERED GIFT DEED PRODUCED BY THE PETITIONER BEFORE THE 3RD RESPONDENT FOR REGISTRATION DATED 09.12.2020.

EXHIBIT P6 TRUE COPY OF THE ACKNOWLEDGMENT RECEIVED WHILE TAKING ONLINE TOKEN REGISTRATION FOR EXHIBIT P5 GIFT DEED.

EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 15.12.2020.

EXHIBIT P8 TRUE COPY OF THE ROR CERTIFICATE ISSUED IN RESPECT OF THE PROPERTY COVERED BY EXHIBIT P1 AND P2 DATED 08.10.2020.

EXHIBIT P9 TRUE COPY OF THE FAIR VALUE NOTIFICATION PUBLISHED BY THE GOVERNMENT IN RESPECT OF THE PROPERTIES COMPRISED IN SURVEY NO.702/2 OF ERNAKULAM VILLAGE.

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A. TO JUDGE