Krishnakumar G vs The State Of Kerala
2021 Latest Caselaw 21670 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943

                             WP(C) NO. 32363 OF 2019

PETITIONER:

               KRISHNAKUMAR G.,
               AGED 53 YEARS
               S/O.LATE GOPALAN, THACHATTU VEETTIL, NADUVILA VILLAGE,
               PRESENTLY RESIDING AT AMMA KRIPA, MURIYAMKULANGARA, VAIKOM,
               PIN-686141.

               BY ADVS.
               LAL K.JOSEPH
               A.A.ZIYAD RAHMAN



RESPONDENTS:

     1         THE STATE OF KERALA
               REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
               DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM-695004.

     2         INSPECTOR GENERAL,
               DEPARTMENT OF REGISTRATION, VANCHIYUR P.O., THIRUVANANTHAPURAM,
               PIN-695035.

     3         DISTRICT REGISTRAR GENERAL,
               KOTTAYAM H.O., KOTTAYAM, PIN-686001.

     4         THE SUB REGISTRAR,
               OFFICE OF THE SUB REGISTRAR VAIKOM, VECHOOR RD., THALAYAZHAM,
               KERALA-686607.


OTHER PRESENT:

               BY SRI.RAJEEV JYOTHISH GEORGE - SR.GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 32363 OF 2019

                                      2




                              JUDGMENT

The petitioner has approached this Court impugning Ext.P3

proceedings of the 3rd respondent - District Registrar General and the

consequential Ext.P4 proceedings, saying that the former among

them has been issued without adverting to the specific provisions of

Section 54(b) of the Kerala Stamp Act (hereinafter referred to as 'the

Act' for short).

2. The petitioner asserts that Ext.P1 Deed of Lease was

entered into by him with a certain Sri.Rajesh, but that he expressed

his desire to terminate the same, which led to the parties executing

Ext.P2 'Surrender of lease' document. He says that, however, when he

presented Ext.P2 for registration, the 4 th respondent - Sub Registrar

refused and thereafter, took steps for determination of the stamp duty

on it. He says that it is in such manner that, Ext.P3 has been issued

by the 3rd respondent - District Registrar General; and asserts that the

conclusions therein are faulty, because what has been found to be

attracted is Section 48(b) of the Act, which relates to 'release'; while

the proper Section ought to have been Section 54(b) thereof. The

petitioner, therefore, prays that Ext.P3 be set aside and consequently,

that Ext.P4 be declared to be illegal.

WP(C) NO. 32363 OF 2019

3. The learned Government Pleader - Sri.Rajeev Jyothish

George, controverted the afore submissions of Sri.Lal K. Joseph,

learned counsel for the petitioner, saying that, as is evident from

Ext.P3, the 3rd respondent has acted in terms of an order of the Land

Revenue Board dated 26.08.2011, which mandates that all

'termination of lease' shall be treated as a 'release'. He contended

that, therefore, as long as the petitioner does not challenge the afore

order of the Land Revenue Board, this writ petition is not

maintainable and thus prayed that it be dismissed.

4. I have evaluated the afore submissions and have also gone

through the materials on record.

5. Though I do not propose to go into the merits of the rival

contentions at this stage, since I am of the view that the matter may

require a re-look by the competent Authority, I must record that there

is a clear distinction between Sections 48 and 54(b) of the Act.

6. It is the specific contention of the petitioner that while

Section 48 of the Act relates to 'release', Section 54(b) is a general

provision and therefore, that the maxim generalia specialibus non

derogant would be attracted.

7. However, the 3rd respondent does not appear to have

considered any of these contentions in Ext.P3, but has chosen to WP(C) NO. 32363 OF 2019

proceed to issue the same based on the aforementioned order of the

Land Revenue Board. Since the said order has not been produced on

record by any of the parties, I am not in a position to understand in

what context it was issued and whether it relates to a release of lease

in the manner of Ext.P1, or if is it under the provisions of the Kerala

Land Reforms Act.

8. In the afore circumstances, I am certainly of the view that

the 3rd respondent - District Registrar General must reconsider the

matter, adverting to the subtle differences of Sections 48 and 54(b)

of the Act and after assessing the contentions of the petitioner that

Ext.P2 can only be construed as a 'lease surrender' and not as a

'release'.

Resultantly, this writ petition is allowed and Ext.P3 and the

consequential Ext.P4 are quashed; with a resultant direction to the 3 rd

respondent - District Registrar General, to rehear the petitioner and

to examine his afore contentions; thus culminating in a fresh order, as

expeditiously as is possible but not later than two months from the

date of receipt of a copy of this judgment.

SD/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 32363 OF 2019

APPENDIX OF WP(C) 32363/2019

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE DEED OF LEASE NO.265/2014 DATED 27.1.2014.

EXHIBIT P2 TRUE COPY OF THE SURRENDER DEED DATED 27.9.2016 SUBMITTED BEFORE THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.A2/2318/16 KOTTAYAM DATED 26.10.2016 OF THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION NO.60A/18 DATED 18.3.2019.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 6.12.2017 IN THE W.P.(C).32257/2017.

RESPONDENT'S EXHIBITS:

ANNEXURE R3(A) A TRUE PHOTOCOPY OF THE REQUEST LETTER OF THE PETITIONER TO 4TH RESPONDENT.