George Joseph vs State Of Kerala
2021 Latest Caselaw 21048 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                       WP(C) NO. 13463 OF 2021
PETITIONER:

          GEORGE JOSEPH, AGED 54 YEARS,
          S/O.JOSEPH, PARUKANNIL HOUSE, KURUMPANADOM,
          MAMMOOD P.O, CHANGANACHERRY, KOTTAYAM DISTRICT-686536,
          REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABRAHAM
          JOSEPH, AGED 61, S/O.JOSEPH, PARUKANNIL HOUSE,
          KURUMPANADOM, MAMMOOD P.O, CHANGANACHERRY,
          KOTTAYAM DISTRICT -686 536.

          BY ADV.SRI.SANIL JOSE



RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
          REGISTRATION DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM-695 001.

    2     LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING,
          MUSEUM, THIRUVANANTHAPURAM-695 033.

    3     DISTRICT REGISTRAR (GENERAL), KOTTAYAM,
          DISTRICT REGISTRAR OFFICE, COLLECTORATE,
          KOTTAYAM -686 002.

    4     SUB REGISTRAR, THENGANA, SUB REGISTRAR OFFICE,
          THENGANA, CHANGANACHERRY, KOTTAYAM DISTRICT -686 536.

          BY ADV. SMT.K.AMMINIKUTTY - SR GP



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 13463 OF 2021
                                  -2-

                              JUDGMENT

The petitioner submits that he presented

Ext.P3 document, settling certain extents of

property in favour of his nephew, under a

misconception that they would come within the

ambit of 'family', as defined under the Kerala

Stamp Act ('the Act', for short). He says that,

however, when it was brought to his notice that

the relationship between him and the nephew would

not be eligible for the benefit of the reduced

stamp duty, he requested Ext.P3 document to be

returned; but that it was refused and Exts.P8 and

P9 proceedings were issued, impounding the said

document and directing him to remit the stamp duty

and other miscellaneous charges.

2. The petitioner says that action of the 3rd

respondent - District Registrar and the 2nd

respondent - Land Revenue Commissioner, in having WP(C) NO. 13463 OF 2021

issued Exts.P8 and P9 respectively, is egregiously

improper because when Ext.P3 document was sought

to be withdrawn by him without being registered,

there was no question of the same being impounded;

and that, in fact, he is also entitled to refund

of the amount of Rs.11,920/-, which he had

remitted as the registration fee, but has remained

unutilized because the document had not been

registered. The petitioner, therefore, prays that

Exts.P8 and P9 be set aside and Ext.P3 document be

directed to be returned to him, along with

Rs.11,920/-, being the charges remitted towards

registration fee.

3. The afore submissions of Sri.Sanil Jose -

learned counsel for the petitioner, were refuted

by the learned Senior Government Pleader -

Smt.K.Amminukutty, arguing that, going by the

provisions of the Act, in particular Section

51A(a) thereof, the nephew of the petitioner would WP(C) NO. 13463 OF 2021

not come within the purlieus of the concept of

'family'; and therefore, that Ext.P3 document

ought to have been presented with full ad valorem

duty. She thus submitted that the 3rd respondent -

District Registrar, was fully justified in having

issued Ext.P8, as also for the 2 nd respondent -

Land Revenue Commissioner, thereafter, in issuing

Ext.P9 confirming it. She, therefore, prayed that

this writ petition be dismissed.

4. When I examine Exts.P8 and P9, it is

indubitable that the competent Authorities have

found that the petitioner ought to have presented

Ext.P3 document with the full ad valorem stamp

duty applicable, because his nephew will not come

within the ambit of 'family', as defined under

Section 51A(a) of the Act.

5. The crucial question, however, is whether

the petitioner could have then withdrawn Ext.P3

without registration and whether the competent WP(C) NO. 13463 OF 2021

Authority could have then insisted on it being

impounded, without an opportunity being given to

rectify the stamp duty paid by him. Though this

has not been considered either in Ext.P8 or

Ext.P9, I do not propose to speak affirmatively

on it, because I am of the firm view that these

aspects ought to be reconsidered by the 3rd

respondent - District Registrar, particularly as

to if the document ought to have been impounded or

could have been returned for rectification of the

stamp duty, if the petitioner wanted it to be

registered nevertheless. Needless to add, the

question of return of the registration charges is

also an aspect that the said Authority will have

to consider, especially when it is conceded that

it was not utilized for the purpose of

registration of Ext.P3 document.

6. In the afore circumstances, in order to

pave way for a fresh consideration of all the WP(C) NO. 13463 OF 2021

relevant aspects by the 3rd respondent, I set aside

Exts.P8 and P9; with a consequential direction to

the said respondent to reconsider the matter,

after affording an opportunity of being heard to

the petitioner and after adverting to all the

precedents which he may cite in substantiation of

his claim; thus culminating in an appropriate

order thereon, as expeditiously as is possible,

but not later than one month from the date of

receipt of a copy of this judgment.

I make it clear that I have not considered the

contentions of the petitioner on its merits and

that all of them are left open to be decided

appropriately by the 3rd respondent, while the

afore exercise is completed.

At this time, Sri.Sanil Jose - learned counsel

for the petitioner, asserted that going by the

amendment to the Act, a "nephew" would also come

within the ambit of 'family'; and he prayed that WP(C) NO. 13463 OF 2021

this also be directed to be considered by the 3rd

respondent. Certainly, if this contention is

impelled by the petitioner, then the said

Authority will deal with it and answer in the

resultant order appropriately; and if he finds in

favour of the petitioner, then necessary steps for

registration of Ext.P3 in terms of law will also

be taken forward.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 13463 OF 2021

APPENDIX OF WP(C) 13463/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE PHOTOCOPY OF THE ACKNOWLEDGEMENT CUM TOKEN REGISTRATION WITH TOKEN NO. T2260846 DATED 26.03.2018 TAKEN IN THE NAME OF ABRAHAM JOSEPH ISSUED BY THE REGISTRATION DEPARTMENT.

EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE PETITIONER'S PASSPORT SHOWING HIS ENTRY AND EXIT IN THE YEAR 2018.

EXHIBIT P3 TRUE COPY OF THE DOCUMENT PRESENTED BY THE PETITIONER WRONGLY DATED AS 26.3.2018 BEFORE THE 4TH RESPONDENT REGISTRAR.

EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGEMENT CUM TOKEN REGISTRATION WITH TOKEN NO.T2260846 DATED 3.5.2018 TAKEN IN THE NAME OF THE PETITIONER ISSUED BY THE REGISTRATION DEPARTMENT.

EXHIBIT P5 TRUE COPY OF THE E-CHALAN SHOWING DEFACEMENT DATED 3.5.2018.

EXHIBIT P6 TRUE COPY OF THE STAMP PAPER NO. U 093755 FOR RS. 1000/- DATED 24.4.2018.

EXHIBIT P7 TRUE COPY OF THE STAMP PAPER NO. U 255474 FOR 500/- DATED 24.4.2018

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 30.06.2018 PASSED BY THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 31.1.2020 PASSED BY THE 2ND RESPONDENT.

WP(C) NO. 13463 OF 2021

EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 10.10.2020 SUBMITTED BEFORE THE 4TH RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 9.11.2020 ISSUED BY THE 4TH RESPONDENT.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE