Kerala High Court
M. Retidevi vs State Of Kerala on 29 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 21053 OF 2023
PETITIONER:
M. RETIDEVI , AGED 72 YEARS
W/O. A.V. SATHYANATH, MANIKKATH KIZHAKKETHIL HOUSE,
PERUMANOOR DESOM, KOCHI (P.O.), NOW RESIDING VISWABHAVAN
HOUSE, PERUMANOOR DESOM, M.G. ROAD P.O., ERNAKULAM VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT., PIN - 682016
BY ADVS.
S.RANJIT (K/250/1999)
GOKUL DAS V.V.H.
ABHILASH BHASKAR
BINU JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.,
PIN - 695001
2 INSPECTOR GENERAL OF REGISTRATION
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR, THIRUVANANTHAPURAM., PIN - 695035
3 SUB REGISTRAR
SUB REGISTRAR'S OFFICE, ERNAKULAM,
ERNAKULAM DISTRICT., PIN - 682011
SR.GP JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.02.2024,
ALONG WITH WP(C).21167/2023 AND 21073/2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P (C) Nos.21053, 21073 & 21167 of 2023
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 21073 OF 2023
PETITIONER:
M. RAJENDRAN,AGED 65 YEARS
S/O. KRISHNANKUTTY MENON, MANIKKATH KIZHAKKETHIL
HOUSE, PERUMANOOR DESOM, KOCHI (P.O.), NOW RESIDING AT
KANISSERIL HOUSE, DOOR NO. 46/920, KOCHI MUNICIPAL
CORPORATION, VADUTHALA DESOM,
VADUTHALA P.O., CHERANELLOOR VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.,
PIN - 682023
BY ADVS.
S.RANJIT (K/250/1999)
GOKUL DAS V.V.H.
ABHILASH BHASKAR
BINU JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.,
PIN - 695001
2 INSPECTOR GENERAL OF REGISTRATION
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR, THIRUVANANTHAPURAM., PIN - 695035
3 SUB REGISTRAR
SUB REGISTRAR'S OFFICE, ERNAKULAM,
ERNAKULAM DISTRICT., PIN - 682011
SR.GP JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.02.2024, ALONG WITH WP(C).21167/2023 AND 21053/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) Nos.21053, 21073 & 21167 of 2023
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 21167 OF 2023
PETITIONER:
SURENDRAN M.,AGED 68 YEARS
S/O. KRISHNANKUTTY MENON, MANIKKATH KIZHAKKETHIL
HOUSE, PERUMANOOR DESOM, KOCHI (P.O.), NOW RESIDING AT
CHERUPILLIL HOUSE, DOOR NO. 37/3826, KOCHI MUNICIPAL
CORPORATION, KALOOR DESOM, KALOOR P.O., ELAMKULAM
VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT., PIN - 682017
BY ADVS.
S.RANJIT (K/250/1999)
GOKUL DAS V.V.H.
ABHILASH BHASKAR
BINU JOHN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.,
PIN - 695001
2 INSPECTOR GENERAL OF REGISTRATION
OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION,
VANCHIYOOR, THIRUVANANTHAPURAM., PIN - 695035
3 SUB REGISTRAR
SUB REGISTRAR'S OFFICE, ERNAKULAM,
ERNAKULAM DISTRICT., PIN - 682011
SR.GP JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29.02.2024, ALONG WITH WP(C).21053/2023, 21073/2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) Nos.21053, 21073 & 21167 of 2023
4
VIJU ABRAHAM, J.
.................................................................
W.P (C) Nos.21053, 21073 & 21167 of 2023
.................................................................
Dated this the 29th day of February, 2024
JUDGMENT
Since common issues are raised in these writ petitions, all are
heard together and disposed of by a common judgment. W.P.(C)
No.21053 of 2023 is treated as the leading case and the facts of the said
case will be adverted to in this judgment. In all the writ petitions Ext.P3
issued by the 3rd respondent is under challenge whereby the power of
attorney which was presented for registration has been returned back
directing the petitioners to pay the stamp value and the registration fee as
provided under Article 44(g) of Schedule to the Kerala Stamp Act, 1959.
2. Petitioner in W.P.(C) No.21053 of 2023 is the absolute owner in
possession and enjoyment of an immovable property admeasuring 2.57
Ares comprised in survey no.1366/1-6 in Ernakulam Village, obtained as
per partition deed bearing no.3555/1985 of SRO, Ernakulam. Since the
petitioner was unable to personally manage and attend the affairs of her
properties, she wanted to appoint her friend Mr. Shaiju Karothukuzhiyil as
her lawful attorney to act for and on her behalf. Thereupon Ext.P1 General
Power of Attorney was executed. Petitioner contends that as per Ext.P1,
she intended to give the aforesaid Mr. Shaiju Karothukuzhiyil all
W.P (C) Nos.21053, 21073 & 21167 of 2023
necessary powers enabling him to manage, supervise, decide or control
all affairs for and on behalf of the petitioner and to act in her best interest
in respect of scheduled property or any part thereof and other
consequential acts as described therein. Since Ext.P1 deed is a document
liable to be registered, necessary application was submitted online.
Petitioner has prepared Ext.P1 deed on a stamp paper worth stamp duty
of Rs.600/- under Article 44(h) of Schedule of the Kerala Stamp Act.
Petitioner has also remitted Rs.300/- as registration fee. When Ext.P1
deed was presented for registration, the 3rd respondent was reluctant to
register the same and returned it along with Ext.P3 letter wherein an
objection was noted that there is a recital in Ext.P1 deed that "power is
given to manage, supervise, decide or control all affairs for and on behalf
in my best interest in respect of scheduled property or any part thereof"
and the clause which states that the 'development and construction in the
property' and that the holder of power of attorney may be a builder as
Ext.P1 deed contains the words 'to make sign and submit application
before any competent authority' and 'to appear for me in offices controlled
under RERA Act' and on the said basis the 3 rd respondent proceeded to
state that Ext.P1 document falls under the category of documents liable to
be imposed with a stamp duty as stipulated in Article 44(g) of Schedule to
the Kerala Stamp Act, 1959. It is aggrieved by the same that the present
writ petition has been filed. Petitioner contends that the 3rd respondent is
not expected to interpret the recital in Ext.P1 deed according to its whims
W.P (C) Nos.21053, 21073 & 21167 of 2023
and fancies and what has been given as per Ext.P1 is the power to
manage her property and therefore the finding in Ext.P3 that the petitioner
is liable to pay stamp value as fixed in Article 44(g) of Schedule to the
Kerala Stamp Act, 1959 is without any basis.
3. Similar contentions were raised in W.P.(C) No.21073 of 2023 also
and in W.P.(C) No.21167 of 2023.
4. The 3rd respondent has filed a counter affidavit wherein it is stated
based on Article 44(g) of the Schedule of the Kerala Stamp Act, 1959 that
the recital in Ext.P1 would show that the power is given to a promoter or a
developer to make construction on or development in any immovable
property situated in Kerala. Since the petitioner herself admits that she
intends to develop the property and entrusts to an attorney to carry out the
work related to RERA, etc., Ext.P1 deed will come under Article 44(g) of
Schedule to the Stamp Act and in the said circumstance that Ext.P3 has
been issued. It is further stated therein that the Sub Registrar is not an
adjudicating authority and the petitioner has an opportunity to approach
the District Collector (here District Registrar) for adjudication of proper
stamp duty under Section 31 of the Stamp Act.
5. Heard the learned counsel for the petitioners and the learned
Government pleader.
6. Petitioners contend that Ext.P1 power of attorney is executed only
for the purpose of managing the affairs relating to the property mentioned
therein, whereas the 3rd respondent is taking a stand that the recital in
W.P (C) Nos.21053, 21073 & 21167 of 2023
Ext.P1 would show that the power of attorney holder is granted power to
carry out work relating RERA and RERA provides assistance and legal
compliance to promoters and developers for construction of
flats/apartments.
7. Section 31 of the Kerala Stamp Act, 1959 reads as follows:
"31. Adjudication as to proper Stamp:- (1) When any instrument,
whether executed or not and whether previously stamped or not is
brought to the Collector, and the person bringing it applies to have the
opinion of that officer as to the duty, if any, with which it is chargeable,
and pays a fee of fifty rupees the Collector shall determine the duty, if
any, with which, in his judgment, the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with an
abstract of the instrument, and also with such affidavit or other
evidence as he may deem necessary to prove that all the facts and
circumstances affecting the chargeability of the instrument with duly, or
the amount of the duty with which it is chargeable, are fully and truly
set forth therein, and may refuse to proceed upon any such application,
until such abstract and evidence have been furnished accordingly:
Provided that --
(a) no evidence furnished in pursuance of this section shall be
used against any person in any civil proceeding except in any enquiry
as to the duty with which the instrument to which it relates is
chargeable; and
(b) every person by whom any such evidence is furnished shall, on
payment of full duty with which the instrument to which it relates, is
chargeable, be relieved from any penalty which he may have incurred
under this Act by reason of the omission to state truly in such instrument
any of the facts or circumstances aforesaid."
So, going by Section 31 of the Stamp Act, when an adjudication is
W.P (C) Nos.21053, 21073 & 21167 of 2023
required on the proper stamp duty payable in respect of a particular
instrument, the Collector is the proper authority to adjudicate on the same.
In view of the mandate of Section 31, wherein a mechanism has been
provided to approach the Collector for determination of duty, if any, for
which instrument is chargeable, I am of the view that the petitioners have
to approach the Collector as provided under Section 31 of the Kerala
Stamp Act, 1959. Therefore, the petitioners shall make necessary
application before the District Registrar concerned along with the
instrument for adjudication regarding the duty chargeable on the said
instrument within a period of two weeks from the date of receipt of a copy
of the judgment. If such an application is filed along with the instrument,
the District Registrar concerned shall consider the said application and
adjudicate as to the proper stamp duty required for registration of Ext.P1
deed. A decision in this regard shall be taken without much delay, at any
rate, within an outer limit of three weeks from the date of submission of a
request in this regard and after affording an opportunity of being heard to
the petitioners.
These writ petitions are disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
cks
W.P (C) Nos.21053, 21073 & 21167 of 2023
APPENDIX OF WP(C) 21053/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
THE PETITIONER.
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPT
FOR ONLINE TOKEN REGISTRATION ISSUED TO
THE PETITIONER.
Exhibit-P3 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER.
Exhibit-P4 TRUE COPY OF THE COPY OF THE RELEVANT
PAGES OF THE GOVERNMENT ORDER DATED
28.03.2023 BEARING NO. G.O. NO.
15(1)/LEG.A2/2023/LAW ISSUED BY THE 1ST
RESPONDENT.
W.P (C) Nos.21053, 21073 & 21167 of 2023
APPENDIX OF WP(C) 21073/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
THE PETITIONER.
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPT
FOR ONLINE TOKEN REGISTRATION ISSUED TO
THE PETITIONER.
Exhibit-P3 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER.
Exhibit-P4 TRUE COPY OF THE COPY OF THE RELEVANT
PAGES OF THE GOVERNMENT ORDER DATED
28.03.2023 BEARING NO. G.O. NO.
15(1)/LEG.A2/2023/LAW ISSUED BY THE 1ST
RESPONDENT.
W.P (C) Nos.21053, 21073 & 21167 of 2023
APPENDIX OF WP(C) 21167/2023
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
THE PETITIONER.
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPT
FOR ONLINE TOKEN REGISTRATION ISSUED TO
THE PETITIONER.
Exhibit-P3 TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER.
Exhibit-P4 TRUE COPY OF THE RELEVANT PAGES OF THE
GOVERNMENT ORDER DATED 28.03.2023
BEARING NO. G.O. NO.
15(1)/LEG.A2/2023/LAW ISSUED BY THE 1ST
RESPONDENT.
