Kerala High Court

The Sub Registrar vs M/S. Xavier Institute Of Management And ... on 6 March, 2024

Author: V.G.Arun

Bench: V.G.Arun

W.A.No.800 of 2016                   1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI

                                     &

                     THE HONOURABLE MR.JUSTICE V.G.ARUN

     WEDNESDAY, THE 6TH DAY OF MARCH     2024 / 16TH PHALGUNA, 1945

                             WA NO. 800 OF 2016

   AGAINST THE ORDER/JUDGMENT DATED 30.10.2015 IN WPC NO.30837 OF
                    2012 OF HIGH COURT OF KERALA

APPELLANTS/respondents 1,2,3 & 5 in W.P.(C):

      1        THE SUB REGISTRAR
               SUB REGISTRAR'S OFFICE, EDAPPALLY,ERNAKULAM DISTRICT -
               682 024.

      2        THE DISTRICT REGISTRAR
               ERNAKULAM - 682 011.

      3        THE INSPECTOR GENERAL OF REGISTRATION
               THIRUVANANTHAPURAM - 695001.

      4        STATE OF KERALA
               REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT
               SECRETARIAT,THIRUVANANTHAPURAM-695 001.

               BY ADV GOVERNMENT PLEADER

RESPONDENTS/PETITIONER & 4TH RESPONDENT IN W.P.(C):

      1        M/S. XAVIER INSTITUTE OF MANAGEMENT AND
               ENTREPRENEURSHIP
               ELECTRONICS CITY, PHASE-II, HOSUR ROAD, BANGALORE,
               REPRESENTED BY ITS SECRETARYC.J.KUNCHERIA.

      2        KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT
               CORPORATION
               KINFRA HOUSE, T.C.NO.31/2312,
               SASTHAMANGALAM,THIRUVANANTHAPURAM -695 001.

               BY ADVS.
               JOMY GEORGE
 W.A.No.800 of 2016                2

               P.U.SHAILAJAN


OTHER PRESENT:

               SPL.GP.S.RENJITH

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.800 of 2016                        3

                               A. J. Desai, C.J.
                                        &
                                 V.G. Arun, J.
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                            W.A.No.800 of 2016
                  ---------------------------------------------
                 Dated this the 6th day of March 2024

                                    JUDGMENT

A.J. Desai, C.J.

By way of the present appeal filed under Section 5 of the Kerala

High Court Act, the first respondent i.e. State of Kerala and Officers of

the State, who are respondents Nos. 1,2,3 and 5 in the writ petition,

have challenged the judgment dated 30/10/2015 by which the learned

Single Judge, while accepting the petition filed by the first respondent in

the writ appeal, directed the present appellant to register Ext.P2 lease

deed dated 10/10/2012 entered into between the respondent No.1, the

original petitioner-M/s.Xavier Institute of Management and

Entrepreneurship (XIME)- and the Kerala Industrial Infrastructure

Development Corporation, which had been denied by the State Authority

on the ground that the said lease can be registered only on payment of

registration fees under Registration Act and stamp duty under the Kerala

Stamp Act.

2. The essential facts are as follows;

The Kerala Industrial Infrastructure Development Corporation

(hereinafter referred to as 'the KINFRA') is established under the Kerala

State Industrial Infrastructure Development Act, 1993 ('the Act' for

short) with the objective of establishment of industrial areas, for the

organisation of Industrial Growth Centres in the State of Kerala and for

setting up infrastructure facilities for industries. For the purpose of

setting up infrastructure facilities for industries, the KINFRA has to enter

into lease agreements with various agencies and establishments. The

parties who enter into such agreements with the KINFRA for the purpose

of establishing Industrial Parks/Units/industrial facilities are granted

exemption from payment of registration fees as well as the stamp duty

payable on the instrument of conveyance based on Exts.P3 and P4

Government Orders dated 08/07/2004.

Under one such lease agreement (Ext.P2) executed by the KINFRA,

2 acres of land was leased out to the original petitioner for 90 years for

establishing a business school of international standards in the Hi-tech

park at Kalamassery. When the said instrument of conveyance dated

10/10/2012 was presented for registration, it was refused by the Sub

Registrar stating that the original petitioner is bound to pay registration

charge and stamp duty amounting to Rupees Twenty Nine Lakhs. On Ext.

P3 and P4 exemption orders being brought to their notice, the authorities

took the stand that establishment of a business school will not fall within

the exempted activities. Aggrieved, the writ petition came to be filed.

The writ petition was opposed by the State Authorities by filing a counter

affidavit.

3. The learned Single Judge, after considering the provisions of the

Kerala Industrial Infrastructure Development Act,1993, the terms and

conditions of the lease deed and the applicability of the orders dated

08/07/2004, allowed the writ petition by holding that the original

petitioner's case would fall under the Act. Hence, this writ appeal is filed

by the State.

4. Learned Special Government Pleader S.Renjith appearing for the

appellant submits that the learned Single Judge has committed error in

accepting the writ petition. He would submit that the lease deed entered

into between the KINFRA and the writ petitioner for a period of 90 years

for establishing a management school cannot be considered as a lease

for the purpose of establishing infrastructure facilities. By taking us

through the orders dated 08/07/2004 issued by the Government with

regard to the exemption on payment of registration fee and stamp duty,

learned Government Pleader would submit that establishment of

management school would not fall under the term 'infrastructure

facilities'. Learned Government Pleader would therefore submit that the

impugned judgment should be set aside and the writ petitioner directed

to pay registration fee as well as the stamp duty applicable to lease

deed.

5. On the other hand, learned Counsel appearing for the writ

petitioner would submit that the lease deed with KINFRA was entered

into with specific purpose of establishing and running a business school

of international standard as part of providing infrastructure facilities in

Hi-tech park at Kalamassery, since such an institution is essential for

providing appropriate education to those employees who may be working

in different industries in the Hi-tech park and surrounding areas. By

taking us through the relevant clauses of the lease deed, particularly

clauses 7 and 8, learned Counsel would submit that the intention of both

the parties i.e. the original petitioner and the KINFRA is to develop the

industrial area of Kalamassery. By taking us through Section 9(ii)(c) of

Chapter IV of the Act, learned Counsel would submit that infrastructure

development includes social infrastructure like industrial housing and

common amenity buildings for banks, post offices, hospitals, fire stations

and like. Learned Counsel would further submit that providing

educational assistance would certainly fall under the social infrastructure

and therefore, it also would fall under the two orders exempting the

payment of registration fees and stamp duty. Counsel also submitted

that the learned Single Judge committed no error in allowing the writ

petition and requested to dismiss the writ appeal.

6. Learned Counsel appearing for the KINFRA advanced arguments

in support of the original petitioner and submitted that the intention of

the KINFRA, by executing the lease deed, is to make available basic

infrastructure facilities, including educational assistance, to those

working and residing in the Hi-tech industrial area.

7. We have heard the learned Counsel appearing for the respective

parties.

8. In Ext.P2 lease deed dated 10/10/2012, it has been made clear

that establishment of business school of international standard would be

a part of infrastructure facilities. The same is extracted as under;

" WHEREAS the Lessee had applied to the Lessor for a lease of the

land described in the First Schedule hereunder written for

establishing and running a Business school of International

standard as part of infrastructure facilities in Hi-tech Park,

Kalamassery".

9. The intention of the parties is made clear through condition Nos.

7 and 8 of the lease deed, extracted herein below;

(7). The Lessee shall use the said land and the buildings

constructed thereon only for establishing and running a school for

educational purposes (Institute of Management and

Entrepreneurship Development) as part of infrastructure facilities

in Hi-tech Park, Kalamassery and shall not make any unnecessary

excavation or remove or appropriate any minerals, mineral

substances of any description, sand or clay from the said land.

(8). The Lessee shall not at any time without the previous consent

in writing of the Lessor use the said land or the building thereon or

permit the same to be used for any purpose other than that of

establishing and running a school for educational purposes

(Institute of Management and Entrepreneurship Development) as

part of infrastructure facilities in Hi-tech Park, Kalamassery."

10. In Ext.P3 order dated 8th July 2004 it is stated as follows;

SRO No.840/2004- In exercise of the powers centered by clause

(a) of sub section (1) of Section 9 of the Kerala Stamp Act, 1959

the Government of Kerala being of the opinion that it is necessary

in the public interest so to do, hereby remit the duties with which

the instruments of conveyance or lease to be executed by the

Kerala Industrial Infrastructural Development Corporation for

establishing units/ parks/ infrastructure facilities under the Kerala

Industrial Infrastructure Development Corporation or its

subsidiary or its joint venture companies and declared as such by

the State Government or the Central Government are chargeable

under the said Act."

11. In Ext.P4 order dated 8th July 2004 it is stated as follows;

"S.R.O.No. 841/2004-in exercise of the powers conferred by sub-

section (2) Section 78 of the Registration Act, 1908 (Central Act 16 of

1908), the Government of Kerala, being of opinion that it is necessary

in the public interest so to do, hereby remit the fee payable for the

registration of the instruments of conveyance or lease executed by the

Kerala Industrial Infrastructural Development Corporation for

establishing units/ parks/ infrastructure facilities under the Kerala

Industrial Infrastructure Development Corporation or its subsidiary or

its joint venture companies and declared as such by the Central

Government or the State Government are chargeable under the said

Act."

12. What this court is called upon to decide is whether

establishment of a management school in the industrial area would fall

under infrastructure facilities or not. Therefore, applicability of Section 9

(ii)(c) of the Act is also relevant and the same is extracted hereunder;

"9(ii)(c). to identify appropriate industrial sites, acquire them

and tie up the required infrastructure facilities, like power, water,

roads, communications, drainage and pollution abatement

systems, industrial sheds for small scale units, and wherever

required, social infrastructre like industrial housing and common

amenity buildings for banks, post offices, hospitals, fire stations,

and the like;"

13. A combined reading of the relevant conditions of Ext.P2 lease

deed which are extracted hereinbefore, provisions of Section 9(ii)(c) of

the Act, as well as the language used in the orders dated 8 th July 2004,

makes it clear that intention of the parties in establishing a business

school in the area is to provide social infrastructure facility in the form of

educational assistance in the Hi-tech park at Kalamassery. Therefore, in

our considered opinion Exts.P3 and P4 orders are duly applicable with

regard to the lease deed dated 10/10/2012. Hence, we are unable to

accept the arguments advanced by the learned Special Government

Pleader appearing for the State.

The writ appeal is dismissed accordingly.

Sd/-