Santhosh M.J vs State Of Kerala
2024 Latest Caselaw 28280 Ker

Kerala High Court

Santhosh M.J vs State Of Kerala on 25 September, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

WP(C) No.37783/2023
                                   :1:



                                                       2024:KER:71488
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

    WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946

                        WP(C) NO. 37783 OF 2023

PETITIONER:

             SANTHOSH M.J.,AGED 56 YEARS
             S/O. JAYAPALAN, MANIYALIL HOUSE, MATTOOR P.O., KALADY
             KARA, KALADY VILLAGE, ALUVA TALUK, ERNAKULAM DISTRICT.,
             PIN - 683574

             BY ADVS. S.RANJIT (K/250/1999)
             GOKUL DAS V.V.H.
             ABHILASH BHASKAR
             BINU JOHN


RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY PRINCIPAL SECRETARY, REVENUE DEPARTMENT,
             GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN -
             695001

     2       DISTRICT COLLECTOR
             COLLECTORATE, KAKKANAD, ERNAKULAM, PIN - 682030

     3       DISTRICT REGISTRAR (GENERAL)
             KPCC JUNCTION, ERNAKULAM., PIN - 682011

     4       SUB REGISTRAR
             SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM, KALADY ALUVA
             ROAD, SREEMOOLANAGARAM P.O., ERNAKULAM., PIN - 683580


OTHER PRESENT:

             DEEPA V., GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALL HEARD           ON
25.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.37783/2023
                                         :2:



                                                                    2024:KER:71488
                                     JUDGMENT

The petitioner challenges Ext.P6 revenue recovery notice issued

pursuant to Ext.P11 final order passed under Section 45B of the Kerala

Stamp Act, 1959 (for short, the Act).

2. I have heard Sri.S.Ranjit, the learned counsel appearing

for the petitioner and Smt.Deepa V., the learned Government Pleader.

3. The petitioner purchased a property having an extent of

18.55 Ares situated in Re.Sy.No.74/1/2 in Block No.27 of Mattoor Village

in Aluva Taluk, Ernakulam District as per Ext.P1 sale deed dated

22/10/2007. The consideration set forth in the document was `1,20,000/-.

It appears that proceedings were initiated against the petitioner under

Section 45B of the Act for undervaluation of stamp duty. According to the

petitioner, for the first time, on 5/6/2023, he received Ext.P6 revenue

recovery notice issued by the 4 th respondent stating that revenue

recovery proceedings will be resorted against him if he fails to pay an

amount of `1,00,500/- towards deficit stamp duty as well as an amount

of `20,100/- towards the deficit registration fee on account of

undervaluation of stamp duty in respect of Ext.P1 sale deed. It is alleged

that even though in Ext.P6 notice it is stated that a provisional order and

a final order had been passed, no such orders were served to him.

4. The learned counsel for the petitioner submitted that

the petitioner was not served with any statutory notices whatsoever

2024:KER:71488 under the Act or Kerala Stamp (Prevention of Undervaluation of

Instruments) Rules, 1968 (for short, the Rules) and thus the entire

proceedings under Section 45B of the Act and the Rules is vitiated by

gross illegality and cannot be sustained. The copies of the Form II notice,

provisional order and final order have been produced by the petitioner as

Exts.P9, P10 and P11 respectively. The counsel further submitted that

Exts.P9 or P10 does not state on what basis the 3 rd respondent had

arrived at the conclusion that the amount of consideration shown in

Ext.P1 is not truly set forth therein. The counsel further submitted that

Ext.P9 Form II notice was issued on 8/8/2015 whereas Ext.P1 was

executed on 22/10/2007 and hence the entire proceedings is barred by

time. On the other hand, the learned Government Pleader submitted that

Ext.P11 was passed after complying with all the statutory formalities.

5. As stated already, the petitioner has a specific case that

prior to Ext.P6, no notice or order under the Act or the Rules were served

to him. However, in the counter affidavit filed by the 3 rd respondent, it is

contended that Form II notice as per Rule 4(1A) of the Rules was issued

to the petitioner on 8/8/2015, but there was no response from him.

Thereafter, provisional order and final order were passed in accordance

with law after giving notice and opportunity of hearing to the petitioner

and served to him. However, the respondents could not produce any

documents to show the service of Form II notice, provisional order or final

2024:KER:71488 order to the petitioner. The learned Government Pleader has produced

the copies of the file relating to the proceedings initiated against the

petitioner. It would show that the Sub Registrar reported the documents

for undervaluation to the District Registrar in 2007 itself. It is also seen

from the records that based on the compounding scheme GO(P)

No.57/2009/PUV set by the Government on 27/3/2009, the office of the

3rd respondent sent a notice dated 18/10/2016 giving an option to the

petitioner to compound by paying `2,000/- only as deficit stamp duty.

The said copy of the notice has been produced as Ext.R3(b). It is true

that even though Sub Registrar reported the undervaluation to the

District Registrar in 2007 itself, the District Registrar issued Form II

notice only in the year 2015. But it must be noted that no limitation is

provided for initiating proceedings under Section 45B of the Act for

undervaluation of the stamp duty. The learned counsel for the petitioner

relying on the decision of the Supreme Court in Securities and Exchange

Board of India v. Sunil Krishna Khaitan and Others (2022 KHC 6685)

submitted that even though no limitation is provided, the power under

Section 45B of the Act ought to have been exercised within a reasonable

time. It must be noted that even though there is delay, there is nothing

on record to suggest that any prejudice has been caused to the

petitioner due to the said delay. On account of the delay alone, it cannot

be said that the entire proceedings initiated against the petitioner for

2024:KER:71488 undervaluation of stamp duty is vitiated. However, as rightly argued by

the learned counsel for the petitioner, there is no evidence to show that

the petitioner was served with any notice before passing provisional or

final order. There is also no evidence to show that the petitioner was

served with the copies of the provisional order and the final order. In

these circumstances, I am of the view that an opportunity has to be

given to the petitioner to file objection to Ext.P9 Form II notice.

For the reasons stated above, this writ petition is disposed of as

follows:

(i) The petitioner shall file objection to Ext.P9 Form II

notice within twenty one days from the date of receipt of a copy of this

judgment.

(ii) The petitioner is free to produce documents or evidence

in support of his contentions.

(iii) After considering the objection of the petitioner and

after examining the records and evidence, the 2 nd respondent shall pass

a fresh provisional order, if found necessary, under Section 45B of the

Act r/w Rule 6 of the Rules and serve the copy of the same to the

petitioner. Thereafter, the petitioner can lodge the objection to the said

provisional order. The 2nd respondent thereafter shall pass final order

determining the value of consideration, if any, under Rule 7 of the Rules.

(iv) If the petitioner is aggrieved by the final order, he is

2024:KER:71488 entitled to challenge the same before the District Court.

(v) Ext.P6 shall be kept in abeyance till the final order is

passed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp

2024:KER:71488 APPENDIX OF WP(C) 37783/2023

PETITIONER EXHIBITS

Exhibit-P1 TRUE COPY OF THE SALE DEED DATED 22.10.2007 BEARING NO. 4667/2007 OF THE SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM.

Exhibit-P2 TRUE COPY OF THE SALE DEED DATED 22.10.2007 BEARING NO. 4666/2007 OF THE SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM.

Exhibit-P3 TRUE COPY OF THE SALE DEED DATED 10.08.2007 BEARING NO. 3481/2007 OF THE SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM.

Exhibit-P4 TRUE COPY OF THE SALE DEED DATED 14.08.2007 BEARING NO. 3547/2007 OF THE SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM.

Exhibit-P5 TRUE COPY OF THE SALE DEED DATED 28.12.2007 BEARING NO. 5934/2007 OF THE SUB REGISTRAR'S OFFICE, SREEMOOLANAGARAM.

Exhibit-P6 TRUE COPY OF THE DEMAND NOTICE DATED 05.06.2023 BEARING NO. PUV4667/2007SMN ISSUED BY THE 4TH RESPONDENT.

Exhibit-P7 TRUE COPY OF THE APPLICATION DATED 05.07.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

Exhibit-P8 TRUE COPY OF THE FORM IA STATEMENT DATED 22.10.2007 SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT.

Exhibit-P9 TRUE COPY OF THE FORM II NOTICE DATED 08.08.2015 ISSUED BY THE 3RD RESPONDENT.

Exhibit-P10 TRUE COPY OF THE PROVISIONAL ORDER DATED 03.12.2018 BEARING NO.

PUV/4667/07/SMN/ERNAKULAM PASSED BY THE 3RD RESPONDENT.

Exhibit-P11 TRUE COPY OF THE FINAL ORDER DATED 28.12.2018 BEARING NO. PUV/4667/2007/SMN/ERNAKULAM

2024:KER:71488 PASSED BY THE 3RD RESPONDENT.

Exhibit-P12 TRUE COPY OF THE EXTRACT OF THE RELEVANT PAGE OF DISPATCH REGISTER SHOWING DISPATCH TO THE PETITIONER ON 14.06.2023.

RESPONDENT EXHIBITS

Exhibit R3(a) TRUE COPY OF THE FORM II NOTICE DATED 08.08.2015 ISSUED TO THE PETITIONER

Exhibit R3(b) TRUE COPY OF THE NOTICE DATED 18.10.2016 ISSUED TO THE PETITIONER