Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 WP(C) NO. 368 OF 2024 PETITIONER: SAJITH BASHA AGED 48 YEARS S/O. KUNJUMUHAMMED, RESIDING AT HALEEMA MANSIL, THOTTAPPURA, AKATHETHARA P.O., PALAKKAD DISTRICT., PIN - 678008 BY ADVS. P.JINISH PAUL SNEHA V. RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, TRIVANDRUM., PIN - 695001 2 THE DISTRICT REGISTRAR (GENERAL) OFFICE OF THE DISTRICT REGISTRAR, CIVILSTATION, PALAKKAD., PIN - 678001 3 THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, PARALI, PALAKKAD DISTRICT., PIN - 678612 4 THE VILLAGE OFFICER MANNUR VILLAGE OFFICE, MANNUR P.O., PALAKKAD TALUK, PALAKKAD DISTRICT., PIN - 678642 BY GP - DEEPA V
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 368 of 2024 :2:
VIJU ABRAHAM , J.
=========================== WP(C) No. 368 of 2024 ============================ Dated this the 27th day of March, 2024
JUDGMENT
Petitioner has approached this Court seeking to quash Ext.P5 and for a direction to the 3rd respondent to register Ext.P3 rectification deed for accepting the minimum fee applicable for registration of the rectification deed.
2. It is averred that the petitioner is the owner in possession
of a landed property having an extent of 0.0362 hectares in Re.Sy. No.75/11 and 0.0144 hectares in the Sy.No. 75/17 and 0.0983 hectares in Re.Sy. No.75/14 of Mannur Village in Palakkad Taluk obtained as per Ext.P1 deed. When the petitioner attempted to deal with certain extent of property, he came to know that in the certificate issued by the 4th respondent dated 19.07.2023 there are certain mistakes in the survey numbers, extent of the property and in the thandaper number with respect to the property of the petitioner. Thereupon petitioner presented Ext.P2 rectification deed. Ext.P4 is the certificate issued by the Village Officer stating that there are certain defects regarding the extent of property and thandaper number. Petitioner would further submit that by the alteration now sought for as per the rectification deed, extent of the WP(C) No. 368 of 2024 :3: property has been reduced from 0.1225 hectares to 0.1489 hectares. The 3rd respondent returned the rectification deed for adjudication of stamp value and passed Ext.P5 order. It is aggrieved by the same that the petitioner has approached this Court.
3. Petitioner submits that the rectification deed was
prepared on the basis of Ext.P4 certificate issued by the Village Officer that there are mistakes in survey number, extent of the property and thandaper number with respect to the property of the petitioner. Petitioner would further contend that by the execution of the rectification deed, the extent of the property has been reduced and further that the fair value of the wrongly mentioned survey numbers and original survey numbers are one and the same, and there is no occasion for any loss to the Government in view of execution of registration of Ext.P4 rectification deed. Petitioner relies on the judgment of this Court in Vannathi Valappil Mahmood v. State of Kerala and Others [2019 (2) KHC 736] wherein paragraphs 6 and 8 reads as follows:-
“6. It has been held by this Court in a series of cases as in P.A.Jihas v. The District Registrar & Another, 2012 (3) KHC 146 : 2012 (3) KLT 194 that for correction of mistake in the sale deed even if it is with regard to flat number, the amount payable is the one applicable for rectification of deed and even if there is an extinguishable right and creation of a new right, by stating the identity of the flat, that will not alter the nature of the rectification deed. This Court has also held in the judgment dated 18.08.2008 in W.P(C)No.21715/2008 that
WP(C) No. 368 of 2024 :4: for the execution and registration of a deed of rectification to rectify the mistake, the respondent-registration official cannot demand that the party should pay additional stamp duty for sale/conveyance on the ground that what is sought to be rectified is the mistakes in the sale deed.
8. Therefore, though the legislature and the sub-ordinate
legislature has not prescribed the stamp duty rate for a deed of rectification, the rule making authority under the Registration Act has conceived of a deed of rectification as one which does not create, transfer, limit, extend, extinguish or record any right or liability, etc. and in such case, the registration fee shall be the same as the fee leviable on the original document, subject to a maximum of Rs.500/-. So the clear fall out of the provision in clause (1)(s) of Table of Registration Fee is that where the registration fee is one in relation to a sale deed and so long as the deed of rectification is one which does not create, transfer, limit, extend, extinguish or record any right or liability, then such a deed of rectification should be registered, subject to levy of registration fee, which is the same as the one on the original document, but subject to a maximum of Rs.500/-. So in a case where rectification deed is one in relation to a sale deed like Ext.P-1, then the registration fee leviable is the one applicable for registration of asale deed, but subject to a maximum of Rs.500/-. It appears that respondents 2 & 3 have read the scope and ambit of clause(1)(s) of Table of Registration Fee, after omitting the words “subject to a maximum of Rs.500” and have also read “registration fee” as “stamp duty”. The stand taken by respondents 2 & 3 in the impugned Exts.P-4, P- 6 & P-7 that the petitioner will have to pay stamp duty for two conveyances in relation to Ext.P-2 sale deed is certainly illegal and ultra vires. However, as observed by this Court hereinabove, the stand of respondents 2 & 3 in Ext.P-6 that
WP(C) No. 368 of 2024 :5:
what is involved in Ext.P-2 deed is not merely a component of sale/conveyance, but also a component of rectification of the abovesaid mistaken previous entries is correct. So certainly they are entitled to charge an additional fee of Rs.500/- in relation to the registration of Ext.P-2 deed. In that view of the matter, it is ordered that the impugned proceedings have no legs to stand and accordingly, Exts.P-4, P-6 & P-7 will stand set aside. It is not in dispute that the petitioner has already paid the applicable stamp duty and registration fee in respect of the sale transaction covered by Ext.P-2. However, it is made clear that respondents 2 & 3 could insist that the petitioner should pay an additional registration fee of Rs.500/-, in view of the abovesaid aspects, over and above, the stamp duty and the registration fee already paid by him for Ext.P-2 sale deed. The petitioner may approach the 2nd respondent-Sub Registrar and may offer remittance of the said additional registration fee amount of Rs.500/- and the 2nd respondent may take steps to ensure that the said additional registration fee amount of Rs.500/- is duly remitted by the petitioner.”
4. A counter affidavit has been filed by the 2 nd respondent
wherein it is admitted that the rectification deed is executed with intention to rectify the mistakes regarding the old survey number and new survey number, thandaper number and the extent that has crept in in the document registered as Document No. 4159/2012. It is also admitted that the same has been done as per Ext.P4 certificate issued by the Village Officer.
5. Heard the learned Government Pleader also. WP(C) No. 368 of 2024 :6:
6. Admittedly even going by the counter affidavit filed by
the 2nd respondent, the execution deed was necessitated on the basis of Ext.P4 certificate issued by the Village Officer and it was to rectify the mistake regarding the old survey number, new survey number, thandaper extent that has crept in in the earlier document registered as Ext.P1. It is to be seen that the extent has been considerably reduced as per the rectification deed. It is also to be seen that there is no creation of any new right by execution of the rectification deed as going by the judgment in Vannathi Valappil Mahmood’s case cited supra. Therefore, I am of the view that the stand taken by the 2nd respondent in Ext.P5 cannot be accepted. Accordingly Ext.P5 is set aside with a consequential direction to the 3rd respondent to register Ext.P3 rectification deed and accept the minimum fee applicable for registration of the rectification deed. The same shall be done within a period of 10 days from the date of receipt of a copy of this judgment. With the above said direction, the writ petition is disposed of. Sd/- VIJU ABRAHAM JUDGE sbk/- WP(C) No. 368 of 2024 :7: APPENDIX OF WP(C) 368/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SALE DEED NO.4159/1/2012 OF PARALI SRO DATED 22-11-2012
Exhibit P2 TRUE COPY OF THE PRIOR TITLE DEED NO.
Exhibit P3 TRUE COPY OF THE DRAFT RECTIFICATION DEED
DATED 18.08.2023 SUBMITTED BY THEPETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P4 TRUE COPY OF THE CERTIFICATE DATED 19.07.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P5 TRUE COPY OF THE ORDER DATED 04.10.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 10.07.2009 ISSUED BY THE 4TH RESPONDENT Exhibit P7 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 09.10.2012 ISSUED BY THE 4TH RESPONDENT. Exhibit P8 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.10.2012 ISSUED BY THE 4TH RESPONDENT. Exhibit P9 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 02.01.2013 ISSUED BY THE 4TH RESPONDENT Exhibit P10 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 25.03.2015 ISSUED BY THE 4TH RESPONDENT Exhibit P11 TRUE COPY OF THE NOTIFICATION DATED 25.03.2023 ISSUED BY THE 1ST RESPONDENT