Full Judgment
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:
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:
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:
VIJU ABRAHAM, J.
................................................................. ................................................................. 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 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 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 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 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 APPENDIX OF WP(C) 21053/2023 PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPTFOR ONLINE TOKEN REGISTRATION ISSUED TO 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. APPENDIX OF WP(C) 21073/2023 PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPTFOR ONLINE TOKEN REGISTRATION ISSUED TO 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. APPENDIX OF WP(C) 21167/2023 PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF THE GENERAL POWER OF
ATTORNEY DATED 09.06.2023 EXECUTED BY
Exhibit-P2 TRUE COPY OF THE ACKNOWLEDGEMENT/RECEIPTFOR ONLINE TOKEN REGISTRATION ISSUED TO 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.