O.P(C). No.125/10 and W.P(C). Nos.28029/10 and 28835/10 are filed challenging a common judgment passed by the Addl. District Court, Kottayam in CMA Nos.62/08, 63/08 and 64/08 respectively. Though W.P(C) No.29019/10 has not arisen from the said common judgment, the said writ petition is also filed on the same grounds, challenging the judgment passed in CMA No.84/08 on the files of the very same court. Thus, this batch of cases arose from a common question of law. 2. In O.P(C) No.125/10, the case of the respondent is that he had purchased 1.77% undivided interest in 19.36 Ares of property in Re-Sy.No.34/1, 34/2/1, 34/3/1, 34/3/2 and 50 in Block No.72 of Muthambalam Village with right to construct apartment for a sale consideration of `1,69,297/-. It is the case of the respondent that he had paid the stamp duty as well as registration fee for the execution of sale deed as demanded by the Sub Registrar and the Sub Registrar received the same without any objection and the original document was returned to the respondent after satisfying that the amount paid towards stamp duty and registration fee is sufficient. While so, the respondent received a notice dtd. 2-9-2008 from the second petitioner herein demanding an amount of `1,03,650/- towards deficit stamp duty and `16,594/- towards registration fee. According to the respondent, the above said deficit amount has been calculated on the basis of market value said to have been prevailed in that locality and such a calculation is illegal under Section 45(B) of the Kerala Stamp Act. It is also the case of the respondent that before passing such an order the respondent was not heard.
3. The allegations in CMA No.62/08 are as follows:- The respondent/appellant purchased 1.77% undivided interest in 19.36 Ares of property in RS.34/1, 34/2/1, 34/3/1, 34/3/2 and 50 in Block No.72 of Muthambalam Village with right to construct an apartment for a sale consideration of Rs.1,69,297/-. It is the case of the appellant that he had paid the stamp duty as well as the registration fee for executing the sale deed as demanded by the Sub Registrar and he received the same without any objection and the original document was returned to the appellant after satisfying that the amount paid towards stamp duty and registration fee is sufficient. While so, the appellant received notice dated 2-9-08 from the second petitioner herein demanding an amount of Rs.1,03,650/- towards deficit stamp duty and Rs.16,594/- towards registration fee. The case of the appellant was that before passing such an order, the appellant was not heard and is passed against the well-settled principles of natural justice.
4. The allegations in CMA No.63/08 are as follows:- The respondent/appellant purchased 1.77% undivided interest in 19.36 Ares of property in RS.34/1, 34/2/1, 34/3/1, 34/3/2 and 50 in Block No.72 of Muthambalam Village with right to construct an apartment for a sale consideration of Rs.1,69,297/-. It is the case of the appellant that he had paid the stamp duty as well as the registration fee for executing the sale deed as demanded by the Sub Registrar and he received the same without any objection and the original document was returned to the appellant after satisfying that the amount paid towards stamp duty and registration fee is sufficient. While so, the appellant received notice dated 2-9-08 from the second petitioner herein demanding an amount of Rs.1,03,650/- towards deficit stamp duty and Rs.16,589/- towards registration fee. The case of the appellant was that before passing such an order, the appellant was not heard and is passed against the well-settled principles of natural justice.
5. The allegations in CMA No.64/08 are as follows:- The respondent/appellant purchased 2.72% undivided interest in 19.36 Ares of property in RS.34/1, 34/2/1, 34/3/1, 34/3/2 and 50 in Block No.72 of Muthambalam Village with right to construct an apartment for a sale consideration of Rs.2,60,163/-. It is the case of the appellant that he had paid the stamp duty as well as the registration fee for executing the sale deed as demanded by the Sub Registrar and he received the same without any objection and the original document was returned to the appellant after satisfying that the amount paid towards stamp duty and registration fee is sufficient. While so, the appellant received notice dated 2-9-08 from the second petitioner herein demanding an amount of Rs.92,370/- towards deficit stamp duty and Rs.14,776/- towards registration fee. The case of the appellant was that before passing such an order, the appellant was not heard and is passed against the well-settled principles of natural justice.
6. The allegations in CMA No.84/08 are as follows:- The respondent/appellant purchased 1.77% undivided interest in 19.36 Ares of property in RS.34/1, 34/2/1, 34/3/1, 34/3/2 and 50 in Block No.72 of Muthambalam Village with right to construct an apartment for a sale consideration of Rs.1,69,297/-. It is the case of the appellant that he had paid the stamp duty as well as the registration fee for executing the sale deed as demanded by the Sub Registrar and he received the same without any objection and the original document was returned to the appellant after satisfying that the amount paid towards stamp duty and registration fee is sufficient. While so, the appellant received notice dated 2-9-08 from the second petitioner herein demanding an amount of Rs.1,03,650/- towards deficit stamp duty and Rs.16,594/- towards registration fee. The case of the appellant was that before passing such an order, the appellant was not heard and is passed against the well-settled principles of natural justice.
7. In all the appeals, the petitioners resisted the allegation raising a common contention. They contended that, on receipt of the undervaluation report from the Sub Registrar, proceedings were initiated under Section 45(B) of the Kerala Stamp Act and Rules for prevention of undervaluation in instruments. The District Registrar, exercising the powers of District Collector as per G.O.(MS)No.132/86/TD dated 13-10-1986, issued Form II notice to all the respondents for submitting their explanation, if any. Thereafter, the District Registrar sent letters informing site inspection and the respondents were directed to be present in the site with all relevant records. On site inspection, it was found that the Skyline Town Square Apartment in which the respondents purchased flats is a multi storied building having 14 floors including car parking area. The said building is situated in a potential area and important public institutions, colleges, hospitals etc. are also functioning very near to the said building.
Considering the said facts and records the market value of the said property was provisionally fixed at `10 lakhs and notices were issued to all the respondents. After hearing the respondents, they were required to remit the deficit amount found on the basis of enquiry and site inspection. Since the respondents have not produced any substantial evidence final orders were issued in exercise of jurisdiction under Section 45 (B) of the Kerala Stamp Act, 1959.
8. Feeling aggrieved, the respondents had preferred the above C.M.As before the Addl. District Court, Kottayam. After considering the question of law involved in all the appeals, the learned District Judge allowed all C.M.As on a finding that the learned District Registrar passed the order in violation of the power granted under Section 45(B) of the Kerala Stamp Act.
9. The learned Government Pleader advanced arguments challenging the finding by which the learned District Judge allowed the C.M.As.
10. Per contra, the learned counsel for the respondents advanced arguments justifying the findings in the impugned judgment under challenge passed by the learned District Judge.
11. In view of the rival contentions, the short question that arises for consideration in these petitions is whether there is any illegality or impropriety in any of the findings by which the learned District Judge allowed the C.M.As.
12. Going by the impugned judgment, it is seen that the common contention raised by the respondents was that for the actual value of the property ie., the value shown in the respective documents of title for which stamp duty and registration fee were paid, the District Registrar was not empowered to impose deficit stamp duty on the basis of market value of the property found in his enquiry or inspection. The power and jurisdiction conferred to the District Registrar under Section 45(B) is confined to the question whether the consideration shown in the document represents the actual consideration paid for the conveyance or a lesser amount is shown as consideration to defraud the revenue? Put it differently, the District Registrar was not empowered to conduct an enquiry as to the question whether the consideration shown in the document is the real market value of the property which is prevailing in that locality; but the question to be considered is, whether the amount shown in the document was consideration reflecting the actual amount paid by him to the vendor for that sale. As regards the scope of power of the District Registrar, under Section 45(B), it has been considered by this Court in District Collector, Trivandrum Vs. Ittiavirah John and another (1975 KLT 486 (D.B)), District Registrar Vs. Lake Paradise (2001 (3) KLT 521), Himalaya House C. Ltd. Vs. C.C.R.A. (AIR 1972 SC 899) and Ramachandra Shambogue Vs. District Collector (1987 (2) KLT 474) and accepted the arguments advanced by the respondents. The learned counsel for the respondent in O.P(C) No.125/10 further cited State of Kerala and Others Vs. Jino Joseph (2012 (2) KHC 25) and submits that this Court relied on all the above decisions and further reiterated the very same proposition meticulously in the above said decision also.
13. In view of the decisions referred above and recently reiterated in State of Kerala and Others Vs. Jino Joseph (2012 (2) KHC 25), I find that the issues involved in all these petitions are covered by the above decisions. Consequently, the arguments advanced by the Government are rejected and the findings arrived at by the learned District Judge are confirmed. In the above view, these Petitions are devoid of merits and dismissed accordingly.
Sd/-
(K.HARILAL, JUDGE) okb.