Midhun Sunny and Midhula Sunny vs District Registrar, Sub Registrar, Revenue Divisional Officer and Sabu Sebastian

P.N. Ravindran, J.—The appellants are the unsuccessful petitioners in W.P.(C) No. 22150 of 2010. The writ petition was filed seeking a direction to respondents 1 and 2 to register the sale deed executed by the fourth respondent in favour of the petitioners after receiving stamp duty based on the value fixed in Ext.P1 agreement of sale entered into between the petitioners and the fourth respondent. The appellants also prayed for a declaration that the fair value fixed in Ext.P5 notification is not applicable to the sale deed to be executed pursuant to Ext.P1 sale agreement. By the judgment under challenge, the learned single Judge held that in view of the recent amendment to the Kerala Stamp Act, 1959, stamp duty is payable at the rate prescribed in Article 22 of the Schedule to the Kerala Stamp Act on the fair value fixed by the Government for the land conveyed or the amount or value of the consideration for such conveyance, and therefore, the reliefs prayed for by the appellants cannot be granted. Hence, the writ appeal.

We heard Sri. T.M. Chandran, the learned Counsel appearing for the appellants. We have also gone through the pleadings and the materials on record. The main contention raised by the learned Counsel for the appellants is that the fair value fixed by the Revenue Divisional Officer, Thrissur, for lands situate in Varantharappilly Village, by Ext.P5 notification published in the Kerala Gazette Extraordinary dated 6.3.2010 cannot govern the registration of an instrument of sale in respect of the property described in Ext.P1 agreement of sale entered into by the appellants and the fourth respondent on 3.3.2010. The Revenue Divisional Officer, Thrissur, had long before Ext.P1 agreement was entered into by the parties, determined the fair value of the lands situated in Varantharappilly Village in Mukundapuram Taluk, including the lands described in Ext.P1 and published the fair value thus fixed, as per notification dated 17.11.2009. The said notification was published in the Kerala Gazette Extra Ordinary dated 6.3.2010.

Section 28A(1) of the Kerala Stamp Act, 1959, empowers Revenue Divisional Officers to fix the fair value of lands situate within the area of their jurisdiction, for the purpose of determining the duty chargeable at the time of registration of instruments involving the lands. Sub-section (3) thereof stipulates that the fair value of the land fixed under Sub-section (1) shall be published in such manner as may be provided in the rules made under this Act. The manner of publication of the fair value fixed in terms of Section 28A(1) of the Kerala Stamp Act, 1959 is prescribed in Rule 4 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995. Rule 4 thereof reads as follows:

Publication of fair value of land - (1) The Revenue Divisional Officer shall, after having fixed the fair value of the land as provided in Rule 3, publish a notification in Form ''A'' appended to these rules and cause copies of the same exhibited in his office, the Taluk Office, the Village Office, Office of the local body and Offices of the District Registrar and Sub-Registrars concerned.

(2) The Revenue Divisional Officer shall forward copies of the notification to the Superintendent of Government presses for publication in the Official Gazette and to the District Collector, the Board of Revenue and the Government for information.

(3) The Revenue Divisional Officer shall also forward copies of the Notification to the Inspector General of Registration, the District Registrar and the Sub-Registrars concerned.

(emphasis supplied)

Ext.P5 discloses that the notification fixing fair value was issued on 17.11.2009. The appellants have no case that the notification dated 17.11.2009 was not exhibited in the office of the Revenue Divisional Officer, the Taluk Office, the Village Office, Office of the local body and Offices of the District Registrar and Sub-Registrars concerned. On the terms of Rule 4, publication in the official gazette is not the mode of publication though Sub-rule (2) of Rule 4 of the aforesaid rules obliges the Revenue Divisional Officer concerned to forward a copy of the notification to the Superintendent of Government Press for publication in the official Gazette. In the absence of any plea that the notification dated 17.11.2009 fixing the fair value of the lands in Varantharappilly Village of Mukundapuram Taluk was not published in the manner prescribed in Sub-rule (1) of Rule 4 of the the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, this Court will have to proceed on the basis that the notification setting out the fair value of lands in Varantharappilly Village was published immediately after 17.11.2009, in the office of the Revenue Divisional Officer, Thrissur, the Taluk Office, the Village Office, Office of the local body and Offices of the District Registrar and Sub-Registrars concerned. Therefore, the mere fact that a copy thereof was published in the official Gazette only on 6.3.2010 will not entitle the appellants to contend for the position that fair value was fixed only after Ext.P1 agreement was entered into by them. In other words, it is evident from the materials on record that fair value in respect of the lands in Varantharappilly Village of Mukundapuram Taluk was fixed before 17.11.2009. Therefore, on the admitted facts, it cannot be said that the fair value of the lands described in Ext.P1 agreement had not been fixed when the said agreement was entered into.

Articles 21 and 22 of the Kerala Stamp Act, 1959, which deals with the stamp duty payable on a conveyance, as defined in Section 2(d) of the Kerala Stamp Act, 1959, was amended by the Kerala Finance Act, 2010, Act 10 of 2010. Articles 21 and 22 of the schedule to the Kerala Stamp Act, 1959 as amended read as follows:

Sl. No. Description of instrument Proper Stamp Duty 21 Conveyance (as defined by Seven rupees for every section 2(d), other than a rupees 100 or part conveyance specified in thereof of the fair value No. 22, not being a transfer of the land or the charged or exempted under amount or value of the No.55: consideration for such conveyance, whichever is higher.

Sl. No. Description of instrument Proper Stamp Duty 22 Conveyance as defined by Eight rupees for every section 2(d), not being a rupees 100 or part transfer charged or exempted thereof of the fair value under No. 55 of immovable of the land or the property situated, ---- amount or value of the (i) within the consideration for such Municipalities/ conveyance, whichever Townships/Cantonments other is higher. than Corporations.

Nine rupees for every (ii) within the Municipalrupees 100 or part Corporations. thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher.";

Section 3 of the Kerala Stamp Act, 1959 states that every instrument mentioned in the Schedule which, not having been previously executed by any person, is executed in the territories of the State of Kerala on or after the commencement of the Act and every instrument mentioned in the schedule, which not having been previously executed by any person, is executed out of the State of Kerala on or after the date of commencement of the Act, relates to any property situate or to any matter or thing done or to be done, in the territories of the State of Kerala and is received in the territories of the State of Kerala, shall be chargeable with duty of the amount indicated in the Schedule as the proper duty therefore. As per Article 21 of the Kerala Stamp Act, the duty payable on a Conveyance, as defined by Section 2(d), other than a conveyance which falls under Article 22, not being a transfer charged or exempted under Article 55 is seven rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher. In respect of a conveyance falling under Article 22 also, the stamp duty is to be paid on the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher. Therefore, on the terms of the provisions contained in the Kerala Stamp Act, 1959, the stamp duty payable on a conveyance is determined with reference to the fair value of the land conveyed or the amount or value of the consideration for such conveyance whichever is higher. In other words, stamp duty has to be paid on the fair value of the land, if the amount or value of the consideration recited in the deed of conveyance is less than the fair value of the land and on the amount or value of the consideration, if such amount or value of the consideration is higher than the fair value. We are, therefore, in agreement with the learned single Judge that the reliefs prayed for by the appellants cannot be granted.

We accordingly hold that there is no merit in the writ appeal. The writ appeal fails and is dismissed.