ABID Vs. REVENUE DIVISIONAL OFFICER

JUDGEMENT

(1.) The question posed by the petitioners in this Writ Petition is as to whether a registering authority under the Indian Registration Act has power to refuse registration on the ground that a document presented for registration does not bear stamp duty payable in accordance with the Schedule to the Kerala Stamp Act. The facts are not in dispute. The petitioners want to execute sale deeds in respect of certain properties . purchased by them. In respect of those properties, the Government of Kerala has fixed fair value by virtue of powers under Section 28A of the Kerala Stamp Act. According to the petitioners, the market value of the property is less than the fair value so fixed. Against the fixation of fair value, the petitioners have already filed Exts.P3 and P4 appeals before the appellate authority. Their contention is that they are entitled to get the documents registered on payment of stamp duty as per the consideration fixed and on presentation of the same paying stamp duty on the basis of the consideration fixed in the sale deeds, the registering authority is bound to register the document in accordance with the Indian Registration Act and if he is opinion that appropriate stamp duty payable thereon has not been paid, his power is to take proceedings under Section 45B of the Kerala Stamp Act. According to the petitioners, this position has been abundantly made clear by this Court in the decision of Periyar Real Estates v. State of Kerala, 2002 1 KerLT 806 and All Kerala Document Writers and Scribes Association v. State of Kerala, 2005 3 KerLT 234.

(2.) The learned Government Pleader submits that Section 45B of the Kerala Stamp Act has nothing to do with the issue involved in this Writ Petition. The question of undervaluation to which only Section 45B relates, has no application here. He points out that the documents in question are admittedly conveyances as defined under Section 2(d) of the Kerala Stamp Act. Under Section 3 of the Kerala Stamp Act, instruments mentioned therein shall be chargeable with duty of the amount indicated in that Schedule as the proper duty thereof, meaning thereby 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, shall bear the stamp duty as chargeable under the Schedule to the Act. He further points out that Article 22 of Schedule I has been recently amended, whereby for conveyance as defined under Section 2(d) of the Kerala Stamp Act, stamp duty is chargeable on the fair value of the land or the amount or value of the consideration for such conveyance, Whichever is higher. Section 28A gives powers to the Government to fix the fair value of the land. Once fair value of the land is fixed under Section 28A, the stamp duty payable is at the appropriate rate fixed in Article 22 of the Schedule on the fair value so fixed or the consideration mentioned in the document, whichever is higher. He also points out that Section 45A prescribes the procedure to be followed by the registering authority in cases where the fair value has been fixed. According to the learned Government Pleader, once the registering officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under Section 28A, he is statutorily bound to direct payment of proper stamp duty on the fair value of the land fixed under Section 28A within a period of seven days from the date of the order and on payment of the deficit stamp duty alone he is liable to register the instrument. Therefore, according to the learned Government Pleader, unless the petitioners pay stamp duty payable as per the Article 22 of the Schedule to the Stamp Act on the fair value fixed under Section 28A, the registering authority is not bound to register the document.

(3.) The learned Counsel for the petitioners heavily relies on the Division Bench decision in Periyar Real Estates' case (supra) in support of his contention. According to him, that decision squarely covers the issue involved in this Writ Petition.