KERALA BUILDERS FORUM Vs. STATE OF KERALA

JUDGEMENT

(1.) A common question arises in all the three Writ Petitions as to whether a registering authority while registering a document (a sale deed) under the Registration Act, 1908 has got the power to retain the registered document (original) while making a reference to the District collector (District Registrar, notified authority) under S. 45b (1) of the Kerala stamp Act, 1959. (Hereinafter referred to as 'the Act')

(2.) THE petitioner in O. P. No. 16943/2001 is an association registered under the Travancore Cochin Literary, Scientific and charitable Societies Act (Act 12 of 1955 ). It is stated that the said association is found, inter alia, with the object to constitute and maintain an organisation for co-operation between all those engaged in business or profession as builders and property developers; to represent to the Government the matters pertaining to the industry as and when found necessary and so on. THE petitioner in O. P. No. 18089/2001 is a builder. THE grievance of the petitioners in both these cases is against the action taken by the Government in the Registration Department all over the State by which instruments conveying the land or undivided interest over the land are being retained by the registering officers for the purpose of initiating proceedings under S. 45b of the Act. THE association has filed the Original Petition seeking for a declaration that the levy of Stamp Duty under S. 3 of the Act on instruments which seek to transfer undivided interest over the land from one person to another can be effected only on the value of the land, and for a further direction to respondents 1 to 3 to issue appropriate directions to the District registrars of the various districts in the State of Kerala to register the instrument purporting to transfer undivided interest of the land without insisting on payment of stamp duty on the value of the super structure, if any, constructed in such land. THE petitioner in O. P. No. 18089/2001 in addition to the reliefs already mentioned challenges a notice (Ext. PI) issued by the Sub registrar, Ernakulam for the attention of the document writers and the public to the provisions of S. 28 of the Act which requires the furnishing of the details regarding the value of the property sought to be conveyed. THEre is also a prayer for direction to the registering officers not to retain any documents presented to them for registration and to direct them to return the documents to the parties immediately after registration. THE petitioner in O. P. No. 17651/2001 seeks for a direction to the 2nd and 3rd respondents therein to return the registered sale deed No. 1667/2001, Aluva SRO forth with to the petitioner. While the petitioners in O. P. Nos. 16943 & 18089/2001 have no case that any of the documents presented by them for registration is withheld or retained by the registering officers, the petitioner in O. P. No. 17651/2001 has got a specific case that the sale deed No. 1667/2001 presented for registration is not being returned to the petitioner even after the registration on the ground that the registering officer has referred the question of under valuation of consideration under S. 45b (1) of the Act for adjudication by the District Registrar under S. 45b (2) of the Act.

(3.) WITH regard to the other two questions, (1) that the registering officer can impose stamp duty only on the value of the property that is being transferred as mentioned in the instrument, from the counter-affidavit filed by the respondents it would appear that there is consensus on this aspect. However, according to the respondents what is the subject matter of the transfer has to be gathered by reading the instrument as a whole and that if the registering officer, on reading the instrument; has got reason to believe that there is under valuation of consideration for the transfer, he has got the power to refer the same to the District Registrar for adjudication and it is for the District Registrar to adjudicate the same in exercise of the powers vested in him under S. 45b (2) r/w. the provision of the kerala Stamp (Prevention of Under Valuation of Instruments) Rules, 1968. On this aspect of the matter also there is not much controversy similarly, the second question viz; the registering officer is bound to register the document when presented for registration the/e is no controversy since a registering officer is bound to register a document (sale deed) presented for registration provided the requirements of the Registration Act is complied with.