DIST REGISTRAR Vs. LAKE PARADISE

JUDGEMENT

(1.) These appeals are filed against the judgment of the District Judge, Ernakulam, against an order passed under S.45(B) of the Kerala Stamp Act. The delay of more than 556 days in filing the appeals was already condoned. The order passed by the District Registrar shows that it is a printed order in all the cases filling up the figures only and without giving any reason for demanding enhanced stamp duty on the documents executed by the respondent herein. It is also stated in that order that the respondent should pay the deficit stamp duty within 15 days of receipt of the order. The District Court has allowed the appeals holding that it is the consideration which was passed between the parties that is relevant for fixing the stamp duty and it is not the market value of the property that is to be taken into account under S.45 of the Act.

(2.) The learned Government Pleader appearing for the State submitted that the appeal was decided without hearing the respondent and there was no opportunity to put forward the case of the Government before the District Court. No reason is stated in the memorandum of appeal which prevented the appellant's counsel from appearing in and arguing the matter before the District Court. The learned Government Pleader submitted that the order issued by the District Registrar is only a provisional order and therefore no appeal was maintainable before the District Court from that order. A reading of the order produced in this second appeal shows that it was not a provisional order inasmuch as the order demanded payment of the deficit stamp duty within 15 days. If it was a provisional order, it should have been passed under R.6 of the Kerala Stamp (Prevention of Undervaluation of Instruments) Rules, which says that the Collector shall communicate a copy of his order provisionally determining the value of the properties or the consideration thereof and the duty payable to all the persons who are liable to pay the duty along with a notice in Form III or Form IIIA, as the case may be, and call upon the parties to lodge their objections, if any, to such determination of the value or consideration within the time specified in the notice. Inasmuch as the order produced along with the second appeal does not show that the parties were given notice to lodge their objections, it cannot be said that the order is a provisional order. Therefore, the first question of law raised in these second appeals, viz., whether the court below is justified in entertaining an appeal filed against a provisional order issued by the District Registrar under S.45B of the Kerala Stamp Act, 1959, is without any basis. The next question of law framed by the appellant is whether the court below is justified in placing reliance on the decision in Balakrishnan v. Collector ( 1996 (1) KLT SN 31 , Case No. 41) in the peculiar facts and circumstances involved in the case. That decision shows that it is necessary while fixing stamp duty it is the consideration which passes between the parties and not the market value of the property that is to be taken into account. No other decision taking a contrary view has been pointed out by the Government Pleader. Nothing has been stated to show that the decision is in any way wrong. The third question of law framed is whether the appellant is not entitled to be heard before passing the judgment setting aside the impugned order. The appellant has no case that at the time of hearing, no notice was given to the Government Pleader before hearing the appeal. If the Government Pleader was absent and the matter was decided in their absence, the appellant could have filed an application before the District Judge himself for rehearing the matter and the same was also not done. In such circumstances, I do not find any reason to admit these second appeals.

(3.) A perusal of the Kerala Stamp Act and the Kerala Stamp (Prevention of Undervaluation of Instruments) Rules, 1968, shows that detailed procedures are prescribed before an order is passed determining the value of the properties or consideration thereof and duty payable on the instrument which according to the Collector is undervalued and insufficient stamp duty paid at the time of registration of the document. S.45A(3) of the Act states that where on verification 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 S.28A, he shall, by order, direct the payment of proper stamp duty on the fair value of the land fixed within a period of seven days. Any person aggrieved by the order may file an appeal to the Collector. S.45B(1) of the Act says that if the Registering Officer while registering an instrument has reason to believe that the value of the property or the consideration has not been truly set forth in the instrument he may after registering such instrument refer the same to the Collector for determination of the value of consideration. Thereafter, the Collector shall give notice to the parties and after giving an opportunity of being heard and after holding an enquiry in such manner as may be prescribed determine the value of the consideration and the duty payable and the deficient amount shall be payable by the person liable to pay the duty and on such payment the Collector shall endorse a certificate on the instrument under his seal and signature. Under sub-s.(3) of S.45B, the Collector may suo motu within two years from the date of registration of any instrument not already referred to him under sub-s.(1) call for and examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration and if after such examination he has reason to believe that the value or consideration has not been truly set forth in the instrument, he may determine the value or consideration in accordance with the procedure provided for in sub-s.(2). Any person aggrieved by the order of the Collector may file appeal to the District Court.