ASSAINAR Vs. SUB REGISTRAR PONNANI

JUDGEMENT

(1.) This appeal is against the judgement of the learned single Judge in O.P. No. 1627 of 1980. The relevant facts may briefly be stated as follows: The appellant purchased the properties specified in schedule A to Ext. P1 dated 25-5-1978 for a consideration of Rs. 6,500/-. The proper-ties were subject matter of an earlier mortgage in favour of the Fisheries Department and a sum of Rs.7,000/- was outstanding under the said mortgage. The properties specified in Schedule A were sold to the appellant free from the encumbrance of the Fisheries Department, but as the Fisheries Department had a right to proceed against the A Schedule properties for recovering the sum of Rs.7,000/- due to them by way of indemnity, the vendor included other properties in schedule B annexed to Ext. P1. The appellant paid stamp duty on the consideration of Rs.6,500/- and presented the document for registration on 25-5-1978. The Sub Registrar impounded the document and forwarded the same to the District Registrar. The District Registrar held that the indemnity amount of Rs.7,000/- must also be regarded as part of the consideration and added that amount to the real consideration of Rs.6,500/- and held that the stamp duty is payable on a total consideration of Rs.13,500/-. As the document bears only a stamp duty of Rs.585/- the District Registrar held that a deficit stamp duty of Rs.630/- and a penalty of Rs.10/-should be collected from the appellant. Accordingly the Sub Registrar by Ext. P3 dated 26-12-1978 demanded Rs.640/- as additional stamp duty and Rs.70/- as additional registration charges. Under protest the appellant paid the additional stamp duty and the additional registration charges demanded and then approached the Board of Revenue by way of appeal. The Board of Revenue rejected the appeal by its order dated 31-1-1979, Ext. P5, holding that the power to direct refund vests with the Government under S.44 of the Kerala Stamp Act, 1959. Thereafter the appellant approached the State Government with a petition for refund of the excess duty and penalty paid by him in accordance with the order of the District Registrar. He took the stand that the consideration amount for the sale of A schedule properties being only Rs.6,500/-, stamp duty is payable only on the said amount and that the District Registrar was not right in including a further sum of Rs.7,000/-. The State Government rejected the petition by its order Ext. P6 dated 3-3-1980, agreeing with the view taken by the District Registrar.

(2.) It is in this background that the appellant presented O.P. No. 1627 of 1980 under Art.226 of the Constitution challenging the orders of the District Registrar, the Sub-Registrar and the State Government, Exts.P2, P3 and P6. The learned Single Judge came to the conclusion that duty is payable by the appellant not only on Rs.6,500/- which he paid to the vendor but also on the mortgage amount of Rs.7,000/- which was outstanding to the Fisheries Department. It is the said decision of the learned Single Judge that is challenged in this appeal by the appellant.

(3.) The first question for consideration in this case is as to what is the proper relief which the appellant could and should seek under the circumstances in the petition under Art.226 of the Constitution. The case of the appellant is that stamp duty payable is only on a consideration of Rs.6,500/- and that the view taken by the District Registrar and the State Government that stamp duty is payable on a sum of Rs.13,500/- is contrary to law. S.44 of the Kerala Stamp Act confers power on the Government to direct refund of excess duty and penalty paid under S.34 or 39 upon an application being made in writing for that purpose within one year from the date of payment. When such an application is made it is for the State Government to examine the question and form the opinion as to whether any stamp duty in excess of what is legally chargeable has been charged and paid under S.34 or 39 of the Act. The appellant having invoked the jurisdiction of the State Government under S.44 of the Act, it was for the State Government to apply its mind and to take a decision in this behalf. If, however, the State Government forms the opinion that it involves a substantial question of law it has to act under S.55 of the Act and state the case and refer the same for the opinion of the High Court. That is what has been clearly laid down by the Supreme Court in AIR 1968 SC 497 between Banarasi Das v. Chief Controlling Revenue Authority, Delhi. The Supreme Court in the said decision construed the scope of S.57(1) of the Indian Stamp Act which is analogous to S.55 of the Kerala Stamp Act, 1959. Dealing with S.57 of the Indian Stamp Act this is what the Supreme Court has observed in Para.9 of the judgment: