IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WP(C).No. 11535 of 2007(W) -------------------------- PETITIONER(S): --------------- 1. ANANDAN P.M., TRADER, SHOP NO.XII/11201, PUTHIYAMADATHIL HOUSE,AYANIKKAD POST, KOYILANDY TALUK,KOZHIKODE DISTRICT,KERALA STATE. 2. C.P.BHASKARAN,TRADER, SHOP NO.XX11/120G 12,GOKULAM MOODADI POST, KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 3. HASHIM.P., TRADER, SHOP NO.XX11/1120F, RINOOS, KOTTAKKAL,IRINGAL POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 4. SHAMSUDDIN,TRADER, SHOP NO.XX11/1120G, 14A, MISBASHA,PURAKKAD POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 5. PRAJIN,TRADER, SHOP NO.XX11/1120G14, PRANAV,PAYYOLI POST,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 6. PRAJESH,TRADER, SHOP NO.XX11/1120 G 13, PRANAV,PAYYOLI POST,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 7. PREMKUMAR.M.V.,TRADER, SHOP NO.XX11/1120 G8,SUKRITHAM,THIKKODI POST,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 8. V.P.KRISHNAN,TRADER, SHOP NO.XX11/1120 G-10,VADAKKE VALIYAPARAMBIL HOUSE, THIKKODI POST,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 9. V.P.RAMESAN,TRADER, SHOP NO.XX11/1120G11 VADAKKE VALIYAPARAMBIL HOUSE, THIKKODI POST,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 10. KOMATH JANAKI,TRADER, SHOP NO.XX11/1120 G5,KOMATH HOUSE, PAYYOLI POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 11. UNNIKRISHNAN M.,TRADER, SHOP NO.XX11/1120 H1, MONADANPOYIL,AYANIKKAD POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 12. NARAYANAN.T.K.,TRADER, SHOP NO.XX11/1120 M1, THYKKANDI PALLIKKARA POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 13. SAMAD,TRADER, SHOP NO.XX11/1120 D1, MUKKADATH HOUSE,PAYYOLI POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 14. FAISAL.K.V.,TRADER, SHOP NO.XX11/1120 A1 KIZHAKKE OOLAYIL HOUSE,THIKKODI POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 15. MOIDEEN M.C.TRADER, SHOP NO.XX11/1120 B1 MARIYAM MANZIL, PAYYOLI POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. 16. A.S.MURUKAN,TRADER,SHOP NO.XXII/1120 R1, VADAKKE CHETTHIL HOUSE,KOTTAKKAL POST, KOYILANDY TALUK,KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.ZUBAIR PULIKKOOL RESPONDENT(S): --------------- 1. SECRETARY,PAYYOLI GRAMA PANCHAYATH, SPECIAL GRADE,POST MELADY,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 2. PAYYOLI GRAMA PANCHAYATH( SPECIAL GRADE) WITH ADDRESS FOR SERVICE, CHAIRMAN, PAYYOLI GRAMA PANCHAYATH, POST MELADY,KOYILANDY TALUK, KOZHIKODE DISTRICT,KERALA STATE. 3. STATE OF KERALA WITH ADDRESS FOR SERVICE SECRETARY LOCAL ADMINISTRATION,TRIVANDRUM. ADV. SRI.C.VALSALAN FOR R1 & R2 SRI.K.RAKESH ROSHAN FOR R1 & R2 SMT.THUSHARA.V FOR R1 & R2 GOVT. PLEADER SHRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.12.2008, THE COURT ON 5.1.2009 DELIVERED THE FOLLOWING: W.P.(C).No. 11535/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE INDENTURE EXECUTED BY P3 TO R1. P2. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P1. P3. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P2. P4. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P3. P5. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P4. P6. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P5. P7. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P6. P8. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P7. P9. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P8. P10. COPY OF THE RENT ADJUSTMENT ISSUED BY R1 TO P9. P11. COPY OF THE LETTER BY P3 TO R1 DTD.5.3.07. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE CIRCULAR DATED 17.10.2000 OF THE DIRECTOR OF PANCAYAT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 11535 of 2007 ================== Dated this the 5th day of January, 2009 J U D G M E N T The petitioners are lessees of shoprooms in a shopping complex of a bus stand owned by the 2nd respondent Panchayat. They have filed this writ petition raising an issue regarding stamp duty payable on the lease deeds to be executed by the Panchayat in their favour for the shop rooms. According to them, in respect of the documents to be executed in their favour stamp duty payable is Rs.100/- under Article 50 of the Schedule to the Kerala Stamp Act and not under Article 33 as demanded and directed by the Panchayat in Ext.P11 and other similar communications issued to the other petitioners. Accordingly, the petitioners seek the following reliefs: “i) Call for records and quash the original of exhibit P11 and other similar communications addressed to the writ petitions by a writ of certiorari or other suitable writ or order. ii) Further to restrain the respondents 1 and 2 from enforcing original of exhibit P11 and similar communications addressed to the writ petitioners by a writ of mandamus or such other suitable writ or order. iii) Further to declare that the provision governing stamp duty in the context of exhibits P2 to P10, the 2nd respondent having decided to renew the arrangement would be governed by article 50 of the schedule to the Kerala Stamp Act, 1959 and not under W.P.(C).No.11535/07 2 article 33 of the schedule to the said act by suitable writ or order.” 2. A counter affidavit has been filed by the Panchayat in which it is stated that quoting a common judgment of this Court in a batch of writ petitions the Director of Panchayats has issued Ext.R1(a) circular directing that the stamp duty payable on the documents for leasing out shop rooms in shopping complexes owned by Panchayats is 5% of the annual rent, and therefore, the writ petition is liable to be dismissed. 3. I am spared of the task of considering the matter on merits elaborately since the issue raised in this writ petition is squarely covered by a Division Bench decision of this Court in W.A.No.1677 of 1997 and connected cases wherein similar documents as involved in this case, although styled as licences, were held to be liable to stamp duty under Article 33 of the Kerala Stamp Act as leases as defined in Section 2(l) of the Kerala Stamp Act. Therefore, following that judgment this writ petition is liable to be dismissed. 4. However, the counsel for the petitioners raises a contention that even then the petitioners are not liable to pay any additional stamp duty in so far as they have already paid W.P.(C).No.11535/07 3 stamp duty under Article 33 of the Kerala Stamp Act for the previous year and since the lease is renewed every year, and as per Article 33 for five years the stamp duty payable is only 5% of the average annual rent. 5. I am not inclined to accept this contention also, for two reasons. The first is that such a contention has not been raised in the writ petition at all. Even otherwise, stamp duty on a document is to be determined on the basis of the recitals in the document itself. If the period of lease fixed in a lease deed is only one year or five years, the stamp duty payable is the same. But if the parties decide to restrict the period to one year and execute a lease deed for one year, it should bear stamp equivalent to 5% of the whole amount payable or deliverable under such lease. If for the next year again another lease deed is to be executed, that lease deed also should bear stamp duty under Article 33. The fact that the lease is renewed yearly does not mean that for five years no additional stamp duty is payable because for a lease for a period not exceeding five years also, the stamp duty payable would be the same. Stamp duty is payable for the document executed. If the parties choose to execute lease deeds every W.P.(C).No.11535/07 4 year, lease deed for each year should bear stamp as per Article 33. The fact that for a five year period also the stamp duty is the same, does not absolve the lessee from paying appropriate stamp duty for the lease deed for each year. Therefore, I do not find any merit in that contention of the petitioners also. In the above view, there is no merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge