IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 29370 of 2011(U) -------------------------- PETITIONER(S): ----------------------- 1. K. C. PREMAN, S/O. CHENNANKUTTY, KOONIYARA HOUSE, PADINJARE VEMBALLUR, KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. P.S.SUNIL, S/O.SOMASUNDARAN, PULLAT HOUSE, P.O.KAZHIMBRAM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. C. B. RETHISH, S/O. CHERIYA KAYYUMMAL BALAKRISHNAN, KOORKANCHERY, THRISSUR TALUK. 4. V. V. SANIL, S/O. VAZHOOR VASU, PADINJARE VEMBALLUR, KODUNGALLUR TALUK. 5. A. R. JOY, S/O. ALAPPAT RAPHEL, P. O. KOTTAPPADI, CHAVAKKAD TALUK. 6. T. K. AMBILY, S/O. THADATHIL KUNJAPPU VAIDYAR, P. O. KANNAMPULLIPURAM, KODUNGALLUR TALUK. BY ADV. SRI. T. A. SHAJI RESPONDENT(S): ------------------------ 1. THE REVENUE DIVISIONAL OFFICER, THRISSUR, PIN - 680 001. 2. THE TAHSILDAR, KODUNGALLUR, THRISSUR DISTRICT, PIN - 680 664. 3. DISTRICT COLLECTOR, THRISSUR, PIN - 680 001. WP(C).No. 29370 of 2011(U) 4. COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM, PIN - 695 001. 5. THE SUB REGISTRAR, THRIPRAYAR, THRISSUR DISTRICT-680 567. 6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. R1 TO R6 BY GOVT. PLEADER SRI. S. JAMAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PN WP(C).No. 29370 of 2011(U) APPENDIX PETITIONER(S) EXHIBITS EXT. P1 COPY OF THE ORDER OF CONFIRMATION IN FAVOUR OF THE IST PETITIONER IN RESPOECT OF 94.5 CENTS OF LAND. EXT. P1(A) COPY OF THE ORDER OF CONFIRMATION IN FAVOUR OF THE IST PETITIONER IN RESPECT OF 32 CENTS OF LAND. EXT. P1(B) COPY OF THE ORDER OF CONFIRMATION IN FAVOUR OF THE 1ST PETITIONER IN RESPECT OF 36 CENTS OF LAND. EXT. P2 COPY OF THE ORDERS OF CONFIRMATION OF SALE IN FAVOUR OF THE 2ND PETITIONER. EXT. P3 COPIES OF THE ORDERS OF CONFIRMATION OF SALE IN FAVOUR OF THE 3RD PETITIONER. EXT. P4 COPY OF THE ORDERS OF CONFIRMATION OF SALE IN FAVOUR OF THE 4TH PETITIONER. EXT. P5 COPY OF THE ORDERS OF CONFIRMATION OF SALE IN FAVOUR OF THE 5TH PETITIONER. EXT. P6 COPIES OF THE ORDERS OF CONFIRMATION OF SALE IN FAVOUR OF THE 6TH PETITIONER. EXT. P7 COPY OF THE DECLARATION DTD. 22-07-2006 IN FAVOUR OF THE IST PETITIONER IN RESPECT OF 94.5 CENTS OF LAND. EXT. P7 (A) COPY OF THE DECLARATION DTD. 22-07-2006 IN FAVOUR OF THE IST PETITIONER IN RESPECT OF 32 CENTS OF LAND. EXT. P7(B) COPY OF THE DECLARATION DTD. 22-07-2006 IN FAVOUR OF THE IST PETITIONER IN RESPECT OF 32 CENTS OF LAND. EXT. P8 COPY OF HTE DECALRATION 22-07-2006 ISSUED TO THE 2ND PETITIONER. EXT. P9 COPY OF THE DECLARATION DTD. 22-07-2006 ISSED TO THE 3RD PETITIONER. EXT. P10 COPY OF THE DECLARATION DTD. 22-07-2006 ISSUED TO THE 4TH PETITIONER. EXT. P11 COPY OF THE DECLARATION DTD. 22-07-2006 ISSUED TO THE 5TH PETITIONER. EXT. P12 COPY OF THE DECLARATION DTD. 22-07-2006 ISSUED TO THE 6TH PETITIONER. EXT. P13 COPY OF THE REQUEST MADE BY IST PETITIONER DTD. 04-10-2006 EXT. P14 COPY OF THE REQUEST MADE BY THE 2ND PETITIONER DTD. 28.09.2006. WP(C).No. 29370 of 2011(U) EXT. P15 COPY OF THE REQUEST MADE BY 3RD PETITIONER DTD. 25-09-2006. EXT. P16 COPY OF HTE REQUEST MADE BY 4TH PETITIONER DTD. 25-09-2006. EXT. P17 COPY OF THE REQUEST MADE BY 5TH PETITIONER DTD. 26-09-2006. EXT. P18 COPY OF THE REQUEST MADE BY 6TH PETITIONER DTD. 29.09.2006. EXT. P19 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE IST PETITIONER ASKING TO FURNISH THE STAMP PAPER. EXT. P20 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE 2ND PETITIONER. EXT. P21 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE 3RD PETITIONER. EXT. P22 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE 4TH PETITIONER. EXT. P23 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE 5TH PETITIONER. EXT. P24 COPY OF THE NOTICE DTD. 12-07-2007 ISSUED TO THE 6TH PETITIONER. EXT. P25 COPY OF THE NOTICE DTD. 07-10-2011 ISSUED TO THE IST PETITIONER. EXT. P26 COPY OF THE NOTICE DTD. 07-10-2011 ISSUED TO THE 2ND PETITIONER. EXT. P27 COPY OF THE NOTICE DTD. 07-10-2011 ISSUED TO THE 3RD PETITIONER. EXT. 28 COPY OF THE NOTICE DTD. 07.10.2011 ISSUED TO THE 4TH PETITIONER. EXT. P29 COPY OF THE ENOTICE DTD. 07.10.2011 ISSUED TO THE 5TH PETITIONER. EXT. P 30 COPY OF THE NOTICE DTD. 07-10-2011 ISSUED TO THE 6TH PETITIONER. RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P. A. TO JUDGE PN S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 29370 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of November, 2011. J U D G M E N T The petitioners purchased certain immovable properties pursuant to revenue recovery proceedings for realisation of abkari arrears of one Sri. K.V. Aravnidan. The sale was confirmed in 2006. For execution of the sale certificates, by communication dated 12.7.2007, the petitioners were directed to produce stamp papers at the rate of 6% of the purchase price of the properties. The petitioners produced the stamp papers on 19.1.2010. But, by Exts. P25 to P30, the petitioners have been directed to produce additional stamp papers for payment of stamp duty at the rate of 7% on the fair value of the land fixed by the Government in view of the subsequent amendments to the Kerala Stamp Act. This is under challenge in this writ petition. 2. The petitioners raise two contentions. First is that subsequent amendment cannot affect the rights of the petitioners. According to them, at the time when they produced the stamp papers, the rate of stamp duty was 6% . Because of the delay of the Government in executing the sale certificates in the stamp papers produced, the petitioners cannot be penalised. Secondly, they would contend that even going by the amendment, as far as stamp duty on certificate of sale is concerned, the duty is not to be determined on the basis of the fair value fixed by the Government, but on the basis of the consideration equal to the amount of the purchase money. The petitioners therefore seek the following reliefs: W.P(C) No. 29370 of 2011 -: 2 :- “i. Issue a writ of certiorari quashing Exts. P25 to P30 to the extent to the petitioners are directed to produce additional stamp papers to register the sale deeds/sale certificates referred to therein; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to execute and register the sale deeds/sale certificates in respect of the properties purchased by the petitioners as evidenced by Exts. P1 to P12 forthwith.” 2. The learned Government Pleader would contend that for sale certificateds also, the duty as applicable to conveyance is payable. As per Entries 21 and 22 to the Schedule to the Kerala Stamp Act, for conveyance, the stamp duty at the appropriate percentage is to be paid on the fair value of the land or the amount or value of the consideration, whichever is higher which applies to sale certificate also, which is nothing but a conveyance. He would further contend that the petitioners were directed to produce stamp papers as early as on 12.7.2007 and they produced the stamp papers only on 19.1.2010. The delay on the part of the Government is only for less than 3 months and since the amendment raising the rate of stamp duty came within that time the petitioners are liable to pay stamp duty at the enhanced rate. 3. I have considered the rival contentions in detail. 4. Admittedly, what the Government has to issue is a certificate of sale pursuant to the revenue recovery proceedings. The same is covered by Entry 16 of the schedule to the Kerala Stamp Act, which reads thus: W.P(C) No. 29370 of 2011 -: 3 :- 16 Certificate of sale (in respect of each property put up as a separate lot and sold) granted to the purchaser of any property sold by public auction by a Civil or Revenue Court or by the Government, Collector or other Revenue Officer. The same duty as on a conveyance (No. 21 or 22, as the case may be) for a consideration equal to the amount of the purchase money only. Entries 21 and 22 of the Stamp Act read thus: 21 22 Conveyance as defined by Section 2(d), other than a conveyance specified in No. 22, not being a transfer charged or exempted under No. 55. Conveyance as defined by Section 2(d), not being a transfer charged or exempted under No. 55 of immovable property situated- (i) within the Municipalities / Townships/cantonments other than Corporations. (ii) within the Municipal Corporations. Seven rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher. Eight rupees for every rupee 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher. Nine rupees for every rupees 100 or part thereof of the fair value of the land or the amount or value of the consideration for such conveyance, whichever is higher. Under Entry 16, the duty payable on certificate of sale is the same duty as on a conveyance for a consideration equal to W.P(C) No. 29370 of 2011 -: 4 :- the amount of the purchase money only. Of course, for conveyance, the rate of stamp duty is to be applied to the fair value of the land or the amount or value of the consideration for each conveyance, whichever is higher. But, under Entry 16, although the rate is the same as that of conveyance, that rate is to be applied on the consideration equal to the amount or purchase money only and not on the fair value of the land. Therefore, I have no doubt in my mind that the stamp duty for certificate of sale is to be calculated not on the fair value of the land but only on the consideration equal to the amount of the purchase money in this case. As such, the demand in Exts. P25 to P30 for stamp duty on the fair value is clearly unsustainable. 5. The next question is as to the rate of stamp duty payable. Admittedly, as on the date when the petitioner submitted stamp papers, the stamp duty payable by the petitioners was only at the rate of 6%, the same was enhanced to 7% only with effect from 1.4.2010. Of course, as per the Division Bench judgment of this Court, the rate of of duty payable is as on the date of execution of the document but it has to be taken into account that the Government themselves to whom the stamp duty goes is a party to the proceedings. Admittedly, the petitioners produced stamp papers on 19.1.2010, on which date the stamp duty was only 6%. It was the duty of the Government to see that the certificate of sale is executed without delay. For the delay on the part of one of the parties to the transaction, the petitioners cannot be allowed to be prejudiced. If the respondents had executed the sale W.P(C) No. 29370 of 2011 -: 5 :- certificate within a reasonable time, which should be taken as within one or two months, the petitioners would not have been liable to pay the increased rate of stamp duty. Therefore, I am of opinion that insofar as the Government themselves is to be blamed for the delay in execution of the sale certificate, the petitioners should not be directed to pay additional stamp duty on account of the amendment to the scheduled to the Stamp Act, which came into force in the meanwhile with effect from 1.4.2010, after the production of the stamp papers by the petitioners. Accordingly, Exts. P25 to P30 are quashed. It is declared that in respect of this particular transaction, the petitioners are liable to pay stamp duty as applicable on the date of production of the stamp papers. In the above circumstances, the respondents are directed to see that the sale certificates are issued to the petitioners in the stamp papers, which they have already produced declaring that they are liable to pay the stamp duty only at the rate of 6% for the amount of the purchase money only. The sale certificate shall be issued and got registered within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/ :