IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 WP(C).No. 5039 of 2006(Y) -------------------------------------- PETITIONER(S): ------------------------ S. BABU, SHAMMY NIVAS, VALIYAKUNNU, KEEZHUNILAM VILLAGE, CHIRAYINKEEZHU, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER SRI.PRASANNA BABU KARTHIKA, AVANANVANCHERRY, CHIRAYINKEEZHU. BY ADV. SRI.D.SAJEEV RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. 3. THE ADDITIONAL TAHSILDAR, TALUK OFFICE, CHIRAYINKEEZHU. 4. SUNIL DUTH, AYODHYA, CHITTATTINKARA, AVANANVANCHERRY. R1 TO R3 BY GOVT. PLEADER MR.NOBLE MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 5039 of 2006(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER NO.K.3.5934/2001/K.DIS. DATED 06/07/2002 OF THE 3RD RESPONDENT. EXT.P2 COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 4TH RESPONDENT DATED 14/03/2000. EXT.P3 COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT NO.D.DIS.10348/2002/B DATED 07/09/2005. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.5039 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of December, 2011 J U D G M E N T The petitioner purchased 16 ½ cents of land comprised in survey No.1972 of Edakkode Village by sale deed Nos.997/2001 and 998/2001. The land belonged to one Sunil Duth. The said Sunil Duth executed a power of attorney in favour of one Prasanna Babu on the strength of which, Sri. Prasanna Babu executed the sale deed on behalf of Sri. Sunil Duth in favour of the petitioner, which was registered by the concerned Sub Registrar's office. Ext.P2 is the power of attorney. It is executed in non-judicial Indian stamp paper worth Rs.100/-. That power of attorney was executed in Kerala and was attested by a Notary at Attingal. The petitioner submitted an application for transfer of registry of the said property in his name. The application was rejected by Ext.P1 order on the ground that the power of attorney on the strength of which Sri. Prasanna Babu executed the sale deed was not adjudicated under the W.P.(C)No.5039 of 2006 -2- Kerala Stamp Act and therefore not legally valid. The petitioner filed an appeal before the Revenue Divisional Officer against Ext.P1 order which was dismissed on the ground that it was not adjudicated according to the provisions of the Kerala Stamp Act, 1959. The petitioner has filed this writ petition challenging Exts.P1 & P3 seeking the following reliefs: “i) To call for the records which may leads to the passing of Exts.P1 and P3 orders and quash the same as illegal, arbitrary and against the provisions of the Kerala Stamp Act by issuing a writ of certiorari or other appropriate will direction or order. ii) To issue a writ of mandamus or other appropriate writ direction of order directing the 2nd respondent to issue necessary direction to the 3rd respondent to effect mutation of the property covered by Sale Deed Nos.997/2001 and 998/2001 as expeditiously as possible.” 2. The petitioner's contention is that Ext.P2 power of attorney needs no adjudication whatsoever, since that power of attorney was executed in Kerala in non-judicial Indian stamp paper for the appropriate value as per the provisions of the Stamp Act existing at the relevant time. Therefore, Exts.P1 & P3 orders are patently perverse, is the W.P.(C)No.5039 of 2006 -3- contention raised. 3. A counter affidavit has been filed by the 2nd respondent which also repeats the findings in Exts.P1 & P3 orders, as valid and sustainable. 4. I have considered the rival contentions in detail. 5. Neither Exts.P1 & P3 nor the counter affidavit states as to why or how Ext.P2 power of attorney needs adjudication under the Stamp Act. It is not disputed before me that Ext.P2 power of attorney is in non-judicial Indian stamp paper for appropriate value as per the provisions of the Stamp Act existing at the relevant time. It is executed in Kerala. It is attested by a Notary in Kerala. I am at a complete loss to understand why the said power of attorney needs adjudication. Adjudication of documents is provided for in Chapter III of the Kerala Stamp Act, 1959, which contains Sections 31 & 32 which reads as follows: “31. Adjudication as to proper stamp.- (1) When any instrument, whether executed or not and whether previously stamped or not is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty, if any, with which it is chargeable, and pays a fee of such amount (not exceeding ten rupees and not less than one rupee) W.P.(C)No.5039 of 2006 -4- as the Collector may in each case direct, the Collector shall determine the duty, if any, with which, in his judgment, the instrument is chargeable. (2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application, until such abstract and evidence have been furnished accordingly: Provided that- (a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding except in any enquiry as to the duty with which the instrument to which it relates is chargeable; and (b) every person by whom any such evidence is furnished, shall, on payment of the fully duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid. 32. Certificate by Collector.- (1) When an instrument brought to the Collector under Section 31, is in his opinion, one of a description chargeable with duty, and (a) the Collector determines that it is already fully stamped, or (b) the duty determined by the Collector under Section 31, or such a sum as, with duty already paid in respect of the instrument, is equal to the duty so determined, has been paid, the Collector shall certify by endorsement on such instrument that the fully duty (stating the amount) with which it is chargeable has been paid. (2) When such instrument is, in his opinion, not chargeable with duty, the Collector shall certify in manner aforesaid that such instrument is not so chargeable. W.P.(C)No.5039 of 2006 -5- (3) Any instrument upon which an endorsement has been made under this section shall be deemed to be duly stamped or not chargeable with duty, as the case may be; and, if chargeable with duty, shall be receivable in evidence or otherwise, and may be acted upon and registered as if it had been originally duly stamped: Provided that nothing in this section shall authorise the Collector to endorse- (a) any instrument executed or first executed in India and brought to him after the expiration of one month from the date of its execution, or first execution, as the case may be; (b) any instrument executed or first executed out of India and brought to him after the expiration of three months after it has been first received in the State; or (c) any instrument chargeable with the duty of twenty paise or less than twenty paise when brought to him, after the execution thereof on paper not duly stamped.” First of all no document is to be compulsorily adjudicated as per the said provisions. It only provides for an opportunity to a party who wants to know whether a document has been properly stamped or not to apply to the District Collector for adjudication of the proper stamp duty on such document. It does not even stipulate what all documents require adjudication of stamp duty. Going by the two Sections, it appears to me that adjudication is necessary only when a person holding the document and wishes to use W.P.(C)No.5039 of 2006 -6- that document is not sure whether the appropriate stamp duty has been paid on that document. Apparently this is to obviate the possibility of the document being impounded if it does not bear the appropriate stamp duty and is produced before the authority competent to impound the same if it does not bear the proper stamp duty. In this case, Ext.P2 power of attorney is properly executed in Kerala and there is no doubt regarding the stamp duty payable on the same and that proper stamp duty has been paid in respect of that document. As such, no adjudication of stamp duty is necessary in respect of that document. As such Exts.P1 & P2 orders are totally perverse. I am inclined to suspect that there is more than what meets the eye as regard to the motive in passing Ext.P1 order. Even apart from that, the question of validity of that power of attorney arises only at the time of execution of the sale deed based on which the petitioner wanted to get mutation in respect of that property. It is not the power of attorney who has produced the same. It is the owner of the property as evidenced by a W.P.(C)No.5039 of 2006 -7- validly executed and registered sale deed, who has applied for mutation of the property. The Tahsildar had no business to look into the power of attorney based on which that sale deed has been executed. Once the sale deed has been executed and registered, it becomes a valid document unless set aside by a process known to law. When that sale deed is produced before the Tahsildar he had no business to look into the validity of the power of attorney based on which the sale deed has been executed. This adds to my suspicion regarding the motive in passing Ext.P1 order. Therefore, I have no doubt whatsoever in my mind that Exts.P1 & P3 orders are totally perverse and unsustainable. Accordingly, they are quashed. The 2nd respondent is directed to effect mutation of the property covered by sale deed Nos.997/2001 & 998/2001, if there are no other valid objections in respect thereof. The same shall be done as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. In view of the conduct of respondents 2 & 3 in the matter, W.P.(C)No.5039 of 2006 -8- I was inclined to award costs also, but taking a lenient view, I refrain from awarding costs. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/