A.M. Shaffique, J.

1. The petitioner is a Society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred as the 'Act'). The Writ Petition is filed challenging Ext. P-6, an order issued by the District Registrar imposing stamp duty of Rs. 2,69,478/- on a document submitted by them for registration, relying upon a judgment of this Court in W.P. (C) No. 2377/2009 produced as Ext. P-7. In Ext. P-7 judgment this Court proceeded on the basis that S. 40(1)(a) of the Act does not enable the Government to issue any notification in respect of documents executed by a Society or by an officer or member thereof relating to the business of such society or any class of such instruments, or in respect of any award or order made under the Act, in cases where, but for such remission the society, officer or member, as the case may be, would be liable to pay such stamp duty. But the contention of the petitioner is that no notification pursuant to S. 40(1)(a) of the Co-operative Societies Act has been issued by the Government and in the absence of any such notification, the notification issued under Ss. (1) and (2) of S. 35 of the Travancore Cochin Co-operative Societies Act, 1951 and by sub-section (2)(a) and (2)(b), S. 30 of the Madras Co-operative Societies Act as per SRO No. 75/60 shall apply, in view of S. 110 of the Co-operative Societies Act. In Ext. P-4 Clause 1(a) of the notification SRO 75/60 reads as under:

The stamp duty, registration fees and fees for encumbrance certificate payable under the Stamp Act and the Registration Act, in force in the State shall be remitted to the Co-operative Societies, in the following cases to the extent indicated in each case.

(a) The whole stamp duty with which under the Kerala Stamp Act, 1959 (Act 17 of 1959) instruments executed by or on behalf of any registered Co-operative Society or instruments executed by 'any officer of a Guardian of minor' and relating to the business thereof and decisions, awards or orders of the Registrar or the Arbitrator under the said Co-operative Societies Act.

2. It is therefore the contention of the petitioner that in the absence of any notification under S. 40(1)(a) of the Act, the notification in terms of Ext. P-4 remains in force and therefore when a document is executed by a Co-operative Society in favour of its member with reference to the business of the Society exemption from stamp duty is available.

3. Reference is also made to the bye-laws of the Society in order to show that construction of the building and sale of property is also the business activity of the Society.

4. Counter-affidavit is filed by the 3rd respondent supporting the stand taken in Ext. P-6. Main contention urged is that the liability to pay stamp duty is on the purchaser of the property under S. 30 of the Kerala Stamp Act. In the absence of any notification under S. 40(1)(a) of the Act, the intention of the legislature is very clear in so far as the liability to pay tax on the stamp duty is on the purchaser of the instrument the legislature never intended to exempt such persons from the liability to pay stamp duty. In respect of instruments where the liability to pay stamp duty is on the society, such remission of tax is possible.

5. Heard the learned Senior Counsel Sri O.V. Radhakrishnan, and the learned Government Pleader.

6. Reference is also made to the Division Bench judgments of this Court especially in Writ Appeal 1689/2008 and Writ Appeal No. 1280/2008 and the reference order in Writ Appeal No. 1216/2007. A Division Bench of this Court in Writ Appeal No. 1280/2004 held that when a document is executed by the Joint Registrar of Co-operative Societies, who is a non-member, the Society is not entitled to get the benefit of notification in SRO No. 75/60. Another Division Bench of this Court, while considering the question whether sale by liquidator of a Co-operative Society attracts the liability to pay stamp duty formed an opinion that the Division Bench in