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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Joshy Joseph - Petitioners
Vs.
State of Kerala Represented by Its Secretary, Department of Taxes, Secretariat, Thiruvananthapuram and Ors. - Respondents
WP(C). No. 37760 of 2017
Decided On : 15-10-2018
Facts of the Case:
Delay on the part of the respondents in taking steps for refund of the excess stamp duty and registration fee paid by him pursuant to execution of registration of Ext.P2 sale deed.
Reasons for the decision:
Revised fair value consequent to appellate order dated 21.5.2015 published in Kerala Gazette on 23.6.2015 – The review petition filed by the petitioner’s vendor was dismissed on 8.1.2016 – The petitioner had filed application for refund only on 2.9.2017, which is received by the 2nd respondent on 11.10.2017 – From a reading of Rule 207 of the Registration Rules, it is seen that a time limit of six months is stipulated therein and from a reading of Section 44(2), it is clear that the time limit stipulated for refund is three months – Though the said statutory time limits in Rule 207 and Section 44(2) of the Kerala Stamp Act will not statutorily apply – Not covered by the statutory provisions
Administrative inconvenience and difficulties and even if the application is filed after inordinate long period, it will be lead to unnecessary hardship and difficulties to the administration – – The petitioner was working abroad and as Ext.P1 judgment secured at the instance of his vendor, he could not take effective and coordinated action to ensure the submission of an application of refund without further delay – The competent authority among respondents, will ensure that orders are passed in Ext.P6 application for refund made by the petitioner without much delay, after getting report from the 5th respondent Sub Registrar as to the stamp duty and the registration fee actually paid at the time of execution and registration of Ext.P2 sale deed and whether the figures in Ext.P3 are correct and as to how the fair value and the stamp duty was so paid at the time of execution of Ext.P2 sale deed with reference to the details of the impugned fair value at that time and also the details of the reduced fair value consequent to Ext.P4 appellate decision etc. – Orders are passed granting refund to the petitioner for excess registration fee and stamp duty so paid after withholding 1% thereof.
Finding of the Court:
The delay on the part of the petitioner, the refund may be allowed only to the tune of 99% of the excess registration fee and stamp duty paid at the time of execution of Ext.P2 – Orders should be passed by the competent authority among respondents, more particularly the 2nd respondent without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment.
Result: Partly Allowed
The petitioner is aggrieved by the delay on the part of the respondents in taking steps for refund of the excess stamp duty and registration fee paid by him pursuant to execution of registration of Ext.P2 sale deed.
2. The prayers in this Writ Petition (Civil) are as follows :
“(i) To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to grant the benefits of Ext.P4 appeal order to the petitioners by refunding the excess stamp duty and registration charges paid on Ext.P2 & P3 in tune with Ext.P1 judgment.
(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to consider and pass orders on Ext.P6 within a time frame fixed by this Hon'ble court.”
3. Heard Sri. Avaneesh Koyikkara, the learned counsel appearing for the petitioner and Smt. A.C. Vidhaya, the learned Government Pleader appearing for the respondents.
4. The petitioner had purchased property coming to an extent of 3.35 Ares of land comprised in Block 12, Survey No. 281/3 of Angamaly Village, Aluva Taluk, Ernakulam Revenue District. At the time of execution of registration of Ext.P2 sale deed No. 950/2015 dated 20.3.2015, the notified fair value for the above said property was fixed at Rs.14 lakhs per Are. The petitioner's vendor had complained that the said fair value so notified, is exorbitantly high and unrealistic and without taking into account the ground realities and the market value of the above said property etc and therefore, preferred statutory appeal before the rd respondent District Collector under the provisions contained in Section 28A(4) of the Kerala Stamp Act, 1959 and the Rules framed thereunder. The said appeal was preferred by the petitioner's vendor prior to the execution of Ext.P2 sale deed. Since there was delay on the part of the appellate authority to render a decision on the said appeal, the petitioner's vendor was constrained to file a Writ Petition (Civil) as W.P.(C) No. 29313/2014 before this Court. This Court had finally disposed of W.P. (C)No.29313/2014 as per Ext.P1 judgment dated 6.11.2014 by directing the 5th respondent therein (Sub Registrar, Angamaly), to register the document executed by the vendor in respect of the said property under protest and in accordance with the notified fair value fixed in respect of that property. But, it was made clear that the registration of the said document based on the impugned fair value will be subject to the final disposal of the appeal preferred by the party against the fixation of the fair value. It was further ordered by this Court in Ext.P1 judgment that if he said appeal is disposed of by the appellate authority by reducing the present impugned fair value, then necessarily the competent authority concerned shall refund the excess stamp duty and registration fee paid on the document to the person who paid such excess amounts, etc. This Court had also directed the District Collector, Ernakulam, being the appellate authority to render a considered decision on the appeal (Ext.P1 therein), after affording reasonable opportunity of being heard to the vendor (the petitioner therein) within two months etc. Ext.P1 judgment dated 6.11.2014 rendered by this Court in W.P.(C)No.29313/2014 reads as follows :
“This writ petition is filed by vendor of a document in respect of the property situated in Survey No. 281/3 in Block No. 12 of Angamaly Village in Ernakulam District. Petitioner has filed a fair value appeal before the 3rd respondent in the matter relating to fixation of fair value for the aforementioned plot. Petitioner wants to dispose the property. The limited request of the petitioner is that registering authority have to register the document under protest subject to final fixation of fair value of the property in the appeal.
2. In view of the above, there shall be a direction to the 5th respondent to register the document executed by the petitioner in respect of the aforementioned prop
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