IMPORTANT POINTS
Both under section 40 (1)(a) of the Kerala Act and clause 1(a) of SRO.No.75/60, the benefit of remission is allowed only in respect of documents executed by or on behalf of the society or by its officer or member. In cases where societies purchase properties, in view of section 55 of the Transfer of Property Act, since the executant of the instrument is not the society but the vendor of the property, the requirement of execution of the instrument by or on behalf of the society as provided in section 40 (1)(a) of the Kerala Act and clause 1(a) of SRO.No.75/60 is not satisfied.

JUDGMENT :

Shaffique, J.

The State of Kerala and its officers have preferred this appeal challenging the judgment dated 9/6/2015 in WP(C) No.12686/2015. Writ petition was filed by the respondents inter alia seeking the benefit of stamp duty exemption under Section 40(i)(a) of the Kerala Co-operative Societies Act, 1969. The parties Are described as shown in the writ petition unless otherwise stated.

2. Petitioners 1 and 2 are Co-operative Societies. The first petitioner Society has entered into an agreement with the 2nd petitioner Society to purchase certain item of property. As per the byelaw of the first petitioner Society, one of the object of the Society is to establish and engage in business of clinical laboratories and medical shops with prior permission of the Joint Registrar of Co-operative Societies. Such a permission had been obtained as per Ext.P1 dated 28/3/2015 from the Joint Registrar, Co-operative Societies. They also sought permission as per Ext.P2 order dated 26/3/2015 from the Joint Registrar to purchase the property of the 2nd petitioner Society. Though a document was presented for registration seeking remission of stamp duty, registration was not permitted and accordingly, the petitioners had to approach this Court seeking the following reliefs:

“(i) declare that the petitioners are entitled to get stamp duty exemption and that the action of the 3rd respondent insisting payment of stamp duty is unjust and illegal.

(ii) issue a direction directing the 3rd respondent to register the sale deed presented by the petitioners as evidenced by Exhibit P3 without insisting stamp duty by extending the stamp duty exemption.”

3. Learned Single Judge by the impugned judgment allowed the writ petition based on the Full Bench judgment of this Court in Sub Registrar v. Kerala State Co-operative Consumers Federation Ltd. [2015 (1) KLT 443 (F.B.)].

4. The learned Government Pleader raised two specific contentions. One is that the purpose for which the land was purchased by the first petitioner was not for the purpose of the Society and secondly the executant alone is entitled for the benefit of remission. He tried to distinguish the decision of the Full Bench judgment in Kerala State Co-operative Consumers Federation Ltd. (supra) on facts.

5. On the other hand, the learned counsel appearing for the respondents while placing reliance on the Full Bench judgment in Kerala State Co-operative Consumers Federation Ltd. (supra) also placed reliance on the judgment in District Registrar v. Peringandoor Service Co-operative Bank Ltd. (2019 (4) KLT 265). S.40(1)(a) of the Kerala Co-operative Societies Act reads as under:-

“40. Exemption from certain taxes, fees and duties – (1) The Government may, by notification in the Gazette, remit in respect of any class of societies-

(a) the stamp duty chargeable under the Kerala Stamp Act, 1959 (17 of 1959), in respect of any instrument executed by or on behalf of a society or by an officer or member thereof and 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.”

6. Ext.P1 is the proceedings of the Joint Registrar of Co-operative Societies. The General Body of the 2nd petitioner Society had taken a decision to effect sale of their property in its meeting held on 14/8/2011 in order to settle the liabilities which was allowed as per Ext.P1 order dated 28/3/2015. By Ext.P2 order dated 26/3/2015 of the Joint Registrar (General), the 1st petitioner Society was permitted to purchase the aforesaid property. Ext.P3 is the sale deed. In the writ petition itself, the contention of the petitioners is that the petitioners were empowered by the byelaw of the Society to acquire properties for its business purpose and Clause 2(vii) of the byelaws enable the Society to engage in the business of clinical laborat