IMPORTANT POINT
A housing co-operative society engaged in activities related to purchasing land, constructing buildings, and selling residential units to its members is entitled to exemption from paying stamp duty as provided under the relevant notification and legal provisions.

JUDGMENT :

SHOBA ANNAMMA EAPEN, J.

1. The above writ petition is filed with the following prayers:

“(i) Declare that the society is entitled for exemption from paying stamp duty as provided in Exhibit-P1 Government Order in relation to the instruments executed by it to its members and hence there is no justification in not registering Exhibits-P2, P2(a), P2(b), P2(c), P2(d), P2(e), P2(f), P2(g), P2(h), P2(i), P2(j) and P2(k) respectively sale deeds on the ground of remittance of stamp duty.

(ii) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the 2nd respondent to register the sale deed presented by the petitioner society relating to the transaction with its members without insisting to pay stamp duty by extending the stamp duty exemption as provided in Exhibit-P1.”

2. The first petitioner is a primary Housing Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act (for short “the Act”) and the Rules framed thereunder. Other petitioners are the members of the society. According to the petitioners, some of the main objectives of the society are the purchase of land, construction of buildings therein and transfer of the same to its members etc. While so, for the purpose of establishing a housing colony, viz. Eranhipalam Housing Colony and Kairali Apartments, at Eranhipalam in Kozhikode district, for the benefit of its members, the society acquired land and allotted plots to its members along with houses/flats constructed therein. In terms of the byelaw of the society, the registration of sale deed in favour of its members can be done only after paying the entire amount due to the society. Accordingly, petitioners 2 to 13 made a request for execution of sale deed in their favour on full payment of the value and submitted documents to be registered, in white papers since the society got exemption from paying stamp duty in terms of Ext.P1 notification. However, though the documents were received by the registering authority, they were kept pending. Thereafter, the petitioners were informed that the non registration is on the ground of non remittance of stamp duty. According to the petitioners, in terms of Section 40 of the Act, the government issued Ext.P1 notification, GO (MS) No. 795/1960/Agrl. (SRO No. 75/1960) dated 08.10.1960, enabling the society to transfer properties to its members by submitting documents in white papers, against which no objection was raised by the authorities till recently. It is alleged that the society being a housing society, acquisition of land, construction of building therein and transfer of the same to its members etc. are the business of the society as provided in its byelaw. It is aggrieved by the non registration of the documents, the petitioners have come up before this Court with this writ petition.

3. The second respondent filed a counter affidavit, contending that remission of stamp duty can be allowed only if the liability to pay such stamp duty is on the co-operative society; however, in the case in hand, since the society is the executant and as per Section 30 of the Kerala Stamp Act, 1959, the purchaser is liable to pay stamp duty for a deed of conveyance, the society cannot claim exemption from stamp duty taking advantage of Section 40 of the Act. Therefore, it is contended that the petitioners are not eligible for stamp duty exemption in respect of the documents in question, taking advantage of Section 40(a) of the Act. It is pointed out that the impounded documents numbered as P.5/2014 to P.16/2014 have been registered on the basis of an interim order of this Court. Therefore, they prayed for a dismissal of the writ petition.

4. I have heard the learned counsel for the petitioners and the learned Senior Government Pleader.

5. The issue involved in this case is whether any instrument executed by or on behalf of the society or by an officer or member thereof and relating to the business of such society is entitled fo