A lease agreement is not subject to increased stamp duty under construction law provisions when alterations by tenants require landlord consent, as it does not constitute a development agreement.

JUDGMENT :

Viju Abraham, J.

The above writ petition is filed challenging Exts.P3 and P6 orders and for a consequential direction to the 3^rd respondent to register Ext.P1 sale deed within a time limit to be fixed by this Court.

2. Petitioners 2 and 3 are the partners of the 1^st petitioner firm M/s. Kooplicat Ayurvedic Hospital, a partnership firm constituted under the Indian Partnership Act , 1932. Respondents 5 and 6 are the owners of a total extent of 11.25 Ares of land in Perumbaikkad Village, and they constructed a multi-storeyed commercial complex by the name ‘Othalathumoottil Complex’ on the strength of a building permit issued by the Kottayam Municipality. Petitioners 1 to 3 requested respondents 5 and 6, the landlords of the building, to lease out the entire 2nd floor having built-up area of 480.66 sq.mtrs together with 139.35 sq.mtrs open space, besides the north staircase, solely for the purpose of conducting an Ayurveda Hospital and other allied activities. Thus, the parties entered into an agreement and executed Ext.P1 lease deed dated 28.02.2020 in favour of the 1st petitioner partnership firm, which is for a period of 20 years from the date of execution.

3. The deed was prepared on stamp papers worth Rs.2,72,500/- as stamp duty was calculated as provided under Article 33(a)(iv) of the schedule appended to the Kerala Stamp Act , 1959 (for short, ‘the Act, 1959’). Thus, it is the case of the petitioner that the stamp duty payable will come to Rs.2,72,237/-, which has been rounded off to Rs.2,72,500/-, and the lease deed was prepared on a stamp paper of Rs.2,72,500/-. Over and above the same, Rs.86,500/- was  paid as registration fee, and the petitioners have paid the said amount. But by Ext.P3 order, the 3^rd respondent returned Ext.P1 lease deed, refusing to register the same, mainly holding that since in Clause No.17 of Ext.P1 deed it is stipulated that the tenant is given right for building construction and as per Clause no.18 there is also a provision for return of the same to the landlord, stamp duty as per Article 5(c) of the Schedule appended to the Stamp Act, is liable to be paid on the estimated value.

4. The contention of the petitioners is that Article 5(c) is not applicable in the facts and circumstances of the present case. Article 5(c) is applicable in cases where authority or power is given to a promoter or developer for construction and development or sale or transfer of any immovable property, but, in the present case the petitioners have entered into a lease agreement based on mutual consensus, whereby respondents 5 and 6 leased out the entire 2^nd floor of the multi storeyed commercial complex for a period of 20 years. Therefore, it is contended that Ext.P1 deed is nothing but an ordinary lease agreement. It is further submitted that Clause 17 in Ext.P1 deed is only a general clause which states that, if the tenant makes any alteration or addition they should obtain the prior consent from the landlord before doing so, and it is only meant to protect the interest of the landlord, thereby restricting the tenants from doing any alteration whatsoever at his whims and fancies. The incorporation of the said clause does not mean that the tenant is going to make any alteration or addition, as it deals with an uncertain contingency, which may or may not arise.

5. A detailed counter affidavit has been filed by the 4th respondent,  wherein it is stated that on examination of the deed, tenant has been given the right to carry out a construction of the building as per clauses 16 and 17, and since such authority tr