VARKEY GEORGE Vs. DISTRICT REGISTRAR OF DOCUMENTS
LAWS(KER)-1963-11-17
HIGH COURT OF KERALA
Decided on November 29,1963

VARKEY GEORGE Appellant
VERSUS
DISTRICT REGISTRAR OF DOCUMENTS Respondents

JUDGEMENT

- (1.)THESE two writ applications raise a common question as to whether the imposition of duty on two transactions of sale which admittedly took place within the Kumaranelloor amsom is warranted by the provisions of law. I propose to dispose of these writ applications by a common judgment since the facts are very similar, if not identical. The transaction relating to which the duty was imposed so far as 0. P. No. 2637 is concerned, is a sale evidenced by Ext. P 1 therein, dated 4 81962, and the transaction with reference to O. P. No. 2638 is another sale deed of the same date and copy of which is Ext. P 1 in that writ application.
(2.)THE sections of the enactment, the Kerala Panchayats act, 1960 (hereinafter referred to as the Act), which has imposed duty are S. 66 (4) and 71. THEy read: "66 (4) A duty shall also be levied in every panchayat area on certain transfers of property in accordance with the provisions of S. 71". 71. Duty on transfer of property: (I) THE duty on transfer of property shall be levied (a) in the form of a surcharge on the duty imposed by the kerala Stamp Act, 1959, on every instrument of the description specified below, which relates to the immovable property situated in the area under the jurisdiction of a Panchayat; and (b) at such rates as may be fixed by the Government not exceeding four pet centum on the amount specified below against such instruments: Description of instrument. Amount on which duty should be levied. (i) Sale of immovable property. THE amount or value of the consideration for the same as set forth in the instrument. (ii) Exchange of immovable property. THE value of the property of the greatest value as set forth in the instrument. (iii) Gift of immovable property. THE value of the property as set forth in the instrument. (iv) Mortgage with possession of immovable property. THE amount secured by the mortgage as set forth in the instrument. (v) Lease in perpetuity of immovable property. An amount equal to one-sixth of the whole amount or value of the rents which would be paid or delivered in respect of the first fifty years of the lease as set forth in the instrument. (2) On the introduction of the duty aforesaid-fa) S. 28 of the Kerala Stamp Act, 1959 shall be read as if it specifically required the particulars to be set forth separately in respect of property situated in the area under the jurisdiction of a Panchayat and in respect of property situated outside such area; and (b) S. 62 of the Kerala Stamp Act, 1959, shall be read as if it referred to the Panchayat as well as Government. (3) THE Government may make rules not inconsistent with this Act for regulating the collection of the duty, the payment thereof to the panchayat and the deduction of any expenses incurred by the Government in the collection thereof. (4) THE amounts collected in the Panchayats in a taluk as surcharge on the duty on transfers of property under this section shall be pooled every year for the entire taluk and distributed among all the Panchayats in the taluk in accordance with the rules prescribed in that behalf".
Before the Kerala Panchayats Act, 1960, was enacted in the State of Kerala, there were in force several enactments. These have been repealed by S. 151 of the Act and they are the Madras District Boards Act, 1920, the Madras Village Panchayats Act, 1950, the Travancore-Cochin Panchayats Act, 1950 and the Malabar District Board Temporary Provisions Act, 1957.

As enjoined by S. 71 (1) (b) no rates have been fixed by the Government after the promulgation of the Act.

(3.)ON the above said facts, which alone I consider necessary for these writ applications, counsel for the petitioners raised elaborate arguments which can be classified under the following heads: (a) No Panchayat having been constituted under the Act, the charge under S. 66 and 71 cannot be implemented. (b) Even if the Panchayat is deemed to be constituted for any reason since there is no rate fixed under S. 7 (1) (b) the levy is unwarranted. (c) S. 23 of the Travancore-Cochin Interpretation and general Clauses Act, 1125 is not applicable and therefore there was no warrant for the levy. (d) In so far as the applicability of the provisions in the Madras District Boards Act, 1920, are limited to what is stated in sub-sections (2), (3) and (4) of S. 151, the levy in this case pertaining to transactions, which as I said earlier admittedly took place in the Kumaranellor amsom which was an area falling within the ambit of the Madras District Boards Act, 1920, is unsupportable.
Before I deal with these arguments, I must also mention that the name of the Panchayat concerned is Kodiyathur Panchayat and its area as has been specified by the Notification under S. 3 of the Act, takes in Kumaranelloor Amsom as well. Before the passing of the Act, there was a kodiyathur Panchayat constituted under the Madras Village Panchayats Act, 1950, but Kumaranelloor Amsom was not within the area of the Panchayat then. That amsom then was included under the Madras District Boards Act, 1920.

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