w w w . L a w y e r S e r v i c e s . i n



Zuri Hotels And Resorts (P) Ltd. v/s Additional Thahsildar

    W.P. (Civil) No. 10939 of 2017

    Decided On, 05 March 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appearing Parties: Basil Mathew, Mohammed Anzar K J, Ninan John, S. Sreekumar, T.O. Deepa, Advocates.



Judgment Text

This writ petition is filed by the petitioner company registered under the Indian Companies Act, 1956 challenging Ext.P1 order passed by the Additional Tahsildar, Kottayam dated 5.2.2016, whereby mutation sought for by the petitioner to a property is declined stating that, in accordance with the legal advice provided by the Advocate General, stamp duty is not levied on the document as per section 17(2) of the Registration Act and there is no valid execution of proper document as per section 54 of the Transfer of Property, Act and since the company is in possession of 15 acres of land in violation of section 82 of the Kerala Land Reforms, Act and as per the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008.

2. Material facts for the disposal of the writ petition are as follows; in the years 2001 and 2002, M/s.Laguna Kumarakom Resorts Private Limited has purchased 6 hectares and 89.22 Ares of property situate in Re-sy Nos.38/11-1, 38/11-2, 38/16-3, 38/14, 38/13, 38/17, 38/10-2, 38/1-2, 38/12, 38/6, 38/2, 38/3, 38/4, 38/5, 38/15, 38/16-5, 39/1-2, 39/2-2, 39/6-3, 39/6-2, 38/16-6, 39/7-2, 38/7, 38/9, 38/8, 38/10/1, 39/13/2, 39/24/4 and 39/24/5 in Block No.12 of the Kumarakom Village. Respondent No.2 effected mutation of the properties in favour of M/s.Laguna Kumarakom Resorts Private Limited as per Thandaper account Nos.5141, 5646, 5648 and 5049 and thereafter issued Ext.P3 series of tax receipts. Subsequently M/s.Laguna Kumarakom Resorts Private Limited was amalgamated with M/s.Zuri Hospitality Private Limited, herein after called, "ZHPL", as per Ext.P5 order of the High Court of Judicature, Bombay. As per Ext.P5 order M/s.Laguna ceased to exist and all the above properties stood transferred and vested in ZHPL.

3. Thereafter, Ext.P6 application dated 17.4.2012 was submitted before respondent No.2 for mutation of the said properties in the name of ZHPL. Thereupon, as per Exts.P7 and P8, de-merger order of the High Court of Judicature, Bombay, Goa Bench, the said property stood transferred to and vested in the name of the petitioner. Therefore, petitioner has submitted Ext.P9, a fresh application before respondent No.2 for mutation of the said properties in its name. Despite repeated attempts by the petitioner, respondent No.2 failed to effect mutation of the properties. On 4.2.2014 petitioner submitted Ext.P10 application through its Advocate to expedite the process and dispose of the mutation application. However, in spite of all earnest efforts, no fruitful results could be achieved.

4. Matters being so, on 3.2.2016, petitioner submitted Ext.P12 application under the Right to Information Act enquiring the status of Ext.P9 application. Accordingly, petitioner was provided with Ext.P1 order with a covering letter dated 18.2.2016 rejecting the application submitted by the petitioner seeking to effect mutation of the property along with Ext.P13 opinion issued by the office of the Advocate General. It is thus aggrieved by Ext.P1 order and seeking other consequential reliefs, this writ petition is filed.

5. I have heard learned senior counsel for petitioner, learned Special Government Pleader and perused the pleadings and documents on record.

6. Learned senior counsel for petitioner submitted that, Ext.P1 order passed by the 2nd respondent is without understanding the true implication of law as is contemplated under sections 17 & 18 of the Registration Act, 1908. Petitioner has sought to effect mutation of the properties as per Ext.P9 on the basis of the de-merger order passed by the High Court of Judicature, Bombay, Goa Bench. It is on the basis of the said de-merger order, petitioner became vested with the properties. Therefore, according to the learned senior counsel for petitioner, since petitioner became vested with properties on the basis of the order passed by the High Court of Judicature, Bombay there is no requirement for compulsory registration of the document as is required under the ordinary circumstances. It is also contended by learned senior counsel that, the order of a court on the basis of which rights and interest over a property is acquired, compulsory registration is not required and the same is a document, which is optional in nature as is contemplated under section 18 of the Registration Act. That apart it is contended that, even though, the Registration (Amendment) Bill, 2013 proposing to amend the Registration Act, 1908 was brought forth by including "instruments in respect of amalgamation, reconstruction, merger and de-merger of companies and transfer of immovable property at the time of formation of companies pursuant to any order made by the High Court under the Companies Act, 1956", the said amendment was not brought forth when the bill was transformed as an Amendment Act.

7. On the other hand, learned Special Government Pleader contended that, there is no properly constituted document executed by and between the parties and registered the same in accordance with the provisions of Registration Act, which disabled the petitioner from securing mutation in favour of the petitioner.

8. Having evaluated the situation, in my considered opinion, the subject issue revolves round sections 17 & 18 of the Registration Act, 1908, which read thus:

17.Documents of which registration is compulsory.- (l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Registration Act, 1866, or the Registration Act, 1871, or the Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

(f) Instruments purporting or operating to effect a contract for the sale of immovable property of the value of one hundred rupees and upwards;

(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) [any document other than the documents specified in sub-section (1A) ] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by [Government]; or

(viii) any instrument of partition made by a RevenueOfficer; or

(ix) x x x x x]

(x) x x x x x]

[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.

[x x x x]

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered

18. Documents of which registration is optional. Any of the following documents may be registered under this Act, namely:

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;

3[(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by section 17 to be registered.

9. On a reading of section 17, it is categoric and clear that, the orders passed by the High Court of Judicature, Bombay, Goa Bench viz., Exts.P7, de-merger order and consequential Wext.P8 certificate of incorporation are not compulsorily registrable documents in contemplation of section 17, whereas on a reading of clause [cc] of section 18, it is evident that, the petitioner became vested with the properties on the basis of Exts.P7 order of High Court, and Ext.P8 consequential Certificate of incorporation issued by the Registrar of Companies, and the registration is only optional. Further more, clause [f] of section 18 of the said Act makes it clear that, all other documents not required by Section 17 to be registered is a optional document as is contemplated under section 18. Therefore, the findings rendered by the 2nd respondent as per Ext.P1 cann

Please Login To View The Full Judgment!

ot be sustained under law with respect to the invalidity of the document enabling the petitioner to seek mutation. However, it is found thereunder that, petitioner is having property exceeding 15 acres and therefore, hit by section 85 of the Land Reforms Act It is also found thereunder that, the property is coming under the Kerala Conservation of Paddy Land and Wetland Act, 2008. 10. Taking into account the factual and legal circumstances pointed out above, I am of the considered opinion that, Ext.P1 order cannot be sustained under law to the extent, of holding that, there is no proper registration of document on the basis of Exts.P7 and P8 specified above, being arbitrary and illegal. Accordingly, I quash Ext.P1 to the said extent. 11. Therefore, there will be a direction to the 2nd respondent to re-consider the application taking into account the directions and observations contained above, and in accordance with law, and attain finality at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. However, I make it clear, if there is any proceeding pending under Kerala Land Reforms Act, the mutation effected shall be subject to such enquiry and orders. So also the 2nd respondent need to effect the mutation only in accordance with the tenure/nature of the land recorded in the revenue records. Writ petition is allowed to the above extent.
O R