Kerala Land Reforms & Development Coop. Society Ltd. vs Distt. Registrar

appeals, all these appeals are decided and disposed of together by this

common judgment and order.

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2. Feeling aggrieved and dissatisfied with the impugned judgment(s)

and order(s) passed by the Full Bench of the High Court of Kerala at

Ernakulam, by which the Full Bench of the High Court has held that,

i) the benefit of remission of stamp duty is available only in

respect of instruments executed by or on behalf of a society or by

an officer or member thereof and instrument so executed should be

relating to the business of the society; and

ii) the benefit of remission can be claimed by the society only if,

but for such remission, the society, an officer, or the member, as the

case may be, would have been liable to pay such stamp duty, the

Kerala Land Reforms & Development Cooperative Society Limited,

Federal House Construction Cooperative Society Limited & Another,

N.B.Krishna Kurup and Others, Aluva Town Cooperative Housing

Society and the Central Excise & Custom Officers Housing Co-

operative Society Limited have preferred the present appeals.

3. The particulars of each appeal(s) are as under:

ITEM CASE CAUSE TITLE APPELLANT(S) TRANSACTION NO. NUMBER INVOLVED 101 C.A. No. KERALA LAND Co-operative Sale deed 6588/201 REFORMS & Society executed by the ‘A’ 5 DEVELOPMENT Class Members of COOPERATIVE the Society in SOCIETY LTD. favour of the VERSUS Society.

DISTRICT REGISTRAR

2 (GENERAL) AND ANR 101.1 C.A. No. KERALA LAND Co-operative Sale deed 6830/202 REFORMS Society executed by the ‘A’ 2 VERSUS Class Members of THE DISTRICT the Society in REGISTRAR favour of the (GENERAL) AND Society ANR.

101.2 C.A. No. FEDERAL HOUSE Appellant 1. – Sale deed 6831- CONSTRUCTION Co-operative executed by the 6832/202 CO-OP SOCIETY Society Society in favour 2 LTD & ANR Appellant 2. – of the member VERSUS Member of the (Appellant No. 2) STATE OF KERALA Co-op Society of the Society (Appellant No. 1). 101.3 C.A. No. N.B. KRISHNA Members of the Sale deeds 6833/202 KURUP AND ORS Co-operative executed by the 2 VERSUS Society Society in favour DISTRICT (Including the of the members of REGISTRAR Impleaders) the Society. (GENERAL) KALPETTA AND ORS

101.4 C.A. No. ALUVA TOWN Co-operative Sale deeds 6834- COOPERATIVE Society executed by the 6836/202 HOUSING SOCIETY Society in favour 2 VERSUS of the members of THE SUB the Society REGISTRAR ERNAKULAM AND ORS 101.5 C.A. No. THE CENTRAL Co-operative Sale deeds 6837- EXCISE AND Society executed by the 6838/202 CUSTOMS Society in favour 2 OFFICERS of the members of HOUSING CO- the Society. OPERATIVE SOCIETY LTD VERSUS THE STATE OF KERALA AND ORS

4. The facts leading to the present appeals in a nutshell are as under:

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Section 35 of the Travancore-cochin Co-operative Societies Act,

1951 (hereinafter referred to as the ‘Travancore Act, 1951’) provided that

the Government, by notification in the gazette, may in the case of any

society or class of societies, remit the stamp duty with which, under any

law for the time being in force, instruments executed in favour of or by or

on behalf of a society or by an officer or member and relating to the

business of such society or any class of such instruments or awards of

the Registrar or Arbitrators under the Act are respectively chargeable.

A similar provision was made under the Madras Co-operative

Societies Act, 1932 (hereinafter referred to as the ‘Madras Act, 1932’) as

per section 30(2) of the said Act.

4.1 In exercise of the powers conferred under the Travancore Act,

1951 and Madras Act, 1932, the Government of Kerala by SRO No.

75/1960 dated 08.10.1960, directed that in respect of a co-operative

society registered in the State, the whole stamp duty with which under

the Kerala Stamp Act, 1959 instruments executed by or on behalf of any

registered co-operative society or instruments executed by officer of

such society or member in his own capacity or/and in the capacity of a

Guardian of minor and relating to the business thereof and decisions,

award or orders of the Registrar or the Arbitrators under the said Co-

operative Societies Act, there shall be remission of stamp duty. Clause

4 1(a) of SRP No. 75/60, which is relevant for determination of the issue in

question, reads as under:

“1. The stamp duty, registration fees and fees for Encumbrance Certificate payable under the Stamp Act and the Registration Act in force in the State shall be remitted to the Co-operative Societies, in the following cases to the extent indicated in each case.

(a) The whole stamp duty with which under the Kerala Stamp Act, 1959 (Act 17 of 1959) instruments executed by or on behalf of any registered Co-operative Society or instruments executed by “any officer of such Society or member in his own capacity or/and in the capacity of a guardian of minor” and relating to the business thereof and decisions, awards or orders of the Registrar or the arbitrators under the said Co-

operative Societies Act.”

4.2 By the Kerala Co-operative Societies Act, 1969 (hereinafter

referred to as the ‘Kerala Act, 1969’), which came into force on

15.05.1969, the Travancore Act, 1951 and the Madras Act, 1932 came to

be repealed. Section 110 of the Kerala Act, 1969 deals with Repeal and

Savings, which reads as under:

“110. Repeal and Savings – The Madras Co-operative Societies Act, 1932 (VI of 1932), as in force in the Malabar District referred to in sub- section (2) of S.5 of the State Reorganization Act, 1956 (Central Act 37 of 1956) and the Travancore-Cochin Co-operative Societies Act, 1951 (X of 1952) are repealed.

(2) Notwithstanding the repeal of the Madras Co-operative Societies Act, 1932 and the Travancore-Cochin Co-operative Societies Act, 1951 and without prejudice to the provisions of Ss.4 and 23 of the Interpretation and General Clauses Act, 1125 (VII of 1125).

(i) all appointments, rules and orders made, notifications and notices issued, and suits and other proceedings instituted, under any of the Acts hereby repealed shall, so far as may be, be deemed to have been respectively made, issued and instituted under this Act;

(ii) any society existing in the state on the date of commencement of this Act which has been registered or deemed to be registered under any of

5 the aforesaid repealed Acts shall be deemed to be registered under the Act, and the bye-laws of such society shall, so far as they are not inconsistent with the provisions of this Act, continue in force until altered or rescinded.”

4.3 Section 40 of the Kerala Act, 1969 provides for remission of stamp

duty, which reads as under:

“40. Exemption from certain taxes, fees and duties – (1) The Government may, be 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.”

4.4 The respective appellants herein were denied the benefit of

remission of stamp duty considering Section 40 of the Kerala Act, 1969,

more particularly the last part of the Section which provides that

remission is available only 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. It was the case on behalf of the appellants that with

respect to sale deeds in question, the appellants shall be entitled to

remission of stamp duty. As per clause 1(a) of SRO 75/60 and as per

Section 110(2) of the Kerala Act, 1969, notwithstanding the repeal of the

Travancore Act, 1951 and the Madras Act, 1932, all notifications under

the repealed Acts shall be deemed to have been respectively made,

6 issued and instituted under the Kerala Act, 1969. The matter reached up

to the Full Bench of the High Court. On interpretation of the relevant

provisions of the Kerala Act, 1969 and on interpretation of Section

110(2) of the Kerala Act, 1969 (repealed provision), the Full Bench of the

High Court has answered the reference as under:

“(1) SRO No. 75/60 issued under section 35 of the TC Act and section 30 of the Madras Act is saved by virtue of section 110(2) of the Kerala Act only to the extent it is not inconsistent with the provisions of the Kerala Act. (2) SRO No. 75/60 should be understood within the limitations of sections 110(2) and 40(1)(a) of the Kerala Act.

(3) The benefit of remission of stamp duty is available only in respect of instruments executed by or on behalf of a society or by an officer or member thereof and instrument so executed should be relating to the business of the society.

(4) The benefit of remission can be claimed by the society only if, but for such remission, the society, an officer or the member as the case may be, would have been liable to pay such stamp duty.”

Hence, the present appeals.

5. Shri Gopal Sankaranarayanan, learned Senior Advocate and

S/Shri Haris Beeran, K. Rajeev and R. Nedumaran, learned counsel

have appeared on behalf of the respective appellants and Shri Jayanth

Muthraj, learned Senior Advocate has appeared on behalf of the

respondents.

5.1 Learned counsel appearing on behalf of the appellants have

vehemently submitted that the Full Bench of the High Court has erred in

holding that on the sale deeds in question executed by the members of

7 the society in favour of the society and the respective sale deeds

executed by the society in favour of its members respectively, there shall

not be any remission of stamp duty.

5.2 Learned counsel appearing on behalf of the appellants have

vehemently submitted that in view of Section 110(2) of the Kerala Act,

1969, the notifications issued under the Travancore Act, 1951 and the

Madras Act, 1932 are saved and they are deemed to have been issued

under the Kerala Act, 1969. It is submitted that therefore SRP No. 75/60

which was issued in exercise of powers conferred under the Travancore

Act, 1951 and the Madras Act, 1932, which provides for remission of

stamp duty on the instruments executed by the co-operative society or

executed by a member in favour of the society, shall be applicable and

therefore on the instruments/sale deeds in question, there shall be

remission of stamp duty.

5.3 It is also submitted on behalf of the appellants that in the

instruments/sale deeds in question, it is specifically provided that the

liability to pay the stamp duty would be upon the society and therefore

also and considering the relevant provisions of the Kerala Act, 1969,

there shall be remission of stamp duty.

5.4 It is further submitted that denying the remission of stamp duty

paid on the instruments/sale deeds in question would defeat the object

8 and purpose of providing the exemption from payment of stamp duty

with respect to society.

5.5 Making the above submissions, it is prayed to hold that on the

instruments/sale deeds in question executed either by the members of

the society in favour of the society (Civil Appeal Nos. 6588/2015 &

6830/2022) and the sale deeds executed by the society in favour of its

respective members (rest of the civil appeals), there shall be remission

of stamp duty as per clause 1(a) of SRO No. 75/60.

6. While opposing the present appeals, Shri Jayanth Muthraj, learned

Senior Advocate has vehemently submitted that on true interpretation of

Section 110(2) of the Kerala Act, 1969 and having found that the

Travancore Act, 1951 and the Madras Act, 1932 and SRO 75/60 issued

in exercise of powers under the aforesaid Acts are not saved as they are

inconsistent with the provisions of the Kerala Act, 1969 (Section 40 of

the Kerala Act, 1969).

6.1 It is submitted that as per SRO 75/60, the instruments executed by

or on behalf of any registered co-operative society; instruments executed

by officer of such society and instruments executed by a member in his

own capacity or/and in the capacity of a Guardian of minor and relating

to the business thereof, there shall be remission of stamp duty. It is

submitted that however so far as the Kerala Act, 1969 is concerned, as

per Section 40 thereof, on the instruments executed by or on behalf of a

9 society or by an officer or member thereof and relating to the business of

such society and only 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, there shall be remission of stamp duty. It is submitted

that as per Section 40 of the Kerala Act, 1969, there shall not be any

remission of stamp duty in case any instrument is executed by a

member in his own capacity or/and in the capacity of a Guardian of a

minor, which was there in SRO 75/60. It is submitted that as per Section

30 of the Kerala Stamp Act, the payment of stamp duty is exempted in

respect of documents/sale deeds/instruments executed by or on behalf

of a co-operative society. It is submitted that therefore when the society

is not liable to pay the stamp duty, there is no question of any remission

of stamp duty. It is submitted that therefore the respective appellants

shall not be entitled to remission of stamp duty on the instruments/sale

deeds in question.

7. We have heard learned counsel for the respective parties at

length.

The appellants herein are claiming remission of stamp duty on the

respective instruments/sale deeds, the particulars of which are

reproduced hereinabove. In two cases, the sale deeds are executed by

the members in favour of the society and in rest of the cases, the sale

deeds are executed by the society in favour of respective members. The

10 respective appellants are claiming the benefit of remission of stamp duty

under clause 1(a) of SRO 75/60. It is the case on behalf of the

appellants that despite the repeal of the Travancore Act, 1951 and the

Madras Act, 1932, SRO 75/60 which was issued under the aforesaid

Acts is saved. However, as rightly interpreted and held by the Full

Bench of the High Court, the notification issued under the repealed Acts

shall be saved to the extent “so far as may be”. Therefore, on true

interpretation of Section 110(2) of the Kerala Act, 1969, the provisions of

the repealed Acts and/or the notifications and/or orders issued under the

repealed Acts is/are saved and/or deemed to have been issued under

the Kerala Act, 1969 to the extent the same is not at variance or

inconsistent with the provisions of the Kerala Act, 1969. The following

chart would demonstrate to what extent clause 1(a) of SRO 75/60 is

inconsistent with Section 40 of the Kerala Act, 1969:

S.R.O. No. 75 of 1960 clause 1(a) Kerala State Co-Operative States Act 1969 Sec. 40

1. instruments executed by or 1. instrument executed by or on behalf on behalf of any registered of a Society Co-operative Society;

2. instruments executed by 2. by an officer or member thereof any officer of such society.

3. Instrument executed by a 3. ______________ member in his own capacity or/and in the capacity of a guardian of minor.

4. relating to the business 4. relating to the business of such thereof. society

5. ______________ 5. in cases where, but for such

11 remission the society, officer or member, as the case may be, would be liable to pay such stamp duty;

8. From the aforesaid, it is apparent that the instruments executed by

a member in his own capacity or/and in the capacity of a Guardian of a

minor, which was there in clause 1(a) of SRO 75/60 is missing insofar as

Section 40 of the Kerala Act, 1969 is concerned. Section 40 of the

Kerala Act, 1969 further provides that only 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. As per Section 40 (1)(a), the stamp duty

chargeable under the Kerala Act, 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….. and 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, there shall be remission of

stamp duty. Thus, as clause 1(a) of SRO 75/60 is inconsistent with the

relevant provisions of the Kerala Act, 1969, more particularly Section 40

thereof, the said order is not saved and cannot be said to be deemed to

have been issued under the Kerala Act, 1969 (Section 110(2) of the

Kerala Act, 1969) as has been contended on behalf of the appellants.

Therefore, considering the express provision contained in Section 40(1)

(a) of the Kerala Act, 1969, a member of the society executing the

12 document in his own capacity or in the capacity of a Guardian or a minor

shall not be entitled to the benefit of remission of stamp duty.

9. In view of the above and for the reasons stated above, the

appellants herein shall not be entitled to the benefit of remission of

stamp duty on the instruments/sale deeds in question. Such

instruments/sale deeds in question cannot be said to be executed by or

on behalf of a society or by an officer or member thereof relating to the

business of the society. We are in complete agreement with the view

taken by the Full Bench of the High Court.

10. Under the circumstances, all these appeals fail and the same

deserve to be dismissed and are accordingly dismissed. However, there

shall be no order as to costs.

………………………………..J. [M.R. SHAH]

NEW DELHI; ……………………………….J. OCTOBER 14, 2022. [KRISHNA MURARI]

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