VARKEY GEORGE v. DISTRICT REGISTRAR OF DOCUMENTS — 1963 DIGILAW 363 (KER)

Judgment :- 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. 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". 3. 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. 4. As enjoined by S.71 (1) (b) no rates have been fixed by the Government after the promulgation of the Act. 5. 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. (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. 6. 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. 7. Counsel with reference to his arguments on the first point invited my attention to the definition of the term 'Panchayat' in S.2 (2) of the Act reading: "Panchayat" means the body constituted for the local administration of a Panchayat area under this Act". and emphasised that the Panchayat is the 'body constituted' and contended that till members are elected and a President and a Vice President (these officers are obligatory under the provisions of the Act) chosen, there can be no Panchayat at all. In this connection he invited my attention to S.3, 4 and 5 of the Act as also S.23. and emphasised that the Panchayat is the 'body constituted' and contended that till members are elected and a President and a Vice President (these officers are obligatory under the provisions of the Act) chosen, there can be no Panchayat at all. In this connection he invited my attention to S.3, 4 and 5 of the Act as also S.23. I do not think I must deal with these Sections at length, for, it appears to me that the provision that is applicable is that contained in S.147 (3) of the Act reading: "During the interval, between the dissolution and the reconstitution of a Panchayat all or any of the powers, functions and duties of the Panchayat and its President may be exercised and discharged, as far as may be and to such extent as the Government may by order direct, by such persons as may be appointed by the Government or such other authority as may be authorised by Government in this behalf". Government have so directed by Notification No. MS.194/62/DD dated 28121961. 8. Notifications have also been issued under S.3, 4 and 5, by the Government under S.3, & by the Director of Panchayats under S.4 and 5. In these circumstances, it appears to me impossible to contend that the levy is without the authority of law because there is no Panchayat in existence. A Panchayat, I think, is constituted by the Notification under S.3 declaring the area and by the Notification under S.4 by the Director constituting a Panchayat. The Government Pleader also invited my attention to subsection (3) of S.4 and the effect of this sub-section is to make the Panchayat constituted a Corporation. It is specifically provided in that sub-section that such a corporation will have perpetual succession and a common seal. The existence of such a corporation and its continuity cannot depend on there being or not being duly elected members of the Panchayat at any particular time. 9. The second and the third points formulated above can be dealt with together. There is no fixation of the rate under S.71 (1) (b) of the Act. In this connection, I must refer to the provisions of the Madras District Boards Act, S.74 and 110-A (which are similar to S.66 and 71 of the Act) and S.63 (2) and S.67 of the Madras Village Panchayats Act (which are also similar to S.66 and 71). In this connection, I must refer to the provisions of the Madras District Boards Act, S.74 and 110-A (which are similar to S.66 and 71 of the Act) and S.63 (2) and S.67 of the Madras Village Panchayats Act (which are also similar to S.66 and 71). In fact, the sections are almost identical excepting in this regard that the sections of the Madras District Boards Act and the Village Panchayats Act had provided for a maximum of five percent whereas S.71 has reduced the maximum to four per cent. There has been fixation of the rates for the purposes of the Madras District Boards Act as well as for the Village Panchayats Act and the fixation is at four per cent. These are evidenced by Exts. R 1 and R 2 produced along with the counter-affidavit filed on behalf of the State. Ext. R-2 pertains to the fixation under the Madras District Boards Act and Ext. R-1 to the fixation under the Madras Village Panchayats Act. 10. The question is whether such fixation under the above two statutes can be availed for the purpose of levy in view of S.23 of the Travancore-Cochin Interpretation and General Clauses Act. That section is in these terms: "Where any act is repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue is force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions sore-enacted". 11. It is urged that the section cannot apply for three reasons: [5] There has been no repeal and re-enactment. I ii] There is an express provision in the Act. [iii] There is inconsistency. 12. S.151 of the Act specifically repeals the Madras Village Panchayats Act as well as the Madras District Boards Act. (There are other Acts repealed but that is not material). And as far as the imposition of this duty is concerned, there has been, as I said earlier, very similar provisions in the two enactments repealed. So at any rate, as far as the imposition of a duty is concerned, the Act has been re-enacted. (There are other Acts repealed but that is not material). And as far as the imposition of this duty is concerned, there has been, as I said earlier, very similar provisions in the two enactments repealed. So at any rate, as far as the imposition of a duty is concerned, the Act has been re-enacted. One of the statutes repealed is the Travancore-Cochin Panchayat Act. That did not contain any provision similar to S.66 and 71. No duty has been imposed on transfers effected inside the Panchayat area. The present Act is applicable to the whole of the State. Definitely, therefore, there is an enactment now imposing duty making provisions therein which are similar to those in some of the repealed enactments and introducing the provisions into the area where another statute repealed had not imposed any such duty. Reference was made to the preamble to the Act wherein it is said that the purpose of the Act is to unify and consolidate the law relating to the Panchayats in the State and, therefore, it is urged that this is not a repealing and re-enacting statute. I am unable to accept this contention. The effect of a repeal and re-enactment can be to unify and consolidate the law. The fact that the motive in passing the legislation is stated to be to unify and consolidate the law pertaining to particular institutions like the Panchayat in the State does not necessarily lead to the conclusion that the statute is not a repealing and re-enacting one. 13. I am unable to discern any provision in the Act which expressly negatives the application of the rates fixed under the statutes repealed. Nor am I able to find any inconsistency between such fixation and the provisions in the statute, the Act. Inconsistency must be not between the statutes under which the fixation was made and the statute that has been re-enacted, but it must be, as I understand S.23 of the Travancore-Cochin Interpretation and General Clauses Act, between the fixation and the provisions of the re-enacted statute. Though the Madras District Boards Act and the Madras Village Panchayats Act had fixed the maximum rate of five per cent, the duty fixed is only four per cent. This four percent is warranted by S.71 111 (b) of the Act. So, between the fixation and the provisions of the statute there is no inconsistency. 14. Though the Madras District Boards Act and the Madras Village Panchayats Act had fixed the maximum rate of five per cent, the duty fixed is only four per cent. This four percent is warranted by S.71 111 (b) of the Act. So, between the fixation and the provisions of the statute there is no inconsistency. 14. I must confess that I find it difficult to follow the fourth point raised by counsel. As I understand it, counsel has been able to discern something in S.151 which has the effect of wiping out completely the Madras District Boards Act. The argument seems to be that the fixation under the District Boards Act has also vanished and there is nothing that can be continued either by virtue of S.23 of the Travancore-Cochin Interpretation and General Clauses Act or by virtue of the provisions of S.151 of the Act itself. Reference was made to S.151 of the Act reading as follows: 151. Repeals: (1) The Madras District Boards Act, 1920 (Act XIV of 1920), the Madras Village Panchayats Act, 1950 (Act X of 1950), the Travancore-Cochin Panchayats Act. 1950 (Act II of 1950) and the Malabar District Board (Temporary Provisions) Act, 1957 (Act VI of 1958), are hereby repealed and the special officer appointed for the Malabar District Board shall cease to hold office. (2) Such functions of the Malabar District Board as are the functions of a Panchayat under the provisions of this Act, shall stand transferred to the Panchayats concerned, and the remaining functions, if any, shall stand transferred to Government. (3) Save as provided in sub-section (2) and sub-section (4) and subject to such directions as the Government, may, by general or special order, give in this behalf, all buildings, institutions, properties and rights of whatever kind used, enjoyed or possessed by and all interests of whatever kind owned by or vested in or held in trust by or for the District Board as well as all liabilities legally subsisting against the said Board, shall pass to the Government who may thereafter transfer the same to such Panchayat as the Government may determine. The employees of the District Boar3 shall on the repeal of the Madras District Boards Act be deemed to be employees of the Government subject to such conditions of service as the Government may fix. The employees of the District Boar3 shall on the repeal of the Madras District Boards Act be deemed to be employees of the Government subject to such conditions of service as the Government may fix. (4) Such arrears of taxes, fees or other sums due to the District Board as relate to the respective Panchayat areas shall on transfer to a Panchayat under sub-section (3; be recovered by the Panchayat concerned". 15. Sub-section (4) can have no application since the duty levied does not relate to arrears of tax or fees and sub-section (2), if at all, only helps the imposition. But it is said that sub-section (3) talks of functions and the vesting of the functions. This is so. If the imposition of the duty is not one of the functions, then, perhaps the section cannot have any application. But it cannot certainly help counsel for the petitioners for contending that nothing validly done under the statutes repealed and which as I understand S.23 of the Travancore-Cochin Interpretation and General Clauses Act, has been continuing, cannot be made use of. As far as I can see, sub-section [3] of S.151 of the Act has also no relevancy. 16. In the result, these writ applications have to be dismissed and I do so and direct the petitioners in these writ applications to pay the costs of the respondents. Petitioners in O. P. No. 2637 will pay one-half and the petitioners in O. P. 2638 the other half of counsel's fee which I fix at Rs. 250'-. Dismissed.