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2018 DIGILAW 803 (KER)

V. Ummer Haji S/o Assu Haji v. State of Kerala Represented By The Secretary To The Public Works Department

2018-10-09

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The prayers in this Writ Petition (Civil) are as follows: (a) Call for the records leading up to Ext.P2 document and delete the direction to produce Rs.95,400/-as the value of stamp paper to execute the agreement. (b) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to permit the petitioner to execute the agreement in the stamp paper worth Rs.200/-as stipulated in the Kerala Stamp Act to execute the work awarded as per Ext.P1 order. 2. Heard Sri. C.M.Mohammed Iquabal, the 3. According to the petitioner, he is a PWD learned counsel for the petitioner and Sri.K.V.MAnoj Kumar, the learned Senior Government Pleader appearing for the respondents. Contractor, who undertakes various works of the Public Works Department as well as other related works. That the respondents had invited tenders from interested persons in respect of the execution of a work in relation to NABARD RIDF XX-construction of Mambilichikadavu Bridge in Vengapally Grama Panchayath in Wayanad District, as per proceedings dated 27.2.2018. Pursuant to the same the petitioner had submitted a tender bid within the stipulated time limit. Thereafter the technical bids submitted by various bidders including the petitioner were opened by the competent Authorities among the respondents on 27.4.2018. The financial bids in that regard were opened on 18.6.2018. It was found by the competent Authority among the respondents that the petitioner is the lowest tenderer/bidder and accordingly Ext.P1 proceedings dated 18.8.2018 was issued by the 2nd respondent, the Chief Engineer, PWD Bridges, whereby it was ordered that the said Authority has accepted the lowest quoted amount of Rs.9,53,72,670/-(Rupees Nine crores fifty three lakhs seventy two thousand six hundred and seventy only), which was submitted by the petitioner. Later, in pursuance of Ext.P1 selection proceedings dated 18.8.2018, the 3rd respondent, the Superintending Engineer had issued Ext.P2 letter dated 11.9.2018 calling upon the petitioner to execute the formal agreement in that regard with the respondents for the above said work in question for the amount of Rs.9,53,72,670/- and that the agreement in that regard is to be executed in stamp paper worth Rs.95,400/-and also to fulfill the other formalities mentioned in Ext.P2. The grievance of the petitioner projected in this writ petition is that the direction issued by the 3rd respondent in Ext.P2 calling upon the petitioner to execute the formal agreement with the respondents in stamp paper worth Rs.95,400/- is uncalled-for and illegal and that as per the previous procedure the agreement is to be executed in the stamp paper worth Rs.200/-, etc. It is only on this point that the petitioner has raised a dispute in the present writ proceedings. It is not in dispute that the Schedule to the Kerala Stamp Act, 1959 has been amended by the Kerala Finance Act, 2018, effective from 1.4.2018, whereby certain provisions have been amended in Article 5 of the said Schedule appended to the Kerala Stamp Act, 1959. As per the said amended provision made effective from 1.4.2018, Clause (c) of Article 5 has been ordered to be re-lettered as Clause (g) thereof and that before Clause (g) so re-lettered, Clauses (e) and (f) have been newly inserted. The provisions contained in Article 5 of the said Schedule after the said amendment made effective from 1.4.2018 now reads as follows: (5) Agreement or memorandum of an agreement- (a) If relating to the sale of a bill of exchange One rupee (b) If relating to the sale of Government security or share in an incorporated company or other body corporate One rupee for every Rs.1000 or part thereof of the value of the security or share. (c) If relating to giving authority or power to a promoter or developer, by whatsoever name called, for construction, development or sale or transfer (in any manner whatsoever)of any immovable property The same duty as a conveyance (under 21 or 22 as the case may be) on the value or the estimated cost of proposed development construction/of such property as the case may be.) (d) If relating to monthly deposit scheme (MDS) similar to that of chitties, of whatever name called, between a co-operative Bank/Society and a depositor One hundred rupees in respect of each depositor (e) If relating to advertisement on mass media, made for promotion of any product or programme or event with an intention to make profit or business out of it or conferring exclusive rights of telecasting, broadcasting or exhibition of an event or a film. Rupees 500 per contract (f) If relating to public works or service level agreements One rupee for every rupees 1000 or part thereof on the amount agreed in the contract, subject to a minimum of rupees 200 and a maximum of rupees one lakh. (g) If not otherwise provided for Two hundred rupees 4. From the reading of the amended provisions contained in Article 5 of the Schedule it can be seen that none of the provisions contained in Clauses (a) to (e) thereof are applicable in the instant case, which is in relation to a public works contract. Clause (f) as so newly introduced, from 1.4.2018 explicitly provides that if the agreement is in relation to public works or service level agreement, then the stamp duty payable is one rupee for every Rs.1000/-or part thereof on the amount agreed in the contract, subject to a minimum of Rs.200/- and a maximum of rupees one lakh. Therefore, there cannot be any dispute that as far as the present agreement in relation to the execution of a public works contract is concerned, it will certainly be governed by Clause (f) of Article 5. If that is the position, Clause (g) of Article 5 which is a residuary clause, will not apply. Since Clause (f) of Article 5 is applicable, and as the total value of the public works contract is Rs.9,53,72,670/-, the insistence in Ext.P2 that the agreement should be executed in the stamp paper worth Rs.95,400/-, cannot be faulted in view of the new prescription in Clause (f) of Article 5. 5. However, Sri.Mohammed Iquabal, the learned counsel for the petitioner would fervently urge that in the instant case, the tenders were invited by the respondents as per proceedings dated 25.2.2018 and that therefore the law relating to the stamp duty as on 25.2.2018 should be the one that is applicable and that in such a case the agreement he could be executed is only in stamp paper worth Rs.200/-. In the instant case, though the tenders were invited pursuant to the notification dated 25.2.2018, the process of opening of the technical bids and financial bids could be completed on 25.4.2018 and 18.6.2018 respectively. It is thereafter that the selection notice as per Ext.P1 has been issued by the 2nd respondent the Chief Engineer on 18.8.2018. In the instant case, though the tenders were invited pursuant to the notification dated 25.2.2018, the process of opening of the technical bids and financial bids could be completed on 25.4.2018 and 18.6.2018 respectively. It is thereafter that the selection notice as per Ext.P1 has been issued by the 2nd respondent the Chief Engineer on 18.8.2018. Only after the issuance of the selection notice as per Ext.P1, could the 3rd respondent issue the instant proceedings as per Ext.P2, which has been issued on 11.9.2018. It is trite that the stamp duty payable should be determined on the basis of the law relating to the stamp duty as it exists as on the date of execution of the agreement. The agreement in question could have been executed only after 11.9.2018. Since that is the position, the amended provision contained in Clause (f) of Article 5 of the Schedule to the Kerala Stamp Act, 1959, which has been newly inserted as per the Kerala Finance Act, 2018, made effective from 1.4.2018, would certainly apply to the present transaction in question. Hence the above said contention of the petitioner cannot be legally countenanced. In that view of the matter, the impugned stand of the respondents in respect of the requirement of the stamp paper, cannot be said to be illegal or unreasonable. Accordingly, the prayers in this writ petition are liable to be rejected and it is so ordered. 6. However, Sri.Mohammed Iquabal, the learned counsel for the petitioner submits that the time limit for execution of the agreement as stipulated in Ext.P2 dated 11.9.2018 is within a period of 28 days therefrom and would pray before this Court that a direction may be issued that the said time limit may start to run from the date of receipt of a copy of this judgment. Having regard to the fact that the writ petition filed by the petitioner has been pending before this Court since 1.10.2018, it is ordered in the interest of justice that the time limit of 28 days fixed in Ext.P2 may run from the date notified for receiving a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.