In the High Court of Judicature at Madras Dated :: 13..07..2011 Coram :: The Hon'ble Mr. Justice V. Dhanapalan Writ Petition No: 11195 of 2008 S.M. Jothiramalingam No: 2/92, Main Road Keelarajakularaman Rajapalayam Taluk Virudhunagar District Pin code – 626 136. ... Petitioner -vs- 1. The Secretary to Government State of Tamil Nadu Commercial Taxes and Registration Department Fort St. George Chennai – 600 009. 2. The Inspector General of Registration Raja Annamalaipuram Chennai – 600 028. ... Respondents .. .. .. Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records relating to the order in G.O. Ms. No: 63 Commercial Taxes and Registration (M2) Department, dated 28.01.2008 issued by the Secretary to Government, Commercial Taxes and Registration (M2) Department, Secretariat, Chennai–600 009, the 1st respondent herein and quash the same. For petitioner :: Mr. R. Muthukkannu For respondents :: Mr. L.P. Shanmugasundaram Additional Government Pleader .. .. .. O R D E R The Government order issued in G.O. Ms. No:63, Commercial Taxes https://hcservices.ecourts.gov.in/hcservices/ and Registration Department, dated 28.01.2008 issued by the Secretary to Government, the 1st respondent herein, has been called in question wherein the 1st respondent has passed an order cancelling the license of the petitioner as Document Writer. 2. It is the case of the petitioner that his father was a document writer and due to his very old age, he had discontinued the work after rendering 35 years of service in the field of document writing. While he was functioning, the petitioner had been with him for a long time and applied for document writer license and it was issued to him vide DR. License No: A-1125/99 – V.G.R., Virudhunagar dated19.03.1999 and it was valid upto 31.12.2008 and after that it was to be renewed by the Inspector General of Registration once in five years. While so, a show cause notice dated 02.03.1995 was issued to him by the 2nd respondent, wherein it has been alleged that as per the report of the District Registrar dated 15.12.2004, one Tmt. Valliammal approached the Document Writer Thiru.Jothiramalingam, the petitioner herein, and requested him to prepare a Rectification Deed to Document No: 198/94 in respect of incorrect survey number and difference in extent of Land Measurement in that document registered on 04.03.1994, for which the document writer told her that he was not able to write rectification deed but a new sale deed has to be written and for registration, an amount of Rs.15,000/- would be required; despite her repeated requests to prepare a rectification deed, he had not prepared Rectification Deed, but a new Sale Deed was prepared and registered as Document No.1814 / 2003, for which he demanded money to get back the document from the Registration Office, following which the said Valliammal complained the matter to the District Registrar, pursuant to which, the District Registrar recommended that his Licence may be temporarily cancelled. It is further alleged that the act of the Document Writer was in violation of conditions 5 (d) and (g) of Tamil Nadu Document Writer Licence Rules, 1982, (hereinafter referred to as 'Rules'), and hence in accordance with Rule 16 (3) of the Rules, he was directed to submit an explanation as to why his licence should not be cancelled permanently. He had submitted his explanation on 24.03.2005 denying the allegations with material evidence stating that the said Valliammal had presented the Sale Deed vide Document No: 106/93 and requested to prepare a Sale Deed and accordingly, the sale deed was prepared and registered. 3. The further case of the petitioner is that the 2nd respondent in his proceedings dated 10.11.2005 issued an order cancelling his Document Writer Licence temporarily for a period of six months. Aggrieved by the said order, he preferred an appeal before the 1st respondent herein on 29.12.2005. Thereafter, the 1st respondent passed an order cancelling the petitioner's Document Writer Licence permanently. Challenging the said order on the ground that permanent cancellation of licence is contrary to law, illegal, untenable and unsustainable, the petitioner is before this court. https://hcservices.ecourts.gov.in/hcservices/ 4. According to the petitioner, the entire episode of the said Tmt.Valliammal is one without substance and that the case has not been dealt with by the respondents in a proper perspective. As to the allegation of the complainant that despite several requests made by her, the petitioner prepared the Sale Deed instead of the Rectification Deed, the District Registrar, in his report dated 15.12.2004 without scrutinizing the survey number, extent and boundary of the two documents, came to the conclusion in support of the allegation and therefore, the action initiated against the petitioner which resulted in cancellation of licence is discriminatory, offending Articles 14 and 16 of the Constitution of India and the impugned order is one passed without considering the relevant materials and evidence. The petitioner also contends that no reasonable opportunity was given to him before cancelling the licence and hence, prays this Court to quash the impugned order and allow this writ petition as prayed for. 5. Respondents have filed their counter inter alia stating that the District Registrar, Virudhunagar, who conducted the enquiry on the complaint of Tmt. Valiammal has clearly stated that the petitioner has refused to draft a Rectification Deed as requested by her repeatedly and told her that Rectification Deed cannot be written and only a sale deed can be written and for registering the sale deed Rs.15,000/- was required as expenses and hence, the averment of the petitioner that he prepared the sale deed on the basis of the title document No: 106/1993 is not tenable. Therefore, the 1st respondent has passed the order dated 28.01.2008 in G.O. (Rt.) No: 63, Commercial Taxes and Registration Department dated 28.01.2008 after considering the representation of the petitioner and the issue involved in the matter in a proper perspective and therefore, the order of cancellation of the petitioner's licence is well within limits and the provisions of the Tamil Nadu Document Writer's Licence Rules, 1982. It is further stated that Tmt.Valiammal had requested the petitioner only to prepare a Rectification Deed to rectify some errors in Survey number and extent crept in the original sale deed bearing Document No: 198/1994 and therefore, there is no need to prepare a sale deed and hence, the complainant could not have asked the petitioner to prepare a sale deed as she had already purchased the property. The District Registrar, Virudhunagar, who conducted an enquiry on the complaint preferred by the complainant has held that the petitioner prepared a sale deed unnecessarily against the request of Tmt. Valliammal and also asked Rs.15,000/- for registration and release of the document. Hence, the averment of the petitioner that he prepared a sale deed based on the title deed bearing No: 106/1993 is not true. 6. According to the respondents, the duty of a Document Writer is only to write a document as required by public. The Registering Officer will decide the chargeability of the document. The petitioner, being a Document Writer, has no authority to decide as to the nature and chargeability of the duty under the Act. As the petitioner has prepared a sale deed instead of a Rectification Deed actually required, https://hcservices.ecourts.gov.in/hcservices/ the complainant was landed in a situation to pay stamp duty not only for the land but also for the building she has constructed in the land already purchased by her. Hence, she has preferred a complaint against the petitioner for his wrong doing. Departmental action against the Sub Registrar was also initiated under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules as to the demand of gratification. Hence, the contention that selective action was taken against the petitioner alone, which is discriminatory, is denied as false. 7. It is also the stand of the respondents that the appeal of the petitioner made under Rule 17 (b) of the Rules was considered by the 1st respondent, who after finding that there is no need to re-issue the Licence to the petitioner, rejected the appeal and permanently cancelled the licence of the petitioner, by his order dated 28.01.2008 in G.O. (Rt.) No 63, Commercial Taxes and Registration Department. It is further submitted by the respondents that the petitioner has clearly violated the conditions (d) and (g) annexed to the Licence and caused hardship to public and hence, the petitioner cannot seek equity on the ground of compassion and thus, the respondents prayed for dismissal of the writ petition. 8. Mr.R.Muthukannu, learned counsel appearing for the petitioner, in his submissions, has strenuously contended that the licencing authority shall have the power to suspend licence for a period not exceeding one month at a time in case of misconduct or unsatisfactory conduct and it cannot permanently cancel the licence which would not only affect the basic livelihood of the person but will infringe the right guaranteed under Article 19 (1) (g) of the Constitution of India. He would further contend that the licencing authority must hold an enquiry before passing an order of cancellation taking evidence from both the complainant as well as the person against whom the complaint has been made. On the contrary, without affording an opportunity of hearing, the authority has permanently cancelled the licence. It is also his contention that the cancellation of licence for the alleged violation of conditions of licence cannot be a ground to go for a stringent punishment of permanent cancellation of licence when the authority has no satisfactory reasons that the licensee alone has committed a mistake, when it could be proved to have been committed by the complainant also. 8a. In support of his contentions, learned counsel appearing for the petitioner has relied on the following decisions of this court : (i) 2011 (4) C.T.C. 1 (Raja Sherifuden vs. State of Tamil Nadu) "5. The allegation against the petitioner is that the value of the property set forth in the Sale Deed registered as Document No: 920/1992 is not the true value. The respondents came to such conclusion based upon the value of the property stated to have been set forth in an https://hcservices.ecourts.gov.in/hcservices/ unregistered Agreement dated 5.8.1992. It appears that the said Agreement was typed by the petitioner. In respect to the show cause notice, the petitioner stated that the unregistered Agreement was not prepared by him and the petitioner typed the draft brought by the parties/ The petitioner further stated that he does not remember the valuation in the unregistered Agreement and when he prepared the Sale Deed dated 9.11.1992, it was according to the direction of the parties. Therefore, the petitioner contended that he did not violate any of the terms ad conditions of the licence. 6. .... .... ...... 7. .... .... ...... 8. In such peculiar factual situation, it can hardly be stated that a document writer could be held responsible for the value of the property, which had been mentioned in the document and to find fault with the document writer, after completion of the registration process and after the Registering Authorities were satisfied with the value mentioned in the document, appears to be farfetched. The very basis of the show cause notice itself is based on an unregistered Agreement dated 05.08.1992. The petitioner has stated that he has not drafted the said agreement, but he has only typed the same. Therefore, a person, who is not the scribe cannot be held to be responsible for the contents of the document, unless there is evidence to the said effect. However, in the instant case, the Licencing Authority did not even hold an enquiry before passing the order of cancellation of licence. It appears that the Licencing Authority was guided by a report received from the Inspector of Police dated 13.8.1996. It is stated by the petitioner, the copy of such report was not furnished. According to the petitioner, he has mentioned the value of the property as stated by the parties. " (ii) 2004 (3) Law Weekly 514 (C.S. Nagarajan vs. The State of Tamil Nadu & others) " 5.3.5. In the absence of any such statutory provision, there is no duty cast on the petitioner either to collect his memory with respect to the agreement for sale dated 9.6.1993 under which property was sought to be sold, much less the valuation or consideration of the same; nor he is expected to compel the parties to produce the copy of the agreement for sale particularly when such agreement for sale was neither registered nor referred to in the sale deed dated 7.10.1993. Hence, the petitioner cannot be found fault with for any such suppression or misrepresentation by the parties with respect to the https://hcservices.ecourts.gov.in/hcservices/ consideration or valuation of the property in the sale deed dated 7.10.1993 agreed to between the parties and consequently, the findings that the petitioner had colluded with the parties to the sale deed dated 7.10.1993 for evading stamp duty with respect to Document No: 1843/93 and was responsible for the loss of revenue to the State are again arbitrary, perverse and unreasonable. " (iii) 2002 (1) C.T.C. 151 (K. Arunachalam Pillai & 3 others vs. State of Tamil Nadu) " 5.7 On the other hand, if the Licensing Authority proposed to place the licensee under suspension pending an enquiry, under such circumstances, of course, it is difficult to specify the length of time; but such order of suspension should disclose the pendency of an enquiry on the alleged misconduct or unsatisfactory work. In the instant case, the impugned order does not refer to any such disciplinary action proposed under Rule 16 (3) of the Rules, nor any pendency of criminal case against the petitioners with regard to the alleged use of spurious stamp papers, and therefore deprived the right of the petitioners to work for their livelihood by writing documents, arbitrarily and unreasonably, which certainly attracts Article 14 of the Constitution of India, and also violates Article 21 of the Constitution of India which clubs life with liberty, dignity or person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence, as observed in D.K. Yadav vs. J.M.A. Industries Ltd. 1993 (3) SCC 259. " (iv) 1993 (3) SCC 259 (D.K.Yadav vs. J.M.A. Industries Ltd.) "12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory https://hcservices.ecourts.gov.in/hcservices/ dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. 14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress16 the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside." 9. Per contra, Mr.L.P.Shanmugasundaram, learned Additional Government Pleader appearing for the respondents would contend that on verification of the allegations made by the complainant and after conducting an enquiry, it was clear that the petitioner had refused to prepare a Rectification Deed, but he insisted on the complainant to go in for a Sale Deed and also demanded money for registration of the sale deed and all these aspects were taken into account while considering the representation of the petitioner and the issue involved in the matter was looked into in a proper perspective and thereafter, the authorities have passed the order. He would further contend that as per Rule 16 (2), the licencing authority is empowered to suspend the licence of the "Document Writer" for any length of time for misconduct or unsatisfactory work and, therefore, the order is passed by the respondents taking into account the violation of conditions (d) and (g) of the Document Writer Licence Rules and there is no infirmity in the act of the respondents in cancelling the licence permanently. 10. Heard the learned counsel for the parties and perused the records. 11. It is not in dispute that the petitioner's father was a Document Writer and because of his old age he could not continue and, therefore, the petitioner had applied for a "Document Writer Licence" and the same was granted to him vide D.R. Licence No: A-1125/99 and V.G.R., Virudhunagar dated 19.03.1999 and it was valid upto 31.12.2008 and after that it was to be renewed by the Inspector General of https://hcservices.ecourts.gov.in/hcservices/ Registration once in five years. However, on 02.03.2005 itself, the 2nd respondent issued a show cause notice alleging that the petitioner had violated the conditions of licence in conditions 5 (d) and (g) of Tamil Nadu Document Writers License Rules, 1982 and also the Rules by insisting on the complainant Tmt.Valliammal to go in for a Sale Deed inspite of her repeated requests to prepare a "Rectification Deed" and asking for fees for registration of the same. It is the stand of the respondents that there is no need to prepare a new Sale Deed for the reason that the complainant could not have asked the petitioner to prepare a Sale Deed as she had already purchased the property. Therefore, the respondents conducted an enquiry on the complaint preferred by Tmt.Valliammal and thereafter, issued a show cause notice on 02.03.2005, for which the petitioner submitted an explanation on 24.03.2005, in which he has taken a stand that Tmt.Valliammal had presented the Sale Deed in Document No: 106 of 1993 and requested him to prepare a new Sale Deed and accordingly, he prepared the sale deed which was presented for registration. 12. From a perusal of the records, it is seen that the 2nd respondent issued an order on 10.11.2005, cancelling the petitioner's document writer licence temporarily for a period of six months. Aggrieved by the said order, the petitioner preferred an appeal before the 1st respondent on 29.12.2005, who ultimately passed an order cancelling the petitioner's Document Writer Licence permanently. To examine as to whether there are legal infirmities in the above orders, relevant provisions of the Tamil Nadu Document Writers Licence Rules have to be analysed. Rule 16 of the Rules provides for "Suspension and cancellation of the licence". Clause 1 of Rule 16 contemplates that the District Registrar shall have the power to suspend the licence of the document writer in his district for a period not exceeding a month at a time for misconduct or unsatisfactory work. Clause 2 provides that the Licensing Authority shall have the power to suspend for any length of time the licence of a document writer for misconduct or unsatisfactory work. Clause 3 provides that the Licensing Authority shall have the powers to revoke or cancel the licence of a document writer for misconduct or unsatisfactory work or for any disqualification prescribed in rule 5, or for breach of any of the conditions of the licences after giving him an opportunity to show cause as to the action proposed to be taken against him. Further, Rule 17 (a) of the Rules contemplates that an appeal against an order passed by the District Registrar under Rule 16 shall be made to the Licencing Authority within two months from the date of the order. 13. A reading of the above provisions would make it clear that the competent licensing authority to cancel the licence of the petitioner is the Inspector General of Registration, the 2nd respondent herein and the 1st respondent is the appellate authority. Both of them are empowered to deal with the matter in a case of a licensee who has committed misconduct or unsatisfactory work. In this case, the petitioner has been issued with a show cause notice alleging that he https://hcservices.ecourts.gov.in/hcservices/ has insisted on the complainant Tmt.Valliammal to go in for a Sale Deed inspite of her requests to prepare a Rectification Deed in Document No.198 of 1994. It is seen from the order passed by the original authority that he invoked the provisions under Rule 16 (2) of the Rules which contemplates that the licencing authority shall have the power to suspend, for any length of time the licence of a document writer for misconduct or unsatisfactory work. Therefore, he cancelled the petitioner's licence for a period of six months and thereafter, the matter went before the appellate authority. The appellate Authority has invoked Section 16 (3) of the Rules which empowers the licencing authority to revoke or cancel the Document Writer licence for misconduct or unsatisfactory work or for any disqualification prescribed in Rule 5 or for breach of any of the conditions of the licences after giving him an opportunity to show cause as to the action proposed to be taken against him. Under Rule 17 (a), an appeal against an order passed by the District Registrar under Rule 16 shall be made to the Licensing Authority within two months from the date of the order. Rule 17 (b) provides that an appeal against the orders of the Licensing Authority shall lie to the State Government within two months from the date of the order. In the instant case, the appellate authority has invoked the provisions under Section 16 (3) of the Rules for permanent cancellation when the original authority has cancelled the license only for a period of six months. In the given situation, the appellate authority should have assumed the power of the licensing authority to revoke or cancel the licence of a document writer, after giving him an opportunity to the petitioner to show cause against the action proposed to be taken against him. That is not done in this case. The entire provision under Section 16 (3) is violated and the appellate authority has not even applied his mind to give due consideration to the powers contemplated under Rule 16 (3) to revoke or cancel the license, without giving an opportunity to the petitioner. 14. An analysis of the relevant materials would ex-facie reveal that the action of the respondents is contrary to the provisions made under Section 16 (3) as well as 17 (b) of the Rules and that the authorities are not empowered to do such act of cancelling the document writer licence permanently without following the procedures contemplated under Section 16 (3) of the Rules. Therefore, on the point of jurisdiction as well as on the point of violation of the procedures contemplated under the relevant Rules, this Court is of the opinion that the authorities have mechanically invoked the provisions under Rule 16 (3) and had cancelled the petitioner's document writer licence permanently which infringes the right of the petitioner guaranteed under Article 19 (1) (g) of the Constitution of India. 15. One more question raised by the petitioner is that by virtue of the impugned order, the petitioner's right to livelihood guaranteed