IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.04.2011 CORAM THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM W.P.No.14397 of 2001 Raja Sherifuden ... Petitioner Vs. 1.State, Represented by its Secretary, Commercial Tax Department, Fort St.George, Chennai – 600009. 2.The Additional Chit Registrar, Registrar Office, Santhome, Chennai -28. 3.The District Registrar, Registrar Office, Sivagangai. ... Respondents PRAYER: Writ Petition is filed under Article 226 of Constitution of India, praying to issue a Writ of Certiorari to call for the records in Ni.Mu.33095/I3/94, dated 16.09.1999 passed by the second respondent and G.O.(T) No.117, Commercial Tax Department dated 18.04.2001 passed by the first respondent and quash the same. For Petitioner :Mrs. R.T.Shyamala For Respondents :Mrs.M.Sneha G.A for RR1-3 O R D E R The prayer in the writ petition is for issuance of a writ of Certiorari to quash the order passed by the second respondent dated 16.09.1999 as confirmed by the first respondent dated 18.04.2001, cancelling the petitioner's document writers licence issued on 27.12.1983. 2.The facts of the case lie in a narrow campus. The petitioner was issued a document writers licence by the Licencing Authority on 27.12.1983. The licence contained the conditions, which have to be complied with and followed by the https://hcservices.ecourts.gov.in/hcservices/ petitioner. The third respondent issued a show cause notice dated 12.02.1992, stating that the value of the property in respect of a sale deed presented for registration bearing document No.920/1992 has not been truly set forth and the valuation of the said property in an earlier unregistered agreement dated 05.08.1992, was mentioned as Rs.98,910/- whereas the value in the sale deed was mentioned as Rs.58,000/- and since both the documents were prepared by the petitioner, he has violated Section 27 of the Indian Stamp Act and thereby caused loss to the State. In the show cause notice, a reference has been made to a letter dated 13.08.1996, copy of which was not furnished to the petitioner. The petitioner in his explanation dated 17.03.1997, stated that the agreement dated 05.08.1992 is an unregistered document and the petitioner has not drafted the said document, but has only typed the said document and the draft document was produced by the parties themselves. It was further stated that after several months, when the sale deed was to be prepared, on instructions received from the parties to the transaction, the petitioner had prepared a draft and typed the same and he does not remember as to whether the schedule in the unregistered document mentioned about the thatched sets in the property and in any event, the petitioner having not drafted the unregistered document, cannot be found fault. The second respondent by order dated 16.09.1999, cancelled the licence. Aggrieved by the such order, the petitioner prepared an appeal to the first respondent. The first respondent did not consider the matter on merits, but rejected the appeal on the ground of limitation and confirmed the order passed by the second respondent. Aggrieved by the same, the petitioner has preferred this writ petition. 3. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 4. The first question which falls for consideration is as to whether the first respondent was justified in rejecting the appeal petition as being barred by limitation. Rule 17(b) of the Tamil Nadu Document Writer Licence Rules 1982, states that an appeal against the order of the Licensing Authority shall lie to the State Government within two months from the date of the order. By relying upon the said provision, the Government rejected the petitioner's appeal as it was not been presented within 2 months from the date of the order of cancellation of the document writer's licence. The second respondent cancelled the licence by order dated 16.09.1999 and the appeal was presented on 27.12.1999 and therefore, the State Government held that the appeal is barred by limitation. However, one crucial fact, which was not taken into consideration is the date of communication of the order passed by the second respondent to the petitioner. It is not in dispute that the order passed by the second respondent dated 16.09.1999, cancelling the document writer's licence was https://hcservices.ecourts.gov.in/hcservices/ communicated to the petitioner only on 13.12.1999. Therefore, the correct interpretation would be that the period of limitation shall commence from the date on which the petitioner received such order. The Hon'ble Supreme Court in D.Saibaba vs. Bar Council of India [(2003) 6 SCC 186], held that the words “the date of that order” must be construed as meaning the date of communication or knowledge, actual or constructive of the order sought to be reviewed. Therefore, the order of the first respondent rejecting the petitioner's appeal has been barred, is not tenable. 5. Under normal circumstances, when the appeal has not been decided on merits, the matter is relegated back to the concerned authority to take a decision on merits. However, considering the fact that this writ petition has been admitted on 09.08.2001 and pending for nearly 10 years, I proceed to decide the matter on merits. 6. 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 unregistered agreement dated 05.08.1992. It appears that the said agreement was typed by the petitioner. In response 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 09.11.1992, it was according to the directions of the parties. Therefore, the petitioner contended that he did not violate any of the terms and conditions of the licence. 6. As seen from the records filed in the typed set of papers, the violation alleged is under Section 27 of the Indian Stamp Act. 7. Section 27 deals with facts affecting duty to be set forth in instrument. Condition No.(g) of the Licence conditions is paramateria with Section 27. It states that the consideration (if any) and the market value and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. Therefore, if the consideration or the market value has not been truly set forth as required to be done under Section 27, the Registering Authority is empowered to invoke its power under Section 47A of the Indian Stamp Act and refer the document to the Collector for determination of the market value of such property and the proper duty payable thereon. However, in the instant case, such procedure appears to have not been adopted, on the contrary, the Registering Authority was satisfied with the https://hcservices.ecourts.gov.in/hcservices/ value set forth in the document, completed the registration process by assigning document No.920/1992 and released the document to the party concerned. It is stated by the petitioner that prior to registration, the property was inspected by the District Registrar (Administration) on 14.12.1992 and he certified that the value of the property set forth in the document, is true and correct value. 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 the licence. It appears that the Licencing authority was guided by a report received from the Inspector of Police dated 13.08.1996. It is stated by the petitioner, the copy of the such report was not furnished. According to the petitioner, he has mentioned the value of the property as stated by the parties. 9. The only reason assigned for cancellation is that in the unregistered agreement, the parties had mentioned a higher value, whereas in the registered document, a lesser value was mentioned. The petitioner took two defences namely, that he had not drafted the unregistered agreement, but he had only typed the same and that he had forgotten about the value of the property mentioned in the unregistered agreement and had mentioned the value of the property in the sale deed as given by the parties. As, no enquiry was conducted by the second respondent, these aspects of the matter were not gone into. The second respondent in a summary manner concluded that the petitioner was at fault for having caused loss to the Government. An identical issue came up for consideration before this Court in C.S.Nagarajan vs. The State of Tamil Nadu, W.P.No.3205 of 2004, dated 11.02.2004. In the said case, a document writer's licence was cancelled on identical grounds and the appeal filed by the said document writer was rejected by the State Government as being barred by limitation. In the said judgment, this Court held that the limitation will commence from the date of communication or knowledge of the order and not from the date of order. On the second aspect as to whether the cancellation of the licence for alleged violation of condition No.(g) of the licence was valid, this Court considered https://hcservices.ecourts.gov.in/hcservices/ the scope of the condition of licence and held as follows:- 5.3.4. Similarly, a reading of condition (g) contemplates that the petitioner shall set forth and truly the consideration or the value of the property and all other facts and circumstances affecting the chargeability of any instrument with duty or the amount of duty with which it was chargeable. The condition that the licensee shall set forth the consideration or the value fully and truly would only indicate the consideration or the value that were agreed to between the parties to the document. The petitioner is only a document writer, who is obliged to write only what is agreed between the parties. The terms of the agreement for sale dated 09.06.1993 are relaxable by the parties to the sale, which cannot, in my considered opinion, be put against the document writer, to lead to the conclusion that the petitioner colluded with the parties, as the transaction relating to any conveyance thereon are purely binding the parties to such transaction. The petitioner in his explanation dated 23.12.1997 to the show cause notice dated 23.10.1997, submitted that the agreement for sale dated 09.06.1993 was not even registered. That apart, there is no provision under the Rules and conditions that the Document writer shall have a copy of the documents, and therefore, he had no occasion to keep track of the valuation and consideration mentioned therein for future transaction particularly when it was not brought to his notice at the time of writing the sale deed dated 07.10.1993 by the parties to the sale deed. 5.3.5. In the absence of any such statutory provision, there is no duty cast on the petitioner either to recollect his memory with respect to the agreement for sale dated 09.06.1993 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 07.10.1993. Hence, the petitioner cannot be found fault with for any such suppression or misrepresentation by the parties with respect to the consideration or valuation of the property in the sale deed dated 07.10.1993 agreed to between the parties and consequently, the findings that the petitioner had colluded with the parties to the sale deed dated 07.10.1993 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. 5.3.6. Hence, I am of the considered opinion, that the cancellation of the licence of the petitioner for the https://hcservices.ecourts.gov.in/hcservices/ alleged violation of the conditions (e) and (g) of the licence is untenable in law and violative of Articles 14 and 19(1)(g) of the Constitution of India. 10. The ratio laid down in the above decision squarely applies to the facts of the present case. Further, the document in question has been returned to the party concerned after compliance of the registration formalities and the Sub-Registrar, who entertained the document did not have any doubt regarding valuation of the property and accepted the value set forth in the instrument and released the document. Therefore, the petitioner cannot be held to be at fault by alleging that he had suppressed the correct value of the property in the sale deed. The petitioner's consistent case is that the value of the property was mentioned in the document as directed by the parties and there is no collusion and he is not responsible for any loss. However, these aspects of the matter have not been gone into by the respondents while cancelling the licence. 11. Hence for all the above reasons, this Court is of the firm view that the order of cancellation of the licence is arbitrary and unreasonable and liable to be set aside. Accordingly, the writ petition is allowed and the impugned order is set aside. It is made clear that this order has been passed by taking note of the peculiar facts and circumstances of the case, and this order should not be construed as if condition No.(g) of the licence condition is redundant. No costs. pbn Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary, Commercial Tax Department, Fort St.George, Chennai – 600009. 2.The Additional Chit Registrar, Registrar Office, Santhome, Chennai -28. https://hcservices.ecourts.gov.in/hcservices/ 3.The District Registrar, Registrar Office, Sivagangai. + 1 cc to M/s. R.T. Shymala, Advocate SR No.25811 + 1 cc to Government Pleader, SR No.25484 MG(CO) SR/19.4.2011 Order in W.P.No.14397 of 2001 https://hcservices.ecourts.gov.in/hcservices/