IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 17371 of 2007(R) -------------------------------------- PETITIONER(S): ------------------------ S. USMAN, AGED 59 YEARS, NISHA MANZIL, 31ST MILE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT (RETD. SUB REGISTAR, SRO KATTAPPANA). BY ADV. MR.SUNIL V.MOHAMMED RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO TAX (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF REGISTRATION, KERALA, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 4. THE CHIEF GENERAL MANAGER, BSNL, KERALA CIRCLE, THIRUVANANTHAPURAM. R4 BY ADV. MR.VARGHESE P.THOMAS, SC, BSNL R4 BY ADV. MR.K.KESAVANKUTTY, SC, BSNL MR. MATHEW K.PHILIP GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 17371/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LOCAL AUDIT REPORT DT. 26.6.01 OF THE 3RD RESPONDENT. P2:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER THROUGH PROPER CHANNEL. P3:- COPY OF THE PENSIONARY CLAIMS SANCTION ORDER DT. 19.1.02 OF 2002 OF THE 2ND RESPONDENT. P4:- COPY OF THE REPRESENTATIONDT. 15.7.04 SUBMITTED BEFORE THE DIVISIONAL ENGINEER, TELECOM (BSNL), KATTAPPANA. P5:- COPY OF THE REPRESENTATION DT. 15.7.04 SUBMITTED BEFORE THE DIVISIONAL ENGINEER, TELECOM (BSNL) PAINAVU. P6:- COPY OF THE INTIMATION DT. 4.8.04 OF THE 2ND RESPONDENT. P7:- COPY OF THE ORDER DT. 14.6.01 OF THE DISTRICT REGISTAR, IDUKKI IN A SIMILAR. P8:- COPY OF THE REPRESENTATION DT. 10.9.04 PREFERRED BY THE PETITIONER BEFORE THE IST RESPONDENT. P9:- COPY OF THE RESLUTION DT. 17.3.01 OF THE MINISTRY OF COMMUNICATIONS. P10:- COPY OF THE REPRESENTATION DT. 7.10.04 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P11:- COPY OF THE INTIMATION DT. 2.11.04 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17371 of 2007-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2009. JUDGMENT In this writ petition the short question is whether the liability cast against the petitioner towards short levy of stamp duty and registration charges could be sustained. The petitioner retired from service on 31.5.2002 while working in the post of Sub Registrar, S.R.O., Kattappana. After retirement, the audit raised an objection as per Ext.P1 alleging irregular exemption of stamp duty and short levy of registration fee in the year 2000 on two lease deeds executed on behalf of the Telecom Department in favour of the President of India through the concerned Divisional Engineers. The objection is that the Telecom Department was converted into BSNL with effect from 1.10.2000 and therefore the said documents ought to have been classified under Section 33(9)(viii) of the Stamp Act. 2. The petitioner submitted explanation as per Ext.P2 specifically pointing out that the lease deeds were registered in favour of the President of India on behalf of the Telecom Department, Kattappana. There was no prior intimation regarding the formation of BSNL after conversion of the WPC 17371/2007 2 Telecom Department and therefore the stamp duty exemption was open to the President of India. 3. The objection was not dropped thereafter. As per Ext.P3, the retirement benefits have been sanctioned to him. Ext.P6 is the liability certificate showing a liability to the tune of Rs.72,205/-. Ext.P7 is an order granting exemption by the District Registrar, Idukki in respect of a similar document. Thereafter, the petitioner took up the matter with the Government by Ext.P8 representation. But still, nothing turned up. Ext.P9 is the resolution taken regarding the formation of BSNL which is published in the Gazette of India dated 17.3.2001. It has been produced to show that at the relevant point of time this was not communicated to the office of the Sub Registrar. By Ext.P11, the petitioner was informed by the Inspector General of Registrations that the matter is under correspondence with the BSNL for realizing the loss sustained by the Government in the matter. 4. In the counter affidavit, it has been clearly admitted in paragraphs 7 and 8 that the Sub Registrars were misguided by the misrepresentation of facts in the documents executed by the BSNL which resulted in irregular remission of stamp duty. Consequently, the Sub Registrars including the petitioner cannot be held responsible for the revenue loss occurred to Government, due to the irregular remission of stamp duty. WPC 17371/2007 3 5. The petitioner has produced Exts.P12 and P13 along with an affidavit. Ext.P12 is a similar audit objection and finally by Ext.P13 the same has been dropped. 6. The question is whether any loss has been caused by the petitioner by any wilful act or omission and whether he is liable at all for any loss. It is clear from the facts that the documents were executed in favour of the President of India by the Telecom Department itself. There was no communication to him regarding the formation of BSNL as a company. The Gazette notification which is produced as Ext.P9, was published in the Gazette only in the year 2001. The respondents have no case that at the relevant point of time when the documents were registered, the Sub Registrars were informed of the formation of BSNL as a company, after converting the Telecom Department. Ext.P1 shows that the documents were executed on behalf of the President of India. In that view of the matter, the petitioner had no option but to grant exemption from stamp duty. Clearly, as stated in the counter affidavit, the authorities of the BSNL were at fault. Ext.P11 shows that the Government has taken action in the matter to recover the loss from the authorities of BSNL. 7. It is also clear from the averments in paragraphs 7 and 8 of the counter affidavit that the petitioner cannot be held responsible for the WPC 17371/2007 4 revenue loss occurred to the Government due to the irregular remission of exemption from stamp duty. 8. In the above view of the matter, the fixation of liability as per Ext.P3 cannot be justified. It is admitted in the counter affidavit that the liability has been refixed as Rs.58,925/-. The balance amount has already been disbursed to the petitioner. 9. Therefore, the writ petition is allowed. There will be a direction to respondents 2 and 3 to disburse the amount of Rs.58,925/- to the petitioner, being the withheld portion of DCRG, within a period of six weeks from the date of receipt of a copy of this judgment. The Government is free to recover the stamp duty and registration fee from the Bharat Sanchar Nigam Limited (BSNL). The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/