IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 36881 of 2008(N) ------------------------------------- PETITIONER(S): ------------------------ M.K. THANKAPPAN, DIST. REGISTRAR (RETIRED), MANNATH HOUSE, MARAICKAL, P.O. KANNARA, THRISSUR 680 652. BY ADVS. MR.N.SUGATHAN SMT.VARSHA BHASKAR MR. S.PRASANTH (AYYAPPANKAVU) RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF REGISTRATION, KERALA, VANCHIYOOR THIRUVANANTHAPURAM. 3. THE DISTRICT REGISTRAR (GENERAL), CHEMPUKAVU, THRISSUR -20. 4. THE SUB REGISTRAR, S.R.O. OLLUKKARA, THRISSUR. 5. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANHAPURAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36881/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.E3-4898/07 DT. 11.7.07 OF THE 2ND RESPONDENT. P2:- COPY OF THE PAYMENT OF GRATUITY ORDER DT. 6.8.07 ISSUED BY 5TH RESPONDENT. P3:- COPY OF THE PETITION DT. 16.8.07 OF THE PETITIONER TO THE 5TH RESPONDENT. P4:- COPY OF THE LETTER NO.C.13/2003 DT. 5.5.08 OF THE 4TH RESPONDENT TO THE PETITIONER. P4(a):- COPY OF THE STATEMENT FORWARDED ALONG WITH EXT.P4 LETTER. P5:- COPY OF THE LIABILITY CERTIFICATE DT. 1.7.08 ISSUED BY TH 3RD RESPONDENT P6:- COPY OF THE ORDER NO.ARA1-9266/07 DT. 11.3.08 OF THE 2ND RESPONDENT. P7:- COPY OF THE LETTER NO.17422/03/G5(2) DT. 8.1.04 OF THE DIRECTOR PRINTING & STATIONERY WITH ENDORSEMENT OF RESPONDENTS & 3 COMMUNICATED TO PETITIOENR ON 15.1.04. P8:- COPY OF THE REPRESENTATION DT. 26.7.08 TO THE IST RESPONDENT. P9:- COPY OF THE REPRESENTATION DT. 26.7.08 TO THE 2ND RESPONDENT. P10:- COPY OF THE SECURITY BOND DT. 22.11.08 EXECUTED BY THE PETITIONER. P11:- COPY OF THE LETTER DT. 11.2.08 OF THE 2ND RESPONDENT FORWARDING TO THE SUB TREASURY, THRISSUR LIABILITY CERTIFICATE FOR AN AMOUNT OF RS. 1,56,648/- RELATING TO THE PETITIONER. P12:- COPY OF THE LETTER DT. 4.12.08 OF THE ACCOUNTANT GENERAL. TRUE COPY P.A. TO JUDGE TSS T.R.RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No. 36881 of 2008 -------------------------- Dated this the 31st March,2009 J U D G M E N T The petitioner retired from service as a District Registrar. His retirement was on 28.2.2007. He has approached this Court since the DCRG has not been disbursed so far. 2. As per Exhibit-P1, an amount of Rs.3,30,000 was sanctioned as DCRG and Exhibit-P2 is the gratuity payment order. But for want of NLC he could not draw the amount so far. 3. The petitioner was working as Sub Registrar at SRO Ollukara from May 2002 to May 2005 and he was promoted as District Registrar (Audit) in January 2006. The DCRG could not be disbursed in the light of the objections stated in the audit report of the Accountant General for the year 2004-05 relating to SRO Ollukara and the main objection relates to omissions in the levy of stamp duty and registration fee in respect of three documents. W.P ( C) No. 36881 of 2008 2 4. Petitioner submitted detailed remarks on the audit report as per Exhibit-P3. Mainly it is contended that the order fixing the fair value even though is dated 5.1.2004, the same was received at S.R.O. Ollukkara only on 15.1.2004 and therefore the documents which were executed between 5.1.2004 to 15.1.2004 cannot be objected as the requisite information was not there till 15.1.2004. 5. The petitioner followed up the explanation by filing other representations also. Exhibit-P5 is the liability certificate wherein items 2 and 3 were remaining to be cleared. Petitioner had admitted the liability in respect of Item 1 to the tune of Rs.2100/-. Petitioner has produced along with the reply affidavit Exhibit-P12 letter dated 4.12.2008 of the Accountant General to the District Registrar (General) Thrissur that Para II A Para I (b) of Exhibit-P5 is not pursued further. 6. What remains is Item 3 namely the liability towards irregular collection of fair value. 7. The pleadings raised by the petitioner in respect W.P ( C) No. 36881 of 2008 3 of the same is contained in para 9 of the writ petition. Petitioner has clearly averred that the copy of the Gazette notification dated 5.1.2004 fixing the fair value was communicated to the petitioner only on 15.1.2004 and it was received by him at 4 p.m. on 15.1.2004, which is produced as Exhibit-P7. 8. Respondents have filed a counter affidavit in the matter supporting the fixation of liability. 9. According to the respondents, during the period from 5.1.2004 to 18.2.2004 the Government sustained loss on stamp duty and registration fee due to the registration of documents without considering the fair value. The matter was dealt with by different authorities including the Public Accounts Committee and the Comptroller and Auditor General for the year ended on 31.3.2006. Liabilities were fixed in respect of various officers and ultimately as far as the petitioner is concerned his liability comes to Rs.86,385/- towards short levy of stamp duty and Rs.35244/- as short levy of registration fees. 10. The counter affidavit is silent in regard to the W.P ( C) No. 36881 of 2008 4 averments contained in para 9 of the writ petition. 11. Going by Exhibit-P7 the date of the notification is 5.1.2004. The endorsement from the office of Inspector General of Registration is dated 8.1.2004 and it is seen received in the office of the District Registrar General only on 12.1.2004 as is evident from the endorsement seen in the internal page 2 of the document (page 2 of the paper book) The face page shows that it was received in the office of the Sub Registrar only on 15.1.2004 at 4 p.m. Thus the submission made by the petitioner that all the documents were properly registered and there is no inaction on his part is acceptable. 12. Even if such a notification was issued by the Government, unless the same is communicated to the registering authority namely the Sub Registrar, it cannot be said that there is a failure of duty or negligence in performance of the functions of the Sub Registrar. The Government should have ascertained whether the communication was received well in time by the Sub Registrar before fixing the liability. In Exhibits P8 and P9, W.P ( C) No. 36881 of 2008 5 the petitioner has given a detailed explanation in the matter stating that there cannot be any allegation of failure on his part on the non-implementation of Exhibit-P7 since the same was received only on 15.1.2004 at 4 P.M. But none of the authorities considered the matter in the real perspective. 13. In the counter affidavit filed before this Court on behalf of the 2nd respondent, the contentions raised in paragraph 9 of the writ petition stands uncontroverted. Respondents have taken the stand that Exhibit-P7 is squarely applicable from the date of notification itself. It is well settled by various decisions of this Court namely R.K.V Motors & Timbers (P) Ltd, Vs. Regional Transport Officer [1982 KLT 166 B] the necessity to put to the people sufficient knowledge of law. It was held in paragraph 25 thus “ The necessity that the people affected by law should have sufficient knowledge of law had been accepted as a basic tenet and inextricable characteristic of law even by legal theoreticians and jurisprudentialists. Adequate publicity to those from whom law expects obedience W.P ( C) No. 36881 of 2008 6 thereto has been held as a basic requirement of the law itself. The State has an obligation to speak or to make known a rule, so that it could answer the description of law. It follows that mere making of a subordinate legislation is not sufficient to give validity to it.” 14. Therefore, in the light of the above dictum also, the petitioner cannot be saddled with any liability. 15. In that view of the matter, the writ petition is allowed. Exhibit-P5 to the extent it fixed a liability to the tune of Rs.86385/- towards stamp duty and Rs.35244/- towards registration fee ( Total Rs.1,21,629/-) is quashed. There will be a direction to release the withheld portion of the DCRG to the tune of Rs.3,30,000/- within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. (T.R.RAMACHANDRAN NAIR, JUDGE) ma W.P ( C) No. 36881 of 2008 7 W.P ( C) No. 36881 of 2008 8 W.P ( C) No. 36881 of 2008 9