IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36881 of 2008(N)
1. M.K. THANKAPPAN, DIST. REGISTRAR E
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE INSPECTOR GENERAL OF
3. THE DISTRICT REGISTRAR (GENERAL),
4. THE SUB REGISTRAR,
5. THE ACCOUNTANT GENERAL (A & E),
For Petitioner :SRI.N.SUGATHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :31/03/2009
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P ( C) No. 36881 of 2008
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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.
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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
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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
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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,
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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
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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
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