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2021 DIGILAW 103 (KER)

O. M. Kareem, S/o. Late O. M. Muhammed v. State of Kerala, Represented by Principal Secretary (Taxes), Government Secretariat

2021-02-02

ANIL K.NARENDRAN

body2021
JUDGMENT : The petitioner took voluntary retirement while working as Civil Police Officer. The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P8 order dated 01.06.2019 of the 1st respondent State, whereby his application for stamp vendor licence in the premises of this Court stands rejected. The petitioner has also sought for a writ of mandamus commanding the 1st respondent State to issue him stamp vendor licence in the premises of this Court. 2. On 18.06.2019, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the respondents. 3. A statement has been filed on behalf of the 1st respondent State, opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit dated 01.09.2020, reiterating the contentions raised in the writ petition. 4. On 22.09.2020, the 1st respondent was directed to place on record an additional statement explaining the present status of introduction of e-stamping for all categories of stamps and stamp papers and the modalities for implementing e-stamping facility for judicial stamps and stamp papers, in continuation of implementation of e-stamping for non-judicial stamps and stamp papers. Along with a memo filed by the learned Senior Government Pleader, dated 17.12.2020, a copy of the letter dated 15.12.2020 of the Principal Secretary to Government, Taxes (E) Department, addressed to the learned Advocate General is placed on record. 5. On 18.12.2020, heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 6. Going by the averments in the writ petition, the petitioner was a Civil Police Officer in the Liaison Wing of Kerala Police, attached to the Office of the Advocate General. He took voluntary retirement primarily to look after his son, who is suffering from Muscular Dystrophy. On coming to know that there is a vacancy of stamp vendor in the premises of this Court, on account of the death of two licensed stamp vendors, the petitioner approached the Registrar of this Court with a request dated 03.04.2017 for no-objection certificate. He took voluntary retirement primarily to look after his son, who is suffering from Muscular Dystrophy. On coming to know that there is a vacancy of stamp vendor in the premises of this Court, on account of the death of two licensed stamp vendors, the petitioner approached the Registrar of this Court with a request dated 03.04.2017 for no-objection certificate. Based on that request, the petitioner was issued with Ext.P1 no-objection certificate dated 20.06.2017, in which it is certified that this Court has no objection in the petitioner selling stamps and stamp papers in the premises of this Court, in the event of his appointment as stamp vendor by the appropriate authority. Ext.P1 no-objection certificate was granted subject to the condition that the petitioner is liable to vacate the premises as and when directed by this Court. As per the provisions of the Kerala Manufacture and Sale of Stamp Rules, 1960, if a licensed vendor dies, his legal representatives can apply and get that licence. According to the petitioner, in the case of two deceased licensed stamp vendors, none of their legal representatives have come forward so far. 7. After obtaining Ext.P1 no-objection certificate, the petitioner submitted Ext.P2 request dated 01.07.2017 before the 2nd respondent District Treasury Officer, Ernakulam, enclosing therewith Ext.P3 application dated 27.07.2017 for stamp vendor licence, in the prescribed format. On receipt of Ext.P2 request, the 2nd respondent by Ext.P4 letter dated 20.01.2018 informed the petitioner that the Government have decided not to grant any new licence for stamp vending in the background of implementation of e-stamping facility. Ext.P4 letter refers to Ext.P5 letter dated 16.01.2016 of the Principal Secretary, Taxes (E) Department, addressed to the Treasury Director, Thiruvananthapuram. As seen from Ext.P5, the Treasury Director requested the State Government to issue guidelines in the matter of grant of stamp vendor licence, confirmation of licence, etc. In Ext.P5 letter, it was made clear that, since the Government is proposing to implement e-stamping facility, no new stamp vendor licence need to be issued, no temporary stamp vendor licence need to be made permanent, and no new vacancy of stamp vendor need to be created. In Ext.P5 letter, it was made clear that, since the Government is proposing to implement e-stamping facility, no new stamp vendor licence need to be issued, no temporary stamp vendor licence need to be made permanent, and no new vacancy of stamp vendor need to be created. The petitioner submitted Ext.P6 representation dated 03.01.2018 before the 1st respondent pointing out that, he is seeking entry into an existing vacancy, which arose on account of the death of a licensed stamp vendor and therefore, the question of creation of new vacancy does not arise. 8. Alleging inaction on the part of the 1st respondent in considering the request made by the petitioner in Ext.P6 representation, he had approached this Court in W.P.(C)No.17451 of 2018. That writ petition was disposed of by Ext.P7 judgment dated 29.05.2018, whereby the 1st respondent was directed to consider the representation made by the petitioner within a period of three months. Alleging non-compliance of the direction contained in Ext.P7 judgment, the petitioner had approached this Court in Cont. Case (Civil) No.627 of 2019. During the pendency of that contempt case, the 1st respondent issued Ext.P8 order dated 01.06.2019, whereby the request made by the petitioner in Ext.P6 stands rejected. By Ext.P9 judgment dated 11.06.2019, this Court closed Cont. Case (Civil) No.627 of 2019, giving liberty to the petitioner to challenge Ext.P8 order. 9. In the statement filed by the petitioner, it is pointed out that there are five posts of stamp vendors in the premises of this Court, out of which two posts are lying vacant on the demise of two licensed stamp vendors, namely, Sri Parameswara Menon, who expired on 11.12.2008 and Sri Abdul Azeez, who expired on 27.07.2017. The legal heirs of Parameswara Menon submitted application for stamp vendor licence before the 2nd respondent District Treasury Officer, which was rejected citing sub-rule (22) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, in which it is stipulated that the legal heir of a permanent stamp vendor is eligible for stamp vendor licence only if the stamp vendor dies before attaining the age of 65 years. Sri Parameswara Menon died after attaining the age of 65 years and as such, his legal heirs are not eligible for stamp vendor licence. Sri Parameswara Menon died after attaining the age of 65 years and as such, his legal heirs are not eligible for stamp vendor licence. The legal heir of Sri Abdul Azeez was granted temporary stamp vendor licence, under Rule 51 of the Kerala Manufacture and Sale of Stamp Rules, vide letter No.9191/E3/2012/Taxes dated 07.07.2012, and that licence is being renewed from time to time. At present, there are three permanent stamp vendors and one temporary stamp vendor working in the premises of this Court and there exists one vacancy of stamp vendor. 10. In the reply affidavit, the petitioner would contend that anticipating the introduction of e-stamping facility, the petitioner cannot be denied stamp vendor licence in the premises of this Court, especially in view of Ext.P1 no-objection certificate dated 20.06.2017 issued by the Registrar of this Court. 11. Along with a memo dated 17.12.2020, the learned Senior Government Pleader has produced a communication dated 15.12.2020 of the Principal Secretary to Government, Taxes (E) Department, in which it is stated that steps are in progress for introducing e-stamping facility. Though a meeting was decided to be conducted on 30.11.2020, for demonstration of the system by the National Informatics Centre, it was postponed since the model code of conduct of the local body election was prevailing. 12. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P8 order dated 01.06.2019of the 1st respondent State, whereby Ext.P3 application made by the petitioner for stamp vendor licence, under sub-rule (4) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, 1960, stands rejected for the reasons stated therein. 13. The petitioner submitted Ext.P2 application before the 2nd respondent for issuing stamp vendor licence in the premises of this Court, in the existing vacancy. The 2nd respondent rejected that application citing sub-rules (1) and (2) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, substituted by the Kerala Manufacture and Sale of Stamp (Amendment) Rules, 2007. 13. The petitioner submitted Ext.P2 application before the 2nd respondent for issuing stamp vendor licence in the premises of this Court, in the existing vacancy. The 2nd respondent rejected that application citing sub-rules (1) and (2) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, substituted by the Kerala Manufacture and Sale of Stamp (Amendment) Rules, 2007. As per the amended provisions, the District Committee consisting of the District Collector as the Chairman, the District Registrar (General) and the District Treasury Officer as the members, have to appoint the stamp vendors, after examining the necessity of stamp vendors in a district and notifying the vacancies by giving wide publicity through newspapers and electronic media, after considering the report from the Committee chaired by the District Collector. In the wake of the implementation of e-stamping in the State, the Government vide letter No.106260/Estt.C4/2012 dated 14.06.2013 and Ext.P5 letter dated 16.01.2016 clarified not to issue new stamp vendor licenses, not to issue permanent licenses in lieu of temporary licenses, and not to create new stamp vendor posts. Hence the application made by the petitioner for stamp vendor licence was rejected. As per G.O.(P)No.23/2017/TD dated 07.04.2017, the instruments chargeable with stamp duty for an amount above Rs.1 lakh shall be stamped with e-stamp only. Now the Government have decided to introduce e-stamping for all categories of stamps and stamp papers and the process and modalities for implementing e-stamping facility for judicial stamps and stamp papers are in progress, in continuation of implementation of e-stamping for non-judicial stamps and stamp papers. The software has been developed by the National Informatics Centre for e-stamping of lower denomination stamp papers. Therefore, the 1st respondent rejected the application made by the petitioner for stamp vendor licence by Ext.P8 order, in view of Ext.P5 communication dated 16.01.2016. 14. Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, 1960 was substituted by the Kerala Manufacture and Sale of Stamp (Amendment) Rules, 2007, with effect from 13.07.2007. As per sub-rule (1) of Rule 35, the sale of stamps shall be made by the Treasurers as ex-officio stamp vendors and by licensed stamp vendors appointed by a District Committee consisting of the District Collector, the District Registrar (General) and the District Treasury Officer as members. As per sub-rule (1) of Rule 35, the sale of stamps shall be made by the Treasurers as ex-officio stamp vendors and by licensed stamp vendors appointed by a District Committee consisting of the District Collector, the District Registrar (General) and the District Treasury Officer as members. The licence shall be issued by the District Treasury Officer to the vendors so appointed on the basis of the recommendations of the District Committee. As per sub-rule (2) of Rule 35, the Government shall, from time to time determine the number of stamp vendors required in an area in a district after examining the necessity and notify the vacancies by giving wide publicity through the newspapers and electronic media after considering the report from the Committee chaired by the District Collector. As per sub-rule (4) of Rule 35, an application in Form IA for appointment as licensed stamp vendor shall be submitted to the District Treasury Officer concerned before such date, as may be specified, by the District Treasury Officer in the notification inviting application. 15. As per sub-rule (7) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, no person shall be eligible to apply for stamp vendor licence, if he has not completed the age of 18 years or has completed 60 years on the 1st of January of the year of notification of the vacancy and has not passed the SSLC or equivalent examinations. As per sub-rule (9) of Rule 35, the authority for ad hoc appointment of stamp vendors shall vest with the District Treasury Officer. As per sub-rule (22) of Rule 35, in the event of the death of a licensed stamp vendor, the District Treasury Officer shall take immediate steps for filling up the vacancy. As per the proviso to sub-rule (22), if the death occurs before attaining the age of 65 years, a legal heir duly authorised by the other legal heirs, if any, may be appointed as the licensed vendor in the vacancy if he is otherwise qualified to be appointed and makes out an application before the District Treasury Officer within three months from the date of death. 16. 16. In the instant case, the petitioner submitted Ext.P3 application dated 27.07.2017, in Form IA, under sub-rule (4) of Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, for appointment as licensed stamp vendor in the premises of this Court, along with Ext.P1 no-objection certificate dated 20.06.2017 issued by the Registrar of this Court. As per sub-rule (4) of Rule 35, such an application has to be submitted to the District Treasury Officer concerned before such date, as may be specified in the notification inviting application. The appointment of licensed stamp vendors has to be made by the District Committee and the District Treasury Officer has to issue licence to the vendors so appointed on the basis of the recommendations of the District Committee. In the absence of any notification inviting application for the appointment of licensed stamp vendor, the petitioner is not entitled for appointment as licensed stamp vendor in the premises of this Court, based on Ext.P3 application submitted in Form IA. 17. In Mampad Grama Panchayat v. The Convenor Mampad Friends All India Sevens Football Tournament Committee and others [ 2016 (5) KHC 846 ] this Court held that, it is well settled that, when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The said proposition of law is based on a legal maxim “expressio unius est exclusion alteris” meaning thereby that, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner, and following other course is not permissible. The said proposition of law about limitation of exercise of statutory power has first been identified by Jassel M.R. in the case of Taylor v. Taylor (1876 (1) Ch.D. 426), wherein it was laid down that, where a power is given to do a certain thing in a certain way, that thing must be done in that way, or not at all, and that other methods of performance are necessarily forbidden. The Privy Council applied the said principle in the case of Nazir Ahmed v. King Emperor ( AIR 1936 PC 253 ). 18. The Privy Council applied the said principle in the case of Nazir Ahmed v. King Emperor ( AIR 1936 PC 253 ). 18. In Mampad, this Court also relied on the decision of the Apex Court in Ajanta Industries v. Central Board of Direct Taxes ( 1976 (1) SCC 1001 ), wherein a Three-Judge Bench of the Apex Court held that, when law requires reasons to be recorded in a particular order, affecting prejudicially the interest of any person, who can challenge the order in court, it ceases to be a mere administrative order and the wise or violation of the principles of natural justice on account of omission to communicate the reasons is not expiated. The said decision of the Apex Court was in the context of Section 127(1) of the Income Tax Act, 1961 which empowers the Commissioner of Income Tax to transfer any case from one Income Tax Officer subordinate to him to another, also subordinate to him, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so. After taking note of the corresponding section in the Income Tax Act, 1922, i.e., Section 5(7A), the Apex Court held that, unlike Section 5(7A) of the 1922 Act, Section 127(1) of the 1961 Act requires reasons to be recorded prior to the passing of an order of transfer. However, the impugned order does not state any reasons whatsoever for making the order of transfer. The Apex Court held that, the requirement of recording reasons under Section 127(1) of the 1961 Act is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. The Apex Court held further that, the reason for recording of reasons in the order and making those reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Apex Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is a mala fide or arbitrary exercise or that, it is based on irrelevant and extraneous considerations. 19. 19. In the instant case, the appointment of a licensed stamp vendor can be made only in terms of the provisions under Rule 35 of the Kerala Manufacture and Sale of Stamp Rules, 1960, based on a notification issued by the competent authority and considering the applications received before the cut off date specified in the said notification, by the concerned District Committee. Therefore consideration of Ext.P3 application made by the petitioner for appointment as a licensed stamp vendor bypassing the procedure prescribed in Rule 35 is not legally permissible. 20. In Union of India v. Dinesh Engineering Corporation [ (2001) 8 SCC 491 ], the Apex Court held that where the decision of the authority is in regard to the policy matter, the Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Any decision be it a simple administrative decision or policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. 21. In Parisons Agrotech (P) Ltd. v. Union of India [ (2015) 9 SCC 657 ] the Apex Court held that once the court finds that there is sufficient material for the Government to take a particular policy decision, even by bringing Article 14 of the Constitution into play, courts cannot judicially review and determine the correctness of the policy decision. Backed by cogent material, if the authorities demonstrate that the decision is not arbitrary or irrational, but is taken in public interest, the Court must respect the Executive's decision. 22. Backed by cogent material, if the authorities demonstrate that the decision is not arbitrary or irrational, but is taken in public interest, the Court must respect the Executive's decision. 22. The specific stand taken by the 1st respondent State in Ext.P8 order dated 01.06.2019 and also in the statement filed in this writ petition is that, in the wake of the implementation of e-stamping in the State, vide letter No.106260/ Estt.C4/2012 dated 14.06.2013 and Ext.P5 letter dated 16.01.2016 decided that, since the Government is proposing to implement e-stamping facility, no new stamp vendor licence need be issued, no temporary stamp vendor licence need be made permanent, and no new vacancy of stamp vendor need be created. For that reason, the application made by the petitioner for stamp vendor licence was rejected. 23. In the statement, the 1st respondent has pointed out that, as per G.O.(P)No.23/2017/TD dated 07.04.2017, the instruments chargeable with stamp duty for an amount above Rs.1 lakh shall be stamped with e-stamp only. Now the Government have decided to introduce e-stamping for all categories of stamps and stamp papers and the process and modalities for implementing e-stamping facility for judicial stamps and stamp papers are in progress, in continuation of implementation of e-stamping for non-judicial stamps and stamp papers. The 1st respondent has also pointed out that, software has been developed by the National Informatics Centre for e-stamping of lower denomination stamp papers. 24. The decision taken by the 1st respondent State that, no new stamp vendor licence need be issued, no temporary stamp vendor licence need be made permanent, and no new vacancy of stamp vendor need be created, since the Government is proposing to implement e-stamping facility, is not under challenge in this writ petition. The said policy decision taken by the 1st respondent State is neither arbitrary nor irrational, but is taken in public interest, which warrants no interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs.