O.M.Kareem vs State Of Kerala
2021 Latest Caselaw 3677 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       WP(C).No.16531 OF 2019(N)


PETITIONER:

               O.M.KAREEM
               AGED 55 YEARS
               S/O.LATE O.M.MUHAMMED,OLAPPILA HOUSE,KALADY
               ROAD,SREEMOLANAGARAM,
               PIN-683580.

               BY ADV. SRI.D.ANIL KUMAR

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY PRINCIPAL SECRETARY(TAXES),GOVERNMENT
               SECRETARIAT,THIRUVANANTHAPURAM-696001.

      2        DISTRICT TREASURY OFFICER,
               ERNAKULAM,PIN-682018.

               R1 BY GOVERNMENT PLEADER

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-
2020, THE COURT ON 02-02-2021 DELIVERED THE FOLLOWING:
 W.P.(C)No.16531 OF 2019(N)
                                     -2-


                                                                      "CR"

                               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 1 st 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 1 st

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 W.P.(C)No.16531 OF 2019(N)

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. Based on that request, the W.P.(C)No.16531 OF 2019(N)

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 W.P.(C)No.16531 OF 2019(N)

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. 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 W.P.(C)No.16531 OF 2019(N)

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 2 nd 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 W.P.(C)No.16531 OF 2019(N)

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. 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 W.P.(C)No.16531 OF 2019(N)

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 2 nd 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 W.P.(C)No.16531 OF 2019(N)

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 W.P.(C)No.16531 OF 2019(N)

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. 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 W.P.(C)No.16531 OF 2019(N)

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 1 st 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. In the instant case, the petitioner submitted Ext.P3

application dated 27.07.2017, in Form IA, under sub-rule (4) of W.P.(C)No.16531 OF 2019(N)

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 W.P.(C)No.16531 OF 2019(N)

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. 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 W.P.(C)No.16531 OF 2019(N)

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 W.P.(C)No.16531 OF 2019(N)

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. 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 W.P.(C)No.16531 OF 2019(N)

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 W.P.(C)No.16531 OF 2019(N)

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 1 st W.P.(C)No.16531 OF 2019(N)

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 1 st 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.

Sd/-

ANIL K. NARENDRAN JUDGE bpr W.P.(C)No.16531 OF 2019(N)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER DATED 20.6.2017 BY WHICH THE REGISTRAR(ADMINISTRATION)HAD ISSUED AS NO OBJECTION CERTIFICATE.

EXHIBIT P2 TRUE COPY OF REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 1.7.2O17.

EXHIBIT P3               TRUE COPY OF APPLICATION IN THE
                         REQUISITE FORMAT SUBMITTED BY
                         PETITTIONER.

EXHIBIT P4               TRUE COPY OF LETTER DATED 20.1.2018
                         ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P5               TRUE COPY OF LETTER DATED 16.1.2016
                         ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P6               TRUE COPY OF THE REPRESENTATION DATED
                         3.1.2018 GIVEN BY PETITIONER TO THE 1ST
                         RESPONDENT.

EXHIBIT P7               TRUE COPY OF JUDGMENT DATED 29.5.2018 IN
                         W.P(C)NO.17451/2018.

EXHIBIT P8               TRUE COPY OF ORDER DATED 1.6.2019 ISSUED
                         BY THE 1ST RESPONDENT.

EXHIBIT P9               TRUE COPY OF JUDGMENT PASSED IN
                         CONT.CASE(C)NO.627/2019 DATED 11.6.2019.

RESPONDENTS' EXHIBITS: NIL