Kerala High Court
Smt.Balamani. M vs Inspector General Of Registration
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 27TH DAY OF MARCH 2017/6TH CHAITHRA, 1939
WP(C).No. 25487 of 2010 (I)
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PETITIONER(S):
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SMT.BALAMANI. M., ODATHODE HOUSE,
CHULLYODE.P.O., CHETTIPADAM, VIA NELAMBOOR,
MALAPPURAM DISTRICT.
BY ADVS.SRI.NIRMAL. S
SMT.SAUMYA CHANDRAN
RESPONDENT(S):
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1. INSPECTOR GENERAL OF REGISTRATION,
(LICENSING) TRIVANDRUM. PIN-695001.
2. THE SECRETARY TO GOVERNMENT,
TAXES DEPARTMENT, SECRETARIAT, TRIVANDRUM PIN-695001.
BY SENIOR GOVERNMENT PLEADER SRI.PAUL VARGHESE.M.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-03-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 25487 of 2010 (I)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE SCRIBE LICENSE ISSUED TO THE PETITIONER BY
THE 1ST RESPONDENT DATED 25.10.91
EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 23.09.08 MADE TO THE
2ND RESPONDENT
EXT.P3 TRUE COPY OF THE LETTER L1-25146/08 DATED 3.11.08
EXT.P4 TRUE COPY OF THE G.O.784/05 DATED 24.12.05
EXT.P5 TRUE COPY OF THE ORDER OF THE KERALA LOKAYUKTA DATED
24.01.05 ON COMPLAINT NO.1311/04 WHICH FORMED THE BASIS OF
THE EXT P4
EXT.P6 TRUE COPY OF THE JUDGMENT DATED 31-3-2010
EXT.P7 TRUE COPY OF THE ORDER DATED 25-6-2010
RESPONDENTS' EXHIBITS
NIL
//True Copy//
P.A. To Judge
Bb
ANIL K.NARENDRAN, J.
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W.P.(C)No.25487 of 2010
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Dated this, the 27th day of March, 2017
JUDGMENT
The petitioner, who has been issued with Ext.P1 Scribe Licence by the 1st respondent/Licensing Authority, is before this Court in this writ petition seeking a writ of certiorari to quash Ext.P7 order dated 20.06.2010 and a writ of mandamus commanding the 1st respondent to recommend her case for exemption from Rule 5 (A)(2) of the Kerala Document Writers' Licence Rules, 1960.
2. The reliefs sought for in the writ petition are opposed by the 2nd respondent/State by filing a counter affidavit.
3. I heard the arguments of learned counsel for the petitioner and also learned Government Pleader for the 1st and 2nd respondents.
4. The pleadings and materials on record would show that, the petitioner is a Licensed Scribe holding Ext.P1 Scribe's Licence dated 25.10.1991 issued by the the 1st respondent, under Rule 10 of the the Kerala Document Writers' Licence Rules, 1960 (for brevity, 'the Rules'). She is seeking exemption from Rule 5(A)(2) of the said Rules, in order to become a Licensed Document Writer.
5. As per Rule 5(A)(2) of the Rules, a Document Writers' Licence may be granted to any person who has passed the Document Writers' Licensing Test. As per the proviso to Rule 5, the W.P.(C)No.25487 of 2010 : 2 : Government may, on the recommendation of the Licensing Authority, in appropriate cases, exempt any person or class of persons from the provisions of Rule 5.
6. As per Rule 27(1) of the Rules, a pass in SSLC Examination or its equivalent shall be the minimum qualification for admission to the Document Writers' Licensing Test. As per the proviso to Rule 27(1), a Scribe Licensee, who has continuously practised as such for a period of five years after obtaining the Scribe Licence, shall be eligible for admission to the Document Writer's Licensing Test, irrespective of the aforesaid qualification, subject to the condition that the fact of such continuous practice shall be certified on the basis of documentary evidence by the Sub Registrar through whom he submits his application.
7. The petitioner, who does not have the requisite qualification in terms of Rule 27(1) of the Rules for admission to the Document Writers' Licensing Test, is disqualified for the grant of Document Writers' Licence, in view of the provisions under Rule 5(A)(2) of the said Rules. Therefore, the petitioner submitted Exts.P2 representation dated 23.09.2008 before the 2nd respondent/State seeking exemption from passing the Document Writers' Licensing Test. The said representation was rejected by Ext.P3 order dated 3.11.2008 of the 1st respondent on the ground that, the petitioner is not qualified for grant of Document Writers' W.P.(C)No.25487 of 2010 : 3 : Licence and that, she will become qualified for grant of such licence only on passing the Document Writers' Licensing Test prescribed under the Rules.
8. In Ext.P2 representation, the petitioner has pointed out Ext.P4 Government order dated 24.11.2005, by which the Government ordered that one P.N.Dhanes Chand, who was practising as Document Writer and Scribe Apprentice under a State Licensee attached to the Sub Registrar Office, Kuthiyathodu in Alappuzha be granted the Kerala Document Writers' and Scribes' Licence, in relaxation of Rule 5(B) of the Rules. However, in Ext.P4 it was made clear that, the said order will not be quoted as a precedent.
9. Ext.P3 order passed by the 1st respondent rejecting the request made by the petitioner in Ext.P2 for exemption from passing the Document Writers' Licensing Test was under challenge before this Court in W.P.(C)No.24060 of 2009. The said writ petition was disposed of by Ext.P6 judgment dated 31.3.2010. In Ext.P6 judgment this Court found that, Ext.P2 is a representation submitted by the petitioner seeking exemption from the Rules, which was submitted before the Government through the 1st respondent. Since the power for exemption is vested with the Government, it is only the Government which can take a decision on Ext.P2. Therefore, the action of the 1st respondent/Licensing W.P.(C)No.25487 of 2010 : 4 : Authority in rejecting Ext.P2 representation by Ext.P3 order cannot be sustained. In such circumstances, this Court by Ext.P6 judgment set aside Ext.P3 order and directed the 2nd respondent/State to take a decision on Ext.P2 representation in the light of the proviso to Rule 5 of the Rules, within the time limit prescribed in the said judgment.
10. Pursuant to the direction contained in Ext.P6 judgment, the 2nd respondent considered the request made by the petitioner in Ext.P2 representation for exemption from passing the Document Writers' Licensing Test and rejected the same by Ext.P7 order dated 25.6.2010, stating that, preparation of document by a Licensed Document Writer is a vital job which needs much expertise and accuracy. A Document Writer should be aware of the veracity of the documents prepared and also the rules and regulations pertaining to such documents. The Document Writers' Licensing Test ensures that, persons who qualify such test are fit for the job in all respects. A serious matter like document writing cannot be entrusted with unqualified persons. Moreover, if exemption is granted in the petitioner's case, similarly placed persons may cite it as a precedent for substantiating their claim. While rejecting the request made by the petitioner, the Government has also noticed the fact that, steps are being taken to conduct a special Document Writers' Examination for Scribe Licensees as on 07.09.2000, who have not passed SSLC W.P.(C)No.25487 of 2010 : 5 : Examination like the petitioner. Since the petitioner can also appear for the said examination and qualify herself, there is no necessity to grant her exemption under Rule 5 of the Rules.
11. The Indian Registration Act, 1908 (for brevity, 'the Act'), which was brought into force with effect from 01.04.1951 in Part B States, was enacted to consolidate the enactments relating to the registration of documents. The object and purpose of the Act, amongst other things, is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud.
12. As per Section 69(1) of the Act, the Inspector-General of Registration shall exercise a general superintendence over all the Registration Offices in the territories under the State Government, and shall have the power from time to time to make rules consistent with the Act, in respect of any of the matters enumerated in clauses
(a) to (j) of that sub-section. Section 69(2) of the Act provides that, the rules so made shall be submitted to the State Government for approval, and, after they have been approved; they shall be published in the Official Gazette and on publication shall have effect as if enacted in the Act.
13. The Indian Registration Act has been amended in its W.P.(C)No.25487 of 2010 : 6 : application to the State of Kerala by the Indian Registration (Kerala Amendment) Act, 1958, with effect from 01.06.1960, by inserting clause (bb) after clause (b) of Section 69(1) of the said Act. As per clause (bb) of Section 69(1), the Inspector-General of Registration is empowered to make rules consistent with the Act, providing for grant of licences to document writers, the revocation of such licences, the terms and conditions subject to which and the authority by whom such licence shall be granted and generally for all purposes connected with the writing of documents to be presented for registration. It was in exercise of the rule making power under clause (bb) of Section 69(1) of the Act, the Inspector- General of Registration made the Kerala Document Writers' Licence Rules, 1960, with the approval of the State Government.
14. In Aype v. State of Kerala (1982 KLT 390) this Court held that, it is by virtue of the power conferred upon the Inspector General by clause (bb) of Section 69(1) of the Act that the Rules were made by him. If clause (bb) of Section 69(1) has been validly inserted, the vires of the Rules in question cannot be in doubt. In the said decision, this Court held further that, Document Writers are a class of people who practice the profession of document writing and they are expected to acquire the necessary qualifications and skill in order that they may discharge their duties and functions satisfactorily and consistently with public interest. Para.5 of the said W.P.(C)No.25487 of 2010 : 7 : judgment reads thus;
"5. The challenge against the validity of the Rules made by the Inspector General by virtue of the powers vested in him under clause (bb) of sub-section (1) of S.69 can be sustained only if the petitioner's contention regarding discrimination is valid. Document Writers are a class of people who practise the profession of document writing. They are expected to acquire the necessary qualifications and skill in order that they may discharge their duties and functions satisfactorily and consistently with the public interest. Every profession, be it law, medicine or any other, needs to impose restrictions as regards the qualifications of persons allowed to practise. This is necessary in the public interest. It is in the public interest that those who profess to write documents for others are required to acquire the necessary qualifications. To say that the imposition of restrictions on the basis of qualification in respect of persons who profess to practise a profession is discriminatory is to ignore the very nature of their functions. I do not see any substance in the contention that to impose qualifications as a condition precedent to a person being allowed to practise a profession is discriminatory. For the same reason, to contend that the requirement of a licence is discriminatory is also without substance. It was therefore in the public interest and consistently with the power vested under the Act that the Rules were made by the Inspector General with the approval of the State Government. Clause (1) of Rule 5(A) having been deleted by an amendment which was duly made, the petitioner cannot be heard to contend that he is in any manner aggrieved by the refusal of his application for that reason. If the petitioner has a case that he is qualified under the remaining provisions of the Rule it is open to him to make a fresh application stating the necessary W.P.(C)No.25487 of 2010 : 8 : facts. With this observation, the O P. is dismissed. I make no order as to costs."
15. As per the proviso to Rule 5 of the Rules, the Government is empowered to exempt any person or class of person from the provisions of Rule 5, on the recommendation of the Licensing Authority. A plain reading of the proviso to Rule 5 makes it explicitly clear that, no person is entitled to claim such exemption as a matter of right. It is for the Government to exercise such power based on the recommendation of the Licensing Authority, namely, the Inspector General of Registration.
16. In the instant case, as discernible from the pleadings on record, the Government, in exercise of its powers under the proviso to Rule 5 decided to conduct a Special Document Writers' Examination for Scribe Licensees as on 07.09.2000, who have not passed SSLC Examination. During the course of arguments, it is brought to the notice of this Court that, the petitioner appeared in the said examination, but she could not succeed. Since the petitioner cannot claim, as a matter of right, an exemption from the qualification prescribed under Rule 5 of the Rules, the reasoning of the 1st respondent in Ext.P7 order that, in view of the proposal to conduct a Special Document Writers' Examination for persons like those who have not passed the SSLC examination, there is no necessity to grant exemption in the case of the petitioner, warrants W.P.(C)No.25487 of 2010 : 9 : no interference by this Court under Article 226 of the Constitution of India. As such, the challenge made against Ext.P7 Government order can only be repelled.
17. The learned counsel for the petitioner, relying on Ext.P5 order dated 24.1.2005 of the Kerala Lok Ayukta and Ext.P4 consequential order passed by the Government would contend that, when the Government has already granted exemption in the case of one Dhanes Chand a similar treatment should have been extended to the petitioner as well.
18. As discernible from Ext.P4 order, the Government granted such relaxation based on Ext.P5 order of the Kerala Lok Ayukta in Complaint No.1311 of 2004, by which the Government was directed to reconsider the application made by the said Dhanes Chand for grant of licence, on compassionate grounds. As discernible from Ext.P5 order, the said Dhanes Chand approached the Lok Ayukta with a grievance that his application for licence to work as Document Writer has not been properly considered and orders issued. Even without narrating the contentions raised in the complaint and those in the counter filed on behalf of the respondents therein, the Lok Ayukta closed the compliant by Ext.P5 order, by which the authorities were directed to reconsider the application for the grant of licence as Document Writer afresh, on compassionate grounds. Accordingly, the Government issued Ext.P4 W.P.(C)No.25487 of 2010 : 10 : order granting licence to the said Dhanes Chand in relaxation of Rules, on condition that the said order will not be quoted as a precedent.
19. Section 7 of the Kerala Lok Ayukta Act, 1999 deals with matters which may be investigated by the Lok Ayukta and Upa Lok Ayuktas. Section 7(1) provides that, subject to the provisions of the Act, the Lok Ayukta and one of the Upa Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or special approval of the persons enumerated in clauses (i) to (vi) of sub-section (1), in any case where a complaint involving a grievance or an allegation is made in respect to such action.
20. Clause (a) of Section 2 of the Act defines 'action' to mean any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly. Clause (b) of Section 2 defines 'allegation', in relation to a public servant, to mean any affirmation that such public servant, (i) has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; (ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or W.P.(C)No.25487 of 2010 : 11 : corrupt motives; or (iii) is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant. Clause (h) of Section 2 defines 'grievance' to mean a claim by a person that he sustained injustice or undue hardship in consequence of mal- administration. Clause (k) of Section 2, defines 'mal-administration' to mean action taken or purporting to have been taken in the exercise of administrative functions in any case where, (i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or (ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay.
21. After referring to the provisions under Sections 7, 8, etc. of Kerala Lok Ayukta Act, this Court in Thankayyan v. State of Kerala and others (2012 (3) KLT 163) held that, from the scheme of the Act, as is evident from the provisions of the Act, the Lok Ayukta does not function as a Court of law but, as an investigating functionary, who has to consider the complaint, conduct investigations, find out the truth and file a report before the Government containing the truth in respect to the allegations of the complainant and recommending action against the persons responsible. What the Lok Ayukta has to report to the competent authority is whether the allegations in the complaint have been W.P.(C)No.25487 of 2010 : 12 : substantiated and whether the same has resulted in injustice or undue hardship to the complainant.
22. A reading of Ext.P5 order of the Lok Ayukta would make it explicitly clear that, such an exercise was not undertaken by the Lok Ayukta before the Government was directed to reconsider on compassionate grounds, the application made by the said Dhanes Chand for the grant of licence. When the proviso to Rule 5 of the Rules makes it explicitly clear that no person is entitled to claim exemption from the qualification prescribed under Rule 5 as a matter of right and it is for the Government to exercise such power of exemption based on the recommendation of the Licensing Authority, the claim for exemption made by the petitioner relying on Ext.P4 Government order issued pursuant to Ext.P5 order of the Kerala Lok Ayukta can only be repelled.
23. As per the Kerala Document Writers (Amendment) Rules, 2016, a proviso and explanation are added to Rule 6, after the proviso to sub-rule (2) of the Kerala Document Writers' Licence Rules, as per which, the provisions under Rule 6 shall have no application to documents prepared by the executants themselves or claimant himself. As per the explanation so added, for the purpose of Rule 6, 'executant' means any person who affixes his signature in the document as a token of his assent to the terms of the document and 'claimant' means a person who has the right to claim the W.P.(C)No.25487 of 2010 : 13 : document as per the terms of the document.
24. As per the amended provisions referred to above, the executants or claimants are permitted to prepare the document in which they are parties to. Merely for the reason that now the executants or claimants are allowed to prepare the documents in which they are parties to, it cannot be contended that a person who do not possess the requisite qualification under Rule 5 of the Rules shall be issued with the Document Writers' license to practise the profession of document writing.
In the result, I find absolutely no grounds to interfere with Ext.P7 order of the Government. The petitioner is not entitled for the reliefs prayed for. The Writ Petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE Bb/01/04/2017 True copy P.A. to Judge