A. Dhanasekaran v. Government of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13.10.2009CORAMTHE HONOURABLE MR. JUSTICE S. NAGAMUTHUWrit Petition No.21992 of 2008A. Dhanasekaran .. Petitioner Versus1.Government of Tamil Nadurepresented by Secretary to Government,Commercial Taxes and Registration Department,Secretariat, Chennai - 600 009.2.The Inspector General of RegistrationChennai - 600 028. .. Respondents Writ petition has been filed under Article 226 of theConstitution of India for issuance of a Writ of Certiorari to callfor the records relating to G.O.(2D).No.35, Commercial Taxes andRegistration (H1) Department, dated 29.02.2008, passed by the firstrespondent and quash the same.For Petitioner : Mr.R.Muthukumarasamy, Senior Counsel for M/s.M.RaviFor Respondents : Mr.S.Sivashanmugam ORDERDuring the year 2003, the petitioner was the Sub Registrar ofCentral Chennai Sub Registration District, at Periyamedu. OneAmirthavalli, W/o. Gopalakrishnan executed a release deed in favourof one Anitha Rani, thereby releasing all her title and right inrespect of undivided half share in the property. The said documentwas presented before the petitioner for registration. Accepting thatthe said document is only in the nature of the release deed, thepetitioner collected stamp duty and registration charges andregistered the said document. Subsequently, during audit conductedby the District Registrar, the District Registrar claimed that thedocument is in the nature of a settlement deed for which stamp dutyshould have been collected under Article 58(a)(ii) of the Stamp Act.According to the District Registrar, a sum of Rs.1,56,400/- should https://hcservices.ecourts.gov.in/hcservices/ have been collected as stamp duty, besides Rs.10,000/- as additionalregistration charge. Thus a sum of Rs.1,66,400/- was caused as lossto the Government is the allegation.2.On the above allegation, a charge memo was issued to thepetitioner levelling as many as two charges. The petitioner deniedthe allegations. The defence taken by him was that the document isonly a release deed and it can never be categorized as a settlementdeed. Thus according to him, the stamp duty collected and theregistration charges collected were all perfectly in accordance withlaw. Not satisfying with the said explanation, an enquiry was held.The Enquiry Officer submitted a report holding the charges notproved. But the disciplinary authority, namely, the first respondentwas not satisfied with the findings of the Enquiry Officer. Thefirst respondent deviated from the report of the Enquiry Officer andfound that the charges were proved against the petitioner. Thereforea show cause notice was issued to the petitioner calling upon him tosubmit further explanation regarding the said finding of thedisciplinary authority. Accordingly, the petitioner submitted furtherexplanation. Finally rejecting all such explanations offered by thepetitioner, the first respondent held the petitioner guilty of chargeNo.1 alone and issued G.O.Ms.2D.No.35, Commercial Taxes andRegistration Department dated 29.02.2008 imposing a punishment ofstoppage of increment for six months without cumulative effect.Challenging the same, the petitioner has come forward with this WritPetition.3.I have heard the learned Senior Counsel appearing for thepetitioner and the learned Government Advocate and also perused theavailable records carefully.4.A perusal of the records would go to show that the propertyin question was originally owned by one Mr.Gopalakrishnan andRadhakrishnan. Mr.Gopalakrishnan executed a registered will infavour of his wife Mrs.Amirthavalli and one Anitharani, therebybequeathing 50% of the undivided share in favour of Amirthavalli andrests of 50% of the undivided share in favour of Anitharani. Thereis no dispute that it was the last will of Gopalakrishnan. After hisdemise, the will was duly probated by a Court of Law. Thus, as perthe said Will the beneficiaries namely Amirthavalli and Anitharanishould have half share each in the said property. It is also seenfrom the records that they did not divide the said propertysubsequent to the demise of Gopalakrishnan. Thereafter, Amirthavallihas executed the released deed, thereby releasing all her title andright in respect of undivided half share in favour of Anitharani. Itis the said document, which is sought to be categorized as settlementdeed. https://hcservices.ecourts.gov.in/hcservices/

5.Learned Senior Counsel appearing for the petitioner wouldsubmit that the document can never be categorized as a settlementdeed at all because what was conveyed was the undivided half share ofthe property in favour of other sharer. The learned GovernmentAdvocate would submit that the document cannot be termed as therelease deed, but instead the same should be treated only assettlement deed, for which the stamp duty should be collected underarticle 58(a)(ii) of the Act.6.In my considered opinion, whether the document is asettlement deed as it is claimed by the respondents or it is arelease deed is a complicated question. Prima facie from thematerials, this Court is able to come to a conclusion that it is onlya release deed. Assuming that the conclusion arrived at by thepetitioner that the document is only a release deed is not correct,whether for such wrong conclusion arrived at by the petitioner whileregistering the document can there be any punishment by way ofdisciplinary proceedings is a next question. 7.Learned Senior Counsel appearing for the petitioner wouldrely on the judgment of the Division Bench of this Court in "TheSpecial Commissioner - cum- Commissioner of Commercial Taxes, Chepauk,Chennai - 5 and another ..vs.. N.Sivasamy, Commercial Tax Officer andanother" reported in 2005(5) CTC page 451 wherein His LordshipP.Sathasivam,J (as he then was) after having considered the nature ofthe job of the petitioner therein, ultimately held that being adecision is taken by a quasi-judicial authority by error of judgmentthat cannot be a foundation for punishing him as per the ServiceRules. 8.Learned Senior Counsel would rely on yet another judgmentof this Court in W.P.(MD).No.10682 of 2007 (N.Soundarapandian ..vs..Government of Tamil Nadu) wherein after analysing various judgmentsof the Hon'ble Supreme Court, I have concluded that unless thedecision taken by the quasi-judicial authority is tainted by reasonslike extraneous considerations, corruption, abuse of power andmalafide motive, there can be no punishment imposed as per ServiceRules. Learned Senior Counsel, relying on the above two judgments,would submit that in the case on hand also there is no allegationsthat the petitioner registered the document by categorizing the sameas a release deed either for any motive or for any other extraneousconsiderations. Therefore, according to him, punishment is liable tobe quashed.9.In my considered opinion, a perusal of the records wouldnot go to show that the petitioner registered the documentcategorizing the same as the release deed not for extraneousconsideration. Obviously, it is an error of judgment. Even now it https://hcservices.ecourts.gov.in/hcservices/ cannot be clearly stated that the conclusion arrived at by thepetitioner categorizing the document as release deed is a wrongconclusion. However, by means of subsequent proceedings, the furtherstamp duty and registration fee have been collected. Therefore,applying the principles stated in the above two judgments, since itis not stated before this Court that the petitioner's action istainted by malafide or for extraneous consideration or the same istainted with any motive, I am of the view that the impugnedpunishment is not sustainable and therefore the same is quashed.10.In view of the above reasons, the Writ Petition is allowedand the impugned order is quashed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmraTo1The Secretary to Government of Tamil NaduCommercial Taxes and Registration Department,Secretariat, Chennai - 600 009.2.The Inspector General of RegistrationChennai - 600 028.1 cc To Mr.M.Ravi, Advocate, SR.21992.1 cc To The Government Pleader, SR.53747.Writ Petition No.21992 of 2008 akr(co)pmk.26.10.2009.