Gopal Chandra Mohan and Gopal Penelope Mary v. Inspector General of Registration, Office of the Inspector General of Registration, Thiruvananthapuram; and State of Kerala represented by the Secretary, Department of Taxes, Government Secretariat, Thiruvananthapuram

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **WP(C).No.6500 OF 2021(J)** ## **PETITIONERS:** **1 GOPAL CHANDRA MOHAN AGED 83 YEARS S/O. MATHRA DASS GOPAL, HOLDER OF INDIAN ORIGIN CARD BEARING NO. PO105882 AND HOLDER OF OVERSEAS CITIZEN OF INDIA CARD NO.13086233, BRITISH NATIONAL HOLDER OF BRITISH PASSPORT NO.520044664, PAN CARD NO.AMBPG2843C, RESIDING AT STABLES COTTAGE, BACK LANE, CROSS IN HAND, HEATHFIELD SUSSEX, TN210QB, UNITED KINGDOM, ENGLAND, HAVING RESIDENCE AT JHAROKHA, HOUSE NO.1/391, VELLAYANI VIEW ROAD, OFF K.S. ROAD, MUTTACKAD, KOVALAM P. O, THIRUVANANTHAPURAM – 695 527. 2 GOPAL PENELOPE MARY AGED 73 YEARS HOLDER OF INDIAN ORIGIN CARD BEARING NO.P0106124, OVERSEAS CITIZEN OF INDIA CARD NO.A3086106, BRITISH NATIONAL HOLDER OF BRITISH PASSPORT NO.508474407, PAN CARD NO.BZYPG3884Q, RESIDING AT STABLES COTTAGE, BACK LANE, CROSS IN HAND, HEATHFIELD, SUSSEX, TN 210QB, UNITED KINGDOM, ENGLAND, HAVING RESIDENCE AT JHAROKHA, HOUSE NO.1/391, VELLAYANI VIEW ROAD, OFF K.S. ROAD, MUTTACKAD, KOVALAM P. O, THIRUVANANTHAPURAM – 695 527. BY ADVS. SRI. K.M. SATHYANATHA MENON SMT. KAVERY S. THAMPI SRI. GANESAN M.** W.P(C).No.6500 OF 2021 2 **SRI. ARUNKUMAR P. SRI. M.S. SARUN** ## **RESPONDENTS:** **1 THE INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR P. O, THIRUVANANTHAPURAM – 695 035. 2 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** **R1 & R2 – SMT. A.C VIDHYA - GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.6500 OF 2021 3 ## **JUDGMENT** The petitioners, who are persons of Indian origin and holders of British passport, are joint owners in possession of property having an extent of 2 acres and 58.856 cents in ReSurvey Nos.57/3 and 56/5 of Venganoor Village, covered by sale deed bearing No.3342 of 2006 of the Sub Registrar Office, Thiruvallam. The 1[st] petitioner is also the owner of another property having an extent of 50 cents in Re-Survey No.57/5 of Venganoor Village, covered by sale deed bearing No.124/2008 of the Sub Registrar Office, Thiruvallam. The petitioners have filed this writ petition under Article 226 of the constitution of India seeking a writ of mandamus commanding the respondents to consider and pass appropriate orders on Ext.P1 representation dated 26.01.2021, as expeditiously as possible, at any rate before 31.03.2021, in a sympathetic and positive manner. 2. On 15.03.2021, when this writ petition came up for admission, the learned counsel for the petitioners sought time to point out the relevant statutory provisions. 3. A statement has been filed by the 1[st] respondent Inspector General of Registration, producing therewith W.P(C).No.6500 OF 2021 4 Annexure R1(a) communication dated 17.03.2021 addressed to the petitioners, on Ext.P1 representation. 4. Heard the learned counsel for the petitioners and also the learned Government Pleader appearing for the respondents. 5. The learned counsel for the petitioners would submit that the only relief sought for in this writ petition is a writ of mandamus commanding the 2[nd] respondent to consider and pass orders on Ext.P1 representation dated 26.01.2021, as expeditiously as possible, invoking the powers under Section 9 of the Kerala Stamp Act, 1959. 6. The learned Government Pleader would point out that, as per the Schedule of the Kerala Stamp Act, Sl.No.44(f), the proper stamp duty payable for power of attorney, when authorising a person other than his father, mother, wife, husband, son, daughter, brother or sister to sell immovable property or giving authority or power to a promoter or developer by whatever name called, to make construction or develop, sell or transfer (in any manner whatsoever) any immovable property situated in Kerala is the same duty as a conveyance (Sl.Nos.21 or 22 as the case may be) for the fare value of the land or for W.P(C).No.6500 OF 2021 5 the amount of the consideration, whichever is higher or the estimated cost as certified by a chartered engineer of the proposed construction or development of such property, as the case may be. 7. Section 9 of the Kerala Stamp Act, which deals with power to reduce, remit or compound duties, reads thus; “ **9. Power to reduce, remit or compound duties** .- (1) The Government may, by order published in the Gazette; (a) reduce or remit, whether prospectively, or retrospectively, in the while or any part of the State of Kerala, if in the opinion of the Government it is necessary in public interest so to do, the duties with which any particular class of instruments, or any of the instruments belonging to such class, or any instruments when executed by or in favour of any particular class or persons, or by or in favour of any members of such class, are chargeable; and (b) provide for the composition or consolidation of duties in the case of issues by any incorporated company or other body corporate of bonds or other marketable securities other than debentures. (c) provide for compounding of duties payable on instruments referred to the collector or called for by him under Sections 45A, 45B or 45C at such rate and for such period as may be specified. (2) Every rule or order published under clause (a) of subsection (1), shall be laid, as soon as may be after it is published, before the Legislative Assembly.” W.P(C).No.6500 OF 2021 6 8. As per clause (a) of sub-section (1) of Section 9 of the Kerala Stamp Act, the Government may, by order published in the Gazette; reduce or remit, whether prospectively, or retrospectively, in the while or any part of the State of Kerala, if in the opinion of the Government it is necessary in public interest so to do, the duties with which any particular class of instruments, or any of the instruments belonging to such class, or any instruments when executed by or in favour of any particular class or persons, or by or in favour of any members of such class, are chargeable. As per sub-section (2) of Section 9, every rule or order published under clause (a) of sub-section (1), shall be laid, as soon as may be after it is published, before the Legislative Assembly. 9. Sub-section (2) of Section 78 of the Registration Act, 1908 deals with remission of fee payable under sub-section (1) of Section 78 of the said Act. As per sub-section (2) of Section 78, the State Government may, if in their opinion it is necessary in the public interest so to do, by order published in the Official Gazette, remit the fees payable in respect of any of the matters enumerated in Clauses (a) to (i) of sub-section (1), either W.P(C).No.6500 OF 2021 7 generally or for any particular class or classes of cases and in respect of persons generally or of any particular class or classes of persons. 10. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 11. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what W.P(C).No.6500 OF 2021 8 has been injected by law. 12. 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)** . 13. In **Ajanta Industries v. Central Board of Direct Taxes (1976 (1) SCC 1001)** , a Three-Judge Bench of the Apex W.P(C).No.6500 OF 2021 9 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 W.P(C).No.6500 OF 2021 10 1961 Act is a mandatory direction under the law and noncommunication 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. 14. In **Mampad Grama Panchayat V. Convenor Mampad Friends All India Sevens Football Tournament Committee and Others [2016 (5) KHC 846],** this Court held that, when the statute requires to do certain thing in a 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. Paragraphs 10 and 13 of that judgment read thus:- “10. Sub-section (1) of Section 7A of the Act, therefore, mandates that any general or special order of the W.P(C).No.6500 OF 2021 11 Government granting exemption from the levy of entertainments tax any entertainment under clause (a) or clause (b) thereof, should be supported by reasons to be specified in such order. In view of the mandate of subsection (1) of Section 7A, it is imperative for the Government to specify reasons in any general or special order issued under the said sub-section granting exemption from the levy of tax. This is more so, when any such Government order will have an adverse impact on the revenues of the local authorities, and since the local authorities mainly depend on such sources of revenue for carrying out their obligatory duties under the relevant statutes. xxx xxx xxx 13. In the instant case, sub-section (1) of Section 7A of the Act empower the Government to exempt an entertainment or class of entertainments, etc. from the levy entertainments tax, for reasons to be specified in the general or special order passed by the Government granting such exemption. Going by sub-section (2) of Section 7A, on such general or special order being passed, the local authority concerned shall be bound to comply with such order of exemption. If the reasons stated by the Government in granting exemption from the levy of entertainments tax is vitiated by arbitrary exercise of power or based on irrelevant or extraneous considerations, it would be open to the local authority concerned to challenge the same invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In order to exercise such right efficaciously, the reasons for W.P(C).No.6500 OF 2021 12 granting such exemption should be made known to the local authority concerned.” 15. Having considered the submissions made by the learned counsel for the petitioners and also the learned Government Pleader for the respondents, this writ petition is disposed of, by directing the 2[nd] respondent State to take an appropriate decision on the request made by the petitioners in Ext.P1 representation, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment, after affording an opportunity of being heard to an authorised representative of the petitioners. 16. It is made clear that this Court has not expressed any thing as to the merits of the claim made by the petitioners in Ext.P1 representation. In terms of the direction contained in this judgment, the 2[nd] respondent shall take an appropriate decision in the matter, strictly in accordance with law, taking note of the relevant statutory provisions and also the law on the point, including that laid down in the decisions referred to supra. No order as to costs. Sd/- **ANIL K. NARENDRAN** **JUDGE** SPR W.P(C).No.6500 OF 2021 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 26.01.2021 BEFORE THE RESPONDENTS.** **EXHIBIT P2** **TRUE COPY OF THE RECEIPT DATED 10.03.2021 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 2ND RESPONDENT DATED 10.03.2020.** **EXHIBIT P4** - **TRUE COPY OF THE CERTIFICATE ISSUED BY THE INCOME TAX DEPARTMENT UNDER SECTION 197 FOR PAN AMBPG2843C IN FAVOUR OF THE 1ST PETITIONER DATED 26.10.2020.** ## **EXHIBIT P5** **TRUE COPY OF THE CERTIFICATE ISSUED UNDER SECTION 197 FOR PAN BZYPG3884Q DATED 28.10.2020 ISSUED BY THE INCOME TAX DEPARTMENT IN FAVOUR OF THE 2ND PETITIONER.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(a)** **TRUE COPY OF LETTER DATED 17.03.2021 OF INSPECTOR GENERAL OF REGISTRATION TO THE PETITIONER.**