The petitioner is a document Writer and he has been writing documents by getting appropriate licence from the third respondent for the past 25 years. The third respondent issued a show cause notice dated 26.02.2007 to the petitioner stating that the petitioner has demanded Rs.400/- towards his writing charges for two documents and as per the rules he is entitled to collect Rs.275/- and as he collected excess charges for writing documents No.3244/2005, he has contravened the Rule 14(3), 14(4) and condition No.(c) of the licence. Another reason was stated in the show cause notice that the petitioner has forged the signature of the person for whom the document was written. Therefore, the third respondent directed the petitioner to submit his reply within 21 days why his licence should not be cancelled. The petitioner submitted a detailed reply dated 11.04.2007 stating that he has not collected any amount in excess of the prescribed charges and as per G.O.Ms.No.330, Commercial Tax and Registration document dated 06.09.2006, he received Rs.200/- towards writing charges, for another document he received Rs.25 towards writing charges and Rs.50/- towards measuring the land and has collected only Rs.275/- towards the preparation of the document and he has typed twenty pages and for that purpose he collected Rs.125/- and thus totally he has collected Rs.400/- and issued a receipt for Rs.400/- as demanded by the person by two receipts each for Rs.200/-. He further submitted that he has not collected any excess charges and he obtained signature of the person in the receipt and he has not forged the signature.
2.The additional chit Registrar, who was in-charge of the third respondent without properly appreciating the explanation given by the petitioner and without assigning any reason, not accepted the explanation of the petitioner passed an order dated 17.04.2008 cancelling the licence of the petitioner. Aggrieved by the same, the petitioner filed an appeal before the first respondent and the first respondent by G.O.(D) No.476, Commercial Tax and Registration (M2) Department, dated 29.10.2008 dismissed the appeal. Against the said order, he filed the present Writ Petition.
3.Heard the learned counsel for the respondents. The respondents filed a counter stating that the petitioner has admitted the collection of Rs.400/- and he is entitled to collect only Rs.200/- for writing a document and as he admittedly collected Rs.400/-, he contravened the directions issued by that office and therefore after enquiry his licence was rightly cancelled and therefore the order is perfectly valid in law and need not be interfered with.
4.I have carefully considered the submissions of both parties and perused the materials available on record.
5.In this case, the specific charge is that the petitioner received money more than the prescribed fee. The another charge is that he forged the signature of the person for whom he has written the document. The petitioner in his explanation has stated the reason for collecting Rs.400/- and also gave the break up for the sum of Rs.400/- received by him. He has stated as per the Rule-9 he has collected Rs.275/- and Rs.125/- was collected towards typing charges and as requested by the party, he issued two receipts for Rs.200/- each and he has not violated any conditions. When the authorities have decided to take action against the petitioner for having received the excess amount than the prescribed fee, the proper person to prove the same is the person, who paid that excess amount on the demand of the petitioner. In otherwords the person, who paid the amount and obtained the receipt is the competent person to speak about the factum of payment. In this case, the petitioner accepted the receipt of Rs.400/- and also explained the reason for receiving Rs.400/- and also gave the break up. Therefore to falsify the explanation of the petitioner the proper person is the person, who paid the amount and without examining that person the respondents cannot presume that the explanation cannot be accepted and as the petitioner having admitted issuing the receipt for Rs.400/- has contravened the directions and is therefore found guilty and on that basis his licence can be cancelled. Therefore, in my opinion, the respondents have not approached the matter in a proper perspective and without examining the proper person, namely, the person who paid the amount and without conducting the enquiry by giving opportunity to the petitioner, he should not have come to this conclusion. When the petitioner has given an explanation for the receipt of Rs.400/-, it is for the department to examine the person, who paid that amount and if that person gives evidence against the petitioner that can be taken advantage of by the department for arriving at a conclusion against the petitioner. Therefore, in the absence of any evidence against the petitioner the department should not have proceeded with the enquiry and found the petitioner guilty of the charges. When the department takes advantage of the admission of the petitioner that he received Rs.400/-, they must also consider the explanation and both the admission and explanation must have been considered together and thereafter the department should have come to the conclusion.
6.In this case, the explanation was not at all considered and admission was taken into consideration and order has been passed. Further in respect of the charge regarding forgery, the proper person to deny the signature is the person whose signature is alleged to be forged. Admittedly, that person has not given any complaint and it is not proved by the department that the signature is forged by stating the reasons. Therefore, in my opinion, the charges levelled against the petitioner has not been proved and the department has adopted a wrong approach in appreciating the explanation of the petitioner and has come to the erroneous conclusion. Hence, the order of the first respondent confirming the order of the second respondent is set aside and the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
RR To
1.The Secretary to the Government Commercial Taxes and Registration Department Secretariat, Chennai.
2.The Additional Registrar for Chits, Office of the Inspector General of Registration Chennai-28
3.The Inspector of General of Registration Chennai-28.
4.The District Registrar Thoothukudi.