Hon'ble Ajay Bhanot,J.
(Per Hon'ble Surya Prakash Kesarwani J.)
1. Heard Sri N.C. Rajvanshi, learned Senior Advocate assisted by Sri Vishesh Rajvanshi, learned counsel for the petitioners, Sri Sanjay Goswami, learned Addl. Chief Standing Counsel for the State respondents and Sri Sumit Kakkar, learned counsel for the respondent No.4. Learned counsel for the parties were heard at length on 06.08.2020 and 07.08.2020. Orders dated 06.08.2020 and 07.08.2020 were passed incorporating their arguments. The judgment was reserved on 07.08.2020.
2. This writ petition has been filed praying for the following relief:-
"(1) Issue a writ, order or direction in the nature of certiorari quashing the agreement issued by the respondent no. 4 for the appointment of authorised collection centers which has been marked as Annexure no. 4 to this writ petition.
(2) Issue a writ, order or direction in the nature of mandamus directing the respondent no. 4 to reconsider the agreement under challenge and to disclose the commission earned by the respondent no. 4 by the State Government.
(3) Issue a writ, order or direction in the nature of certiorari quashing the impugned Circular dated 17.01.2020 marked as Annexure no. 5 to this writ petition.
(4) Issue a writ, order or direction in the nature of mandamus directing the respondents nos. 2 and 3 not to discontinue the printing of physical judicial and non judicial stamps.
(5) Issue a writ, order or direction in the nature of certiorari quashing the impugned letter/order dated 25.02.2020 issued by the respondent no. 3, which has been marked as Annexure no. 7 to this writ petition.
(6) Issue a writ, order or direction in the nature of mandamus directing the respondents nos. 2 and 3 to reconsider the claim of the petitioner as per Annexure no. 6 to this writ petition.
(7) Issue a writ, order or direction in the nature of mandamus whereby directing the respondents nos. 2 and 3 to fix the commission of the petitioner's members as per Rule 161 of the Rules, 1942."
Facts
3. Petitioners claim themselves to be an association of licenced stamp vendors to sell stamps in physical form under licences granted under chapter IV of the U.P. Stamp Rules 1942 (hereinafter referred to as "the U.P. Rules 1942"). They have no licence or authority to sell E-stamp.
4. Section 10 of the Indian Stamp Act 1899 (hereinafter referred to as "the Stamp Act") provides the method of payment of stamp duty in respect of instruments chargeable under the Stamp Act. Clause (b) of sub Section 1 of Section 10 of the Act empowers the State Government to make rules for payment of stamp duty. Section 74 of the Act empowers the State Government to make rules for regulating the supply and sale of stamps and stamp papers, the person by whom such sale is to be conducted and the duties and remuneration and the fees chargeable from such persons. Section 75 of the Stamp Act confers powers upon the State Government to make rules to carry out generally the purpose of the Stamp Act and to prescribe the fines which shall in no case exceed Rs.5000/-, to be incurred in breach of the provisions of the Stamp Act.
5. Under the Rule 152 of the U.P. Rules 1942, the licenced Stamp Vendors under the U.P. Rules 1942 are authorised to sell Court Fee Stamps and non judicial stamps not exceeding the aggregate value of Rs. 15,000/- to a person for one document or instrument.
6. The Government of India has appointed the respondent no. 4 (Stock Holding Corporation of India) as "Central Record Keeping Agency" (for short CRA) for computerization of Stamp duty Administration system. The respondent No.4 is a Government of India Company in which majority shares are held by the Industrial Finance Corporation of India Ltd. (IFCI) and the balance shares are held by the Life Insurance Corporation of India, United India Insurance Company, General Insurance Corporation of India, National India Assurance Company Ltd. and National Insurance Company Ltd.
7. In exercise of powers conferred under Sections 10, 74 and 75 of the Stamp Act, the State Government framed "The Uttar Pradesh e-Stamping Rules 2013 (hereinafter referred to as "e-Stamp Rules 2013").
8. The aforesaid E-Stamping Rules 2013, initially has not made eligible the licenced stamp vendors to sell E-Stamp. By the Uttar Pradesh E-Stamping (1st amendment rules 2019) Rule 13 of the E-Stamp Rules 2013 has been amended, whereby licenced Stamp Vendors under the U.P. Rules 1942, possessing educational qualification prescribed by the Stamp Commissioner, Uttar Pradesh; have been made eligible for appointment as "Authorised Collection Centre" subject to the prior approval of the appointing authority under Rule 12 of the E-Stamp Rules 2013. Now they may apply for "Authorised Collection Centre" for appointment as an agent by the "Central Record Keeping Agency", with the prior approval of the State Government, to act as an intermediary between the "Central Record Keeping Agency" and the stamp duty payer for collection of stamp duty.
9. There is no averment in the writ petition that the petitioners have applied or have been appointed as "Authorised Collection Centre" to act as an intermediary between the "Central Record Keeping Agency" and the stamp duty payer.
10. Briefly, on the above noted facts and legal position the petitioners have filed the present writ petition praying for the relief as aforequoted.
Submissions on behalf of the petitioners
11. Learned counsel for the petitioners submitted as under:-
(i) The lowering of commission under the Rules 2013 on sale of E-Stamp papers, is violative under Article 19(1) (g) of the Constitution of India inasmuch as the lower rate of commission shall adversely affect petitioners right to run business.
(ii) The scheme of the proposed agreement framed by the respondent no. 4 for being entered with the Authorised Service Centre is violative of Article 21 of the Constitution of India, inasmuch as due to lowering of commission the members of the petitioners shall lose their right to live with dignity as they shall have less income due to lowering of commission on sell of E-stamp.
(iii) The Rules 2013 do not contain any provision for commission on sale of E-stamp, Therefore, the Uttar Pradesh Stamp Rules, 1942 shall apply which provides for one percent commission of physical sale of stamp papers.
(iv) The State Government has duty to secure and protect economic justice and to minimise inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities. The present action of the government would amount to lowering the income of Authorised Collection Centre inasmuch as petitioners could be getting higher commission on sale of physical stamp upto Rs.15,000/- whereas on sale of E-stamp, they shall be getting a lower commission irrespective of the amount. Thus, the provisions of Article 38 of the Constitution of India which are part of directive principles of State Policy, shall stand violated.
12. In support of his submissions, learned senior advocate has relied upon a judgment of Hon'ble Supreme Court dated 05.05.2008 in Union of India vs. Prabhakaran Vijaya Kumar and others (Civil Appeal No.6898 of 2002) (Paras-44 and 45), a judgment dated 24.07.2019 of Madhya Pradesh High Court in Writ Petition No.13723 of 2019 (Minakshi Yadav vs. State of M.P. and others) and another judgment of Madhya Pradesh High Court dated 16.07.2019 in W.A. No.1141 of 2019 (Ripu Daman Singh Yadav vs. State of M.P. and others).
Submissions on behalf of respondents
13. Sri Sanjay Goswami, learned Additional Chief Standing Counsel submitted as under:
(i) Under the E-Stamping Rules, 2013, the stamp vendors were not included and were not authorised to sell E-stamp but by the First Amendment Rules, 2019, the stamp vendors have been included under the E-stamping Rules, 2013 and thus, they may take advantage of selling E-stamp. Therefore, by First Amendment Rules, a benefit has been conferred upon stamp vendors and they may get more business by way of selling of E-Stamp.
(ii) Presently, the State Government has stock of physical stamp of more than Rs.17,000 crores which as per prevailing rate of consumption, shall take more than two years to exhaust. Thus, the petitioner's business cannot be said to be adversely affected by sale of E-stamp.
(iii) The petitioners being stamp vendors have the only right for enforcement of their conditions of licence. They have no right beyond the conditions of their licence and the relevant provisions of the Act and Rules.
(iv) The petitioners as stamp vendors are governed by the U.P. Rules, 1942. By the E-stamping Rules, 2013 as amended by the First Amendment Rules, 2019, they have been made eligible to sell E-stamp. Therefore, for sale of physical stamp, they shall be governed by the provisions of U.P. Rules, 1942. In the event, they apply for registration as Authorised Collection Centre for sale of E-stamp, then they shall be governed by the provisions of U.P. E-Stamping Rules, 2013.
(v) The Rules, 2013 do not infringe Article 19(1)(g) of the Constitution of India. The entire argument of the petitioners is wholly without factual foundation.
(vi) The U.P. E-stamping Rules, 2013 and the proposed agreement framed by the respondent No.4 are not violative of Article 21 of the Constitution of India inasmuch as it is wholly within the choice of the petitioners either to apply for Authorised Collection Centre or not. If they find it beneficial for them, then they may apply and get them registered as Authorised Collection Centre.
(vii) The provisions of Article 38 of the Constitution of India have no application in the present facts and circumstances of the case. Article 38 is in Part-IV of the Constitution of India, which is directive principle of State Policy. It is mere apprehension of the petitioners that they may get lower commission if they apply for Authorised Collection Centre for sale of E-Stamp. In any case, it does not fall within the ambit of Article 38 of the Constitution of India.
(viii) By the E-stamping Rules, 2013, the stamp vendors have been made eligible to apply for Authorised Collection Centre. None of the petitioners have yet applied. Therefore, even no cause of action arose to the petitioners to file the present writ petition inasmuch as they are not even Authorised Collection Centre under the Rules, 2013.
14. Sri Sumit Kakkar, learned counsel for the respondent No.4 has adopted the submissions made by the learned Additional Chief Standing Counsel.
Discussion and findings
15. We have carefully considered the submissions of learned counsels for the parties.
16. The petitioners have not challenged the validity of the e-Stamp rules. They have merely challenged the agreement executed by the State Government with the stock holding corporation of India limited (respondent no. 4), the letter of the Commissioner Stamp, dated 17.01.2020 addressed to the Chief Treasury Officer, Kanpur Nagar, returning his indent for printing of Court Stamps, until further orders and rejection of petitioner's representation by the Stamp Commissioner received under Public Grievance Cell. The petitioners have also prayed for writ of mandamus to the respondent nos. 2 and 3 not to discontinue printing of judicial and non judicial stamps and to fix the commission of the petitioners on E-Stamp sales as per Rule 161 of the Rules 1942.
17. The provisions of the Indian Stamp Act, 1899, the U.P. Stamp Rules 1942 and the U.P. E-Stamping Rules 2013, which are relevant for the purposes of the present controversy, are reproduced below:-
(a) The Indian Stamp Act 1899 Section 10. Duties how to be paid.- (1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments, by means of such stamps,-
(a) according to the provisions herein contained;or
(b) when no such provision is applicable thereto, as the [State Government] may by rules direct.
(2) The rules made under sub-section (1) may, among other matters, regulate,-
(a) in the case of each kind of instrument - the description of stamps which may be used;
(b) in the case of instruments stamped with impressed stamps - the number of stamps which may be used;
(c) in the case of bills of exchange or promissory notes written in any Oriental language - the size of the paper on which they are written.
Section 74. Power to make rules relating to sale of stamps. -
The State Government may make rules for regulating,-
(a) the supply and sale of stamps an stamped papers;
(b) the persons by whom alone such sale is to be conducted;
(c) the duties and remuneration of and the fees chargeable from such person.
Provided that such rules shall not restrict the sale of ten paise or five paise adhesive stamps.
Section 75 Powers to make rules generally to carry out Act.
The State Government may make rules to carry out generally the purposes of this Act, and may, by such rules, prescribe the fines, which shall in no case exceed five hundred rupees, to be incurred on breach thereof.
(b) The Uttar Pradesh Stamp Rules, 1942 Section 150. Only authorised persons to sell stamps : Exceptions.- No person, who is not duly authorized in the manner hereinafter provided, shall be entitled to sell stamps of any description other than ten naye paise revenue stamps. This prohibition shall not apply-
(i) to a legal practitioner or a banker, who buys a stock of stamps for uses in his own business, and affixes them, when occasion requires, to the document he has to draw up in the course of that business, the cost of the stamps being recovered from his client or customer with the rest of his charges:
Provided that every court-fee label affixed by a legal practitioner to a document shall be enfaced by him in the name of the client on whose behalf the document is presented to the court. A label once so enfaced shall not be enfaced a second time.
(ii) to Government offices or Incorporated Companies or other body corporate in respect of stamped paper used for printed forms of instruments for use by the persons concerned with the business of that office, company or body, the cost of the stamp being recovered from those persons.
151. Classes of vendors.- There shall be two classes of vendors, namely-(a) ex officio vendors, and (b) licensed vendors.
(a) The following persons shall be deemed to be ex officio vendors:
(i) the treasurer of each district with his salaried assistant or the agent of the treasurer approved on his behalf by the Collector. When the treasurer's approved agent is appointed as ex officio vendor, the treasurer shall remain in every respect responsible as surety for the said agent;
(ii) the Tahsildar of each Tahsil;
(iii)any salaried vendor who may be appointed by the Provincial Government ;
(iv)the officer-in-charge of every Post Office at which letters are received for despatch (for the sale of adhesive revenue stamps of ten naye paise denomination only).
(b) The Collector may grant a license for vend to any of the following persons, namely:
(i) lambardars of village;
(ii) bakshis in towns under the provisions of the United Provinces Town Areas Act, 1914 (ll of 1914);
(iii) pound- keepers;
(iv) kurk amins;
(v) Postmasters at places other than the headquarters of the district or a tehsil;
(vi) village school masters;
(vii) the Nazir, head copyist or other responsible official attached to a Civil, Criminal or Revenue court at which no salaried vendor has been appointed and where there is no other liscensed vendor;
(viii) an official on the staff of Presiding Officer of a Court in camp;
(ix) patwaris in the districts of Almora, Naini Tal and Garhwal; and
(x) any other persons deemed by the collector to be a fit and proper person for the sale of the stamps :
Approval to appointment required in certain cases- Provided that in the case of the appointment of postmasters and school masters the previous approval of the "Postmaster - General" and the "Chairman of the Education Committee of the District Board" respectively shall be obtained.
151-A. Period of license and fee .- (1) Liscense for vend of stamps shall be granted for a financial year.
(2) A license granted during the course of the financial year shall be terminated on March 31, next following.
(3)The Collector may on a written application of the licensed vendor to that effect, moved within a period of one month prior to the date on which the license expires, renew the license for the succeeding financial year :
Provided that if the application for renewal of license is moved and the renewal is not granted till the expiry of the period of license, the license granted shall remain valid till the same is renewed or renewal is refused.
(4) A license fee of one hundred rupees for every financial year for which the license is granted or renewed shall be paid to the government through the Collector concerned :
Provided that if a new license is applied for, during a financial year, the licence fee for the remainder period of that financial year shall be calculated at the rate of twenty five rupees for each quarter or a part of a quarter.
(5) If a license is lost, destroyed, defaced, torn or becomes illegible, licensed vendor shall forthwith apply to the Collector for grant of a duplicate license. The Collector may, on being satisfied that the issue of duplicate license is justified, issue a duplicate license on payment of twenty-five rupees. Every such duplicate license shall be stamped "DUPLICATE".
151-B. License for more than one financial year .- Notwithstanding anything contained in Rule 151-A, a license for vend of stamps may be granted for a period of five financial years on payment of a lump sum license fee of two hundred and fifty rupees.
152. Sale of stamps by licensed vendors and restrictions therefor.- (a) Licensed vendors shall be allowed to sell court fee stamps or non-judicial stamps not exceeding the aggregate value of fifteen thousand rupees for one document or instrument, as the case may be, and to an individual member of the public.
(b) Any person aggrieved by an order of the Collector under clause (a) may, within thirty days thereof prefer an appeal to the Board of Revenue, Uttar Pradesh, Allahabad or any officer authorised by the Board in this behalf, whose decision thereon shall be final and conclusive.
157. Method of supply of stamps to licensed vendor.- Licensed vendors shall obtain stamps from ex officio vendors at local and branch depots on payment of ready money (less the discount hereinafter prescribed):
Provided that persons in the service of the Crown licensed under Rule 151 (b) may obtain stamps as an advance, without payment, in accordance with rule 158.
161. Discount.- Every licensed vendor who purchases non- judicial, court-fee or copy stamps from the Government treasury by payment of ready money shall receive the same at a discount of Rs. 1.00 per cent of the face value of the stamps.
If the discount permissible contains a fraction of a rupee, any such fraction, in excess of the nearest lower multiple of five paise shall be ignored :
Provided that no discount shall be allowed :
(a) on any stamps supplied on any material furnished by the purchaser himself;
(b) unless stamps of an aggregate value of not less than Rs.5 are purchased at one time;
(c) on the fraction of only one rupee; and
(d) on account of purchase of adhesive revenue stamps.
167. Stamps to be delivered on demand by Collector.- Every licensed vendor shall, at anytime, on the demand of the Collector deliver all stamps, or any class of stamps, remaining in his possession together with his registers.
(c) The Uttar Pradesh E-Stamping Rules 2013
2. Definitions- (1) (b) "Agreement" means the agreement executed between the Appointing Authority and the Central Record-keeping Agency describing the terms and conditions of appointment of the Central Record- keeping Agency;
(d) "Approved Intermediaries" means the Central Record - keeping Agency and the Authorised Collection Centres including all its offices and branches as appointed with the prior approval of the Government to act as an intermediary between the Government and the Stamp duty payer for the collection of Stamp duty under these rules ;
(e) "Authorised Collection Centre" means an agent appointed by the Central Record-keeping Agency, with the prior approval of the Government, to act as an intermediary between the Central Record-keeping Agency and the Stamp duty payer for collection of stamp duty;
(f) "Central Record-keeping Agency" means an agency appointed by the appointing authority for computerization of Stamp Duty Administration System in the State or at such places as the Government may determine from time to time;
(i) "E-Stamp" means an electronically generated impression on paper to denote the payment of Stamp duty;
3. Eligibility criteria for appointment of Central Record-Keeping Agency- Any public Financial Institution, Indian Scheduled Bank or a Company engaged in providing depository services appointed by Central Government, a company recognized by the Government either individually or in consortium may be eligible for appointment as Central Record-keeping Agency.
4.Appointment of Central Record Keeping Agency - The appointing Authority shall select and appoint by notification a suitable agency to function as Central Record -keeping Agency for the State to implement the Computerisation of Stamp Duty Administration System in specified places of the State as declared by him from time to time, in order of as mentioned below-
(a) on the basis of recommendations, if any, of the Central Government regarding appointment of Central Record-Keeping Agency, issued from time to time;
(b) by inviting technical and commercial bids through a duly constituted expert Selection Committee.
5.Term of appointment- The term of the Central Record-keeping Agency appointed under the rules shall be five years.
6. Central record-keeping Agency to execute Agreement and Undertaking and Indemnity Bond- (1) The appointment of the Central Record-keeping Agency shall be on the contract basis and the agency shall enter into an Agreement in Form-1 with the Appointing Authority or the Government.
(2) The Central Record-keeping Agency shall along with the agreement referred to in sub-rule (1) execute an Undertaking & indemnity Bond in the Form-2, in favour of the Appointing Authority or in any other form as may be determined by the Government from time to time.
9. Duties of Central Record-keeping Agency-(1) The Central Record-keeping Agency shall be responsible for-
(a) creating need based infrastructure, hardware and software in designated places in consultation with the Appointing Authority and its connectivity with its main server;
(b) creating need based software in the offices of Registering Officers, and Supervisory and Controlling Officers, of the department and at authorised Collection centres, the point of contact for payment of Stamp duty, within the State or at such places as may be specified from time to time by the appointing authority;
(c) providing suitable and adequate training for operation and the use of the system to the personnel of the department as may be specified from time to time by the Appointing Authority;
(d) facilitating in selection of authorized collection centres for collection of stamp duty and issuing E-stamp certificates;
(e) co-ordinating between the central server of Central Record-keeping Agency Authorized collection centres (banks, etc.) and the offices of the Registering Officers, and Supervisory Controlling Officers of the Department or any other office or places as may be specified by the Appointing Authority;
(f) collecting stamp duty and remitting it to the Head of Account of the state in accordance with these rules and as directed from time to time by the Government as the case may be;
(g) preparing and providing various reports as required under these rules and as required by the Commissioner of Stamps from time to time.
(2) (a) The Central Record-keeping Agency shall not provide, transfer or share any hardware; software or any other technology or details in respect of the E-stamping project undertaken by it in the State to anybody without written permission of the Appointing Authority other than the duly appointed Authorized Collection Centers.
(b) Deploy the E-stamping application software after getting the security audit conducted by the agency empowered by the Government. The security audit shall also be required whenever there is any change in the E-stamping application software's subsequently.
(c) Maintain the logs of all the activities on the server dedicated for E-stamping under guidelines of Indian Computer Emergency Response Team "CERT in" on regular basis.
10. Commission allowable to the Central Record-keeping Agency - (1) The Central Record-keeping Agency shall be entitled to such agreed percentage of Commission on the amount of Stamp duty collected by Approved Intermediaries. The rate of Commission shall be notified by the Government in the Gazette.
(2) The Commission to the Central Record-keeping Agency shall be subject to the condition of rule - 20 hereunder mentioned.
12. Appointment of Authorized Collection Center - The Central Record keeping Agency may appoint agent(s), herein after called Authorized Collection Centers, with prior approval of the Appointing Authority; to act as an intermediary between the Central Record-keeping Agency and the stamp duty payer for collection of stamp duty. The service changes, commission or fee etc. payable to Authorized Collection Centers shall be paid by the Central Record-keeping Agency at their own level as mutually agree between them.
13. Unamended Rule Eligibility criteria for appointment of Authorized Collection Center-
Any Scheduled Bank, any Financial Institution or undertaking controlled by the Reserve Bank of India or the Financial Institution or undertaking controlled by the Government, or a Post Office will be eligible for appointment as Authorized Collection Center, subject to prior approval of the Appointing Authority under rule 12.
13. Substituted Rule by Ist Amendment Rule 2019 Eligibility criteria for appointment of Authorized Collection Center-
Any Scheduled Bank, any Financial Institution or undertaking controlled by the Reserve Bank of India or the Financial Institution or undertaking controlled by the Government, or a Post Office or a stamp vendor having license under Uttar Pradesh Stamp Rules, 1942, and Possessing educational qualifications prescribed by the Stamp Commissioner, Uttar Pradesh will be eligible for appointment as Authorized Collection Center, subject to the prior approval of the Appointing Authority under rule 12.
Whether proposed Agreement of "Authorised Collection Centre" can be quashed or interfered at the instance of the Petitioners:
18. By notification F No. 16/1/ 2004 - CY. 1. Government of India Ministry of Finance Department of Economic Affairs (C & C, Division) New Delhi, dated 28.12.2005, the Stock Holding Corporation of India Limited (for short SHCIL) was selected and authorised to act as Central Record Keeping Agency (CRA) for Computerization of Stamp Duty Administration System (CSDAS). This was an step towards sale of E-Stamp. The Uttar Pradesh Government by Notification No. 473/K.N./11-7/2013-500(97)/2008, Lucknow, dated 28.05.2013, appointed the respondent no.4 i.e. M/s. Stock Holding Corporation of India limited as the Central Record Keeping Agency under Rule 4 of the E-stamp Rules, to implement the computerization of Stamp Duty Administration System in the State. Thus, the appointment of the respondent no. 4 has been made by the State Government under Rule 4 of the E-Stamp Rules to act as the Central Record Keeping Agency. Under Rule 6 of the E-Stamp Rules the appointment of the respondent No. 4 is on contract basis and the respondent no.4 has entered into agreement with the Appointing Authority/the Government in terms of Rule 6 in prescribed form I.
19. Initially, under Rule 13 of the E - Stamp Rules 2013, six category of persons were eligible to apply for appointment as "Authorised Collection Centre. Subsequently by 1st Amendment Rules 2019 (Notified on 15.11.2019) Rule 13 was amended by including Stamp Vendors having lisence under the Uttar Pradesh Stamp Rules 1947. Thus, Stamp Vendors having lisence under the Uttar Pradesh Stamp Rules, 1942 became eligible for appointment as "Authorised Collection Centre" under the E - Stamp Rules 2013 from 15.11.2019. Out of seven categories of persons eligible for appointment as "Authorised Collection Centre" under Rule 13 of the E - Stamp Rules 13, only the petitioners i.e. Stamp Vendors having lisence under the Uttar Pradesh Stamp Rules 1942, have filed the present writ petition for Commission as per Uttar Pradesh Rules 1942 for Collection of Stamp duty as intermediary on e-Stamp under the E - Stamp Rules, 2013.
20. There is no averment in the writ petition that members of the petitioner's Association have applied for appointment as "Authorise Collection Centre" under the E - Stamp Rules, 2013. The allegation of bank charges and expenses are also not supported by any evidence. It has been well settled by Hon'ble Supreme Court in Bharat Singh Vs. State of Haryana (1988) 4 SCC 534 (Para 13) that "If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point." The petitioners are still not Authorised Collection Centre. They have no right to dictate the terms of contract. It is wholly within their choice to apply for appointment as "Authorised Collection Centre" and enter into contract under Rule 12 to act as an intermediary between the Central Record Keeping Agency and the Stamp duty payer for collection of stamp duty, if they find it beneficial to them. They have no fundamental or legal right to trade in E-Stamp or to act an intermediary for collection of stamp duty which is a tax and is within the exclusive domain of the Government. They have no locus standi to challenge the proposed contract under Article 226 of the Constitution of India. Besides above, as per clause (vii) of the proposed agreement, the "Authorised Collection Centre" shall be entitled to 23% of the commission earned by the respondent No.4 from the State of U.P. for such e-stamps generated by the ACC in Uttar Pradesh which is neither unreasonable looking into the duties of the respondent No.4 specified under the aforequoted Rule 9 nor it could be demonstrated by the petitioners to be unreasonable.
21. Therefore, for all the reasons aforestated the relief nos.1 and 2 sought by the petitioners deserves to be rejected and are hereby rejected.
Regarding letter of the Addl. Chief Secretary date 17.01.2020:
22. So far as the relief No.3 is concerned, we find that it is a correspondence between the Additional Chief Secretary, Board of Revenue, Uttar Pradesh, Prayagraj and Chief Treasury Officer, Kanpur Nagar, regarding stamps printing. There is no factual foundation in the writ petition that any licenced stamp vendor under the U.P. Rules 1942 has been denied sale of physical stamp under their licence. Learned counsel for the petitioners has also not disputed the submissions of learned Additional Chief Standing Counsel that the State Government has very huge stock of stamps in physical form. Under the circumstances, the challenge to the impugned letter of the Additional Chief Secretary, dated 17.01.2020 is wholly misconceived. Therefore, the relief No.3 sought for its quashing has no merit and is, rejected.
Regarding mandamus not to discontinue printing of stamps:
23. The relief no. 4 sought by the petitioners is that the mandamus may be issued to the respondent nos.2 and 3 not to discontinue printing of judicial and non judicial stamp in physical form
24. The relief so sought by the petitioners is wholly misconceived in as much as, firstly, no material has been placed or pleaded in the writ petition which may indicate that despite demand the physical stamp has not been issued to any licenced vendor under the U.P. Rules 1942 and, secondly, the aforementioned notification of the Central Government dated 28.12.2005 indicates that E-Stamp sale is a policy decision of the Government for collection of stamp duty which has been taken pursuant to the announcement made in the Parliament in the wake of stamp paper scam. Now e-stamp is governed by the E-Stamp Rules 2013. The petitioners being licenced stamp vendors under the U.P. Rules 1942 have the right for enforcement of conditions of their licence. They can not dictate the Government for collection of stamp duty under Section 10 of the Act, in the manner as per their (petitioners) desire.
25. In view of Article 246(1) of the Constitution of India the Parliament has exclusive power to make laws for stamp duty with respect to matters specified in Entry 91 of List-I of the VIIth Schedule. The State legislature has exclusive power under Article 246(3) to legislate for stamp duty with respect to matters specified in Entry 63 of List II. The concurrent power to legislate has been provided under Art. 246(2). Entry 44 of the concurrent list of the VIIth Schedule provides for stamp duties other than duties of fees collected by means of judicial stamps, but not including rates of stamp duty. Article 268 of Constitution of India provides that such stamp duties as are mentioned in the Union list shall be levied by the Government of India but shall be collected (a) in the case where such duties are leviable within any Union Territory, by the Government of India, and (b) in other cases, by the States within which such duties are respectively levied. Thus, Stamp duty levied within a State is collected by the respective State as per relevant Act and Rules.
26. The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments, vide Hindustan Steel Ltd. Vs. Dilip Construction Co. (1969) 1 SCC 597 (Para 7). Stamp duty is a Tax and a taxing statute has to be constructed strictly, vide State of Andhra Pradesh Vs. P. Laxmi Devi (2008) 4 SCC 720 (para 19) and State of M.P. Vs. Rakesh Kolhi (2012) 6 SCC 312 (para 20). Tax is compulsory exaction of money by a public authority for public purposes enforceable by law, vide State of Gujarat Vs. Akhil Gujarat Pravasi V.S. Mahamandal (2004) 5 SCC 155 (para 11). Thus, stamp duty being a tax and sale of physical stamp or E-stamp for collection of revenue being policy decision of the Government in fiscal matter, no mandamus under Article 226 of the Constitution of India can be issued to the Government at the instance of the petitioner to print physical stamp when the Government has taken a policy decision backed by statutory provision for E-stamp and to permit "ACC" to issue e-stamp of any amount to a person under the E-Stamp Rules.
27. The petitioners have not disputed that the E-Stamp Rules 2013 has been validly framed. The decision of the Government for sale of E-Stamp and the legislation made in this regard relates to economic matter/activities which should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. While dealing with economic limitation, Hon'ble Supreme Court in the case of R.K. Garg Vs. Union of Inida 1981 (4) SCC 675 (para 8) observed that the court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, every legislation particularly in economic matters is essentially empiric and it is based on experimentation. There, may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.
28. It is settled law that a writ lies when any fundamental or legal rights are infringed. Writ of mandamus can be issued in favour of a person when he has legally protected and judicially enforceable subsisting right, vide Director of Settlements Vs. M.R. Apparao 2002 4 SCC 638. A writ of prohibition can be issued only when patent lack of jurisdiction is made out, vide Union of India Vs. Upendra Singh 1994 (3) SCC 357 (para 4) and S Govind Menon Vs. Union of India AIR 1967 SC 1274. None of the above circumstances exists in the case of the present petitioners which may entitle them for relief in the nature of mandamus. The petitioners have completely failed to make out a case that any of their fundamental rights are infringed or that they have any legally protected and judicially enforceable subsisting right to ask for mandamus or that action of the State - respondents suffers from patent lack of jurisdiction. Therefore, the relief no.4 as sought by the petitioners deserves to be rejected and is hereby rejected.
Claim of petitioners for commission on sale of E- Stamp as per the U.P. Stamp Rules 1942
29. The petitioners are licenced stamp vendors under the U.P. Rules 1942. There are two class of persons who may be granted licence for sale of stamps in physical form under the U.P. Rules 1942. Members of the petitioners are a class under Rule 151 of the U.P. Rules 1942. The period of licnecee under Rule 151 A read with Rule 151 B may be one year or 5 years. Under Rule 152, the licenced Stamp vendors are allowed to sell Court Fee Stamps or non judicial stamps not exceeding the aggregate value of Rs.15,000/- on one document or instruments, as the case may be, to an individual member of the public. Thus, the highest limit for sale of stamps by a licence stamp vendors to an individual member of the public for one document or instrument is Rs.15,000/- only. Under Rule 161 of the Rules a licence stamp vendor get one percent discount on the face value of the stamps purchased by him. Under the U.P. Rules 1942, the licence stamp vendors/members of the petitioners have neither any authority to sell E-Stamp nor under the said Rules there is any provisions for licence of E-Stamp. Therefore, the relief in the nature of mandamus sought by the petitioners for a direction to the respondent nos. 2 and 3 to fix a Commission on sale of E-Stamp as per Rule 161 of U.P. Rules 1942 is wholly misconceived.
30. Since the licence of the members of the petitioners for sale of physical stamp is governed by the provisions of U.P. Rules 1942, therefore, they can not claim that the discount as provided in the Rules 1942 for sale of stamp of limited amount should be applied to "Authorised Collection Center" under the e-Stamp Rules 2013, which is entirely a different scheme exclusively governing sale of E-Stamps. Therefore, the relief Nos. 6 & 7 sought by the petitioners are wholly misconceived and are hereby rejected.
Whether apprehension of lower income infringes fundamental rights under Article 19(1)(g), Article 21 and Article 38 of the Constitution of India ?
31. Rule 12 of the E-Stamp Rules 2013 provides that the Central Record Keeping Agency may appoint agent(s) called "Authorised Collection Centre" to act as an intermediary between the Central Record - Keeping Agency and the Stamp duty payer for collection of Stamp duty. Thus, if members of the petitioners apply for and are appointed as "Authorised Collection Centre" by the respondent No.4, then their status shall be of an agent of the respondent No.4. As per the aforesaid Rule 12 the Service Charges, Commission or fee etc. payable to the "Authorized Collection Centre" shall be paid by the Central Record - Keeping Agency i.e. the respondent No.4 at their own level as mutually agreed between them. Thus it is wholly within the choice of licenced stamp vendors either to agree to work as agent of respondent No. 4 on the commission/service charge/fee as may be offered to them by the respondent no.4 or not to agree. By no stretch of imagination it infringe Article 19(1) (g) or Article 21 or Article 38 of the Constitution of India. The entire submissions of learned counsel for the petitioners in this regard is totally baseless and without substance. This Court under Article 226 of the Constitution of India cannot direct the respondent no.4 to agree to pay to ACC commission/service charge/fee as may be demanded by the petitioners in contrast to the mutually agreed amount under Rule 12 of the E-stamp Rules and enter into contract on that basis with a licensed stamp vendor for his appointment as agent (A.C.C.).
32. Article 19(1)(g) of the Constitution accords fundamental right to carry on any profession, occupation, trade or business which is subject to imposition of reasonable restriction in general public interest by the State under Article 19(6). The petitioners have no fundamental right to sell E-Stamp or for appointment as an agent under Rule 12 of the E-Stamp Rules. Amount of commission/service charge/fee as may be or has been offered by the respondent no.4 to persons for appointment as agent under Rule 12, does not infringe Article 19(1)(g).
33. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Apprehension of lower income than the desired income as an agent under Rule 12 does not attract Article 21 of the Constitution.
34. Article 38 is the directive principle of State Policy. Learned counsel for the petitioner has completely failed to demonstrate as to how Article 38 is attracted and is enforceable under the facts and circumstances of the present case. Therefore, his submission with regard to Article 38 is also rejected.
35. Judgment in the case of Prabhakaran Vijaya Kumar and others (Supra) relied by learned counsel for the petitioner relates to Railway accident claim. The judgment of Madhya Pradesh High Court in the case of Minakshi Yadav (supra) relied by learned counsel for the petitioner relates to transfer order of a supervisor when his daughter was pursuing her academic career in Class 12th. Another judgement of Madhya Pradesh High Court in the case of Ripudaman Singh Yadav (supra) relied by him, also relates to transfer of a government servant. All theses judgments have no relevance in the present matter.
36. For all the reasons aforestated, there is no merit in the present writ petition. Hence the writ petition is dismissed.
Order Date :- 10.02.2021/vkg