Government of Uttar Pradesh & Ors
Vs. Raja Mohammad Amir Ahmad Khan [1961] INSC 53 (16 February 1961)
KAPUR, J.L.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1961 AIR 787 1962 SCR (1) 97
ACT:
Stamp Duty Instrument presented to Collector
for opinion as to duty chargeable-Collector assessing duty-Impounding and
demand of duty Legality of Indian Stamp Act, 1899 (11 of 1899),ss31, 32, 33.
HEADNOTE:
The respondent executed an instrument and
presented it to the Collector for his opinion under s. 31 Stamp Act as to the
duty chargeable. The Collector,, after a reference to the Board of Revenue,
determined the duty payable. He then impounded the instrument and ordered that
the ditty be deposited within 98 fifteen days. Later, a notice was served upon
the respondent to deposit the amount of stamp duty and penalty within one month
and threatening that in default proceedings would be taken to recover them as
arrears of land revenue. The respondent challenged the legality of the
impounding of the instrument and demand of stamp duty and penalty.
Held, that after determination of the stamp
duty the Collector became functus officio and could not impound the instrument
or demand duty and penalty. Under s. 31 the Collector has merely to determine the
proper amount of duty.
If the person executing the instrument wants
to effectuate the instrument or to use it for purposes of evidence he has to
make up the duty and under s. 32 the Collector makes the necessary endorsement.
Section 33 empowers every person in charge of a public office before whom an
instrument chargeable with duty is produced or comes in the performance of his
functions to impound the instrument if it is not duly stamped. When an
instrument is presented to the Collector under s. 31 for determination of duty
it cannot be said that it "is produced or comes in the performance of his
functions" as contemplated by S. 33. These words refer firstly to
production before judicial or other officers performing judicial functions as
evidence of any fact to be proved, and secondly refer to other officers who
have to perform any function in regard to those instruments when they come
before them, e.g., registration.
In Re Cooke and Kelly, (1932) I.L.R. 59 Cal.
1171, held obiter.
Collector, Ahmednagar v. Rambhau Tukaram
Nirhali, A.I.R.
1930 Bom. 392, Paiku v. Gaya, I.L.R. [1948]
Nag. 950 and Chunduri Panakala Rao v. Penugonda Kumaraswami, A.1,R. 1937 Mad.
763, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 369 of 1957.
Appeal from the judgment and decree dated the
January 27, 1956, of the Allahabad High Court (Lucknow Bench) at Lucknow in
Civil Misc. Application No. 17 of 1954 (0. J.).
C. B. Agarwala and C. P. Lal, for the
appellant.
V. D. Misra, for the respondent.
1961. February 16. The Judgment of the Court
was delivered by KAPUR., J.-This is an appeal against the judgment and order of
the High Court of Allahabad on a certificate granted by that court. The
respondent filed a 99 petition under Art. 226 of the Constitution praying that
the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,595/7/and a
penalty of Rs 5/was against law and could not be realized against him and
prayed that the order be quashed.,, On September 12, 1948, the, respondent
executed a wakf by oral recitation of Sigha and then it was written on a
stamped paper which was signed by the respondent and attested by, Witness. On
September 15, 1948, it was presented to the Collector for his opinion under s.
31 as to the duty chargeable. As the Collector himself was in doubt, he
referred the matter to the Board of Revenue which, after a fairly long time,
held that the document was liable to duty in accordance with Art. 58 of the
Stamp Act. On October 29, 1951, the Collector held that Rs. 85,598/7/were payable
as stamp duty and ordered that it be deposited within fifteen days. Notice to
this effect was served on the respondent on November, 10, 1951. Thereupon the
respondent filed a petition in the High Court under Art. 226 which was
dismissed on November 3, 1952 on the ground that it was premature. On February
2, 1954, a further notice was served upon the respondent to deposit the amount
of the stamp duty plus the penalty of Rs. 5/within a month otherwise
proceedings would be taken against him under s. 48 of the Stamp Act. Thereafter
on March 1 1944, the respondent filed a petition under Art. 226 of the
Constitution in the Allahabad High Court challenging the legality of the,
imposition of the stamp duty and the penalty and prayed for a writ of certiorari.
A full bench of the High Court quashed the order of the Collector and the State
of U.P. has come in appeal to this Court.
The decision of this appeal depends upon the
interpretation of ss, 31, 32 and 33 of the Stamp Act. The relevant portion of
s. 31 provides:-, S. 31(1) "When any instrument,, whether executed or not
and whether previously stamped or not,, is brought to the Collector and. the
person bringing it applies to have the opinion of that officer as to the duty
(if any) with which it is chargeable, and pays a fee of such amount (not
exceeding five rupees and 100 not less than eight annas) as the Collector may
in each case direct, the Collector shall determine the duty (if any) with
which, in his judgment, the instrument is chargeable." It is admitted that
the document in dispute was submitted to the Collector for his opinion under a.
31 and the opinion of the Collector was sought as to what the duty should be.
Under s. 32 of the Act when such an
instrument is brought to the Collector, under a. 31 and he determines that it
was already fully stamped or he determines the duty which is payable on such a
document and that duty is paid, the Collector shall certify by endorsement on
the instrument presented that full duty with which it is chargeable has been
paid and upon such endorsement being made, the instrument shall be deemed to be
fully stamped or not chargeable to duty as the case may be' Under the proviso
to s. 32, the Collector is not authorised to make the endorsement if an
instrument is brought to him a month after the date of its execution. Then
follows s. 33 which is as follows:
S. 33 "Every person having by law or
consent of parties authority to receive evidence, and every person in charge of
a public office, except an officer of police, before whom an instrument,
chargeable, in his opinion, with duty, is produced or comes in the performance
of his functions, shall, if it appears to him that such instrument is not duly
stamped impound the same.
(2) For that purpose every such person shall
examine every instrument so chargeable and so produced or coming before him in
order t o ascertain whether it is stamped with a stamp of the value and
description required by the law in force in British India when such instrument
was executed or first executed: Provided that(a) nothing herein contained shall
be deemed to require any Magistrate or Judge of a Criminal Court to examine or
impound, if he does not think fit so to do, any instrument coming before him in
the course of any proceeding other than a proceeding 101 under Chapter XII or
Chapter XXXVI of the Code of Criminal Procedure, 1898;
(b) in the case of a Judge of a High Court,
the duty of examining and impounding any instrument under this section may be
delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in case
of a doubt,(a) the collecting Government may determine what offices shall be
deemed to be public offices; and (b) the collecting Government may determine
who shall be deemed to be persons in charge of public offices." The
decision of this appeal depends upon the interpretation to be put upon the
words "before whom any instrument chargeable........................ is
produced or comes in the performance of his functions". Dealing with these
words the High Court held:" With all respect, therefore, we agree that the
learned Judges deciding Chuni Lal Burman's (1) case took a correct view of the
words " is produced or comes in the performance of his functions"
used in Section 33 of the Act to mean "that production of the instrument
concerned in evidence or for the purpose of placing reliance upon it by one
party or the other." The High Court was also of the opinion that the
object of paying the whole stamp duty was to get the instrument admitted into
evidence or its being acted upon or registered or authenticated as provided in
ss. 32(3), 35, 38(1) and 48(1) of the Stamp Act.
Counsel for the State referred to the various
sections of the Act; first to the definition section; Section 2(11) which defines
what is "duly stamped"; s. 2(14) which defines "instrument"
and s. 9(12) which defines "executed". He then referred to s. 3 which
lays down what "chargeable" means and then to s. 17 which provides
that all instruments chargeable with duty and executed by any person in British
India shall be stamped before or at the time of the execution. Certain other
sections i.e. ss. 35 and 38(1) were also (1) A.I.R. 1951 All. 851.
102 referred to and so also ss. 40(1)(a), 41,
42 and 48 but in our opinion it is not necessary to refer to these sections.
What has to be seen is what is the
consequence of a person applying to a Collector for his determination as to the
proper duty on an instrument. The submission on behalf of the State (appellant)
was that if an instrument whether 'stamped or not is submitted for the opinion
of the Collector before it is executed, i.e., it is signed, then the Collector
is required to give his determination of the duty chargeable and return the
document to the person seeking his opinion but if the document is scribed on a
stamped paper or unstamped paper and is executed then different consequences
follow. In the latter case it was submitted that under s. 33 the Collector is
required to impound the document if he finds that it is not duly stamped. On
the other hand it was submitted on behalf of the respondent that on his giving
his opinion the Collector becomes functus officio and can take no action under
s. 33.
It is these two rival contentions of the
parties that require to be decided in this case.
After an inordinately long delay, the
Collector determined the amount of duty payable and impounded the document.
Power to impound is given in s. 33 of the
Act. Under that section any Person who is a Judge or is in-charge of a public
office before whom an instrument chargeable with duty is produced or comes in
the performance of his functions is required to impound the instrument if it
appears to him not to be duly stamped. The question is does this power of
impounding arise in the present case?. The instrument in dispute was not
produced as a piece of evidence nor for its being acted upon e.g. registration,
nor for endorsement as under s. 32 of the Stamp Act but was merely brought
before the Collector for seeking his advise as to what the proper duty would
be. The words "every person............ before whom any
instrument............ is produced or comes in the performance of his
functions" refer firstly to production before judicial or other officers
performing judicial functions as evidence of any fact to be proved and secondly
refer to other officers who have to perform any 103 function in regard to those
instruments when they come before them e.g. registration. They do not extend to
the determination of the question as to what the duty payable is. They do not
cover the acts which fall within the scope of s. 31, because that section is
complete by itself and it ends by saying that the Collector shall determine the
duty with which, in his judgment, the instrument is chargeable, if it is chargeable
at all. Section 31 does not postulate anything further to be done by the
Collector. It was conceded that if the instrument is unexecuted i.e. not
signed, and the opinion of the Collector is sought, he has to give his opinion
and return it with his opinion to the person seeking his opinion. The language
in regard to executed and unstamped documents is no different and the powers
and duties of the Collector in regard to those instruments are the same, that
is, when he is asked to give his opinion, he has to determine the duty with
which, in his judgment, the instrument is chargeable and there his duties and
powers in regard to that matter end. Then follows s. 32. Under that section the
Collector has to certify by endorsement on the instrument brought to him under
s. 31 that full duty has been paid, if the instrument is duly stamped, or it is
unstamped and the duty is made up, or it is not chargeable to duty. Under that
section the endorsement can be made only if the instrument is presented within
a month of its execution. But what happens when the instrument has been
executed more than a month before its being brought before the Collector?
Section 31 places no limitation in regard to the time and there is no reason
why any time limit should be imposed in regard to seeking of opinion as to the
duty payable.
Chapter IV of the Act which deals with
instruments not duly stamped and which contains as. 33 to 48, provides for
impounding of documents, how the impounded documents are to be dealt with,
Collector's powers to stamp instruments impounded and how the duties and
penalties are to be recovered. It would be an extraordinary position if a
person seeking the advice of the Collector and not wanting to rely upon 104 an
instrument as evidence of any fact to be proved nor wanting to do any further
act in regard to the instrument so as to effectuate its operation should also
be liable to the penalties which unstamped instruments used as above might
involve. The scheme of the Act shows that where a person is simply seeking the
opinion of the Collector as to the proper duty in regard to an instrument, he
approaches him under s. 31. If it is properly stamped and the person executing
the document wants to proceed with effectuating the document or using it for
the purposes of evidence, he is to make up the duty and under s. 32 the
Collector will then make an endorsement and the instrument will be treated as
if it was duly stamped from the very beginning. But if he does not want to
proceed any further than seeking the determination of the duty payable then no
consequence will follow and an executed document is in the same position as an
instrument which is unexecuted and unstamped and after the determination of the
duty the Collector becomes functus officio and the provisions of s. 33 have no
application.
The provisions of that section are a
subsequent stage when something more than mere asking of the opinion of the
Collector is to be done.
Our attention was drawn to the observations
of Rankin C. J. in Be Cooke and Kelly (1) but those observations are obiter as
the High Court held that the reference under s. 57 of the Stamp Act was
incompetent. The doctrine of functus officio was applied in several cases:
Collector, Ahmednagar v. , Rambhau Tukaram Nirhali (2). In that case a
certificate of sale had been signed but the certificate was not duly stamped
which was pointed out when it was sent to the SubRegistrar for registration.
The Sub-Registrar informed the Judge about it and the Judge got back the
certificate from the purchaser and thinking that he had power to impound the
document and to impose a penalty asked for the opinion of the high Court and it
was held that after he had signed it he was functus officio and could not act
any further and could not impound it. The same principle was laid down in (1)
(1932) I.L.R. 59 Cal. 1171.
(2) A.I.R. 1930 Bom. 392.
105 Paiku v. Gaya (1) and in Chunduri
Panakala Rao v. Penugonda Kumaraswami (2) and in our opinion as soon as the
Collector determined the duty he became functus officio and he, could not
impound the instrument under a. 33 and consequential proceedings could not')
therefore, be taken.
The appeal is therefore dismissed with costs.
Appeal dismissed.
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