RAMJI SAMJI BHATT Vs. COLLECTOR MADHYA SAURASHTRA RAJKOT

JUDGEMENT

(1.) K. T. DESAI C. J.

(2.) THE Inspector General of Registration Gujarat State as the Chief Controlling Revenue Authority has made this Reference purporting to do so under section 54(1) of the Bombay Stamp Act 1958 He has also submitted the case to use his own words for instructions of the High Court. THE facts leading to the Reference bri- efly stated are as under: A special power of attorney was executed on the 1st day of January 1957 at Kasssla in Sudan by one Jatashanker Shivshanker in favour of Ramjee Samjee Bhatt of Rajkot. Under the power of attorney he authorised Ramjee Samjee Bhatt to sell his immovable property at Rajkot to one Patel Zinabhai Bhavanbhai of Rajkot for Rs. 9 100 and to receive the said amount on his behalf. He further authorised Ramjee Samjee Bhatt to sign and execute the necessary instrument and to apply to the Registrar or any Government Department at Rajkot to register the property in the name of the buyer. This document did not bear any stamp. THE document was received by Ramjee Samjee Bhatt at Rajkot. He presented the instrument to the Collector Madhya Saurashtra Rajkot for adjudica- tion. THE Collector held that the document was chargeable with stamp duty of Rs. 213 and 75 naye Paise under the provisions of Article 48(f) the First Schedule to the Bombay Stamp Act 1958 Ramjee Samjee Bhatt paid the amount of the stamp duty and obtained the certificate of the Collector on the instrument under the provisions contained in section 32 of the -aforesaid Act. He acted in exercise of the authority conferred upon him under the power of attorney. He was aggrieved by the decision of the Collector holding that the document was chargeable to duty of Rs. 213 He made an application on 27th July 1959 to the Inspector General of Registration Bombay State being the Chief Controlling Revenue Authority for refund of the amount paid by him. In that appli- cation he stated that he had to affix the stamp of Rs. 213-75 as required by the Collector as he had to complete the transaction in the exercise of the power conferred upon him under the power of attorney as soon as possible otherwise he would have been liable in damages for the breach of the agreement for sale. He stated in the application that the power of attorney was a special power of attorney which required the stamp only of Rs. 3.00. He accordingly applied for refund of the balance. THE Chief Controlling Revenue Authority was of the view that the contention of the applicant was correct and that only a duty of Rs 3/- was leviable in connection with that instrument. THE Chief Controlling Revenue Autho- rity however was of the opinion that it could not entertain the application of the applicant under the law. THE Chief Controlling Revenue Authority has thereupon made the present Reference in terms following: As Chief Controlling Revenue Authority is not authorised to entertain such a claim under the law I refer this case for the decision of the High Court as to whether the excess stamp duty recovered can be refunded if so by whom and under what authority or within its powers the High Court may decide the case communicating its decision for implementation. Looking at the power of attorney we are clearly of the view that the power of attorney is required to be stamped with a stamp of only Rs. 3.00 under the provisions of Article 48(c) of Schedule I to the Bombay Stamp Act. Article 48(f) is only applicable in those cases where the power of attorney is given for consideration and authorises the attorney to sell any immoveable property. In that event the stamp duty is the same as is leviable on a conveyance under clause (a) of article 25 for the amount of the consideration. In the present case the power of attorney has not been given for any consideration. It provides for the sale of the property to a third party for the consideration of Rs. 9 100 payable by the third party and for the receipt of the said amount from the third party by the holder of the power of attorney. We are in agreement with the views expressed by the Chief Controlling Revenue Authority that only a stamp duty of Rs. 3.00 is leviable on the instrument and the views expressed to the same effect by the learned Government Pleader who appears in support of the Reference It is clear on the facts of this case that the applicant has been made to pay Rs. 210-75 by way of stamp duty in excess of what he in law could be required to pay. What we have to consider in this case is the ambit of our powers in entertaining this Reference and giving any directions thereon. THE right conferred upon the Chief Controlling Revenue Authority to make a Refe- rence to the High Court is embodied in section 54 of the Bombay Stamp Act 1958 That section runs as under: (1) THE Chief Controlling Revenue Authority may state any case referred to it under sub-section (2) of section 52 or otherwise coming to its notice and refer such case with its own opinion thereon to the High Court. .............. .............. Section 56(1) provides that the High Court upon the hearing of any such case should decide the question raised thereby and should deliver its judgment thereon containing the grounds on which such decision was founded. THE High Court is further required by section 56(2) to send to the Revenue Authority by which the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar and the Revenue Authority was under an obligation on receiving such copy to dispose of the case conformably to such judgment. THE power of the Chief Controlling Revenue Authority to state the case arises under two circumstances (1) Where a case has been referred to the Chief Contro- lling Revenue Authority under sub-section (2) of section 53 and (2) when a case otherwise comes to the notice of the Chief Controlling Revenue Authority When we turn to the provisions of section 53(2) it is there provided that if any Collector acting under section 31 section 39 or section 40 felt a doubt as to the amount of duty with which any instrument was chargea- ble he may draw up a statement of the case and refer it with his own opinion thereon for the decision of the Chief Controlling Revenue Autho- rity. THE case before us does not fall within this provision. In the present case the Collector has not felt any doubt as to the amount of duty. In his view the duty payable was Rs. 213-75. On payment of the amount of duty he has certified the instrument as having been duly stamped. He has not drawn up any statement of the case and referred it for the decision of the Chief Controlling Revenue Authority. We shall next consider whether the case falls within the ambit of the words otherwise coming to its notice i. e. coming to the notice of the Chief Controlling Revenue Authority THE words otherwise coming to its notice are words of wide import If the meaning of these words was not governed by the other provisions appearing in the Act it could have been said that on an appli- cation being made by the applicant to the Chief Controlling Revenue Authority it came to the notice of the Chief Controlling Revenue Authority that duty in excess of that which was required to be paid had been paid at the instance of the Collector V and a reference could have been made by the Chief Controlling Revenue Autho- rity to us for a decision upon the question of the amount of stamp duty payable on the instrument. THEse words however have to be read in the light of what is required to be done by the Revenue Authority on receipt of a copy of the judgment given by the High Court in connection with the Reference. Under the provisions of section 56(2) the Revenue Authority has to dispose of the case conformably to the judgment of the High Court. THE Calcutta High Court has taken the view in a case reported in.59 Calcutta at page 1171 In re Cooke and Kolvey that unless the Revenue Authority had still resting upon it the duty of disposing of a case it was not intended by the statute that it should have a right to make a reference to the High Court. THE facts of that case were somewhat simi- lar to the facts in the present case. It was there held that were the Collector in exercise of the powers under section 31 of the Act had adjudicated upon the question of stamp duty chargeable on an instrument the Board of Revenue had no controlling power over the Collector before the instrument was impounded for failure to pay the duty and there was no duty imposed on the Board with regard to it. Chief Justice Rankin in the course of his judgment in that case. observes that there was no duty shown for performance by the Board of Revenue entitling the Board to ask the High Court to decide the matter. He held that the wide words or otherwise coming to its notice could only be given effect to in cases where the concluding words of section 59 (corres- ponding to section 56(2) of the Bombay Stamp Act 1958 could also be given effect to. THE Court there came to the conclusion that the reference was not competent. THE same view has been taken by Chief Justice Macleod in a case reported in 27 Bom. L. R. page 1273 Usuf Dadabhai v. Chand Mahomed. In the course of his judgment Chief Justice Macleod has observed that the Chief Controlling Revenue Authority could refer a case under section 57 of the Indian Stamp Act (corresponding to section 54 of the Bombay Stamp Act 1958 only when there was a case which was required to be disposed of by the Chief Controlling Revenue Authority on receipt of the High Courts judgment and that the Chief Controlling Revenue Authority had no power to make a reference when there was no case pending before it. In the present case action has been taken by the Collector under section 31. That action is an action falling under Chapter III of the Act. When action is taken under Chapter III section 31 that action of the Collector is not subject to the control of the Chief Controll- ing Revenue Authority. Section 53(1) provides that the powers exercisable by a Collector under Chapter IV and Chapter V and under clause (e) of the first proviso to section 27 would in all cases be subject to the control of the Chief Controlling Revenue Authority. THEre is no similar provision in connection with the exercise of the powers by a Collector under section 31 holding that a particular document was chargeable with a particular amount of duty. When we refer to Chapter IV there is therein included section 39. That section lays down that when the Collector impounds any instrument under section 33 or receives any instrument sent to him under sub-section (2) of section 33 not being an instrument chargeable with a duty of twenty naye Paise or less he is required to adopt the procedure therein laid down. If in his opinion such instrument was charge- able with duty and was not duly stamped he is required to require the: payment of proper duty or the amount required to make up the same together with certain penalty which in certain cases may be remitted. This takes us to the provisions contained in section 33. That section provides inter alia that 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 who any 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. Having regard to the provisions of these sections it is clear that in all cases where the Collector has impounded a document his action would be subject to the control of the Chief Controll- ing Revenue Authority and a reference could be made to the High Court by the Chief Controlling Authority. Unfortunately for the applicant in the present case he paid the stamp duty and did not allow the document to be impounded for non-payment thereof with the result that having regard to the present somewhat unsatisfactory state of the law a reference can not be made to the High Court and the Chief Controlling Authority there after could not make a refund acting upon the decision of the High Court. In connection with the question whether the Chief Controlling Revenue Authority could entertain the application for refund made to it our attention was drawn to the provisions of section 44 of the Act. That section by sub-clause (2) provides that where in the opinion of the Chief Controlling Authority stamp duty in excess of that which was legally chargeable has been charged and paid under section 34 or section 39 such Authority may upon application in writing made by the party con- cerned within three months from the date of receipt of the order charging the same refund the excess. THE duty in the present case has not been charged and paid either under section 34 or section 39 with the result that the Chief Controlling Revenue Authority has felt itself helpless in entertaining the present application. In fact in the Reference made it is stated and rightly so that it was not authorised to entertain such a claim under the law. This unsatisfactory state of the law where under even in a clear case like the one before us the Chief Controlling Revenue Authority is unable to entertain and grant an application for refund of excess duty needs to be remedied. Under the present state of the law we have no power to entertain the reference. It is always open to the Government to give relief when a person has been obliged to pay a duty wrongly claimed and we hope that in the interests of justice if a proper approach is made the needful will be done. THEre will be no order as to costs.