MANJUNATHA RAI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioner is seeking for a writ of mandamus directing the Board of Revenue to state a case under Section 57 of the Indian Stamp Act on the questions of law in the Board's order dated 13-5-1971. The petitioner's case in that, in 1947 he purchased a property of an extent of 27 grounds with buildings thereon in Madras, for a substantial consideration. , a part of which was provided for by his wife, as is demonstrable by the various events that took place at or about the time of the purchase of the property for securing the sale price. It is said that the petitioner's wife mortgaged her own property and contributed towards the price of the property. In or about 1970 the petitioner decided to relinquish and release his interests over a portion of the said property, viz. , an extent of ten grounds which, ever since the purchase, was in the possession of the petitions wife and who, with her own funds, did put up a superstructure thereon as well. In order to confirm and confer a better title to the petitioner's wife, an instrument of release was prepared by the petitioner in and by which he expressly released and relinquished his interests over the part of the property so as to make the petitioners wife's title to the property more perfect. This release deed which was not stamped was forwarded to the Collector of Madras for obtaining an opinion from him under section 31 of the Indian Stamp Act,as to what was the stamp fee which ought to be paid on the instrument. The collector, by his order dated, 21-4-1970, adjudicated on the subject-matter and held that the deed of release forwarded by the petitioner was liable to stamp duty under Article55 (b) of the Indian Stamp Act as a release deed, pure and simple. After having secured such an adjudication, the petitioner presented the said document for registration before the Sub-Registrar of assurances, who felt a doubt about the stamp duty paid on the instrument and therefore, impounded the same under Section 33 of the Act. After having impounded the said document under the Stamp Act, the Sub-Registrar referred the matter to the District Registrar who was of opinion that the document had to bear the stamp payable on a sale deed and that the stamp fee paid as if it was a release deed was not proper. The petitioner took up the matter in appeal before the Board of Revenue, who was the Chief Controlling Revenue Authority. He took up two contentions before the Board. The first was that neither the Sub-Registrar of Assurances initially nor the District Registrar of Assurances, had the requisite authority to impound a document which was adjudicated upon by the Collector of madras, as the statutory authority for giving an opinion on such matters and consequentially adjudicate upon them. The second contention was that the document, having regard to the circumstances, of the case, was a release deed and not a sale deed and therefore, the stamp fee paid was sufficient and the opinion expressed by the Collector under Section 31 read with Section 32 of the Act is final and conclusive. The Board, however, agreed with the opinion of the District registrar and affirmed that the instrument was not duly stamped and was of the view that it should bear the duty as if it was a sale deed. On the other question, the Board expressed the view that as no certificate was issued by the Collector as contemplated under Section 32 of the Act and as he merely adjudicated upon the instrument and reckoned the duty, the order, in such circumstances, is not final in the eye of law. Having thus been unsuccessful before the Board, the petitioner requested the Board of Revenue to state a case under Section 57 of the Stamp Act to the High Court on the following questions: 1. As to whether the District Registrar, Madras, was competent to reopen an adjudication made by the Collector of Madras of the instrument dated 29-4-1970 executed by the petitioner, and

(2.) WHETHER, on the facts and circumstances of the case, the instrument dated 29-4-1970 executed by the petitioner in favor of his wife was a release deed chargeable to stamp duty under Art. 55 (b) of the Stamp Act or a conveyance chargeable under Article 23 of the Stamp Act. " the Board of Revenue refused to refer the matter to the High Court on the ground that there was no subject-matter pending before the Board on the date when the reference was sought and also on the ground that no substantial question of law was involved. It is as against this order of the Board dated 14-7-1971, the petitioner has filed this writ petition seeking for a writ of mandamus directing the board to make the reference as requested. 2. Chapter III of the Indian Stamp Act dealing with adjudication as to stamps vests in the Collector the authority to certify and determine as to what stamp duty an instrument which is brought to his notice under Section 31 has to bear. Section 31 provides that any instrument, whether executed or not and whether previously stamped or not, may be brought to the notice of the Collector to secure his opinion as to the duty with which it is chargeable. No doubt, the applicant has to suffer a fee for making such a request. But when such an instrument is brought to the notice of the Collector, it is his statutory duty to determine the stamp duty payable on the instrument so brought before him. In a case where the instrument is previously stamped, he can issue a certificate by endorsement on the instrument that the duty with which it is chargeable has been paid. In a case where the instrument is not stamped or executed, he has to determine the duty and intimate the party accordingly. In the instant case, it is not in dispute that the Collector exercised his jurisdiction under Section 31 and 32 and stated in his proceedings dated 21-4-1970 that the document in question falls under Article55 (b) of the stamp Act, and that the stamp duty chargeable thereon was Rs. 22-50. The Board of Revenue is conscious of these proceedings of the Collector But, the Board would state that it was neither an order nor a proceeding of the Collector. I am unable to see any force in this conclusion. The power of the Collector under the Stamp Act as the original authority to express an opinion as the quantity of stamp duty payable on an instrument is a statutory power duly vested in him and such power has to be exercised by him when he is called upon to do so. If the instrument is unstamped, the only possible way he could act under Sections 31 and 32 is by determining the stamp duty payable on the instrument and consequentially expressing an opinion on the subject by stating that the instrument would fall under one or other of the Articles of the Stamp Act. This opinion, in so far as the instrument is concerned, and in relation to the request of the applicant concerned, is undoubtedly an order of the Collector made in his jurisdiction under Sections 31 and 32 of the Stamp Act. I am unable to agree with the Board when it says that that was not an order as it is popularly or juridically understood.

(3.) IF the Collector so enters upon his duties under Sections 31 and 32 of the Act and expresses his opinion as to the Article which is attracted in a particular case and also determines the duty payable under that Article over the instrument brought to his notice, then, if the applicant follows up the said opinion by stamping the instrument in accordance therewith, in the eye of law, and in particular under the provisions of the Stamp Act, the instrument must be deemed to have been properly stamped. There is a finality, at any rate, at that stage, to the subject, viz, whether that particular instrument has been properly stamped under the Stamp act. In such circumstances, if the document, which has suffered a duty as above, is produced before any officer who is perforce compelled to look into it or before a registering officer who is obliged to register it, then he cannot have a second look into the duty paid on the instrument and take up the responsibility of a second adjudication over and above that undertaken and adjudicated upon by the collector under Sections 31 and 32. The Supreme Court, in Government of U. P. v. Raja Md. Amir Ahmed Khan, has said that 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 can approach the Collector under section 31 and an executed document is in the same position as an instrument unexecuted and unstamped and if, after the determination of the duty, the collector becomes functus officio, the provisions of Section 33 have no application and he could not impound the document under Section 33. The consequential proceedings could not therefore be taken. The Supreme Court also expressed the view that when a Collector adjudicates upon an instrument or determines the duty on an unstamped instrument brought to his notice, then that order is final. In fact, as early as 1902, a Full Bench of our Court, in a reference under the Stamp Act, section 57 (1902) ILR 25 Mad 751) clinched the position and observed thus-